B-04 (C14-02-0183(RCA) - 1118 Tillery Street; District 3).pdf — original pdf

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RESTRICTIVE COVENANT AMENDMENT REVIEW SHEET DISTRICT: 3 AGENT: Drenner Group PC (Leah Bojo) CASE: C14-02-0183(RCA) 1118 Tillery Street ADDRESS: 1118 Tillery Street SITE AREA: 3.781 acres PROPERTY OWNERS: Theodore and Mary E. Lopez CASE MANAGER: Heather Chaffin (512-974-2122, heather.chaffin@austintexas.gov) STAFF RECOMMENDATION: Staff supports the Applicant’s request to amend the restrictive covenant by removing Tracts 1, 2, 4 and 5. For a summary of the basis of staff’s recommendation, see case manager comments on page 2. PLANNING COMMISSION ACTION / RECOMMENDATION: CITY COUNCIL ACTION: TBD ORDINANCE NUMBER: 1 of 27B-4C14-02-0183(RCA) 2 ISSUES: The subject property is developed with plant nursery land use and was rezoned from SF-3 to CS-MU-CO-NP as part of the Govalle Neighborhood Plan in 2002-2003. No changes to this zoning are currently proposed. This public restrictive covenant (RC) was created concurrent with the rezoning and states that if use of the property as a plant nursery use is discontinued for 90 consecutive days, the owner of the property will not object to the City of Austin rezoning the Property to SF-4A-NP. The RC applies to 5 tracts, and the Applicant is requesting to remove 4 of these tracts from the RC. Please see Exhibit C- Redlined Restrictive Covenant. A petition against the restrictive covenant amendment (RCA) has been submitted to staff and is included with this report. Under state law, a Valid Petition can be filed in opposition to a rezoning but cannot be applied to an initial zoning of a property or an RCA. The petition submitted to the City will not affect the number of votes required to approve the RCA. (Please see Exhibit E- Petition). CASE MANAGER COMMENTS: The subject property is located on the west side of Tillery Street between Govalle Avenue and Goodwin Avenue. North of the subject property is another CS-MU-CO-NP property that is subject to the same RC and includes residential and nursery land uses. Further north is a residential area zoned SF-3-NP. East of the property, across Tillery Street, is a residential area zoned SF-3-NP. West of the property is a residential area zoned SF-3-NP and the Austin Community College Eastview Campus, which is zoned P-NP. To the south are residential properties zoned SF-3-NP. Other land uses and zoning categories in the area include undeveloped, religious assembly and townhouse-condominium (zoned MF-3-NP, SF-3-NP and MF-3-NP, respectively). Please see Exhibits A and B- Zoning Map and Aerial Exhibit. At the time of the CS-MU-CO-NP zoning in 2002-2003 the subject property and the property to the north were under the same ownership and included nursery and residential uses. As stated previously, the property to the north is also subject to the same RC. The conditional overlays applied to these properties included the following: 1. The following uses may not exceed 5,000 square feet of gross floor area: Administrative and business office, Professional office. 2. The following uses are prohibited uses: Agricultural sales and services, Art and craft studio (general), Automotive repair services, Automotive washing (of any type), Automotive rentals, Automotive sales, Business or trade school, Campground, College and university facilities, Commercial off-street parking, Communication service facilities, Community recreation (public), Construction sales and services, Consumer repair services, Counseling services, Custom manufacturing, Day care services (general), Day care services (commercial), Day care services (limited), Drop-off recycling collection facility, Equipment repair services, Exterminating services, Food sales, General retail sales (convenience), Hotel-motel, Hospital services (general), Indoor entertainment, Kennels, Art and craft studio (limited), Building maintenance services, Business support services, Club or lodge, Commercial blood plasma center, Communications services, Community recreation (private), Congregate living, Consumer convenience services, Convenience storage, Cultural services, Electronic 2 of 27B-4C14-02-0183(RCA) 3 prototype assembly, Equipment sales, Financial services, Funeral services, General retail sales (general), Guidance services, Hospital services (limited), Indoor sports and recreation Laundry services, Limited warehousing and distribution, Maintenance and service facilities, Medical offices (not exceeding 5000 sq. ft. gross floor area), Medical offices (exceeding 5000 sq. ft. gross floor area), Monument retail sales, Off-site accessory parking, Outdoor sports and recreation, Personal improvement services, Pet services, Private secondary educational facilities, Public secondary educational facilities, Residential treatment, Restaurant (general), Safety services, Software development, Transportation terminal, Veterinary services, Multifamily residential, Outdoor entertainment, Pawn shop services, Personal services, Private primary educational facilities, Public primary educational facilities, Research services, Restaurant (drive-in, fast food), Restaurant (limited), Service station, Theater, and Vehicle storage. As a result, the only land uses permitted on the subject property are Single family residential, Duplex residential, Plant nursery, Administrative and Business Office, and Professional office. The CO also limits the office land uses to a maximum of 5,000 square feet. In 2013-2014 the property owner to the north requested removing their property from the RC. Staff supported the request but Planning Commission and City Council denied the request. Staff has received correspondence in opposition to the RC amendment. Please see Exhibit D- Correspondence. Staff supports the Applicant’s request to remove Tracts 1, 2, 4 and 5 from the restrictive covenant. The significant number of prohibited land uses that were added with the conditional overlay limit the property to very few uses. The residential and office uses are suitable for the area. EXISTING ZONING AND LAND USES: Site North ZONING CS-MU-CO-NP CS-MU-CO-NP, SF-3-NP Plant nursery, Single family residential, Religious Plant nursery LAND USES South East West SF-3-NP, MF-3-NP SF-3-NP SF-3-NP, P-NP assembly Single family residential, Religious assembly Single family residential, Religious assembly Single family residential, Public college/ university, Undeveloped NEIGHBORHOOD PLANNING AREA: Govalle/Johnston Terrace NP (Govalle) WATERSHED: Boggy Creek NEIGHBORHOOD ORGANIZATIONS: Govalle/Johnston Terrace NPCT Guadalupe Neighborhood Development Corporation Sierra Club East Austin Conservancy 3 of 27B-4C14-02-0183(RCA) 4 Del Valle Community Coalition Govalle Neighborhood Association SELTexas Austin Neighborhood Council El Concilio Mexican American Neighborhoods Homeless Neighborhood Association AREA CASE HISTORIES: CASE NUMBER/ ADDRESS C14-02-0183(RCT) 1120 Tillery Street To terminate RC. REQUEST PODER AISD Friends of Austin Neighborhoods Neighbors United for Progress Austin Lost & Found Pets Preservation Austin PLANNING COMMISSION 12/10/2013: To deny request. (5-0) CITY COUNCIL 1/30/2014: To deny request. (5-0) ADDITIONAL STAFF COMMENTS: Comprehensive Planning This request per the agent is to remove the existing Restricted Covenant (Travis County Document 2003291517) that states that if the use of the Property as a plant nursery use is discontinued for 90 consecutive days, the owner of the Property will not object to the City of Austin rezoning the Property to SF-4A-NP (Single Family Residence Small Lot- Neighborhood Plan). The purpose of this application is to amend the existing restrictive covenant to remove the Property from the restrictive covenant so as to allow a change-of-use from plant nursery to other land uses permitted in the CS-MU-CO-NP zoning district. The property is Zoned CS-MU-CO-NP (General Commercial Services – Mixed Use – Conditional Overlay – Neighborhood Plan) and is located in the Govalle Neighborhood Planning Area (NPA) of the larger Govalle / Johnston Terrace Combined NPA, and it is currently developed with a plant nursery land use. The property is designated Single Family on the Future Land Use Map (FLUM). Imagine Austin- The property is not located along an Activity Corridor or within an Activity Center and has mixed use zoning on it, which allows for residential uses. The policies of Imagine Austin Comprehensive Plan are broad in scope and the Plan is neutral on amending a restricted covenant. Environmental No environmental review comments regarding the proposed amendment. Site Plan Site Plan comments will be provided at time of site plan submittal; no comments at this time. Parks & Recreation PR1: Parkland dedication will be required for any new residential units or hotel-motel keys resulting from this restrictive covenant amendment. If the applicant wishes to discuss parkland dedication requirements in advance of any future site plan or subdivision applications, please contact this reviewer: thomas.rowlinson@austintexas.gov. At the applicant’s request, PARD can provide an early determination of whether fees in-lieu of land will be allowed. 4 of 27B-4C14-02-0183(RCA) 5 Transportation ATD Staff has no objections to the removal of the existing restrictive covenant. Upon redevelopment the site will need to comply with all transportation requirements of the Land Development Code, including right of way dedication per the Austin Strategic Mobility Plan, and any and all required studies and their associated mitigations. Water Utility AW1. No comment for restrictive covenant release. INDEX OF EXHIBITS TO FOLLOW A: Zoning Map B. Aerial Exhibit C. Redlined Restrictive Covenant D. Correspondence E. Petition 5 of 27B-4OAK SPRINGS PARK MF-3-NP 87-103 SPC-05-0006C SOCCER FIELD P-NP UNDEV APARTMENTS MF-4-NP SP-2007-0205D C14-01-0150 D E R L VIL R E B B E W GR-MU-CO-NP ELEMENTARY SCHOOL SF-3-NP MARY HELEN LOPEZ ST NARCISO GIL ST MF-3-NP GOODWIN AVE SF-3-NP SP90-10102C SF-5-NP SF-3-NP CHURCH SP-98-0402C FAST FOOD CS-MU-CO-NP CENTER GR-MU-NP CS-CO-NP SF-3-NP BENGSTON ST SF-3-NP KAY ST SF-3-NP P-NP C14-97-0024 SPC-04-0012D 97-0024 SP97-0409C GOVALLE AVE SF-3-NP T Y S R E L TIL SF-3-NP SF-3-NP ! ! ! ! ! T N S E D LIN ! SF-3-NP ! ! ! ! ! CS-MU-CO-NP ! ! SF-3-NP ! ! !! ! 0 5 -2 3 ! 8 ! ! ! !! SF-3-NP ! ! CHURCH ! ! ! ! THOMPSON ST CHARLES ST ! ! ! ! ! ! ! C14-2020-0083 ! ! ! ! PICKLE DR T R S E G NIN N E H SF-3-NP 74-152 T R S E T N U G SF-3-NP ! ! ! ! ! ! ! ! ! ! ! ! ! ! B E D F O R D S T APARTMENTS MF-4-NP T H O M P S O N S T SF-3-NP SP-02-0056C P-NP C14-97-0025 SP-97-0410C GR-MU-CO-NP SF-3-NP C14-2007-0146.SH MF-3-NP SF-4A-NP SF-3-NP P75-17 P-NP 87-32 SF-3-NP SF-3-NP T S S S A R B STOKES DR SF-3-NP THO MPSON ST 75-63 SF-3-NP REP. NEAL ST 73-66 ! ! ! CHURCH ! ! ! ! SF-3-NP ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! SF-3-NP ! ! ! ! !! !! SF-3-NP H80-05 T O S RIC E H C LYONS RD SF-3-NP P74-3 C H U R C H LR-MU-CO-NP LR-NP SF-3-H-NP H80-09 SF-3-NP CS-MU-CO-NP Restrictive Covenant Amendment CASE#: C14-02-0183(RCA) SF-3-NP SF-3-NP ELEMENTARY SCHOOL P-NP GR-MU-CO-NP SF-3-NP SF-3-NP 81-29 T A S T S FIE SF-3-NP T N S E D LIN GR-MU-CO-NP SF-3-NP 77-19 SUBJECT TRACT ! ! ! ! ! ! PENDING CASE ZONING BOUNDARY SF-3-NP ± This product is for informational purposes and may not have been prepared for or be suitable for legal, engineering, or surveying purposes. It does not represent an on-the-ground survey and represents only the approximate relative location of property boundaries. 1 " = 400 ' This product has been produced by the Housing and Planning Department for the sole purpose of geographic reference. No warranty is made by the City of Austin regarding specific accuracy or Created: 8/26/2021 6 of 27B-4Legend Zoning Review Cases- IN REVIEW Zoning Text 0.1 0 0.04 0.1 Miles NAD_1983_StatePlane_Texas_Central_FIPS_4203_Feet Date Printed: This product is for informational purposes and may not have been prepared for or be suitable for legal, engineering, or surveying purposes. It does not represent an on-the-ground survey. This product has been produced by the City of Austin for the sole purpose of geographic reference. No warranty is made by the City of Austin regarding specific accuracy or completeness. 1: 2,400 Notes 7 of 27B-48 of 27B-49 of 27B-410 of 27B-4September 12, 2021 Re: Ted’s Trees Restrictive Covenant Permit/Case: 2021-121077 ZC Reference File Name: C14-02-0183(RCA) To Planning Commission, Austin City Council, Mayor and City Manager: The Govalle Neighborhood Association listened to the applicant and discussed this case in our September meeting. The strong majority agreed the Restrictive Covenant should NOT be amended. Please deny this proposal as you have in the recent past. In 2014, the City of Austin denied the applicant's request to terminate the restrictive covenant. What you need to know: This restrictive covenant was put in place 20 years ago when the neighborhood adopted the neighborhood plan. The neighborhood plan was the culmination of many volunteer hours, meetings and outreach. The historic Latino community wanted zoning that emphasized family and neighborhood housing and community and de-emphasized the industrial and dirty zoning regulations that had been polluting the neighborhood. Ted’s Trees was allowed to stay as a commercial operation for 20 years, with the understanding that when that business ceases to operate, this land would become housing. This land is NOT on a corridor and is located in the heart of our neighborhood, surrounded by single family, and affordable housing. Our neighborhood is bleeding families. Please help us build on the work that has been done and make sure this land can become a mix of single and missing middle housing that is affordable and suitable for families. The neighborhood voted to DENY applicant’s requests to amend the Restrictive Covenant. Sincerely, /Jessica L. Eley/ Jessica L. Eley Co-Chair GNA //Candace Fox// Candace Fox Co-Chair GNA 11 of 27B-412 of 27B-4 From: Chaffin, Heather Sent: Friday, January 21, 2022 9:47 AM To: Jessica Eley Subject: RE: Ted's Trees restrictive covenant Good morning, Due to the recent increase in COVID concerns, we are switching to hybrid Planning Commission meetings where people can attend in person or call in over the phone. Since we’re still setting it up, I don’t have instructions on hand. I will have them in the next week or so. Regarding a petition, there are no formal requirements for a petition against a restrictive covenant amendment RCA). As I stated previously, there is something called a Valid Petition that can be made against a rezoning case, but it is a distinctly different thing. Valid Petitions come out of state law and have formal requirements. A Valid Petition can affect the number of votes required to approve a rezoning at the final reading by City Council. Since the petition you are working on is not a Valid Petition there are no requirements about format, signatures, etc. There also isn’t a process to make it “valid.” If you want me to add it to the staff report that goes to Planning Commission and City Council, I will need a PDF or hard copy of the petition. I haven’t used Change.org before, so I don’t know if you can create a document from that site. I would recommend that any petition against the RCA include the following: 1. The date 2. The case number and address – C14-02-0183(RCA) , 1118 Tillery Street 3. A brief description of your opposition 4. A place for people to provide their name (printed), signature, and address. Again, these are not required items but are recommended. You may want to model it after a Valid Petition, so I’m attaching a copy of the preferred Valid Petition format. Let me know if you have more questions. Staff is currently planning on putting this on the February 8th Planning Commission agenda, so notices should go out next week. Heather From: Jessica Eley Sent: Thursday, January 20, 2022 5:05 PM To: Chaffin, Heather <Heather.Chaffin@austintexas.gov> Subject: Re: Ted's Trees restrictive covenant This answers a lot of our questions. Thank you! Just two follow up questions. I've been checking the city website and it says there's no option to call in for PC meetings, only council meetings. This would help a lot if folks could call in. How do we register to call in? Is there a template for petitions? 13 of 27B-4If we gather support online through a change.org petition will that be valid? Or only hand written signatures count? Is there ais that something you could add to the file, or only hand signatures count? On Thu, Jan 20, 2022 at 4:06 PM Chaffin, Heather <Heather.Chaffin@austintexas.gov> wrote: Hello— Yes, you can create a petition to protest the restrictive covenant amendment (RCA). For rezoning cases there is a specific kind of petition established by state law that is called a Valid Petition and affects the amount of votes required for rezoning approval. This case is not a rezoning so there is no Valid Petition aspect. Your petition will not affect legal rules about approval, but will demonstrate neighborhood opposition. Emails or petitions sent to me expressing support or opposition will be attached to the Planning Commission (PC) and City Council (CC) staff reports. Staff anticipates scheduling this case for the February 8th PC agenda, which will be a hybrid meeting- people can attend in person or via phone. Notices are required to be sent out with the information in advance. Please note that several cases might be postponed by commission becahse of Covid related issues that affected January cases. Let me know if you have more questions or have emails or items to submit. The earlier that you can submit for the PC or CC agenda, the better. From: Jessica Eley Sent: Saturday, January 15, 2022 11:29 AM To: Chaffin, Heather <Heather.Chaffin@austintexas.gov> Subject: Ted's Trees restrictive covenant The neighbors are organizing a petition to support the Restrictive Covenant. Is an online petition enough to show support, or is there a formal process we should go through? This is regarding.... Re: Ted’s Trees Restrictive Covenant Permit/Case: 2021-121077 ZC Reference File Name: C14-02-0183(RCA) Heather Hi Heather, -- 14 of 27B-4All the best, ~Jess From: Jessica Eley Sent: Tuesday, September 28, 2021 9:21 AM To: Chaffin, Heather <Heather.Chaffin@austintexas.gov>; joy.hardin@austintexas.gov Cc: Candi Fox Subject: Govalle NA Letter Re: C14-02-0183(RCA) *** External Email - Exercise Caution *** Hi Heather, This is not a technically a zoning change, but really it is. Because of that we haven't gotten the same letters and announcements the city usually sends out. Can you tell me when this case is going to Planning Commission? Also, Can you include our letter in the backup? In the recent past (2014) the city denied removing the restrictive covenant. Now they're trying to "amend" it, but they essentially want it gutted. 20 years ago when they neighborhood plan was adopted, Ted's Trees was grandfathered in, since it was a nice business. However the Convenant they agreed to says that once they sell, it goes back to SF-4. -- Thanks, Jessica L. Eley Co-Chair Govalle Neighborhood Association www.govalle.org 15 of 27B-416 of 27B-417 of 27B-418 of 27B-419 of 27B-420 of 27B-4EXHIBIT E Petition from Neighbors in Support of Upholding the Restrictive Covenant on 1118 Tillery St Planning Commission Meeting: Feb. 8, 2022 Regarding: Permit/Case: 2021-121077 ZC Reference File Name: C14-02-0183(RCA) Address: 1118 Tillery Street Note: 155 signatures were downloaded Saturday Feb 5, 2021. This continues to be an active topic of conversation in the neighborhood so we are leaving the petition open. The screen shot captured on Sunday Feb 6, 2021 shows 162 have signed the petition. We will update the City file if there are another 50 signatures, or if this case is sent to City Council. 21 of 27B-422 of 27B-4Address: 1118 Tillery Street Permit/Case: 2021-121077 ZC Reference File Name: C14-02-0183(RCA) Neighbors in Support of Upholding the Restrictive Covenant on 1118 Tillery St The owners of Ted's Trees via their agent, Drenner Group, have asked the City of Austin to throw out an agreement with our community so they can have a blank check to develop whatever they want. In 2003 when the Govalle Johnston Terrace Neighborhood Plan was approved by the city, part of that plan included a special case for Ted's Trees, a nursery in the middle of the neighborhood. The plan was created to right the wrongs of the past. As a result of red lining, much of the neighborhood was zoned Commercial and Industrial. In an effort to codify the same protections and rights enjoyed by neighborhoods elsewhere in the city, the neighborhood plan pushed to create zoning for housing. A compromise was reached with Ted's Trees. They would be given the zoning Commercial Mixed Use, with the understanding that it applied only to that business, and if/when that business ceases operation, the land will rightfully and automatically be rezoned (SF4a). The restrictive covenant is how this is achieved and it's this restrictive covenant that the owners would now like removed. The neighborhood kept up its side of the bargain but the owner is now attempting to retrade the agreement they made to their neighbors and the neighborhood, in order to unencumber the property prior to sale. If the owners of Ted's Trees are successful in lifting the restrictive covenant, the Govalle Neighborhood association will lose any voice in the future development of the property. This will lead to a very high density development, 60 ft tall in the middle of our neighborhood introducing unwanted side effects such as traffic congestion and noise. The neighborhood plan encourages such density on the perimeter of our neighborhood, namely Airport BLVD and 7th St, saving the middle for a neighborhood for families. The location of Ted's Trees is in the middle of our neighborhood and should be housing for families. Help us stick to the plan. Please help us to send a message to the Mayor and City Council that commitments should be honored. Otherwise why would we ever choose to negotiate with developers in the future 23 of 27B-424 of 27B-425 of 27B-426 of 27B-427 of 27B-4