Naked City

Edited by Louisa C. Brinsmade, with contributions this week by Roger Baker and Andy Langer.

NAKED MUSIC CITY: Which of the following doesn't belong on Sixth Street: rock, blues, daiquiris, punk, stand-up comedy, gyros, or bare breasts? Austin's Planning and Development Department has chosen the bare breasts. As the only topless bar on Sixth Street, Foxxie's Firehouse has been doing brisk business with students and musicians alike since opening last month. Foxxie's has been less popular with the Planning and Development folks, who have spent the time since the club's opening fielding complaints from neighboring businesses and residents.

After Foxxie's altered its original plan to open as a live music venue, several nearby club-owners began investigating how a Sixth Street topless club could possibly be legal - on the assumption that they must be illegal because there weren't any alread there. More importantly, they asked, could one successful opening turn the street into a string of similar ventures? Regardless, Foxxie's opted to open first and field questions later. And because Sixth Street falls into Central Business District, one of only two Austin zoning areas that don't mandate that adult businesses endure a public hearing for a conditional use permit, Foxxie's is now in a position to stay open during its appeal of the city's recent code violation notice.

According to Austin's Land Development Code, an "adult-oriented" business such as Foxxie's cannot be within 1,000 feet of a school, church, public park, playground, or another adult-oriented business. Chief Zoning Inspector Jesse Washington says his inspection showed Foxxie's Firehouse to be well within the 1,000 foot range of Waller Creek Park and a pair of businesses with adult-oriented classification, Forbidden Fruit and a AAA mail-order bookstore. As such, Washington says Foxxie's "has no option as an adult-oriented business," but adds that the club has 10 working days to respond to the violation notice, and an additional 20 days to appeal inspection findings. If, at that point, Foxxie's hasn't clothed its entertainers, Washington says the city can file misdemeanor charges in Municipal Court that could result in fines of up to $2,000 per day, per offense. Curiously, Washington says that neither the city nor its vice squad has any authority to actually lock a business's doors for non-compliance.

"This won't be the last time a topless club is tried on Sixth Street," says Washington. "This is the prime city in Texas for new adult-oriented business because we have so few. Dallas or Houston have five times as many, so Austin is a hot climate to take advantage of. Should Foxxie's opt to go to court and win, it could certainly set a dangerous precedent."

Foxxie's Firehouse owner John Grace contends that Washington's claims are false, and that his club lends diversity to what is already a party zone, adding that his legal team does indeed plan on setting precedent.

"We're certainly going to fight and we'll be fighting with little doubt we'll win," says Grace, who contends that the city has informed him that the map he bought from the city, showing him to be in violation of zoning laws for adult-oriented busineses, is incorrect. "All we've found is a clothes shop (Forbidden Fruit) you can find in the novelty section of the Yellow Pages that is operating under the 35% square foot limit for adult goods anyway, an undedicated hike and bike trail with privately owned sections, and a AAA Book Store that bears no signs and is completely closed to the public. It's the same things the city has told others that were interested, and I suppose they didn't think it would be cost-effective to defend themselves. But once we began looking into what are facts, we became confident we could beat the city's claims."

Although several club owners say they're torn between a venue with an image for Sixth Street they don't approve of and the desire to see the city lose a major battle, most say their biggest fear is the widespread addition of topless clubs to an already competitive nightlife of music venues, brew pubs, and theme clubs. And should Foxxie's win, lose, or draw, Washington and Grace do seem to agree the next zoning test is less than 1000 feet away. - A.L.

ONE FOR THE BIRDS: The Supreme Court ruled last Thursday in favor of a broad reading of the Endangered Species Act (ESA) that supports preservation not only of an endangered species itself, but also the natural surroundings required to sustain it. The 6-3 decision, written by Justice John Paul Stevens, declared that the ESA, passed in 1973, intended to provide protection against "indirect as well as purposeful actions," and that the protection of habitat is a "reasonable interpretation" of the law.

The decision struck down a lower court's ruling from last year that the U.S. Department of the Interior's Fish & Wildlife Service (FWS) had overstepped its bounds in using the ESA to restrict development and destruction of endangered species habitat. The case, commonly known as Sweet Home v. [U.S. Secretary of the Interior Bruce] Babbitt, was brought by a group of Pacific Northwest timber companies, individuals, and communities who successfully argued in the lower courts that the FWS's definition of "harm" to an endangered species was too broadly defined to include their ecosystem. Last March, a three-judge panel of the U.S. Court of Appeals for the District of Columbia agreed, saying that the ESA was intended to protect species only from direct harm such as hunting or poaching. The Sweet Home case specifically dealt with the spotted owl in the Northwest, and the red-cockaded woodpecker in the Southeast, but the case had far-reaching implications for all endangered species in the U.S. Had the Sweet Home group prevailed, the FWS could have been stripped of enforcement powers under the ESA.

Environmentalists were joyful at last week's ruling, saying that if it had gone the other way, developers would feel free to begin wholesale clearing of habitat, particularly on land used by migratory species. Developers and lawmakers, on the other hand, began calling for Congressional action to rewrite the ESA to ease restrictions on landowners.

The FWS has come under attack from developers and landowners in western Travis County for the agency's attempts to protect the endangered golden-cheeked warbler and black-capped vireo. Both species are migratory and thrive in the cedar and oak-rich terrain west of Austin. The FWS has placed clearing and development restrictions not only on private property where the species have been spotted, but on land containing potential habitat.

Local developers have been quoted in the daily paper as saying the Supreme Court ruling will give the Balcones Canyonlands Conservation Plan (BCCP) a "shot in the arm." Under the BCCP proposal, a coalition of local governments would acquire acreage for preservation with voter-approved bond money and allow development in those areas in exchange for a one-time developers fee. The plan, in the works since the late Eighties, faltered in 1993 when Travis County voters rejected a $42 million bond package for BCCP land acquisition. Developers have been pushing for the BCCP as a way to ease land-use restrictions - currently, developers must seek approval for building plans in sensitive habitat from the local office of the FWS.- L.C.B.

TICKET TO RIDE: Get ready for commuter rail through Austin. A large group of regional transportation officials and planners have kicked off a major effort to plan a rail alternative to relieve the overcrowded I-35 corridor stretching from Austin to San Antonio. The planning effort was announced at an Intermodal Surface Transportation Efficiency Act (ISTEA) Implementation Forum on June 22 at Capital Metro headquarters. ISTEA provides federal funding for alternative transit modes such as commuter rail. Representatives from the Austin Transportation Study committee (ATS), the Texas Department of Transportation (TxDOT), San Antonio planning officials, Union Pacific, and several federal and state transportation consultants were in attendance at the forum.

The commuter rail initiative as discussed at the forum would likely involve aligning a freight rail bypass along the proposed MoKan highway east of Austin, with MoKan as a possible toll road. Currently, Union Pacific carries cargo on its railway down the center of MoPac through central Austin. Such a move by Union Pacific would free up the rail company's line along MoPac for use as a future rail commuter line between Austin and San Antonio.

Several regional transportation imperatives make the commuter rail proposal viable: federal money is dwindling for highway projects that don't include multimodal plans; I-35 is reaching the limit of its vehicle capacity in the Austin area; and Union Pacific is likewise reaching the limit of its freight capacity through central Austin and would benefit from a bypass route as well as a possible bypass around San Marcos. In addition, Union Pacific representatives made it clear that the rail company is aware that its rail lines through many major American cities are becoming increasingly valuable as commuter facilities to relieve congested highways. To illustrate this point, Union Pacific representatives played a video tape at the forum that discussed commuter rail facilities in various cities, including Austin.

TxDOT is expected to be the lead coordinating agency in developing the commuter rail plan, with the help of ATS committee members and transportation consultants. The results are expected by November.

Part of the discussion during the forum focused on the likelihood that there will be a public cost, and on how to market a non-automobile solution to the public. It was pointed out that the commuter rail plan, in whatever form it takes, must be sold to smaller communities between Georgetown and San Antonio because even one small community could sink the effort.

One of the biggest potential selling points was seen to be the threat of Austin becoming a "non-attainment" area. If the ozone level exceeds federal standards of .12 parts per billion three times in one year, federal funding to roads would be cut off. Austin has only narrowly escaped being placed on non-attainment status in the past, and the future doesn't bode well. The recent economic boom and the traffic it has brought to the city, as well as the high commercial traffic caused by the North American Free Trade Agreement, raised Austin's ozone levels to near federal limits several times in the last three years.

Amidst all the forum's transportation jargon, the idea of a multimodal facility to relieve I-35 got religion when former Congressman Jake Pickle gave an impassioned 10-minute speech, stating that he is "a new convert to the multimodal system... There's not an area anywhere in the United States that is more poised for a great intermodal system than the Austin-San Antonio corridor." Pickle also predicted that the MoKan highway would get built, that Bergstrom Airport would get its second runway to handle heavy cargo, and that a multimodal link involving rail would connect Austin to San Antonio. He also pointed out that when Congress passed the ISTEA law, they were telling local governments to plan intermodal systems and that some of the local electronic manufacturers he had talked to were ahead of the local bureaucrats in moving forward with visionary planning projects.

He can say that again. - R.B.

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