Monday, July 20, 2015 by Elizabeth Pagano

Mistakes add more twists to East Austin church case

Most of the Planning Commissioners were attending their first meeting last week. After initial introductions, they quickly found themselves in the deep end, when they were asked to consider the fate of East Austin’s Greater Mt. Zion Baptist Church.

The case is fairly complicated on its own, and staff errors on church properties at both 1800 and 1801 Pennsylvania Ave. have made things even trickier for the new commission.

At last month’s meeting, commissioners voted 5-3 to remove a covenant restricting use of the church at 1801 Pennsylvania Ave. – otherwise zoned for general office (GO) use – to religious assembly only. Given plans to move to a new location, church staff hoped that the property would be easier to sell without the restrictive covenant.

Planning and Zoning Department city planner Heather Chaffin said that according to her understanding at the time of the hearing, GO uses at 1801 Pennsylvania Ave. would be limited to “civic” even in the absence of the covenant. However, it turns out that she was mistaken. Without the restrictive covenant, any GO uses are allowed on the land.

Because of the staff error, which played a role in the Planning Commission’s reasoning for lifting the restrictive covenant in the first place, the commission will consider rescinding its decision to remove the covenant at its next meeting, on July 28.

At the same meeting, commissioners will consider whether to initiate the process of rezoning the property. Neighbors have argued that GO zoning without the limiting restrictive covenant is not compatible with the surrounding neighborhood. Because the church is planning to sell the property, it has declined to initiate the rezoning itself. Instead, commissioners Nuria Zaragoza and Jean Stevens – both returning commissioners who were at the previous meeting – put rezoning on the agenda for reconsideration.

That rezoning initiation could have taken place at the new commission’s first meeting. But the odd circumstances and complicated nature of the case made it difficult for some freshmen commissioners to proceed without the context of having participated in the previous meeting. Though a city initiation of rezoning does not call for a public hearing, several commissioners indicated that they would like to hear from the church and neighbors before moving forward, even though their ultimate decision on rezoning wouldn’t occur for months.

“I think this is just too hard for a group of people that weren’t there on the original night,” said Zaragoza. “In my mind, it’s going to be a long process, and pushing it off for another meeting was not necessary. But I am seeing now that it is indeed necessary for everyone to be comfortable with it.

“It’s going to be long anyway. It’s just going to be a little longer now,” Zaragoza concluded.

Commissioners were originally going to consider rezoning the property at 1800 Pennsylvania Ave., which is adjacent to the church building, as well. But, subsequent to lifting the restrictive covenant, staff discovered another error. Though they believed that property was also zoned GO at the time of the hearing, that is not the case. The property is actually single-family (SF-3.) As a result, commissioners opted not to move forward with initiating rezoning on that tract, as it already has zoning in line with what they would have considered.

“It’s been incorrectly designated on the zoning map since sometime in the late ’80s – we don’t even know when,” said Chaffin.

Commissioners will now consider whether to rezone the property on which the church sits as multifamily (MF-4), limiting the number of units to 11 and the density to MF-1.

Chair Stephen Oliver acknowledged that it was an interesting case for the new commission.

“This is not a normal case for us. We occasionally get some really unique ones, this being definitely in line with that,” said Oliver. “We don’t usually initiate zoning cases – that doesn’t mean we can’t.

“As a Planning Commission, we have a proactive role, not just a reactive role in this city,” Oliver continued. “I think that every site has an appropriate zoning for it. … We shouldn’t leave conditions, if we don’t have to, for when a developer comes forward to fix a problem that maybe we created by removing the restrictive covenant, by trying to help the church out when it was in a bind.”

As indicated by Oliver’s words, the case promises to raise some interesting questions for the new commission right off the bat. Even the preliminary discussion to postpone addressed the idea that downzoning a property could be considered a taking if initiated by the city, and that question remains unanswered for the time being.

Public Works Department Director Howard Lazarus, who is an ex-officio member of the commission, cautioned that initiating rezoning as proposed could “shortcut the discussion of the public benefit” because it was removed from any development plans.

Commissioners will consider an action to rescind the removal of the restrictive covenant and to rezone 1801 Pennsylvania Ave. on July 28. If they choose to move forward with initiating rezoning, it will likely be several months before the rezoning returns to them for a recommendation.

Image courtesy of the city of Austin.

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Key Players & Topics In This Article

City of Austin Planning Commission: This commission addresses issues of land use as assigned to it by Austin's City Code. These include the abilities "[t]o make and amend a master plan, recommend approval or disapproval of proposed zoning changes and control land subdivision within neighborhood planning areas and submit, annually, a list of recommended capital improvements." It has sovereign authority, or the right to make final decisions on certain cases.

East Austin: East Austin is the quadrant of Austin that, generally speaking, is east of IH-35.

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