Friday, February 25, 2000 by

Environmental Board scrutinizes details of proposed Bradley Settlement

Boards and commissions expected to vote on deal next week

The city's Environmental Board got an up-close and personal briefing Wednesday night on the proposed Bradley Settlement that if approved would end litigation and set development rules for more than 3,000 acres to be annexed into the city. The two-hour session allowed Environmental Board members full license to cross-examine attorney Casey Dobson of Scott Douglass and McConnico and the key players from the Watershed Protection Department who are negotiating environmental rules for the land, including impervious cover, environmental features and management of the proposed golf course that would drain into Bear Creek. They were Nancy McClintock, environmental resources manager; Les Tull, environmental services manager; Patrick Murphy, deputy environmental services manager; and David Johns, hydrogeologist.

Dobson said as an attorney representing the city there were two forces driving him to make a deal with developer Gary Bradley. First is grandfathering rights, usually referred to as 1704 rights, to which Bradley claims entitlement for development of northern tracts of Circle C Ranch that may be built with density and water quality controls of the 1980s, about 1,220 acres. "We're not in litigation over 1704," Dobson said. "We would be if not for these talks."

The second driving force is the uncertainty of what appellate courts may decide with respect to the legality of so-called Water Quality Protection Zones (WQPZ), which Dobson acidly refers to as "special-interest banana republics." "If we lose the WQPZ case, we're gone," Dobson said. "Our entire range of municipal authority is removed, not just water quality." And if the city should win the litigation? "The opinion of the Supreme Court will be an outline for the Legislature to write another bill next session."

"I'm not able to advise you what they'll come up with, but if WQPZs are done away with they'll come up with something," Dobson said. "The trouble with winning these lawsuits is the opinions are an outline of how better to get it done the next time."

Dobson said three WQPZs are involved in the Bradley Settlement. "People other than Bradley control the land in all of these," Dobson said. The proposed settlement is structured so the city has an ownership right and thus legal standing in future proceedings, if any, concerning WQPZs, Dobson said. A risk the city is running, Dobson said, "is that people who own land in these zones who are not part of the deal will try to muck up the deal we have with Bradley, and I have no doubt we'd be involved in that also." He said "parallel actions" were going on between the city and Circle C Homeowners Association to resolve concerns over annexation and get them to give up attempts to overturn the annexation.

Follow the money

Dobson said that as a result of the 1997 annexations, the city owes Bradley and Stratus Properties for reimbursement of investments made by developers. "We paid Stratus about $9 million. Bradley thinks we owe him $8 million," he said. Under the settlement, "We'll pay him about $5 million with 6 percent interest but no penalty." He said the remaining difference of about $3 million would be submitted to binding arbitration.

The attorney said that a bill passed by the Texas Legislature authorized a "draconian penalty" for late payment of developer reimbursables. "It is a unique seven-figure risk for the city. As part of this deal, Bradley is waving his right to secure those penalties," Dobson said. "It could be about $2 million."

Nailing down development rights

The settlement would supposedly end the city's problems with both 1704 and WQPZs for the Bradley properties. Bradley would agree not to try to reinstitute WQPZs and if they were reinstituted he agrees not be become part of it. "And if he breaks that we have property rights," Dobson said. Asked the odds of Bradley winning the litigation on WQPZs, Dobson declined a direct answer on grounds of attorney-client privilege but added, "It's obvious there's risk. We'd be trading a lot of certainty for a lot of uncertainty" if the settlement is passed up.

Board Vice Chair Jessica Joyce Christi asked if the city would be able to track impervious cover limits against actual building, in view of the fact that Bradley would have latitude to move where impervious cover may be used. Tull replied, "The agreement spells out in excruciating detail the tracking system. There are tremendous obligations on the part of Bradley and other land owners for a 'bucket' of impervious cover." The city must be notified of transfers and they must be recorded in deed records, Tull said.

Murphy added that this is a different situation from old planned unit developments in which impervious cover was not tracked well. The city would own impervious cover rights above the 15.9 percent owned by developers. "I have confidence we can enforce it," Murphy said. Dobson said this provision "makes bankers our allies, because they won't make a loan to build 20 houses in a development unless absolutely certain you've got an impervious cover allowance."

Third-party enforcement requested

The Save Our Springs Alliance (SOSA) has not decided yet whether to recommend approval or disapproval of the proposed settlement. But SOSA has made a strong request for "third-party enforcement," to allow development rights for this impervious cover to be permanently retired while minimizing the deal's vulnerability to actions and inactions of future Legislatures, councils, and staff. SOSA wants a private nonprofit to be given legal standing to administer the rights. SOSA Chair Robin Rather delivered that as part of her remarks to the City Council last week ( In Fact Daily Feb. 18) and SOSA Attorney Grant Godfrey reiterated it in a memo to City Council and attorneys Feb. 23.

"I think the city is taking our request seriously," Godfrey told In Fact Daily yesterday. Assistant City Manager Toby Futrell confirmed that. "How can we logistically do that?" she said. "That's the question. Who does it is less important than how." She said Dobson and other outside attorneys from San Antonio experienced in such matters are examining the possibilities.

Jeff Francell, Hill Country Field Representative for the Texas Nature Conservancy (TNC), tells In Fact Daily that no one has asked his organization to consider such an arrangement. He said the TNC is accustomed to administering conservation easements for large tracts such as ranches. In administering rights for the Bradley Settlement, he said, "TNC would be in a position of dealing with a lot more development and a lot more property owners than we're used to dealing with. It doesn't seem like a good fit."

Francell thinks the city can handle the task. "I think the city can retain the easement and it's still a good technique to protect the agreement over the long term, because the city would have a property right in that land and it would be difficult to remove. I think an easement's a good fit but I don't think a nonprofit holding it is necessary. You can get the same benefit with the city holding it. If someone has a property right, Gary Bradley will have a hard time figuring a way around it."

The Trust for Public Land does not administer conservation easements, says Valarie Bristol, a former Travis County commissioner who became director of TPL's Texas state office Feb. 1.

Ted Siff, former state director for the TPL until two months ago, and now doing business as Creating Common Ground, tells In Fact Daily he has not been consulted in this matter. But he says, "The concept of a nonprofit charitable organization–better known as a land trust–managing a land easement in the Bradley Settlement is totally appropriate. Public agencies partner with land trusts all over the country to assist them in running their open spaces." On the other hand, Siff added, "The question would be what legal standing the nonprofit would have. A lawyer might study that…I support SOSA's recommendation for the city to do it."

Better than regulatory powers?

Dobson touts the proposed Settlement Agreement as being stronger for the city's protection than legislative powers granted by the state. "What the state giveth the state can taketh away," he said. "I think it's more difficult to take away a property right." He said the city will be deeded the groundwater rights except for water taken from the Trinity Aquifer to irrigate a golf course on Spillar Ranch. Development of the Spillar and Pfluger tracts will be subject to water quality controls under the Save Our Springs Ordinance. Northern portions of Circle C that claim 1704 rights "will have water quality controls that are a vast improvement," he said.

McClintock said there is a fear that the environmental impacts of the golf course on the Spillar tract could damage groundwater that affects neighboring wells. "If there's a bad impact (on private wells), what could we do?" she asked. "That's a minefield, too, because if we provide surface water it could promote growth out there." But the city has negotiated a strong management plan for the golf course, she said.

The bottom line for Dobson is that Austin gets more out of this settlement than it could achieve under any regulatory scheme, even if the city wins all the lawsuits "and the Legislature is taken over by 181 people who vote like the Travis County delegation."

"If built out as a WQPZ, in rough numbers that's more than 6,500 houses and more than 1.2 million square feet of retail. Under this deal, it's about 3,000 houses and 188,000 square feet of retail," Dobson said. "That's what's driving me as the city's lawyer to make this deal if we can. I'm having to be a realist in trying to preserve this city's public policy prerogatives in this area to the extent we can. My advice is to make a good deal if we can, and I think this is a good deal."

Thirteen days till council decision due

• The Environmental Board took no action on the Bradley Settlement but scheduled a special meeting for 11 a.m. Tuesday, Feb. 29, in One Texas Center, 505 Barton Springs Road, Room 221.

• The Planning Commission may consider it Tuesday, Feb. 29, after 6 p.m. in the Waller Creek Center, 625 E. 10th St., Room 104.

• The Water and Wastewater Commission is scheduled to discuss it Wednesday, March 1, after 6 p.m. in the Waller Creek Center, 625 E. 10th St., Room 104.

• The City Council will have public hearings March 2 and March 9 and could vote on it as early as March 9.

How the settlement came about

One of the interesting facets of Dobson's presentation was a brief history of how the negotiations came about. "After the new 1704 legislation passed the first person on the city's door after the governor signed the bill was Bradley saying, 'Give me my pass under 1704,'" Dobson said. That was the spring of 1999. The city didn't act and there were discussions and threats of litigation.

"Ultimately, Bradley called Mayor ( Kirk) Watson…and asked if there was some opportunity to try to work out 1704 by agreement. The mayor said, 'If we start talking to you we're going to talk about everything in the Barton Springs Zone and get it resolved at one time,'" Dobson said. City Attorney Andy Martin and Dobson were dispatched and the result was a Term Sheet that, after a public hearing, the council approved as the basis of further negotiations.

City to run traffic central to guide motorists through downtown jams

City will monitor street closings and provide info via phone and web

The bad news: Austin's explosive downtown expansion is going to make traffic even worse over the next three years. The good news: the city is coordinating the traffic plans of more than 80 projects so that there should be alternate routes throughout the area, which is bordered by Martin Luther King Boulevard on the North and Oltorf on the South, from just East of I-35 to just west of MoPac Expressway.

Jay Ulary, project director with the Public Works and Transportation Department, said his planning group would take information from each project and master plan street closings. Celeste Cromack, public information officer for Public Works, told In Fact Daily the city will have a database showing which streets are scheduled to be closed or under construction for each time period. If one builder says he wants to close a street that is part of another builder's detour, the city will deny the second contractor a permit until the traffic can be routed another way. "In some instances, we'll have to say 'You'll have to wait a few weeks, or a few months', to start a project," Cromack said.

To help drivers, bicyclists and pedestrians plan their travel, the city is providing a web site to show road closures, detours, maps, and a list of projects at . The web site, which plays on Austin's "Live Music Capital of the World" appellation, was unveiled at a press conference yesterday. At this point the site lists projects but most portions bear an "under construction" logo–just like many downtown streets will have in the future. City officials say all the construction means many exciting new businesses and stores will be locating in the downtown area, and they hope the public adopts a patient attitude.

Ulary said the city now has a moratorium on daytime utility work downtown, so all new projects must be scheduled for weekends or nights. Of course, emergencies may demand immediate repair, he said.

The idea of coordinating street closures and new construction seems logical, but the city has never tried it before. This is a new effort, Cromack said, "If things are not working right, we want to know." Cromack has the task of answering calls to the city's new Downtown Jam Information Line 974-DTWN (974-3896). Cromack said Public Works is hoping to get some good ideas from citizens on how to make the process work better. She knows she'll get to hear people complain, but is hoping for some good ideas also. Contractors have been asked to make sure their workers park outside the downtown area and use carpools to get to work, Cromack said. Cromack is also coordinating a speaker's bureau for neighborhood and civic groups.

Gang of four…Campaign consultant Mike Blizzard of Blizzard Fawal & Associates says he's reassembled the old gang from Council Member Bill Spelman's race three years ago to assist Mary Clare Barry, who wants Spelman's Place 5 seat. Blizzard's partner, Richard Fawal, was Spelman's field director and Dawn Lewis did the fund-raising. Lewis will be helping Barry on a volunteer basis, Blizzard said. Database wizard Bruce Nunn, who worked for Spelman, has also signed on to help Barry. Barry will face downtown developer Will Wynn, as well as bicycle activist Amy Babich, Stephen "Twig" Meeks, and Paul "Chip" Howe… Howe campaign cranking up…Place 5 candidate Paul "Chip" Howe will hold a campaign meeting Wednesday, March 1, 5:30-6:30 p.m. at the Alligator Grill on South Lamar. It's open to the public. A fund-raiser's planned for March 11 at the Pier on Lake Austin, with the band and times to be announced… Old faithful…The City Council Place 2 contest got a new entry yesterday in David "Breadman" Blakely, a 78-year-old retiree who in recent years has been seeking state office. He has twice run for state representative in District 51. In the 1996 general election, incumbent Glen Maxey, D-Austin, garnered 72 percent of the vote in a three-way contest and Blakely, R-Austin, got 24 percent. Blakely tried again in 1998, placing third in a three-man contest for the Republican Party's nomination for District 51. Blakely faces Raul Alvarez, Gloria Mata Pennington and Rafael Quintanilla to see who will succeed three-term incumbent Gus Garcia. Both Quintanilla and Blakely filed for a place on the ballot yesterday. "I'm a senior citizen and senior citizens are grossly underrepresented on the City Council," Blakely tells In Fact Daily. Though an elder he puts in 10-to-12-hour days, first distributing bread and produce gleaned for grocery store discards, primarily to church food pantries in southeast Austin, then managing 20-30 properties for a private owner, Blakely says. The $500 filing fee, "is all I plan to spend," he says. His web site is … First mayoral filing…While Mayor Kirk Watson's in Florida and an overwhelming shoo-in for a second term, perennial candidate Jennifer Gale beat the mayor in the only way he will be beaten this year: Gale, who is homeless, was first to file for a place on the ballot as a candidate for mayor… Sci-tech museum confab…Advocates for turning the defunct Seaholm Power Plant into the Technology and Science Museum of Austin invite interested parties to join them Monday, Feb. 28, at 7 p.m. for a meeting at the Austin Children's Museum, 201 Colorado St. Refreshments will be served. RSVP to 469-9339. (See In Fact Daily Feb. 8 for more on this topic.)… Lewis campaign office…Incumbent Place 6 Council Member Willie Lewis has opened a campaign office in East Austin, resports campaign manager David Terrell. For more information, call 933-0664.

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