Move to exempt bars defeated on 4-3 vote

Mayor Gus Garcia won his biggest victory as Mayor last night as the City Council gave final approval to an ordinance banning smoking in most public places, including bars. The vote was 4-3, with Mayor Pro Tem Jackie Goodman and Council Members Will Wynn and Raul Alvarez dissenting. Billiard halls, bingo parlors and fraternal organizations will be exempted from the ordinance, which will go into effect September 1.

A few amendments were added before final passage, including deletion of a prohibition against smoking on patios if they are further than 15 feet of an entrance or “openable window.” The original ordinance prohibited smoking on patios and within 25 feet of entrances. Health Department chief David Lurie read some additional changes into the record, including deletion of new regulations for hotel and motel rooms as well as nursing homes. The proposed changes would have required separate ventilation systems that could have been financially burdensome for those businesses.

Alvarez, who has consistently voted against the ordinance, tried to amend the regulations to exempt bars from the smoking ban, but his amendment was rejected by the ordinance’s author, Garcia, and the same three Council members who joined with him to pass the measure. Garcia accepted as friendly Alvarez’ amendment to make September 1 the effective date of the new ordinance, but Garcia’s executive assistant, Adam Smith, had already told In Fact Daily that his boss had decided on the delay in implementation.

Smith said the Health Department will have primary responsibility for enforcing the ordinance and would spend the summer months meeting with affected business owners to make sure they understand the requirements of the new ordinance.

Thursday afternoon, Austin Police Association President Mike Sheffield told In Fact Daily he was worried that the new ordinance would lead to many increased calls for the APD. “Since we already know that the budget is tight and we’re being told we’re going to have to do more with less, our question is: Who’s going to enforce this? And what kind of additional police resources is it going to tie up?” Police officers should not have to play referee between a smoker and someone who doesn’t like the smoke. Sheffield added, “It seems that this would be a poor use of police resources.”

Asked why the police had not brought forward their concerns earlier, Sheffield said he had been hoping that there would be modifications to the ordinance that would lower the number of calls the APD would receive. He said he would be talking to former police officer Council Member Danny Thomas about the matter. But Thomas stuck to his previous position and was the swing vote in favor of the ban. Council Members Daryl Slusher and Betty Dunkerley seemed to have favored the ordinance from the beginning, although Slusher said he had not initially favored banning smoking in bars. But that was before he started receiving letters from musicians who want to entertain in smoke-free venues.

During the discussion of Alvarez’ bar amendment there was considerable consternation over the definition of the word “bar.” Alvarez at first sought to define it as a business with a liquor license that makes 75 percent of its revenue on a quarterly basis from the sale of alcohol. However, Slusher said the amendment would create two classes of bars—only one of which would be exempted from the ordinance. Alvarez then agreed to take the more usual definition of a bar: a business which derives 51 percent of its revenues from alcoholic beverage sales. But Garcia and Thomas said that might then exclude some restaurants from regulation and gut the ordinance.

Garcia told his colleagues that he would withdraw the ordinance from consideration if they approved Alvarez’ amendment excluding bars.

Following the meeting, Bob Woody, president of the East Sixth Street Community Association (ESSCA), said, “It’s ill-advised. They’re not representing their constituency. Hopefully, we’ll have a new Council pretty quick and we can straighten this out.” Place 5 candidate Brewster McCracken has said he opposes the ordinance, which Margot Clarke is in support of it.

Attorney Jennifer Riggs sent a letter to the Council on Thursday on behalf of the ESSCA, urging a delay in passage of the ordinance and arguing against its passage. A veterans’ organization has already filed suit against the current ordinance. Woody warned that his group would now also file suit, predicting that they would “strike on July 15th.”

On the other side, Ken Pfluger, chairman of the Tobacco-Free Austin Coalition, told In Fact Daily, “We’re very pleased that the Council took this action tonight, because it’s an important step forward for the public health of all the citizens of Austin.” He said his group had no concerns about the Sept. 1 starting date for the ordinance. “In fact, we think it will be good because it will be at the end of what’s typically a down period anyway, which is the summer slump. September 1st comes . . . here’s the football season and students come back.”

Asked if he had been concerned about last night’s vote, Pfluger said, “In the past couple of days we didn’t know how it was going to go, because there were a lot of rumors flying back and forth. But in the end, the Council voted for public health.”

Different rules will apply to larger lots

The City Council yesterday approved a change to the City Code which limits the size of duplexes that can be built in the single-family-3 zoning category and declared an end to the moratorium that has lingered on past the original expiration date in May. The new rules are meant to prevent the proliferation of super-duplexes in residential neighborhoods around the University of Texas. (See In Fact Daily, Feb. 28, 2003 .)

Under rules adopted yesterday, a duplex of up to 4,000 square feet can be built on a lot of less than 10,000 square feet; on lots larger than 10,000 square feet, the floor-to-area ratio (FAR) could be up to .57. Planner George Adams of the Transportation Planning & Sustainability Department explained that an FAR of .57 to 1 translates into a duplex of 5,700 square feet on a 10,000-square foot lot. “For every 1,000 square feet (of lot size) you would be able to add another 570 square feet,” to the duplex, he said.

Mayor Pro Tem Jackie Goodman and Council Member Betty Dunkerley worked on the final proposal. Goodman explained that they had chosen those numbers in order to avoid adding too much value to some lots and devaluing others. Dunkerley had been particularly concerned about empty nesters who want to live in a large duplex unit alone but rent out the other side. She did not want a person or couple to be limited to the smaller sizes originally contemplated.

Goodman added that she did not want to enact an ordinance that would preclude people from owning large houses or having large families. She also pointed out that developers of duplexes would be required to operate within the 45 impervious cover limit.

But Council Member Raul Alvarez thought that the size should be more limited and tried to add an amendment reducing the FAR to .5 to 1. Mayor Gus Garcia seconded his motion, but it failed on a 4-3 vote, with only Council Member Daryl Slusher joining them.

Assistant City Attorney Martha Terry added that the zoning ordinance includes another limitation on the size of duplexes, a prohibition on building above the shorter of 30 feet or two stories.

Larger duplexes which have already been constructed and received a certificate of occupancy or a building permit are grandfathered under the ordinance. Their owners will be able to get new building permits for repairs or renovations or to complete construction, but not for expansion.

The new regulation will prohibit more than three unrelated persons living in a dwelling unit, which would mean no more than six unrelated persons in a duplex. The previous ordinance allowed six unrelated individuals—for a total of 12 in a duplex—which led to 6-bedroom duplexes springing up in Hyde Park. Residents of that neighborhood convinced a majority of the Board of Adjustment to overturn a decision to issue a permit for a super-duplex at 3207 Hampton Road. (See In Fact Daily March 11, April 16, 2003 .) The property owners filed suit against the city and the board.

Council approves Children's

Hospital move to Mueller

Futrell given authority to negotiate but not execute contract

The plan to move Children’s Hospital to a 32-acre site at the old Robert Mueller Airport took a major leap towards completion Thursday night as the Council voted to give the city staff authority to negotiate, but not yet execute, a series of amendments to the lease between the city and the Seton Healthcare Network. Those amendments would increase the financial penalty for leaving the partnership and increase the term of the contract. The proposal will come back to the Council next week for a vote granting authority to execute the deal. Several Council members want to have that vote on the record before their four-week summer hiatus.

Doctors and executives of the Seton Healthcare Network extolled the virtues of the proposal, which will allow the organization to buy land at Mueller and build a new Children’s Hospital by 2007. The current facility adjacent to Brackenridge Hospital, they said, is too small to keep up with the growing Central Texas population. In addition, moving Children’s Hospital will allow Brackenridge Hospital to expand its services for adults.

While several Council members voiced their enthusiasm for the proposal, some audience members called for delay. Mary Lehmann with Keep the Land asked for more discussion on whether to sell or lease the land to Seton. The organization has consistently opposed selling any part of the former airport. Executives of the healthcare network have said they cannot obtain financing for construction without ownership of the tract. Probate Judge Guy Herman, who has been active in the push to create a local health care district, also called for the Council to delay.

Seton’s demand that it be allowed to buy the land at Mueller rather than engage in a long-term lease proved problematic for Mayor Pro Tem Jackie Goodman, who felt that allowing the health care network sole ownership of the property would violate the sprit of the partnership with the city. She speculated that if the relationship between the two parties were to deteriorate and Seton were to back out of the deal or fail to renew at the end of the lease, the city could potentially be left without a specialized public facility to serve children whose parents are unable to pay. “If the city and Seton part ways, Brackenridge will no longer have a children’s hospital, certainly in the sense that we have it today,” she said. Goodman also called for more public discussion and input from citizens.

City staff and outside attorney Jim George tried to reassure Goodman that the deal was sound. “I think you end up with a government entity that would still be obligated to provide indigent health care,” said Assistant City Attorney Sally Henly. “We would have whatever facility remains at that time, which could be used for pediatrics or we could contract out for those services with Seton or some other healthcare provider.” George, who helped negotiate the changes to the deal between the two parties, urged the Council to accept the proposition. “The debate about lease versus purchase essentially ignores this unique relationship that has been put together,” said George. “I believe it is an economic impossibility for Seton to ever walk away from this relationship under the proposed arrangement.” That arrangement includes a $50 million penalty for breaking the contract, which is significantly larger than the $5 million penalty in the current contract.

In response to those points of concern raised by Goodman, the Council voted 7-0 to give staff the authority to negotiate the lease amendments, but not to execute the new contract. The ordinances related to the move, including a measure appropriating money for site development and authorizing the construction of a 16-inch water main, were approved on first reading only.

Thursday, Friday.

Saturday is Election Day . . . Margot Clarke and Brewster McCracken are both working to turn out supporters for their runoff election tomorrow. No one is predicting a big turnout, so your vote really does count. McCracken will have a party at his campaign headquarters, 1802 Lavaca. Clarke will host a party at Threadgill’s World Headquarters on Barton Springs Road, beginning around 9pm, but plans to be there earlier for dinner. In Fact Daily will join other media representatives and interested citizens to watch returns come in at Travis County Elections Division offices, 209 W. 9th Street. . . . Agape Ministries wins third round . . . On a motion by Council Member Danny Thomas, the Council voted 6-0 to grant Agape Christian Ministries the zoning it needs to proceed with a new sanctuary and accompanying buildings on Peaceful Hill Road. Neighbors had a valid petition and Mayor Pro Tem Jackie Goodman has made a specific point of never voting against such a petition from a neighborhood. She was purposefully off the dais when the item came up. Mayor Gus Garcia said there were studies showing “that America has its most segregated moments on Sunday morning. Agape is very diverse and I think that attests to the attitude of the leadership, not just the clergy, but the lay leadership.” He said the church would be a good neighbor in spite of neighbors’ fears about its impact on their quiet street . . . Churches on a roll . . . Also on a motion by Council Member Danny Thomas, the Hyde Park Baptist Church won its fight against historic zoning for the A&P Grocery on 38th Street. The vote was 4-3 with Garcia, Council Member Raul Alvarez and Goodman voting against the motion to deny historic zoning. Mayor-elect Will Wynn joined Council Members Thomas, Betty Dunkerley and Daryl Slusher in voting to deny the zoning, which had been recommended by the Historic Landmark Commission and the Planning Commission . Wynn might have voted the other way, but Dunkerley’s second told him that historic zoning would fail because the church had a valid petition against the change, requiring six votes in favor of the historic designation . . . More to do after you vote . . . Saturday is National Trails Day and the Austin Parks Foundation, among others is urging those who use the trails to celebrate the day with either work or play along the trails. There are a dozen trail-oriented activities on both Saturday and Sunday around town, among them trail maintenance along Walnut Creek and Bull Creek at several preserves, including Bright Leaf and Wild Basin. The Travis County Audubon Society is having a bird-watching expedition within the Barton Creek Habitat Preserve. Austin Ridge Riders Mountain Bike Club will work on trails and ride in Russell Park. The Parks Foundation, along with Austin Metro Trails and Greenways, Austin Parks and Recreation and Tokyo Electron will be opening a new segment of the Town Lake Hike and Bike Trail at Roy G. Guererro Park at noon. Tokyo Electron will announce details of its plan to underwrite the cost of specific enhancements to the trail. Those especially interested in this park will gather at 8:30am to talk about future project needs. For more information, call 477-1566. For a complete list of events, see http://www.downtownaustin.com/events . . . Bike enthusiasts celebrate too . . . Cyclists have a choice of three metro bike trails, all beginning at 10am at Café Mundi, Ruta Maya or Sacred Cup, and proceeding to Plaza Saltillo for the 11am opening of festivities there . . . RSVP today . . . The Downtown Austin Alliance and the Urban Land Institute are having their joint luncheon at noon Monday. Today is the deadline to RSVP for the luncheon and hear Tom Moriarity of Economics Research Associates discuss the problems and issues affecting retail and retention of existing businesses. He will also discuss strategies, policies and incentives necessary to attract retail to Downtown.To reserve your spot, email rsvp@downtownaustin.com or call 469-1766 . . . Error noted . . . Yesterday’s edition of In Fact Daily erroneously reported that the city was going to begin a program of grants and loans for existing and new businesses under Chapter 380 of the Texas Local Government Code. That is not the case, and the error was corrected in the early afternoon edition. The policy outlined by city staff would instead include tax abatements linked to specific performance measures such as those granted to the Domain.

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