Commissioners approve Lowe's plan

City official says parties to lawsuit are close to agreement

Travis County Commissioners tipped the scale in favor of Lowe’s Home Improvement Warehouse on Tuesday with the approval of the store’s preliminary plan on a vote of 3-2. Commissioners Ron Davis and Margaret Gomez voted against it.

Commissioners have delayed voting on the preliminary plan a number of times, deferring to requests from the City of Austin, which has been negotiating with Lowe’s to resolve a lawsuit filed by the home improvement retailer late last year. But Assistant City Manager Lisa Gordon told commissioners, “At this time, we are not requesting that there be any further delays or postponements because we feel that we have been negotiating in good faith.”

Former Mayor Bruce Todd presented a list of nine concessions Lowe’s was willing to make, placing a $2 million price tag on those concessions. They include the purchase of approximately 52 acres of property to mitigate the site’s environmental impact and lower the overall impervious cover to the 15 percent required by the SOS Ordinance, as well as a petition for early annexation into the city. (See In Fact Daily, August 5, 2003 for a detailed list.) Both Todd and Gordon said the required acreage is the last major stumbling block for negotiators. Gordon added that, of course, the City Council must approve the agreement after hearing from the public.

Commissioner Karen Sonleitner asked whether the settlement agreement could be approved by a simple majority of the Council—four votes—or if a super-majority of six would be required.

Gordon, who is not a lawyer, said the question would be moot “if we can get the higher number,” adding that views among attorneys differ on that question.

Former Mayor Gus Garcia was among those who counseled commissioners to put the vote on hold until a final agreement could be reached with Lowe’s. Garcia was Mayor when the Lowe’s issue first reached the City Council. Garcia said the best decision would be to give Lowe’s and Austin time “to resolve their differences.” Garcia told commissioners the Lowe’s issue had been dropped on the City of Austin “rather suddenly” and that the city should be trusted to look at the broad and complicated issues of development in the recharge zone.

“The Stratus agreement was very methodical and very sound, and there were disagreements. We had 600 people show up at Council. You don’t see those kinds of numbers on most issues here,” Garcia said, referring to Commissioners Court. “But we ended up doing what was in the best interest of the people who lived in the area.”

Environmentalist Mike Blizzard, who has represented the Save Our Springs Alliance and the City of Sunset Valley, spoke on his own behalf at the hearing. He stressed that the Lowe’s deal did not come close to the concessions made to the city on the Bradley property, Stratus property or Quorum PUD. Those agreements prohibited a big box retailer on any of those sites.

Blizzard said the Lowe’s concessions were not unlike the concessions being proposed by the Wal-Mart in Southwest Austin, which had generated a tremendous amount of concern and opposition among area residents.

Local residents said Lowe’s was not wanted and not needed. However, Marc Millis, who handles site development for Lowe’s, countered that the Sunset Valley tract was attractive because so many people now live in the area. Stop building subdivisions and houses, and you’ll stop the interest among retailers, Millis told commissioners.

Commissioner Gerald Daugherty’s “cut to the chase” style finally got a motion on the table in favor of the preliminary plan. Daugherty pressed Sunset Valley Mayor Pro Tem Kathy Quintanilla to tell him why the city would agree to the impervious cover and water quality that created large shopping centers but oppose the Lowe’s site.

“If you don’t want any more retail, just tell me that. Tell me, ‘We don’t want any more retail,’” Daugherty told Quintanilla after her comments to the commissioners. “I would understand that. If you don’t want any more impervious ground cover, just tell me that. I would like for somebody from Sunset Valley just to tell me that, point blank.”

Daugherty’s point is one that Lowe’s has frequently raised in discussions. If Sunset Valley could approve a plat for Home Depot, what makes it so difficult to approve a plat down the street for Lowe’s? Lowe’s representatives have gone so far as to accuse the city of playing favorites.

Quintanilla said it wasn’t so simple, that the city had learned from the mistakes of putting too much retail on the ground too fast. Impervious cover rules have been adjusted a number of times in recent years and currently stand at 18 percent, Quintanilla said.

Attorney Doug Young, who is representing the City of Sunset Valley, which intervened in Lowe’s suit against the City of Austin, told commissioners the Home Depot was platted in 1991. At that time, he said, Sunset Valley was nothing more than a rural community with no budget and no comprehensive water quality guidelines. “They got caught unprepared,” Young said.

Biscoe put the Lowe’s item on the agenda because he understood the city was about to move on the settlement. However, that was not the case. But county officials were weary of the frequent delays and were ready to act, one way or another, on the preliminary plan, despite the failure to resolve issues of jurisdiction and final details of a settlement.

Daugherty then asked two more questions. Did the project meet all the standards set out by Transportation and Natural Resources? Yes. Did the county have jurisdiction over the property, whether or not Austin did? Yes.

With that, Daugherty made a motion to approve the preliminary plan. County Judge Sam Biscoe offered a friendly amendment to add a note on the preliminary plan that would condition the county’s approval on Lowe’s and Austin coming to some kind of agreement. And it would incorporate any court ruling on jurisdiction.

Commissioner Ron Davis tried a substitute motion to delay a decision, a proposal made by the project’s opponents. With no looming deadline and a court case pending, Davis was not comfortable moving forward on the preliminary plan. When the substitute motion came down to a vote, though, Davis’s only support was from Commissioner Margaret Gomez.

Gomez said she was far more comfortable delaying the vote to allow the process to determine just which government or governments should have jurisdiction.

“I wouldn’t feel like I’m meddling in something in which I didn’t have any business or authority,” Gomez told her colleagues.

When the original motion came up for a vote, Biscoe and Sonleitner voted in favor of Daugherty’s motion. Sonleitner, who called herself a strong supporter of the SOS Ordinance, said her support was based on Gordon’s assurance that a settlement could be reached between Lowe’s and Austin. The question was not whether Lowe’s would mitigate, but which piece of land it would buy to mitigate. Biscoe remarked that the plan was preliminary, and that the county still has the right to disapprove the final plat.

This is one of the first major county decisions that the pro-development Daugherty—the lone Republican on the court—has influenced. Daugherty said he resented that people assumed he would automatically be on the side of Lowe’s. The “true SOS person” might assume he was going to think he was always against them, he said, adding that he was more interested in a “common sense” solution.

Daugherty said his sense of it was that the city didn’t want to deal with the Lowe’s issue any more than county commissioners did. What it comes down to is two jurisdictions that are being forced to consider a difficult and complicated issue, he said. Biscoe agreed.

“I thought that an agreement had been reached. That’s why it was back on at all,” Biscoe said. “Frankly, if this would just go away completely, it wouldn’t bother me at all.”

Commissioners move to revise incentive rules

The Domain likely to be first to win tax breaks under new policy

County commissioners are making quick work of revising the county’s economic development program, intending to approve a new policy next week.

County Judge Sam Biscoe and Commissioner Karen Sonleitner laid out the new policy for commissioners this week, along with a proposed agreement with Endeavor Real Estate Group. The Domain, Endeavor’s project in North Austin, was a catalyst for the county’s new tax abatement policy. Endeavor approached both the city and county for tax breaks.

Biscoe and Sonleitner volunteered to draft a new policy for county commissioners to consider. That policy was reviewed briefly at Tuesday’s meeting and will be back on the agenda next week, along with a tax incentive agreement for The Domain.

The county’s economic incentive program is not intended for small businesses. Biscoe and Sonleitner set a threshold of $100 million in capital investment for consideration of tax abatements. An employer would have to create at least 750 new permanent full-time jobs. Such a commitment would be on the scale of Motorola or AMD. Sonleitner said the threshold was set intentionally high to make sure incentives were offered only to significant employers.

Among the other guidelines and criteria set out by the subcommittee:

• The incentive would be granted only to new development and activity in the county, rather than development already underway.

• The company must own or plan to own the property.

• Incentives would be granted for new improvements, rather than renovations or expansions.

• The project cannot be harmful to the environment and must meet all regulations.

• The project must utilize best practices in urban design, with adequate parking.

• The company should make a “good faith” effort to encourage its contractors to utilize minority and historically underutilized businesses.

• The project should be located in a desired development zone and not over an aquifer or an aquifer-contributing zone.

• The commissioners must determine that the development of the project will result in a substantial long-term benefit to the county. Sonleitner added that the policy would also have a two-year sunset provision so the court could assess its effectiveness.

According to the proposed policy, the commissioners would consider various components of the project, including affordable housing, access to public transportation, amount of square footage in the completed development and innovative design practices. Commitment to air quality, parking and public benefits would also be considered.

Although the guidelines are specific, the policy is clear that meeting the guidelines does not guarantee a tax break. According to the policy, the court will consider economic incentives on a case-by-case basis. The decision of the Commissioners Court will be final.

The incentive would be a percentage of the incremental increase in property value the new project would add to the tax roll. The percentage, up to that 50 percent of the increased value, would be determined based on “the amount of public economic benefit determined by the Commissioners Court to be derived form the project as presented by the Company in its application,” according to the proposed policy.

Not everyone was sold on the proposed policy. Commissioner Ron Davis lobbied for a tax break for any project worth more than $10 million in the desired development zone. Davis told his colleagues that his precinct was hurting for projects on the scale of a multiplex theater or a Home Depot. Such a project would bring valuable jobs to his community.

Sonleitner said that $10 million might be too low, given that Austin is still generating $2 billion in construction, even during an economic downturn.

Commissioner Gerald Daugherty said he appreciated the intentions of the policy, but he wanted to make sure it would not create an unlevel playing field between competitors, such as the city’s incentive offer to bring in a major bookstore chain only blocks away from BookPeople on Lamar Boulevard. Daugherty said he wanted to make sure any policy was not “arbitrary.”

The economic development agreement between Travis County and Endeavor Realty was a separate document, briefly reviewed by the court. The 19-page document outlined the county’s expectations for The Domain, which will be a $130 million capital commitment for Endeavor Realty and will add up to 670,000-square-feet of new development for North Austin. Endeavor estimates it will generate roughly 1,100 new full-time jobs.

The project meets the general parameters set out by the proposed economic development policy. Endeavor Realty is asking for a 20-year tax break from the county. The county would agree to pay 50 percent of the incremental tax increase generated by the property, up to $5 million per year. The payment would be evaluated annually.

Wal-Mart opponents study traffic analysis Neighbors ponder next step in battle to stop Supercenter

Residents of Circle C, Sendera Estates, Deer Park at Maple Run and the New Villages at Western Oaks gathered last night to get a crash course on the basics of a Traffic Impact Analysis (TIA). The Southwest Austin neighborhood groups are seeking some leverage to block, or at least slow down, construction of a new Wal-Mart Supercenter at the intersection of MoPac and Slaughter.

The site has appropriate zoning and representatives of the retail giant and Endeavor Real Estate have said they will not be seeking any variances from the City of Austin for the project. Neighbors are concerned about noise, pollution, trash and especially the traffic that would be associated with the site. Since the state has refused to allow access to the development from MoPac, traffic from store customers would necessarily spill over onto side streets. The original Traffic Impact Analysis submitted by the developers showed an estimated 13,826 trips per day.

But UT Assistant Instructor Lisa Weston told members of the various neighborhoods gathered at the Bethany Lutheran Church that those numbers were subject to dispute and interpretation. “It’s an art and a science,” she said. Although the TIA was done by a respected firm, Weston cautioned neighbors that there was still a fair amount of estimation in any study. “Don’t be intimidated,” by those numbers, she advised. “They are not necessarily right.”

Weston outlined several assumptions that go into any TIA which may or may not be valid. First, she noted that many of the figures cited in the Institute of Transportation Engineers’ Trip Generation Manual are only rough estimates. The figures sited for traffic generated by a Wal-Mart Supercenter, she said, were obtained from a study conducted in Arkansas in 1994. Different demographics, weather patterns and local customs could all influence the applicability of that data to Austin. In addition, she pointed out that the trip estimates in the ITE guidebook were based on stores within a certain size range. “When what you’re measuring falls outside that range, if it’s higher than the highest point they had data for, it may not apply,” she said. There were several other variables such as weather, time of day and the time of year in which the TIA was conducted, Weston said, which could impact the results.

Residents were most concerned with the projected traffic count for the intersection of Sendera Mesa Drive and Slaughter Lane. Projections show traffic growing to 2,729 vehicle trips per day next year without a Wal-Mart. Numbers submitted in the initial TIA by the developers show that amount increasing to 3,577 vehicles per day with a Wal-Mart on the site. That’s about 400 less than the level of 4,000 vehicle trips per day that qualify as an “undesirable operating level” for that intersection.

Residents were skeptical of the numbers provided by the company, noting that a variation of 10 percent would trigger the “unacceptable” designation. Should any intersection be classified as undesirable because of traffic from the site, developers would be responsible for funding traffic mitigation efforts, which could escalate the cost of the project.

The various neighborhood associations involved in the fight against the Wal-Mart are expected to meet within the next week to discuss the possibility of funding their own TIA, or hiring a traffic consultant to review the TIA submitted by the developers. The first TIA submitted earlier this year was withdrawn, but is expected to be resubmitted soon. Armed with their new knowledge of traffic studies, residents will also likely be calling Council members and staff in the Watershed Protection and Development Review Department to voice their concerns.

Monday

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