On the one hand, business owner John Zamora is a local boy who's done good. Three years ago, he plunged into the ice wholesaling market with a $50,000 icemaker, and has since run circles around his corporate competitors with custom, on-demand deliveries to downtown clubs and restaurants. On the other hand, he's a nuisance to his next-door neighbor, Mike Alexander, who says Zamora's business at 29th and Salado creates intolerable noise and traffic that is degrading the value of his home.
So the city has told Zamora that under current zoning he cannot continue wholesaling ice out of his UT-area store, Junior's Beer and Wine, because it considers the ice operation an illegal second business for which Zamora would need industrial, not commercial, services (CS), zoning. Last month, the Board of Adjustment refused for a second time to overturn that decision. But Zamora has taken the city to court, claiming that selling ice to retail businesses is no different from what Amy's Ice Cream and Texas French Bread do when they bake bread or freeze ice cream for sale at other locations. Like Junior's, those establishments occupy land with CS zoning.
Officials with the city Development Review and Inspection Dept. don't deny that such businesses may be out of compliance with CS zoning. But unlike Zamora's business, those operations haven't provoked any complaints from neighbors, officials say. That galls Zamora, who says the city's capricious application of the rules threatens to wreck his business. Moreover, he believes that the city's previous interpretations of the Land Development Code legally entitle him to run his ice operation, Junior's King Daddy Ice, out of his keg store.
James Nias, a former assistant city attorney who has consulted with Zamora on his case, says 20 years of litigating Austin land development has taught him that land use is defined mostly by what the city accedes to, not what it allows on paper. "[When] what you're doing, as opposed to what you're saying, is different ... a lot of weight should be given to what the city has administered in the past," Nias says.
In his lawsuit, Zamora argues that selling ice off-site is properly classified as wholesale distribution, a permitted secondary use to his main business. But although Austin's zoning codes don't explicitly say a business like Zamora's is illegal, a precedent for the city's current objection was set in 1990, when the city declared in a zoning decision that the manufacture of ice for the express purpose of selling it off-site is an industrial, not a commercial, use, and thus requires industrial zoning. (The city has never said whether baking bread or making ice cream for off-site sales constitutes an industrial use.)
Perhaps it's not surprising if a small business, and even the city itself, can't keep all that straight. When the city approved the installation of Zamora's two-story icemaker in 1997, Zamora says, he wasn't asked what the machine was for. Amy Miller, the owner of Amy's Ice Cream, says when her company consolidated its ice cream-making operation into her store on Guadalupe, the city wasn't concerned when she reported that ice cream made at that location would be sold elsewhere.
But Zamora's neighbor, Alexander, who bought his house about two years before Zamora installed his icemaker, says that Amy's and other businesses that wholesale their wares don't create the kinds of nuisances that Zamora's operation has. Besides the roar from the machine's condenser fans, perched just 15 feet from Alexander's back door, Zamora's trucks create late-night noise and parking problems. "I don't believe you'll find another business in town that is as grossly in violation of the Land Development Code as this one," says Alexander.
By now, Alexander knows city zoning about as well as city officials. For two years, he's been researching the LDC and watchdogging his neighbor's store in an effort to prove that Zamora has been illegally operating an industrial business. He's repeatedly complained to the police about noise, spoken at City Council meetings, followed Zamora's trucks, and toured local restaurants and the Convention Center to see how much ice they make. The zoning office ignored him for a year, he says, before finally agreeing to investigate.
Zamora responds that he offered to muffle his icemaker's fans when he installed the machine, but city officials told him zoning codes wouldn't permit it. And he says he doubts it would make any difference now, anyway. "John is trying to be a good business and a reasonable neighbor," says Zamora's attorney, Larry Parks, "but it seems to make no difference whether he accommodates Alexander or not. He just wants him out of there."
Alexander, who has offered to pay a portion of the cost of moving Zamora's icemaker to another location, says Zamora has to respect neighborhood compatibility. "I'm really sympathetic to his situation, but there's just so much wrong here, and it has such an effect on my property. ... After all, how much would you pay for a house located next to all this?"
The city is due to file a response to Zamora's lawsuit on March 13.