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SOSA notifies City, Bradley, of

Monday, August 6, 2001 by

Intent to sue over Circle C West

Construction general permit at root of problem

The Save Our Springs Alliance (SOSA) has sent notices to the City of Austin, Gary Bradley, two other developers and an engineering firm, declaring that the organization intends to file suit against them for alleged violations of federal laws on endangered species and water pollution. The notice follows a draft biological opinion from the US Fish and Wildlife Service (FWS) stating that further degradation in water quality at Barton Springs “jeopardizes the continued existence” of the endangered Barton Springs salamander. (See In Fact Daily July 25, 2001 ).

The notices, which were mailed late on Aug. 2, say that discharges from construction activities “at Circle C in the Circle C West/Hielscher tract areas . . . (are) likely causing harm to the Barton Springs salamander. Further discharges from construction of these sites will likely cause additional harm to the Barton Springs salamander. Pollution discharges after construction, including but not limited to eroded sediments, pesticides, fertilizers, heavy metals and petroleum aromatic hydrocarbons will also likely cause harm to the Barton Springs salamander.” Bradley’s agreement with the city allows the development, but does not relieve him, or others, from compliance with federal law.

According to the letter from Bill Bunch, executive director of SOSA, “The US Fish & Wildlife Service notified (engineer Ruben Lopez of Lakeside Engineers), Mr. Bradley, US EPA, and Austin Mayor Kirk Watson by letters dated Jan. 17, 2001 that ‘it is (FWS’) opinion that the Settlement Agreement as proposed would have an adverse effect on the Barton Springs salamander.’” Bunch sent his letter to Bradley, Lopez, Larry L. Aiken of Lacrosse Ltd., James W. Meredith of Hielscher Estates Ltd. and Masonwood Development and City Manager Jesus Garza.

City spokesman David Matustik said Sedora Jefferson, acting City Attorney, had not received the notice of intent to sue as of Saturday. The other persons notified could not be reached for comment, nor was it clear whether they had received their letters. Bunch said the notifications went to all of those named because SOSA wanted to make sure the correct parties were notified. That does not mean all of those receiving letters would be named in a future lawsuit.

Bunch explained that the organization did not sue the FWS or the EPA because, “In our settlement on the construction general permit we agreed not to sue the feds under these circumstances . . . because they were redoing the consultation. We reserved the right to sue the developers who registered improperly.” He said the claim against the developers is “essentially the same claim that the Save Barton Creek Association has made on the Bradfield Tract. The difference is we named city as a potential defendant and SBCA didn’t.”

The FWS has contended that developers are failing to comply with the Clean Water and Endangered Species Acts. The Environmental Protection Agency, which has enforcement authority over construction that causes pollution, has not responded to letters from FWS concerning the Bradley development. SOSA sued both agencies and settled with them this spring. Under that settlement agreement, FWS and EPA agreed to do a consultation regarding the salamander. The two agencies are in the midst of that consultation, but the FWS has already asked the EPA to take steps to prevent future construction in the Barton Springs watershed under the construction general permit (CGP) FWS has also told the EPA that the agency should begin to review all incomplete construction projects in the watershed to determine whether their pollution prevent measures are adequate to protect the salamander. EPA received the draft biological opinion and has until approximately Aug. 21 to respond.

Prior to the earlier SOSA lawsuit, the EPA did an “informal consultation” with the Fish & Wildlife Service. That consultation did not give the salamander any special protection under the CGP. The result was only that “all development that disturbs five acres or more are required to register in compliance with (the EPA’s) general permit before initiating construction.” Developers are allowed to begin construction and discharge pollution within two days of the postmark on their notice to use that general permit.

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 last year. (See In Fact Daily, June 7, 2000) .

Council approves help for

Affordable housing projects

Blunn Creek Apts. to provide housing, hiking trail

Clark Hammond, president of South River City Citizens, says he and his neighbors are very pleased about the Blunn Creek Apartment project, an affordable housing complex being built in their neighborhood. The project will receive assistance from the Austin Housing Finance Corporation (AHFC) in obtaining $15 million in bond money under a complex transaction that city officials say does not cost the city. The City Council, acting as the board of directors of the AHFC, approved the deal last week.

Hammond says, “It’s a pretty special deal . . . the city is not on the hook in any way. The bonds are all guaranteed by the value of the property, and Hunt Properties has over $2 billion in apartment and shopping center assets.” UT Regent Woody Hunt’ s company is a partner in Blunn Creek, Ltd., which will construct and manage the project.

The 280-unit complex, to be built at 607 Woodward St., will offer one to three-bedroom units for $557 to $765 per month.

Paul Hilgers, director of the Department of Housing and Community Development, described the developer as “very experienced in national affordable housing . . . with projects that comprise over 44,000 across the country.” Hilgers noted, “All the families in this development will be at or below 60 percent of median family income . . . The project will be in compliance with Smart Housing standards.”

Hammond told In Fact Daily, “From the day they open until 20 years down the road the project will offer affordable housing.” He envisions schoolteachers, firemen and policemen living in the complex, which will be directly south of the Blunn Creek Wilderness. “That’s important to our neighborhood,” Hammond said, because housing values have escalated so much that “it’s crowded out a lot of people.” In addition, the developer has agreed to build a hike and bike trail on the portion of the property that runs along Blunn Creek.

The Council also approved a forgivable loan of $260,960 for land and development of an 11-unit apartment complex for low-income elderly individuals at 5905 Manor Road. Hilgers said the non-profit organization Volunteers of America-Texas, which “has successfully developed affordable housing in Texas for over 20 years,” would manage the project. The goal of the project is to enable single residents to live independently. It will be open to elderly residents whose income is less than 50 percent of the median family income. Rent for the 540-square foot apartments is pegged at $260 per month. The project also complies with Smart Housing criteria, Hilgers said.

Environmental Board puts off

Decision on unfinished home

Panel hears tale of bureaucracy and tears

Last week, the Environmental Board postponed action on a request from the owner of the Oasis Restaurant seeking variances to complete construction of an unfinished home above Lake Travis near the Oasis. The construction saga became such a nightmare for the intended owner that she sold it back to the original landowner, Robert Theriot.

Theriot, owner of the Oasis, bought back the incomplete house and lot from the woman he had sold it to the previous year. Attorney Jerry Harris, representing Theriot, said Carol Polumbo had bought the lot from Theriot in 2000 to build her dream home, but ran into so many legal hurdles with the City of Austin that she gave up in frustration. In tears, she pleaded with Theriot to buy the lot back from her, which he “graciously” agreed to do, according to Harris. “He was only helping with a situation that had turned into a supernova disaster,” Harris said.

When Polumbo bought the lot, in the Comanche Pass subdivision on Oasis Pass, she called the City of Austin to ask if her lot was in the city limits and therefore subject to city regulations. Harris said she was told no, so she applied for and received building and utilities permits from the county and other entities, following the same procedures as all the other homeowners who built in the area. But after she had gone far enough to actually have much of the home built, a neighbor complained to the City and had construction stopped. At this point it was revealed that Polumbo’s lot was in the City’s Limited Purpose Jurisdiction, and that she would need to comply with various city regulations. She proceeded, and was close to receiving a city building permit when she was told her lot was not a legal lot in the City of Austin.

City staff recommended granting three out of four variance requests to allow construction to continue. The Environmental Board discussed the matter and heard testimony from Harris, city staff and other professionals for nearly an hour before voting 6-0, with Board Member Phil Moncada absent, to postpone making a recommendation until September 5.

“We’ve set this up so there would be no adverse environmental impact,” Harris said. He also noted Theriot intends to donate 325 acres in the area for bird habitat.

Nevertheless, the Board sent the matter back to see if staff and the applicant could work out a better arrangement that would be more compliant with current environmental regulations.

“I would like to see every effort made to make this lot up to code for environmental reasons,” Chair Lee Leffingwell said.

2001 In Fact News, Inc. All rights reserved.

Opinion released . . . Texas Attorney General John Cornyn has released an opinion that will be a disappointment to some developers, but will cheer environmentalists. When the City of Austin won the lawsuit brought by FM Properties, the Texas Supreme Court declared the law creating “water quality zones” unconstitutional. However, the court noted that it was ruling on the 1995 law, not the law as amended in 1999. Cornyn released an opinion last week which concludes that the amendments did not cure the problems that flawed the original legislation. Water quality zones are still an impermissible delegation of legislative authority. (See Opinion No. JC-0403) . . . Commission appointments. . . Last week the City Council by consensus appointed Joseph Martinez and Niyanta Spelman to the new Zoning and Platting Commission. Council Member Danny Thomas appointed Vincent Aldridge and Mayor Pro Tem Jackie Goodman appointed Betty Baker, current chair of the Planning Commission. As for the new revamped Planning Commission, Council Member Raul Alvarez appointed current Planning Commissioner Lydia Ortiz and Council Member Will Wynn appointed downtown neighborhood leader Chris Riley. The Council did not take up the question of charter revision. Mayor Kirk Watson told In Fact Daily he hopes the Council can appoint a new commission to come up with rules for City Council campaigns. A group calling for taxpayer-financed elections already has 19,000 signatures out of the 20,000 needed to call a Charter election. The Council will meet this Thursday, but not on August 16. Since this is budget season, the Council will have several opportunities to discuss the proposed budget, which is set to be adopted on Sept. 10, 11 and 12, if three readings are necessary. Meetings on Sept. 6, 13 and 20 have been cancelled.

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