Who's Your Grandpa?
AMD or Lumbermen's
No matter how an internal committee would have ruled on whether the project is "grandfathered" under state law (originally enacted as House Bill 1704, now known as Chapter 245 in the Texas Government Code), city staff knew the decision would likely draw a lawsuit from the losing party either the Save Our Springs Alliance, which opposes the project, or landowner Stratus Properties, which sought the "grandfathered" status on its Lantana site at Southwest Parkway and William Cannon.
SOS Alliance executive director Bill Bunch says the group is still weighing its options on a possible lawsuit. The question of zoning is just one of several points that could find its way into a legal battle. The original site-plan application filed in the Eighties before the 1992 SOS Ordinance called for "retail" on the site instead of "office." Therefore, says Bunch, AMD's office plans constitute a zoning change, which would automatically eliminate any "grandfathered" entitlements.
But City Manager Toby Futrell says it's not that simple. The word "retail" written on the initial site plan documents was actually shorthand for "general retail," which allows for the inclusion of office space, she said. "The core issue on grandfathering goes back to the revised preliminary plan, and that is very clean and clear," she said. The Lantana case, she continued, "has a great deal of documentation that goes with it. The tract states 'general retail,' [meaning] it was not restricted to retail. And because the key word in 'GR' is retail, [staff] wrote 'retail' [on the documents]."
Futrell said there's sufficient evidence on file to support the argument that an office project was part of the overall development mix. "This is the reason we have a whole group of people that digs back through the files," she said. "The reason we turn down over a third of the cases that come through when the law was designed to make 100% of them go through is because we dig and dig and dig in order to be able to not make the law roll over us."
Apparently in the case of Stratus, all of that digging actually helped the law do what it was designed to do. And Futrell appears determined to make that decision stick. "Did [the original documents] restrict the use to retail? No. What did the project actually show? Office. When you take it all together, [SOS] can't make their case."
Still, critics say that the staff process appears subjective when comparing the Stratus case to another case that of Lumbermen's Investments with somewhat similar circumstances, save for the fact that staff rejected its "grandfathered" claim. The city Zoning and Platting Commission recently upheld staff's decision, which Lumbermen's is appealing to the City Council.
In this instance, Lumbermen's seeks to build two two-story buildings on 4 acres of property on Davis Lane at MoPac in southwest Austin, within the recharge zone of the Edwards Aquifer. The proposal seeks grandfathering from the SOS Ordinance for a "general retail" project that includes office. The project, according to city documents, would exceed impervious cover limits allowed under SOS. What's unusual about this case is that Lumbermen's initially gained "retail/office" approval from the city Planning Commission in 1998. Market forces prevented the project from moving forward, however, so Lumbermen's postponed breaking ground on the site. But when Lumbermen's resubmitted the same "grandfather" application this year, city staff rejected the proposal (and the Zoning and Platting Commission concurred) because it doesn't comply with an old Municipal Utility District land-use plan that had been in effect before the city's 1997 annexation of the entire Village at Western Oaks subdivision.
It appears city staff would be willing to grandfather the Lumbermen's project if it were limited to retail, with no office space in the equation. Two nearby homeowners' associations Villages at Western Oaks and New Villages at Western Oaks favor Lumbermen's plans for office space over retail space.
Is the city applying double standards in favoring a massive office project (AMD) with what appears to be less clear-cut zoning specifications over a smaller project (Lumbermen's) that had already won approval? Lumbermen's attorney Jerry Harris says he's not touching that one. "We are only looking at our documents and our facts," he said. "We're looking at our case to stand on its own merits and circumstances, which clearly justify the approval of our site plan."