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FRIDAY, MAY 23, 2003

Final passage set for June 5

A divided Austin City Council passed an ordinance to ban smoking in most public places on second reading Thursday with the same 4-3 vote as on first reading. Efforts to find compromise on the emotionally charged issue only proved to widen the gap between nightclub and bar owners opposed to the plan and health advocates who say it’s necessary to promote a healthy work environment.

The Council is moving ahead with plans to exempt pool halls, bingo parlors and “fraternal organizations” from the requirements of the ordinance. While those supporting the ordinance consider those exemptions to be concessions necessary to gain Council support, opponents said they would create a two-tiered system for regulating businesses. “I don’t see why you would create any exemptions,” said Bob Woody of the East Sixth Street Community Association . “There’s employees at those businesses as well . . . you seem to forget that,” Woody told Ken Pfluger of the Tobacco-Free Austin Coalition . “You’re supposedly protecting the rights of the employees . . . you’re putting them at risk when you allow that exemption. That’s you doing that! You don’t want to put people at risk, yet you’ll allow an exemption based on this irrelevant form of mitigation. It’s still a double standard in a magnificent fashion.”

Pfluger maintained that his organization would, in fact, prefer an ordinance without exemptions. “Ironically here, we agree with Mr. Woody,” he said. “We started out saying we don’t want exemptions . . . but we’re trying to deal with the political realities.”

Mayor Pro Tem Jackie Goodman and Council Members Will Wynn and Raul Alvarez voted against the proposal as they did on first reading. Goodman said she could not support the measure because it was too invasive. “It’s very rigid. It’s not anti-smoke, it’s anti-tobacco,” Goodman said. “It goes beyond what we can reasonably all buy into.” Supporters of the plan, she said, were more concerned with eliminating tobacco use entirely than with protecting public health. “I would like to get out of the very war-like, very rigid stance . . . and see if we can have some recommendations and some good data from those that will be impacted by this,” she said. Goodman is the only smoker on the Council. But Mayor Gus Garcia pointed out that the proposal had been discussed extensively, and Council members had received hundreds of emails, phone calls and personal visits about the topic. “We have gone through the process; we have worked with people on both sides of the aisle . . . We drafted an ordinance which I would have liked to have passed,” said Garcia. “It’s been amended . . . What I would like to do is consider that ordinance and continue the dialogue.”

Council members that support the ordinance, including the exemption for pool halls, are trying to avoid creating a situation where neighboring establishments with similar clientele would face different regulations. Before third and final reading, staff will work on refining the definitions for pool halls and fraternal organizations. The proposed guidelines for pool hall include the operation of at least 15 pool tables, no food sales and a requirement that customers be at least 21 years old. The category of “fraternal organization” is designed to include meeting halls for groups like the Elks Lodge or Knights of Columbus and is based on tax-exempt status as defined by federal law. That definition could also be revised before final reading.

Wynn is also asking staff for information about the financial impact on restaurants that have recently spent money on ventilation systems to comply with the current ordinance. “It seems to me, just from a fairness standpoint, that if somebody makes a recent investment in full compliance with the ordinance, we go and change the rules on them and make that investment worthless, then we ought to have the ability to have the discussion about making that person whole,” said Wynn. The new ordinance will be posted for third reading at the June 5 Council meeting.

Ordinance on new zoning in plan areas must come back

The City Council took another stab at amending the ordinance governing how neighborhood plans can be amended yesterday, but could only muster a 4-3 vote on second reading. Council Member Betty Dunkerley’ s quips about the matter becoming a standing item on the agenda are no longer funny and now seem prophetic. Dunkerley, who championed the amendments in order to help developers of Smart Housing projects and major employment centers, rejected as unfriendly amendments offered by Mayor Pro Tem Jackie Goodman and Council Member Daryl Slusher.

Goodman, who is worried that the work of neighborhood planning teams will be devalued if it becomes to easy to amend the plans without their agreement, told Mayor Gus Garcia that she had an amendment when the item came up. He responded, “You never give up, do you?” She agreed with that and recommended that the ordinance be changed so that five Council members would have to vote for the amendment opposed by 20 percent of the property owners within the area. Opposition would be judged by a petition similar to petitions against zoning cases.

Dunkerley said she did not want to add “any more roadblocks” because the permitting process is already lengthy enough. She concluded, “Can we just vote on it separately?” Goodman said the requirement would not prolong the process, but only Council Member Raul Alvarez agreed with her. The vote on that amendment was 2-5.

Slusher then attempted his own amendment, which is based on the belief that some neighborhood planning team members might use their position on the team in an unethical way. “I would prefer to have the neighborhood planning team make a recommendation on whether or not they support the planned change…I just don’t want to set up a neighborhood plan-wide petition drive,” he said.

“We saw one (petition) that was based almost totally with someone going around door-to-door with misinformation,” during the neighborhood planning process. “And this had to be straightened out by providing accurate information. I don’t know if it ever got straightened out. It’s a burden on our staff to have to verify all those petitions,” Slusher argued. Slusher proposed a change which would have eliminated preferential treatment for the neighborhood planning team—which can propose an amendment to the neighborhood plan at any time—but added a requirement that the team make a recommendation to the Council on each proposed amendment.

Dunkerley objected and Slusher then proposed that instead of only one amendment time per year each neighborhood plan could be amended twice a year and the neighborhood planning team would be asked for a recommendation on every proposed amendment.

Dunkerley liked the idea that plans could be amended by anyone seeking a zoning change twice a year, but objected to cutting the neighborhood planning team’s role out as a group that could recommend a change at any time. After hesitating, Council Member Will Wynn finally seconded Slusher’s proposal, but the motion also failed on a 5-2 vote.

Goodman, Alvarez and Slusher all voted against the ordinance, which was unchanged from what was approved last week. The Council will hear the proposal on third—and presumably final—reading on June 5.

Wentworth legislation would give problem to Travis County

Austin has been the target of specially written legislation for the past two decades. Now Sunset Valley, a small municipality in southern Travis County that has become a location of choice for numerous retailers, shares that dubious distinction.

Earlier this week, Sunset Valley Mayor Terry Cowan testified against HB1204, which was filed by Rep. Todd Baxter (R-Travis County) . (See In Fact Daily, May 21, 2003. ) The advertised intent of the legislation was to reinforce a law approved last session requiring cities and counties to develop the same rules for new subdivisions in the ETJ and county-controlled areas outside of cities. Senator Jeff Wentworth (R-San Antonio) was the Senate sponsor.

According to a press release from Sunset Valley, Wentworth has offered a committee substitute that “contains language that will retroactively decide an ongoing dispute between Lowe’s Home Improvement Corporation and Sunset Valley and Austin, and would allow the Lowe’s, which is proposed over the recharge zone of the sensitive Edwards Aquifer, to be built solely under county subdivision regulations. Travis County does not regulate such things as impervious cover, a big concern for Sunset Valley, where 80 percent of residents rely on the Edwards Aquifer as their sole source of drinking water. According to several sources, the new HB 1204 language was added to the bill by lobbyists for Lowe’s.”

“This is like Goliath crushing David,” says Cowan, “and we don’t even have a slingshot. I can’t even get a meeting with Wentworth, yet he allows Lowe’s lobbyists to help write his legislation.”

Lowe’s has sued the City of Austin, which became the regulatory authority after Sunset Valley released its ETJ to Austin. Sunset Valley has now intervened in the lawsuit. According to Mike Blizzard, a consultant to Sunset Valley, the bill must first move through the Senate Administrative Committee to reach the Senate floor. Then it must return to the House because it is so dissimilar to the bill the House approved.

Baxter could simply agree to the changes, but there are some—in addition to the retroactive clauses—that give counties new land regulation powers. Other groups and their lobbyists will be trying to prevent them from being enacted.The bill is thus in no way assured passage. The last day for the Senate to consider the bill is next Wednesday.

Tuesday ,,

Thursday, Friday.

Manager’s rumor . . . “There’s a huge rumor mill going,” says one city employee. In times of crisis and uncertainty, people want information, even if it’s not the right information. Here’s our favorite rumor of the week from City Manager Toby Futrell: The City Manager will retire rather than face the upcoming budget. Futrell laughs as she tells this story, noting that she had not even thought of retiring—until she heard the rumor. However, she says she is not going anywhere. She’ll be here, worrying about all those employees who are out there wondering what to believe . . . Sign saga: the sequel . . . The large Brewster McCracken sign that went up on Live Oak Street before Margot Clarke’s party at the Lazy Oak Inn came down yesterday—not a coincidence. The campaign had permission for one day only. But the owner of the inn still put up her large Margot Clarke sign, along with several others, leaving no doubt about her convictions. Both campaigns report that their signs are disappearing . . . Clarke and McCracken spent the day talking to voters. McCracken went to a Greater Austin Chamber of Commerce economic development breakfast and lunch with the Young Men’s Business League, saving the afternoon for campaigning at a retirement home. He concluded his schedule with a party on 6th Street. Clarke visited with members of the West End Austin Alliance and attended a private party in her honor in East Austin . . . Early voting continues . . . Nearly 1,100 voters cast ballots in the runoff yesterday, bringing to 2,192 the total for two days of early participation. The hot spots were Northcross Mall, with 205 casting ballots; the Randall's on Research, with 137 votes cast; the Travis County Courthouse, with 126 voters; the three mobile voting booths, with 102 votes cast; and the HEB on South Congress, with 95 voters. Voting continues today at the fixed locations and at mobile locations in Westminster Manor, Brighton Gardens and the Conley-Guererro Activity Center. All voting locations will close Friday night and re-open on Tuesday in observance of the Memorial Day Holiday . . . Taking Monday off . . . In Fact Daily will observe the holiday, as will city offices. Athletes will participate in the Greater Austin Sports Association’s Triathlon beginning with a swim in Town Lake at 7am Monday. After the swim, participants will cycle and run through the downtown area. Anyone wishing to volunteer to help should call 322-5663 . . . Hyde Park Baptist Church historic zoning case postponed . . . The City Council postponed action on a request by city staff and the Historic Landmark Commission to designate the on Speedway historic. The church wants to demolish the structure to make room for a new building. The request will not now be heard until June 5, three days after the Legislature adjourns. Some legislators have tried to remove the city’s ability to zone church properties historic, but that legislation has so far failed to gain all the necessary approval. Susan Moffat, a member of the Hyde Park neighborhood group fighting the church’s demolition permit, described events in the Senate Finance Committee yesterday as encouraging to the neighborhood. She said Senator Kyle Janek (R-Lake Jackson) substituted new language for HB1278—of which he is the co-sponsor—removing language that would have prevented historical zoning of church property . . . Moratorium continued . . . Austin’s moratorium on new duplex construction has been extended until June 6th. That will give the City Council time to work out the final details on a new ordinance designed to prevent ‘super duplexes.’ The revisions to the current ordinance were approved on second reading at the end of a 90-minute discussion last night. The Council also granted a waiver to a man with an extremely complex duplex problem after city staff explained that he had not broken any of the city’s regulations, but had simply been caught between regulations. His duplex would meet requirements of the new ordinance except that it is three stories, which is taller than would be allowed under the new ordinance.

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