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Commissioners postpone

Wednesday, June 25, 2003 by

Lowe's vote as city requests

Only Daugherty dissents from decision to delay Yesterday’s discussion of a preliminary plan for a Lowe’s Home Improvement Warehouse in Southwest Travis County actually left some county commissioners wishing for the simplicity of a waste-siting ordinance. It also left Precinct 3 Commissioner Gerald Daugherty fuming over the treatment the home improvement giant had received from Sunset Valley and the City of Austin.

The Lowe’s case is a tangled mess of jurisdictional issues, and Commissioners Court found itself right in the middle of it all. (See In Fact Daily, June 24, 2003.) After hours of discussion with the applicant and residents and representatives of both cities, the court voted 4-1 to delay its decision until July 22 to give the City of Austin and Lowe’s more time to negotiate an agreement.

Daugherty was the sole dissenting vote and expressed his frustration that the county had apparently been dragged into a no-win fight with developers. The Lowe’s development is located above a critical water quality zone, which has led to some strong opposition from the City of Austin. Daugherty said he appreciated water quality as much as the next commissioner, but he didn’t appreciate being put on the spot by a municipality. It was unclear whether he was referring to Sunset Valley or Austin, or both. But Daugherty clearly wanted the cities to work with the developer to come to some resolution, rather than watch officials thwart private property rights by way of the SOS Ordinance. The Legislature expressed its frustration with the City of Austin by passing House Bill 1704, which restricted the city’s ability to impose new development regulations. Then there were House Bills 1445 and 1204, rolling back Austin ordinances and putting some rights back into the hands of landowners, Daugherty said. In the case of the Eli Garza family, it was simply a desire to sell off pieces of a family farm for development, a farm that had been in the Garza family for 80 years.

Lowe's lawyer takes credit for bill Lowe’s attorney Terry Irion said he was surprised by the commissioners’ vote, since he had expected they would approve the preliminary plan yesterday. He interpreted Daugherty’s angry remarks as a bad sign for the relationship between the city and the county—at least with regard to implementation of HB1204. Irion explained that he, along with Dan Wheelus and Chris Shields, were instrumental in the passage of HB1204, which was carried by Senator Jeff Wentworth (R-San Antonio) and Rep. Todd Baxter (R-Austin). But the authors were interested in more than the one section that specifically applies to the property that Lowe’s seeks to develop. Wentworth carried HB1445 during the 2001 session; it forces the city and county to work together so that developers would only be faced with one set of subdivision regulations outside the city limits. Irion pointed out that HB1204 applies throughout Austin’s ETJ. Daugherty was angry, he said, because city representatives put commissioners in the position of having to make a “hard vote.” If the city had simply stayed home, Irion said, the commissioners could have said no to Sunset Valley and the environmentalists who complained.

That sale has not been a simple deal for Lowe’s. To date, the company has filed a preliminary plan with three jurisdictions—Sunset Valley, Austin and Travis County—with no firm results. What should have been a simple transaction is now a complicated question of water quality.

“Somebody didn’t deal with something the way it should have been,” Daugherty told the court. “We’ve been put in the crosshairs, and I don’t appreciate that.”

Numbers may be the best way to discuss the Lowe’s deal. The first number would be House Bill 1204, the bill that the governor signed on Sunday and that supersedes House Bill 1445. Interpretation of the bill is a crucial issue in the Lowe’s discussion. As representatives from Lowe’s freely admitted to Commissioners, Lowe’s had lobbied for language in HB 1204 specifically tailored to its situation and provided Travis County with jurisdiction over its chosen site.

HB1204 gives county no additional regulatory clout Lowe’s and Assistant County Attorney Tom Nuckols interpreted HB 1204 to mean that it is Travis County that must sign off on the preliminary and final plans for the Lowe’s site. That would be favorable for Lowe’s because the county has fewer requirements and no water quality standards. Yesterday, TNR Executive Director Joe Gieselman told commissioners that the Lowe’s preliminary plat had met all the requirements set by the county, and that the county had no real option but to issue a permit.

Nuckols pointed out that HB 1204 may have given Travis County jurisdiction, but it did not give the county any additional authority. To tackle something like water quality would require additional authority to be initiated under the legislative intent of Senate Bill 873. And those new powers would not be relevant, Nuckols added, if the plan had already been submitted to the county. The plan would simply be grandfathered under the powers the county held at the time the preliminary plan was filed.

Commissioner Margaret Gomez made it clear to the audience that the county is limited in what it can and cannot do in this case. For as long as Gomez has been associated with county government—about 30 years—questions over how much authority the county has have come up repeatedly. Gomez said she could not give opponents to the project hope that county officials might regulate it.

“We have gone after that authority with the Legislature, but it just hasn’t been possible,” Gomez said. “It’s very frustrating to be an urban county dealing with urban cities and urban challenges.”

Assistant City Attorney Martha Terry told commissioners that the city’s position is that the Lowe’s land is now in Austin’s extra-territorial jurisdiction. Whether the City of Austin intends to fight that issue in court remains unclear. In the meantime, both the developer and city staff agree it would be in their mutual interest to continue to negotiate outstanding issues and try to keep the jurisdictional issues out of court.

And environmentalists argued that House Bill 1204 didn’t apply to the Lowe’s situation at all. Attorney Brad Rockwell of the Save Our Springs Alliance made the case that HB 1204 only applied to subdivision applications and not to applications on commercial development. He argued that Austin’s water quality provisions should still prevail since the development is in Austin’s ETJ.

Another important number in the Lowe’s discussion is 40. That’s the percentage of impervious cover that Sunset Valley wanted to impose upon Lowe’s. That’s a sore point with the Lowe’s team because competitor Home Depot was not held to similar standards. Instead, the Home Depot project sits on a piece of land with 65 percent impervious cover. Irion has accused Sunset Valley of giving special exceptions to Lowe’s biggest competitor, although Sunset Valley officials say that different standards were applied because the Home Depot site plan was grandfathered.

Sunset Valley officials have also pointed out that Home Depot was located in the city limits of Sunset Valley and standards such as city ordinances applied. The Lowe’s site, on the other hand, was in the Sunset Valley’s ETJ, and not only was the city called upon to pay for fire and police protection for the site, it would have to do so without the benefit of sales tax revenues, said Mayor Pro Tem Kathy Anthony. Anthony added that Lowe’s never offered to defray the cost of fire and police protection The retailer did offer to be annexed into the city in order to provide sales tax revenues, but only after the development was built. Mayor Terry Cowan joked that Sunset Valley had sometimes been called the “Kuwait of Texas,” but that the city did not have unlimited funds to support development.

House Bill 1704 is also important to the Lowe’s discussion. Eli Garza, who had a 130-acre ranch in the Brodie Lane area, was a material witness when the legislation was passed. As Wheelus told the court, Garza donated 22 acres of his land at William Cannon and MoPac with the understanding that he would someday reap a financial benefit from the intersection.

Under House Bill 1704, the clock would start ticking on Garza’s plat once it was filed, protecting Garza from any unforeseen changes on requirements such as water quality. But both Sunset Valley and Austin have rejected Lowe’s plans, calling them incomplete under the cities’ completeness checks. By comparison, a preliminary plan filed with Travis County does not require a completeness check. That means that the clock may have started ticking as early as March, when the plan was filed with the county.

The city and county have fought Garza at every turn, rejecting many of his development plans and pursuing cases in court, Whelis said. Whelis said Garza and Lowe’s had worked closely to achieve a project on the site, but had the rug pulled out from under them when the City of Sunset Valley decided to release the land from its ETJ. Anthony argued that the city had released the land with “plenty of tears” because they knew they could not handle the property’s development.

Former Mayor Bruce Todd, who is also working on behalf of Lowe’s, said approval of the preliminary plan was necessary so Lowe’s could move forward with engineering studies on the site. He promised that a final plan would not be submitted until the city and developer had come to an agreement. Todd, who served as a county commissioner for four years before becoming Mayor, is part of the Winstead Consulting Group, the political consulting wing of Winstead Sechrest & Minick. Rep. Todd Baxter, co-author of HB 1204, is an attorney with the Winstead firm, and served as a county commissioner before being elected to the Legislature in November.

Assistant City Manager Lisa Gordon told Commissioners Court the preliminary plan approval would weaken the city’s leverage with the developer, a charge that Lowe’s denied. Instead, Lowe’s representatives argued, preliminary plan approval would only make the developer more committed to the project.

After an executive session, County Judge Sam Biscoe made a motion to delay the decision for a month. The decision was clearly in deference to the city’s wishes, probably one important byproduct of recent negotiations under House Bill 1445. Gomez said she voted for the delay to get more information about the implications of HB 1204. Commissioner Ron Davis said he would support the motion for a delay, but did not intend to vote in favor of a project that would harm water quality.

TxDOT seeking spot For small plane airport

Study suggests location between I-35 and SH 130

A study conducted by Wilbur Smith and Associates for the Texas Department of Transportation shows a strong demand in Central Texas over the next 20 years for a general aviation airport to serve smaller, private planes. TxDOT is working on setting criteria and scouting sites for a general aviation airport at the direction of the Texas Legislature.

The search for a new airport to handle private planes was prompted by a variety of factors—including the closure of Robert Mueller airport and the closure of a privately owned general aviation facility near the site of the Dell campus. And the growing population in Central Texas, says TxDOT Aviation Director David Fulton, will mean a growing demand for general aviation facilities. “Austin’s a rapidly growing city,” said Fulton. “I think you’ll find almost any major city in the nation has a close-in business jet airport which we do not have in Austin, so we’re working to fill that void.”

The next step in the process will be to review suggested sites and identify other possible airport locations. The study is suggesting a location along the I-35 and SH-130 corridors. In addition, the site will need to be between 500 and 800 acres and be topographically suitable for a 7,000-foot runway. “That’s one of the challenges in an area like Austin,” said Fulton. “Not only is Austin highly developed, which makes it difficult to obtain the amount of property conducive to building an airport, but there’s the terrain itself . . . if you look at the west side of the city, there’s no place flat enough to build an airport.” While some aviation groups had requested that the state consider using the former Robert Mueller Airport, that site was specifically prohibited by the legislation directing TxDOT to seek out a new airport location.

Once sites that are technically feasible are identified, the state agency will work with local communities to determine if an airport would be a desirable use. “We sent a letter to all incorporated governments in the area . . . and just asked them for their general interest,” said Fulton. “Some were very excited about it, some were not interested and some were neutral at this time.” Round Rock, Hutto and San Marcos have all expressed an interested in being home to the new airport, with some cities even suggesting specific tracts.

Over the next two to three months, the consultants and TxDOT hope to develop a list of up to a dozen possible sites and begin ranking them according to their advantages and disadvantages. That would lead to a short list from which the eventual site would be chosen.

, Friday.

©2003 In Fact News, Inc. All rights reserved.

New in the Mayor’s office . . . Those calling the office of Mayor Will Wynn are likely to be greeted by the friendly voice of Thelma Barraza, who began her new job as Wynn’s scheduler yesterday . . . Slusher studies mediation . . . Council Member Daryl Slusher is spending the week learning mediation techniques at the Center for Public Policy Dispute Resolution at the UT School of Law. He says, “I come to it with plenty of experience in disputes—having been involved in numerous disputes, both as a combatant and a peacemaker. Hopefully it will help me settle some more of them.” . . . New Smart Housing opens southeast . . . Former San Antonio Mayor Henry Cisneros received a warm welcome during a visit to Austin for the grand opening of a new subdivision. KB Homes and Cisneros’ company, American City Vista, are developing the Los Jardines subdivision in Southeast Austin along with another subdivision, Los Arboles. The Austin Housing Finance Corporation is providing some financing for the developments, which both meet the city’s Smart Housing Guidelines. “The purpose was to focus on communities that are in the central city . . . in neighborhoods that are closer-in to employment locations,” said Cisneros. “Instead of driving 45 minutes, families who live here are going to be literally minutes away from the major employers in this area. That’s a major quality-of-life issue.” . . . Planning Commission meets tonight . . . The Commission will hear a number of cases relating to requests for historic zoning, three of which are in the Waller Creek watershed. The Pleasant Valley Courtyards on E. St. Elmo is requesting a variance from watershed regulations. City staff has recommended a denial of the variance . . . Music for kids . . . The Austin Symphony is focusing on events for children every Wednesday from 9:30-11:30am, except July 2, with music and art in Symphony Square, 1100 Red River. Today’s musician is Cowgirl Sue, who encourages kids to bring their Teddy Bears for a bear’s picnic. Other featured entertainers include: July 9 – Jon Emery; July 16 – Sara Hickman; July 23 – Beto y los Fairlanes; and July 30 – Lucas Miller, The “Singing Zoologist.” The summer program also features local dancers, storytellers, magicians, mimes and crafts people. Children can visit the Instrumental Petting Zoo where they can see, touch and play the instruments. The featured performance is at 10am. After that, children can visit the Art Tent. The cost is fifty cents per child. Sponsors include Target, 3M, Foley’s, Blue Bell Creameries and the City of Austin.

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