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.
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."