Update on Northcross

I swung by the court clerk's office today just to check the file in the RG4N v. Lincoln case, figuring that the parties had filed motions for summary judgment by now.  Sure enough, the Allandale Neighborhood Association has filed a motion for partial summary judgment on the conditional-use permit claim (the "garden center" issue).  Lincoln has filed a cross-motion for partial summary judgment.

I was in the clerk's office at 1:55 and, purely by chance, saw that the hearing was docketed for 2 p.m.  (Eerie.)  I wandered up to the courtroom to listen in.  The courtroom was packed.  It didn't sound like the court was going to get to it any time soon, though, so I left.  I didn't have time to sit through an hour and a half of argument anyway.

Allandale made exactly the argument I assumed it would make:  A "garden center" cannot be an accessory use because only "prohibited" uses can be accessory uses; a garden center is a "conditional" use.  Lincoln more or less made the argument I made.  We'll see what the judge thinks, perhaps by the end of the day.

Lincoln's lawyers thought of some arguments I hadn't.  (If they couldn't do any better than me, Lincoln probably needed different lawyers.)

Lincoln claims the site plan as approved did not even desigate the outdoor retail center as a garden center, and the City did not approve a garden center use.  Lincoln argues it does not need a conditional use permit, assuming one is required, until it seeks to use the space as a garden center.  Allandale's suit is thus premature, Lincoln claims, and cannot block the site plan as approved.

Lincoln also argues that an applicant gets a chance to remedy a defective site plan.  If it really did need a conditional use, it is entitled simply to revise the site plan to cure any error. 

Lincoln also raised a number of other procedural objections.

I didn't see a written response from Allandale, so I don't know what it will say to these.

Regardless of the court's ruling, RG4N's complaints about trees, traffic, and drainage plat note will remain, so the case won't be resolved today.

Update:  Here is Allandale's written response to Lincoln's cross-motion.

Comments

[M1EK]

Other coverage with opportunities for comment:

http://www.statesman.com/blogs/content/shared-gen/blogs/austin/cityhall/entries/2007/11/01/judge_hears_walmart_case.html (Statesman)

http://media.www.dailytexanonline.com/media/storage/paper410/news/2007/11/02/University/Neighborhood.Group.Takes.Builders.To.Court-3074925.shtml (Daily Texan)

http://www.austinchronicle.com/gyrobase/ReaderComments/?ContainerID=557189 (Chronicle)

In retrospect, saving time by posting the same thing 3 places wasn't a good idea since I forgot I had referred to "in this article". Argh.

[Daisy L]

I would like a better understanding of the complaint. If I remember correctly, the city solicited "neighborhood needs" from each neighborhood. Those documents were then used in negotiations with Lincoln and WM. Wasn't that a public process?

[dh]

That process resulted in the bulk of those needs being ignored. The size of the box was "reduced" to 219,000 sq ft -- nearly 3 times the size of the traffic nightmare Whole Foods -- and the store will close for a few hours in the middle of the night.

That's what happens when negotiations are held under threat of rolling back to a plan that was already approved with no public input. There is no leverage to gain any concessions from the developer.

[dh]

I'm sure that the host of this site has his own take on this and I appreciate his opening the forum.

[DSK]

Whole Foods is a "traffic nightmare"?
Add this to the list of things that make you want to throw up your hands.

It should be mentioned that there is a traffic engineering process (no lawsuits or money for lawyers required!) that occurs to plan for mitigation of traffic concerns. That process did occur here, and in fact the developer has worked with NAs to provide additional mitigation (beyond the city study area) as a good faith effort. Of course they stopped talking to the formal Allandale NA after they sued, but they've been working with the North Shoal Creek NA and other neighborhood residents.

[el_longhorn]

I go through 6th and Lamar all the time and it is not a traffic nightmare. Very heavily traveled, yes, but not a nightmare. The Y at Oak Hill is a nightmare.

And while we're on the topic, Anderson and Burnet almost never has bad traffic.