Washout
by Jenny Staff
illustration by Doug PotterIt was a big night for lawyers in the council chambers last Thursday. Legal terms of art were rolling fast and freely off the tongues of all assembled, leaving those without a J.D. a little nonplussed. This may have been due in part to the presence of one of the state's most prominent barristers, former attorney general Jim Mattox, who was before the council to protest a rollback of the zoning on a tract of land he owns along U.S.183. Fresh off the defeat of his campaign to regain his old job as A.G., Mattox received another at the hands of the tract's neighbors, whose valid petition -- a petition whose signatures have been verified by the city -- caused Mattox to lose the support of two councilmembers (Jackie Goodman and Beverly Griffith), and therefore, his cause.
The city's case against Mattox, (and the owners of two tracts of land adjoining his) was made with zeal by the usually low-profile city attorney Marty Terry, causing Councilmember Bill Spelman to note that, "It occurs to me I've never seen Marty Terry and Sandra Day O'Connor in the same place at the same time." Terry and Mattox had exchanged words before the meeting, splitting legal hairs before a small group of mostly confused onlookers just happy to have a minor political celebrity in the building.
Under dispute, among other legal minutiae, was a 20-year-old restrictive covenant calling for a zoning rollback if the car wash that occupied the property ceased to exist for more than a year. The car wash ceased operation in 1991, and was demolished in 1994 to facilitate the widening of U.S.183. Mattox argued that though the car wash ceased use, it was done involuntarily -- the city had required it for the 183 expansion. This year, when the city finally got around to initiating the rollback, Mattox, along with two individuals owning land adjacent to him, came to protest, suggesting that Mattox might like to reopen the car wash.
Residents near the site objected, insisting they wanted the promised rollback: to prevent increased traffic in the area, and because Mattox and his cohorts had provided them with no site plan or other indication of what they intended to build. "We've been very reluctant to provide what we would consider a blank check," said Billy Clifford of the Seven Oaks Neighborhood Association. Though their concerns were not persuasive to the council, the neighbors prevailed on the strength of a city policy which requires a vote of six out of seven councilmembers to override a valid petition. So the neighborhood only needed two votes to thwart Mattox and ensure the rollback, and by simply filing the petition, they ensured themselves they'd get one -- Mayor Pro Tem Jackie Goodman makes it a rule never to vote against a valid petition. "I don't vote against the valid petition because it is the only strong tool the neighborhood has," she told the neighbors, explaining why she voted in the neighbors' favor. "Though I don't agree with you this time."
Back to the ForumMeanwhile, out in the Barton Springs watershed, the Forum PUD is in trouble with this week's news out of city hall that Council-members Daryl Slusher and Bill Spelman would vote against the proposed 700,000-square-foot retail development at William Cannon and South MoPac. The planned project had been scheduled for a council vote today (Thursday, Jan. 21), but a postponement is likely, as is another mediation session with lawyer John Joseph and his client, Forum developer Catherine Brownlee. In a statement issued Tuesday evening, Slusher stated, "I see this not so much as a development battle, but as a debate among environmentalists over how best to protect the aquifer given the realities of a growing city." Earlier in the week, Spelman told the Chronicle the council would take no action on the item until councilmembers could discuss and approve the city's new mitigation policy for impervious cover, which was prompted by the offer of the Forum's developers to preserve some environmentally sensitive "mitigation" tracts in return for increased impervious cover limits on others. While councilmembers said the existence of such a policy could make them more comfortable approving the Forum PUD, their approval is contingent on other factors as well. Spelman said he wanted to ascertain whether the land use -- including a 183,000 square-foot Lowe's home repair store and an office building -- is appropriate for the site, and whether existing infrastructure can handle the extra stress it would bring. And even if all other issues are resolved, there will still be haggling over the impervious cover issue -- the draft policy calls for a cap on all tracts in the Barton Springs Recharge Zone of 40%, and the Forum's proposal estimated impervious cover as high as 52%.
As things stand now, the draft mitigation policy would apply only to "parent" (i.e., primary) tracts within the city limits, and only within the Barton Springs Zone. For every 5% increase over S.O.S. impervious cover limits, the landowner would be required to provide mitigation property equal to half the net site area of the parent tract. While impervious cover would be capped at 40% in the recharge zone, the limit would be 50% in the Contributing Zone. The mitigation tract must be at least as environmentally sensitive as the parent tract, on which impervious cover will be "clustered." (City staff will develop criteria to estimate environmental sensitivity.) The new development would have to be situated so as not to require the development of additional public utility infrastructure. The policy will also contain restrictions on where and what size the mitigation tracts may be, for example, at least 50% of the mitigation land must be in the same watershed and within two miles of the parent tract.
Up to Me UpdateIn the next major item on the council's agenda, more legalese was employed in the service of a good thing: the council's resolve to prevent yet another Eastside neighborhood from being visited by something the neighbors don't want. The council is right to extend to the East the same kind of self-determination they regularly allow westsiders. But the plight of the Up to Me drug rehabilitation center is a sad one, nonetheless.
Though they denied both her organization's request to move to Webberville Road and her lawyer's insistence that the group was exempt from the law that gave the council the right to approve or deny the move, when Up to Me administrator Patricia Jennings protested plaintively that she was just a humanitarian trying to do a job, she seemed to have gained the sympathy of councilmembers. ("We believe you," said Spelman, a critic of Jennings' tactics in last week's "Council Watch"). Their sympathy is well-placed, because Patricia Jennings is in fact a humanitarian. She's doing work most people won't do; taking care of men that most of us would rather pretend don't exist.
With the approval Thursday of the 11th and 12th Street revitalization plans (See "Naked City"), momentum for change in East Austin may finally be picking up. Would the arrival of Up to Me on Webberville Road diminish, or even slow, the progress for which many Eastsiders have fought so hard? Maybe not, but a whole slew of Up to Me's might. The Rosewood neighbors can't be blamed for drawing the line at this particular establishment; they have more than their allotment of such, and the line has to be drawn somewhere.
It would be easy to admonish the Webberville neighbors to do the noble thing and give Up to Me a chance to prove themselves. But it's always neighborhoods like Rosewood that are asked to make this kind of sacrifice. When will Tarrytown have to come to council protesting a drug treatment facility for felons, or a recycling plant or a gasoline tank farm? PODER representative and Planning Commission member Susana Almanza noted that while on the west side "they fight malls and grocery stores. We can't do that." Granted, places like Up to Me are not generally flush with the kind of cash it would take to score a 78703 zip code -- so they will naturally gravitate toward the more affordable (read: less prosperous) neighborhoods, where homeowners can least afford the hit that declining property values inevitably produce. One remedy for this problem could be a revised East Austin Overlay, one with more enforcement options for keeping bad development out of Eastside neighborhoods.
In its dealings both with its landlord and with the city, Up to Me has shown signs of profound naiveté: of contract law, of zoning regulations, and especially of the way to make friends at City Hall. And they've been punished for it. Now Up to Me is in a real jam. They show signs of wanting to sue, as people backed into corners are wont to do. But the opportunity the council gave them to work things out with the neighborhood, while more of an uphill battle than ever, is still out there. The Eastside neighbors, though agitated, still seem willing to enter mediation. Even Gardens Neighborhood resident John Limon, who came downtown Thursday to publicly criticize Up to Me's tactics, said he'd participate: "I hope (I can)," he said. "I'd like to be part of it."
This Week in Council: The council will also consider second and third reading approval of a zoning change to allow the construction of a Home Depot on Stassney in South Austin, which would be built under S.O.S. standards, but which has some neighborhood opposition (but not from the relevant neighborhood association, which cut a deal with developers that's to their liking). The confluence of these two projects begs the question: How many big-box home repair stores will this area support? Though the D.I.Y. ethic of Home Depot and its competitors is admirable, and though words like "mitigation," "buffer of greenspace," and "water retention ponds" may sound like (and may in fact be) an improvement on old-style development, these projects could sorely aggravate the spread of sprawl and oversized generic retail in southwest Austin. Isn't this what S.O.S. was supposed to protect us from?
