Monday, July 18, 2016 by Elizabeth Pagano

‘Stealth venue’ gets caught in neighborhood’s radar

A note to Austin business owners: When seeking a late-hours permit, you might want to make sure that your social media doesn’t celebrate “great noise” as a positive attribute, particularly if your establishment is nestled between Bouldin Creek and Zilker neighborhoods.

Last week, members of the Planning Commission considered a Conditional Use Permit (CUP) that would allow Eberly, which is located at 615 South Lamar, to serve alcohol up until 2 a.m. Although the establishment already has a restaurant permit that allows it to remain open 24 hours without a CUP, the permit is required for serving alcohol between midnight and 2 a.m.

Planning commissioners granted the CUP in a vote of 7-2-2 with commissioners Patricia Seeger and Karen McGraw voting in opposition, commissioners Chito Vela and Michael Wilson abstaining, and commissioners Jeffrey Thompson and Nuria Zaragoza absent. However, after hearing more than an hour’s worth of opposition from nearby residents, commissioners also attached a number of conditions to the approval.

A lot of the opposition focused on suspicions that the restaurant was, in fact, a “stealth venue.”

Kimberly Kohlhaas lives on the bluff directly across the street from Eberly. She told commissioners that she can hear music from Auditorium Shores and ACL and cheers at Peter Pan Golf from inside her house. Given Eberly’s closer proximity and a rooftop deck proposed for the venue, she “had some concerns.” She noted that Eberly has registered as a bar on Facebook and also has adopted the slogan “History remembers those who make a great noise.”

“This feels to me like a wolf disguised as a little puppy,” said Kohlhaas. “And we’re living right across the street from it.”

Neighbors also presented a video of Daryl Kunik, who is one of the founders of Uchi and operates several nearby commercial properties. He spoke against the CUP and said his main issue is that it is “a very large building on a very small lot.”

“It’s a great-looking building, but when they decided to make it into a 13,000-square-foot restaurant, I had a lot of issues with it,” said Kunik, who added that a restaurant of that size is “very unusual.” For comparison’s sake, he said that Uchi is 3,100 square feet and the nearby Odd Duck is less than 3,000 square feet. He pointed out that the only restaurant that comes close to that size was Matt’s El Rancho, which falls short at just over 8,600 square feet (on a huge lot).

Kunik’s main concerns were parking and safety. However, he also asked the question raised several times throughout the hearing: “Is this really a restaurant?” The evidence, he said, pointed to it being an event venue and bar, as did the Facebook page and website.

Armbrust & Brown attorney Richard Suttle spoke on behalf of Eberly Restaurant. He explained that the compatibility standards were triggered by single-family homes that are across South Lamar, on a bluff behind a “head shop” and gas station.

To meet the parking requirements, the restaurant will also have some off-site parking at the Bicycle Sport Shop and a pawn shop. Because some of those spaces are open only at night, the upper level of the restaurant will be closed during the day and will not open until 7 p.m.

Suttle noted that, because Eberly is restricted from opening its roof deck until 7 p.m. due to the parking arrangement, imposing the neighborhood’s wish to have it close at 10 p.m. was a little unfair and might not be workable.

Instead, commissioners agreed to the CUP with a number of conditions designed to mitigate the impact Eberly would have on the surrounding area. Specifically, the restaurant must agree to close the roof deck by midnight and have no amplified outdoor sound, no amplified indoor sound, no un-amplified outdoor sound that is greater than 70 decibels at the property line and no outdoor events that require temporary permits at all.

As a relevant historical note, Zilker Neighborhood Association member Lorraine Atherton told the commission that the request was not the neighborhood association’s “first rodeo.” That rodeo, she explained, was Shady Grove’s outdoor concerts, which led to the city’s current sound ordinance and outdoor music venue permitting regulations.

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Key Players & Topics In This Article

Bouldin Creek Neighborhood Association: Covers the area, roughly, south of Lady Bird Lake, north of Oltorf Street, west of South Congress Avenue and east of South Lamar Boulevard.

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.

South Austin: South Austin is, very roughly, the portion of Austin south of Lady Bird Lake.

Zilker Neighborhood Association: Zilker is a neighborhood in south central Austin, Texas. It extends south of Lady Bird Lake, approximately bounded by the Union Pacific Railway to the southeast/south, Barton Skyway to the south, Rabb Road and Robert E Lee Road to the west and Lady Bird Lake to the north.

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