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Judge Sparks says he's

Wednesday, January 24, 2001 by

Unlikely to stop LCRA line

Environmentalists probably won't get injunction

Federal Judge Sam Sparks, after a daylong hearing yesterday, asked SOSA ( Save Our Springs Alliance) lawyer Bill Bunch, “You don’t seriously believe that I’m going to stop that construction project do you?” Sparks was referring to the Lower Colorado River Authority’s (LCRA) water pipeline to Dripping Springs.

Bunch replied, “Yes, and we’re asking you to prohibit them from signing any contracts not already done.” SOSA, the Hays County Water Planning Partnership, and the Save Barton Creek Association (SBCA) are seeking an injunction against the LCRA, the US Fish and Wildlife Service( USFWS) and the US Army Corp of Engineers. The environmental groups claim that the LCRA and the federal agencies failed to analyze the impact the line will have on new development in Hays County, and consequently, the harm that will come to the Barton Springs salamander.

When Assistant US Attorney Mark Brown stepped up to make his final argument, he said, “What you have here is a disagreement about how detailed the biological opinion has to be.” Sparks interrupted him, “These folks are never going to agree about any biological opinion—never. But they say they don’t have enough information here . . . because the Endangered Species Act is one act that the Congress doesn’t have the guts to suspend or to amend.”

Sparks gave both sides until February 5 to file briefs with their arguments, but the judge directed attorneys for the environmental organizations to specifically detail “the alleged lack of data that would support a decision that impliedly the Fish and Wildlife people have made.” Sparks asked attorneys for the defendants to “concentrate on how the law has been complied with.”

James Rader, associate general counsel for the LCRA, began his defense by saying the agency is “caught in the middle” between the environmental groups and the needs of Hays County. Rader said the LCRA started to work on construction not long after the biological opinion was completed. “We saw no reason to sit around on our hands and wait while there’s still a (water shortage) problem.” Hays County has recently endured a severe drought and Rader said, “Who knows what next summer will bring.”

Nico Hauwert, former assessment manager for the Barton Springs Edwards Aquifer Conservation District, said that he completed a study for the district that led him to conclude that there was no water emergency in the Sunset Canyon area. Sunset Canyon residents were some of the most vocal in asserting the need for a pipeline. Later in the day, Alan Hardy, a Sunset Canyon resident, said a neighborhood organization surveyed residents to find out what kinds of problems they were having. He said 11 percent of those surveyed were required to drill a new well in order to get water. Twenty-five percent experienced intermittent supply and a number of others had to replace pumps damaged by silt.

Hardy said two houses “burned down completely, one in the canyon and one just outside. They couldn’t really get enough water to put it out.” The lack of water for fighting fires was “a big selling point” in soliciting commitments to hook up to the LCRA line, Hardy said.

David Frederick, the chief of the Austin field office of USFWS, testified that the emergency “affected the consultation very dramatically. Human health and safety were threatened.”

Sparks made clear he believed that the lack of water in Hays County had reached the emergency stage. “Fortunately, it started raining,” the judge said. “There’s no question that underground water in May and June was as low as it’s been since the ‘50’s.”

Testifying for the plaintiffs, ground water engineer Lauren Ross said construction sediment and erosion associated with the construction was not addressed in the biological overview. She admitted that she expected LCRA to file a mitigation plan but questioned whether contractors would actually follow the plan. “Contractors are not going to take responsibility for doing that (mitigation) in the absence of meaningful enforcement.” She added that she has seen mitigation problems on other LCRA projects, even when the LCRA has promised additional mitigation measures.

Robert Paterson, associate dean of the UT School of Architecture and an urban planner, discussed the fact that water pipelines have been described as a “growth shaper” for a community. Decisions to extend water lines can determine sewers, roads, schools, and access, he said. Building the pipeline will make Hays County easier to develop, increase property values and make it more likely that banks will loan money for increased development, he said.

Judge Sparks reminded the parties that theirs was not the only lawsuit on his docket. He did not indicate how long it might take him to issue his ruling.

Planning Commission worries about

Anti-affordable housing covenant

Zoning change recommended, but with scolding

Planning Commissioners last night recommended approval of an apartment complex and commercial development at 1200 Slaughter Lane, but not until they had chastised both the developer and the neighborhood association for agreeing not to allow affordable housing.

The commission voted 5-3 to grant the zoning change, so that J.S. Davis Parents Limited Partnership can build apartments ( MF-1-CO) on David Moore Road, with commercial development ( GR-CO) on Slaughter. Commissioner Robin Cravey made the motion for approval, with vegetative screening to shield the neighborhood from noise and light coming from the complex. Cravey said, “I think we are all aware of the tremendous need for housing in the city and when we have a chance to provide some, we should.” Commissioners Jean Mather, Ben Heimsath and Chair Betty Baker voted against the motion. Commissioner Jim Robertson was absent.

Area neighbors spoke both in favor of and against the zoning change. The staff noted in written comments that there was a proposed private restrictive covenant between the developer and the neighborhood stipulating that the property not be used for affordable housing. Heimsath asked for a legal opinion on whether such a covenant would be legal. He said he did not want it to appear that the Planning Commission was approving the covenant. Assistant City Attorney Deborah Thomas said that while the covenant would be contrary to city policy, she did not believe it would be illegal.

Baker said, “If we approve this zoning, I would assume there is nothing to prevent the neighborhood association and the applicant from entering into this kind of agreement.” Thomas agreed.

Cravey said, “We would never be party to a restrictive covenant of that type. It’s against public policy to ask for that kind of thing. I would hope we could reason with them and get the neighborhood association to drop that demand.”

Amelia Lopez Phelps, who represents the developer, said she had talked to the association and gotten agreement to make the commitment concerning affordable housing by letter instead of by restrictive covenant. After the hearing, Lopez Phelps said she is hoping to persuade the neighborhood association to allow her to withdraw the letter by Thursday, the day the case is scheduled for City Council consideration.

Several neighbors said they were concerned about increased traffic, declining property values and generally wanted the vacant property to be developed as single-family housing. A valid petition against the zoning change was filed Tuesday afternoon, adding to the difficulty of the case.

Betty Edgemond told the commission she was in favor of the commercial development, but not the apartments. “If this (apartment complex) was on Slaughter Lane, it would be okay, but not on David Moore. I agree with staff for once. At what point do we get enough apartments?”

Paul Hilgers, director of the Department of Housing and Community Development, observed the proceedings. He told In Fact Daily, “I was pleased that the Planning Commission instructed the neighborhood and the developers not to include agreements to restrict affordable housing as a condition of seeking approval for zoning.”

Design Commission OKs

Variance for LaVista on Lavaca

Mixed-use condominium project planned

After a presentation by Mary Guerrero-McDonald on her La Vista on Lavaca, mixed use, condominium project, the Design Commission voted to recommend a requested variance to the Board of Adjustments. Guerrero-McDonald asked for only one variance, a 10-foot setback from 17th Street for the façade of her building. This would create an effect from the sidewalk that is “visible and inviting—beckoning,” she said.

A restaurant is slated for the street level with offices and residential units higher up, she said. A parking garage is planned for a 60-foot section of the project, and “roof gardens” will top the 120-foot structure at 1701 Lavaca St. Twenty-one residential units are planned. She hopes to break ground in March, Guerrero-McDonald said. She said she is hoping to attract tenants and residents who work and do business at the Capitol.

©2000 In Fact News, Inc. All rights reserved.

Austin Public Library wants you . . . The library is seeking volunteers for focus groups to assess library services and buildings. The volunteers will be giving staff advice on every branch, including the Faulk Central Library. For more information, contact Olivia Parker at 499-7449 or at olivia.parker@ci.austin.tx.us . . . Judge’s birthday bash . . . District Judge Darlene Byrne hopes to retire the debt from her recent successful campaign at a party tonight. The law offices of Fritz Byrne & Head, 98 San Jacinto, will host the event, beginning at 5:30 p.m.

© 2000 In Fact News, Inc. All rights reserved.

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