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Bradley deal scrutinized as City Council moves toward March 9 vote

Friday, February 18, 2000 by

Questions and concerns raised and will be answered, council says

Snowball's chance or a doable deal? It's still too soon to tell. Too many people are still combing the proposed Bradley Settlement at this point, and the City Council isn't slated to vote till March 9. The environmental community is treading through the material as if there's a rattlesnake under every rock on the 3,000 acres being negotiated, and hasn't come out in force yet. But last night the political firepower showed up when Robin Rather, chair of the Save Our Springs Alliance (SOSA), made a rare appearance. She has traditionally appeared before the council only in the direst of circumstances.

SOSA hasn't taken a position for or against the settlement yet–indeed, they still don't have copies of all the exhibits and maps–but they've gotten far enough into the analysis to arrive at four major concerns, Rather said. The deal must be enforceable, it must end problems not only with developer Gary Bradley but with the grandfathering effects of state legislation, it must be clear why this "mother of all variances to SOS" is necessary, and it must be nailed down so it's not subject to revisiting.

As to enforceability, SOSA is asking for an independent, private third party, a nonprofit trust, to be added to the agreement and be given legal standing. "We know you understand our extreme concern over this deal because the track record of special deals like this one is as abysmal as it can possibly be," Rather said. "Other concerns may be moot if enforceability is not ensured." Attorney Casey Dobson of Scott Douglas & McConnico, who is negotiating with Bradley on the settlement, later replied, "The independent third-party nonprofit may be difficult to resolve but we'll work on it." Rather later told In Fact Daily, "I think it's totally doable and reasonable. A bigger problem may be getting the Nature Conservancy, the Trust for Public Land or another land trust to agree to it."

As to ending problems with Bradley and grandfathering in general, "If we can end those problems we'll be all for it," Rather said. "It appears to be a joint venture, an ongoing dialogue, more of a beginning than an end. I challenge you all to tell us how this will become an end to our problems and not perpetuating our problems." To this, Dobson later replied, "What it's an end to is the uncertainty of whether we have any municipal authority over these 3,000 acres. Yes we'll be tethered, but in terms of this deal that are binding."

Rather said the deal has customized provisions that are not consistent with the SOS Ordinance. "SOSA has consistently argued that special deals favor the rich and powerful and are therefore unfair," she said. Council Member Daryl Slusher noted, however, the Legislature "passes ordinances not in accordance with local control." Mayor Kirk Watson also addressed the point. "The Legislature has come in and trumped the idea we'll all play by the same rules," he said. "This agreement says when we can't have everyone play by the same rules, we'll provide the highest level of protection we can."

Jim Camp, communications chair for the Hays County Water Planning Partnership of more than 300 members, focused on wells to be drilled in the Trinity Aquifer to irrigate the planned golf course. He requested that wells be drilled within the boundaries of and be regulated by the Barton Springs/Edwards Aquifer Conservation District. He asked that, in cases of drought or other extreme conditions, that pumpage not be allowed to hurt area wells. Watson noted that the deal calls for the City of Austin to provide surface water to the development and own the groundwater rights except for wells in the Trinity Aquifer to irrigate the golf course. Slusher agreed the pumping limits were needed. "Keeping water in the aquifer is more important than a golf course getting dry in a drought," Slusher said.

Council Member Willie Lewis asked if the settlement didn't get approved what wells Bradley would be able to drill. Dobson said, "Bradley told me if there were no deal he could comply with full SOS (Ordinance requirements) and develop enough homes on the Edwards ( Crossing) and Pfluger tracts and be drawing more water than the golf course will draw." Dobson said staff was checking the numbers. In addition, Bradley had agreed to allow the conservation district to oversee drilling–even if the wells are outside the conservation district's boundaries–to ensure that when drilling through the Edwards Aquifer to reach the Trinity, the wells are cased so no water will be drawn from the Edwards. Further, the district will be allowed to monitor drawdown in the wells, Dobson said.

Camp also raised the question of whether MoPac Expressway would be extended south to reach Spillar Ranch, something the public resisted in hearings regarding the Hays County roadway plan, he said. Dobson said that Bradley had agreed to let the City of Austin size the extension of roadways to serve the development.

Karen Hadden, who came in third in the Place 5 City Council election in 1997 on a budget of less than $6,000, said the deal involves clustering dense development in some areas–but nothing binds future councils from allowing the other areas to develop densely. "It appears we're burying the hatchet but we could get a string of other lawsuits from others who want the same deal as Gary Bradley," she said. Dobson said for development denser than 15.9 percent impervious cover to be allowed in the future would require the City Council to give up rights. "It seems if a future council is taken over by aliens from Dallas they will have a much bigger political problem and legal problem giving back our property rights, giving back our groundwater. While no council can control the policies of a future council, you've got a lot more certainty with property rights and contractual rights than without them."

Robert Singleton of Earth First! presented seven pages of questions, the answers to which the city promised to post to the city's web site . He said there were blanks and missing exhibits, and footnotes were needed where the City Code is cited in the agreement, to facilitate lay understanding. "It's not a simple case of capitulation if we don't take this agreement," he said. "I think it's capitulation if we do take it."

Slusher asked that an exhibit be prepared to compare and contrast the development to be allowed under the settlement with the development possible under grandfathering laws and under the scenario that Water Quality Protection Zones are upheld by courts of appeal.

Dobson offered to make a presentation to any group that wants it and said that could be arranged by calling his law office at 495-6300. Assistant City Manager Toby Futrell said anyone without Internet access can get copies of the settlement agreement by calling the Public Information Office at 499-2220. City Manager Jesus Garza directed that copies be placed in all branch libraries.

Two more public hearings are scheduled for the agreement, March 2 and March 9, with the council scheduled to vote on the latter date, not only on the agreement itself but on zoning and limited purpose annexation.

Council gives Planning Commission last chance on East Austin warehouse

If Planning Commission doesn't act on Feb. 29 it's out of their hands

City Council members agreed Thursday to hold a public hearing and vote on zoning and a conditional-use permit for an East Austin warehouse next month–whether the Planning Commission makes recommendations or not. The city wants to use the Brown Distributing Co. building at 411 Chicon to house its Building Services Division, as a base for dispatching workers all over town ( In Fact Daily Feb. 2, Feb. 9). The commission has twice postponed action on the item, once at the request of Commission Vice Chair Betty Baker, who was absent, and once on a request from the neighborhood. However, commissioners did recommend approval of a request to move $1.515 million from the CIP Contingency Project to the Building Maintenance Facility project account, but with the stipulation that this did not constitute a recommendation that the property be used for the Building Services Division.

In an unusual action, Council approved an ordinance setting the public hearing for March 23 even though the Planning Commission has not acted on the requested zoning and permit. If Planning Commissioners fail to act on Feb. 29, the date of the group's next scheduled meeting, the ordinance says, "Council will deem the (inaction) to be a decision by the Planning Commission to forward the zoning application" to Council without a recommendation. If commissioners do not act on the conditional-use permit, the ordinance says, their inaction will be considered a denial.

Mayor Pro Tem Jackie Goodman also asked city staff to recommend amendments to the Land Development Code that "will allow us in this busier time (of development) not to overload the Planning Commission. We are being forced to postpone 14 items on our agenda (today)," Goodman said, "because the Planning Commission couldn't get to them." Goodman said she would like the staff to recommend what "busy work" could be deleted from commission agendas.

Council Member Daryl Slusher said, "If there's a loophole in the ordinance (governing the Planning Commission) that allows the Planning Commission or any commission–as an obstructionist move–to keep stuff from getting to Council, we ought to close that loophole." Slusher told In Fact Daily he had not talked to any members of the commission about the project, but he was concerned the group might postpone the item indefinitely.

Ten of the items related to Smart Growth amendments to city regulations. Some of those items were postponed at the request of citizens and some because of the late hour and other business. The commission did not adjourn Feb. 8 till nearly midnight. Commissioner Gwen Webb said, "There was a lot of neighborhood consensus that they (neighborhood people) hadn't had time to consider the amendments." Webb said the commission could not digest all the amendments at one time and hold adequate hearings on them.

As for the Brown property, Webb said, "The schedule worked against a quick decision and it's a highly controversial matter." There were five other city hearings occurring elsewhere on the same evening, Feb. 8, involving the neighborhood, she said. She said the postponement was a reasonable request. "There needs to be more coordination (of meeting times)," Webb said, "unless you're just scheduling them for procedural reasons."

Commission Chair Art Navarro said he voted against the postponement request. "I live in the neighborhood. I know the objections. I felt I had enough information to act on" the zoning and conditional-use permit, he said. Navarro and Commissioner Susana Almanza were on the losing end of a 6-2-1 vote to postpone the zoning and conditional-use permit, with Commissioner Baker off the dais.

The total agenda was 60 items, according to Navarro. He said the commission will have an executive session on Feb. 29, at which time, Navarro said he expects to discuss with Alice Glasco, director of the Development Review and Inspection Department (DRID), how the commission can better utilize its time.

However, Navarro said, the law requires that many items must be read into the record at the beginning of each meeting. So, even though those matters take up valuable time, they cannot be delegated to some other body. Navarro said the commission would not be meeting again until Feb. 29 because DRID and other staff are moving from the annex to their new quarters.

Commissioner Baker said, "I don't think we do busy work." Baker said she did not believe the length of the agenda caused the commission's failure to act on the zoning and conditional-use permit. "Our opinions differed and our differences were great. Each of us defended our differences at length. It's a diverse group. We're not going to rubber stamp anything," Baker said.

The City Council–whether it realized it or not yesterday–has a historical precedent for even swifter action in overriding the Planning Commission. On July 11, 1995, the Planning Commission voted for the third time to postpone a decision to permit Tokyo Electron America Inc.'s $30 million facility near Sematech and AMD in southeast Austin. Just two days later the City Council–which wanted to avoid sending the message that the company's U.S. headquarters was not wanted in Austin–bypassed the Planning Commission and approved the project. That decision resulted in Austin having two makers of semiconductor manufacturing equipment, as Tokyo Electron joined Applied Materials. (See In Fact No. 2, July 19, 1995.)

A modest proposal

Clearly the Planning Commission seems too swamped now to keep up with the floodtide of work before it and a former member has a possible solution. Dave Sullivan left the Planning Commission in the summer of 1998 after five years of service. He was at the Feb. 8 meeting when the big batch of Smart Growth amendments were postponed, some very late in the meeting. "The rapid growth rate of Austin–some three times the national growth rate–overwhelms the Planning Commission with hundreds of scattered, controversial zoning cases on individual lots of land at the expense of doing strategic long-term, region-wide planning," he said. "It might be better to resurrect the Smart Growth Task Force (on which he also served) as a standing committee by establishing a Comprehensive Planning Commission in the City Charter, with the current Planning Commmission converted to a Zoning Commission."

Council creates new board to rewrite the Town Lake Overlay

Goal to provide clarity for future development on the waterfront

The uncertainty of what regulations govern development on the shores of Town Lake will be tackled by a new board created yesterday by the City Council. The gray areas in existing rules made it harder for the council to decide how to deal with the controversial Gotham condominium project. Houston developer Randall Davis wanted to build the high-rise structure at the southwest corner of Congress Avenue Bridge. On Dec. 9 the council voted 4-3 to indefinitely postpone a final decision on the zoning change Davis had requested. The motion included a mandate to rewrite the Town Lake Waterfront Overlay Ordinance ( In Fact Daily Dec. 10).

The Town Lake Overlay Advisory Board will be asked to take up the matter and provide recommendations to the City Council. The 16 people assigned to the board represent stakeholder groups affected by the Waterfront Overlay, as follows:

Maria Elena Bernhardt, Rainey Street Neighborhood Association

Elaine Carter, Parks and Recreation Board member

Moton Crockett, property owner

Tim Fulton, Austin Parks Foundation

Silver Garza, property owner and attorney

Carolyn Kelly, neighbor and designer

Liz Lambert, hotel owner

Xen Oden, Sunridge Homeowners Association

Roland Ortiz, Montopolis Area Neighborhood Improvement Council

Chris Riley, Downtown Neighborhood Association

Marilyn Rogers, neighbor

Sandy Schwartz, Austin American-Statesman

Wendy Price Todd, designer

Joneth "Jay" Wyatt, Urban Transportation Commission

Max Woodfin, South River City Citizens

John Wooley, property owner

A top cop retires…At ceremonies during yesterday's City Council meeting, Mayor Kirk Watson took great pride in providing a fitting farewell to Ruben Lopez, who when promoted to assistant chief in 1993 made history as the highest ranking Hispanic in the Austin Police Department. Lopez joined the APD in 1972 and earned 66 commendations during his 27-year career. His most recent assignment was to oversee the process of national accreditation for the department. "A friend talked me into it and I passed the test and he didn't, and I never looked back," Lopez said of his start. "You've got one of the finest departments, and it will go forward," he said… Paid to act…Before the afternoon session of the City Council meeting got underway yesterday at Austin-Bergstrom International Airport, Council Member Gus Garcia was telling a few people that in his nearly nine years on the City Council he had rarely ducked a vote and regretted even those instances. "You don't pay me all these big bucks to abstain," he said. Council members are paid $30,000 a year… Uh-uh honey…Yesterday as attorney Terry Irion was basking in the glow of having finally gotten a last-minute agreement with neighbors over the hard-fought Vista Ridge Planned Unit Development, he was contemplating "what's next, a topless bar?" He and fellow attorney Richard Suttle both said they had been offered lucrative jobs to get topless bars approved, a challenge that was sure to encounter the mine fields of city red tape and battles with citizen warriors. Both said they turned down the chance at the urging of their wives. As to the Vista Ridge project, the City Council was so pleased they didn't have to play Solomon to solve the dispute they literally applauded the parties before voting 7-0 to approve zoning on third and final reading… Forward thinking…Yesterday Mayor Kirk Watson accepted the material needed for City Council members to put their personal thoughts down for posterity. Yolanda Teran said the results will go into storage at the Austin History Center. A plastic capsule would remain in the mayor's office will remind a future mayor to open the container in 50 or 100 years… Delayed evaluations…Both City Auditor Helen Niesner and City Clerk Shirley Brown were due for annual performance evaluations yesterday, and maybe big raises from their current $82,430 salaries, but the matter was postponed. Niesner is president of the National Association of Local Government Auditors and has been with the city 22 years. Brown was hired in November 1998, and is being asked to take over the city's records management function in addition to other duties… Alvarez dances for dollars…Tonight at the Victory Grill, 1104 E. 11th St., Place 2 City Council candidate Raul Alvarez will be raising money for his race against Rafael Quintanilla. Meet the candidate and eat buffet from 5:30 to 7 p.m. and dance from 7 to 11 p.m. For more info call 478-7969… Pay up..That's what the City Council decided to do yesterday for overtime compensation that was sued for by more than 200 Austin firefighters. After an executive session regarding Acker, et al v. The City of Austin, the council voted 7-0 to authorize payment not to exceed $226,500 to compensate them for hours in excess of 40 per week they worked while cadets between 1992 and 1997. Of that amount, attorneys fees will be $13,000 to $15,000. "The understanding was to allow them to work the same 53-hour week as commissioned firefighters and that was not correct," said attorney Dana Johnson.

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