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Supreme Court declares City of Austin

Friday, June 16, 2000 by

Victor over FM Properties

Water quality protection zones unconstitutional

On a vote of 6-3, the Texas Supreme Court Thursday gave the City of Austin a victory over FM Properties (FMP), declaring “water quality protection zones” to be unconstitutional. The law allowing FMP, formerly known as Freeport-McMoran, Gary Bradley, and other developers to exempt themselves from the city’s environmental and land use regulations was enacted in 1995. As a result, “many thousands of acres” that have been outside the city’s jurisdiction in water quality matters are now arguably subject to regulations such as the Save Our Springs Ordinance. The court said, “The primary issue in this direct appeal is whether (the section) of the Texas Water Code, which allows certain private landowners to create ‘water quality protection zones’ in certain cities’extraterritorial jurisdictions, violates the Texas Constitution. We conclude that it does because it unconstitutionally delegates legislative power to private landowners.” Justice James Baker wrote the majority opinion. Joining Baker were Chief Justice Tom Phillips and Justices Craig Enoch, Deborah Hankinson, Harriet O’Neill and Al Gonzales. The Supreme Court heard the case on Dec. 9, 1998. The opinion says that the water code section declared unconstitutional “seems to allow the landowners to exempt themselves from the enforcement of municipal laws for any reason as long as it is somehow related to their water quality and land use plans.” Justices Priscilla Owen, Nathan Hecht and Greg Abbott dissented. Travis County District Judge Paul Davis initially decided the case in favor of the city. City Attorney Andy Martin said he was pleased by the victory, but cautioned, “every time (the court) rules and says ‘this is not how to do it,’ they lay out a road map of how to do it,” for the Legislature. Attorney Casey Dobson of Scott Douglass & McConnico, who represented the city, said, “I was very gratified that the issue I argued in the district court was the one we won on.” Attorney Tommy Jacks argued the case at the Supreme Court, Dobson said. FM Properties’ attorneys, Roy Minton and John Foster of Minton Burton Foster & Collins, could not be reached for comment Thursday. However, Dobson said, “I think it is a virtual certainty that they will ask the Texas Supreme Court for a rehearing,” which is typically done in major cases. Dobson said the court referred to a 1997 case called Boll Weevil Eradication Foundation, Inc. v. Lewellen (952 S.W. 2nd 454), in which the court set forth standards for judging the constitutionality of delegated power. In Thursday’s ruling, the court said, “Legislative delegations (of power) to private entities can compromise ‘the basic concept of democratic rule under a republican form of government.’ And on a more practical basis, private delegations may allow private interests to adversely affect the public interest.” Dobson said the doctrine cited by the court has been around “since the founding of the republic. But Boll Weevil is the bell weather case—though I suspect that FM Properties v. City of Austin will become just as important.” Dobson said the city would not receive any money as a result of winning the case. What the city sought, he said, “was a declaration that the statute was unconstitutional.” The so-called water quality protection zones “exist nowhere but Austin’s ETJ” Dobson said. Dobson said originally there were 14 such zones—but three of those were for all practical purposes abandoned by the deal the city made with Gary Bradley. Dobson was the city’s lead negotiator in that settlement. This decision will have no effect on Bradley, Dobson said, because in striking the deal each side protected itself against the chances of losing this lawsuit. Dobson said he is currently talking to Stratus Properties, the successor to FM Properties, about an agreement such as the one the city struck with Bradley. He said he could not reveal how the negotiations were proceeding, but when asked whether the ruling will strengthen the city’s hand, Dobson said, “You bet it does. But I should hasten to point out that this victory does not do away with our HB 1704 claims.” He said Stratus would claim that “a very significant proportion of their properties have 1704 grandfathering protection.” Other properties affected by the ruling include Steiner Ranch, Wolf Mountain Ranch and property belonging to the Heep heirs, Dobson said. Bill Bunch, general counsel to the Save Our Springs Alliance, said, “It is an important victory for local control. Unfortunately, the city gave Bradley a lot of what he wanted because they were fearful they would lose this lawsuit. And it does give the city some leverage with Stratus. But the city’s approach right now is they’re going to get killed in the Legislature. So whether this victory translates into the city taking a stronger stance, I don’t know.” A similar case, which the city lost in Hays County, is on appeal at the Third Court of Appeals. District Judge Jack Robison initially ruled on that case. Dobson said he had just sent a letter regarding the Supreme Court’s ruling to the appeals court.

SOS Alliance files federal suit against

EPA, Fish and Wildlife

SOSA says federal agencies allowing construction pollution

The Save Our Springs Alliance (SOSA) Thursday sued the U.S. Environmental Protection Agency (EPA) and the U.S. Fish and Wildlife Service (FWS) for failing to protect Barton Springs, and the Barton Springs salamander, from pollution caused by construction. University of Texas biologist Mark Kirkpatrick, SOSA’s scientific advisor also sued the two agencies. Development has caused water quality in Barton Springs to decline significantly over the past 25 years, according to a report done by the city’s Watershed Protection Department. (See In Fact Daily, June 7, 2000) The salamander is an endangered species. The two federal agencies did an “informal consultation” about the effect of a general construction permit that gives the salamander no special protection. Under the resulting agreement, “all development that disturbs five acres or more are required to register (in) compliance with (EPA’s) general permit before initiating construction,” according to the lawsuit. However, developers are allowed to begin construction and discharge pollution “within two days of the postmark of its notice to use” that general permit. Environmentalists say EPA, which has no Austin office, conducts no local inspections. According to Bill Bunch, general counsel to SOSA, “EPA has been the biggest problem. Fish and Wildlife Service made a mistake though at the outset. They need to do a new consultation or they need to review each of these (construction) permits individually.” Bunch said the agencies did not use the “best science available, which is what is required. In fact, they did not have anything about the Barton Springs Salamander. The permit was the whole State of Texas, the whole region 6 of EPA,” Bunch said. This marks SOSA’s third lawsuit against FWS. Bunch said attorney Amy Johnson, who participated in the two prior successful lawsuits regarding the salamander, is assisting SOSA once more.

SOSA Chair Mary Arnold said, “We wish we didn’t have to sue our government to get them to comply with federal law. The citizens of Austin have tried to protect Barton Springs.”

Three New Council Members Take Oath

and pledge continued progress for city

Jackie Goodman re-elected Mayor Pro Tem

The three neophyte city council members– Raul Alvarez, Will Wynn,and Danny Thomas– pledged to combat problems all too familiar to Austinites at their swearing-in ceremony Thursday evening at the Austin Convention Center. Elected to Places 2, 5 and 6, respectively, of the City Council, each identified what they believe to be the city’s main concerns, namely: the creation of affordable housing, environmental protection, transportation system improvements, continued economic growth, and uniting the diverse segments of Austin society. Mayor Pro Tem Jackie Goodman was re-elected unanimously. Wynn said the council needs to take “bold action.” “Otherwise we’re going to lose this uniqueness we have in Austin,” Wynn said. “We have to fight to keep it. Don’t tell me Austin, Texas is doomed to be just another big city in the United States of Generica.” He said the city should preserve its traditions of environmental protection and cultural diversity, and set aside funds for land acquisition and affordable housing. “We’re going to be having the transportation debates of the century this summer and fall,” Wynn said. “We’re going to have to find a way to fund a massive sidewalk building project on city streets.” Tuesday, the city’s Planning Commission sent the same message to management by recommending that next year’s budget include $1 million for sidewalks, rather than the $650,000 in the draft budget. Thomas, a former police officer, advocated supporting the efforts of police, but said his highest priority is “bridging the gap” between the various elements of the Austin citizenry. “I want to make sure every one of the citizens of Austin has quality of life,” Thomas said. “I want to make sure we spearhead the economic development of the underserved areas of Austin,” particularly the east, northeast, and southeast. Alvarez echoed his concern. “We need to balance all of the needs of our community,” Alvarez said. “This council has been doing some great things and I will work to make sure we continue to do great things. It’s important for all of us to create opportunities and open doors for other people. He said he believed in a saying of Cesar Chavez, “You can't truly advance yourself if in the process you don’t help other folks advance.”

Rush for rail… Barbara Rush, who ran Mayor Kirk Watson’ s re-election campaign, has been tapped to manage the campaign for light rail. David Butts and Dean Rindy are the senior consultants on the campaign and Butts says the group will change its original name— Citizens Alliance for Transportation Solutions (CATS). The group plans to raise $1 million to convince voters to approve the measure on the November ballot. This group is not to be confused with the high tech moguls, who also support light rail. Now-ex Council Member Gus Garcia is campaign treasurer. Last chance…Before telling Judge Orlinda Naranjo to swear in the new council members, Mayor Kirk Watson told the three he would give them a chance to change their minds, "out of common courtesy."

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