Mart Growth

Who would the city rather get sued by – its citizens and neighborhood associations, or Wal-Mart? That's shaping up as the unpleasant choice for City Council in the heated battle over Lincoln Property Co.'s plans to bring a gargantuan Wal-Mart Supercenter to the site of Northcross Mall. The surrounding neighborhoods, collectively organized as Responsible Growth for Northcross (RG4N), have asked council to revoke the project's entire site plan; council members say they would love nothing better, as Lincoln Property's Seventies-style mall redevelopment scheme is wholly out of sync with the city's new-era urban planning efforts. But city managers and city legal seem terrified of getting slapped with a lawsuit by the billions-deep retail behemoth; they've sternly warned council that it has no legal grounds to revoke the site plan – approved Aug. 8 through an administrative process that allowed for no city input or public hearing.

The neighborhoods' objections focus on what they see as the inappropriate, and insufficiently planned, scale of the project. (For more, see last week's "Developing Stories.") The proposed Wal-Mart would become the largest single store in Travis Co. at more than 217,000 square feet, larger than Cabela's superstore in Buda; and it would be the anchor of a project that, overall, would up Northcross' retail space from 375,000 square feet to more than 415,000. Increased noise and light pollution and tractor-trailer traffic are all serious concerns of neighboring residents. So is gridlocked traffic; the developer's own estimates show that their redeveloped Northcross would triple traffic, from 8,000 to 25,000 car trips a day. That could so clog Anderson Lane that drivers would spill over to residential streets like Shoal Creek Boulevard. The Wal-Mart "doesn't belong in a neighborhood; it belongs on a major highway," said RG4N spokesman Jason Meeker. "And if it comes to the middle of our neighborhood, it de facto will turn Anderson Lane into a major highway."

While they don't talk about it much directly, dislike for Wal-Mart's avaricious corporate policies clearly has also colored the neighborhoods' NIMBY sentiments. Some e-mails blasted out by residents have fanned fears of crime, with comments suggesting that the kind of people who shop at Wal-Mart don't belong in their neighborhood. But Meeker said, "We have a proclamation on our Web site that we will not support racist or prejudicial arguments of any kind. The leadership of the group has been adamant about that. That is not what this argument is about."

The tensions rising have included friction between city management and City Council. City Manager Toby Futrell recently recused herself from any direct decision-making about the site (after being questioned by the Chronicle about a conflicts disclosure statement showing that her husband works for Wal-Mart). Futrell punted to Assistant City Manager Laura Huffman, who oversees all of the relevant city departments. They've taken the passive position that their powers are limited to ensuring code compliance, so there's no way they could positively affect a private developer's plans. But few who understand the tremendous power and development-community relationships in the city manager's office fully buy that argument.

Among those irritated by city management's public assertions that there's "nothing the city can do" is Council Member Brewster McCracken. "It's a very unfortunate attitude," he said. "It's not how we do it Downtown." McCracken has been particularly critical of Lincoln Property's scheme, which willfully ignores the progressive urban-planning intentions he shepherded in as city policy in May of 2005, officially adopted as the city's new Design Standards and Mixed-Use ordinance in August. "Just because something complies [with zoning code], that doesn't mean it's not a bad idea, from an infrastructure or urban-planning perspective," McCracken pointed out. Conveying a sense of civic betrayal, he noted that Wal-Mart agent Richard Suttle sat on the task force that crafted the new design standards – which he then turned around and helped his client to outrun.

As for the excuse proffered by Futrell and Huffman that they knew nothing about the site plan, McCracken said, "Management should have a process to find out about projects with a heavy public responsibility." He questioned why they do not receive weekly briefings, for example, from staff knowledgeable about private-developer plans for key sites like Northcross Mall.

Said Mayor Will Wynn through a staffer, "We obviously have a serious gap in our system when retailers of this magnitude can go through the process, follow all the rules, and citizens and our boards and commissions never get an opportunity for formal public input."

Meanwhile, RG4N and other community members have scrambled over the past week to find a fatal flaw – something, anything – in the site plan and its approval process that could provide council with solid legal grounds to revoke it. In a Dec. 11 letter to the mayor and council, RG4N cited a number of such flaws. One possible angle was that the existing "GR" zoning does not allow a plant nursery; yet the site plan shows a 5,000-square-foot garden center. (Assistant city attorney Martha Terry said that as an "accessory use" it would be permitted.) Most compelling is that the city failed to properly notify surrounding property owners of how to become an "interested party" in opposition to the site plan application. Without that status, they were unable to intervene. Both Mayor Wynn and McCracken were quoted on television news over the weekend, say RG4N advocates, stating that they believed the city's improper notification provided sufficient legal grounds to revoke the site plan. But on Tuesday, Huffman stated unequivocally in an interview with the Chronicle, attended by city legal staff, that the city could not revoke a site plan due to its own error.

City officials simultaneously backed off their assertions. The reason was hinted at by Huffman; a memo she sent Dec. 8 states about the required "interested party" notification, "For at least 10 years, the city's notice, including the Northcross Mall notice, has not included this information." So, she said in an interview, "It would be hard to pull one site out." That is, if the city allowed its notice error to be grounds for rescinding the site plan at Northcross, it would open a decade-deep can of worms that could call into question every project approved in the past 10 years.

"Justice isn't being served by them taking that stance," said Brigid Shea, a former City Council member who is on the board of RG4N and Liveable City, a nonprofit focused on urban quality-of-life issues. "They should be siding with the citizens, and it feels like they're not. It seems like they're willing to sell us out."

This week, RG4N focused its prodigious energies on getting the Northcross project on the council's Dec. 14 agenda – before the council takes a nearly one-month break. According to RG4N's Meeker, the group heard late Friday that the council had decided not to consider the matter this week, citing fears of getting sued. Neighborhood residents were so outraged – particularly given Lincoln Property's announced plans to start demolishing Northcross before council would even reconvene – that they mobilized over the weekend to collect an impressive 3,500-plus signatures (a rate of about 300/hour) on a petition demanding that council consider the matter this week. On Monday they delivered the petition to City Hall, with multiple TV news cameras rolling; Council Members McCracken, Jennifer Kim, and Sheryl Cole responded by getting a staff presentation on Northcross placed on Thursday's agenda. That could result in a council direction to the city manager to ... do something.

(On Wednesday morning, Council Member Mike Martinez announced that he had negotiated an agreement with Wal-Mart for a self-imposed 60-day project moratorium; Lincoln Property attorney Steve Drenner participated in the meeting, and it appeared at press time that the developer would join the moratorium.)

McCracken pointed out a strange limit to the council's powers: they've been told they have no authority to revoke the site plan unless the city gets sued by someone over it. "It's unfortunate we have to force our constituents to sue us in order to act in their interests," he said with obvious frustration. "But unless we get sued, we don't have authority." As he sees it, doing what's safe from a legal perspective is different from doing what's right. "Part of our job is to provide leadership. If we see something going on that's wrong, the public rightfully expects us to do something about it."

"We could go to court – but it's a long, expensive process," noted Kim. "And then we have to worry about the legislature, which has not been kind to the city doing anything to limit property rights." Cole was even less enthusiastic about acting to put the city in legal jeopardy, though she sympathized with the neighborhoods' concerns.

Like everyone interviewed, Kim hopes that a dialogue with the developer and tenant can get them to voluntarily change course: "Everything can still be undone." Kim said she'd hop a flight to Bentonville, Ark., if it would help to work things out at Wal-Mart headquarters. "If Lincoln, as well as Wal-Mart, wants to have a future in Austin, it's in their best interests to work with us," Kim asserted. "I think it's in their financial best interests, in their business interests." Making a huge enemy of the city at this point isn't smart, she implied: "They're going to need something at some point." Reportedly, Lincoln Property has purchased as many as 10 shopping centers around Austin in the past year.

Preparing for four-way negotiations, the attorneys are suiting up. Lincoln Property has hired Drenner; he, like Suttle, has strong ties to city management, but reportedly a better track record of supporting community goals by seeking "win-win" solutions concurrent with his client's interests. RG4N is represented by Doug Young and Brad Rockwell, land-use attorneys with Scanlan, Buckle & Young. In addition, said Shea, RG4N has "a whole team of 12 to 15 attorneys who are volunteering on our experts committee." But Shea urged council and the city to stand tough and act in the public interest, rather than force Austinites to go broke suing them. "Why aren't they standing up for us, instead of for Wal-Mart?" said Shea. "I want them to stand with their constituents."

Indeed, the mayor and sitting council members (except Kim) were voted in by the neighborhoods now pleading for support and won those neighborhoods by large margins. According to political consultant Mike Blizzard, "All of the precincts in that area – which covers Rosedale, Allandale, Brentwood, and Crestview – are very high-turnout precincts; it's one of the biggest voting blocs in the city. Nine times out of 10, when you win these precincts in a city election, you've won the election." While he doubted that this one issue would drive voting decisions in future council races, Blizzard said, "In a close election it might make a difference."

Said RG4N's Meeker: "Make no mistake, this is not going to be over on Thursday. Whether or not the council votes to rescind the site plan, we will continue the fight. This Wal-Mart is not going in our neighborhood.

"No one has properly gauged the civil outrage within our neighborhoods," Meeker said. "It is proportional to the size of that building. This isn't some fashionable Wal-Mart protest. There will be protests. There will be civil disobedience. There will be bodies in front of bulldozers. People are so angry about it, they're speaking with fire in their eyes."