Wall of Separation

We wanted to say that it would all be over this week: that finally, after 37 demolished homes, 10 years of legal wrangling, and countless Sunday morning demonstrations, the City Council would decide once and for all whether Hyde Park Baptist Church will be allowed to build a five-story garage in the middle of the historic Hyde Park neighborhood. Unfortunately, that's not to be.

Instead, the hearing -- originally scheduled for the Feb. 8 council meeting -- will take place a month later, on March 8, thanks to an oversight by city staff, who failed to post the agenda item 30 days before its hearing date. The error was discovered earlier this week, about 25 days too late for neighborhood groups that are appealing the church's site plan to do anything about it.

The matchup at this duel, when it does happen, will be memorable. On one side: Richard Suttle, one of the most powerful attorneys in the city, representing the church. On the other: the residents of Hyde Park, one of Austin's oldest and most established enclaves, fighting to preserve the character of their neighborhood. The outcome could determine what Hyde Park will look like for decades to come.

Within a month or so, we should know who prevailed -- the favored giant, backed by an approved site plan and an attorney with one of the fattest Rolodexes in the city, or the neighbors, backed by a pile of documents they say prove that neither Hyde Park representatives nor the city ever agreed to the massive garage the church wants to plunk down in the middle of their Central Austin neighborhood.

Towering 50 feet over nearby Victorian houses and covering a ground space of some 40,000 square feet, the garage will be one of the largest freestanding structures in the Hyde Park area -- the size of a smallish HEB, or a public elementary school. But unlike such urban conveniences, this monolith will be used almost exclusively by people who live outside Hyde Park, not neighborhood residents, few of whom have ever ventured behind the church's heavy, imposing wooden doors. (According to a survey the church conducted in 1998, 85% of its members commute from Northwest and Southwest Austin.)

The proposal has inspired more than a few of the church's neighbors to beat their Bibles, so to speak, at City Council meetings and outside the church on Sunday mornings, where members of the Alliance to Save Hyde Park -- a group of neighborhood residents unaffiliated with the official Hyde Park Neighborhood Association, which waived most of its rights to protest the church's actions in 1990 -- picket services weekly, holding signs and distributing fliers detailing their gripes against the church's planned expansion. What could be the final denouement of this long controversy will come March 8, when the council takes up formal protests against the garage by the two neighborhood organizations and three families who live within spitting distance of the church. It's likely that on that same night, the council will hear the church's appeal of a Planning Commission decision, made more than six months ago, denying the church's request that the city vacate a public alley behind its existing garage; the church says it needs the alley to link the two garages into a massive superstructure some 400,000 square feet in size.

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Live and Let Live

Collective memory in Austin being what it is, it's easy to forget how Hyde Park neighbors got themselves into this predicament in the first place. For that, you have to look back into ancient history -- the 1970s, to be precise, when Hyde Park Baptist Church -- until then a large but by no means enormous congregation -- began to grow and prosper. As the congregation grew, so did the church's voracious appetite for its neighbors' property, which it gobbled up piece by piece and turned into parking lots and church facilities. Currently, HPBC claims to have about 11,000 members, although neighborhood representatives say that's a gross overestimation -- pointing out, for example, that according to the city's figures (compiled during a recent traffic report), only about 1,200 members are typically present at the church's most heavily attended service. (The church claims the true number is closer to 2,700.)

But whether the church's attendance is stagnating or, as the church would have it, growing, there's no question that HPBC's facilities have continued to expand. Throughout the 1970s and '80s, the church carved larger and larger chunks out of the neighborhood, buying and demolishing more than three dozen homes and building a towering, 2,200-seat sanctuary whose spire, standing 165 feet above the sanctuary roof, is visible for miles around. With every move, the church grew more aggressive in its tactics, angering neighbors with its late-night demolition schedule and its apparent insensitivity to historic preservation.

The battle between the church and its neighbors reached a shaky cease-fire in 1990, when the two groups sat down, under the watchful eyes of then-council member Smoot Carl-Mitchell and Assistant City Attorney Andrew Martin, and reached an agreement both sides felt they could live with. Hyde Park Baptist Church would be allowed to expand to the south and west; the neighborhood association would no longer oppose the church's expansion plans; and -- in hindsight, the agreement's most contentious provision -- the church would be permitted to build a "multi-story parking facility" of indeterminate size adjacent to its existing garage. Over the next two weeks, Martin (with the help of Suttle and, he says, some input from neighborhood groups) drafted a city ordinance that was intended to codify the precepts laid out in the agreement. That ordinance -- which created, oxymoronically enough, a "Neighborhood Conservation Combining District," or NCCD, encompassing the church's property -- was passed by the City Council with little discussion, despite complaints from neighbors that they hadn't had time to read the document.

For the next several years, things were pretty quiet between the neighbors and the church. Then, a couple of years ago, the church announced its intentions to build the garage, perhaps across a public alley in between the new garage and the existing facility. After a year and a half of "negotiations" -- during which the church largely refused to compromise or debate the merits of its plan -- HPBC has filed a site plan for a garage that would cover 90% of the site; that plan was approved by city staff last year.

It was also last year that the NCCD adopted by the City Council -- which sat, unpublished, in a file cabinet at the city clerk's office for almost 10 years -- was rediscovered. To neighbors' surprise -- and the church's chagrin -- the NCCD on file with the city was different from the ordinance then being used by the church and neighbors in one important respect: It explicitly gave the neighbors a right to appeal the church's parking garage. (The copy that the church had been using says only that if there is an appeal, it will come directly to council -- a subtle but perhaps important difference.) Church attorney Suttle says that if the document the church has is the correct one -- as he asserts it is -- the neighbors have no automatic right to appeal; two weeks ago, more than a month after the council voted to let the neighbors appeal the garage site plan, Suttle obliquely accused an unnamed party of altering the document, calling the whole thing "an interesting situation." (Council sources say it's fairly common practice to correct the wording of documents before they're filed at the city; in any case, the document on file at the city clerk's is generally considered the "final" one.)

That "situation," among other things, will likely be taken up in a private executive session with City Attorney Martin -- who previously told council members in executive session and at an April council meeting that the neighbors did have a right to appeal -- at the March 8 meeting.

These days, despite the odd circumstances of the ordinance's birth, you'll find few neighbors willing to oppose, at least vocally, the church's right to build on its land. (Numerous "no garage" signs, however, still litter the Hyde Park area.) What neighbors are protesting is the size and scale of the proposed garage, which would cover around 90% of the tract, leaving just a narrow strip of clear space on its three open sides for grass, sidewalks, and a few small bushes and trees.

Neighbors say the garage should only be allowed to cover 40% of the available land, in keeping with the single-family zoning on the tract; during negotiations on the agreement, "Nobody so much as mentioned impervious cover, so ... the original impervious cover holds," says former City Council member Bill Spelman, whose house backs up to one of HPBC's surface parking lots. (Spelman's wife, Niyanta Spelman, is co-president of the Hyde Park Neighborhood Association, which is also protesting the garage.) Bob Breeze, HPNA's other co-president, says his group isn't anti-garage -- it's pro-compliance. "We're not saying [the church] can't build anything there; we're saying what you're planning to build isn't allowed under the agreement," Breeze says. "Whatever you do needs to be in compliance." And that, neighbors say, means whatever the church builds has to be smaller and more compatible with the neighborhood.

But right now, the only thing in the neighborhood that's compatible with the church's proposed garage -- in size, color, or façade -- is, well, Hyde Park Baptist Church. With its brick exterior, long, narrow windows, and towering, boxy silhouette, the garage will be -- much like the church's existing garage -- a harsh, unmitigated contrast to the surrounding stone bungalows and woodframe houses. According to Alliance to Save Hyde Park member Marie Carmel, a garage of the size the church is proposing is "inherently incompatible with the neighborhood," no matter how many trees the church plants in the narrow alley that would provide the only green space around the garage. Carmel, who has filed her own appeal with the city, lives with her husband, Stephen Wechsler, and their son in a high-ceilinged yellow Victorian on 39th Street, within a stone's throw of the proposed garage. If and when the garage is built, it will be less than half a block from the family's front yard.

"Their parking garage is already huge. It's incompatible with the neighborhood. It has no landscaping. We have to accept all that," Carmel says. "That's our part of the compromise. Their part of the compromise is, they have to build something we can live with."

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Growing Pains

But church members say they've compromised enough already. "The church has always negotiated in good faith with the neighborhood, but we do need that garage," says HPBC representative Dan Rogers, a 34-year member of the congregation. "There would be no purpose to having a garage half the size [of the proposed garage]. ... You wouldn't be able to park cars in it." But neighbors point out that there are numerous examples of multistory garages around Austin, many of them downtown, that are even smaller.

The church believes city law is firmly on its side. Ever since this battle began, the church, through its attorney, Suttle, has insisted that language in the NCCD, which governs zoning for its property, allows it to build "on all or a portion of the western half" of its land (which currently serves as surface parking), with certain basic restrictions. Since the ordinance doesn't explicitly say that impervious cover on the tract is limited to 40%, they say, that means they can build out to any level they want, as long as the height and setback requirements spelled out in the ordinance are met. "The surface lot now is 100% impervious cover, so all we're talking about is going up with the impervious cover, not spreading it out," says Rogers. "Impervious cover, to me, is impervious cover, even if it's four stories up."

As planned, the garage would go clear to the sidewalk on its western and southern sides, and would wrap around a small house owned by Lyova Rosanoff, a 33-year resident of the area, on a third, dwarfing the last remaining house on the north side of Avenue D with two sheer, 25-foot walls. Although the church has offered to purchase Rosanoff's home in the past, the offers were never enough to convince her to leave her home of more than three decades, she has said.

Neighborhood representatives say they never would have approved such a towering, monolithic structure, much less one with no development controls whatsoever. According to attorney Rachael Rawlins, who's representing the Alliance in its appeal against the church, all the language in the ordinance means is that the church can build on "all or a portion of" the developable land in the area -- in this case, 40%, the limitation imposed by the underlying single-family zoning. The NCCD "doesn't say anything about building cover or impervious cover," Rawlins says. "Under [single-family] zoning, there's a distinct 40% ... limit." That the ordinance doesn't explicitly define what can be built on the church's land -- "doesn't mean you get 100% impervious cover."

Moreover, Rawlins and other neighborhood reps point out, the neighborhood association explicitly rejected a so-called "mirror-image" parking garage in 1990, during negotiations over the agreement they later signed with the church. "Now they're moving for the motion that failed 10 years ago," Rawlins says. "And it's even more massive than the mirror image that failed because it's not just on the west side -- they're planning to wrap it around Lyova's house" on the eastern portion of the property, despite a stipulation in the agreement that the church restrict the garage to the western half of its land.

Another problem, neighborhood residents say, is that traffic pouring out onto Avenue D -- already hairy on Sunday mornings and weekday afternoons, when the church's private high school lets out -- will only be exacerbated by the new garage, whose only exit empties onto D. The avenue, a narrow, residential street bookended by stop signs at 39th and 40th, has long been a traffic trouble spot. With additional traffic from a five-story garage emptying onto the already bottlenecked avenue, residents worry about getting out of their driveways, much less around their neighborhood. "You can barely cross Speedway at three in the afternoon because of all the people leaving the church," Carmel says. "The roads can't handle the traffic [the church is] already creating. How are 380 more parking spaces going to help?"

Church representative Rogers insists the planned garage wouldn't impact traffic "any more than the surface parking lot" on the garage site now, even though the garage would hold about four times as many cars than the existing lot. To prove its point, the church commissioned a traffic analysis from the city, which showed that average traffic counts would only increase by 250 to 600 trips per day, leaving the total number of daily trips "well within the acceptable range" for a residential area.

But residents call the city's study misleading, because it averages traffic counts over a 24-hour period, ignoring peak periods -- like Sundays and weekday afternoons -- when cars line up in front of the church building and traffic slows to scarcely a crawl. Rogers counters that even if the garage does cause traffic tie-ups for some residents in its immediate vicinity, for others, the garage will be -- no pun intended -- a godsend.

"We know it impacts some of the people on D, but [as for] the rest of the neighborhood, it really does help them, because it pulls out some of the traffic [from the streets]," Rogers says. Currently, "people park all over the neighborhood" on Sunday mornings. "We would certainly encourage people to park in the garage."

But if people are parking all over the neighborhood, why do the top floors of the garage remain empty even on Sunday mornings? According to the city's traffic analysis, the garage was only 84% full during the peak period between services on Sunday morning, as church members arriving for 11am worship crossed paths with those who attended an earlier service. And that, neighbors say, raises an important question: Why do church members need a new garage when so many of them aren't using the one they already have?

Church representatives point to several factors, including awkward design, a lack of spaces for handicapped members, and poorly maintained elevators that take too long to reach the garage's upper floors. But a more telling reason may be found in the garage's late-1980s design: at 6'1", its ceiling clearance is too low to accommodate large trucks and SUVs, the vehicle of choice for many of the church's suburban congregants. "I know I can't get my Suburban in there," says Rogers. And he's not alone. On any given Sunday morning, a phalanx of Navigators, Range Rovers, and Expeditions can be found parked in the surface lot behind the garage and throughout the surrounding neighborhood. Raising the clearance level, Rogers says, would entail razing the current garage, an option the church considers unthinkable after sinking millions into the facility just 11 years ago.

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Winner Take All

So far, the church has lost on just one count: the alley vacation, which would allow it to link its two garages together into a single, block-long facility -- and, church representative Rogers claims, improve traffic flow into the neighborhood. That request was roundly rejected by the Planning Commission in June, when several commissioners had harsh words for the church's unusual proposal. (Surprising no one, Commissioner Betty Baker cast the only vote in favor of granting the vacation.) But that didn't stop church attorney Richard Suttle, who sought to appeal the Planning Commission decision some six months later, just before Christmas -- infuriating neighbors who say the church has a nasty habit of striking over the holidays, when many of its neighbors are out of town.

That appeal, postponed from its originally scheduled time in mid-December, will also be considered March 8 at City Council. If it succeeds -- or if the neighbors' protest of the garage site plan is rejected -- it will likely mean the end of the road for Hyde Park neighbors, who will have to learn to live with yet another ungainly brick structure in their midst. Right now, however, there are a few signs to indicate that the council is growing impatient with the constant machinations of the Baptists, who have steadfastly refused to agree to any sort of compromise with neighbors during council-mandated negotiations over the past 13 months.

City Attorney Andrew Martin, who was present during the 1990 negotiations and who may be the city staff member most familiar with the debate between church and neighborhood, will advise the council on what to do about the parking garage, and he very much wants to do so in executive session instead of in public. What he'll tell them is, for the moment, anyone's guess. "This is obviously a sensitive issue, because depending on the outcome -- whether the church gets what they want or the people opposing the garage get what they want -- either side could end up suing the city," Martin says. "And that's not to the city's advantage ... to have the city's position out there in public."

What exists on public record doesn't bode well for residents of the neighborhood. As far back as 1988, Martin has taken the position of least resistance with the church, to put it charitably. (Some neighbors, putting it not-so-charitably, assert that Martin has sided consistently with Suttle on HPBC-related issues.) Thirteen years ago, Martin recommended in a memo to an assistant city manager that the city not challenge the church's illegally located private high school, for which it has never obtained approval from the city, because "the short-term cost" of litigation "would not be small." Two weeks ago, Martin suggested that the council meet in executive session before taking a position on the garage, so that he could advise council members on which position would offer "the greatest likelihood of success in [a legal] defense."

An executive session would be necessary, Martin noted cryptically, "so that some of the information and the issues can be discussed with attorney-client privilege, and not be made available to those who might be challenging that action."

What "action" might Martin be referring to? If history is any indication, the path of least resistance might be granting the church its request for a 90%-building cover garage, and letting the neighbors battle it out with the city in court. After all, the neighbors have relatively limited resources -- and the church has a long membership roster to hit up for contributions to fund Richard Suttle's defense of the church.

But, as former council member Spelman points out, "It's always more expensive to defend yourself if you're going to lose. For the city to defend itself against the church is relatively pain- and risk-free because [the neighborhood is] going to win." However, Spelman notes, "it certainly sounds like [Martin] was leaning in the church's favor a couple of weeks ago. My concern about that," Spelman continues, "is that he hasn't heard the other side of the argument. Suttle's always trying to pull rabbits out of a hat and they look like perfectly legitimate rabbits. It's only if you look real closely that you see they're stuffed."

If this case does end up in court, the neighbors' case will stand or fall on several related, questions: Did the ordinance adopted by the city in 1990 waive the single-family zoning on the garage site, or didn't it? If it did, why doesn't it say that anywhere in the document? And, perhaps more importantly, if single-family requirements were scuttled, who made the decision to waive them? If the argument comes down to the intent of the ordinance, neighbors say neither they nor the City Council ever agreed to 100% building cover, which is what the church is claiming it can build under the language of the ordinance. So that leaves Martin -- and Suttle, who participated closely in the drafting of the original NCCD.

If Martin wrote the ordinance, even accidentally, in such a way that it allows the church to ignore the single-family zoning underlying its garage, then the church wins its battle. But that's a case the neighborhood will fight in court when, and if, it has to.

For now, the case is far from any courtroom; it hasn't yet been heard by the City Council, which will listen to both sides' arguments next month. According to City Attorney Martin, "I think the council, the church, and the folks opposing the garage would all be thrilled by being able to find something everyone could be happy about." But that, neighbors and church representatives agree, is an option that disappeared long ago, buried under a growing pile of protests and legal bills.