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Hays County residents prepare

Tuesday, July 15, 2003 by

To fight rock crusher, asphalt plant

Air and water quality questions abound, say homeowners

KBDJ, LP, has filed an application with state regulators to allow the company to build a rock crushing and asphalt production plant on FM 967 over the Edwards Aquifer recharge zone in northern Hays County. The plant would operate 24 hours a day, seven days a week, producing up to 2.4 million tons of rock per year, according to an application filed with the Texas Commission on Environmental Quality (TCEQ). The rock would then be mixed with various chemicals and cooked into asphalt on site. The asphalt would then be trucked down a two-lane country road to a location requiring road-building materials.

Homeowners in the Ruby Ranch subdivision are forming an organization to fight the plant, which would be next to their homes. Al Gmitter, a member of the Ruby Ranch Homeowners Association board of directors, said Monday that he and other concerned citizens of the area would create a new organization, called NOPE (Neighbors Organized to Protect the Environment), to oppose the plant. Gmitter, who designs custom homes, said he has received messages from homeowners in another nearby subdivision indicating that they would like to join NOPE. He has spent much of the past week talking to area residents about the plant. “I haven’t met one person who hasn’t been totally against it,” he said.

According to TCEQ documents, “The facility will emit the following air contaminants: particulate matter . . . organic compounds, nitrogen oxides, sulfur dioxide and carbon monoxide.” Gmitter and his neighbors have already asked attorney John Chunn of New Braunfels to request a contested case hearing at the agency.

Engineer Jerry Demo of Pollution Solutions, which filed the application on behalf of Jill Shackelford and Joe Jackson, the partners in KBDJ, said yesterday, “My instructions are not to talk to the press.” Shackelford, president of the partnership, did not return a call from In Fact Daily.

According to the application, the rock-dredging operation will use water to spray equipment used in processing the gravel. Three nozzles will spray 8 gallons of water per minute, and roads for the plant will be sprinkled with “water and/or chemicals,” the application notes. But the application does not deal with water quality.

Erin Foster, chair of the Hays County Water Planning Partnership (HCWPP), which has fought numerous battles over the water quality and over-pumping of the aquifer, said irate neighbors had contacted her asking for her assistance in fighting the plant. “The CenTex plant in Buda is a gravel operation. And they use an extremely large amount of aquifer water—more than the city of Buda—to keep the dust down in the air. So the question is: where is the water coming from? The only water out there is the aquifer. And that begs the question, what about all the waste products from using the water? Where is all that going to go? This thing backs up to Onion Creek—and (the subdivision’s)water supply is right there,” Foster said. “If you see the fence, the sign is right in front of the well that supplies water for the Ruby Ranch subdivision.”

Foster and Gmitter agreed that quality of life for area residents, as well as the prospect of tremendous loss in the value of their homes, is upsetting people. Gmitter said he had designed about 50 of the homes in the subdivision, which range in value from $250,000 to more than $1 million. He said many of the subdivision’s residents are still unaware of the application, although that should change this week. A homeowners’ association meeting is planned for Thursday evening. Property owners attending the meeting will be able to discuss the matter then, he said, and talk about forming the new group.

Last week, a member of the Ruby Ranch Homeowners Association told directors of the Barton Springs Edwards Aquifer Conservation District (BSEACD) about the application and asked whether the partnership had applied for a permit to pump from the aquifer. Directors said they knew nothing about such an application, but Board President Jim Camp said he would schedule the matter for discussion at their next meeting on July 24.

Gmitter said he would never have known about the TCEQ application—posted on the property’s fence on July 3—if he had not stopped to read it several days after it was put up. Those concerned about the application have 30 days from the date of the posting to ask for a hearing before the TCEQ.

An initial review of the project by the TCEQ indicates that the surrounding area is an exotic game ranch. Gmitter said the ranch property itself, owned by the Ruby family, has been used for gazelles and axis deer. He said many of those animals had escaped from the ranch to the surrounding neighborhood. He said he had learned that the Texas Parks & Wildlife Department has no jurisdiction over the exotic animals, however. The animals remaining on the site of the plant would likely try to escape once construction began, but may have difficulty because of the high fences put up to enclose them, he noted.

Sign Review Board admonishes

Convention center for illegal sign

Downtown residents, others say city must follow own rules

Members of the Sign Review Board chastised representatives of Sign Builders of America and the Austin Convention Center last night for placing a new convention center sign aimed at northbound traffic on Trinity Street without first securing a permit or a variance. The sign is 29 feet high in an area were normal rules would only allow a maximum height of six feet.

The sign, which is already in place, was designed to match the existing sign for the convention center on Cesar Chavez in height and style. It is part of the overall business plan for the center. “Mistakenly, it has been installed,” said Mike Stephens of Sign Builders of America. “It took us about a year to get the vacation of the right-of-way done.” But the employee responsible for making sure the sign met City Code, Stephens said, left the company before the sign was installed. “We have a policy that each sign be reviewed by a production coordinator and be within the City Code before the sign can actually go into production . . . the Austin Convention Center sign was entered into production and the production coordinator had left midstream. We thought we had a permit for that sign.” A staff member for the Watershed Protection and Development Review Department told board members that there was also no record for the other convention center sign on Cesar Chavez, which has been in place for the past 12 years.

Several groups lined up to protest the new sign as unnecessary and the beginning of a negative trend downtown. “If the convention center gets a variance, other buildings downtown are going to want a variance,” said Sarah Andre with Scenic Austin. “The city should obey its own laws. We just spent 18 months reviewing the codes for downtown to create a pedestrian-friendly, beautiful, human-scale developed environment . . . and this goes right against that. There’s just no reason to have a sign that large. Even if you do have a sign in that location, we feel that there are other solutions that are more appropriate for the site.” Andrew Clements with the Downtown Austin Neighborhood Association complained that the sign company and convention center representatives had not met with the group. “DANA wants to see the city follow its own ordinances,” he said. “We would have liked a presentation.” And Design Commission member Girard Kinney said his group would also have liked to have received a presentation.

Sign Review Board members were sympathetic to all of those concerns. “If this thing goes through, we really open up the door here (to additional variance requests),” said Board Chair Herman Thun. “That’s my concern. To me it’s not a matter of scale or the attractiveness.” And vice chair Betty Edgemond was not moved by the excuses offered by the sign company. “Sign Builders of America have been here a long time. They know about variances; they know to get variances before they build anything,” she said. “I think it’s a shame they didn’t meet with anybody.” Edgemond moved to postpone the case on the variance until the board’s August meeting to allow for further communication with neighborhood groups. The motion passed on a vote of 4 to 1, with Barbara Aybar opposed.

Attorney General argues against Inclusion in no smoking rule suit

Judge Byrne could rule today on AG's motion

State District Judge Darlene Byrne will likely rule today on whether Texas Attorney General Gregg Abbott should be a party to the lawsuit by the Veterans of Foreign Wars against Dallas and Austin over their no-smoking ordinances. The VFW named the attorney general in the lawsuit on the grounds that he will be the person interpreting the state law which they claim the municipalities are violating by instituting no-smoking ordinances. The Attorney General’s office had also been seeking attorney’s fees from the plaintiffs, but dropped that request on Monday.

“Whenever the interpretation of a state statute is at issue, we believe the Attorney General’s office should be named,” said attorney Jennifer Riggs . “We don’t want to be put in a position where parties are later arguing, ‘You didn’t name us.’ There have been cases in which the attorney general’s office decided to appeal after the fact. We want to hear what his views are now.”

Assistant Attorney General David Jenkins argued that the AG was not involved in the case, and also that the petition against him contained several procedural errors. “They are suing the Attorney General in an incorrect capacity,” he said. “Injunctive relief is not available against state officials in their official capacity.” Instead, Jenkins told the judge that Attorney General Abbott should have been named in an individual capacity, and that this and other procedural flaws should influence her decision.

Jenkins’ principal objection was that the Attorney General, in his normal course of duties, would not enforce the local ordinances, which are the subject of the complaint. “The proper challenge is to the regulation. That is the real thrust of the plaintiff’s complaint here.” As for any Attorney General’s ruling on the appropriateness of those ordinances, Jenkins said those do not have the force of law. The AG’s office did issue an opinion during the tenure of Jim Mattox related to a Houston ordinance. “We’ve issued the opinion,” Jenkins said. “It is mere speculation and projection for plaintiffs to say that this ordinance by Dallas or Austin was written in reliance on that AG’s opinion. If they say that it was, then perhaps it was, but that’s not the AG’s problem.”

Judge Byrne’s ruling today will not affect the venue for the case. Another judge has already ruled that it should be heard in Travis County, and that the suit against Dallas should not be separated. A ruling on whether to include Round Rock has not yet been issued.

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

Playing to the crowd . . . The coalition of neighbors and environmentalists who oppose Wal-Mart’s plan to build a store over the Barton Springs zone of the Edwards Aquifer, will gather between 7am and 8am today to display their signs for morning rush-hour commuters driving past the Endeavor Real Estate office at 1209 W. 5th Street. Representatives of Endeavor met with members of the Save Barton Creek Association last night to discuss plans to improve the Wal-Mart plan. Members were not swayed by their explanations, but did agree to serve on a committee to assist in finding another location for the Wal-Mart Superstore . . . County to look at landfill questions again . . . The Travis County Commissioners Court is scheduled to take up an item on a restrictive covenant for maintenance of proposed flood plain modifications at the BFI Landfill, 10200 Giles Lane, at 9:30am today. Sometime after that they will talk about a survey of Travis and surrounding counties to identify potential landfill sites. The are also scheduled to discuss setting a regional summit with other Central Texas counties “to address appropriate solid waste management and landfill issues” . . . More money for BCP . . . Travis County has won a $5 million competitive grant from the US Fish and Wildlife Service to purchase high-priority tracts within the Balcones Canyonlands Conservation Plan. In the seven years since the BCCP’s inception, 26,361 of the 30,428 required acres have been purchased by Travis County and the City of Austin. The preserve protects eight federally endangered species and 27 species of concern. The federal agency handed out a total of $70 million in land acquisition grant funds this year . . . Strange bedfellows . . . What could political gadfly Linda Curtis and Republican Senator Jeff Wentworth possibly have in common? They are both interested in a citizens’ commission—half Republicans, half Democrats, no party office holders or elected officials allowed—to decide on redistricting. Independent Texans, a group started by Curtis and company, will hold a press conference at 5pm today in the Betty King Room at the Capitol, 2E.20, with Wentworth and Steve Lynn, a political independent who chairs the Arizona commission, to talk about such a plan. Wentworth authored a bill on the matter and Independent Texans will announce an online petition drive urging the Governor and the Legislature to place a proposition on the November ballot for a citizens commission composed of equal numbers of Democrats, Republicans and independents.

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