More City, SoCo Cafe Fracas

South Congress Cafe management recently demolished the portion of its decked rear patio originally built atop city right-of-way, but the eatery still lacks an approved parking arrangement, including the provision of at least one handicapped parking spot. (Photo By John Anderson)

Imagine taking a bite out of some $14 South Congress fajitas and getting recurring heartburn for the next two years. After busting the South Congress Cafe – an upscale spin-off of the local Trudy's Tex-Mex chain – way back in February of 2005 for the unpermitted construction of a decked rear patio and privacy fence that covered city sidewalk and right-of-way, the city is still at odds with the eatery and is preparing to enter a new round of legal sparring. This after the cafe was found guilty in municipal court in October of 2006 of violating a deferred adjudication agreement it had made with the city to come into full code compliance by June of that year, while racking up an unofficial city record of four consecutive stop work order violations. (They just received another, fifth violation.)

The cafe's new lawyer, Eric Taube, who replaces Richard Suttle, Austin's Johnnie Cochran for cutthroat developers and business owners, has filed suit against the city over perceived inconsistencies in its handling of protracted agreements designed to get the cafe into code compliance. Taube says the city has made an example of the cafe with punitive and selective enforcement. He has also raised eyebrows by filing a motion to compel mediation on the case – something the city says it has repeatedly and unsuccessfully sought – as well as motions seeking depositions from two adjacent neighborhood association leaders and Assistant City Attorney Nancy Matchus, who has worked the case from the beginning. "After doing nothing for a month, [South Congress Cafe] barraged us with a large number of motions to delay the case," Matchus said.

Cafe management recently demolished the portion of the deck originally built atop city right-of-way, but the eatery still lacks an approved parking arrangement, including the provision of at least one handicapped parking spot. The city approved an initially submitted off-site parking plan but then revoked it based on a "misrepresentation," as Matchus put it, realizing that the cafe based its inability to provide an on-site handicapped space on the presence of its illegal rear deck. Matchus says the city is seeking attorney's fees from the cafe for the trial and that owners racked up a fifth stop work order when they began work on an augmented deck inside their property line without a permit or site plan. Matchus says the city has targeted other businesses with enforcement actions over unpermitted decks, especially since the smoking ban pushed smokers outdoors. "It's hard to understand their reluctance at this point," she said.

Neighboring businesses have fumed over the deck's occupation of the cafe's loading area, pushing daily delivery trucks into Monroe Street, exacerbating its already-hairy traffic and parking situation. Neighbors, who initially reported the illegal decking, are also largely in disbelief this fracas has played out so long, consuming so many city resources. "We're glad the owners have begun to give the public back its right of way," said Kathie Tovo, president of the adjacent Bouldin Creek Neighborhood Association, adding, "We definitely want to see the city of Austin compensated for its extensive outlay of court costs and code enforcement hours."

Tovo said neighbors support the city's continued vigilance, but the time it has taken to bring the cafe into legal compliance "is beyond any stretch of the imagination" and "speaks to the city's ability to enforce laws and protect public health and safety." She emphasized the importance of sending a message to other businesses that "this kind of thumbing one's nose at the law will not pay off in the long run."

Much like the flavor of the port demi-glace sauce adorning the cafe's Cornish Game Hen Forestiere, attorney Taube says the case is more complex than it seems. "I believe what's going on here is selective enforcement," he said. The cafe's suit against the city is based on a lack of cooperation in securing approvals, he said, during the long series of agreements designed to bring the cafe up to code. "These are local business owners, local guys trying to come into compliance, and all they get is bureaucratic red tape and doors slammed in their face," he said, explaining that the lingering lack of a parking arrangement, including a handicapped space, is all that's keeping the cafe from full compliance.

Taube said owners were given "conflicting responses" as to why their initially approved parking arrangement was revoked, and the latest stop work order was issued when workers simply tried to reinstall the old fence onto the scaled-back deck. "For whatever reason, the city has made the owners their poster child, and it doesn't make any sense."