Ignored zoning order planted the seeds for the Grove legal battle

Years before anyone envisioned the Grove, a developer pitched plans for more than two dozen townhomes and condominiums along Exposition Boulevard.

The neighbors furiously objected, and the developer eventually yanked the plans for that 2-acre slice of land that once belonged to the Austin State School.

But along the way, the City Council discovered that neighbors of unzoned tracts like that — typically owned at one point by the county or the state — might not have standing to challenge a zoning case. To make sure that legal quirk didn’t surface again, then-Council Member Mike Martinez proposed a resolution that passed in 2008 ordering the city staff to begin the process of zoning those lands.

It never happened.

“I think that resolution was purposefully ignored,” Martinez told the American-Statesman last week. “Staff didn’t want anything to do with it. So here we are eight years after, and we’re faced with the same situation.”

This time, the stakes are much higher.

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At 75 unzoned acres, the Grove at Shoal Creek is more than 30 times the size of the failed Exposition Boulevard effort, and many neighbors are concerned about the nearly 20,000 extra daily car trips the project is expected to bring. Developer ARG Bull Creek Ltd. wants to build 2.4 million square feet of office, retail and residential space on the largely empty land formerly owned by the Texas Department of Transportation.

The law usually works like this: If more than 20 percent of the landowners who live within 200 feet of the property sign a protest petition, any change to the zoning requires the support of three-quarters of the City Council.

In this case, the Grove’s opponents got 28.68 percent of the project’s neighbors to sign the petition. However, citing a decades-old North Texas court case, the city rejected the petition, arguing that the provision applies only when land is being rezoned, not zoned for the first time.

The residents opposing the project filed suit in April in Travis County district court to challenge the city’s decision.

“Had staff followed up and done what they were told to by the council, the citizens around the Grove would not be in this position,” Martinez said.

“There was evidently no follow-up,” said former Mayor Lee Leffingwell, who as a then-council member co-sponsored the 2008 resolution. “I guess it got lost in the process somewhere.”

A City Hall spokesman declined to comment last week, citing the ongoing litigation. A preliminary hearing to rule on a motion for summary judgment is scheduled for Aug. 1, with a trial potentially beginning by Aug. 15. The City Council is expected to consider the project Aug. 11, though any final decision might be delayed by the legal wrangling.

Debate over size continues

The size and scope of the project have left many who live near it afraid of the traffic it will bring and how it will mesh with their neighborhoods. Those concerns have exhibited themselves in two quantifiable ways: fights over the amount of traffic the Grove will generate and the amount of park space it includes.

Under the current plans, commercial and office space would make up about 360,000 square feet, accounting for about 15 percent of the project. The bulk of the space would go toward building some 1,700 housing units, including 600 for independent senior living.

“We’re not opposed to the whole project; in fact, we welcome all the affordable and middle-income housing we can get over there,” said Sara Speights, president of the Bull Creek Road Coalition. “What we’re opposed to is the huge commercial development that’s taking over half the land.”

Speights’ group has been pushing developer ARG to scale back its commercial and office space to increase the project’s parkland, in part to cut the amount of traffic the Grove would bring to nearby streets.

The developers argue that their planned street improvements will be more than sufficient to handle the surge in traffic.

“They’re willing to support the square-footages with some traffic considerations, if we can provide more parkland. The problem is we can’t provide the amount of parkland they’re asking for,” said Garrett Martin, ARG’s manager. “It really is a discussion on degree, not on concept.”

The city’s Environmental Commission narrowly opposed the developer’s plan, registering its discontent even though the advisory board could not block it. The city’s Zoning and Platting Commission gave its blessing to the plan late Thursday night on a narrow 6-4 vote, including recommendations to bolster the density of housing in the project by adding 250,000 square feet of residential units and prohibiting single-family homes on several parts of the tract. The panel also urged the developer to work on a plan to reduce car trips to the site.

Divided by district

The bitter and long-running battle over the Grove has spilled over into related policy fights on the City Council and in two council races.

The proposed project would sit on the southern side of 45th Street, in the southern tip of the largely suburban District 10, which is represented by Council Member Sheri Gallo, who is being challenged by an opponent of the development, Alison Alter.

Many of the residents bitterly opposed to the Grove live on the other side of the street, in District 7, which is represented by Council Member Leslie Pool, a critic of project.

“Had staff done as they were directed eight years ago, we wouldn’t be in this spot,” said Pool, who co-founded the Bull Creek Road Coalition, which has opposed the Grove development as it is currently proposed. “The fact was the resolution was not acted on, and here we are today.”

Like Gallo, Pool’s re-election campaign might be defined by the project. Her opponent, Natalie Gauldin, is a prominent supporter of the Grove.

Gallo declined an interview request but provided this statement: “I will continue to support the rights that neighbors and neighborhoods have which are provided under our current state laws and City ordinances.”

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