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Six-year battle over South Congress Café deck continues

Friday, April 20, 2012 by Elizabeth Pagano

A six-year war over the deck at the South Congress Cafe continued last week at Planning Commission, with the neighborhood winning this round as the commission rejected the café’s argument over the need for more parking.


After years of litigation, owners of the cafe won a judgment against the city in November. As a result, the city paid $350,000 in court costs, and the court denied the city’s application to have the deck torn down.


The court found that the city had not used its normal processes when the previous director of Planning and Development Review rescinded approval of the site plan for the deck – despite the fact there is no provision in the city code for such an action.


Attorney Eric Taube, of Hohmann, Taube & Summers L.L.P. explained that the city was also told to reset the deadlines that were established in 2006 when the site development permit was originally issued.


Following the court case, the city put the plan through its normal process. This time, Director Greg Guernsey opted to suspend the site development permit on the same day it was issued in March.  A suspension does not negate approval of the plan, but rather stalls it until a solution or compromise is reached between the city and developers.


Guernsey determined that the requirement for on-site parking for people with disabilities was not waived. He explained that the deck was constructed without a permit, and that he did not consider it a preexisting condition which prevented parking necessitated by the construction of the deck.


“If you accept what happened, I could go out and build something, call it an existing condition, then take advantage of that after the fact,” said Guernsey. “I believe that the site plan was approved in error by staff, and that’s why I took the position that I did.”


George Zapalac of the Planning and Development Review Department noted that the property owner has the option of bringing the plan into compliance by removing a potion of the deck, which would allow for on-site parking.


The owners of the cafe disagreed and took their appeal to the Planning Commission, where it was rejected in a vote of 8-0. The decision cannot be appealed to City Council, though they can seek a variance from the Board of Adjustment.


“As contentious as relationships are between the businesses, the merchants on South Congress, and the residents of South Congress, this is one issue where we are all in agreement,” said Nikelle Meade, an attorney with Brown McCarroll who was representing Allen’s Boots.


“Everybody, everybody has been dealing and spending lots of time, lots of money and lots of energy on South Congress Cafe’s insistence that they have this expansion deck. It, for us, has been a real thorn in everyone’s side. We all believe and feel like South Congress Cafe, rather than trying to be a part of the solution and figure out how to deal with the situation we have in this area of not enough parking, they have just insisted, year after year after year of doing everything they can do to expand their facility without any parking at all,” said Meade.


Meade went on to say that she saw no reason to grant the cafe an exception to the code, and  that suspensions of site plans to correct an error in approval were nothing new.


“That happens all the time in this city. Trudy’s (owner of the café) is not new to this process. They know that happens in permitting,” said Meade, who said that the argument that they should be allowed to proceed with plans because someone made a mistake was “disingenuous.”


For his part, Taube also suspected the motivations of those who were opposed to the appeal.


“For the residents of Bouldin Creek, this is not an issue of whether off-site handicapped parking should be allowed or not. It never was… They don’t like the fact that people park in their neighborhood. This has never been about protecting the disabled citizens of Austin,” said Taube.

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