Another Northcross update: Lincoln wins the conditional-use argument

The judge has ruled that Wal-Mart's proposed garden center "may qualify as an 'accessory' use."  This means that the site plan did not require a conditional-use permit.

In other words, the site plan did not require a public hearing and Planning Commission approval.

The remaining claims are going to trial beginning Tuesday.

I've argued before that the conditional-use argument was the most important one.  Not necessarily from a legal standpoint, but because it was the only basis for the widely-bandied claim that the neighborhoods were entitled to a public hearing and community review.  RG4N has other claims -- City staff allegedly failed to enforce the tree ordinance, perform an independent traffic analysis, or enforce a drainage note on a plat map.  Whatever the legal merits of these claims, though, they aren't claims that there should have been a public hearing.

In case you're wondering, I deliberately have not handicapped the remaining claims.  They all allege, at bottom, that City staff failed to give the site plan the review mandated by City ordinances.  Given the contentiousness of the site plan review, not to mention the public scrutiny it got, I find it hard to believe that staff cut corners.  Still, these claims ultimately depend on evidence.  I'm not privy to the evidence, so I don't have any special insight.  (Not that I ever do . . .)

I'll be at a hearing of my own out of town on Tuesday, so I'll miss the fireworks.

Postscript:  RG4N has issued a statement claiming that "[t]he ruling on ANA's motion does not affect a claim RG4N made about the proposed garden center . . . ."  Now Judge Cooper did not just deny ANA's motion, she granted Lincoln's motion.  She has ruled that a garden center "may be an accessory use."  RG4N may not technically have been a party to the partial judgment motions, but as a practical matter, this legal conclusion disposes of RG4N's argument that a garden center cannot be an accessory use.  (The trial court certainly will have discretion to revisit Judge Cooper's ruling, but I will be surprised if it does given that Judge Cooper sat through one and a half hours of argument and took a week to rule.)   

Thus I've been trying to figure out what RG4N is talking about.  Here's what I've come up with: 

ANA argued that a garden center could not be an accessory use because it is a "conditional use" in a GR district, and only "prohibited uses" can be accessory uses.  Judge Cooper (rightly, in my opinion) rejected that argument.

Even if a garden center may be an accessory use, though, there are still a number of criteria it must satisfy.   I've discussed those before (scroll down to "Is the Wal-Mart garden center an accessory use?").  As I parse the ordinance, there are six distinct criteria.   But I didn't think then that anyone could seriously dispute that the garden center satisfies all six, particularly when you factor in a number of admissions RG4N made in its petition.  In fact, I thought it so unlikely that I predicted the "conditional use vs prohibited use" argument that ANA made would be the only one they would even try to make.

Apparently I was wrong.  RG4N evidently intends to dispute that the Wal-Mart garden center would be an "incidental" use, or one of the other criteria.  Either that, or they intend to tell the trial judge that they get another bite at the apple because they weren't a party to ANA's motion.  I don't think the latter position would sit very well with the trial court.  But armchair analysis can be pretty murky sometimes.  We'll just have to wait and see.

RG4N is correct that it has three other complaints (trees, traffic and drainage) that were not affected by Judge Cooper's ruling.

Comments

[DSK]

I saw signs up yesterday for RG4N's "Fiesty Fest" this weekend, where they want to take a picture of supporters to show They Mean Business or something.
It struck me as indicative of the contrast between how property/zoning laws actually work, and how a few of the neighbors would prefer to be kingmakers. As for the ANA suit. It's a shame, in a way, that the summary judgement has proven me correct that it was a poor use of the NA's money. Imagine if they continued to work with the developer like North Shoal Creek NA has. They could have gotten the neighborhood ped/bike cut-through walkways, among other things.
I'll also be interested to see if the ANA general fund ever gets refunded the IOUs where the board sent money to the legal fund ($2000 a month).

[el_longhorn]

Hard to see how RG4N gets past the Lincoln trump card of "let us cure our site plan" even if the traffic, impervious cover, and tree plans were faulty. How accurate do traffic impact projections tend to be after the fact anyway?

This is a very good lesson for NA's to learn. Please don't sue people unless you have a case. Time for RG4N to negotiate what they can and cut bait. No need to drag this out much longer.

[Daisy L]

Neighbors in Allandale worked with the developer changes through the process, which was available to everyone. they were able to negotiate changes to traffic flow, plantings, noise abatement etc. However, the ANA was against any interaction with the developer... so those activities were promoted, but done by other residents.

It will be interesting to see how things turn out.

[Late Night Austin Real Estate Blog]

What will be interesting is after all of this if Walmart pulls plans for the store not based on RG4N but just because they are having problems expanding. They are apparently pulling back on expansion plans on sites throughout the country. Personally I think they will move forward at northcross.

Walmart did very well in the 80s and 90s. But if someone invested in Walmart stock in 1999 they would have got about 0 percent return on their investment as the 00's have been more difficult for them.
http://finance.yahoo.com/q/bc?s=WMT&t=my&l=off&z=l&q=l&c=

[AC]

I imagine one problem Wal-Mart is having is that it has already plucked most of the low-hanging fruit. That had to happen at some point. It's now left with expanding into areas where it doesn't have as much appeal.

I saw an article a couple months ago in the WSJ detailing another problem: Wal-Mart's cost advantage over competitors (i.e., Target) is eroding because they have mimicked its techniques. This enables them to offer low prices while also offering amenities that Wal-Mart isn't very good at providing.