Hyde Park Baptist sues city in federal

Court under new Religious Land Use Act

Church seeks injunction to allow garage construction

The Hyde Park Baptist Church (HPBC) yesterday filed suit in federal court against the City of Austin, alleging violations of the U.S. and Texas Constitutions, a federal civil rights act (42 USC 1983) and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The church claims that the city, five City Council Members, and Mike Heitz, director of Development Review, violated its rights when they refused to allow the church to build a 5-story parking garage in Hyde Park. (See In Fact Daily, March 8, 2001)

Hyde Park Baptist is asking for an injunction to prevent the city “from suspending or otherwise blocking HPBC’s construction of the parking garage,” as well as unspecified damages. In addition, HPBC is asking the court to declare the city’s actions to be “improper and invalid.” Mayor Kirk Watson and Council Member Danny Thomas voted in favor of allowing the church to build its garage and were not named in the lawsuit. The other five Council Members were sued in their official capacity, not personally. That means the city has the responsibility for representing them in court and paying any damages that may be assessed.

When they appeared before the Council, church leaders argued they had made a deal and the City Council should enforce that deal. Neighbors argued that the church was, in fact, misinterpreting the agreement reached between Hyde Park Baptist and its neighbors in 1990.

Walter Mizzell of Brown McCarroll represents the plaintiff, along with Richard Suttle of Armbrust Brown & Davis. Suttle said he believes the suit is the first of its kind in the Western District of Texas. Nine other suits have been filed under the RLUIPA in the whole country, he said. President Clinton signed the Religious Land Use Act in late September. Neighborhood groups, including the Hyde Park Neighborhood Association, have been concerned about the impact the Act might have on the power of neighborhood residents to control land use around them.

Niyanta Spelman, president of HPNA, said Wednesday night that her group had not yet discussed whether the association would attempt to intervene in the federal case. HPNA was an intervenor in the Hyde Park Baptist’s suit in state court earlier this year. (See InFact Daily, Feb. 26, 2001) Suttle said the state case was dismissed Wednesday, concurrent with the filing of the federal case. The city won the state court battle when District Judge Darlene Byrne refused to grant a temporary restraining order to prevent the Council from hearing an appeal on the church’s site plan for its garage. After the Council voted to uphold the appeal, the state court was unlikely to change its ruling.

City Attorney Andy Martin said last night that he knew the case had been filed but had not had an opportunity to read the pleadings. George & Donaldson will represent the city, Martin said. Since the church had already sued and lost its preliminary request for a state court injunction, Martin said he was not surprised that the church’s attorneys decided to file the federal case. He said the city is taking the case seriously.

Spelman, the wife of former Council Member Bill Spelman, said the association would be meeting with its lawyers within the next few days. She expressed dismay over the HPBC’s decision to sue rather than attempt to negotiate an agreement. “I think it’s really a shame that the church has chosen this route, when we’ve been telling them from the beginning that we’re willing to talk and come up with a solution.”

Before the March City Council vote, representatives of both sides met for several hours to try to reach a last-minute compromise. But that was only the final act in a long series of meetings in which the parties tried unsuccessfully to reach agreement.

Prior to its passage, local officials from various parts of the country had opposed the new Act as a significant preemption of local authority over land use. Following the bill’s enactment, National League of Cities Executive Director Don Borut said, “We are extremely disappointed that the federal government has again preempted a fundamental home rule power of local governments.” On Wednesday night, Suttle said, “I think the whole country’s going to be watching this.”

Environmental Board worries about

Precedent in denial of septic variance

Landowner takes 3-3 vote to Planning Commission

A landowner north of Westlake Hills' city limits took a second run at getting a positive recommendation for a variance on his on-site septic system from the Environmental Board last night and lost, once more, to the fear that his exception would set a precedent.

Andy Kugler—who had the plans but not the septic system for his home at 2105 Encinas Rojas approved by the city—wanted his on-site septic system approved after months of negotiation with city inspectors. Even giving a promise of a restrictive covenant on his property and agreeing to a maintenance contract did not give commissioners a high enough level of comfort to approve his request.

Kugler’s request was to exceed the allowed three-quarter acre of contiguous land with a gradient of not more than 25 percent for an on-site septic system. Commissioners talked about soil quality, future development and the failure of contractors to maintain septic systems. Finally, in frustration, Kugler took the podium and told the commissioners he had made a good faith effort to meet all of the city’s requirements. His promises to the city set a higher standard than any of his surrounding neighbors, Kugler said.

“We’ve set here in covenant what we will do,” Kugler said. “For you to make an issue of the fact that I may get a contractor who may not do inspections is getting a little far afield.”

City staff gave approval to the variance after septic reviewer Seyed Miri reviewed the Kuglers’ request. Kugler agreed to install a subsurface drip irrigation system—at three times the normal cost of a septic system—and agreed to meet conditions such as adding a permanent berm or barrier on the upslope side of the drain, hiring a contractor to professionally maintain the septic system for the life of the system, limiting the size of the house to 3,500 square feet and no more than four bedrooms, and submitting a copy of the septic permit for review to make sure it met all conditions.

The six commissioners at the table split evenly on the issue. Commissioners Phil Moncada and Debra Williams favored the permit under the new conditions stipulated by the city. They were eventually joined by Vice Chair Tim Jones. Chair Lee Leffingwell, and Commissioners Joyce Conner and Karin Ascot opposed it. Commissioners Ramon Alvarez and Matt Watson were absent.

Conner said she did not believe a lifetime maintenance agreement was enforceable and she had no more confidence that Travis County had the inspectors to provide regular inspections of the system than the limited staff of the City of Austin could. She warned her fellow commissioners that an onslaught of similar permit applications would follow and that commissioners needed to be ready to deal with the issue.

“I would definitely urge the staff to be working on the land management issues that arise in our Drinking Water Protection Zone if we’re going to accept these plans,” Conner said. “Environmentalists have based their faith on the acreage issues in the drinking water protection zone. There needs to be some kind of process to address this.”

Leffingwell also stated his opposition, saying, “once the variance is approved, the bottom line is that the city has no more control over it. The city has no ability to go out there and say, ‘You’re doing this wrong and you need to change.’ This is a complicated system and it’s going to require recurring maintenance, and the county has no program that requires return inspections.” He added that the Environmental Board was still waiting on the rewrite of the city’s new on-site septic system ordinance. “When this new ordinance is approved, we can go from there. Until then, we’re putting the cart before the horse.”

Ann Kugler was so unhappy with the vote that she too tried to reason with commissioners after the hearing was over. She told them that she and her husband had paid city taxes on the land for 20 years before they had decided to build on the lot and that the standards that they were willing to meet were much higher than any of their neighbors. The couple was so upset that Leffingwell apologized personally for the vote, but said that the OSSF ordinance and its standards were very much in doubt. Jones also expressed regret and pointed out that the 3-3 vote would clearly show the Planning Commission how torn commissioners were on the variance issue.

Design Commission grants

Approval for downtown projects

AMLI Block 20 must return for final OK

The Design Commission gave its approval to three downtown projects this week— Congress at 4th, Four Seasons Residences and AMLI Block 20—concluding that the proposed projects substantially meet the city’s design guidelines.

Discussion of the three cases revolved more around how to talk about the recommendations than what the recommendations actually were. Since the Design Commission is taking more of a role in tallying points, commissioners spent much of the meeting hammering out the exact language they would use to both encourage developers and keep them on track if changes were warranted.

Commissioners discussed the elements that complied with project guidelines, as well as the areas that could use improvement. Among the specifics:

Congress at Fourth: This project is the 33-story office tower on two-thirds of the block bounded by Congress Avenue on the west, Brazos Street on the east, Fourth Street on the south and Fifth Street on the north. The project, being developed by Cousins Stone, is a mixture of office space with restaurant, retail and parking.

Congress at Fourth is not pursuing Smart Growth points so the Design Commission’s role was simply to offer a letter of approval for the project to city officials. The density of the project, its respect for the adjacent Mexic-Arte Museum and its inclusion of local character in the building’s design were lauded in the missive.

Commissioners were satisfied that the project meets most of the city’s design guidelines, although they were not very enthusiastic about the streetscapes drawn up for the Fourth Street and Brazos Street sides. The commission suggested public art, more sidewalk furniture and trees. The commission also suggested more attention be paid to residents of The Railyard apartments, who have complained about the building's garage, among other things.

Commissioner John Patterson expressed concern that in this case, as well as in others, the Design Commission should find some way to follow up on areas of non-compliance. The idea would be to reinforce quality enhancement of the project, he said.

Four Seasons Residences: The 28-story Four Seasons Residences are adjacent to the current Four Seasons Hotel and are being developed by Maritz, Wolff & Co. Commissioners chose to give the project 40 out of 50 points in the end. That, in the minds of some commissioners, translates to a grade of “B” on the project.

Commissioners praised the residential addition to downtown and the use of local materials to reinforce local character, but faulted the project for not making more of its Trinity Street parking garage façade. Trees and awnings were included in the plans, but commissioners considered the level of protection and streetscape size to be “less than ideal.” Commissioners recommended much stronger ties from Trinity Street to Lake Austin.

Commissioners recommended more setbacks for pedestrian traffic given the size of the building, as well as a plaza. The scale of the entrance, wrote commissioners, is more visual than functional. The commissioners also pointed out that the Trinity Street façade above the retail floor would be a prime place for civic art.

AMLI Block 20 – Commissioners gave the high-density residential apartment complex from AMLI developers 45 points, but wrestled with who should provide the streetscape development—the developer or the city. The Second Street façade would be a part of the city’s Great Streets Program, and will be partially underwritten by the city. Commissioners gave the project its 45 points, but only on the condition that the site plan’s streetscapes are fully implemented. Lack of compliance with those streetscape plans, commissioners agreed, would make the score null and void, forcing the developer to return to the Design Commission a second time for approval. Conditional approval, planner Michael Knox told the commissioners, is not unusual for the city.

Commissioners—and especially Chair Juan Cotera—were not ready to let Architect Sinclair Black off the hook for suggesting that retail developer Bonner Carrington—rather than AMLI—be responsible for the ground floor awnings. Commissioners also felt that the exit driveway would be a prime space for civic art. But they liked the high density of the project, the retail disposition and the re-use of brick from the Tips Warehouse in the building.

©2001 In Fact News, Inc. All rights reserved.

Green story has legs . . . Three Hays County weeklies featured the Dallas Morning News story about Rep. Rick Green’s representation of felon Melvin Cox. Green has said that a $400,000 loan from Cox to his company had no bearing on his decision to represent Cox, 72. Green has explained that Cox is an old friend of the Hays County Republican and his father . . . Water leak to be explained . . . The City Council is expected to go into executive session today to hear about the cause of leaks in the 72-inch Ullrich water pipeline. The rest of us should hear the news sometime later . . . Aquifer education . . . The city's Watershed Protection Department is launching an aquifer education program at the Barton Springs pool, Kathy Shea told the Environmental Board last night. A display at the pool will explain the history and ecology of the pool, as well as information on the Barton Springs salamander . . . Neighborhood park grants available . . . The Austin Parks Foundation will provide matching grants to neighborhood and community groups interested in enhancing and revitalizing public parks and green space. The grants offered range from $300 to $2,500 and are available for park beautification projects, new and enhanced programs, and community events that bring neighborhood parks to life.The deadline for applications is June 15. For more information, call Jonathan Neumann at 477-1566.