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Plan to help small business worries South Austin neighbors

Monday, October 13, 2003 by

Commission trying to make it easier for restaurants to operate

The Planning Commission has signed off on a new definition of “Restaurant Limited,” even though commissioners clearly were split on the proposal to limit the hours of operation for small businesses.

Extending the definition of “Restaurant Limited” is intended to spur new businesses, an outgrowth of the Mayor’s Task Force for Economic Development. The traditional “Restaurant Limited” is a rarely used zoning category because it fails to provide the option of takeout food. Expanding the definition of “Restaurant Limited” will provide for takeout food, as well as an option to put those restaurants on neighborhood commercial land, known as “LR” zoning.

To make it work, city staff has proposed collapsing the definition of “fast food” and “Limited Restaurant” into one definition: “Limited Restaurant.” These limited restaurants also can be placed on neighborhood commercial, or LR zoned, land. That neighborhood commercial category is a transitional category, usually next to residential neighborhoods.

Manager Greg Guernsey expects this to have a significant impact on small business development. The city has 563 parcels of “LR” zoned land that could accommodate the newly defined limited-service restaurants. Guernsey said could think of three restaurateurs who would be interested in developing limited-service restaurants on LR land.

Commissioner Chris Riley asked whether the new definition, and its heavier burden of accompanying Conditional Use Permits (CUPs), would actually serve the goal of making it easier for small restaurants to do business in Austin. Guernsey said the new definition—even limited under the revised definition—would be a boon to restaurant developers.

“We have had so many people come to our offices asking to operate a restaurant,” Guernsey said. “Even as it’s recommended, it still serves the interests of small business.”

The Planning Commission’s goal was balancing increased development with neighborhood interests. To make it work, Conditional Use Permits would be triggered for extended hours, floor space of over 5,000 square feet and drive-through service. Outside seating space would be limited to no more than 50 percent of indoor space. Alcohol sales and bringing alcohol onto the site would be prohibited under this limited restaurant definition.

Subcommittee Chair Maggie Armstrong said the new definition of Limited Restaurant was intended to encourage business but also provide safeguards under special circumstances. Conditional Use Permits appeared to be a good compromise.

“I think it’s important to open the door a bit to help small businesses, but in cases where this zoning and neighborhoods are right next to each other, we owe the neighborhoods some consideration . . .” Armstrong said.

Hours of operation were an issue at the Codes and Ordinances subcommittee and the Planning Commission as a whole. Some commissioners, like Michael Casias, said a CUP is an onerous burden for a small restaurant owner. Others, like Dave Sullivan, would like to see either “performance based” zoning or the use of the noise ordinance to control restaurant problems. Commissioner Cynthia Medlin, on the other hand, argued in favor of neighborhoods, saying it was important to recognize the impact of noise, traffic and lights when restaurants and houses are located side-by-side.

Assistant City Attorney Martha Terry told commissioners it would be difficult to use a criminal code, like the noise ordinance, as a zoning condition. She recommended, instead, that the city use CUPs and jerk those permits for compliance failure.

The only real public input on this new definition of Limited Restaurant has come from South Austin neighborhoods opposed to El Taquito on Riverside Drive. Neighbors have not warmly greeted this new neighbor, complaining of the late night hours, loud music and alcohol consumption on the premises. Neighbors of the El Taquito filed suit last year against the City of Austin, the Board of Adjustment and Eloy Saenz, the owner of the business. Saenz was given administrative permission to upgrade his mobile food cart into a “Restaurant-Limited,” under the current definition. (See In Fact Daily, October 25, 2002. )

Last week, El Taquito’s representative Jeffrey Howard was on hand to argue against the CUPs, saying that 90 percent of El Taquito’s customers are late-night customers who come on the property after 10pm A limitation on hours would hurt El Taquito and other small businesses throughout the city, Howard argued.

Howard said the restrictions being proposed by the new definition would impact not only restaurants like El Taquito, but also coffee shops in West Campus and sandwich shops and ice cream shops in other neighborhoods.

To try to get to some resolution – and a possible unanimous vote – Sullivan took the opportunity to separate the hours issue from the Limited Restaurant definition. That split the commission on a 4-4 vote, with Commissioners Armstrong, Niyanta Spelman, Riley and Medlin voting against the Limited Restaurant definition, minus the hours of operation. The commission has one vacancy.

Riley said he wanted to be clear that he did not oppose late-hour restaurants, but he did think the Conditional Use Permits opened up dialogue between neighborhoods and restaurants.

When the commissioners got to a final vote, Chair Lydia Ortiz could not support the definition with the limitation on hours of operation. She called the limitation “highly restrictive.” That made the vote 7-1. Ortiz said she thought the ordinance was being tailored around the El Taquito issue.

“These restrictions really are tailored around one specific neighborhood and their specific complaints about one specific business,” Ortiz said. “It doesn’t quite match up with the takeout issue. While I understand there is a need to balance the needs of the neighborhoods, I don’t believe these restrictions really match up with a new entitlement.”

If the City Council approves the new Limited Restaurant definition, El Taquito would be allowed to continue its current hours of operation as a non-conforming use.

Sign ordinance debate to continue

Plans to update the city’s Sign Ordinance are failing to meet the expectations of neighborhood and beautification activists, who say the new code language falls short of what is necessary to curb the spread of bandit signs on utility poles and in roadway medians around the city. They’re asking for explicit permission from the city to remove those signs on public property, while city staff and legal council are hesitant to recommend such language in the ordinance because of concerns about liability.

The entire Sign Ordinance has been reviewed this year after a lawsuit last year put a stop to the “Great City Sign Off.” While the federal judge hearing the case eventually dismissed the lawsuit, he did suggest that Austin review its ordinances. That process took several months and involved input from a variety of stakeholder groups including neighborhood associations and local homebuilders. “The proposed amendment simply clarifies existing regulations that pertain to signs that are visible from the street, making the regulations easier to understand by the general public,” Cora Wright with the city’s Neighborhood Planning and Zoning Department told Council members at last week’s meeting. And while Wright said they had attempted to take all stakeholder input into account when drafting the revisions, in some cases the suggestions from different groups were incompatible. “There are competing interests as to what the city should allow or disallow in the public right-of-way,” she said.

Neighborhood activists are pressing the Council to allow citizens to remove signs in the right-of-way and to increase the penalties for placing bandit signs on public property. The city did offer a training program last year for volunteer Sign Rangers, along with the use of city vehicles, but that program was placed on hold following the lawsuit over the city’s sign regulations. “Give citizens the power to abate the illegal signs,” said Skip Cameron. “Define them as litter like other cities do . . . allow anyone to remove them.” Cameron pointed to ordinances in both Houston and Dallas allowing citizens to remove bandit signs. “Other cities tell us that signs in the right-of-way are litter . . . It empowers the citizens and it will save you millions of dollars in tight budget times.” He was joined by Sara Andre, a representative of Scenic Austin, who said her group supported language allowing the unsupervised removal of signs. “We support the concept of citizen pick up, and ask staff to coordinate ordinances and programs fair to everyone,” she said. “

Cameron also pointed to other cities which used escalating fines for repeat violators of the sign ordinance, which tended to be businesses. “Prosecute the repeat offenders in civil court, not municipal court,” he said. “You get faster, larger aggregated cases and more severe penalties through that route.” Other beautification advocates were less diplomatic in their characterization of most of the bandit signs. “Typically the bandit signs are not lost puppy signs or garage sale signs, they are actually scams and other illegal types of advertisements,” said John Moore.“A lot of these are advertising straight-out scams having to do with home sales through creative buying or lending, health insurance scams, work-from-home scams, drug and health insurance scams.” A further punishment used in other cities, Cameron noted, was forfeiture of signs placed illegally in the right-of-way. That would drive up the cost of advertising using the signs, he said, which in some cases cost less than $1 each.

City staff members want to make sure that any volunteers out removing signs are properly trained in order to avoid the removal of signs on private property or those that do not violate the ordinance. The proposed changes to the city’s ordinance also include language adopted from House Bill 212, authored by State Rep. Terry Keel in the last regular session of the legislature, containing specific provisions for political signs.

The Council passed the staff-recommended changes on first reading, but also directed staff to draft further amendments based on citizens’ concerns. “I’m interested in the amendment . . . about forfeiting the property if you put it in the right-of-way,” said Council Member Daryl Slusher. “I’m also interested in the one about declaring them litter.” But those amendments may not pass unanimously on second and third readings. Council Member Brewster McCracken is concerned about the possibility of abuse if volunteers are allowed to work unsupervised. “My concern is that we have an unregulated process where people have a blank check to go take down signs. They can say, ‘I thought it was in the right of way,’ and they could be somewhat personally blameless,” he said. “I do feel that it’s pretty important that we have some control over this process.”

©2003 In Fact News, Inc. All rights reserved

Stakeholder meeting . . . The city has invited stakeholders for a briefing on the city-county joint subdivision code from 2-4pm today at One Texas Center, Room 325. Employees of both jurisdictions have worked hard to get the joint code done. State law requires adoption by both prior to January 1, 2004. The Zoning and Platting Commission will hear about the new code Tuesday night and the Planning Commission’s codes and ordinances subcommittee is scheduled for a briefing at noon Wednesday. On Wednesday night, the Environmental Board will hear about it. The matter is slated for Council action on November 20 and for action by the Commissioners Court November 18 . . . BOA meets tonight. . . The Sign Review Board and Board of Adjustment begin meeting at 5:30pm at the usual spot. The meeting is scheduled to be telecast by Channel 6 . . . Colorado Street to change . . . Traffic on Colorado between W. Cesar Chavez and W. 4th Street will revert to one-way southbound on Saturday. Crews will install new directional signs . . . Fundraiser tonight . . . Rep. Elliott Naishtat will have a fundraiser from 5:00-7:30pm tonight at Scholz’s, 1607 San Jacinto . . . Roy G. Guererro Park to officially open . . . This Saturday, various community organizations will join the City of Austin for the grand opening of Roy G. Guerrero Colorado River Park. Festivities are scheduled from 9am-5pm. Those joining in the celebration include the Austin Parks Foundation, PODER and the Lady Bird Johnson Wildflower Center. Admission is free to Austin’s newest 363-acre urban park. Sponsors include: Austin Energy, KGSR, LCRA, Austin Parks and Recreation Department and La Pena. There will be many activities, such as planting trees, creating a community garden, a creative pumpkin-carving contest for kids, live music and dancers, as well as talks and walks through the park For a list of activities and presenters go to: http://www.wildflower.org/?nd=festival

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