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Lowe's vote facing uncertain fate

Thursday, November 6, 2003 by

No more negotiations, says Todd

The City Council’s decision on whether to settle a lawsuit with Lowe’s today, or within the next month, is a high stakes game of poker—with both sides claiming to hold the high card. As it stands now, Council Member Brewster McCracken, who put the item on this week’s agenda along with Mayor Pro Tem Jackie Goodman, now says he may want the item to be postponed. But he understands that Lowe’s, which has been pushing for the vote and has filed a motion for declaratory judgment, may not be willing to wait. Last night McCracken described the situation with Lowe’s as “fluid.”

He said, “We will go into executive session on the Lowe’s deal and have an opportunity for the public to examine the settlement agreement through boards and commissions so they can understand why we’re viewing the settlement agreement the way we are.” He said some environmentalists who supported his election do not understand the details of the Lowe’s proposal, noting that some of those details could still change. McCracken said it is possible that the $600,000 Lowe’s is prepared to offer as mitigation land could be used in the Williamson Creek Watershed instead of for land in Hays County. That land would be used to lower the average impervious cover, when considered overall, to the SOS-level of 15 percent or less.

But Lowe’s representative Bruce Todd told In Fact Daily,“Our position is we were invited by the city to enter into these negotiations, and we have been doing so for many, many months. The sole purpose (of the negotiations) has been to bring a better deal for the environment and the city.” He said Lowe’s does not intend to go through the boards and commissions as the Stratus and Bradley agreements did and that the Lowe’s property is unique in its position and entitlements. He pointed out that the property is not within the city limits and was the subject of legislation to put it under county jurisdiction. Lowe’s expects the City Council to vote on the deal as put forward today, he said. “We didn’t bring a deal that was still to be negotiated.” Todd could not say what Lowe’s would do if the Council postponed today’s vote, but he did say that the company is prepared to go to court on the declaratory judgment—which would, if Lowe’s won, show that the city has no authority over the property—and to ask Travis County for final approval of the plat.

On Tuesday, Council Member Daryl Slusher released a four-page document detailing his objections to the Lowe’s proposal. One of his major criticisms is that it does not meet the standards set by the Bradley and Stratus agreements. Slusher wrote, “Impervious cover and water quality controls are the two fundamental parts of the SOS ordinance. Stratus agreed to SOS water quality controls, while Bradley agreed to what was determined by city staff to be SOS equivalent or very close.

Slusher continued, “Lowe’s is agreeing to SOS water quality controls, but their impervious cover approach fails to come near the standard set by the Stratus or Bradley agreements. Although both Stratus and Bradley had strong grandfathering claims that had been in place for many years—claims that would have allowed them to build several multiples of what they ultimately agreed to each do—they agreed to come down to SOS impervious cover levels, with clustering. In those agreements, the absence of impervious cover on the mitigation land they offered combined with the impervious cover on the developed tracts averaged out to SOS impervious cover levels.

“In the Bradley and Stratus agreements the mitigation land was either contiguous or in the immediate vicinity. Through this type of clustering . . . environmental protection was arguably even better in some cases . . . By contrast Lowe’s is simply offering to pay an amount of money for the city to buy mitigation land. The sum being proposed, however, is highly unlikely to be enough to purchase enough land in the immediate area (or anywhere nearby) to bring impervious cover down to the SOS level of 15 percent.”

One of the reasons Lowe’s is negotiating with the city, however, is the company wants City of Austin water and wastewater service. Without a sewer, Lowe’s would have to install an on-site septic system. The property is within the Barton Springs Edwards Aquifer and any well would be regulated by the Barton Springs Edwards Aquifer Conservation District. Board Member Craig Smith represents Southwest Austin. When he appeared before Travis County Commissioners Smith said, “I told them that I as one member of the district board could not see myself voting for a well permit for a tract with 40-percent impervious cover that would pollute the aquifer.” He has not changed his position on that question.

Todd said last night that his clients “believe that water and sewer service is guaranteed to that property by a municipality: (either) Austin or Sunset Valley—they also know that in the event they don’t, water can come from wells and sewer on-site.”

Mike Blizzard, a lobbyist for both Sunset Valley and the Save Our Springs Alliance, believes that without municipal water Lowe’s cannot move forward with the county plat. “They have to specify where they’re getting the water and wastewater,” in filings with Travis County, he said. “Water and wastewater service is a significant need of this development. These big boxes have a history . . . When they catch on fire, it is a major fire,” Blizzard said. Travis County may require Lowe’s to build a water tower for fire protection. In addition, he said, spray-irrigating wastewater would reduce the impervious cover Lowe’s could put on the tract.

Slusher has asked that the matter, item number 43 on today’s agenda, be set at a time certain of 7 or 7:30pm. The exact time should be announced this morning. There are a number of controversial items ahead of this one, including the special called meeting at 6:30pm to consider whether the city should intervene in the redistricting lawsuit that will be heard here next month.

Environmental Board OKs city-county code

City Environmental Officer Pat Murphy and Assistant City Attorney David Lloyd secured the final two commission endorsements for the combined city-county subdivision ordinance just in time to present it to the City Council today.

The combined city-county subdivision ordinance, which applies in the city’s extra-territorial jurisdiction, may be buried behind the Lowe’s decision and the small business ordinance changes tonight, but it represents substantial work by city and county staff. Murphy and Lloyd have secured the endorsement of every relevant board and commission, although stakeholders still have objections about the city-county compromise.

At last night’s Environmental Board meeting, Murphy and Lloyd said the city-county plan meets the intent of the law, even if it doesn’t meet the approval of the homebuilding community. City staff and the homebuilders association differ philosophically on how the law should be implemented, Lloyd acknowledged.

Lloyd said homebuilders want approvals divided between city and county, with each side reviewing a particular aspect of the ordinance, just as variances have been divided between city and county staff. For example, county staff would review all aspects of road projects for compliance with the ordinance, without the city’s input. Lloyd said the concept of ceding that kind of authority was not acceptable to the city.

In a nutshell, Austin and Travis County have created a virtual one-stop office for review of subdivision plats to meet the intent of the law. If conflicts arise, administrators on both sides are given authority to hash out a solution. Appeals can still be made to the Zoning and Platting Commission and to County Commissioners Court. The county will determine variances for roads and drainage; variances for environmental concerns will go to the city. The city will retain all variance authority in the near-term annexation area.

The Planning Commission, which called a special meeting on Tuesday to hear from Murphy and Lloyd, had only minor procedural questions, such as whether the joint code requires any substantive concessions from the city (no) or whether those plats already in the system would have to comply with the new ordinance (another no). Commissioner Dave Sullivan urged city staff to consider road connectivity in any future ordinance amendments.

The Planning Commission gave its unanimous approval to the ordinance upon the recommendation of the Codes and Ordinances subcommittee.

Last night, Murphy and Lloyd presented the ordinance to the Environmental Board. Under the combined code, Travis County agreed to adopt the city’s environmental policies in the extra-territorial jurisdiction. The combined code will result in some changes to environmental policy, not all related to the compromise between the two departments. Those changes include the adoption of the county’s higher standards for on-site septic systems and the deletion of the endangered species survey, which is not considered legal unless it is done as part of the creation of a habitat conservation plan.

The Barton Springs Edwards Aquifer Conservation District has also submitted a revised map for the Edwards Aquifer, which is still pending before the Texas Commission on Environmental Quality, Murphy said. The city and county must both approve the map, if the TCEQ acts on it after the Jan. 1 deadline for the joint code. If the TCEQ delays approval of the aquifer district map, the city will file its own application to approve an amended aquifer map.

While the new map is based on an objective geological survey, Murphy admits its approval may be contentious among landowners who may be drawn under the new expanded map. Both city and county officials are likely to receive complaints from landowners in the future.

The Environmental Board, which also appointed a subcommittee to review the ordinance, wanted some assurances that the environmental aspects of the ordinance were being observed. Under the motion drafted by Board Member Mary Ruth Holder the Environmental Board approved the ordinance, but recommended a review be performed of the one-stop office after a year. That review would include an accounting of site plans applied for and approved, administrative and commission approved variances and problems with compliance and enforcement of the environmental regulations in the code.

The Environmental Board approved the ordinance on a 7-1 vote, with Board Member Tim Jones expressing the concern that he wanted further personal review of the ordinance.

Murphy and Lloyd admit that some of the administrative details of the office—such as who will complete on-site inspections and how enforcement will roll out—are still being discussed. Those details are likely to work themselves out as the office addresses issues, Murphy said.

Thursday is the first of three possible considerations of the new ordinance by the City Council. The Council could take up the issue again on Nov. 20 and Dec. 4. The city and county must certify they have complied with the new law by Jan. 1.

RMA takes heat over possible toll road

The Central Texas Regional Mobility Authority (CTRMA) got its first taste of public participation on Wednesday, when angry North Austin homeowners came to protest the idea of turning a portion of US 183 into a toll road.

Rumors have been circulating for months among North Austin homeowner groups that the newly extended US 183 could become a toll road. Lanes of the roadway are being extended and expanded from Spicewood Springs north up to Lakeline Mall. RMA officials have denied they are pursuing a toll facility on US 183, but that was only half the story.

At yesterday’s meeting, Consulting Engineer Richard Ridings confirmed that a map on the CTRMA website showed US 183 as a possible future toll road, but he stressed that the map included all toll projects being considered by the Texas Department of Transportation (TxDOT), Texas Tollroad Commission and CTRMA.

Under a new state law, TxDOT could decide to turn all, or a portion, of the US 183 project into a toll road. The CTRMA, on the other hand, has only been authorized to execute US 183-A, an 11-mile bypass of US 183.

Local residents, however, had a difficult time separating the mobility authority from the state department, with one woman calling the possible conversions as “turning Texas into a mini-New Jersey.” A coalition of businesses and neighborhood groups has formed in North Austin to oppose any move by the state to convert US 183.

“We would like to see you have our input and understand what’s at stake,” said Vivian Sullivan of the newly created 183 North Council of Neighborhoods and Businesses. “If these free roads are changed or converted, a lot of people are going to be affected. I see a problem with taking roads we have paid for and having those become toll roads.”

Board president Bob Tesch said the CTRMA heard and appreciated the comments offered by local residents. He said their points were well taken and taken seriously..

“This is not a CTRMA project, but we’ve taken your comments to heart,” Tesch said. “We hear you and get the message. We want to be very open and above board . . . We want the public to know what we’re working on.”

Neighbors were not the only ones with concerns about the sudden decision to create a toll facility. One long-time transportation insider said TxDOT would have a serious credibility issue if it intended to turn free roads into toll roads after the roads had been announced as tax-funded projects.

TxDOT is currently drafting rules and regulations for the conversion of free roads to toll roads. As Attorney Brian Cassidy explained to the CTRMA, those rules are different for the RMA and TxDOT.

Under the rules currently under consideration, an RMA would make a request to the TxDOT and its Tollroad Commission to convert a free road into a toll road. The roadway would have to meet a list of criteria. Under the rules, the toll road would be transferred to the RMA for administration, with the RMA assuming all liability for compliance with federal laws. TxDOT will have to find that the conversion is in the public interest and that a reasonable free roadway alternative would be available to the proposed toll road.

TxDOT will have to meet a separate, but similar, set of regulations, Cassidy said. Under the draft regulations, the conversion of a “tax-paid” road into a toll road would require a public hearing and the approval of the local county commissioners court. While an RMA can plow tolls into other transportation projects, any conversion of free roads would require that revenues be used for the expansion or improvements of that road.

Bruce Byron of the Capital Area Transportation Coalition said the decision to convert free roads into toll roads is clearly a trade-off among alternatives. State officials, or local RMAs, will have to convince the general population that the immediate impacts and inconvenience of construction would be less of a burden than future improvements to mobility.

“What we have to review is the entire picture, based on what’s happening,” Byron said. “We know there is not the funding for the roads we need and that the Legislature has steadfastly refused to increase the gas tax. Adding 25 or 30 cents to the gas tax is politically unfeasible, so we’ve got to deal with the reality of what we can do.”

Byron would like to see TxDOT or the CTRMA provide a project-by-project comparison of needed roadways, showing commuters how long they would have to wait for road projects under traditional funding, versus the much faster track construction under road conversion.

US183 options presented

During yesterday’s meeting, Ridings also presented five options for US 183-A. Those options, along with a preliminary revenue and cost estimate, will be considered by the CTRMA at its December meeting. The options for the 11-mile road segment, which will stretch from RM 620 north to the San Gabriel River, include:

Alternative 1 – Currently proposed interim design of six-lane minimum north to New Hope and then four lanes north to the San Gabriel River, with frontage roads.

Alternative 2 – Four lanes north to New Hope and two lanes north of New Hope to the San Gabriel River, with frontage roads.

Alternative 3 – Four lanes north to New Hope Road with frontage roads and then two-lane frontage roads in both directions north of New Hope.

Alternative 4 – Four lane minimum, plus frontage roads, north to FM 1431, with two-lane frontage roads each way north of FM 1431 to the San Gabriel River.

Alternative 5 – A complete build out of six lanes, with frontage roads, all the way from RM 620 up to the San Gabriel River.

Ridings said the alternatives are based on earlier projects for usage. Construction cost and revenue projections are likely to be revised through the spring as more information becomes available.

Political leaders offer support for Planned Parenthood

A Who’s-Who of Austin political figures gathered at City Hall Wednesday afternoon to show their support for Planned Parenthood after the family planning agency announced that the general contractor building their new facility in South Austin had pulled out of the job. That clinic would offer abortions along with other services. Austin Planned Parenthood Executive Director Glenda Parks blamed a nationwide campaign against the subcontractors involved in the project lead by Chris Danze of Maldonado and Danze, a local concrete contracting firm. That campaign, Parks said, involved threats, harassment and intimidation.

“Subcontractors received calls that were threatening . . . harassing. We had people tell us they were fearful for their well being. They were fearful about the survival of their business,” Parks said. “They felt under enormous pressure. We were told one subcontractor got 1,200 calls in a week, and that’s to his business phone. Another subcontractor had his home phone number published and was receiving hundreds of calls a day, which frightened his family.”

Danze told reporters in a series of interviews on Wednesday that his efforts were an exercise of his First Amendment right to free speech, and that he wanted to remind subcontractors that there could be negative financial repercussions to participating in a Planned Parenthood project. Glenda Parks said the nationwide campaign against the local project had surprised the organization, which had not encountered the level of resistance in Austin as it had in other communities. “When we got this news and we were talking to people, the first thing we heard was ‘I never thought this could happen in Austin.’ It’s a credit to our city and to our leadership, and they can be responsible for that good reputation,” said Parks.

Some of the biggest names in Austin political circles over the past decade met with Planned Parenthood officials at City Hall to decry the tactics used by Danze and other abortion opponents. “Austin is a place that prides itself on many things, but at the top of that list is diversity and the ability to disagree agreeably,” said former Mayor Bruce Todd. “But the economic blackmail that Planned Parenthood is going through right now is not about freedom of speech. It’s about tyranny. It’s about harassment.” Former Mayors Gus Garcia and Kirk Watson agreed. “The disgrace is not that we do not agree. The disgrace is not that we even disagree with great passion. The disgrace is that some of those who disagree have chosen tactics that threaten and undermine much more than the individual positions in the underlying debate,” said Watson. “They violate the values, the tolerance and the openness of Austin.”

Current Mayor Will Wynn, who attended the ground-breaking ceremony for the clinic, was in Washington D.C. on Wednesday. Council Member Brewster McCracken, who noted he had been a long-time supporter of Planned Parenthood, represented the Council. “We have people using intimidation and enemies lists to bully local businesses and healthcare providers to take away fundamental freedoms,” he said. “It’s our duty to stand up and speak out.” State Representative Eddie Rodriguez also joined in, voicing his support for the affordable health care the clinic would provide for the people of his district.

Local political leaders and Planned Parenthood officials hope the show of community support will help convince contractors to participate in the job. Parks said they had already been contacted by two construction companies, but declined to name them publicly. She predicted the clinic would be built despite the organized opposition.

©2003 In Fact News, Inc. All rights reserved

No coffee relief today . . . The pending deal between the business center group at Austin-Bergstrom International Airport and Mozart’s Coffee Roasters has evidently fallen through, so the matter will be postponed once more today. The Council urged owner Stacy Dukes-Rhone to find a local merchant instead of doing a sublease with Starbucks . . . Zoning matters . . . South River City Citizens will be on hand this afternoon to say Wal-Mart construction at Ben White and I-35 would degrade Blunn Creek. Wal-Mart needs a tiny portion of the property rezoned in order to build a supercenter there. Opponents of the Lake Austin Montessori on Norwalk Lane in West Austin already have a valid petition and can be expected to attend the 4pm hearing to try to stop that zoning change. Neighbors of the Hampton Road Calcasieu Houses, which the owner does not consider historic, can also be counted on to fight for a historic designation . . . AHF vote postponed . . . Travis County’s decision on tax-free bonds for the American Housing Foundation has been put off another week. Figures presented for the tax impact on the Austin school district were not consistent and staff needs time to review them. AHF wants to secure tax-free bonds to purchase a portfolio of five Austin-area apartment complexes . . . Board approves Clean Air plan . . . The Environmental Board approved the city’s Clean Air Action Plan, intended to be proactive before the city is declared to be in non-attainment by the Environmental Protection Agency. There was a bit of a skirmish, with a desire by some commissioners such as Tim Jones wanting more input into a plan still in transition. Fred Blood has been providing the board with monthly updates on city efforts. The plan is expected to go to the City Council on Dec. 4.

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