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Elizabeth Pagano is the editor of the Austin Monitor.
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Court decision spells doom for East Side Tubing enterprise
Friday, September 13, 2013 by Elizabeth Pagano
A loss in court may prove the final straw for a nascent East Austin tubing business on the Colorado River between Longhorn Dam and the Montopolis Bridge.
“I’m afraid that it’s going to mess up a good thing, but I think the city is within their rights to mess it up,” said Travis County Court-at-Law Judge David Phillips, who presided over the case.
Phillips said that many of the problems that East Side Tubes owner Dan Walker ran up against were just part of doing business in the city, and he couldn’t find the ordinances applied “arbitrary or irrational.” In the end, the judge denied the temporary injunction sought by East Side Tubes.
When asked what his next step was, Walker said that he would probably have to close his business.
The temporary injunction against the city was a bid to keep the business open while Walker tried to figure out the increasingly-complicated city process that threatened his kayak and tube rental shop.
The business was seeking an injunction against the city that would allow them to keep their business open while they sorted the myriad problems that have arisen over the past few months. In their petition against the city, East Side Tubes alleged that the city was out-of-bounds in shutting down the trail to the water, and that action had already caused the loss of more than $50,000 for the business.
The shop has been open for about two years at 4701 Red Bluff Road. But it wasn’t until Walker started offering tube rentals and an accompanying shuttle that Walker drew the ire of neighbors on Red Bluff.
A complaint to 311 launched an inspection by code compliance. That inspection ultimately shut down the walkway to the water, which was deemed unsafe by the city. Though Walker notes that more than 20,000 people have used the path without incident, the city’s Code Enforcement Division determined that it was a hazard due to insufficiently stable railings, uneven steps and loose gravel (among other things.)
Jonathan Josephson, who is a Senior Inspector with the city’s Code Compliance Department, said it was a miracle that no one had gotten hurt. He objected to comparisons between the path and a trail or park path, noting it had been illegally improved for commercial use.
“This is not a wilderness trail,” said Josephson. “It’s been developed… This has the expectation of a commercial use. Thus, anybody using it has the expectation they will be taken care of as a commercial use. The expectation is that the owner of that will maintain it and build it according to a minimum set of safety codes.”
The city closed the walkway in mid-August and, with no other access to the water, effectively closed down Walker’s business along with it. To further complicate things, it is unclear who owns the land that the walkway is built upon. While that remains cloudy, no building permit can be issued that would let Walker make the improvements that the city says need to be made.
Some last-minute scrambling by city legal produced inconclusive evidence that the land is city property, but that has yet to be verified.
It’s also only part of Walker’s trouble.
“I could probably negotiate this path and get down safely,” said Phillips. “But whether I could negotiate this is not really the test. And if that were the only problem it might compel a different outcome.”
In addition to the walkway conundrum, the business also lacks a proper Certificate of Occupancy. Right now it is classified as a warehouse and in order to be legal the property must have a CO that identifies it as a retail establishment. This requires fixes to the current parking situation among other details.
And, in a separate process, the Parks and Recreation Department has initiated a code amendment that would clearly ban tubes on the section of the river between the Longhorn Dam and the Montopolis Bridge – which is the current route used by Walker.
Though that process is currently stalled at the Parks and Recreation Board (where some members worried that it was unfairly targeting one business,) it is not off the table.
“It seems like the plaintiff in this case had a great business idea… but he had some work to do before he opened it up,” said Phillips. “The government gives the government a lot of discretion, and this is an area that falls in the government’s discretion.”
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