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Hyde Park Baptist Church hit with second moratorium on new garage

Friday, January 28, 2000 by

Council gives neighbors and church five weeks to talk and a mediator to help

During an hour and a half in executive session last night, the Austin City Council significantly rewrote a proposed ordinance with interim development controls for the Hyde Park Baptist Church (HPBC). An abbreviated public hearing on the proposed ordinance that started shortly after 10 p.m. drew praise from the Alliance to Save Hyde Park (ASHP) in central North Austin and a stinging rebuke from Richard Suttle, of Armbrust Brown & Davis, who represented the church in the matter. However, the ordinance Suttle and neighbors were commenting on was the version drafted by the staff–not the rewrite presented after the comments.

The City Council ultimately voted 5-0 (with Mayor Kirk Watson absent and Council Member Bill Spelman abstaining) to adopt the ordinance as requested by neighbors of the HPBC and over Suttle's strong objections. The ordinance, which expires March 3, prevents the city from accepting applications for site plans, building permits, demolition permits, or relocation permits in the Hyde Park Civic Neighborhood Conservation Combining District (NCCD), which consists of eight tracts of land including the HPBC and seven adjacent tracts.

Bob Liverman, of The Liverman Co., who handles applications for the HPBC, told In Fact Daily that two applications are currently pending with the city, one for a site development permit for an additional parking garage that would cost an estimated $4.8 million, the other for a drainage project on Speedway that would cost an estimated $150,000. Liverman says the application for the site development plan for the parking garage has been rejected twice by city staff. "The city is saying it wasn't complete," Liverman says. He said the new garage would result in a net increase of about 350 parking spaces, because about 100 parking spaces already available in surface parking would be lost and a smaller parking lot must be restored when the new garage is built.

This five-week moratorium is the second intervention by the City Council in HPBC's plans. A special-called meeting on Dec. 16 for an item sponsored by Mayor Pro Tem Jackie Goodman and Council Member Daryl Slusher called for considering an ordinance to adopt interim development controls within the city's NCCDs, pending consideration of amendments to the NCCDs. That resulted in an agreement between HPBC and neighbors to meet and report back to the council Jan. 28. (In Fact Daily Dec. 17.) The church was to be allowed to continue with a drainage project and continue working to gain permission for vacation of an alley, which was being sought in connection with the new garage.

"There was no process in December, no notice, just bam–it was on the agenda to limit NCCDs," Suttle said. "Today, before the agreement expired from Dec. 16, we're on the agenda again, without notice, and an interim ordinance is back focused on one NCCD, one church and one landowner only." Suttle said he had received the ordinance (dated Jan. 26) at 4 p.m. yesterday from In Fact Daily, and that did not follow the city's own policy for passing an ordinance.

Suttle said the church had been in the neighborhood for more than 100 years and the Hyde Park Civic NCCD had been negotiated only after the city stepped in to mediate the dispute amid lawsuits and demonstrations against the church by the Hyde Park Neighborhood Association (HPNA). "After hundreds of hours we reached agreement, a delicate agreement, including an NCCD ordinance negotiated and reviewed by all three parties (the city, HPBC and HPNA) and approved." He said the church had abided by the agreement and now, 10 years into it, had raised the money to proceed with the parking garage on Avenue D, behind the existing garage on Speedway, as provided in the agreement. He said if the ordinance were approved the city would be reneging on its 1990 agreement. "Without this agreement the parties have a lot to lose and not much to gain. If it's not upheld, the message sent will be that when the politics change, so will the agreement."

Susan Moffat, spokesperson for ASHP–a group not affiliated with the HPNA that negotiated the 1990 agreement–said the process of adopting the NCCD in 1990 was flawed but had allowed a garage of two to three stories with setbacks and human scale appropriate for residential use. Instead the church is now trying to build a five-story garage with no setbacks from Avenue D. She said HPNA members involved in the 1990 settlement did not know what was in the NCCD at the time. Moffat, wife of Austin Chronicle Publisher Nick Barbaro, said that people who bought homes in the area after the NCCD was established had no notice of its existence. She said church attendance as reflected in church bulletins shows that attendance had not increased and therefore a new garage is not needed. "The NCCD says it will be merged with the neighborhood plan when the plan is ready. We're asking you to extend the hold on the garage while the neighborhood plan and the new NCCD are drafted," Moffat said.

The ordinance Suttle was criticizing was radically modified–as explained by Assistant City Attorney Marty Terry after Suttle and the neighborhood representatives spoke. As originally drafted by staff, the ordinance would have directed the city manager to complete a planning study for the area and make recommendations to the council within 60 days, including review and recommendations on appropriate zoning and regulations for the Hyde Park Civic NCCD.

The revised ordinance presented by Terry instead states the council finds that ambiguities may exist in an agreement between HPBC and the HPNA reached in August 1990 and in the Hyde Park Civic NCCD and states the council wants to provide stakeholders an opportunity to resolve the ambiguities. The ordinance directed the city manager to facilitate discussions among the stakeholders to identify and address those ambiguities and report to the council no later than March 2. Tracy Watson, the city's director of special projects and development, will be assigned to mediate the discussions.

"The emphasis is on the church and the neighbors getting together and trying to clear up the ambiguities…and come to a solution themselves," Slusher said. "There's no attempt to change the agreement the church and the neighbors entered 10 years ago."

Suttle was allowed to make another comment before the council voted. He said Slusher had promised in December there would be no more moratoriums. "Why should we negotiate when we know in recent history two instances the city cannot keep a deal?" Suttle asked. "What you have is a unilateral moratorium by the city."

"You talk of ambiguities," Suttle added, but there's been no discussion of those ambiguities."

Council Member Gus Garcia replied, "The council said there may be ambiguities, not that there are ambiguities. So I hope we enter this discussion in the right kind of spirit. I hope we look at the issues that benefit the church and benefit the community and look at ways to make this thing better…I agree with Richard (Suttle) that the process has been unfair to his clients."

Slusher said the issue of compatibility standards was an ambiguity. "I'd like the neighborhood to come into this with the spirit of compromise," Slusher said. "I'd urge them to go into this in the spirit of negotiating, listen to the church, and try to come to an agreement that works for the residents of the neighborhood and the church. I hope that's what Mr. Suttle will ask his clients to do."

The council also put a moratorium on the Planning Commission's planned public hearing on the Hyde Park Neighborhood Plan. "We don't want the neighborhood plan to move forward during this time, either," Slusher said. "That would not be fair."

After the council voted to approve the ordinance and adjourned, Suttle told In Fact Daily, "Litigation is always an option, but when you start there it sometimes closes other options. I have to talk to my client."

Goodman told In Fact Daily afterwards that the five-week delay should pose no problems for HPBC because its site-plan application for the garage is not ready to go and in any case it could not be approved before the alley vacation is completed.

Spelman told In Fact Daily the reason he abstained from the executive session and discussion of this matter was not because his wife is on the neighborhood liaison team that has been meeting with HPBC, but because his house is adjacent to one of the church's surface parking lots. Although he said the proposed garage was more than 300 feet from his home, there was a slight possibility that the garage could affect the value of his property and he did not want any action taken by the council on this matter to be vulnerable because of his participation.

Bradley Settlement scheduled for council's final approval on March 9

Includes annexation, zoning, and settlement of litigation

The Austin City Council last night voted unanimously, with Mayor Kirk Watson absent, to adopt a resolution establishing a timetable for action that would result in completion of all related actions in the Bradley Settlement Proposal at the March 9 City Council meeting. If successful, the action could result in settlement of claims on about 40 percent to 45 percent of land in the Drinking Water Protection Zone thought to have grandfathering rights for development under less strict standards.

The Bradley Settlement Proposal involves more than 3,000 acres of land in southwest Travis County and northern Hays County, including the Spillar Ranch, Pfluger Ranch and Edwards Crossing. (See In Fact Daily Dec. 8 and Dec. 10, 1999.)

City Attorney Andy Martin told the council that he was confident the documents would be available by the Feb. 2 council meeting. "We have not yet received a final proposal from Bradley we would be confident in presenting to you," Martin said. "I'm optimistic we will get it next week, so confident that I recommend setting forth a public review period."

Martin said copies of the Bradley Settlement Proposal will be available through the city's Public Information Office and through the city's web site when it is received. "Will make every effort to ensure that people have an ample opportunity to review this, raise questions to you, and that all will be taken into account," he said.

Council Member Bill Spelman said, "You did excellent job with that on the LCRA ( Lower Colorado River Authority) water deal and if you do as well on this we will have a much more satisfied public."

Council Member Gus Garcia said he wanted the documents to be promulgated so that groups such as the Save Our Springs Alliance, Save Barton Creek Association and others can review them properly and give the City Council informed responses to the settlement proposal. He said the council would try to work within the March 9 deadline for completion of actions, as requested by Bradley Interests.

Martin said that the proposed annexation depends on a signed request for annexation from all affected property owners. "In the absence of that I would not recommend annexation," he said.

Negotiations with Bradley Interests have been proceeding under the terms approved by the City Council in December, Martin said.

The City Council directed the city manager to:

• Schedule a staff briefing to explain the Bradley Settlement Proposal concerning development of certain land and settlement of related litigation at its Feb. 3 meeting.

• Set public hearings on the Bradley Settlement Proposal for 6 p.m. at the City Council meetings of Feb. 10, Feb. 17, March 2 and March 9.

• Publish the required notices for City Council public hearings Feb. 10 and Feb. 17 on the proposed annexation for limited purposes of the Edwards Crossing, Spillar Ranch and Pfluger Ranch, with action on the annexations scheduled by the City Council for March 9, if the Bradley Settlement Proposal is approved.

• Initiate a zoning case to consider permanent zoning for approximately 3,076 acres that may be included in the Bradley Settlement Proposal, and to schedule a public hearing before the Planning Commission on the proposed zoning and the Bradley Settlement Proposal in February, and set a public hearing on the proposed zoning before the City Council on March 9, if the Bradley Settlement Proposal is approved.

• Schedule all other ordinances or resolutions that may be necessary or desirable to consider in connection with the Bradley Settlement Proposal for City Council consideration at the March 9 council meeting.

The City Council requested that any recommendations concerning the Bradley Settlement Proposal from the Planning Commission, Environmental Board, Water and Wastewater Commission, and any other advisory boards and commissions reach the City Council by March 1.

A friendly amendment by Council Member Daryl Slusher would result in the schedule slipping if documents reflecting the latest proposed negotiated settlement are not ready in time for the Feb. 3 City Council meeting.

New board and commission appointments

The Austin City Council yesterday appointed two new members to the Austin Housing Authority. They are Charles "Chuck" Bailey and Carl S. Richie.

Cabbie no more…One of the proclamations presented at yesterday's City Council meeting was for Odis Axel, who is retiring after 50 years as a driver for Austin Cab Co. Company owner Bertha Means called Axel "Mr. Harlem," for his service to East Austin. Axel got out from behind the wheel graciously, saying, "I have had a good life driving a cab, because you treat people right and you don't have to worry about nothing."… Putting press on report…Mayoral candidate Jennifer Gale is pulling out the stops to get press coverage for the umpteenth run for public office. During citizens' communications at yesterday's City Council meeting, Gale, a self-described "historically underfunded candidate," used part of the allotted three minutes to play a tape of what Chris Davenport, a reporter from the Austin American-Statesman, told Gale during an interview. "I need to assess the viability of your candidacy," Davenport said on the tape. Davenport confirmed it was his voice on the tape, adding, "I gave (Gale) 30 minutes and (the candidate) showed up 15 minutes late."… Poetic license…The City Council yesterday voted 5-0 with Mayor Kirk Watson and Council Member Willie Lewis absent to pass a resolution calling for the Texas Railroad Commission to deny the Aluminum Company of America's request for a permit to strip mine lignite in Bastrop and Lee counties. Council Member Beverly Griffith noted that air pollution knows no frontiers, no barriers, and no jurisdictions. "Ask not for whom the ozone floats, it's coming for you," Griffith said. In the introduction to For Whom The Bell Tolls, novelist Ernest Hemingway cited poet John Donne, "…never send to know for whom the bell tolls; It tolls for thee."

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