Naked City

Illustration By Doug Potter

Setting up their fifth courtroom challenge since 2001, the city of Austin is once again taking on Hyde Park Baptist Church over the Baptists' controversial planned parking garage at 39th and Avenue D. The city last week appealed the August decision by Judge Pete Lowry in favor of the Baptists, whose ever-expanding campus and its encroachment on the surrounding Hyde Park neighborhood have been a cause of civic conflict for nearly 20 years.

The saga of the parking garage -- as detailed in the city's Nov. 24 filing with the state 3rd Court of Appeals -- dates back to 1990, when the Baptists and the Hyde Park Neighborhood Association negotiated a development agreement that was supposed to put their conflicts behind them. The customized zoning ordinance (the "Hyde Park Civic NCCD") that emerged from that agreement allowed for the construction of a second HPBC parking garage, but -- in the city and neighborhood's subsequent view -- did not exempt that project from the normal Land Development Code regulations regarding impervious cover and building cover.

But 10 years later, the Baptists proposed -- and won administrative approval for -- a five-story garage filling nearly all of the tract in question with double the impervious cover the code would normally allow. Several neighbors (but not HPNA, which was precluded from intervening under the terms of the 1990 agreement) appealed the staff decision to the City Council, which decided that staff had made a mistake in interpreting the NCCD ordinance and voted to suspend the church's garage-building permit in March 2001.

The church has fought the city every step of the way, starting with an (unsuccessful) attempt to stop the council from even considering the neighbors' appeal. After another failed attempt in federal court -- charging the city with violating the Baptists' freedom of religion -- HPBC finally hit pay dirt (twice) with retired Visiting Judge Lowry, who agreed with the church's arguments that the council had no power to entertain the neighbors' appeal of a staff permit approval and that the NCCD's reference to development on "all or a portion of" the subject tract gave the church carte blanche to ignore the normal code standards. (Lowry piled on by ordering the city to pay the Baptists' attorney's fees. While HPBC has famously used controversial developer lawyer Richard Suttle to ply its cases before the City Council, a different lawyer -- Walter Mizell of Brown McCarroll -- is handling the church's end of this case.)

The city's appeal challenges the second of Lowry's findings, arguing that the council should have the right to interpret its own ordinances, "unless the courts are to become the ultimate arbiters of every land development question within a city." "The city is sure to be accused by HPBC of favoring 'politically powerful' Hyde Park residents," reads the appeal (by the city's outside counsel, David Donaldson and Pete Kennedy) "just as sure as the city would have been accused by those residents of bowing to a 'politically powerful' church, had the city made the opposite decision. In truth ... the city did what it is supposed to do: make hard decisions governing land development within its jurisdiction."