Baptists Win a Round in Hyde Park

In the 30-year battle between Hyde Park Baptist Church and its Central Austin neighbors, the church has apparently won the latest and most bitter round. On Feb. 12, Judge Pete Lowry notified lawyers for the church and the city of Austin by letter that he intended to side with HPBC in its current suit against the city. Lowry's decision could allow the Baptists to build a controversial five-story, 200,000-square-foot parking garage at 40th Street and Avenue D.

The Big Garage -- intended as a twin to the existing HPBC garage, which neighbors say is almost never full -- has been a flash point in the chilly relations between the mega-church (almost none of whose members live in Hyde Park) and its historic neighborhood ever since it was proposed in 1990. At issue in the suit before Lowry -- retired from the Travis Co. bench and now a visiting judge -- was whether Hyde Park neighbors had a right to appeal city staff's approval of the site plan for the garage. That appeal was entertained and sustained by the City Council on a 5-2 vote in March 2001, blocking construction and sending HPBC to the courthouse.

Several issues were raised by the church in its suit -- including whether blocking the garage infringed on the Baptists' free exercise of religion -- but in his letter Lowry indicated he would grant HPBC's motion for summary judgment based on a narrow point in city code. Since 1991, the Land Development Code has not allowed neighbors to appeal administrative approvals by city staff -- only the applicant can pursue an appeal to the City Council. However, the 1990 ordinance governing HPBC's development plans specifically does allow neighbors (or other interested parties) to appeal the church's site plans, and the city has argued that this sanctioned the March 2001 action by the City Council. But the garage was not one of the four site plans actually attached to and filed with the 1990 ordinance, so Lowry concluded that it was not grandfathered and that "the City Council had no statutory authority to entertain an appeal" from the neighbors.

Lowry has yet to issue a final ruling, pending resolution of issues including the payment of attorney's fees, and even when he does, the Big Garage may not be a done deal. Both the city's outside counsel, attorney David Donaldson, and lawyers consulting with Hyde Park neighbors (who are not a party to the suit) feel Austin has ample grounds for appealing Lowry's decision. "There are, no question, grounds for appeal," Donaldson says. "We have a disagreement with the court on his interpretation of the [city's] appeal process. It's a matter that reasonable minds can differ on, and the [3rd] Court of Appeals may agree with us."

Pending Lowry's final ruling, it's unclear if the central issue for the neighborhood, at the heart of its March 2001 protest -- whether the 1990 ordinance actually allows HPBC to build the garage as proposed -- will be addressed. "We hope the City Council will maintain its commitment to the case, because we believe there is a solid argument for appeal," says lawyer Rachael Rawlins, legal counsel to the neighborhood. Rawlins says Lowry's decision "specifically relies" on a provision of state law that does not apply to municipal ordinances. "This may sound like a technical issue, but it's critical to the decision."

What the neighbors claim they have long wanted, though, is an amicable compromise with HPBC; a plan floated in early 2001 would have allowed the church to build a garage of about half the bulk. (Arguably, this is all that the law allows, since despite the 1990 ordinance, the underlying zoning of the tract only allows 40% impervious cover.) "We're singing the same old boring song," says Susan Moffat of the Alliance to Save Hyde Park. (Moffat is the wife of Chronicle publisher Nick Barbaro.) "We don't oppose the church growing, but we want them to grow compatibly with the neighborhood, and we're always willing to talk. We'd be happy to talk to them about setbacks or a smaller structure, and there's plenty of parking in the neighborhood."

Though church leaders told reporters last week that they need the new garage now more than ever, neighbors claim they've not seen any increase in church traffic and that the attendance figures listed in HPBC's bulletins have not increased. "The church isn't growing, and their current garage isn't full," says Moffat. (The current garage is, however, not big enough to accommodate large trucks and SUVs.) "I'm not an attorney, but I know it's wrong to build a five-story parking garage on top of people's houses."