Frequently Asked Questions:
BIG BOX RETAIL AND CONDITIONAL USE PERMITS
What is a Conditional Use Permit?
Technically, a Conditional Use Permit is defined as:
"Written governmental permission allowing a use inconsistent with zoning but necessary for the common good, such as locating an emergency medical facility in a predominantly residential area."
In layman's terms, a Conditional Use Permit lets you build something that normally wouldn't be allowed under current zoning because you can show that it will benefit the community.
Why do we need a Conditional Use Permit for Big Box developments?
Right now, Austin's Land Development Code allows big box supercenters on any site zoned for General Retail or Commercial use. This means supercenters with buildings the size of 5 football fields surrounded by 20+ acres of paved parking are allowed in the same zoning category as any mom & pop hardware store.
The current code does not provide a tool to weigh the true costs of these mammoth projects to the community, including local businesses, neighborhoods, area workers or the city's own budget. A Conditional Use Permit for big boxes will ensure needed protections for our community without the trouble and expense of developing a whole new zoning category.
Why don't Big Box supercenters have a separate zoning category already?
Austin's Land Development Code was drafted decades ago, before anyone imagined 24-hour stores over 100,000 square feet in size. If the code were written today, it would certainly include a separate zoning category for these massive boxes.
Austin's Land Development Code does strictly limit height in nearly every zoning category, to protect neighbors from inappropriate development. But despite well-documented problems with supercenters, the code makes no distinction based on a project's "footprint" size for either the structure or the surrounding parking. It's high time to patch this hole in the code.
How would a big box Conditional Use Permit work?
Any future proposed big box development would require a Conditional Use Permit. In addition to the current code provisions, a big box Conditional Use Permit would include a mandatory impact analysis to measure the net costs and benefits to the community. The impact analysis would be paid for by the applicant, but conducted by a neutral third party. It would assess projected community costs related to the project, including increased infrastructure, public safety, drainage, road construction and maintenance; it would also include an assessment of health care and housing costs, based on projected employee wages, as well as impacts to local businesses, the environment and adjacent neighborhoods. The study would also note any potential benefits, such as the creation of livable wage jobs or a net increase in sales tax above those lost by neighboring stores. If the study showed a net benefit to the community, the permit would be approved. If the study showed net costs to the community that the applicant was unwilling or unable to mitigate, the permit would be denied. In short, the impact analysis would give the city a tool to accurately assess a project's true costs before giving it the green light.
What size store would need a Conditional Use Permit?
Other cities with similar ordinances have generally set the trigger at about 100,000 square feet, though some have chosen to go with much lower number.
The 100,000 square-foot trigger would still allow a very large store to be built without a Conditional Use Permit. For example, the HEB supermarket at Hancock Center (41st & 1-35) is less than 100,000 square feet and would not require a Conditional Use Permit under this proposal.
We believe 100,000 square feet is a generally acceptable size to trigger a Conditional Use Permit requirement, but we have purposely left this number undefined in our proposal to City Council because we feel the appropriate figure deserves a fuller public discussion.
The Conditional Use Permit requirement is intended to apply only to the massive new supercenters, not traditional-sized supermarkets or retail stores. The number that triggers the C.U.P. must accurately reflect that goal.
Who would pay for the impact study?
The applicant would be charged a fee to pay for the impact study, which would be conducted by a neutral third party.
What are Austin's current regulations for Conditional Use Permits?
Austin's complete current regulations for Conditional Use Permits can be found in the city's Land Development Code, Sections 25-5-145 through 25-5-150. http://www.amlegal.com/austin_nxt/gateway.dll/Texas/Austin/title00129.htm/chapter00134.htm?f=templates$fn=altmain-nf.htm$3.0#JD_25-5-145
Some of the chief provisions are summarized below. If a Conditional Use Permit for big boxes is adopted, these provisions could be augmented to require a community impact study.
A conditional use project must:
- be compatible with adjoining sites for the project's height, bulk, scale, setbacks, open space, landscaping, drainage, access, traffic circulation, and use.
- protect people and property from erosion, flood, fire, noise, glare, and similar adverse effects;
- if located within the East Austin Overlay district, the project must comply with the goals and objectives of a neighborhood plan adopted by the city council for the area in which the use is proposed.
A conditional use site plan may not:
- more adversely affect an adjoining site than a permitted use would;
- adversely affect the safety or convenience of vehicular or pedestrian circulation, including reasonably anticipated traffic and uses in the area;
- adversely affect an adjacent property or traffic control through the location, lighting, or type of a sign;
- adversely affect the public health, safety, or welfare, or materially injure property.
Does Austin have any current zoning regulations for big box stores?
No. Despite their massive size, supercenters are allowed on any site that is zoned for Commercial or General Retail use.
How do you find out if a supercenter is planned for your area?
Under the current Land Development Code, you are only notified if your property is within 300' of the project. This may be adequate notice for a traditional store, but a supercenter's impacts extend well beyond the 300' range. We believe this notification distance must be adjusted for supercenters to reflect the true range of their impacts.
How are other cities handling big box development?
Austin is not alone in facing a sudden growth spurt of big boxes. Communities across the U.S. have been wrestling with super-sized retail for at least a decade.
Many cities have already adopted new zoning tools to get a handle on these outsize retail players. One practical approach is the community impact review, like the impact analysis called for in our Conditional Use Permit proposal. This tool does not ban big box, but gives the city a way to accurately assess the impacts and costs of a proposal - and to seek mitigation if needed - before it grants approval.
Criteria for such reviews vary, but may include impacts on local businesses, employment (jobs gained versus jobs lost), wages, tax revenues, road maintenance, public safety, historic resources, air and water pollution, and traffic. Cities typically require these reviews to be conducted by independent consultants chosen by the city council and paid for by a fee assessed on the developer. In most cases, a public hearing is also held to gather citizen input. In the end, if the city council determines that the project's overall costs outweigh the benefits, then the developer is denied a permit to proceed.
Additional policy measures used by other cities include: size caps, comprehensive plans, development moratoria, formula business restrictions, local purchasing preferences, neighborhood serving zones and regional impact reviews. For more information on big box policies, see http://www.newrules.org/retail/index.php
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