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ZAP endorses Lowe's offer

Thursday, November 20, 2003 by

Both panels hear environmentalists' concerns

Although the Zoning and Platting Commission endorsed the proposed settlement between the City of Austin and Lowe’s, the Environmental Board rejected the proposal by a unanimous vote. On Tuesday night, ZAP commissioners voted 7-1-1 to add their stamp of approval to the proposal that will put an end to a lawsuit by the home improvement chain and allow it to build a store on land in the city’s ETJ. Representatives of Lowe’s have fought hard—both in court and in the Legislature—to put the store on that property near their chief rival, Home Depot. Those in Lowe’s camp say the store will be built, with or without the city’s blessing.

The settlement was approved in a split vote earlier this month by the City Council on first reading only. As part of that vote, Council members solicited feedback from a variety of relevant boards and commissions. The settlement is also available for review online at

Representatives of the Save Our Springs Alliance told ZAP commissioners the settlement did not adequately protect the interests of the city or water quality over the Edwards Aquifer. “This is a bad deal,” said Brad Rockwell. “It’s procedurally bad and substantively bad.” He noted that the proposed settlement between Austin and Lowe’s does not include the third party to the suit, the city of Sunset Valley. That municipality originally controlled the land in question as part of its ETJ, but relinquished that control last year, placing the tract in Austin’s ETJ. Sunset Valley Mayor Terry Cowan asked the ZAP to withhold any recommendation while his city worked to improve the deal. “We’re concerned that this will set a precedent . . . that you can get SOS (water quality protections) with retention or irrigation,” he said. “It’s simply not true.”

City staff and legal counsel defended the particulars of the deal, which calls for Lowe’s to pay the city $600,000 for water quality mitigation efforts such as buying additional land to prevent development. While it would allow 40 percent impervious cover, it also calls on the company to install water quality protection measures on the site. The city’s outside legal counsel, Casey Dobson, took exception to the proposal by SOS representatives that the city should fight Lowe’s in court with the help of Sunset Valley, which they said has money available from its sales tax revenues for a lengthy and expensive court battle. “As for all this money that Sunset Valley’s going to give the city, I represent the city and I have yet to receive an offer from them,” he said. “Sunset Valley, if you want to make us an offer, we’ll listen.”

Commissioners did not seem enthusiastic about dealing with the proposal. “Can we give this back to Sunset Valley?” quipped Commissioner Keith Jackson. Despite his displeasure at the smaller city’s move to put the tract under Austin’s jurisdiction, he spoke up in defense of the settlement agreement. “I don’t believe this is a battle that we win . . . and I think there’s extreme consequences here if we take this to court and lose,” he said. “What we end up with is Lowe’s being able to do anything they want to do without any water quality protection or any mitigation lands. There’s going to be extreme cost to the city.”

The majority of commissioners sided with Jackson. Only Commissioner John Michael Cortez was opposed. “There might be an opportunity to have more strict enforcement of the SOS guidelines,” he said. “I realize it might come at great expense, but I think it would be worth it.” The vote to endorse the settlement was 7-1-1, with Commissioner Cortez opposed and Commissioner Melissa Whaley abstaining due to a conflict of interest.

Environmental Board says 'No'

While the Zoning and Platting Commission supported the Lowe’s settlement, the Environmental Board was more inclined to fight the proposed deal.

The city’s offer of a settlement with Lowe’s is essentially the equivalent of losing the lawsuit, Craig Smith told the board during a hearing last night. Smith, an attorney and member of the board of the Barton Springs Edwards Aquifer Conservation District, said that Lowe’s would be hard put to argue that its settlement came close to meeting the standards of the city’s SOS Ordinance.

Smith said Lowe’s must meet at least the standard of the original site plan, which sets impervious cover at 40 percent. Because of that site plan, retailers will not be able to come back and suggest more impervious cover or fewer regulations.

“The city, by agreeing to the settlement, gives them the most that they could win in court,” Smith said. “By agreeing, we give up the chance to win and basically capitulate. There is basically no risk to playing out the cards.”

After the vote, Environmental Officer Pat Murphy said he could not agree with Smith’s assessment that Lowe’s must meet the intent of its original site plan. It’s always been the city’s interpretation that going to court could put at risk all the concessions Lowe’s put on the table, given that Senate Bill 1204 would require county standards on the site, Murphy said. The county has no impervious cover standards.

Other speakers, all of whom opposed the Lowe’s settlement, suggested the city deny utilities on the project. They questioned the $600,000 in mitigation fees, saying it would result in the acquisition of little or no land in the immediate area. They questioned why the developer couldn’t buy the remaining Garza tract as a way to drive the impervious cover down to SOS standards.

Board member Phil Moncada made a motion to disapprove the Lowe’s settlement because it disregards existing ordinances, including the SOS Ordinance, which provides water quality protection in the watershed where the Lowe’s would be located.

Moncada’s rationales for his motion included:

• The impact on drinking water in Sunset Valley, which is still on well water.

• The direct violation of the SOS Ordinance.

• The conflicts with the Environmental Board’s resolution in July to oppose development over the Edwards Aquifer recharge zone.

• The threat of a potential lawsuit with Sunset Valley.

• A lack of mitigation measures in the plan, including a geological and other related surveys.

• The setting of a bad precedent, not only in this watershed but across the city.

• The lack of proper negotiation with Sunset Valley.

• An insufficient amount of mitigation land.

Board member Karin Ascot said that as a citizen of Austin she was disappointed that the attorney representing the city began the negotiations by giving away the impervious cover issue. Ascot, like other commissioners, worried about what would happen when either Home Depot or Lowe’s lost the final battle of the home repair stores.

“We need to fight this,” Ascot said. “We might end up getting a much, much better deal. I think this is a very bad precedent not to work with our natural ally (Sunset Valley) and try to get the very best deal we can.” Board chair Lee Leffingwell did not participate in the discussion or vote. His son works for the Winstead law firm, as does lobbyist Bruce Todd. Leffingwell said that although his son does not have any connection with Lowe’s he felt it best to recuse himself.

Because of the lengthy Environmental Board briefing and discussion, the Planning Commission, which was scheduled to consider the Lowe’s proposal last night, postponed consideration of the matter until next Tuesday.

County to take a spin on concrete roads

Travis County plans to focus on concrete roads, now that development in the county is shifting to the more stable ground east of I-35.

Asphalt roads have been the norm in Travis County. But as development has shifted to the east to places like Manor, where the ground is more stable, a developer has suggested putting down rigid pavement within subdivisions, instead of the traditional asphalt. This is new territory for the county, which will eventually assume maintenance of the roads.

Concrete, or rigid pavement, is more expensive and rarely used for Travis County roads because of soil shift. Concrete is about 10 percent more costly to use than asphalt, at about $30 per yard. Asphalt pavement is estimated at $26 per yard. Asphalt, however, has plenty of foes because of the environmental risks posed by runoff from petroleum-based paving products.

While the life of concrete pavement is significantly longer, it also provides a challenge in that the county does not have equipment to maintain it.

Commissioners agreed last week to make Presidential Meadows, east of Manor, the test case. The 1800-lot subdivision is interested in rigid pavement roads within the subdivision. This will provide the test case for Travis County, although such roads are common in other areas of Texas, such as Houston and Fort Worth.

Developer David Gregg said Presidential Meadows would ultimately be 1,800 lots. The first two sections will be 200 lots. The ultimate build-out will be 10 to 15 miles of road. The developer considers the use of the more expensive concrete to be a benefit because Presidential Meadows will roll out as a multi-phase project, and it will be important to make sure roads are maintained long-term over the life of the project.

According to a memorandum prepared by Fred Dennick of the Transportation and Natural Resources Department, concrete lasts almost twice as long as asphalt pavement. Maintenance costs for concrete are also only about half those of asphalt. Dennick notes in his memo that Travis County has documented “significant pavement distress” in many subdivisions using asphalt, within a year of completion.

When the figures are measured against each other, the budgetary and fiscal impact was considered minimal. That gave commissioners enough confidence to approve the concrete roads, at least for a pilot project. The project will include increased county supervision, including concrete mix design reviewed in advance of placement, pre-pour inspection of steel placement and construction joint layout, as well as sample testing. The county will verify compliance with plan specifications and proper material usage. All those elements are important in the assessment of rigid pavement, Dennick said.

Concrete has only rarely been considered competitive with asphalt for road projects. County officials expressed some hope they could tap into the State Highway 130 project, benefiting from the use of concrete on future county roadway projects.

©2003 In Fact News, Inc. All rights reserved

Suit may be filed today . . . The rumor around City Hall yesterday was that Jim Monahan, owner of the tract at MoPac and Slaughter where Wal-Mart decided not to build, would file suit against the city and Stratus Properties today. If it occurs, it would be the second suit pairing the city and Endeavor as defendants this week . . . Happy news from Lydia Ortiz . . . Ortiz, chair of the Planning Commission, and her husband Hector, are the proud parents of Santiago, who was born Sunday. All are apparently doing well . . . Blizzard watch. . . Mike Blizzard made no apologies last night for taking money from Stratus to fight the Wal-Mart proposal. During testimony on the Lowe’s settlement at the Environmental Board last night, Blizzard said the Stratus money helped level the playing field in the fight. “I’m proud we did what was necessary to win that battle,” Blizzard said. He represents Sunset Valley in its battle against Lowe’s . . . ABIA offers half-price parking . . . For those who prefer to park in the garage at Austin-Bergstrom International Airport but don’t want to pay the price, ABIA has reduced daily rates from $18 to $9 per day. Those rates will be in effect beginning Friday, and will continue through Sunday, November 30. For real time parking information, fees, flight status and other airport information, call 530-2242 or visit . . Today’s agenda . . . The City Council will have another opportunity to consider whether Starbucks should be allowed to take over a concession from local businesswoman Stacy Dukes Rhone. The Council has already postponed the matter twice, rather than reject it outright. ABIA is also asking to increase its passenger facility charge for those holding international tickets from $3 to $4.50 per person . . . Cab franchise battle . . . Lone Star Cab is hoping the Council will allow the company to compete with Austin’s three existing cab companies. The other companies— American Yellow Checker, Roy’s and Austin Taxicab Service—say the city already has more cabs than demand requires. Mike Blizzard is representing Lone Star. Paul Saldaña of Martin & Salinas is representing those opposing the new franchise . . . Code amendments . . . The Council approved changes to site plan, plat and flood plain regulations when they met two weeks ago. Those items are up for third reading. Changes in requirements for off-street parking will be considered on second and third reading. The Council will also vote on changes to the definition of the infamous “restaurant-limited” definition. The changes are designed to make it easier for small businesses to operate and expand within the city. The public hearing on those items was closed at the previous meeting . . . Following up . . . One alert reader pointed out that redistricting figures quoted by former Mayor Gus Garcia in yesterday’s edition referred only to the Travis County population. Each congressional district is designed to have a total population of 656,519. When Garcia said the new Congressional District 10 would be two-thirds Anglo—with 27,000 African-Americans and 64,000 Hispanics—he meant out of the population of Travis County. CD 10 in its entirety would comprise 63,307 African-Americans, 122,168 Hispanics and 34,817 categorized as “other,” for a total minority population of about 33 percent.

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