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City cuts a deal and heeds John Lennon's advice to give peace a chance

Friday, March 24, 2000 by

Unanimous vote grants variances from SOS Ordinance

With mayor and council agonizing aloud about making a decision after an agonizingly long (five hours and 20 minutes) final hearing and debate that followed an agonizing process of negotiations that began more than eight months ago ( In Fact Daily Aug. 13, 1999), the City Council at 12:45 a.m. this morning unanimously approved the Bradley Settlement that will settle three lawsuits and establish unprecedented development controls on more than 3,000 acres of land over the Barton Springs portion of the Edwards Aquifer.

Even at the last possible minute additions were tacked onto the agreement by Council Member Beverly Griffith. Spinning off a statement earlier by Council Member Bill Spelman, Griffith said, "If the aquifer has an eternal enemy it's impervious cover…I'd like to offer an amendment to begin a process to be completed within 60 days "that will move us from assumptions and toward a more objective basis for calculating and tracking impervious cover, such as lot by lot in subdivisions." Griffith said this would apply citywide to all watersheds. She also moved to change the proposed zoning on the Pfluger Tract from SF-2 (Single Family) to RR (Rural Residence), which provides the lowest possible density. Although RR zoning provides for a minimum lot size of one acre, vs. a minimum of 5,750 square feet for SF-2, attorney Casey Dobson of Scott Douglass & McConnico, who negotiated the agreement on behalf of the city, had said earlier in the meeting that it's more likely Pfluger will be developed as "30 to 40 ranchettes."

In their turn at the microphone, Circle C homeowners cheered as weary troops in battle cheer news of peace. James O'Reilly, president of the Circle C Homeowners Association (HOA), represented 7,000 homeowners. He thanked developer Gary Bradley for "staying at the table" and thanked "the environmental community and Robin Rather (chair of the Save Our Springs Alliance, or SOSA) and George Cofer for settling differences. We're hopeful tonight will be a turning point in our relationship (with the city)." Circle C resident Kevin Cromack told the council, "Tonight is the first night we're here on your side. We're ready to lay down our swords and agree." Circle C resident Ken Levine may have captured the moment best, saying, "In the words of John Lennon, let's give peace a chance."

Most of the environmentalists allowed to talk within the one hour given to each side lambasted the deal. The notable exception to that in public testimony was the Save Barton Creek Association, represented by Vice President Craig Smith; the group endorsed the agreement. Not speaking at the hearing but previously on record as supporting the agreement were SOSA Chair Rather and board member Cofer, both of whom have apparently tendered resignations, Rather's because of the schism created by taking a public stance at odds with the board's resolution to oppose the settlement. (See In Fact Daily March 23.) Also strongly supporting the agreement was Roy Dalton, president of the board of the Barton Springs/Edwards Aquifer Conservation District, which he noted was chartered by the Texas Legislature to preserve, protect and enhance the aquifer. Then came the heavy artillery.

Ira Yates, one of Bradley's former business partners, started off with a rousing, "God bless SOS. If not for them we wouldn't be here. We wouldn't have Proposition 2 (which bought some 15,000 acres of land to protect the aquifer). Most of you probably wouldn't be on this council." Yates, who has previously litigated over differences with Bradley, showed a map of how the Circle C Municipal Utility Districts were approved 17 years ago, with him as a partner. He showed how roads originally mapped for two or four lanes had turned into the southern extension of MoPac Expressway and State Highway 45. "What happened to those MUDs in those agreements is what everyone's afraid of tonight," he said. "Deals change." He asked not to kill the deal but make it better. He also urged determining whether the Texas Legislature would interfere in the settlement. "Someone should go to the Legislature and get feedback on whether this medicine's going to take," Yates said.

Erin Foster, chair of the Hays County Water Planning Partnership, again urged the city to see that the golf course on the Spillar Tract not be irrigated with water from the Lower Trinity Aquifer. She said wells were already going dry. "We should have watered with the City of Austin's water for $185,000 a year and leave the people who drink from the aquifer alone," she said. Nancy McClintock, environmental resources manager for the Watershed Protection Department, said the amount of water allowed to be pumped from the Lower Trinity Aquifer to irrigate the golf course was enough to support about 630 homes. However, "If the Barton Springs/Edwards Aquifer Conservation District or the city determines an impact on (residential) wells from irrigating the golf course, the golf course will be supplemented with potable surface water to mitigate the impact on wells," she said.

SOSA Attorney Grant Godfrey presented an analysis to show that by not providing the city's water and wastewater service, development densities would be a fraction of what would be permitted by the settlement. Although that point was debated at great length, in Council Member Spelman's questioning of Mike Erdmann, wholesale services manager for the Water and Wastewater Department, it was revealed that there were five other potential sources of water besides the City of Austin, all of them cheaper than the $8.5 million to obtain city water, though most would take longer. There were also other sewer options, all cheaper than the $3 million to hook up to the city's central sewer. In addition, Erdmann said the city would be hard pressed to convince the Texas Natural Resource Conservation Commission not to approve a permit for a sewer system. "I would think we would have difficulty protesting a Hays County permit if we turn down an arrangement to provide wastewater to the Bradley Interests," he said.

SOSA Vice Chair Mary Arnold, widely recognized as the environmental community's foremost expert, complained that the Bradley Settlement didn't address some 1,200 acres within Circle C owned by Stratus Properties Inc. and said regional planning was needed. She said that Slaughter 100 tract could end up with 1.2 million square feet of development. Attorney Dobson–who is personally a business partner and sponsor of SOSA (see http://sosalliance.org/partnersponsor.html)–explained that at the request of SOSA Chair Rather the most important goal was determined to be preventing a major employer on that tract, and that had been achieved at the expense of more impervious cover in negotiations with Bradley.

Bill Bunch, SOSA's chief legal counsel who has been on sabbatical for months, told the council, "You are proposing to waive the SOS citizen initiative and all of you ran on a campaign to support it." He said he would rather see the city grant grandfathering rights to tracts in Circle C than to extend central water and sewer over the aquifer. "It really is about utilities and sprawl…You ran for office on a platform that you would not subsidize sprawl in the Barton Springs Zone (BSZ) and we ask you not to do that tonight by extending utilities south of SH 45." A moment later he added, "If you're trying to stop growth in the BSZ, why speed it? If someone is going to pave the aquifer let the blood be on their hands," he said to loud applause. Council Member Spelman later replied to that, saying, "It doesn't matter whose hands the blood is on…if a dead aquifer is a dead aquifer. My job is not to absolve anyone of blame for the aquifer drying up. We're trying to prevent murder but it doesn't matter whose fault it is."

Austin Sierra Club member Steve Beers said the crucial question about the settlement was is it enforceable? "There was a $62 million judgment against Bradley five years ago. If the federal government can't enforce it, what can we do? (Bradley's) a Houdini of contracts. It's got to be cash and carry with these guys."

Council Member Daryl Slusher noted a distinction between the utilities Bradley got in the MUD agreements of the early 1980s. "Those lines were sized about four times as much as needed to serve Circle C," he said, noting the city helped to pay for oversizing to serve future growth in the area. Utilities extended under the Bradley Settlement, however, are downsized to provide only enough service for urban development on the Spillar Tract and rural development on the Pfluger Tract, and city permission is needed to extend utilities further.

Mike Blizzard, a board member of the SOS Action Political Action Committee, said his girlfriend, an Austin native, as a youngster dove into Barton Springs Pool to fetch coins tossed by her parents, but he has seen children running in horror from the pollution in the pool. "It broke my heart to see a young girl run screaming from this jewel," he said. "If Bradley wants to destruct, don't make Austin citizens complicit in that contamination. Instead let's fight that contamination." He urged the council to "take the fate of Barton Springs and the aquifer permanently out of Gary Bradley's hands."

Karin Ascot, conservation chair of the Austin Sierra Club of more than 5,500 members said, "The Sierra Club adamantly opposes the extension of Escarpment and MoPac over the aquifer." Teri McManus of the city staff said the agreement prevents extension of MoPac past SH 45. She also said neither of the Hays County Roadway Plans called for extension of MoPac. Attorney Dobson said Escarpment would be extended by an eighth of a mile to provide necessary access for a fire station.

Mayor Kirk Watson announced his support for the deal, saying, "A lot of people think it's really easy to vote against it. I wish this job was as simple as don't make this agreement with Gary Bradley and it will save the springs, or don't make this agreement and we'll get something better. That strikes me as too simplistic." Given the vagaries of the Texas Legislature and the uncertainty of how litigation will turn out, negotiations were done under less than ideal conditions, he said. Watson reeled off a long list of advantages achieved through the agreement. "Bottom line, this puts us in a position to do what the public asked us to do and protect the environment. It's been suggested that people don't vote because we don't do what they ask us to do. I would argue they don't vote sometime because all we do is fight," Watson said. "I support SOS (Ordinance), but I'm not going to make a decision so you can't challenge my purity and it's worse for the environment…We're at park it or drive it time."

Slusher gave his appointee to the Environmental Board, Tim Jones, public credit for something else achieved under the deal: fee simple title to an environmentally sensitive tract at Brodie Lane and Slaughter Lane. Bradley also gave Jones permission to go on the Spillar Tract to monitor for pollution, Slusher said.

In what some of the other council members called a filibuster, Slusher gave a 17-minute windup to explain why he would vote for the agreement. He said the deal was clearly better for all the criticisms that had been addressed during the public review process. He praised those environmentalists who had publicly supported the settlement agreement, naming Rather, Cofer and the Save Barton Creek Association. Slusher extended the olive branch to Circle C homeowners, but also asked them to live lightly on the land. "Y'all live over a really sensitive part of the Edwards Aquifer. That's what it's all about–not about y'all but where you live." He asked that less pesticides and fertilizers be used on Circle C yards.

Noting the complexity of the settlement, with many heartfelt advocates for it and equally heartfelt opponents, Slusher said, "I really don't know who's right. It's impossible to tell. I think I'm making the right decision and I'll be concerned about that for the rest of my life."

While Slusher acknowledged that Bradley had broken deals in the past and Slusher himself had written about for the Austin Chronicle, he said, "What I can't accept is that just because you've had a disagreement with someone that forever you have to have that disagreement and not heal it. Otherwise we would never end conflict except by total annihilation of the other side."

Slusher praised Mayor Pro Tem Jackie Goodman and Council Member Gus Garcia for having had the courage to cast votes before Slusher was on the council to appeal the initial court decision that had found the Save Our Springs Ordinance illegal, an appeal that went forward on the strength of a 4-3 vote. "They stood up to immense pressure to appeal that decision in Hays County," he said. Finally, after 20 years, Slusher said the council was putting in place the Austin Tomorrow Plan.

Spelman closed by saying Bradley was not a perpetual enemy. He quoted Lord Palmerston, who in a speech in the House of Commons on March 1, 1848, defended his foreign policy to make an alliance with France, over objections that peace was inappropriate as war had been waged between the two nations for hundreds of years. "We have no eternal allies, and we have no perpetual enemies," Palmerston said. "Our interests are eternal and perpetual, and those interests it is our duty to follow."

City will pay $10.3 million to buy critically sensitive Rutherford Tract

1,739 acres in platted subdivision of 400 lots on Onion Creek

In a last minute surprise, just before the City Council voted to settle the long running wars with Gary Bradley in the wee hours of this morning, City Property Agent Junie Plummer announced that the city had cut a deal to buy a 1,739-acre platted subdivision of 400 lots owned by Rutherford Ranch Ltd. "We have 90 days to complete the purchase," she said. "We're putting up the earnest money tomorrow." The purchase price is $10.3 million, or $5,900 an acre, Plummer said.

That announcement sent Richard Fawal, Mike Blizzard's partner in the political consulting firm Blizzard Fawal & Associates, scurrying to tell reporters this was pulling a rabbit out of a hat and had nothing to do with the Bradley Settlement.

After the meeting, asked how the tract would be paid for, Mayor Kirk Watson told In Fact Daily, "We have to work on that." As to a rabbit out of a hat, Watson said the suggestion had kept coming up to buy the Spillar and Pfluger Tracts, but with impervious cover ratcheted down to around 5 percent, buying that land made no sense. He said discussions had been ongoing for two years, on and off, about buying the Rutherford Tract.

Nancy McClintock, environmental resources manager in the Watershed Protection Department, said that "an extremely large amount of recharge occurs where Onion Creek passes through the Rutherford Tract," which lies south of FM 967 and in some places straddles both sides of the creek. Hydrogeologist David Johns of the Watershed Protection Department said flow studies done in the 1980s "showed about one-third of the recharge of Onion Creek occurred in this tract."

Previous studies conducted by the Center for Research in Water Resources at the University of Texas at Austin showed that Onion Creek–though one of five creeks that recharge the Barton Springs portion of the Edwards Aquifer–is responsible for 46 percent of the output at Barton Springs. (See In Fact No. 80, February 12, 1997.) Thus, if one-third of the Onion Creek recharge occurs on the tract being purchased, that single tract would contribute about 15 percent of the output of Barton Springs, according to In Fact Daily's calculations.

Council Member Daryl Slusher didn't say show me the money, as he had previously, but he did say, "We need to start making good on the private sector stepping forward on these land purchases." Noting the city had already purchased 15,000 acres, Slusher said, "We're working on what the Save Our Springs Alliance calls the 'sprawl wall' and we will continue to work on that."

Cotera and Predock win contract to design new City Hall and Plaza

$4 million design job will crown Cotera's long career in Austin

The design team headed by Austin architect Juan Cotera and Antoine Predock of Albuquerque, N.M., yesterday won the City Council's approval to design the new City Hall and Plaza across from Town Lake on the site of the old City Hall Annex. The official name of the winning team, which beat out three finalists, is Cotera Kolar Negrete & Reed Architects. For Cotera, who founded his architectural office in 1972, City Hall will be the crown jewel of his career. Following the unanimous council vote to award the project to his team, the 62-year-old Cotera said, "It came just at the right time." After the project is completed, he said, he may think about slowing down.

City Architect Nathan Schneider told the council that the city team that evaluated architectural candidates ranked the four finalists very closely, but Cotera's group came out on top with 120.8 of a possible 150 points. Carter-Burgess Inc. came in second with 117 points, with Moore/Andersson Architects less than one point behind at 116.83. Black & Vernooy + Barnes Architects joint venture received 116.33 points.

Schneider's evaluation matrix shows that the Cotera team scored about three points higher than Black & Vernooy + Barnes Architects joint venture and a little more than two points higher than Carter & Burgess Inc., during the interview process. However, the three teams that appeared to be in the lead before the interviews fell out of contention altogether after the interviews. Fentress Bradburn Architects in association with Morales & Associates, Page Southerland Page, and Pierce Goodwin Alexander & Linville Inc. in association with Lake/Flato Architects all had higher overall scores before interviewing than the four teams that made the final cut. The matrix shows that Cotera's team scored 43.16 on the interview, while Carter-Burgess came in second with 40.83 interview points. Austin architect Sinclair Black's team came in a close third with 40.33 interview points and Moore/Andersson Architects received 39.5 interview points.

Schneider said, "The evaluation team feels it's clear that all of the teams have the ability to design an award-winning project that will represent and define Austin." He said city staff would be excited about working with any of the four teams. "It's merely personal preference at this point."

Council Member Gus Garcia made the motion to authorize staff to negotiate and execute the $4 million professional services agreement with the Cotera team. Garcia pointed out that he and other council members had been provided with the evaluation matrix–without any numbers filled in. Garcia said, council didn't have any basis for filling in the matrix, "but staff did." In addition to the interview, staff ranked the seven finalists on the experience of the lead architect, experience of the project principal, proposed staff, the prime contractor's design experience and expertise with Austin issues, years in the business, equal employment opportunities and previous City of Austin work.

Mayor Pro Tem Jackie Goodman echoed Schneider's remarks on the high quality of work demonstrated by the four finalists. Council Member Bill Spelman said he had reviewed photographs of work done by all the lead architects and had both liked and disliked work done by each one. He said he wanted to sound a note of caution to the winning team, however, because, "I saw too many blank walls" in the work of lead architect Antoine Predock. Council Member Daryl Slusher said he had the same concern.

One of Predock's buildings, the Arizona Science Center in Phoenix, features tons of concrete and a number of windowless walls. What about those blank walls? Cotera told In Fact Daily, "We will definitely not do that." Cotera said, "The important thing is that Antoine is a very open person and takes input well." Cotera said at this point he and Predock are the only architects on the project, but he plans to add two others right away. "Antoine will be much more involved at the (initial) design stage," Cotera said, while the other architects will be more involved later. Cotera said Predock is one of the top architects in the world. Predock won the Rome Prize, which Cotera described as "the Nobel Prize of architecture," early in his career, but never moved out of Albuquerque, he said.

One city employee stopped to congratulate Cotera, saying, "Are you glad you didn't get the MACC ( Mexican American Cultural Center) now?" Cotera replied, "I don't think I could've gotten both." The architectural contract for the MACC was awarded to the joint venture of CasaBella Architects of Austin and Del Campo & Maru of San Francisco. The design consultant will be Gonzalez de Leon of Mexico City. Cotera said he will always feel wounded over not designing the MACC, but he has wanted to design a new city hall for more than 20 years. He said at the beginning of the process, "You try not to develop a vision…you try to develop a concept. The design for City Hall needs to come out of the character of Austin…(to show) the very democratic process we have in Austin," he said. "Austin's all about people."

Neighbors get half a loaf as council limits city use of warehouse to five years

Long-term goal is convert beer distribution property to housing use

City Council Thursday gave the city's Building Services Department a conditional use permit (CUP) that will allow the department to house its employees' offices at 411 Chicon, and allows relocation of the city mail room and uniform storage at the same location for five years. The industrially zoned site was a Budweiser beer distributing center for years, disrupting the neighborhood throughout the day and night with 18 wheelers coming and going. Neighbors had requested that the city purchase the property and turn the site into housing.

Council voted 6-1, with Council Member Willie Lewis opposed, to deny the appeal made by Jose Quintero, president of the Greater East Austin Neighborhood Association. Quintero's appeal of the P lanning Commission's decision to grant the CUP was based on a claim that the approval did not comply with the East Austin Overlay Ordinance. Quintero and other neighbors expressed the hope that the remainder of the site could become housing. The Building Services Department also had appealed the Planning Commission's decision to reject the city's request for a permit to place the mail room and uniform storage to be placed on the property in addition to administrative offices (In Fact Daily March 6).

Council also approved on first reading a change in zoning for the property from LI (limited industrial) to P (public). The city also purchased the 5.226-acre tract Thursday, after the council voted to approve buying the property from the Brown Distributing Co., according to Junie Plummer, city real estate specialist. There was no public comment on either the purchase or zoning change, which were done separately from the use permit.

City Manager Jesus Garza gave the council an additional reason for allowing Building Services to move to the former beer warehouse property. Garza said the city had made a commitment to move the Watershed Protection Department from its temporary location at the old Robert Mueller Municipal Airport. He explained that Watershed Protection staff would be moving into the former quarters of the Building Services Department on Webberville Road when Building Services moves to the Chicon location. Building Services needs to be closer to the downtown area to better serve city buildings, he said.

Council Member Gus Garcia made the motion to deny Quintero's appeal and grant the department's request for an expanded permit. Garcia said, "Other councils will look at (the site) and see what is best," in explaining why he was suggesting the five-year plan for the mail room and uniform storage. He said the city purchased the site for the Mexican-American Cultural Center for $6,000 in 1906. "I think we need to look at this (property) in the long term."

Neighborhood leaders had pled for the city to buy the property and give them time to finish the neighborhood planning process that had just begun before deciding what to do with the property. Their pleas did not fall on deaf ears. Mayor Pro Tem Jackie Goodman said she had looked for alternatives for the site and found that only 15 houses could be built there. "I'm not leaving it there," she said. "I have a little time to ensure that this is a temporary use because I believe the neighborhood is right. I will be looking for ways to enhance revenue from the Housing Trust Fund to augment and turn this more quickly into the kind of use the neighborhood wants and phase this out more quickly. I want to put that on the record."

Bennett Tract slapped with moratorium while zoning rollback ordinance prepared

Emotional case splits East Austin along racial lines

City Council took tentative steps to roll back zoning on the Bennett Tract yesterday, after hearing arguments from Hispanic neighbors who generally support the rollback, and African-American neighbors who generally oppose the change. The tract, which is generally bounded by I-35, 11th Street, 9th Street, and San Marcos Street, was supposed to become a mall under a Neighborhood Conservation Combining District approved in 1991. (See In Fact Daily March 13.) Since the mall was never built, a restrictive covenant in the deed states that the property's owners cannot object to a zoning rollback. According to the resolution, staff is directed to present the rollback ordinance to council between April 20 and May 11. Council Member Gus Garcia, who initiated the action, has said that he wants to see this done before he leaves the council. His third and final term ends June 15 with the swearing in of the new council.

Also Thursday, the council enacted a moratorium on filing of site plans for the area, effective immediately, and ending on June 16. Applicants may request a waiver if the moratorium imposes a hardship. Along with the moratorium, which was sponsored by Garcia, the council directed staff to perform an economic impact analysis to determine the effect of rezoning on property and business owners along the 11th and 12th street corridors. Council Member Willie Lewis requested that the study be included in the resolution.

Man of few words…Although attorney Casey Dobson of Scott Douglass & McConnico has been called on scores of times to say many, many words about the Bradley Settlement, when the smoke cleared and the deal was done early this morning, he kept his remarks short. He walked to the council dais and told Mayor Kirk Watson, "Two words: Cedar Door." With a short drive from the Lower Colorado River Authority's headquarters on Lake Austin Drive, they had but an hour left to celebrate before the 2 a.m. closing time… I guess that depends on what you mean by employed…Political consultant Mike Blizzard objected to an item in Whispers yesterday that said the political arm of the Save Our Springs Alliance "had been employing phone banks to rally the troops against the proposal." Blizzard told In Fact Daily that he paid for fliers to be passed out at coffee shops to encourage people to attend Thursday's hearing but all the phone bank callers were unpaid volunteers. The SOS telephone script stated, "The Bradley deal would guarantee 3,000 homes, a resort hotel and golf course directly over the recharge zone of the Edwards Aquifer." Blizzard is a board member of the SOS Action Political Action Committee.

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