Big-Box Ban Bollixes Up Lowe's Plans

A 45-day moratorium on big-box retail projects over the Edwards Aquifer has thrown a monkey wrench into Lowe's Home Improvement Warehouse's hook-or-by-crook development efforts. Despite the City Council's near unanimous agreement on the temporary ban, lawyers and lobbyists for Lowe's had hoped council members would deliver a vote today (Thursday) on an offer they couldn't refuse: a 162,000-square-foot store over the aquifer -- or else.

The "or else" is certain to involve the courts or another trip to the Legislature. The council's approval of a settlement agreement would end a nine-month legal dispute and clear the way for Lowe's to build a new store on Brodie Lane north of William Cannon. The 32-acre site is in the sensitive Barton Springs Zone of the Edwards Aquifer, a 350-square-mile area under consideration for a permanent big-box ban. That proposal -- limiting retail projects over the aquifer to sizes less than half that of the proposed Lowe's -- will return to council for a public hearing in December, after making the rounds of city boards and commissions.

By many accounts, city staffers and attorneys involved in the Lowe's negotiations believe the council would be wise to accept the agreement on the table and move on. Such an approval would avoid prolonging a legal fight that began late last year when the city of Sunset Valley released the disputed property to the city of Austin's extraterritorial jurisdiction. A subsequent lawsuit and some old-fashioned legislative meddling forced the city to move to the negotiating table.

Last week, city staff laid out the proposed settlement for council members in executive session, anticipating that the council would take action on the case this week. But the deal did not win sufficient support behind closed doors to get a place on today's agenda. "We were invited to try and negotiate a settlement, and it was tweaked by a cast of thousands," said Lowe's attorney Terry Irion. "We agreed to everything they asked for." He said the city now appears to be "thwarting the will of the Legislature." He was referring to House Bill 1204, which contains language that Irion believes frees the property from having to comply with city development regulations.

But it would certainly be difficult for the council to approve a 45-day big-box moratorium and then, the following week, approve a Lowe's big-box deal. After a sometimes confusing discussion, the council voted 6-0 (with Betty Dunkerley absent) to temporarily halt aquifer-bound retail projects larger than 50,000 square feet. Grocery stores will be capped at 100,000 square feet. The action, led by Council Members Raul Alvarez, Daryl Slusher, and Jackie Goodman, followed Wal-Mart's recent decision to abandon its controversial plans for a Supercenter on property it had optioned to buy at MoPac and Slaughter Lane; that property is one of only a handful of tracts that would be affected by the ban, city officials say. (It would not affect the Lowe's tract, which lies outside the city limits; part of the deal offered by Lowe's would include the city's early annexation of the tract.)

The prospect of a moratorium, let alone an outright big-box ban, threw developers into a panic last week. Hours before the City Council vote, the Real Estate Council of Austin and the Greater Austin Chamber of Commerce sent a letter to City Hall that even raised the "takings" issue -- that such a ban would unconstitutionally deprive owners of their property rights without compensation. Developers fear that a ban over the aquifer would only be the first step toward an Austin-wide ban on big boxes. After the council vote, RECA President Tim Taylor took issue with the measure. "It was a meaningless action," he said. "Personally, I think big boxes are ugly, so instead of a meaningless ordinance I'd prefer to see some design guidelines in place for big boxes in established or growing neighborhoods." Moreover, Taylor said that before Thursday's vote, he (but not RECA) proposed a substitute interim ordinance for the Barton Springs Zone that would have made an exception for big-box projects that adhered to a certain set of design standards.

That would explain the confusion that ensued on the dais when Council Member Brewster McCracken tried to add citywide design guidelines and the hiring of a mediator to the proposal being considered. "I'm concerned about approaching these megastores solely from the perspective of size and solely from within the Barton Springs Zone," he said. (This was apparently not the same Brewster McCracken who campaigned on a "No Aquifer Big Box" platform last spring.)

Alvarez and Slusher rejected McCracken's idea. Slusher, clearly annoyed, said, "I don't think anybody is up here arguing about the wonderful design attributes of big boxes. But we have a narrowly focused issue that three of us put on the agenda for council vote. ... At the very least [the design guidelines] ought come back as another item. That's generally the way to do stuff."

Mayor Will Wynn waded into the muddle to get the issue back on track: "This essentially is a continuation of a decades-long process, and ... environmental protection, done in a clever, well-thought out, holistic way is a significant economic benefit for this community. I'm sorry if this action gets misconstrued as anti-business; it's not. It's environmental protection [in] a very limited geographic area of our community."