After a last-ditch effort to keep city of Austin regulators at bay was unsuccessful, it appears MOC Kayak/East Side Tubes may be forced to shut down.
For Dan Walker, who owns the Eastside kayaking, fishing, and tube-floating business with his mother, father, and brother, last week's failure to sustain a temporary injunction against the city was catastrophic. He says that, with over $50,000 lost so far and access to the water blocked, he'll most likely have to close the business.
Though Walker was initially successful in getting a temporary restraining order, a request for a temporary injunction was denied last week. Travis County Court-at-Law Judge David Phillips said that while this very well might be a case of the city messing up a good thing, it was within the city's rights to do exactly that. "The government gives the government a lot of discretion," said Phillips, "and this is an area that falls in the government's discretion."
In other words: you can't fight City Hall.
Walker told the court that he had been in business renting watercraft for about eight years, moving from locations in Bee Cave and Lakeway after the region's ongoing drought took its toll on sales. He's been at 4701 Red Bluff Road for about two years, where things had been going smoothly until Memorial Day weekend, when the business expanded from Colorado River kayak rentals to tube rentals and shuttling – facilitating a route that started just below the Longhorn Dam and ended at the Montopolis Bridge.
The tubing operation caught the attention of neighbors and, after a call to 3-1-1, the troubles began to compound, leading first to a closure of the business' access to the water and then to last week's court date. Walker was seeking a temporary injunction against the city that would allow him to keep his business open while he sorted out the problems that had descended on the family business in the past few months.
Prior to his ruling, Judge Phillips commended Walker for his idea, calling it a good one. But despite that note of confidence, the judge just didn't see the city's actions as "arbitrary or irrational." Instead, the red tape currently strangling the shop was just a part of doing business in the city.
Some of the city's complaints are demonstrably true. The business does not have a correct certificate of occupancy, for example. The shop is currently classified as a warehouse – not a retail establishment. There are parking problems that need to be cleared up. And the sole point of access from the property to the water – a footpath down to the river – has been deemed treacherous by the city, and shut down, thereby effectively closing the business.
Walker cited the 20,000 or so customers who have successfully navigated the walkway without incident to demonstrate it isn't a hazard. And his lawyer pointed to city-owned park trails that seem similarly threatening, asking why something like the Barton Creek Greenbelt would be safe for the public if this walk is considered dangerous. But Jonathan Josephson, a senior inspector with the city's Code Compliance Department, said it was a miracle that no one had gotten hurt on the Red Bluff path to the water. He bristled at the classification of it as a "wilderness path" and drew a thick line between trails and commercial walkways. He explained that public expectation – and city codes – casts the two features in a much different light.
At this point, Walker's problem is sorting out how to address his various problems. As a first step, the walkway needs to be re-opened; but in order to open it, repairs must be made. Those repairs must be permitted, and that's something that can't happen until someone figures out who exactly owns the land between the property line and the river. After several people testified about who doesn't own the property (the city of Austin, the state of Texas, the owner of 4701 Red Bluff, Walker, and the LCRA all made the short list), there was a dramatic, if inconclusive, moment that suggested it might belong to the city after all.
If this were true, an agreement with the city could allow Walker to obtain a permit to improve the walk. But with a separate process still underway to ban tubes on the river, and at least three separate city departments focused on the activities of 4701 Red Bluff Road, one imagines that Walker isn't eager to get even more of the city's employees involved in what was once simply "a good idea."
Instead, Walker is holding out hope that the last-minute claim by the city that it might own the land indicates a lack of confidence. He's waiting on the maps to arrive, but thinks that they might actually prove the land is owned by the state – and that perhaps the state will prove easier to work with than the city.
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