Zoning

An Austin Zoning Technicality Made His Landscaping Business Illegal Overnight

Brandon Krause has spent $30,000 trying to legalize a business that the city said for years was all up to code.

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Brandon Krause had no reason to think he was doing anything wrong when he moved his nursery landscaping business, Perfect Cuts, into its current location on Pond Springs Road in Austin, Texas, six years ago. The 1.77-acre parcel sandwiched between an office park and water tower seemed like an ideal location.

It was close to a lot of rental housing, making it a short commute for his employees. The property's commercial zoning didn't seemingly conflict with his landscaping business either. The previous occupant had been a plant nursery. The city quickly issued him permits in 2016.

But after a few years, officials started telling Krause that his property couldn't be used for a landscaping business. Code enforcers slapped him with fines and told him he'd have to go through the long, expensive rezoning process if he wanted to do business there.

"I'm $28,000 in the hole right now as we sit talking today, and I still have to go through the city council and a few of the applications. I probably have another $6,000 or $7,000 to spend," Krause says. He also has a pending case in municipal court that could lead to tens of thousands of dollars more in fines.

Such sanctions stand in stark contrast with the exceedingly technical violation he's accused of.

Krause's Pond Springs property is zoned "community commercial-conditional overlay," or GR-CO, which allows plant nurseries as a conditional use. The city had initially classified Krause's landscaping nursery business—which purchases and installs plants as part of its general landscaping business—as a nursery as well.

That changed in 2019, when Krause applied for permits to repair a two-story structure on his property that had been damaged by a storm.

At first the city granted Krause the permits, according to Nikelle Meade, a lawyer with Husch Blackwell who's representing Krause. But once work was underway, code enforcement showed up and cited Krause for having an illegal use on his property.

His business, he was told, wasn't a plant nursery after all. Instead, they said, it was properly classified as "construction sales and services"—a use that is not allowed on GR-CO zoned properties.

Krause has been trying to bring his business into compliance ever since.

For the first six months, he tried to do this himself. But navigating Austin's planning bureaucracy was a nightmare.

"No matter where I went, I got redirected to a different floor. So I just got to the point where I couldn't do it," he says. In frustration, he hired a planning consultant to assist him. That didn't work either.

Eventually, he was told that he'd have to apply for a wholesale rezoning of his property. That's an expensive, lengthy process that requires Krause to go through two public hearings and win approval from the city council.

Nearby property owners are also notified about the application and given an opportunity to comment. Several sent letters complaining about Perfect Cuts.

One nearby homeowner complained that noise from the business's vehicles was disruptive and would only get worse if Perfect Cuts were legalized. Another neighbor, Alyssa Oynx, complained about Perfect Cuts workers playing Tejano music "with an amount of volume and bass that should be illegal." She also said that some employees catcalled and gawked at her while she sunbathed in her yard.

Krause says that he has fielded some complaints from neighbors about his workers playing music too loudly and socializing on the property, but that he has addressed those issues.

City staff at the Housing and Planning Department were also opposed to Perfect Cuts' application. They recommended that the property be rezoned, but to a slightly different commercial zoning status that would still prohibit the landscaping business.

That would force Krause to move, something he says would be costly and disruptive to him and his workers. "I'd probably lose 25 percent of my workforce," he says. "Just in them trying to find housing, maybe not wanting to make that drive. With the labor shortage, everyone has more options than they used that."

Fortunately for Perfect Cuts, Austin's Zoning and Platting Commission was much friendlier.

"This is a really torturous process having to rezone properties, to see us, just for landscaping," said one commissioner at an early February hearing on Perfect Cuts' rezoning request, according to the Austin Monitor (which first reported the story).

The commission ultimately voted 7–4 in favor of Perfect Cuts' rezoning request. The business has another hearing scheduled with the city council in early March, says Meade, which will then vote on whether or not to approve the business's application.

But even if the council approves its rezoning application, Krause still has a pending case in municipal court that could see his business heavily fined.

"The court gets to decide how much of the fine they will impose against him. Us getting it rezoned doesn't ultimately wipe out those fines," says Meade. She is petitioned the court to dismiss the case and waive any fines.

Early zoning codes tried to physically separate supposedly incompatible uses: commercial, residential, industrial. Over time, these regulations have made ever-finer distinctions over what kind of activity is permitted or prohibited.

"Some zones allow colleges but not trade schools, new car sales but not used car sales, restaurants but not catering services, and firearm sales but not farmers markets," notes a 2020 report from George Mason University's Mercatus Center.

That specificity gives city officials a lot of arbitrary power to decide what is or isn't allowed on an individual piece of property. The result: People like Krause can have a legal business one day and an illegal operation the next.

Krause is hopeful everything will be resolved in his business's favor. The process has nevertheless been draining.

"It's highly frustrating. I've lost a lot of sleep over it," he says. "I don't feel the city has been very business-friendly. It should have been an easy fix and they've repeatedly found ways to tell me I'm out of compliance."

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  1. Austin is blue.
    His mistake was doing business there.
    Go landscape somewhere in Free America.

    1. More to the point, it's a haven for Laptop Class shitlibs. "Keep Austin Weird" wasn't too big of a deal when the culture revolved around the music and food scene there. The influx of California tech workers and a lot of Hollywood types (a lot of Texas-based movies are filmed in and around the Austin metro) in the last 10-15 years resulted in the same thing that happens anytime a city caters to the tech bugmen--it turns into a socially dysfunctional, traffic-choked shithole with increasing income inequality, rampant drug use, and homelessness.

      Dude needs to relocate to either a high-trust red community in the state, or move down to San Antonio, which is blue, but at least has a blue-collar character that would be more amenable for his business.

      1. I give Texas at most 20 more years before it is California through and through.

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    2. There are problems with zoning, but most people don't want to live in a shithole industrial park so it has its place. The guy should have made sure his business was allowed before he moved in. The fact that neighbors have been complaining seems to indicate that the zoning has some merits.

      1. RTFA. He did make sure his business was allowed. Then the zoning commission changed its mind.

  2. Probably said the “wrong” things on Facebook or Twitter.

  3. The best part about this story is the universal government truth....

    You cannot rely on the government's word. Even after the government said he was good to go, the business owner is still responsible for any code violations the city later seems, regardless of what they said earlier.

    It is exactly the same if you go to the IRS to get help with difficult tax issues. Even an IRS agent explicitly telling you to file things in a certain way, in writing, is no defense of another agent later decides differently.

    I had one case where I followed the exact example from the IRS manual - it was a perfect match to my scenario in every detail. Even with a copy of the book, page and volume references and a detailed explanation in writing, it took 5 years to resolve... And they kept threatening fines and even criminal penalties. All over $440. And they were wrong.

    If you cannot rely on the written examples from the people who write the rules, how are you ever supposed to comply?

    1. If you cannot rely on the written examples from the people who write the rules, how are you ever supposed to comply?

      Some of it is just bureaucrats trying to justify their phony-baloney jobs, but I honestly think there's something more insidious at work here.

      I think we're starting to enter a period in the country's history where the generations responsible for keeping all these complex systems running just don't have the intellectual or emotional tools to sustain it. The people running things now proudly marinate in their own mental illness and neuroses, resent the people above them, and have contempt for those below them. They've been brainwashed by neomarxist pedagogies for the last 30-40 years into believing that "having dreams" and "changing the world" are more important than ensuring that what your forebears bequeathed to you is at least sustained, at the minimum, so you don't end up like some shithole in Africa whose infrastructure and administration went down the toilet after the Europeans pulled out.

      The pandemic has revealed that we have 2.5 generations (Millennials, Zoomers, and the back half of Gen-X) who are so risk-averse now that they can barely make even the simplest of decisions without running everything through their Boomer boss first. Once the Boomers are finally off the scene, I suspect we're going to epitomize the concept of "managed decline."

      1. I agree that we've got generations that are risk averse because of the current obsession with safety, but I disagree with the idea that it will cause the system to fall apart. Maintenance doesn't require risk taking. Rather I think things will stagnate rather than improve, because improvements mean taking risks.

        1. Stagnation in this case means destruction. It means systems become ossified and are unable to meet changing conditions.

          Nothing is immune from evolutionary pressures.

          1. Yeah, when the western Roman Empire fell apart, Europe didn't descend in to chaos. What basically happened is that the larger administrative infrastructure ended, and the various regions had small-scale versions of what was in place before. The Goths and the Vandals actually tried run their territories like Romans, with a bit of Germanic tribal politics added in, because that was what the locals knew and understood.

            It wasn't really until the rise of the Franks and the invasions of Islam and the Vikings to these areas that feudal structures became a lot more prominent.

      2. Hey leave Gen X out of this! We are not risk averse or indecisive. People just forget we're here and think the Millennials are next in line. I am completely aligned with your views.

    2. It's the double speak we've been warned about and have seen used in totalitarian regimes all over the world. It's the nature of government.

      HOAs tend to be like this too.

  4. Related: "You could get paid to start a business in downtown Denver"

    Sounds great, right? Not so fast:

    DENVER (KDVR) — With Denver Police seeing an increase in crime downtown, the calls for service are piling up — and so are the vacant storefronts.

    Downtown at 16th and Champa Streets has one of the city’s top three highest concentrations of drug and alcohol crimes, along with Union Station and Civic Center Park, according to a FOX31 Data Desk report. The intersection of 16th and Champa recorded 53 crimes, many of them alcohol-related, between Jan 1 and Dec. 1, 2021.

    A new program by the Downtown Denver Partnership is now literally paying business concepts to call 16th Street home, with the Champa intersection one of the targeted areas for the Popup Denver program.

    For those who don't know, 16th Street is the main consoooooooomer strip downtown, and has been for a long time. It's always been something of a bum magnet, but you could walk down the street even at night and still feel relatively safe, and its proximity to Lower Downtown meant that you got a lot of the sportsbar and surburban crowd filtering over as well. From about the late 90s-late 2000s, it was an example of a pretty successful commercial area.

    Around ten years ago, the hood rats who migrate over from east Denver started up with the knockout game. Later, pot legalization increased the number of drug addicts and homeless people on the mall, who go to beg there after camping out in the Civic Center, and the pandemic accelerated all these negative trends, especially after the Antifa shitheads who live in and around the area, and go to Metro State which is right across Cherry Creek from the central business district, destroyed everything during the Floyd riots.

    Denver really has become a dysfunctional shithole, and it's entirely the making of the increasingly radical left assholes who run the school board and city council. And that's not even getting in to the similar shit going on in a bunch of the suburbs.

    1. Long time ago when I went to trade school in Denver I'd ride the trolley up 16th Street. The McDonalds there served the best biscuits and gravy. Never seen it on the menu anywhere else.

      1. At any other McDonalds that is. Had to clarify for the pedants.

      2. I know exactly which one you're talking about. That was a frequent stop for me during my Auraria years, because you could get a cheeseburger, small fries, and small Coke for dirt cheap so you wouldn't go hungry.

        That place has been kind of a skeevhouse for a long time, but I wouldn't set foot in it now.

    2. What Denver needs is a strong organized crime group to come in and take control in the areas the state is ceding.

      Sure, it's organized crime but really, what's the difference between one stationary bandit and another?

      1. Denver's culture, like a lot of western cities, was never really congenial to forming up a traditional mafia. Even with the various ethnic enclaves, the city went through nativist and puritanical streaks at certain points in its history which prevented something like this from ever really gaining a long-term foothold.

        The business leaders and police had sort of a unspoken non-aggression agreement with the demimonde for a long time, until the progressive era, when populists and goo-goo leaders started pushing social reforms against civic corruption. That led to the shutdown of a lot of organized crime in the city, suppression of brothels, and promotion of prohibition to nerf the influence of the ethnic saloons. Denver had an anti-Chinese riot and been influenced in two separate periods by groups such as the American Protective Association and the KKK (including one of the city's mayors in the latter).

  5. Fundamental problem with permitting is that you need everyone in the chain to say yes, and any new guy can say no.

    The obvious solution is to sell plants to cash customers as part of his business.

    But here's the real problem. A heckler's veto.

    "One nearby homeowner complained that noise from the business's vehicles was disruptive and would only get worse if Perfect Cuts were legalized. Another neighbor, Alyssa Oynx, complained about Perfect Cuts workers playing Tejano music "with an amount of volume and bass that should be illegal." She also said that some employees catcalled and gawked at her while she sunbathed in her yard."

    They're playing loud music and starting up their trucks early in the morning. That probably wasn't happening with the nursery. He was a shitty neighbor and they are returning the favor.

    Found an Alyssa Onyx from Austin on LinkedIn
    Professional makeup artist/stylist and paranormal investigator She works the counter at MAC. LOL

    1. If the sound of trucks is coming through your walls . . .

      And I bet the music was during the day, not early in the morning. Someone there just doesn't like dirty Mexicans and their 'Tejano' (as if to suggest Mozart would have been acceptable?) music.

      1. If the neighbors don't like Tejano music, give them the 1812 Overture and see if they like that.

  6. Senor Krause would be better served leaving Austin.

  7. As I've said numerous times here, local government is much worse than the federal government for most of us.

    Zoning needs to be reigned in to something much simpler and consistent, at least within a given state. Too many people believe that zoning is simply a two party classification: residential and commercial.

    Nothing could be further from the truth.

  8. Just another example of authoritarian power flaunting, lying pigs, over regulating.

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