The Austin Chronicle

https://www.austinchronicle.com/daily/news/2007-12-21/574811/

RG4N Loses In Court

By Lee Nichols, December 21, 2007, 9:55pm, Newsdesk

Responsible Growth for Northcross has lost its lawsuit attempting to stop the construction of a Wal-Mart on the former Northcross Mall property by Lincoln Property. RG4N sued the city, asserting that city staff had improperly approved Lincoln’s site plan for the Wal-Mart Supercenter without considering the project’s impact on public safety, traffic, and flood drainage as required by city ordinance. Part of RG4N’s claims was that city staff should not have approved the Wal-Mart’s garden center as an “accessory use,” essentially meaning it’s a minor part of the store, and it should have been a “conditional use,” or a central use of the property, which would require a zoning change and thus would have triggered public hearings.

In her opinion, Judge Orlinda Naranjo of the 419th District Court noted that the city has historically approved site plans if garden centers are an accessory use and less than 10% of the total floor area. (But curiously, she did not address any of RG4N's other claims – click here for a PDF file of the ruling.)

“After ascertaining the City’s intent in enacting the ordinance as expressed in its plain language," Naranjo wrote, "the Court finds that the City’s decision to approve Site Plan 2 is consistent with the clear language of the ordinance. The Court cannot rewrite the ordinance to apply to all garden centers whether an accessory use or not, or determine at what size an accessory use is unreasonable. Would it be 1,000 sq. ft., 5,000 sq. ft., 10,000 sq. ft. or 20,000 sq. ft.? Would it be 1%, 3%, or 5% of the total floor area of the use? Even though the Court may not agree with the results of the City’s interpretation of the ordinance, it is for the City Council, not this Court, to change the ordinance.”

In a statement, RG4N replied: “RG4N is disappointed with this verdict. But we are not done fighting.

“We are merely back where we were one year ago, when neighbors resoundingly said, ‘NO’ to this irresponsible development. And in the court of public opinion, Wal-Mart, Lincoln and the City of Austin have been losing since Day One.

“Unless we continue to act, we believe the City and developers will take this ruling as a green light to continue business as usual, pursuing any and all development without regard to the wishes of or effect on neighborhoods.

“Moreover, while Judge Naranjo outlined her reasoning for her ruling on the garden center issue, she gave no explanation for her ruling on most of our claims. Without such an explanation, we continue to believe that we conclusively established noncompliance with the law on our other claims.”

"[T]his is a victory for the integrity of the City's process," said attorney Casey Dobson, outside counsel for the city. "Let me also compliment RG4N and their fine counsel for a case well-fought."

RG4N said it will hold a town hall meeting in Wozniak Hall at St. Louis Catholic Church, 7601 Burnet, on Jan. 11 at 7pm.

Copyright © 2019 Austin Chronicle Corporation. All rights reserved.

The Austin Chronicle

https://www.austinchronicle.com/daily/news/2007-12-21/574811/

RG4N Loses In Court

By Lee Nichols, December 21, 2007, 9:55pm, Newsdesk

Responsible Growth for Northcross has lost its lawsuit attempting to stop the construction of a Wal-Mart on the former Northcross Mall property by Lincoln Property. RG4N sued the city, asserting that city staff had improperly approved Lincoln’s site plan for the Wal-Mart Supercenter without considering the project’s impact on public safety, traffic, and flood drainage as required by city ordinance. Part of RG4N’s claims was that city staff should not have approved the Wal-Mart’s garden center as an “accessory use,” essentially meaning it’s a minor part of the store, and it should have been a “conditional use,” or a central use of the property, which would require a zoning change and thus would have triggered public hearings.

In her opinion, Judge Orlinda Naranjo of the 419th District Court noted that the city has historically approved site plans if garden centers are an accessory use and less than 10% of the total floor area. (But curiously, she did not address any of RG4N's other claims – click here for a PDF file of the ruling.)

“After ascertaining the City’s intent in enacting the ordinance as expressed in its plain language," Naranjo wrote, "the Court finds that the City’s decision to approve Site Plan 2 is consistent with the clear language of the ordinance. The Court cannot rewrite the ordinance to apply to all garden centers whether an accessory use or not, or determine at what size an accessory use is unreasonable. Would it be 1,000 sq. ft., 5,000 sq. ft., 10,000 sq. ft. or 20,000 sq. ft.? Would it be 1%, 3%, or 5% of the total floor area of the use? Even though the Court may not agree with the results of the City’s interpretation of the ordinance, it is for the City Council, not this Court, to change the ordinance.”

In a statement, RG4N replied: “RG4N is disappointed with this verdict. But we are not done fighting.

“We are merely back where we were one year ago, when neighbors resoundingly said, ‘NO’ to this irresponsible development. And in the court of public opinion, Wal-Mart, Lincoln and the City of Austin have been losing since Day One.

“Unless we continue to act, we believe the City and developers will take this ruling as a green light to continue business as usual, pursuing any and all development without regard to the wishes of or effect on neighborhoods.

“Moreover, while Judge Naranjo outlined her reasoning for her ruling on the garden center issue, she gave no explanation for her ruling on most of our claims. Without such an explanation, we continue to believe that we conclusively established noncompliance with the law on our other claims.”

"[T]his is a victory for the integrity of the City's process," said attorney Casey Dobson, outside counsel for the city. "Let me also compliment RG4N and their fine counsel for a case well-fought."

RG4N said it will hold a town hall meeting in Wozniak Hall at St. Louis Catholic Church, 7601 Burnet, on Jan. 11 at 7pm.

Copyright © 2019 Austin Chronicle Corporation. All rights reserved.

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