Developing Stories: Northcross Neighbors to Wal-Mart: You don't want us as enemies

Photo By John Anderson

Never assume North Austin folks are less passionate about our town's special character than Central and South Austin neighborhoods. Citizens in the area surrounding Northcross Mall have done themselves activist-proud the past few weeks, rapidly mobilizing a passionate and intelligent public outcry against a lame plan – already city-approved – for the mall's redevelopment. Responsible Growth for Northcross (love the positive spin), a newly formed group of Austinites from neighborhoods near Anderson Lane and Burnet Road, is pleading for intervention from City Council members – several of whom have rallied to the cause (see "Beside the Point," p.19). A recent Responsible Growth for Northcross neighborhood meeting in near-freezing weather drew a standing-room-only crowd of more than 500 concerned citizens (grandmas to gen-Y's, residents, and small-business owners) from the surrounding Allandale, Crestview, North Shoal Creek, Rosedale, and Wooten neighborhoods. The group wants mall redevelopment, but in a manner consistent with city of Austin initiatives: their neighborhood plans, the Commercial Design Standards, and a commitment to community input. RG4N members feel an urgency to halt the project quickly; demolition at Northcross is scheduled to begin Jan. 8, according to a project subcontractor.

One huge point of contention is that developer Lincoln Property Company has signed a lease with Wal-Mart as the anchor tenant; it plans to build a 24-hour, 219,629-square-foot Supercenter – the largest store ever for Travis County, right next to homes in an established neighborhood. Another is that the developer's uninspired plop-in-the-parking-lot Northcross Center design does not meet the quality level defined by the city's new Design Standards & Mixed Use Ordinance. (The ordinance was enacted Aug. 31 but does not become effective until Jan. 13, 2007; the redevelopment of Northcross Mall according to its standards was specifically discussed during the public process.) The RG4N Web site states, "The redevelopment plan undermines the city's efforts toward a higher-quality, more livable urban development model."

However, it's very difficult – and potentially illegal – for council or city staff to set aside a site plan once it has been approved, as the neighborhoods would like them to do. But evidence gathered by citizens to date indicates that the developer failed to correctly follow the process required by code, according to Jack Kirfman, a founding member of Austin Full Circle, a group that advocates for corporate responsibility and opposes the Wal-Mart. Because the property had been zoned since the 1960s for a mall, and the project required no variances, it needed no favors from City Hall; this gives the city little leverage to get a better project from a developer. Because the developer could quietly put the project through under an administrative site plan, no public hearing was required, and no alarm bells were set off. While neighbors heard Wal-Mart rumors over the summer, and tried to get answers, they could learn nothing. Indeed, the project seems to have flown under the radar of council until after the site plan was released (Aug. 8), the deed for Northcross was officially transferred to Lincoln Property (Oct. 11), and the lease with Wal-Mart was signed (likely soon after that date). Council Member Brewster McCracken says he was briefed on the Wal-Mart Oct. 31 by a Wal-Mart representative who led him to believe the store would be a 39,000-square-foot "neighborhood market." But he did not know the site plan had been approved. He said other council members were briefed that same week.

But was no one at City Hall aware of the project earlier? Most troubling are rumblings that city management may have intentionally slowed the city process of forwarding a proposed big-box ordinance to City Council – and perhaps also the adoption and effective-date of the Commercial Design Standards – to allow this specific project to slide through. At key stages in the process, big box was stalled out three different times (for four months, two months, and two months) according to a chronology assembled by Liveable City, with help from Northcross neighbors and other citizens. Meanwhile, the Wal-Mart deal was done. Advocates of the big box ordinance, including Kirfman and Liveable City members, believe that big box – whose provisions would have required a public hearing, expanded neighborhood notification, and a council vote on a conditional use permit for the Wal-Mart – could have been enacted in time to change the project.

The site plan itself strongly suggests that the developer had Wal-Mart in mind early on (despite overt denials to neighbors by the developer and owner over the summer). As McCracken points out, the enormous building footprint, heavy traffic projections, and use of the term "supercenter" point damningly to the big W. "When you see very large square footage for a single user, it's probably one of just a few," conceded City Manager Toby Futrell. "But we never ask about users. That's not what we do."

Futrell's husband is employed as a salaried HVAC service manager with Wal-Mart, according to a Conflicts Disclosure Statement she filed on Jan. 23 – coincidentally, just three days before the Northcross site plan was filed. When asked about the conflict, several council members said they'd had no idea that Futrell's husband brings home a Wal-Mart paycheck. But Futrell said that her husband of 33 years, Don Futrell, has worked for Wal-Mart for four or five years and that she files the conflict-of-interest disclosure annually. She described her husband as "a working-class guy on rooftops" with "no involvement in politics or policy," and said that since he's worked for the mega retailer, "I've never been in the direct chain of any development decisions related to Wal-Mart. Including this site plan."

Futrell and Assistant City Manager Laura Huffman, who sit at the top of the city's neighborhood planning and zoning food chain, asserted in a phone interview Tuesday that they were clueless about the Northcross site plan and Wal-Mart's anchor role before the news broke publicly. "I read it in the newspaper," said Futrell. (A glowing story announcing the upscale Wal-Mart Supercenter ran in the Austin American-Statesman on Nov. 8.) Huffman said she learned the news only the day before. Asked if she had ever discussed the project with powerful real estate attorney Richard Suttle, the agent for Wal-Mart, Futrell said, "I cannot remember the last time Richard Suttle was in my office. I did not have formal, informal, online, or offline conversations about it." Huffman also said she had never discussed the project with Suttle.

City Manager Toby Futrell (Photo By John Anderson)

Asked if she had any prior knowledge about the project, of any kind, Futrell said she did not. She stated, "I had no conversations whatsoever with the developer or their agent. ... To the best of my knowledge, this project was not brought to City Hall."

But the anti-Wal-Mart contingent is skeptical. "It's unfathomable to think that top city management would have been unaware that this was happening, given that it's the largest single retail structure ever proposed for Travis County," said Kirfman, who worked for the city for nearly 15 years.

"I don't know which would be more alarming, that they knew about it or that they didn't know about it," said McCracken. "Even with the most charitable explanation, we have a huge problem." He added, "The access to public information that directly impacts people's lives should not be virtually impossible to find." McCracken is particularly frustrated by the city's approval of the site plan because it thumbs its nose at the commercial design standards he spearheaded. "The task force spent a lot of time focusing on this specific site," he said. "We had in place a very public process to do something different – mixed-use, appropriate scale, neighborhood-serving retail, with residences above." McCracken said he learned that the Northcross site plan had already received city approvals only on Nov. 10: "That was a huge and highly unpleasant surprise to me. I live in the area. So this is personal for me too. I spent three years on this because I really wanted to make a positive difference."

Under state law, according to Futrell, a project done under the site plan application filed Jan. 26 had to conform only to laws in place at the time; this exempted it from conforming to either the commercial design standards (enacted Aug. 31) or the big-box ordinance (yet to be enacted). At that point, the big-box ordinance was only at the subcommittee level of the Planning Commission. (While it should have been moving through interdepartmental reviews in December, that process rather mysteriously did not begin until April 4.) Futrell has said the point is moot; because the site plan was already grandfathered in, it didn't matter when big box or design standards were enacted later.

But concerned Northcross neighbors and citizens point to the fact that on July 24, the site plan expired. It then required an extension from the city to remain valid; a 60-day extension was granted. They assert that if neighbors had been properly notified of the project, as required by code (they believe they were not), they could have rallied against Wal-Mart and the overall mall design much earlier and intervened, with the proper standing as interested parties. If big box had made it to council and kicked in before July 24, then it could have applied when the developer refiled the site plan. Says Kirfman, "That was fully feasible, if city management had fast-tracked the ordinance."

Council Member Jennifer Kim has requested an official audit by city auditor Stephen Morgan of all procedures and processes related to the project. According to the online city politics newsletter In Fact Daily, the deep-fishing request includes a thorough examination of the site-plan approval process, responses to citizen open-records requests, the chronology of events, and any correspondence with delays in the big-box ordinance. Futrell said she also is conducting an in-depth review of the traffic-impact analysis previously done, as well as analyses of actual traffic at similar projects; McCracken indicated this may prove fertile soil. Whether the audit turns up solid grounds for setting aside the Northcross site plan should be clear by the time of the council meeting on Dec. 14 – at which the big-box ordinance is also scheduled for a vote. Kim, Council Member Lee Leffingwell, and others have emphasized that the city would need very tight legal grounds to set aside the site plan.

Kirfman agreed: "You're talking about the biggest retailer on the planet, and a real powerful hired gun locally. If you haven't got solid grounds, they'll sue you." He added, "The investigation by the auditor's office could prove whether there were flaws in the site plan process, or intentional delays, or we may never know." After learning that Futrell had cited a conflict-of-interest with Wal-Mart, a RG4N representative questioned whether an independent, rather than internal, audit should be required. "I have no reason to believe it did not meet every requirement we review for," said Futrell of the site plan. "I don't see anything on the technical end that's going to change this story."

Futrell has been notably cool to the big-box ordinance, particularly its economic impact analysis provision. But this week, asked if the Northcross Wal-Mart outcry strengthens the case for enacting the big-box ordinance, she answered, "Obviously."

For futher information: www.responsiblegrowthfornorthcross.org, www.austinfullcircle.org. "Design Standards and Mixed Use" for commercial projects are available at www.ci.austin.tx.us/development/commercial_design.htm.