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Disgruntled neighbors sue Board of Adjustment

Wednesday, May 26, 2004 by

Toomey Road, Barton Springs businesses say parking variance wrongly decided

Neighbors of the Casa de Luz and Parkside school in South Austin have sued the Board of Adjustment (BOA) over a decision the panel made allowing the restaurant and private grade school to operate without the parking spaces normally required under city regulations. The BOA granted a variance that allows the school and restaurant to provide only two on-site parking spaces and 47 off-site, a considerable reduction from the 60 required by city regulations. (See In Fact Daily, April 15, 2004.) Neighboring businesses asked the board for a rehearing earlier this month, but that request was rejected. (See In Fact Daily, May 13, 2004.)

Nikelle Meade of Brown McCarroll is the attorney for Toomey Road Partners, Ltd., Green Mesquite, Ltd. and three Limestone Properties partnerships alleging that the BOA made the wrong decision. According to the suit, which was filed late last week, the Shambala Corporation, which operates the businesses at 1701 Toomey Road, calculated the number of parking spaces needed on incorrect square footage. In addition, the lawsuit says, the corporation represented that the property was only being used for personal improvement services, private primary education, restaurant general, general retail sales convenience, warehousing and distribution and administrative and business offices. “The actual uses of the property also include public rental space for events, concerts and seminars and a cooking school,” say the plaintiffs, but Shambala Corporation to date has not submitted plans to the City that accurately reflect its floor plan and uses. When the actual floor plan and uses are considered, Applicant’s actual number of off-street parking spaces required is at or around one hundred and three (103) spaces.”

In addition, the neighbors allege that the BOA decision was based in part on the fact that many of those patronizing the restaurant and other businesses bike to the property. However, the suit says that the facility has no bicycle parking spaces. In addition, the neighbors say the businesses have no on-site loading space, which forces delivery trucks to park on the street, blocking neighbors’ driveways and creating a safety hazard.

Green Mesquite Bar-B-Q Restaurant on Barton Springs Road complains in the petition that patrons of Casa de Luz and other Shambala businesses “routinely illegally park in the restaurant parking spaces when attending functions at” Shambala businesses. For that reason, they are required to monitor their own parking spaces. In addition, the neighbors charge that the Shambala property had sufficient parking until the owners added more buildings and improvements, eliminating “at least 40 parking spaces.” The variance was based on a claim of hardship, but a hardship cannot be one that results from acts of the person claiming the hardship, the lawsuit says. The neighbors claim that Casa de Luz’s owners began construction of those improvements without obtaining the appropriate city permits. Had they done so, the lawsuit says, they would have learned that the property—minus the parking spaces—would no longer comply with City Code.

On Monday, District Judge Margaret Cooper granted the writ of certiorari, which entitles the plaintiffs to gain access to all of the city’s files relating to the variance request. The city settles many lawsuits, but this case may not be one of them. Because the Board of Adjustment is a quasi-judicial body, a majority of the board would have to agree that they made a mistake when the variance was granted. The City of Austin could not unilaterally decide to settle, which would mean that a judge would have to rule on the legality of the variance.

Work begins on setting up health care district

At separate meetings on Tuesday, city and county leaders reiterated their commitment to launch the Travis County Hospital District—approved by voters on May 15—as quickly as possible.

The clock is ticking. As of yesterday, neither the city nor the county may collect tax dollars for health care services. Whatever is budgeted by the city or county must carry this new district through the end of the fiscal year. To create a countywide hospital district, a budget must be passed and a tax rate set by October. Otherwise, the Travis County Hospital District will not be entitled to collect tax dollars next year. Those tax dollars pay for all of the structure that most people take for granted, from appointing a board of directors to staffing the medical side to handling the mundane day-to-day activities such as setting up checking accounts and contracting for tax collection.

City staff has already presented county commissioners with a basic term sheet, intended to outline the issues that must be considered in creating the district. Trish Young, CEO of the city’s Community Care Services Department, calls it the “nuts and bolts” needed to create any taxing entity.

The county will outline its own list of issues at next week’s Commissioners Court meeting. To create this district, Austin and Travis County must enter into what is certainly the most significant interlocal agreement ever created between the two jurisdictions.

“The city is going to continue to operate the services,” said Young. “We’ve been spending time in the last few months, thinking of anything we must do to get the district created.”

The city holds most of the significant assets that must be passed on to the hospital district. The county, however, will carry the authority to approve a budget and a tax rate. Tuesday morning, Commissioner Karen Sonleitner urged her colleagues on Commissioners Court to move forward decisively with the creation of the hospital district.

“We are expected to take the lead and have the full involvement of the hospital district,” Sonleitner said. “We are now the major player in this.”

Commissioner Margaret Gomez said she took the setting of any tax rate seriously. “I feel an enormous duty,” she said.

County commissioners and the Council’s Healthcare subcommittee took separate but related actions yesterday. Commissioners agreed to roll the district steering committee into a citizens advisory committee, with various subcommittees advising the city and county on creation issues. The Council subcommittee also gave the change a nod.

The county appointed a seven-member transition team: County Attorney David Escamilla, County Auditor Susan Spataro, Planning and Budget Director Christian Smith, County Judge Sam Biscoe,Sonleitner, Commissioner Aide Barbara Cilley and Health and Human Services Executive Manager Stephen Williams. That team is expecting to receive its charge next week.

Williams, possibly one of the more crucial members of the county team, will soon depart Travis County to head the City of Houston’s Health Department. He will hand off transition duties to his successor. His city counterparts on the hospital district issue, however, have been actively involved in the planning of the hospital district.

For its part, the City’s Healthcare Subcommittee has named Mayor Pro Tem Jackie Goodman and Council Member Betty Dunkerley to negotiate on behalf of the city.

County commissioners considered a number of issues in executive session on Tuesday: the process for selection of the board of managers; a policy on what constitutes conflict of interest; designation of county employees to perform district duties; and a process for calculating how those employees will be paid for performing district duties.

The county also will have to deal with the gap in hospital district funding. While the tax rate needs to be set by October, tax dollars won’t flow in until early next year. Young acknowledged that funding was an issue both the county and city would have to consider.

Today’s meetings . . . The board of the Central Texas Regional Mobility Authority is scheduled to meet in the LCRA Board Room at 9am today. They will hear a number of briefings and could decide whom to hire to be the authority’s Chief Operations Officer . . . Council Commissioners to meet . . . The joint Austin City Council/Travis County Commissioner’s Court subcommittee for the agreement on subdivision platting in the city’s ETJ will meet from 10:30am-noon in City Hall Room 304 . . . The Design Commission is having a special called meeting at 11:30am in the 3rd floor conference room of the San Jacinto Towers. The agenda includes a joint meeting with the Saltillo Community Advisory Group . . . Historic interest groups to meet . . . Groups representing Brush Square and the Dickinson House will be meeting this week to work through more issues surrounding Brush Square, Commissioner Dan Leary told the Historic Landmark Commission. One of the current questions of interest is parking at Brush Square. The fire station next door does not want to share a parking lot or give up parking located between Brush Square and the fire station . . . Rainey Street argument ongoing . . . The Historic Landmark Commission intends to weigh in on the Rainey Street issue, with preservation of the historic district their chief concern. On the other hand, the Downtown Commission has recommended dense redevelopment for the area. HLC will forward its recommendations to the Council and City Manager Toby Futrell, among others . . . Zoning battle returns to City Council . . . The battle over 1204 Travis Heights will be on the agenda on Thursday at the Council. The Historic Landmark Commission and the neighborhood want historic designation. Historic Preservation Officer Steve Sadowsky and the Planning Commission recommended against it. The case was triggered by the owner’s plan to tear down the bungalow on the site and put two homes on the lot . . . Next month at Council . . . A total of 14 cases for historic zoning of various homes will be on the City Council agenda for June 24. Some were postponed from earlier consideration. Others are located on Juniper and Olive streets, where the Austin Redevelopment Authority is redeveloping land. Since homeowners are backing the designations, the cases will likely be approved on consent. Sadowsky said he would like the cases done before the Council’s July break.

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