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Council postpones Stratus vote

Friday, June 28, 2002 by

Hearing features argument between Slusher & Bunch; Council still listening at 2:30am

After lengthy recitations by city staff on the details of the Stratus Properties proposal, the long-awaited hearing on Stratus’ plans for its 1,253 acres at Circle C got underway last night. But as 1am approached, the Council decided that it would be impossible to hear all those who had signed up—more than 400—and postponed first reading of the case until the next Council meeting on July 11. At midnight only 59 citizens, most of whom expressed opposition to the deal, had made it to the microphone. The room was so crowded that a fire marshal guarded the door, allowing a new person into the room only when another left. Emotions ran high, as they always do when Barton Springs is the issue. Old friends Daryl Slusher and Bill Bunch—now bitter enemies—slugged it out in public once again.

During the meeting, Council Member Daryl Slusher sent a 10-page letter to those who have expressed interest in the deal. He wrote, “The fundamental question around which I will make my decision is this: What is the best outcome for Barton Springs? In making that decision the Council does not have the luxury of choosing between what we think should be and what we think should not be. We have to make a choice based on some fairly brutal real world factors. Those include:

• Something will be built there unless the land is purchased for preservation.

• The City does not have the money to buy the land.

• No other governmental or private entity has purchased land over the aquifer for preservation.

• We live in Texas, which is a strong property rights state.

• The Bush administration is weakening enforcement of the Endangered Species Act.

Bill Bunch, Executive Director of the Save Our Springs Alliance and sparkplug of the opposition to Stratus’ proposal, criticized city staff for referring to the project as “SOS compliant.” In order to comply with the ordinance, he said, impervious cover on each tract would be limited to 15 percent. The “bucket” approach Stratus wants to use would leave some tracts totally undeveloped while others would have more than 15 percent concrete. That means, he said, the water quality will be dependent on engineering controls and long-term maintenance, neither of which are as good as natural filtering provided by undisturbed open space. He also chastised the city for not suing Stratus—as SOSA did on Monday—claiming that HB 1704/Chapter 245 is unconstitutional and should not be applied to the SOS ordinance. (See In Fact Daily, June 25, 2002. )

City Manager Toby Futrell was angered by Bunch’s continuing allegations that this is a “back room deal.” She told Bunch, “Nobody was surprised by (the proposal) . . . You had left the table at that point, Bill. But everybody else was still at the table.”

Mayor Pro Tem Jackie Goodman asked the SOS lawyer to explain why he thinks the group can prevail in its legal challenge to HB 1704/Ch. 245. In other words, why would the SOS ordinance be exempt from the state law.

Bunch discussed the restrictive covenants built into the Circle C MUD agreements, noting that those require all development within the watershed to comply with water quality regulations currently in effect. “We knew we’d need to upgrade our standards. To argue that some law won’t let us do that—if it does it’s an impairment of our contract rights,” he noted.

But Council Member Will Wynn retorted, “He asked which attorneys have told us that SOS in fact is not exempt. I think we should answer him. All 13 attorneys . . . including Renee Hicks . . . all 13 lawyers who have spectacular environmental litigation experience in this state, have all told us.”

Hicks said, “The exception says that the restrictions of Chapter 245 don’t apply to regulations to prevent imminent destruction of property and injury to persons.” Hicks went on to explain that the ordinance does not prevent injury to persons, but could perhaps prevent injury to salamanders. However, since the salamander as a wild animal is not “property,” its life is not covered by the law.

“The very purpose of SOS from its beginning was to prevent the slow death of the aquifer—death by a thousand cuts. SOS is kind of the opposite of preventing imminent destruction,” Hicks said. “Let’s assume that bad things will happen from the development . . . even with SOS . . . There’s going to be some degradation . . . and adding this is not the thing that would immediately kill the aquifer. It’s everything together that will kill the aquifer . . . That’s why I think it’s a legally weak position to take.”

Bunch wanted time for rebuttal, but Slusher didn’t want him to have it. The crowd was with Bunch and the Mayor finally allowed him an additional 3 minutes, but not before Slusher lashed out, “Everybody who doesn’t agree with you, even on whether you should talk for another four minutes, doesn’t want to protect the springs . . . If anybody expresses any disagreement with Bill, it’s ‘do you want to save the springs?’” Slusher said, “Mr. Bunch has had a number of years to challenge 1704, (but) he’s always wanted the city to do it.” Slusher cited the March 22, 2000 In Fact Daily in which Robin Rather revealed that she had tried repeatedly to convince him to file the suit. (Excerpted below) (See In Fact Daily,

After Bunch gave his short rebuttal of Hicks’ argument, the crowd erupted like soccer fans after a goal.

About 1am, the Council voted to stop allowing people to sign up to speak. Former City Council candidate Kirk Mitchell came in with another five speakers around midnight. By the time the sign-in was stopped, 427 people had said they wanted to register opinions. Anyone who signed up to speak but had not done so at the end of the hearing will apparently be allowed to speak at the July 11 meeting. Speakers continued at 2:30am.

Excerpts from In Fact Daily, March 22, 2000

The following is taken from the March 22, 2000 In Fact Daily, which reported that Robin Rather, then chair of the Save Our Springs Alliance Board of Directors, had decided to support the Bradley settlement:

She says she came to support the Bradley Settlement through a series of events that led her to believe that this deal was the best that could be gotten under the circumstances. Rather says she fought hard to keep the Texas Legislature from passing new legislation that once again put into effect the grandfathering rules that allow certain development projects to be built under older, less environmentally friendly regulations. Once that legislation passed, Rather said she tried to initiate a lawsuit to overturn the legislation, but neither SOSA General Counsel Bill Bunch, nor outside counsel David Frederick, nor the City of Austin would sue. Bill Bunch did not return a phone message last night for comment.

“I begged Bill Bunch to litigate. I literally begged him,” Rather said. She said that Bunch wanted the city to file the lawsuit but the city’s lawyers didn’t like the odds. “So I begged Bill again. That suit just didn’t happen.” The failure to sue was a huge blow to SOSA’s reputation, Rather said, because, “I said before to everybody, ‘If you pass 1704 we will sue.’ I said it early and often. When you say you will do something you have to do it,” she said. “I begged Bill from the minute 1704 passed and when he would not do it I asked him to get the scariest lawyer in town to help me figure out how to do this. He hired David Frederick (of Henry Lowerre Johnson & Frederick ), who came to the board meeting in August and recommended against it in the strongest way possible.”

When the lawsuit didn’t happen, that left negotiating with Bradley as the only viable option, Rather said, given that not settling would in her opinion do more environmental harm than settling for the proposed terms. She said while some people think delaying Bradley by not settling would be a victory, she thinks Bradley would end up getting what he needs to develop and the end result will be worse from an environmental viewpoint.

Council grants moratorium on

Historic zoning for East Austin

Holly mitigation funds allocated for children's programs

Even though Stratus dominated the minds of most Council members and citizens, the Council did some other land planning business before getting to the hot topic of the day. At the request of Council Members Raul Alvarez and Danny Thomas, there will be a three-month moratorium on new historic zoning designations for property in East Austin. During that time period, a gentrification task force will look at the impact of historic zoning designations on East Austin and its residents. The Council approved a resolution directing the Planning Commission, Zoning and Platting Commission, Historic Landmark Commission and the Community Development Commission, to appoint two members each to the task force. The group is expected to make recommendations during the 90-day moratorium, and Alvarez urged the commissions to select task force members quickly. He also said preference should be given to board members who live in East Austin. Four buildings that are currently in the historic zoning process were exempted from the moratorium, which applies to property within the area bounded by IH-35, Manor Road, Highway 183 and Town Lake. Later in the afternoon, the Council granted the historic designation to the Connelly-Yerwood House at 1115 E. 12th Street.

The city’s Historic Preservation Officer, Barbara Stocklin, told In Fact Daily that if an East Austin property owner came in tomorrow and applied for Historic zoning, the case would take more than 90 days to get to the Council. However, if the moratorium were extended beyond 90 days, it would impact people trying to get the historic designation, which must be granted before Dec. 31 to reduce the property owner’s taxes. Stocklin said she was afraid some people would be intimidated by the moratorium and would not want to pay the filing fee with the outcome so questionable.

Consultant Sarah Crocker, who appeared on behalf of John Q. Hammonds Hotels, had little trouble winning a unanimous vote on first reading to change the zoning on E. Highway 71 directly across from Austin-Bergstrom International Airport for a new Doubletree Hotel. The current zoning is Interim Rural Residence. The new zoning will be LI-PDA and GR, with the footprint of the hotel allowed to build to 90 feet.

The Council also approved a zoning change from single-family and rural residence to Planned Unit Development to allow better use of property at the northwest corner of Manchaca and Davis Lane. Henry Gilmore, representing Continental Homes, said the developer could add 10 acres more green space, save trees and build a hike and bike trail under the PUD designation. Gilmore said the developer had negotiated to move the Longhorn Pipeline, which has an easement on the property, so that there will be no houses within 200 feet of the pipeline. Alice Glasco, director of the Neighborhood Planning and Zoning Department, told the Council “There are no federal regulations regarding distance. The pipeline developers simply have an easement.”

The Council, acting as the Austin Housing Finance Corp., also approved financing that will assist Stassney Crossing LP to build 325 single-family homes at Nuckols Crossing Road south of St. Elmo. The affordable home subdivision, Viewpoint at Williamson Creek, meets the city’s Smart Housing guidelines. The developer will receive a loan of $125,000 through a community development block grant and the AHFC will guarantee up to $700,000 for a refinancing arrangement with Liberty Bank.

The Council also approved disbursement of $380,000 in Holly Mitigation funds from Austin Energy for a number of recreational and educational programs for children in the Holly neighborhood. Susana Almanza of Poder and Gavino Fernandez of El Concilio complained that the neighborhood did not have proper notification about the process for applying for the funds. AE General Manager Juan Garza said the department is working to set up a more formal process, but rushed to make selections so that money could be disbursed before the end of the current budget year. Council Member Alvarez added two $10,000 projects to the list recommended by the Electric Utility Commission. The first $10,000 goes to the Metz Recreation Center for restoration of a mural and the other will go to the Ballet East program. Metz will also receive $100,000 for the Help One Student To Succeed (HOSTS) comprehensive literacy program. Austin Energy is also paying $196,000 for a new pavilion and enlarged patio at Fiesta Gardens.

City Council appointments . . . The Arts Commission has three new appointees: Kathleen Harman, Gloria Mata Pennington and Mel Ziegler. The following were reappointed to the Historic Landmark Commission by consensus: Julia Bunton, Jim Fowler, Elizabeth Goins, Lisa Laky and Teresa Rabago. Council Member Daryl Slusher appointed David Mintz to the Library Commission. Senthil Kumar was appointed to the MBE/WBE Advisory Board by consensus. Mary Ruth Holder, Rhonda Pratt and Paul Valdez were reappointed to the Parks and Recreation Board. Mayor Pro Tem Jackie Goodman said her appointee, Amy Babich, would be reappointed next month. She noted, “The bureaucracy got the best of us.” Chair Rosemary Castleberry, who has served on the board for the past 8 years, said she has reapplied and does not know why she was not reappointed yesterday . . . In Fact Daily takes a few days off . . . We will be on vacation next week. The next new issue of In Fact Daily will appear on July 8. Have a great Fourth of July! . . . Vintage postponed . . . Zoning for the proposed Town Lake high rise was postponed until July 11 to give the developer more time to work out details of an agreement with neighbors. Sarah Crocker, who represents owner Robert Garrett, is hoping to settle differences with the South River City Citizens, who plan to consider the reduced plan next week . . . City Hall stood up . . . Austin’s current City Hall is still without historic designation. The

Historic Landmark Commission initiated historic zoning on the 8th Street building last month. But the city neglected to send anyone to support the application at Monday night’s HLC meeting. If approved, the designation would change from Central Business District to CBD-Historic.

© 2002 In Fact News, Inc. All rights reserved.

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