The Battle of Hat Creek

Here are the arguments that can win the fight against the Hat Creek application for a special use permit. This comes before council for the second reading on Tuesday, June 26th. On Thursday, June 28th, the matter comes before HARC for the Certificate of Design Compliance.

Most of the arguments that can be used at HARC to deny the CDC should also be brought to the council meeting. Council must learn how formidable the HARC obstacle is for Hat Creek – how this issue simply cannot be won, no matter how richly the wheels are greased.

We need speakers to advance these winning arguments at council, and also at HARC. Choose whatever you like, and plan to speak. Ideally each argument would be said by three speakers. Leave comments below, and email to let us know what you plan to speak on, or what we missed and should add here.

1. Council Vote

UDC Section 3.06.020(E) requires a three-fourths majority council vote when a zoning map amendment has been denied by the Planning & Zoning Commission, as this special-use permit application was. We know this is not a rezoning, we understand that the area is not being rezoned. However, when a special use permit is granted, then – to use the language of the UDC – a CONDITION within the zoned area changes, and this condition constitutes a zoning map amendment, which will be marked on the zoning map. Courts across Texas have held that a special use permit is a zoning map amendment.

A three-fourths majority is not a supermajority. A regular majority is four. A supermajority is five. A three-fourths majority is six.

Council cannot change its voting requirements on an issue simply by saying so. It must show its authority for doing so, and it must show this out loud, in public, from the dais. We appeal to the Chair to establish publicly the voting requirements.


2. Council Impartiality

Council members are not elected with a free rein to make all decisions purely from their own preferences. They are obligated to follow the political and legal process. The concept that they make the rules is erroneous. Their duties are prescribed.

For a Special Use Permit, council is an adjudicating body and not a legislative body. Council must follow the procedure set by law, at Section 3.07.030(C) of the UDC, as shown on page 5-6 of the Staff Report, and “reasonably determine that there will be no significant negative impact upon residents of surrounding property or upon the general public.”

Council members in this determination are not permitted to act as advocates, either by law or by the voters. They must act for the good of Georgetown and its people, and weigh the facts, evidence and testimony offered to the public record. Members must act impartially to judge the application on its merits. They must show their workings when they present their findings: they have to demonstrate how they arrive at their conclusions.


3. Recusal

Troy Hellmann must recuse himself from this matter. We know that he is a personal friend of John Kiltz. We know that one of the three brokers’ letters claiming that the drive-through would have no impact on property values comes from Troy Hellmann’s partner at Century 21. The whole town has seen Mr. Hellmann’s passionate advocacy on behalf of the project. He cannot be considered impartial in this matter. If he wants to advocate for the project he can leave the dais and join his friends at Hat Creek. But he cannot remain on the dais. He must recuse himself from these deliberations.


4. Substantiation

One argument used in favor of the project by Mr. Gonzalez and Mr. Sattler was that their constituents were in favor of it. This statement was actually challenged by one Gonzalez constituent present at the first reading – no constituents in favor seemed to be present to support the statement. The councilmen must bring the names of these people to the public record, as well as their opinions and arguments in favor of the project – just as all those who oppose it have spoken out publicly and by name.

The arguments in favor must be judged. If councilmen Sattler and Gonzalez cannot produce the people or their arguments, then there is nothing for the council to evaluate. In this event, the contention that supporters of the project exist must be withdrawn. No one has seen one letter or public statement in favor of this project from the entire town, and this unanimous disfavor for any project is incredibly rare. To imply that support exists when none can be found is wrong. Councilmen must prove it or withdraw it.


5. Investors in the Project

The recent scandal involving councilman Sattler reminds us that money and interests and public responsibility have a way of intertwining. We ask the council to ask Hat Creek to supply a complete list of its investors, actual and proposed. Normally we wouldn’t pry. But this company is asking for so many favors from us that we have a right to ask who we’re giving these favors to. And if Hat Creek doesn’t want to answer, we don’t have to give them all these favors. They can withdraw.

Furthermore, we must ask the council itself: does approval of this project confer any direct or indirect benefit on any member of the City Council, or any entity with whom any member of City Council is employed or affiliated?


6. Land Choice

Mr. Kiltz has given two different accounts for his land choice. At the library he declared that Hat Creek had looked at several properties all over town and the Austin Avenue one was their preferred choice. But at the first reading on May 22nd in response to a direct question from Councilwoman Jonrowe, Mr. Kiltz said they had been shown only 2 properties. This mystifies everyone. What kind of site search is this? Why only view 2 properties before a business commits to a brand new location in a different county?

Why the Jay Hailey property? What is the inducement to locate here? Why would Hat Creek be so intent on building on a lot that requires a Special Use Permit, that is the most expensive of the available lots, that has legal issues in abundance and where there is strong community opposition, when other lots in the immediate area are available with none of these issues? What is the attraction to the Jay Hailey property? Is Mr. Hailey offering an inducement over and above the sale price of the land? We know that Jay Hailey’s son is involved as the architect for Hat Creek. How far does the Hailey family’s involvement in this project extend? We ask Hat Creek to answer these questions.


7. Hailey Architectural Mystery

Page 17 of the 2004 Development Agreement shows a rendering of the conceptual design for the Phase 2 Agreement that Jay Hailey reached with the city eight years ago. This building is not fully compliant with the Master Plan, and development on Phase II never proceeded as far as going to HARC for final approval. But what the rendering shows well is the “Active Edge” along 5th Street and Austin Avenue that Hailey was required to design for. The agreement long ago expired, but the requirements of the Design Guidelines have not changed since.

The drawing shows that the Hailey family at one time clearly understood what it took to be in compliance with the Master Plan, and apparently they spent a lot of sweat getting it right. But now the Hailey son’s architectural firm presents a plan so clearly NOT in compliance that one must ask, what has changed in the last eight years? The only answer is political influence – having friends on the council.


8. Property Value Drop

“detrimental to the…welfare…of the surrounding neighborhood”
In 2004 Jay Hailey reached an agreement with the City of Georgetown for the development of the entire block, as Phase I and Phase II projects. This agreement has long since expired but it shows that at the time Mr. Hailey clearly understood the requirements of the Master Plan. Page 17 of the agreement shows one conceptual plan designed in the midst of lengthy discussions held between Hailey and the city. This drawing was probably too high at 3 stories, although the plan never reached the stage of having dimensions as far as we can tell. But elements that are clearly compliant include the multiple shops with their attractive accessibility and the pedestrian-friendly “active edges” on Austin Avenue and 5th Street.

This is the representation for the future of this lot upon which all properties in the area have been bought and sold, not just by the Phase I homeowners, but by everyone in the Downtown Overlay District. As one of the brokers quoted in the package points out, for eight years the real estate market in the Downtown Overlay District has acted on the last representation made for Phase II, and this has kept values stable.

But now the market will have to adjust to non-compliant architecture in a planned architectural development. There is no credible showing that the design offers any benefit to the Downtown Overlay District – it requires not only a Special Use Permit but an Exception from HARC and presumably a zoning variance. Assertions that the design offers a net gain for the District are on their face false. The only conclusion possible is that property values will drop, and not just for immediate neighbors but across the whole District if the city flouts its own controlling Master Plan.

Councilman Gonzalez has suggested that the new owner can’t be expected to honor the representations made by the old owner. Perhaps in a world of no moral character this is true, but the City of Georgetown can be expected to honor its own laws. When communities don’t honor their development agreements, new investment ceases, and property values plummet.


9. Health Hazard

“injurious or noxious impact”
The health dangers of drive-throughs are widely recognized, because idling vehicles produce exponentially greater toxins than vehicles being driven. Children breathe in more air per body weight than adults and are at greater risk from poisoned air. The playscape is very close to the idling vehicles. To make this situation even more dangerous for this family restaurant, while most drive-throughs tend to hug the outside of a lot, and to be more open to breezes, this one sits in the middle of the block, trapping air. By what trick of the Devil is a children’s playscape placed next to a line of idling cars?


10. Traffic Hazard

“impacts on public infrastructure such as roads”
“detrimental to the health…and safety of the surrounding neighborhood or its occupants”
The traffic hazard has been well argued. The new design seems to increase the hazards by moving the entrance and egress closer to Austin Avenue, posing a greater threat of traffic backing up into Austin Avenue itself.

Further observation from a citizen:

“The Main entrance can only be accessed through the parking lot, walking alongside the drivethru lane. This means the pedestrian business the Master Plan is trying to create will not only have to use the same entrance (driveway) as the cars, but will have to walk through the parking lot and drive thru to actually reach the doors and playground.  Not only impractical but highly unattractive and completely against the intent of HARC and the Master Plan.  This design preference for this non-pedestrian friendly layout can be seen at their 360 location and I have had one individual tell me that they have not gone there again because the parking is so hazardous to those on foot.  This leads me to believe that HCB is not really interested in the foot traffic, but in getting as many cars through the drive thru as possible.

“With the 4th street being an exit only for the drive thru, HCB creates a situation where vehicles will be constantly driving around the block to come back to 5th if they miss the turn.  And, only ONE access point for vehicles to the property?  Unless you are using the drive thru, cars must use the same spot for exit. Cramped is really the only word I can come up with.  That and “invitation” for a collision. Pedestrian traffic again has to deal with frequently turning cars not just at Austin and 5th, but Main and 4th and 5th as well as the entrance to the property.

“The Master Plan calls for pedestrian friendly.  Any drive thru at this location will not be pedestrian friendly and HCB, with the plans they have provided and the way they have designed their other properties, seems only interested in how to get as many cars through their drive through as possible.”


11. Zoning Variance

“impacts on public infrastructure such as roads”
Because of the rule requiring separation of driveways, it seems like this new design will require a zoning variance to place the Hat Creek driveways so close to the alley driveways. Why is there nothing in the Staff Report in the Future Applications section or elsewhere to explain this?

The law pertaining to this is UDC Section 12.04.020 – Driveway Spacing from Intersections, which states:

A. No driveway is permitted closer to a corner than the driveway separation standard provided in Section 12.03.020
[NOTE this reference is to a commercial driveway separation and equals 200 feet]

B. Driveway spacing shall be measured from the edge of the street to the center of the driveway.

C. Any request to deviate from these standards may be submitted to the Director. Any such request requires a Transportation Impact Study as described in Section 12.05.


12. The HARC Proceeding on May 24th

The Staff Report on page 2 says that HARC mainly had questions on aesthetic details. The council must be informed that this is a complete misrepresentation of what happened.

In fact, HARC went into executive session with the city attorney for 25 minutes, following allegations by speakers that the Open Meetings Act was being violated, and that the Hat Creek application failed to conform to the Master Plan on several counts, including:

  • the new building failed to be oriented to the street
  • the new building failed to give access to pedestrians
  • the new building failed to present an “Active Edge” to sidewalk pedestrians
  • the new building failed to be two stories in height

In addition, when HARC resumed session, it presented Hat Creek with a very lengthy list of details it required to make a determination on the CDC, and told Hat Creek to include the request for an exception. None of this had been brought by the applicant to the meeting.


13. HARC Arguments at Council

Council must understand that even with a special use permit this project must fail at HARC. The criteria are very precise and clear-cut. This project essentially defies the requirements of the Design Guidelines in numerous ways. The HARC obstacle is formidable.

All council achieves by granting a special use permit is the unjust enrichment of Jay Hailey’s land, and opening the door that P&Z wanted kept shut. When the application for a CDC fails at HARC, if it’s appealed to council, council will have even less ground to stand on to support the project than with the SUP.

As a side note, it’s worth the reminder that the Design Guidelines in the Downtown Overlay District are not actually guidelines, they are laws, and must be obeyed as such. And as the Guidelines explain, for its purposes “Should” means “Shall.”


14. No Setbacks

When most developments require setbacks from the street, why does the Downtown Overlay District offer zero setbacks? The intent is to emulate typical historic downtown business areas, with attractive and accessible frontages – the so-called “active edge” – right along the sidewalk. This is geared to a high density of pedestrians.

The Hat Creek project grossly takes advantage of the zero-setback allowance in order to shoehorn in a suburban architectural design that ignores the sidewalk and actually makes life hard for the pedestrian. The design extends to the sidewalk edge only to build a bigger parking lot, to accommodate a drive-through, and to squeeze a non-pedestrian-friendly building stuffed in the corner.

Inexplicably the design doesn’t even put the building at the 5th Street end of the lot, where at least the land is level with the sidewalk. The pedestrian welcome is turned on its head and made a pedestrian obstacle. Pedestrian access is by way of stairs up a hill! The three sidewalks face a parking lot, a forbidding retaining wall, and a brick wall with some non-display windows.

How the Hailey architectural firm could make such a blunder, given Jay Hailey’s experience with Master Plan requirements back in 2004 in his Phase 2 discussions, remains a mystery.


15. The HARC Exception

Hat Creek needs an exception from the 2-story requirement to build its building. The criteria to grant an exception are very strict:

“The proposed building shall be an extraordinary contribution to the aesthetic and economic goals of the Downtown Master Plan.” – UDC Section 4.08.020(B)(1)(c)

Without this exception, the Hat Creek proposal as it stands cannot proceed. For the project’s economic contributions, other speakers demonstrate zero economic contribution to the town as a whole, and probable damage to property values in the Downtown Overlay District. For the aesthetic contribution, the aesthetic defects are numerous.


16. Zero Economic Contribution

The economic contribution of the Hat Creek project to the city will actually be equal to zero.

  • The company has produced no plan to increase burger consumption in the town, so every burger bought at Hat Creek will be a burger not bought at another burger place in town.
  • Restaurants fail easily in Georgetown but if Hat Creek succeeds, then conceivably another place must fail, throwing its employees out of work.
  • Employees of a fast-food business are low-paid, have high turnover, and have very few prospects offered by the business. The project supplies no future to the youth of Georgetown.
  • We should not offer any assistance to a project that fails to advance the goals of the developing area it inhabits, nor even the tax revenues of the town.
  • The proposal offers no extraordinary contribution to the economic goals of the Master Plan. It requires a special use permit to operate and an exception to the Master Plan even to be built, and perhaps now a zoning variance to provide entrance and egress. How much life support must we offer this entity for it to make a profit? Hat Creek asks for so many favors from the city, it’s hard to see any contribution whatsoever. It seems to be a net loss rather than gain.


17. Zero Aesthetic Contribution

The aesthetic defects of the project are numerous:

  • a modern suburban look rather than a downtown, historic urban look
  • cars and traffic everywhere
  • close intermingling of children with traffic
  • asphalt rather than green
  • no “active edge”
  • no attractive window views
  • no enticing entrances for pedestrians to stroll into the business and shop
  • a pedestrian-repellent retaining wall along Austin Avenue
  • solid brick wall facades along 4th Street
  • impediments to walking
  • no relaxed and safe gazing because the pedestrian must remain alert for traffic at all times.

If we expand “aesthetic” to include sound and smell, the assault on the physical senses is great, to say the least. To say more, the smells of cheap frying oil and half-burned gasoline fumes, combined with the unmistakably low-cost sound of drive-thru chit-chat, is hardly a joy for the strolling pedestrian, who must conclude that the downtown area has now ended, and the commercial strip zone has begun.




Appendix A.
The controlling code for the council proceeding, edited for clarity and dramatic effect:


Section 3.07.030 (Special Use Permit Approval Criteria):

C. In addition to the criteria for zoning changes in Unified Development Code (UDC) Section 3.06.030, the City Council may approve an application for a Special Use Permit where it reasonably determines that there will be no
significant negative impact upon residents of surrounding property or upon the general public. The City Council may consider the following criteria in its review:

1. The proposed Restaurant with Drive-Through is not detrimental to the health, welfare, and safety of the surrounding neighborhood or its occupants.

2. The proposed Restaurant with Drive-Through is harmonious with the character of the surrounding area.

3. The proposed Restaurant with Drive-Through does not negatively impact the existing uses in the area and in the City through impacts on public infrastructure such as roads, parking facilities and water and sewer systems, and on public services such as police and fire protection and solid waste collection, and the ability of existing infrastructure and services to adequately provide services.

4. The proposed Restaurant with Drive-Through does not negatively impact existing uses in the area and in the City through the creation of noise, glare, fumes, dust, smoke, vibration, fire hazard, or other injurious or noxious impact.


Appendix B.
Page 17 of Jay Hailey’s 2004 agreement with the city for Phase II, never developed. The rendering is probably not compliant with the Master Plan, but demonstrates the sanity of placing the building at the 5th Street end of the lot, where the land is level with the sidewalk.

Notice the pedestrian friendly building with its Active Edge on 5th Street and Austin Avenue. The vehicle access from Austin Avenue. The building opening right onto the sidewalk. Compare this with the current proposal, which you can view in the story immediately below this.

Development Agreement 17


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