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Slusher, Bunch battle

Monday, January 29, 2001 by

Over strategy on Stratus

Sharp disagreement between friends

By Doug McLeod

Is it a personal feud, a fundamental rift or just a war of words among Austin’s environmental leaders? Council Member Daryl Slusher and Bill Bunch, executive director of the Save Our Springs Alliance(SOSA), long-time friends, have been exchanging acerbic jabs for months now in the name of saving Barton Springs. E-mail to Slusher from Mark Tschurr, chairman of the SOSA Board of Directors, has been even more vitriolic. The latest round is in an ongoing e-mail dialogue sparked by a long letter Slusher sent out two weeks ago.

Slusher expressed his views eloquently and at length in a document of nearly 5,000 words he sent out to hundreds of citizens on Jan. 12 (http://www.ci.austin.tx.us/council/slusher.htm) Tschurr responded by email asking Slusher to refrain from sending him any more “spam.” In great detail, and in defense against scathing attacks hurled upon him last December in mass e-mails and two full-page ads in the Austin Chronicle, Slusher explains his position.

At last Thursday’s City Council meeting, Slusher told In Fact Daily he was wondering why SOSA had not responded to his request to send his message out to the SOSA e-mail list. When asked about it, Bunch said he had been in trial and very busy, but that he was actually in the process of sending Slusher’s letter, with his own responses interjected, at that moment. In that e-mail response sent out last Thursday, Bunch singles out various points stressed by Slusher and offers his own viewpoint.

After receiving the version sent to SOSA’s email list—annotated by Bunch—Slusher said, “It would have been nice if they could have sent out something without inserting a reply. But I don’t mind having some open dialogue.”

“One thing that struck me most about the e-mails,” Slusher wrote, “was that many people acknowledged my long years of work in protecting Austin's environment as well as my work for open government. Thus, wrote some of you, you were disappointed, dismayed, outraged, that I was now proposing ‘secret negotiations’ with Stratus that could lead to the destruction of Barton Springs and the giving away of Mueller airport. It troubles me that so many could—based on one or two e-mails—conclude that I was now acting contrary to decades of fighting for Austin?”

Bunch’s response: “No one has questioned your desire to protect the springs. Where we have fundamentally disagreed is the approach of bilateral negotiations between the City and Stratus which relegate both neighborhood and environmental interests to outsider, second-class status.” Bunch concludes, “you have acquiesced to Stratus’ divide-and-conquer strategy and weakened all of our efforts to protect Barton Springs.”

Slusher replies, “I tried to get SOS to tell me what they would accept for months . . . They were consulted. I tried to get them to tell me—in particular, Bill—before we even entered negotiations.”

Slusher wrote: “Those making the secret meetings charge maintain that any private conversation or meeting constitutes a secret meeting. The same folks making those charges—the same folks buying Chronicle ads and sending e-mails charging secret meetings—were at the same time themselves requesting, and in some cases getting, private meetings with the same Council Members that they were charging with secrecy.”

Bunch’s response: “Daryl has failed to accurately explain both our position and what happened. We called for an end to secret negotiations many months ago. Those requests were ignored. Many months after our request to end secret negotiations, Daryl did take action to end the executive session discussions . . . We understand that private conversations will happen. However, what we called for was that the primary communication, dialogue, negotiation, or whatever you want to call it take place in meetings where all interested parties were invited and allowed to participate.”

Slusher wrote: “Development will occur on these properties regardless of whether the council approves a development agreement or not. Many letter-writers and speakers suggested that the only way development will happen is if the council approves a development agreement . . . Stratus owns the property and has certain property rights under the United States Constitution as well as under state law.”

Bunch response: “This defeatist argument—‘I know the future and the alternative is much worse’ is not new and has been the standard justification for approving bad development for many years . . . Mega-development and pollution, in our view, is far more certain and imminent than under a ‘no deal’ approach. By slowing down Stratus’ development, opportunities for preservation increase substantially. Speeding up Stratus’ development by giving them sewer, PUD zoning and other necessities makes the development and attendant pollution much more certain.”

Slusher says in rebuttal that Bunch was one of those arguing privately, before negotiations started, that the city should talk with Stratus. He says the city has not accepted the original term sheet and will not do so.

In his memo, Slusher stressed a key point: “In fact, due to state water pollution grandfathering law, there is a strong possibility that without the city’s involvement development of the property would be much more intense, and have much weaker water quality controls.”

Bunch’s response is, “We fundamentally disagree with this assertion.”

What about Fish & Wildlife?

Slusher went on to say, “some argue that the United States Fish and Wildlife Service (USFWS) might step in and require tougher standards. I hope that is the case. That strategy, however, means counting on stronger environmental protections coming out of the George W. Bush administration, the Republican Congress, and Bush Interior Secretary designate Gale Norton—a protégé of Ronald Reagan’s Interior Secretary James Watt. This seems an odd place to put our faith, for several reasons, including that Bush signed the grandfathering law that created the situation. Plus, an agreement between the city and Stratus would not preclude further action by USFWS.”

Bunch’s response: “We have not argued that the USFWS ‘might’ step in. What we presented to council was that Stratus ALREADY has specific, legal obligations to the USFWS under their existing federal permits. These permit requirements would not allow the ‘worse-case scenario’ that city attorneys and staff have used to argue in favor of a settlement with Stratus. Because the negotiations leading to the term sheet excluded neighborhood and environmental leaders, and because city negotiators were unaware of these legal commitments, the City negotiated from an unnecessary position of weakness.”

Slusher says this is a mistaken belief on Bunch’s part. Members of the city staff are aware of requirements of USFWS and “are not comforted by them.” Of course, the federal agency can add conditions for development in the habitat of endangered species, such as the Barton Springs watershed, whether the city issues a permit or not.

Slusher attempted to prove his current stance was consistent with his position in 1993 by pulling his own published words from the past. But Bunch disagrees with him on that too. Slusher wrote:

“I realize that some of you say that in my earlier years I would never have even considered a deal with Stratus or Moffett . . . Following is an excerpt from an editorial I authored in January 1993 when Jim Bob Moffett himself proposed peace negotiations; the editorial was also signed by Louis Black and Nick Barbaro. It reads in part: ‘While we are skeptical, it would be unwise to automatically reject Freeport's offer of peace negotiations. There’s a danger that we are in a war which will have no winners. If there’s any chance that such an outcome can be avoided, then that possibility should be explored . . .The discussion needs to be very public, and the details of any deal need to be public for at least several weeks before anything is given approval by any governmental body.’ That is exactly what my position is today.”

Bunch’s response: “Here Daryl is leaving out a critical fact, one that was pointed out to him when he made this argument previously. The negotiations he wrote in support of in January 1993 consisted of a multi-party negotiation involving representatives from neighborhood and environmental groups, developers, and city representatives. It was known as the ‘ Scanlan/Oles committee’ because it was co-chaired by attorney and environmental leader John Scanlan and developer Pat Oles. All meetings and all information was shared equally by all parties and in public. This is very different from the council process that led to the proposed ‘term sheet’ as well as the process that is apparently continuing.” Of course, the Scanlan/Oles committee failed in its mission to reach agreement.

Slusher says Moffett laid out a peace offer in late 1992 or early 1993. “That was comforting,” Slusher says, “not that he wanted to make peace, but that showed me he didn’t have the votes on the City Council, so we could get a new Council” to make a decision on the case. Slusher also points out that the city has started putting together a group to look at any proposal from Stratus. Last year, the City Council asked the Environmental Board, the Water and Wastewater Commission, the Parks Board and the Planning Commission to select three members each to site on the special commission. The Council is supposed to appoint three members at large, but has failed to take up the painful topic so far this year.

What about HB 1704?

On the issue of whether the city should go to court to fight HB 1704, Slusher writes: “I believe this is a bad law, and I particularly don’t like the fact that Stratus was involved in getting it passed. Nonetheless, it was passed by the Texas Legislature—over vigorous opposition by the city of Austin—and signed by the governor, now the president-elect.

“Some say that simply filing a lawsuit against 1704 would make the problems disappear. Over the last two years, however, the council has brought in a number of attorneys to advise us on that possibility. These were the same attorneys who won lawsuits against other Austin-bashing legislation, successfully bringing thousands of critical acres back into Austin’s jurisdiction. Also, additional attorneys recommended by the environmental community were consulted. Based on that plethora of advice the council concluded that a constitutional lawsuit against 1704 was not prudent. So the city has tried, with some success, to negotiate stronger water quality protections on properties with strong grandfathering claims.

“As reported in the press, SOS received similar advice and evidently came to a similar conclusion, because they have not sued either. According to a former board member who originally wanted to sue, not a single lawyer would take the case and neither the SOS chief counsel nor their outside counsel would recommend to the board that they sue. Among the reasons for that inaction was advice that there would be a minuscule chance of victory and that the cost would be prohibitive—including likely having to pay the other sides’ attorneys’ fees. Still, however, representatives of SOS—including their chief counsel—have called on the city to sue.”

Bunch replies that SOSA has urged that the city argue, like Sunset Valley, “that the key provisions of the SOS ordinance are exempt from the ‘grandfather’ provisions of SB 1704 because they prevent harm to public health and safety. The issue is very science intensive and Stratus and others would throw everything they have got at it. Our legal view is that it is extremely winnable IF it is the City and SOSA against developers, with the City shouldering the bulk of the legal paper war.”

Slusher says the lawyers who represented Sunset Valley met with the City Council and the Council came away believing that it would be unwise to follow Bunch’s advice. In addition, Slusher said he is extremely concerned about the recent loss by the City of Bee Caves in a fight over 1704 in district court in Travis County. He points out that the judge who overturned so-called “water quality zone” legislation, Judge Paul Davis, ruled against Bee Caves.

Bunch says, “. . . the entire letter ignores one of the biggest factors—the continuing legislative threat from Stratus. The City wants to ignore this issue because it does not want to be seen as weak . . . In closing, SOSA is ready willing and hopeful that these differences can be put aside and we can work more cooperatively to save Barton Springs. But this cannot happen when Stratus is given insider status at city hall . . . If Daryl or others feel under attack, it’s because that has been our only option.”

Slusher said on Sunday that Stratus has made no legislative threats. He said he is not worried about what the Legislature may do in the future, only about what has already been done, namely HB 1704.

City Council makes board and commission appointments

The Austin City Council made the following appointments and re-appointments last week: Council Member Danny Thomas appointed Stephanie Peña to the Commission for Women. Council Member Will Wynn appointed Leslie Oberholtzer and Mayor Kirk Watson appointed Richard Weiss to the Design Commission. Thomas also reappointed Thomas Owens to the Electric Utility Commission, Dr. William Rush to EMS Quality Assurance, Fred Garrett to the Ethics Review Commission, and reappointed Scott Pasternak to the Solid Waste Advisory Commission. Council Member Raul Alvarez appointed Carla Vasquez Schuller to the Library Commission and Thomas appointed Ira Strange Jr. Wynn reappointed Michelle LaVigne to the Resource Management Commission.

©2001 In Fact News, Inc. All rights reserved.

Property shopping . . . Looking at a long road to swapping western Travis County land for city property at Mueller, Stratus’ CEO Beau Armstrong has been checking out other sites, including one close to Austin-Bergstrom International Airport . . . Retiring young. . . Alta Ochiltree, whose service to individual Council Members goes back to the mid-80s, when she was Mark Rose’s secretary, bid farewell to city friends on Friday. Ochiltree, who is retiring from the office of Mayor Pro Tem Jackie Goodman, also worked for Council Member Max Nofziger for many years. Ochiltree began working for the city when she was 19 years old. She said Friday that after 27 years with the city she would like to do a little traveling. She will be honored at Thursday’s City Council meeting . . . Not so old either . . . Mack Hernandez will be honored at Tuesday’s Travis County Commissioners Court meeting as he retires, after 20 years of service . . . Exiting the local stage . . . Austin Chronicle staff writer Robert Bryce is leaving the local weekly to work for Interactive Weekly, a web-based publication . . . Capitalizing on bad news . . . Bad Dog Comedy Club, 110 E. Riverside Dr., is having a Pink Slip Party, February 6, at 6 p.m. Their web posting says, “Quit crying in your beer and laugh it off. A party just for you and the 1,000 people that were laid off this year. The first 500 get in free.”

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