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Council moves forward with zoning under ‘Byzantine’ Land Development Code

Thursday, September 26, 2019 by Jo Clifton

The new owners of a former drive-thru bank at 1900 W. William Cannon Drive were able to get part of what they were seeking on first reading of their zoning case before Council last week. After much conversation, Council voted unanimously to grant Neighborhood Commercial-Neighborhood Plan (LR-NP).

The applicants, Cody Carr and Grady Field, were seeking a higher zoning category of GR, known as Community Commercial, in order to operate an existing drive-thru.

Now it is likely that they will have to finish the zoning process at Council and then go to the Planning Commission to get the permit they need to operate the drive-thru for a planned coffee shop.

For Council Member Jimmy Flannigan, who tried to give the applicants exactly what they were seeking, the case is an example of how zoning becomes more complicated by the city’s “broken Land Development Code and rezoning process.” Flannigan told the Austin Monitor via email, “It’s more of a byzantine story of city and legal process than a development fight.”

As Jerry Rusthoven, director of the Planning and Zoning Department, told Council, “Staff did not recommend GR (Community Commercial) zoning,” which is what the applicants were seeking, “since it was at the intersection of a collector street and an arterial, instead of at the intersection of two arterials. The main difference between the two, between the staff recommendation and applicant’s request, is whether the drive-thru would require a conditional use permit or whether it would be allowed by right.”

The property, which sits on William Cannon near its intersection with Manchaca Road, had been zoned Limited Office (LO) and Family Residence (SF-3) under the neighborhood plan. The applicants were seeking Community Commercial (GR) with a conditional overlay under the neighborhood plan. Under Community Commercial, they would have been able to activate the drive-thru without seeking a conditional use permit from the Planning Commission.

But staff and the Planning Commission had recommended Neighborhood Commercial-Neighborhood Plan. Under that scenario, the applicants will need to go to the commission for the permit.

Neighbors seemed mostly concerned about traffic, especially the possibility that the developers would add a driveway onto Cannonleague Drive. However, Carr told Council, “We are happy to not have an access point there. … The really exciting part of this project is we’re going to maintain the site currently as it is and sort of remodel it and adaptively reuse it.” A staff member from Austin Transportation also said no driveway would be permitted onto the side street.

The property is in Council Member Ann Kitchen’s district and she made a motion to approve the zoning recommended by staff and the Planning Commission.

However, Flannigan, who frequently opposes conditional overlays, found himself in the odd position of arguing in favor of GR zoning with a conditional overlay. With that zoning, the applicants could do what they want to do. The overlay would have allowed Carr and his partner to use the drive-thru without going through the Planning Commission process.

The irony of the situation was not lost on Flannigan or the rest of the Council. As his colleagues started laughing, Flannigan joined them, asking, “Am I understanding this moment correctly?”

Mayor Steve Adler responded, “You are.”

Kitchen suggested that he could just “let it go.” Flannigan responded, “yes, Council Member, I’m aware of that as an option.”

He added, “I don’t know why we would kind of custom-build a zone for this when it’s in an area that’s appropriate for GR.” A long conversation later, it became clear that they could not legally do what Flannigan was proposing because the Land Development Code rules would not allow Council to grant a more intense zoning classification than the one advertised in public notices.

As they finished the case, Adler questioned whether the applicants could have a drive-thru on a street like William Cannon, designated as a transit corridor. “I’m not sure we want to have drive-thrus. I would prefer to not have drive-thrus in those situations to help with mobility. Then we have the other question about what we’re allowed to do and not allowed to do.”

There was no answer last week, but Kate Clark, who handled the case for the Planning and Zoning Department, told the Monitor later that city code has no prohibition related to drive-thrus and transit corridors.

Map courtesy of the city of Austin.

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