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Council rejects restaurant’s request to upzone for alcohol sales

Friday, May 14, 2010 by Kimberly Reeves

Council members clearly disagreed Thursday with the notion that a bad economy was justification for upzoning an East Austin restaurant.


The owners of Los Comales, Merced and Graciela Benitez, had requested a rezoning for their restaurant from food service establishment to cocktail lounge, roughly a zoning change of CS-MU-CO-NP to CS-1-MU-NP. It would be, as agent Roger Chan noted, an acknowledgement that a bad economy had caused the existing restaurant’s liquor sales to overtake food purchases.


Chan had promised to agree to any covenant necessary to please the neighborhood, with the conditions tied to a conditional use. The property is located in the 2100 block of East Seventh Street.


That use, however, would be a departure from the current neighborhood plan, according to homeowner David Thomas, who spoke on behalf of the Blackshear- Prospect Hill Neighborhood, as well as the Organization of Central East Austin Neighborhoods, or OCEAN.


“We want to reiterate our opposition to zoning changes,” Thomas told Council at Thursday’s zoning hearing. “The neighborhood plan of 2001 was quite specific in not wanting CS-1 zoning on that corridor.”


Neighbors also considered the owner’s efforts to launch the property for non-restaurant uses, without informing the neighborhood, to be deceptive. While the owner had implied very little had changed, much would in the long term, Thomas said.


“We’re not confident the business model of the restaurant will not change with the zoning change,” Thomas said.


Council preferred a covenant that would downzone with new ownership. But as Greg Guernsey, director of Neighborhood Planning and Zoning Department told Council during questioning, the rights of zoning go with the property and not ownership. Covenants did little to change that.


Chan’s argument was that the new zoning would bring the zoning category into compliance with the property’s actual uses. In a bad economy, the sale of food had dipped less than 50 percent, making alcohol the dominant aspect of the establishment. A zoning change would simply memorialize that, Chan said.


What the zoning change would do would simply bring the establishment into compliance with changes. Council Member Randi Shade, however, made sure the point was clarified that the changes came from the business and not from any new prescribed changes to the zoning code.


Chan was forced to agree.


In his rebuttal after Thomas’ comments, Chan noted that the businesses most affected, those within 500 feet, had signed a petition in support of the zoning change. And he noted Los Comales had no complaints from neighbors in terms of how business had been conducted.


During Council discussion, Council Member Mike Martinez said he had hoped more room had existed for consensus between the two sides with the use of a private restrictive covenant. That did not appear to be so. Martinez said compromise had worked in favor of other businesses; it did not appear to be the case this time.


Martinez moved for approval of staff recommendation, which was denial of the zoning change. Council Member Sheryl Cole was the second. The zoning change was denied unanimously.

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