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Several measures would make environmental regulation more difficult

Friday, May 16, 2003 by

While the House Democrats’ walkout may end up derailing Republicans ’ redistricting plans, it could also have a negative impact on legislation the City of Austin wants approved. Republicans have promised that certain bills may end up as amendments to other existing House or Senate legislation. Some bills are clearly lost; others still have hope. The House version of the high-profile Austin/Travis County hospital district bill may be gone, but the Senate version is still in play.

The biggest question is what kind of financial hits local governments will take when the final budget is approved. Overall, the city is probably better off with a stalled Legislature than with the frantic pace that often accompanies the end of a legislative session, says Governmental Relations Officer John Hrncir.

The city has an interest in keeping some bills in committee, where they will die a low-profile death, Hrncir said. For example, HB 1680, sponsored by Rep. Jack Stick (R-Austin), would require the city to set lower tax rates in Municipal Utility Districts within the city limits if the MUDs also charge fees. Failure to comply would risk deannexation. The bill, Hrncir said, would only benefit Canyon Creek MUD.

That bill is now expected to die in the House Land and Resources Management Committee. Other bills marked with serious opposition are likely to share a similar fate.

On the other hand, two bills backed by homebuilders and opposed by some municipalities and environmental groups had a rather favorable hearing in the Senate Intergovernmental Relations Committee on Wednesday morning.

One bill, filed by Rep. Edward Kuempel (R-Seguin), would exempt developers from new ordinances once permits are issued, even if the development would cause “imminent destruction of property or injury to persons,” except within federally determined flood plains. Environmentalists argued that the bill would give developers who had planned developments decades ago an opening to avoid new impervious cover standards, among others. Sen. Kim Brimer (R-Fort Worth) scoffed at the environmentalists who expressed concern about HB 2130, saying that environmental opponents had presented “condescending and flawed testimony.”

Sen. Jeff Wentworth (R-San Antonio) said HB 2130 is “not a radical bill.” What the bill provided was regulatory consistency and fairness to protect against “retroactive regulation.” It makes sure “cities don’t change the rules in the middle of the game,” he told his colleagues on the committee.

Charlie Zach, with the city of New Braunfels, argued that his city—sometimes referred to as “the flash flood capital of the world”—needed the ability to regulate. He cited concerns with language that addressed flood plains but not floodways.

Zach argued that it was difficult to stop developers when new regulations are filed. The city often sees a “rush to the planning counter to get permits” when new regulations are under consideration. He said it’s hard to stop those permits when the city requires three readings of the ordinance before it’s properly passed.

Attorney Doug Young, who represents the City of Sunset Valley, presented a case filed back in 1999 that would be applicable under the ordinance. In the case, the owner of two subdivided lots reneged on promises to follow city codes after extensive negotiations with the city, insisting that the land had been subdivided before the city was formed and ordinances passed. The city had to pursue a declaratory judgment in court.

“This was not a case of a city overreaching and preventing development unfairly,” Young said. “This was a rational approach to address the hundred-year flood plain and still allow development and fair use of the property.”

Wentworth may present some compromise language on the bill offered by the City of Plano.

A second bill, presented by Sen. Ken Armbrister (D-Victoria) would protect residential subdivision plats. The passage of HB 1207 would mean that once a subdivision plat is approved, no additional landscaping requirements or regulations governing the appearance of single-family homes would apply to the subdivision for two years.

The two-year term is a deal worked out with cities, Armbrister said. If a developer filed a plan to use hardy plank and new municipal regulations required brick veneer, that new brick veneer requirement would not take effect for two years. The terms would not apply to buildings codes. Armbrister said the compromise had earned the support of cities.

No one testified against the bill. Both were left pending, but the committee is scheduled to meet at 8:30am today.

One bill that has drawn vehement opposition is the effort of Rep. Todd Baxter (R-Austin) and Wentworth to replace last session’s HB 1445 and force Austin and Travis County into binding arbitration to negotiate common subdivision regulations. Austin and Travis County have made progress on a common code in recent weeks but failed to reach an accord on roads over the Edwards Aquifer. Hrncir said Thursday that he expects sponsors to push the House version of the legislation— HB 1204—which has been approved by the House and is pending in Senate Intergovernmental Relations Committee. That bill has not yet been heard in the Senate committee, which meets today. Hrncir declined to speculate on its future.

80 percent of first five years' tax revenues to go back to developer

With a 6-1 vote, the City Council yesterday said yes to tax incentives for a planned upscale “destination retail” shopping center and housing development in North Austin. Endeavor Real Estate Group sought the incentives to help lure top drawer retailers to the Domain. Only Council Member Daryl Slusher seemed skeptical of the project’s ultimate value to the city, and he criticized Endeavor for selling property over the Barton Springs zone of the aquifer to Wal-Mart. The remainder of the Council applauded the project as a needed boost for Austin’s falling sales and property tax revenues.

“Obviously, I’m real pleased,” said Kirk Rudy of Endeavor Real Estate. “Given the current status of the economy, and what surrounding communities are doing to stimulate, it’s great that the city is going to become an active participant in economic development. I think they did the responsible thing.”

Supporters of the measure say it will help bolster Austin’s declining share of regional sales-tax revenues. “In a time when we are painfully aware of what a shortfall feels like, we have to look at this as the very specific economic development initiative that it could be,” said Mayor Pro Tem Jackie Goodman. Mayor Gus Garcia agreed. “I think it’s a good way for us to get our economy back on track,” he said. “I think that this is a good beginning to get us where we need to go.” The motion to approve the agreement with Endeavor was made by Council Member Will Wynn and seconded by Council Member Betty Dunkerley, who worked together on the Mayor’s Task Force on the Economy. The tax breaks for The Domain follow the guidelines laid out in the task force’s report in that they are tied to specific performance goals and would only take effect after the project is completed.

However, the recommendations of that report have not been officially adopted as a policy by the City Council. That was one of many reasons that Slusher voted against the resolution authorizing the deal. The Council, Slusher argued, should wait and study the matter further. But the majority agreed to the request of Rudy, who asked the Council to move quickly to enable his company to secure major high-end retailers as tenants. A key to that will be attendance at the convention of the International Council of Shopping Centers, which begins May 18th in Las Vegas ( http://www.icsc.org /). “ICSC is to retailing what COMDEX is to the computer industry,” Rudy said. “A lot of business gets done there.”

Slusher also wanted to use the incentives for the Domain to convince Endeavor to make changes to plans for a Wal-Mart at MoPac and Slaughter. The company has a contract to sell the land at that intersection to the giant retailer for a store that would be located over the Edwards Aquifer. Because of a 1996 lawsuit settlement agreement, the site is not required to comply with the SOS Ordinance and could be developed with much higher levels of impervious cover. Endeavor officials have agreed to purchase additional land over the aquifer to preserve as open space to compensate for those higher levels of impervious cover on the Wal-Mart tract, and have worked with the company to provide other water-quality protection measures.

“Incentive packages are totally discretionary,” said Slusher. “I think it’s appropriate that the Council, in setting incentive packages, should put as many of the community values in there as possible. Clearly, a community value in Austin is protecting the Edwards Aquifer. I think that companies that are going to get incentives from the City of Austin, I think they should comply with the city’s water quality ordinances on all of their projects. I don’t think we should enter into a partnership with companies that are not following other community values like protecting the Edwards Aquifer.”

Other Council members had concerns about the deal, but were able to introduce amendments to the measure to satisfy their particular issues. Those amendments include a provision for extra money devoted to affordable housing, outreach to minority and women-owned businesses and a commitment to monitor the success of those small, local businesses that do locate in the development. Goodman also asked Endeavor to work with the city to set up a meeting with Wal-Mart officials to discuss their plans for the tract at MoPac and Slaughter.

Along with retail shops, the Domain will include at least 300 residential units, all of which will meet the city’s Smart Housing criteria. Ten percent of those will also qualify as “reasonably priced.” The city will return 80 percent of the sales tax revenues generated by the development during the first five years, and 20 percent for the next 15 years. An amendment added by Council Member Raul Alvarez calls for an additional two percent of the sales tax revenue to be devoted to the Affordable Housing Trust Fund over the next 20 years, which he estimated at a total of $1 million. The total value of the city’s investment throughout the 20-year period is capped at $25 million. There will also be $1 million set aside to help small businesses to become tenants at the Domain.

Construction will have to begin within four years, and the development will have to provide 1,100 full-time jobs. Officials with Endeavor predict they could break ground in the summer of 2004, with construction wrapping up by the fall of 2005.

Suttle argues city cannot afford continued litigation with Hyde Park Baptist

The Hyde Park Baptist Church continued its struggles against neighbors and the City of Austin Thursday by objecting to a proposed historic designation to a church-owned property that would prevent the building from being demolished.

The church wants to tear down the former A&P Grocery building at 3810 Speedway to allow for further expansion, but unanimous votes by the Planning and Historic Landmark Commissions have recommended the historic zoning that would halt the move. An application for a demolition permit by the church prompted the Landmark Commission review.

The Council delayed action in approval to the zoning to study the records regarding past negotiations between neighbors and the church, as well as former attempts to make the structure part of the National Register of Historic Places.

Richard Suttle, attorney for the church, told the Council repeatedly that city staff and Council are following a well-worn path to costly litigation that has proven on many occasions in court that city actions are “arbitrary and capricious.” “It’s just another tactic to attempt to thwart the growth of the church,” he said.

However, the city’s historic preservation officer, Steve Sadowsky, went through a lengthy account justifying the building’s historic significance. The structure was built in 1928 during the boom of construction in Hyde Park homes and businesses, and represents a trend in development that had neighborhood branches of chain stores replace mom-and-pop stores by offering greater selection at lower prices.

“If I had just walked in, I would have still thought we were talking about Wal-Mart,” replied Suttle, referencing an earlier Council conversation on complaints over the superstore chain’s development plans over the Edward’s Aquifer. Suttle is also representing Wal-Mart and listened to the earlier discussions with Endeavor. “We think it’s a cute old building,” he said, but added that it wasn’t historic.

Federal legislation, the Religious Land Use and Institutionalized Persons Act of 2000, prohibits local governments from enacting laws that impose a substantial burden on the practice of religion, which the historic zoning case does, Suttle said.

Mayor Gus Garcia questioned how not permitting demolition of a building imposed a burden on practicing religion. Suttle explained that the church’s mission is evangelical and the pursuit of new members is crucial to its practice of religion. Thus, limiting expansion limits the practice, he said.

He also touted the church’s legal record of five wins to none against the city and said litigation has run into the hundreds of thousand of dollars for the city, which is now facing a budget crisis.

Council Member Danny Thomas voted against the one-week delay and objected to the historic zoning. “I’m a little appalled,” he said. “I can’t see us continually trying to control what the church is trying to do . . . we end up not winning in court.”

Hyde Park neighbors, hoping to avoid a premature full court press against the church, sent three representatives to the meeting, instead of the masses that countered recent church expansion efforts for a new parking garage and site plans for additional buildings. Neighbors have battled Hyde Park Baptist Church expansion since the late 1980s when the church purchased and bulldozed several homes to make room for new buildings. The conflict ended, temporarily, with a 1990 Neighborhood Conservation Combining District plan agreed to by both sides that outlined where the church would pursue its “growth corridor” and where it wouldn’t expand.

Hyde Park Neighborhood Association Co-President, Gary Penn, said the church has proposed to bulldoze the site but doesn’t have a specific proposal to put something in its place. “I think it would be very regrettable if the building was allowed to be demolished with nothing to take its place.” He added the church leadership was trying to do an “end around” the process with state legislation to limit city power. “We’re all aware that the Hyde Park Baptist Church has friends in high places, if you consider the Texas Legislature to be a high place,” he said.

Karen McGraw, also representing the neighborhood association, said the 1990 NCCD noted that the property in question could be used for surface parking, but did not mention anything about removing the building. The document also requires church development to be compatible with the neighborhood, and bulldozing historic properties does not meet neighborhood compatibility standards, she said.

“Why does this building need to come down?” she queried. “The church has not grown . . . but they have a permit for 60,000-square-foot of assembly space across the street.”

Suttle said the NCCD designations for surface parking at the site mean the building could come down. Impervious cover designations of 90 percent would indicate a large surface parking lot. “It would be difficult to do that with a building on it,” he said.

Council Member Will Wynn asked what happened to the A&P Building nomination for the National Register. Sadowsky said it was dropped after the church objected to the designation. McGraw said that process actually began in 1985 or 1986 and was independent of the fight that led to the 1990 NCCD.

Wynn said it seemed odd that none of the discussion over the building’s historic status at the time of the 1990 NCCD had been noted somewhere in writing. But McGraw said the quick timeline for the document didn’t allow for such detail.

Mayor Pro Tem Jackie Goodman said she hoped a delay would allow the church to examine possibilities for incorporating the A&P structure into future uses at the site.

Democrats expected early today . . . The word is that the Killer D’ s will be arriving at the Capitol in time for a welcome home celebration at 7am. The Travis County Democratic Party is urging local supporters to come out in force to give the 51 Democrats a hero’s welcome. An email received by In Fact Daily urged Republicans to gather in the House Chamber at 8am wearing red. “We need to show our support for our Republican elected officials who have stood firm during this crisis,” advised Teresa Spears of Texans for Rick Perry . . . National Bike to Work Day . . . The Downtown Austin Alliance, Jamba Juice and the Little City Coffee House will be rewarding those who bike downtown between 7:30 and 9:30am this morning. Bicyclists will receive a free bagel and juice or coffee at Little City, 916 Congress Avenue . . . Democrats to eat ice cream . . . Precinct 5 Constable Bruce Elfant is hosting his 11th Annual Ice Cream Social on Sunday from 3-5pm at the AFL-CIO Building (11th St. at Lavaca). Each year Elfant, who has little serious opposition, turns over donations from the event to a worthy charity. This year he has chosen the Disability Assistance of Central Texas. Elfant is expecting up to 51 special guests . . . City Council appointments . . . Yesterday, the Council reappointed Fred Daughtry, by consensus, to the Firefighters’ and Police Officers’ Civil Service Commission and Mayor Garcia appointed Irene Huq to the Community Development Commission and Claire Morris to the Urban Renewal Board . . . Free movie for Flood Awareness Week . . . The public is invited to preview “Texas Flood,” a short film on the history and hazards of flooding in Texas at 10am Saturday at the Alamo Drafthouse, 2700 W. Anderson Lane. The free matinee kicks off Flood Awareness Week which also begins Saturday. Event sponsors include the city’s Office of Emergency Management, Watershed Protection and Development Review and the Water and Wastewater Utility . . . Summer book festival planned . . . Literacy Austin will be holding its annual Family Book Festival June 20-22, with a procrastinator’s sale on June 28. The old Home Depot on Brodie Lane will serve as the venue, which will include balloon twisters, face painters and a food court. For more information or to volunteer call 478-7323.

© 2003 In Fact News, Inc. All rights

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