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State's grandfathering law trips city in both instances

Thursday, February 13, 2003 by

Judge Pete Lowry has ruled against the City of Austin in two separate cases involving regulation of land use and development. Lowry ruled in favor of the Hyde Park Baptist Church in the church’s quest to overturn a City Council decision which would have prevented the church from building a new parking garage in the manner it wishes.

Lowry, who retired but now serves as a visiting judge in the district courts, also ruled that property owner Eli Garza may develop his land under the city’s Comprehensive Watersheds Ordinance because he had fulfilled his part of a bargain that included development under the old ordinance. The city wanted Garza to develop the property, at the intersection of MoPac and William Cannon, at lower impervious cover limits than would be allowed under the old ordinance. If the land had not been subject to the state’s grandfathering law— Chapter 245—it would have been regulated by the Save Our Springs Ordinance. The city and Garza had reached a settlement agreement on the matter a year ago.(See In Fact Daily, Jan. 26, 2001.)

However, City Attorney Sedora Jefferson said when the city entered into that agreement it included some investors who later walked away from the deal—negating the agreement. So the lawsuit went forward, with a trial in December.

Terry Irion, one of the attorneys for Provident, which has a contract to purchase Garza’s property, said his client pursued the case, which turned on whether plat notes written in the 1980s were still valid. Irion explained that city staff had said the plat notes were invalid when a site plan was filed using the old regulations. He took the matter before the Planning Commission, which granted his appeal and told the city to process the site plan under the old watershed ordinance, Irion said.

Judge Lowry ruled that the city must honor the plat notes. In a letter to the attorneys, he wrote, “The basis of my decision is the inequality that would result if the city could disregard plat note 6, which provides that the property ‘shall be developed, constructed and maintained in accordance with the Comprehensive Watersheds Ordinance’ after Plaintiff Garza fulfilled his duties under plat note 10 and deeded the land subject to that note to the city.” The city may not repudiate the notes—because they contain a provision they dislike—because the city benefited under another section of the same notes.

Jefferson said no decision has been made in either case on whether to pursue an appeal.

Attorneys for Hyde Park Baptist won their case on a motion for summary judgment on the narrow issue of whether the City Council had the legal authority to hear an appeal of a site plan approval from the neighborhood.

Richard Suttle, the church’s attorney, said the church could build the garage on the designated tract as set forth in the 1990 NCCD (Neighborhood Conservation Combining District) ordinance. That NCCD allowed any interested party—including the neighborhood—to appeal the four site plans attached to the NCCD.

However, in his ruling the judge points out that none of those were ever appealed. The church was also given the right to build a multi-story off-street parking garage “on all or a portion of the tract and contained height limitations and setback requirements for such a facility,” Lowry wrote. But the site plan for the garage was not attached to the NCCD. In 1991, the Land Development Code was revised, giving only applicants the right to appeal a staff decision on an administratively granted site plan. “HPBC contends that the appeal . . . is governed by that revised provision . . . (and) invokes Section 245.002” of state law, also known as HB 1704.

Attorney David Donaldson, who represented the city, explained that at the time the site plan was approved, “The staff, using what they thought was the proper interpretation of the ordinance, approved that application. Under the City of Austin rules in 2000 . . . only (an) applicant can appeal. But in 1990 . . . the Hyde Park NCCD ordinance said the neighborhood could appeal one of the site plans. There was an argument that it could apply to other site plans as well.” He noted that the judge did not reach the question of whether the site plan met the appropriate standards.

Suttle said the ruling “confirmed what we’ve said all along. Just like it was agreed to in 1990…Everybody keeps forgetting that the church gave up six demolition permits—and if they didn’t get the garage why in the world would they have done that?”

The arguments and litigation between the city and the church, spurred on by disgruntled church neighbors, will probably not end with this case, but Susan Moffat of the Hyde Park Neighborhood Alliance said she, for one, wished for a peaceful resolution. Moffat remarked, “I’m certainly surprised by this ruling and I think there are more avenues we can explore.” She said she would like to “sit down with the church and talk with them amicably.”

Capital Metro staff intends to recommend the extension of current contracts with vendors, rather than issue a major Request for Proposal on its Contracted Fixed Route and UT Shuttle service.

The combined Fixed Route and UT Shuttle contract are worth almost $50 million over five years. Capital Metro sent the two programs out for bid last June, then extended the deadline to March 1. However, Dan Peabody and Shanea Davis of the Transportation Department told the board the committee that reviewed the submitted bids would prefer to go another route.

What changed their minds was the need for a second operations facility, similar to the one that sits behind Capital Metro’s administration building on East Fifth Street. Current vendors provide operation facilities for their bus operations. Capital Metro’s RFP asked bidders to offer options to eventually allow Capital Metro to either lease or purchase an operations facility. Staff recommended instead that Capital Metro build its own operations facility.

“We need to own our own facilities,” CEO Fred Gilliam told board members at yesterday’s work session. A final vote on the contract extensions—intended to give Capital Metro enough time to locate land and build a facility in North Austin—will be presented to the Capital Metro board on Feb. 24. The current Request for Proposal, still in effect, will close on March 1.

Greater Austin Transportation Co. (GATC) and ATC/Vancom hold Capital Metro’s current contracts. Peabody said GATC provides the buses and operators for 13 fixed routes. ATC/Vancom provides the operators for the 87 buses on the UT shuttle route and the Austin Independent School District’ s magnet program. Both contractors provide their own maintenance and operations facilities for their contracted bus routes.

After some consideration, Capital Metro’s Purchased Transportation staff decided to shift all of the contracts to ATC/Vancom and extend ATC’s contract for an additional year. Given that ATC is in the fourth year of a five-year agreement, the contract would continue to June 2005. GATC’s contract is set to expire in May. The decision—two option years of fixed route service and one additional year of shuttle service—represents $17.4 million over the next two years for ATC/Vancom.

A new RFP would go out in the next 12 to 16 months, Peabody said. Because that RFP will not require an operations facility, it could give Capital Metro some additional cost savings, said Chief Administrative Officer Elaine Timbes after the meeting. It could also increase the number of vendors that bid on the Fixed Route and UT shuttle contracts. Board Member Fred Harless said the ability to put an RFP on the street without an operations facility “puts us in a much better position to negotiate.”

Capital Metro runs 75 bus routes. Almost 300 buses are housed in the current operations facility, Peabody said. The new facility would house at least 117 buses used for contract services. If the board chooses to go with the extension of current contracts, the open RFP will be cancelled, Timbes said.


, Thursday,


© 2003 In Fact News, Inc. All rights reserved.

New entry in race . . . Lee Leffingwell, chair of the city’s Environmental Board, told In Fact Daily yesterday that he has decided to run for the seat being vacated by Council Member Will Wynn. Longtime Democratic activist Kitty Clark will serve as his treasurer. He said he would make an official announcement next week . . . Water rates to increase next year . . . Council members were alerted yesterday that rates for water and wastewater customers would need to go up in 2004, but they won’t be able to use any of the increased revenue for the General Fund. Instead, the money will pay for an overhaul of the city’s aging water and wastewater infrastructure. This will be necessary both to comply with an order from the EPA and to keep up with the growing number of customers. The projected increase for water rates in 2004 is 4.1percent and the projected increase for wastewater rates is 5.9%. The department is already looking for ways to cut costs, including eliminating dozens of vacant positions and following the recommendations contained in a report from Public Financial Management, Inc. That group praised the Water and Wastewater Utility’ s achievements to date, but also included suggestions for improving the management of capital programs, as well as shaving expenses in the areas of information technology and fleet management . . . City Council agenda today . . . It’s a pretty ho-hum agenda, with few items of apparent controversy. The Champion sisters are requesting that some of their property on FM 2222 and City Park Road be rezoned, and the Govalle/Johnson Terrace Combined Neighborhood Plan is up for consideration . . . Planning Commission report . . . Members of the Govalle/Johnson Terrace Neighborhood Planning Team used last night’s Planning Commission meeting to offer their thanks to the city staff who worked on their plan. “The city gave us the best group, I think, as far as neighborhood planning,” said Janie Rangel. Susana Almanza also praised the staff of the Neighborhood Planning and Zoning Department. “All of the people who worked on the plan, they did a tremendous job,” she said. Residents of the neighborhood were at the meeting to offer their support for a proposal to allow small-lot amnesty for a portion of the plan area. The change, which was endorsed unanimously by the commission, will allow development on 139 smaller lots throughout the neighborhood. The Planning Commission also recommended a change to the future land-use map for the North Austin Civic Association, along with a zoning change at 1517 Kramer Lane. The change will allow a chiropractor to operate a home office from the location. In addition, commissioners had a message for the City Council: don’t forget about the proposed new street connectivity ordinance. (See In Fact Daily, Dec. 14, 2001.) Differences between a staff proposal for improving the connectivity between subdivisions and the wishes of homebuilders and developers have left the idea lingering at the Council level. The commission passed a resolution urging the Council to address the issue, but did not endorse any particular version of the proposal. “Rather than argue over the form of the ordinance, I think we should ask the City Council to move forward on this,” said Commissioner Dave Sullivan. “My recollection is the Planning Commission that I was on approved this twice, and then between 1999 and 2001 the commission again approved it. I don’t think we need to hash over it any more. But I think we should ask the City Council to move forward on the issue of street connectivity and increased pedestrian connectivity.” The commission agreed, supporting Sullivan’s resolution 7-0 . . . Pipeline movie showing Saturday . . . Icon Media Productions will present a documentary about the history and repercussions of the Longhorn Pipeline at the Alamo Drafthouse on Colorado Street. The film is scheduled to begin at 4pm, after the peace rally at the Capitol.

© 2003 In Fact News,

Inc. All rights reserved.

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