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Council, bypassing restrictive covenant, OKs Bouldin Creek rezoning

Wednesday, August 31, 2011 by Josh Rosenblatt

The age-old Austin issue of city zoning versus private restrictive covenants reared its head again at last week’s City Council meeting. At issue was a property located in a prime real estate spot just east of South Congress Avenue that for years has been home to nothing but a vacant church and a conditional use overlay dictating that the property can only be used for a condominium residential use.


Although the 1.54-acre site was zoned in 2006, there has been no development because of the state of the economy, according to Alice Glasco, agent for the developer.


Peter Barlin and SC Investors recently bought the property with an eye toward repurposing the existing building for office and retail space. In order to do that, the new owner had to ask Council to amend the conditional overlay on the property to allow for personal improvement service, financial services, food sales, general retail sales, and other similar uses on the property.


Without the amendment, said Glasco, the applicant will “have to let the building sit indefinitely until the market is ready for a condo project.” According to Glasco, the proposed project would require no changes to the exterior of the building, only remodeling of the interior to accommodate office use.


Both staff and the Planning Commission recommended the amendment, and the surrounding Bouldin Creek Neighborhood Association supports the project. However, Barlin is in a private restrictive covenant with the Bouldin Creek Neighborhood Association and all the property owners within 300 feet of his property, and all three parties have to sign off on any amendments to that covenant, including the one Barlin is requesting. 


Under the terms of the restrictive covenant, 75 percent of all property owners within 300 feet have to agree to an amendment, and as of yesterday, there were enough owners of nearby condominiums to prevent Barlin from repurposing his property.


According to attorney Jim Cameron of law firm Strasburger and Price, who is representing one of the condo owners, neighbors have been in talks with Barlin for some time about the amendment. Two weeks ago, he said, the two parties had come to a verbal understanding over the terms of the agreement. Barlin was then supposed to get them a written copy of that agreement by this past Monday. Instead, that document didn’t arrive until the day of the Council meeting.


Consequently, said Cameron, he and his clients had not had time to look over the documents to make sure they spoke to their concerns about height limitations, shielding on the top of the building, and the protection of certain amendment procedures in the restrictive covenant.


But Council Member Laura Morrison pointed out that an amendment to the conditional overlay would have no effect on the restrictive covenant, over which Council has no authority.


“I just want to understand why we need to hold up the zoning if (Barlin) can’t do what he wants to do,” Morrison asked Cameron. “You’ve got a strong negotiating point even with the zoning already in place. The zoning is no good to them if you still have the restrictive covenant.”


Cameron replied, “If we can work out the restriction then we’ll be okay with the zoning. But if it were not worked out then we would want to oppose the zoning. We thought we were going to have that done … and we just didn’t get the documents in time. So that’s the only reason we’re asking for the postponement.”


That explanation didn’t seem to satisfy anyone on the dais, including Mayor Pro Tem Sheryl Cole, who referenced Council tradition while making a motion to approve the applicant’s request.


“I understand the objections concerning the private restrictive covenant, but we’ve had a long policy of that being basically out of our purview, so I don’t see any reason to hold up this project,” said Cole.


Morrison asked Glasco why it had taken so long for the property owner to get the document to the neighbors.


“I’m not sure what happened with that,” replied Glasco. “We have several lawyers involved.”


“Ohh, that explains it,” said Morrison, a line that amused many in the chamber.


Council voted 6-0 in favor of the amendment, with Council Member Kathie Tovo abstaining.

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