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Hyde Park Baptist wins garage suit

Tuesday, August 12, 2003 by

Council must decide whether to appeal decision

A state district court judge has ruled that the Hyde Park Baptist Church has the right to build a five-story parking garage and that the City Council was mistaken when it granted an appeal by neighborhood residents, thwarting the church’s expansion plans. (See In Fact Daily, March 9, 2001 .) Judge Pete Lowry, a retired judge who serves in the capacity of visiting judge, sent a brief letter advising attorneys for the church and the City of Austin of his ruling.

Lowry wrote, “I have concluded that the Hyde Park Baptist Church’s site development plan met the applicable administrative standards. The language in the NCCD ( Neighborhood Conservation Combining District) stating that the church may construct a parking garage on ‘all or a portion of the tract’ allows it to construct a building on all of the tract subject only to height limits and setback requirements specified in the NCCD. The provision is not ambiguous.”

Hyde Park Baptist sued the city in April, 2001 after a convoluted series of events beginning in 1990 when the church, the city and the neighborhood agreed on how the church would develop property around its campus within the neighborhood combining district. In 2000, the church filed a site plan for a new parking garage at 39th Street and Avenue D. Director of planning, Mike Heitz, issued a permit for the five-story garage as part of his administrative duties.

Members of the Hyde Park Neighborhood Alliance appealed to the City Council, contending that the decision was not in keeping with the 1990 NCCD. The Council voted 5-2 to grant the appeal, overturning the decision to issue the permit, with Mayor Kirk Watson and Council Member Danny Thomas in the minority.

The church filed suit, first in federal court and then in state court.

Judge Lowry’s ruling, issued late Friday, “means that the judge agrees with the director of planning, who agreed with his staff,” that the garage met requirements of the NCCD, according to Richard Suttle, attorney for the church. “Only the Council and the neighborhood disagreed,” he said.

During an earlier hearing on the church’s motion for summary judgment, Lowry ruled that the City Council did not have the authority to hear an appeal on the administrative decision. After that ruling, the city’s outside counsel, David Donaldson of Donaldson & George, asked the court to rule on whether the administrative decision was erroneous. The court said it was not.

Donaldson said, “We’re disappointed that Judge Lowry did not support the majority of the City Council’s careful consideration of the issues . . . in determining the meaning of the ordinance that set the limits on the Hyde Park Baptist Church’s construction of this garage in the Hyde Park neighborhood. The question of appeal is under consideration right now.”

City Attorney designee David Smith said attorneys would brief the City Council on the matter during this Thursday’s executive session, but that the question of whether to appeal would likely not be decided this week. He pointed out that the judge’s ruling must be put in the form of an order and after that the city would have 30 days to decide whether to appeal.

Susan Moffat of the Hyde Park Neighborhood Alliance said, “With all due respect, I believe the judge is completely wrong and I hope the city will appeal the case. I think the written record is very clear. The neighborhood negotiators never agreed to a structure of this size . . . It simply is wrong to put a building of this size on a street of single-family homes without any setback or landscaping to soften the blow. We’ve tried to find a compromise . . . I would ask the church to look in its heart and think about whether this is truly the Christian way to treat its neighbors.”

Suttle said the garage will comply with the city’s compatibility requirements on setbacks and landscaping. He said if the city does not appeal the case to a higher court, the permit must be reinstated. He added that before the new ruling attorneys representing the church were awarded $118, 232. That amount would be $30,000 less if is not appealed to the state Supreme Court and would be reduced by an additional $30,000 if the city does not appeal to the Third Court of Appeals, according to the order.

CAMPO Board votes to change criteria for road selection

The Capital Area Metropolitan Planning Organization’s (CAMPO) Transportation Policy Board split along urban-suburban lines last night in revising the criteria for selecting metropolitan mobility projects for federal funding.

The proposed revision of evaluation criteria is a mid-cycle change recommended by CAMPO staff. At last night’s meeting, Executive Director Michael Aulick outlined the proposed criteria, saying they were more in line with the organization’s goals. The evaluation criteria have been the same since 1992.

Commissioner Greg Boatright, who served as chair of last night’s meeting, said the criteria were better and “more up-to-date.” Aulick said the 1992 criteria were simply “no longer valid.”

The Transportation Policy Board will award between $50 and $60 million in STP 4C funding this year for various air quality, congestion management and roadway expansion projects. Project selection is on a five-month time frame, with projects submitted by jurisdictions in August and selected at the board’s meeting in December.

Under the old system, the cost effectiveness index set by a Texas Department of Transportation formula was 40 out of 100 points. The aspects of neighborhood preservation, gap completion and air quality weighed 10 points apiece. The aspects of safety and compact city, serving developed areas each carried a weight of 15 points.

Under the new evaluation system, transportation system management, reducing roadway delay, reducing existing intersection delay and corridor completion each weigh 10 points. Safety improvements, environmental/community impacts and additional local contributions will be weighted 20 points apiece.

Local contribution is the amount the city would put forward to match federal funds. All cities are expected to put up at least 20 percent of the cost. Under the proposed system, the number of points would correlate with the percentage of local commitment. A commitment of 45 percent or more of the project would equal 20 points.

Commissioner Gerald Daugherty said he found the wording in the 1992 evaluation criteria more straightforward than in the new proposal. Cost efficiency was a worthy goal, and one that CAMPO was striving to meet, Daugherty said. The goal of cost effectiveness should be maintained, even if aspects of the new evaluation implied similar results.

“I realize we’re going to clarify some of these things, whatever we’re going to call them,” Daugherty said. “But I don’t want anyone to be misled by what I think would be number one in this community, and I’m not supportive of calling it something else.”

Others were not as comfortable with how the various areas were weighted. Westlake Hills Mayor Dwight Thompson said he was bothered by 20 points going toward how much money the local city could put forward to match the federal funds. Smaller cities, which sometimes end up paying for projects intended to benefit urban areas, usually lack the funding capacity and financial resources of larger cities.

County Judge Sam Biscoe tried to mediate that discussion by stripping the point values off the new system, the end result of which was eventually approved by the full board. The goal would be to evaluate the projects under the new criteria and allow the full Transportation Policy Board to decide which projects should be prioritized, but without attaching point values to each of the criteria.

Council Member Daryl Slusher asked whether environmental justice had been a criterion under the old system. The answer was both yes and no, according to CAMPO staff. Environmental issues were not listed under the specific criteria, but they were taken into consideration during the final project recommendations.

The Austin/Travis County delegation, plus Boatright and Capital Metro representative John Trevino, voted in favor of the new policy. Daugherty and the representatives of the suburban areas, including Reps. Todd Baxter, Dan Gattis, Jack Stick, Thompson and Texas Department of Transportation Engineer Bill Garbade voted against the policy. The final split was 11 in favor and 7 against the new policy.

Chair Sen. Gonzalo Barrientos, one of the 11 Democratic Senators who went to Albuquerque, was absent from last night’s meeting. Rep. Mike Krusee and Sen. Steve Ogden also were absent.

The revised evaluation criteria are an interim measure. A new policy, written with the assistance of TxDOT and the Texas Transportation Institute, will be put in place before the next round of STP 4C funding choices.

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

Slusher wants to postpone Lowe’s settlement, consideration of Patriot Act resolution . . . Council Member Daryl Slusher released a lengthy statement yesterday suggesting that settlement of the Lowe’s lawsuit and a Council decision on whether to formally come out in opposition to the USA Patriot Act should be put off until the Council has finished budget deliberations. He says, “The seriousness of the budget situation is hard to exaggerate: layoffs, service cutbacks, delayed opening of long-awaited city facilities, increasing overlapping tax burden on citizens, more deficits looming for the next two years which will be affected by decisions that are made now, differing viewpoints on the Council over how to proceed and the need for intense Council deliberation heading up to a vote in early September.” The Council is scheduled to continue hearing City Manager Toby Futrell’s proposals and receive citizen input this Thursday and on August 28, with budget votes on September 8, 9 and 10. Slusher is not proposing to postpone the hearing scheduled for 10am Thursday, but says he still has numerous questions about the local impact of the federal legislation that is unlikely to be answered this week. On the Lowe’s development agreement, he says, “(W)e are heading for another raucous public debate over a development agreement. The Council will have to sort out what is the best course for the aquifer. It is unfortunate that companies and developers put the Council and the aquifer in such a position, but that is the reality. In my view, it is also a reality that there is no valid reason why this matter has to be decided now” . . . County to consider incentives . . . Travis County Commissioners are scheduled to approve a policy for stimulating job creation and economic development during today’s meeting. Also on the agenda is consideration of a request from Endeavor Real Estate Group for several million dollars in incentives for the Domain, which has already received a promise of $25 million in incentives from the City of Austin. At least one citizen will show up to argue against any tax gifts to Endeavor.co-owner of Jezebel on South Lamar, says small business owners are angry that such a project will be pulling customers away from local businesses with the assistance of local government. He will present a petition from local merchants opposing such incentives. Rodgers will also question promises Endeavor has made about the salaries retail salespersons will receive, among other things . . . Short notes from CAMPO board meeting . . . The Capital Area Metropolitan Planning Organization’s board bade farewell to Texas Department of Transportation Austin District Engineer Bill Garbade. Garbade, who has served on the CAMPO board for 16 years, is retiring this month. The group also welcomed Council Member Brewster McCracken . . . The Texas Department of Transportation provided an update to the CAMPO board on the $32 million Combined Transportation, Emergency and Communications Center at the former Mueller Airport site. The construction contract on the project was awarded in May 2000. The City of Austin, which will share the facility with TxDOT, Capital Metro and Travis County, expects to move into the facility on Oct. 10 . . . By-laws changes for CAMPO’s Transportation Policy Board will allow state elected officials to appoint proxies to the board. The proxy vote is allowed under a bill passed during the regular session. Rep. Terry Keel (R-Austin) told the group that Sen. Steve Ogden (R-Bryan) had threatened to file a bill to take elected state officials off the CAMPO board if the board would not agree to proxies. Only El Paso and Austin appoint elected state representatives and senators to the regional metropolitan planning organization.

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