A Raw Deal Is a Raw Deal
By Erica C. Barnett, Fri., March 10, 2000
What year is this, anyway?
For Hyde Park veterans, last Sunday looked an awful lot like 1990, as neighborhood residents dusted off their picket signs for the first time in a decade and blanketed the cobbled sidewalks around Hyde Park Baptist Church to protest a five-story parking garage the church wants to build in the middle of the historic neighborhood.
An agreement signed by the Hyde Park Neighborhood Association and church representatives 10 years ago prohibited the NA from picketing or protesting the church's plans until 2010, but unaffiliated neighbors bear no such proscription. And when the church filed a site plan for the garage last Friday -- less than 12 hours after the City Council lifted a moratorium that had prohibited them from moving forward on the garage since last December -- those neighbors, organized as the Alliance to Save Hyde Park (ASHP), decided to take to the streets.
The site plan -- which neighbors had implored church attorney Richard Suttle not to file before negotiations could be concluded -- includes the outline of the proposed garage, which would cover most of a city block. For the church to build the garage as planned, the city must agree to vacate the alley between the existing garage on Speedway and its proposed twin on Ave. D. -- a provision which at least one council member, Gus Garcia, has pledged not to approve.
The 4-2 vote in favor of extending the moratorium -- one vote shy of the five "ayes" needed to approve the continued hold on all three readings at once -- left open the possibility that the council might force the church's development to comply with terms laid out in Hyde Park's neighborhood plan, approved by the Planning Commission in the wee hours Wednesday morning. According to NA president Jeff Woodruff, the plan is scheduled to go before council on March 23. (Council Member Bill Spelman, whose house on Ave. F backs up to church property, recused himself from the council vote.)
Under the terms of the current Neighborhood Conservation Combining District (NCCD), the zoning ordinance which governs church property in the neighborhood, the church can build its garage -- which it plans to link up with the existing garage on Speedway and 39th -- up to five stories high, with only a 10-foot setback separating its western wall from the sidewalk on Ave. D.
Neighborhood attorney Rachael Rawlins, who spoke before the council Thursday night, said at the meeting that the NCCD is of "questionable validity," because it was written before the neighborhood plan could be enacted, in violation of regulations spelled out in the city's Land Development Code. "Clearly, the idea is that the [neighborhood] plan precedes the zoning," Rawlins said at the meeting. "The  City Council should never have bypassed the neighborhood planning process to begin with," she added later.
Council Member Beverly Griffith, who voted in favor of extending the hold, called the pending neighborhood plan, which states that the church's NCCD should be merged and consolidated with an overall neighborhood NCCD after the plan is adopted, an "exit strategy" to be used only if further negotiations fail. If the council decided to do so, it could force the church to comply with the terms of the neighborhood plan; that could mean a garage with fewer levels, greater setbacks from streets and neighboring houses, and/or more appropriate landscaping and design.
But church representative Richard Naylor, who spoke at the council meeting Thursday night, said the church would do no such thing, because the plan, as drafted, conflicts with both the NCCD and the conceptual plan for the development, which neighbors agreed to in 1990. "This was the plan that was most suitable to all of the parties and one that the council also bought off on when we adopted the NCCD ordinance," Naylor said. "We want to live up and have lived up to every word of that ordinance and the spirit of that ordinance."
Mayor Kirk Watson agreed, repeating the oft-heard mantra that "a deal is a deal" before voting against the moratorium. "I worry about the future if developers believe they can't negotiate with neighborhoods," Watson said. "We've got to be careful that we don't weaken neighborhoods ... by creating the situation that a developer will not negotiate."
But ASHP member Susan Moffat (who is married to Austin Chronicle publisher Nick Barbaro) said after the meeting that the answer to Watson's statement is still that "this is not the deal the neighborhood signed off on in 1990" -- that neighbors had specifically rejected a "mirror image garage," only to have it appear in the final ordinance, which was then never published.
"Kirk's point has been, how can we make a deal if people [won't abide by it], and the answer to that is, how can we make a deal if the city won't codify it correctly?" Moffat said.
Although ASHP says it has no plans to take legal action against the city, neighborhood attorney Rawlins said that the city's approval of the development raises five major legal questions:
1) The city's zoning maps were never updated to include the NCCD, possibly rendering it invalid;
2) The NCCD may constitute illegal "spot zoning" -- that is, zoning substantially inconsistent with the zoning in the surrounding area;
3) The NCCD may also constitute "contract zoning," or an illegal contract freezing zoning for the future;
4) By signing off on the NCCD in 1990, the City Council may have unconstitutionally delegated its legislative responsibility to determine land use to the church;
5) By gerrymandering the NCCD to include only church property, the city may have granted special favors to the church, thus violating the Establishment Clause of the Constitution.
For now, picketing will continue until council reaches a decision on the church's NCCD and the neighborhood plan; if the church gets its way and the garage is built as currently planned, neighbors are prepared to push for resident-only parking around the church on Sunday mornings to ensure that church members actually park in the garage. "Our attitude has been, if the church is going to build a big garage, we want them to use it," said Ann Graham, a member and former co-president of HPNA. "We want this garage to be functional."
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