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Final deal: Lowe's to pay $1 million in settlement

Friday, December 12, 2003 by

Goodman talks retailer into $400,000 more than initially offered

Representatives of Lowe’s Home Centers, Inc. insisted for months that they had made their final offer to settle a lawsuit with the city: $600,000 in mitigation money, plus some other concessions. But after negotiating with Mayor Pro Tem Jackie Goodman throughout the day, Lowe’s agreed early this morning to pay $1 million so the city can purchase mitigation lands near the site of Lowe’s planned Brodie Lane store. The Council voted 4-3 to accept the deal on third and final reading, with Council Members Daryl Slusher, Raul Alvarez and Danny Thomas opposed.

After hearing from citizens who mostly opposed the agreement for about more than three hours, the Council began to discuss the matter and ask questions about 11:30pm. At ten minutes before midnight, Goodman asked for a 10-minute recess. That recess lasted for about 45 minutes. During that time Goodman engaged Lowe’s in a final round of hard negotiating, ending in an agreement that the Mayor Pro Tem had been seeking. When Goodman and Mayor Will Wynn returned to the dais, Slusher asked what they had been doing during the break. Goodman made a motion to settle the lawsuit with the following additions to the agreement:

• Lowe’s will pay $1 million in mitigation money, which brings the impervious cover down to 13.6 percent, Goodman said.

• All arsenic-treated wood will be under cover;

• Lowe’s will comply with dark sky lighting standards as prescribed by Sunset Valley lighting standards;

In making the motion to approve the settlement, Goodman said, “What this motion does is take it to an apples to apples with the Stratus agreement and the bar that was set,” in that agreement. “It’s the reason many of us have been uncomfortable with what seemed like a somewhat arbitrary mitigation number. One million dollars takes them to 13.6 percent impervious cover.” That figure presumes $20,000 per acre for the Lundelius tract and $7,500 per acre for other land farther away from the site that the city can purchase with the balance of the money.

The Lundelius tract is a relatively small, but important piece of land that drains 180 acres of single-family homes that have no water quality controls, according to Les Tull of the Watershed Protection and Development Review Department. The 19-acre tract, about half a mile from the Lowe’s tract, is considered much more sensitive than the land where Lowe’s plans to build. It has also been the subject of a lawsuit. After voting on the Lowe’s settlement, the Council unanimously approved settlement of the Lundelius suit, which authorizes payment of about $400,000 to the property owners. The city will become the owner of the property.

Goodman pointed out that Lowe’s had already spent a great deal of time, effort and money on lawyers and engineers and would have to spend more if the case were not settled. “It seemed like…why didn’t we just cut to the chase . . . to what was going to make everybody more comfortable.” She pointed out that Lowe’s has just bought back $1 billion of its stock. It was “very simple reasoning,” Goodman said. Lowe’s could easily afford an extra $400,000 to end the matter.

The vote in favor of the settlement agreement was 4-3, as it had been on the previous two readings, with Slusher leading the opposition. Slusher, while impressed with Goodman’s negotiating prowess in securing the extra mitigation money, noted that the price per acre for the mitigation lands was still below what it would cost to buy substantial acreage near the Home Depot site. “I think the Mayor Pro Tem has definitely made a better deal,” he said. “But it’s still $7,500 per acre. That’s land that’s going to have to be way out away in the country from this, although it’s becoming less and less country all the time. For me, that still doesn’t meet the Stratus or the Bradley or the Forum standard. To me, it doesn’t come up to those agreements which I voted for.” And Slusher pointed to another controversial piece of negotiation with a big box retailer that he said had better results for the city. “It doesn’t meet the standard which Wal-Mart set,” he said. “They said ‘We’re not going to build over the aquifer.’ Lowe’s…they could afford not to build over the aquifer. They have 925 stores in 45 states. To me, Lowe’s can afford to protect the aquifer and I think that’s what it’s going to take if we’re going to preserve the aquifer.”

Several of those asking the Council to reject the agreement were from the town of Sunset Valley, which had regulatory control over the tract in question until it released the land from its ETJ. That move sparked some criticism from some members of the Council, who expressed frustration at the way the process had been handled by Austin’s smaller neighbor. Sunset Valley Mayor Terry Cowan attempted to smooth over any harsh feelings by pledging a more cooperative relationship in the future. “You’re damn straight we’re going to work with Austin if you work with us,” he said. “We both have a common interest in that aquifer. It affects everybody. We admire you guys. We admire what you’ve been willing to do all these years. It’s taken us years to get to where we are but now we’re there and we’re there with you.”

Opponents of the agreement with Lowe’s took no comfort in the additional mitigation funds extracted from the company. “I thought it was a huge disappointment,” said Brad Rockwell of the Save Our Springs Alliance. “It’s a horrible settlement. Lowe’s got everything they wanted—40 percent impervious cover. That’s a huge issue.” He described the total of $1 million from the company for mitigation as “ridiculous. The value of the land in that area that Lowe’s itself is paying is about $200,000 per acre…so that’s clearly, absolutely insufficient to do any kind of effective mitigation,” he said.

Legal action over the vote is a possibility. SOS Alliance representatives point to the 4-3 vote as a possible grounds for a lawsuit. The SOS Ordinance, they say, requires a vote of 6-1 in order to exempt a tract from the strict limit on impervious cover of 15 percent. “We filed an Open Records request in the middle of the meeting to make sure that all the documents were preserved and all the communications were preserved,” said Rockwell. However, the settlement agreement itself is structured as an ordinance, a factor which may influence future litigation. Asked to comment on why they had put the agreement into ordinance form rather than handling the matter with a simple resolution as allowed by the City Charter, two city lawyers declined to answer.

Lowe’s had already agreed to the following:

• Early Annexation. Lowe’s will petition the City of Austin for annexation upon store opening. Lowe’s claims the petition will result in annexation three years earlier than without the petition. City lawyers disagree with that assessment, saying they could annex Lowe’s whenever they wish. Lowe’s estimates the sales tax revenues from the store would be approximately $600,000 annually, for a total of $1.8 million over the three-year period of early annexation.

• Water Quality Standards. The Lowe’s site will be developed “substantially in accordance with the water quality standards set forth in the City of Austin SOS ordinance.” That will involve technical controls to limit the amount of runoff and pollutants from the store's parking lot.

• Impervious Cover. The Lowe’s proposal will not exceed 40 percent impervious cover on this site as defined by the City of Austin Development Code.

• No Coal Tar Based Pavement Sealers. The site parking and sidewalks will be paved using only concrete in order to avoid the coal-tar based pavement sealers found in asphalt. The city believes that such sealers are responsible for some high PAH (polycyclic aromatic hydrocarbons) readings in soil upstream from Barton Springs Pool.

• Greenbuilding Program. Lowe’s will participate in the city’s Greenbuilding program which encompasses energy saving and environment friendly construction practices. Specific items include a reflective roof system, high efficiency HVAC units, high efficiency interior florescent lighting and a downspout recovery system.

• Grow Green Program. Lowe’s will landscape the site and sell products from the Garden Center that adhere to Austin’s Grow Green standards. These plant materials are Texas native and adapted species, which are naturally drought tolerant and resistant to pests and disease.

• Traffic Signal. Lowe’s will install a traffic signal with associated left turn lanes and deceleration lanes at the intersection of Brodie, Oakdale and the realigned Ben Garza Lane.

• Employment. Lowe’s will employ between 150-200 employees, 70-80 percent of whom would work full time, with full benefits.

Wal-Mart wins more friends for I-35 at Ben White store

Neighborhood leader praises retailer and lawyer

Neighborhood leader Tim Mahoney of South River City Citizens (SRCC) praised Wal-Mart yesterday as the City Council approved third reading of a zoning ordinance that allows the retailer to build a new store at I-35 and Ben White. Neighbors had been fiercely opposed to the project because they feared it would mean the death of Bouldin Creek. However, Wal-Mart’s attorney, Richard Suttle, worked with the group’s engineer to fashion a design for the new store and its parking lot that should protect the creek from degradation.

Mahoney said of the agreement, “This is an example of how the city and everybody can come together . . . Wal-Mart has turned out to be a very friendly and reasonable partner. So, we’re very pleased and I would like to thank Richard Suttle personally for the work he has done.”

Mayor Will Wynn responded, “Your neighborhood also did a good job with Home Depot.” He did not mention that Suttle was also the broker on that deal, but Suttle afterwards noted that all members of the SRCC leadership, including Jean Mather and Rene Barrera, had signed off on the agreement.

The Council approved a number of other zoning cases, including granting Historic Landmark designation to the Eckhardt-Potts House at 209 E. 34th Street. Both the Historic Landmark Commission and the Planning Commission recommended that the 1926 house be designated historic, as did Historic Preservation Officer Steve Sadowsky. No Council member chose to comment on the matter.

In another case, the Council approved an ordinance rezoning 10.4 acres at 3200 West Slaughter Lane from interim rural residential to multi-family zoning to allow for development of a nursing home. However, that facility may never be built.

Before voting on the item, Council Member Daryl Slusher asked whether the applicants would comply with a new map of the recharge zone of the Barton Springs Edwards Aquifer. According to attorney Jerry Harris of Brown McCarroll, his client had found out about the new map only this week.

“If the map is correct, of course, we are going to comply with it,” Harris said. He said the applicant would comply with city regulations, including the SOS Ordinance. After the hearing, Harris said that the nursing home would have had 29-percent impervious cover. Under the previous map, he said, the development would not intrude into the recharge zone. However, with the changed map, all of the property would be in the recharge zone and the impervious cover would have to be reduced to 15 percent. That would mean his client could no longer build the nursing home and might decide not to develop the land.

©2003 In Fact News, Inc. All rights reserved

City losing another department head . . . Jesus Olivares, director of the city’s Parks and Recreation Department, will be leaving Austin soon. Olivares has told members of the Parks Board that he has accepted a position as city manager of his hometown, Eagle Pass. Olivares has wanted to return to Eagle Pass for some time and now has the opportunity to contribute to that community again . . . Judge appointments on hold . . . Currently sitting Municipal Court judges will retain their positions until at least January 18 since the Council postponed appointments to their next meeting on January 8 . . . New board appointed . . . The City Council yesterday appointed the following to the new Asian American Resource Center Advisory Board: Myung Bang-Lemond, Elena Cablao, Victoria Hsu, Rohit Jain, Sywong Ngin, Francis Pan, Evan Key Taniguchi and L’uan Tran. All were appointed by consensus . . . Other appointments. . . Council Member Raul Alvarez appointed Karen Strnad to the Resource Management Commission. Alfredia Miller was reappointed by consensus to the Federally Qualified Health Center Board and John Paul Rodriguez was appointed by consensus to the Robert Mueller Municipal Airport Plan Implementation Advisory Commission . . . Council Member Danny Thomas appointed Hugh Mayfield and Mayor Will Wynn reappointed Tracy Sosa to the Solid Waste Advisory Commission. Council Member Brewster McCracken reappointed Shannon Phillips and Wynn reappointed Jodi Park to the Commission for Women. The Mayor also reappointed Gilbert Ferrales to the Electrical Board . . . According to a press release from Independent Texans, they “have been mad about the redistricting controversy since it started last June.” Yesterday, leaders of the organization announced that they have convinced international attorney, Michael Fjetland (pronounced Fetland) of Sugar Land, to file a statement of candidacy so he can run against House Majority Leader Tom DeLay as an independent in 2004. “Fjetland ran against DeLay in the Republican primary in 2002 and received 25 percent of the vote while spending little money,” according to Independent Texans . . . Need a ride for the Trail of Lights ? . . . Capital Metro will be providing transportation to and from the Trail of Lights Festival Dec. 14th through the 23rd. Santa will be out welcoming riders on Trinity between 12th and 14th Streets between 7 and 9 each night. On Monday and Tuesday, Capital Metro will accept one canned good donation to the Capital Area Food Bank in lieu of payment for a shuttle ticket. See www.capmetro.org for more details. .

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