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Lawsuit seeks to overturn administrative decision

Friday, October 25, 2002 by

Neighbors of the El Taquito food stand filed suit Thursday against the City of Austin, the Board of Adjustment and Eloy Saenz, the owner of the business. Saenz had recently been given administrative permission to upgrade his mobile food cart into a “Restaurant-Limited,” as that term is defined by the City Code.

Neighbors and the South River City Citizens Association (SRCCA) asked the Board of Adjustment to overturn the administrative approval, saying that the taco stand is a noisy neighbor that operates late into the night, disturbing their sleep. In addition, they complained that city staff had misinterpreted the code in order to allow Saenz to build the restaurant and that the use would not be compatible with their single-family homes. Those homes lie adjacent to the taco stand, which is at 1713 Old East Riverside Drive on a bluff above busy Riverside Drive. Saenz owns the property, which is zoned LR. Under that zoning category, he would be required to obtain a conditional use permit (CUP) for a fast food restaurant—the permit he first tried to get. However, he later changed his application to “Restaurant-Limited,” which requires no CUP and no hearing.

The petition asks a Travis County District Court to hear the case as an appeal from the Board of Adjustment. BOA appeals go directly to district court and are never heard by the City Council. Neighbors have complained about Saenz for several years and the city has filed charges against him in Municipal Court. According to the petition, “Saenz presently operates a mobile food trailer on the tract without a land use permit of any kind. Such operation is illegal and has caused, and continues to cause, substantial and irreparable harm to the use and quiet enjoyment of (neighbors’) homes and land.”

Neighbors and the SRCCA ask that the court direct the city to send all relevant documents to the court for consideration of the appeal and that the court set aside the BOA decision and enjoin Saenz from operating at his current location. The petition also asks the court to enjoin the Board of Adjustment from granting Saenz application for a restaurant without consideration of its compatibility with the neighborhood.

The Board of Adjustment denied the neighborhood’s appeal on Oct. 14. (See In Fact Daily, June 5, 2002 ; July 10, 2002 ; Oct. 16, 2002 .)

As clock ticks, candidates must talk faster

With Senator Gonzalo Barrientos, his Republican opponent, Ben Bentzin, and a host of other politicians on the slate, last night’s forum at the Wells Branch Community Center drew a robust crowd of more than 60 people.

Democrat James Sylvester and Republican Jack Stick, candidates for newly created House District 50, each took a stab at convincing voters of Northern Travis County he was the best choice.

Republican candidate for Travis County Commissioner Precinct 2, Sheri Perry Gallo, sparred with Democratic incumbent Karen Sonleitner, and two candidates for 403rd District Court Judge also squared off.

Bentzin began the forum by telling those present that their school taxes had gone up 80 percent over the last four years and most of that money had gone elsewhere to help other districts. He quickly moved on to regional traffic concerns, noting that Austin was considered the third most congested city in Texas back in 1991, and now it ranks as the number one most congested in the state.

With a strict format based on brief opportunities to speak, each candidate spoke rapidly, clipping along from one subject to the next. But, attempting to cover the bases while fielding a few questions, Bentzin said he thought a state franchise tax was unfair, since it taxes groups and not individuals, and he took the opportunity to state his view clearly on a state income tax. “I think a state income tax would…unfairly punish the middle class,” he said.

When it comes to budget cuts, he said across the board cuts are not acceptable, since that could hurt something that actually needs more funding. That kind of action was not appropriate at Dell Computer, where he worked as an executive for 10 years, and it’s not appropriate in state government, he said.

Barrientos started off by quoting President John Kennedy, saying he agreed with the late president on what an honor it is to serve the public. He said he was not worried about being able to tackle the upcoming budget problems because he’s done it before, back in 1993 and1994. In addition, he said, the most challenging times for him in the Legislature have been the most rewarding times.

He enumerated his priorities, citing education and property taxes as first on his list. “We cannot balance the budget on the backs of school children,” he said. Insurance reform ranked second on his list. “They say nothing is certain in life but death and taxes. Well, we can add a third item and that’s insurance rate increases,” he remarked. Transportation came third, but his time was up before he could elaborate.

On shoring up the budget, Barrientos was blunt. “We’re about five billion bucks in the hole, at least,” he said. “We’ve got to get every federal tax dollar back from Washington.” He said the state needs creative ideas to help balance the budget. For example, he said the state could generate millions of dollars by printing advertisements on the back of lotto tickets, adding that he was “going to push that through the finance committee.”

First time candidate Jack Stick, a lawyer running for office in a brand new district, told voters he decided to run because he was inspired by the heroic firemen he saw on television on September 11, 2001. Seeing that level of dedication and commitment to public service changed his life, he said.

“The decisions we make in the next two years, in the next four years…will effect the lives of our children and grandchildren,” he said. “We need to elect leaders who are energetic and have vision.”

James Sylvester, his Democratic opponent, said he was raised in Houston by parents who both had long-term teaching careers. Because of that, his primary focus at the forum was on education. “We’re losing millions of dollars a year,” he said, because of the Robin Hood plan. He stressed the importance of keeping tax money collected for schools in the district of origin.

A Travis County deputy sheriff for 16 years, Sylvester said Texas ranks 34th in education nationally. “I’m embarrassed,” he said, “We should be number one!”

Gallo attacked Sonleitner, saying her eight years in the court have left a record of higher taxes and higher debt. Travis County has the highest debt and taxes of the five biggest counties in Texas, she said. Not only that, but Austin is the number one city for traffic congestion in the state, and that is “horrible, absolutely horrible,” she said.

“During the entire eight years my opponent has been in office we’ve been in violation of state jail standards,” she added. On spending, she said the county budget should be handled like a household budget, not going overboard all the time.

In response to Gallo’s claim of mismanagement, Sonleitner said, “You can’t pit the central city with the ‘burbs.” Problems come up, complications arise and solutions are not always straight-forward, she noted, but “we have a triple-A bond rating that says we are exceptionally managed.”

She told the residents of Wells Branch that she has worked hard to improve conditions for neighborhoods. “I have fought TxDOT for the neighborhoods,” she said. “In your area up here it’s all about roads, roads, roads,” she noted.

Judge Frank Bryan, a Republican who was appointed to the 403rd District Court, by Governor George Bush, said he has refused to accept campaign contributions from any lawyers who appear in his court. He said his opponent, Democrat Brenda Kennedy, had accepted more than $57,000 in such contributions.

He also noted he has a policy of restricting bond requests in his court to keep criminals off the street. Kennedy, who has served as a County Court judge for 15 years, said Bryan’s bond restrictions are unnecessary and require additional provisions beyond state law. “What he has done is an adversarial procedure,” she said, one that keeps people in jail longer and slows the docket. The docket in her court is the most efficient in the system, she said.

Fundraising is the worst part of being a judge, Kennedy noted, but she has always followed traditional methods in raising money for her campaign. If her opponent wanted to run a campaign based purely on merit, without fundraising, that would have been just fine with her, Kennedy said.

Aquifer district votes 3-1

To impose full fine on Kyle

Kyle officials send letter, but fail to appear at meeting

By Bob Ocho a

An eleventh hour appeal by the city of Kyle did not budge the Board of Directors of the Barton Springs Edwards Aquifer Conservation District, who voted 3-1 last night to adopt an enforcement order imposing a $129,124.71 fine. The fine is the price Kyle is expected to pay for overpumping its 2001-2002 permit by 89 million gallons. (See In Fact Daily October 4, 2002 ; October 23, 2002 .)

Board president Jim Camp said this week it is one of the largest cases of overpumping, and the largest fine ever imposed by the district. Kyle did not send a representative to the board’s Thursday night meeting. Instead, a letter from Kyle City Manager Tom Mattis was sent by special delivery to board members, arriving barely two hours before the board convened.

In the letter, Mattis said the city objected “procedurally” to the district’s hearing process and objected to the order “on grounds that the District does not have authority to impose Excess Pumpage Fees, and to the extent that the order improperly imposes economic damages upon the City.”

Board member Jack Goodman said he would stand by the order. “Our attorneys don’t think we have any liabilities,” he said. “They have pretty much advised us it (Kyle’s claim of economic damages) doesn’t materially affect our order. They (Kyle) were given plenty of notice (of the overpumpage) and they didn’t respond. I just don’t understand that.”

Goodman, Camp and board member Craig Smith voted for adoption of the enforcement order, following a 30-minute executive session. Precinct 3 board member David Carpenter voted no. Precinct 2 board member Bill Welch was absent.

The order sets out a quarterly payment schedule in amounts of $32,281, with the first payment due November 15. It states that failure to pay could result in a civil suit against the city, using “all mechanisms provided under the District enabling legislation, the District’s rules and Chapter 36 of the Texas Water Code.”

Part of the fine that covers excess pumpage and transport fees will be used to pay for aquifer recharge and conservation programs, which district officials say will benefit aquifer users inside the district as well as Kyle.

Kyle’s overpumpage became serious in July of this year, when BSEACD staff discovered that the city had withdrawn significantly more groundwater than its 55 million gallon per year allotment from a well just inside the district’s southern boundary.

The city is the only large permitted user outside the district. In 1998, a “good neighbor” permit, as Goodman has referred to it, gave the city temporary use of aquifer groundwater until it could find other sources of water. Kyle is now receiving a half million gallons daily of surface water from Canyon Lake through a deal with the city of San Marcos and the Guadalupe Blanco River Authority, and is seeking to expand the supply to 1.5 million gallons daily. But city officials have said that may not be enough to serve a fast-growing population.

Mattis’ letter said that Kyle is working on both a short and long-term water plan, including a conservation component,.

Wednesday, Thursday,

Friday.

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

Get your No-Doz . . . After postponing numerous items, the City Council spent a few minutes on approving the consent agenda, but then had a two-hour-plus recess. But Mayor Gus Garcia warned colleagues, staff and the audience at yesterday’s Council meeting to plan ahead for the Nov. 7 meeting. After announcing that the Neighborhood Plan for the East MLK Combined Neighborhood would be postponed for two weeks, Garcia said, “So, go ahead and get your No-Doz and come on down. Because we’re going to be here for awhile” for that meeting. He promised that next week’s meeting, on Halloween, would be short to allow for parents and grandparents to go trick-or-treating . . . Land controversy postponed . . . The City Council postponed a final vote on a zoning request for 30 acres of land at 3226 West Slaughter Lane. The landowners, John and Joyce Harmon, had requested MF-4 zoning, and plan to build 311 apartment units on the property, which sits atop the Barton Springs Zone of the Edwards Aquifer. The Save Our Springs Alliance, among others, has voiced opposition to the zoning change, citing the increase in traffic, density and pollution likely to result. In July, the Council approved the change on first reading only . . . Appointments . . . The City Council appointed Martha Iglehart to the Arts Commission. Cindy Carroccio was appointed and Vivette Ellis was reappointed to the Animal Advisory Commission. Carole Craig Barron was appointed to the Resource Management Commission . . . Bass Babes battling breast cancer . . . The American Cancer Society will benefit from all proceeds from Sunday’s party at the Vibe, 508 E. 6th Street. Doors open at 1pm, with entertainment by Picasso’s Radio, Bad Apples, Blown, Isotach, the Moguls, Mondoz, Ogre & Doubt, Orange Platypus, Southern Gun Culture and Sunbury . . . Green Building Conference and Exposition coming . . . The Austin Convention Center will be the site of the US Green Building Council’s (USGBC) First Annual International Green Building Conference and Exposition Nov. 13-15. Organizers say 2,500 attendees from across the nation and fourteen other countries have already registered for the conference . . . Press conference . . . The Hill Country Conservancy will announce new property purchase at 11am this morning at the Austin Convention Center. The press conference will also provide a progress report on efforts to preserve open space in the region. Congressman Lloyd Doggett, as well as local officials, will join executives from the Hill Country Conservancy.

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

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