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SOSA asks county to reject Lowe's

Tuesday, December 16, 2003 by

Attorneys disagree on applicability of SOS Ordinance to case

The Save Our Springs Alliance has sent a letter to Travis County Commissioners asking them not to approve Lowe’s preliminary plan for a store on Brodie Lane. The proposed big box store was the subject of a settlement agreement approved by the City Council on a 4-3 vote last week.

Brad Rockwell, deputy director of SOSA, points out in his letter that the commissioners previously approved the plan contingent on an agreement to settle the case or a final adjudication by a court. Rockwell says the commissioners should disregard the city’s settlement agreement because “there is no lawful agreement between the owner (of the land) and the city as to whether HB 1204 preempts the City of Austin’s authority to apply the SOS Ordinance to the Lowe’s tract. This is because the so-called settlement agreement considered at the December 11 City Council meeting received only four out of seven votes.”

Rockwell contends that because the SOS Ordinance requires six of seven votes for an amendment or variance the vote violates the ordinance. That section states that the Council or an appropriate court must render a final judgement. City Attorney David Smith has said that the SOS Ordinance does not apply because HB 1204—which gives the county subdivision authority over the tract—overrides the ordinance. When there is a conflict between state law and a city ordinance, state law almost always prevails.

Another operative part of the SOS Ordinance states, “The Council shall determine whether application of (the Save Our Springs Initiative) to the applicant’s development project or proposal violates the United States Constitution, the Texas Constitution, or federal or state statute. If the Council does not make an affirmative determination, the application is denied.” That sets up the City Council as judge of state law and constitutional matters.

Lowe’s attorney Terry Irion said Monday, “Every time the Legislature adopts a law, it’s not like this is law only if we beat the City of Austin in a court case. The Legislature sets the law and if a city believes that it doesn’t need to follow the law, they can engage in a lawsuit and declare what the law means. But if they settle, and say we agree not to fight this interpretation of the law or we conclude that you’re right, we’re going to accept it’s what you think it is,” then the matter is settled. “Nobody’s disagreeing except SOS. The law’s the law even before it’s decided.”

In another city-county development matter, commissioners will have an opportunity to approve a joint city-county subdivision code for property in Austin’s ETJ. The City Council gave its final approval to the code last week after agreeing to some amendments staff of both jurisdictions offered to try to appease unhappy stakeholders. (See In Fact Daily, Dec. 10, 2003.)

Slow-moving cases frustrate complainants

Police panel hears about delays, systemic problems

The Austin Police Monitor Citizen Review Panel on Monday night heard from two citizens concerned about the lack of progress on the complaints they filed stemming from anti-war protests in March of this year. Members of the panel also expressed concern with the time taken for citizen complaints to be resolved.

“I went for months without hearing an update on the status of my case,” said Austin Chronicle writer Lee Nichols, who was hit with pepper spray while on the Congress Avenue Bridge covering the anti-war protest for the weekly publication. “When I finally talked to the police monitor’s office I was told that Internal Affairs did not deliver the results of its investigation until about a week before the 180 days was up.” According to state law, any administrative disciplinary action against an officer for an incident of wrongdoing must take place within 180 days of that incident. Nichols also expressed frustration that other officials with APD had not been responsive to his requests for information.

One of the participants in the late March demonstration against the war in Iraq also addressed the panel with complaints about the way her case has been handled. “I’m very concerned that the 180 days has passed before any action was taken,” said Stacy Newton. “It doesn’t seem right to me. If there was injustice done, then it should be taken care of.”

The timeframe for resolving investigations into citizen complaints was also the subject of questions from DeWayne Lofton, who had previously filed a complaint against APD Officer Scott Glasgow. Lofton was stopped by police in February and given a warning for playing his car stereo too loudly. Lofton contends the stop involved racial profiling. He told the panel he has been disappointed with the internal investigation and was angry at receiving different explanations for what happed to the surveillance videotape from the patrol car involved in the stop. Lofton was notified in July by then- Police Monitor Iris Jones that his complaint had not been sustained, and he appealed to the Citizen Review Panel for further review. “It’s almost as if they don’t really care,” he said of the department’s investigators. “I think it’s just ridiculous for them to drag something out for eight months to tell me ‘we didn’t do anything wrong.’ If you didn’t do anything wrong, you should be able to tell me that within 30 days.”

After hearing from citizens on their individual cases, Panel Member and former Mayor Roy Butler turned his attention to the common theme expressed by many of them regarding the speed of the investigations. “It really doesn’t let us do the job we’re supposed to do,” said Butler, “and I think it’s frustrating to the complainants.”

Assistant Police Chief Rick Coy was on hand to provide information to panel members about the complaint and investigation process. Internal Affairs, he reminded them, was not supposed to contact the complainant to notify them about the results of an investigation. Instead, that job is reserved for the Police Monitor’s office. It was also not the responsibility of Internal Affairs to refer cases to the Civilian Review Panel. “That’s done by the complainant or the Monitor’s office,” Coy said. “The Police Department doesn’t send cases to the panel.”

“There is some frustration about the timeline,” admitted Police Monitor Ashton Cumberbatch. “We’re not going to solve it right now.” In those cases where the results of the investigation are presented just before the end of the 180-window for disciplinary action, he said, “the panel feels frustrated because they don’t have time to review the IA investigation and complete their review and get it to the Chief in time for any discipline to be done.”

New Smart Housing plan wins praise

Neighbors now happy about affordable housing

A dispute over the design for affordable housing units in East Austin has been resolved to the satisfaction of both sides, thanks in part to the work of the city’s Office of Neighborhood Housing and Community Development. Community Development Officer Paul Hilgers and his staff worked to broker a compromise between developers Christopher Robertson and Chris Krager of KRDB and residents of the East MLK Neighborhood Association over plans for new homes on Astor Place.

The controversy stemmed from KRDB’s plans to place eight units on land originally subdivided into five lots. Neighbors were opposed to the design of the homes and the size, saying they would not be consistent with the other homes in the predominantly African-American neighborhood (see In Fact Daily, July 10, 2003). “We’re not opposed affordable housing,” said Alvin Patterson. “We do want housing that is compatible with the established neighborhoods that are already here.”

The solution offered by the city involved the city repurchasing the site from KRDB. Instead of four homes built under the city’s SMART Housing programs and four at market price, the developer will proceed to build five homes, all qualifying as SMART Housing.

Mayor Will Wynn praised the neighborhood association for its commitment to preserving the history of the area, and the residents’ dedication to maintaining their homes, many of which were built in the late 1950’s and early 1960’s. “There are obviously many areas of this town that don’t have that going for them,” Wynn said. “In those cases, we bring in a lot of effort and KRDB has delivered great homes in spots around town where we needed to change the dynamic. But here, the fundamental dynamic is so sound and is so remarkable…that this is an example of where the city and our association with builders can step in and build upon a very fine foundation.”.

©2003 In Fact News, Inc. All rights reserved

Overpass funding vote postponed . . . Council Member Daryl Slusher, who serves on the Capital Metro Board of Directors, was unable to make yesterday’s meeting and asked that an item that troubled him not be considered until next month. The item would shift up to $2.74 million in metro money to assist Williamson and Travis Counties in completing work on the widening of McNeil Road. Representatives of the two counties had asked Capital Metro to pay for an overpass for the railroad track at that location, Slusher said. The money would come out of the 2005 budget. Although the transit agency owns the railroad track, Slusher said he is not sure it is appropriate for them to pay for the overpass. There are too many unanswered questions about the matter, especially since it is not yet clear whether a future commuter rail line to Leander would use the same track, he said. “We have to be always on guard against becoming a cash cow again. Our dollars need to go mainly into transit,” Slusher said, noting that Capital Metro already returns a quarter cent going back to the various jurisdictions for road projects . . . Tonight’s meetings. . . The Zoning and Platting Commission is scheduled to meet at 6pm at One Texas Center. The Robert Mueller Municipal Advisory Committee will meet at 6pm at Waller Creek Center . . . Energy choices. . . Tonight the Resource Management Commission will be considering a recommendation to the City Council on addition of a surcharge for new GreenChoice® customers. The change would have no impact on current GreenChoice® subscribers. They are scheduled to meet at 6:30pm at City Hall . . . Airport contracts to be considered . . . The Airport Advisory Commission will meet at 5pm at the airport. There are only items up for recommendation. One is a 48-month lease agreement with Avnet Computer Marketing Enterprise Solutions for about $700,000. The larger contract is a design-build agreement with Hensel Phelps Construction Co. of Austin as selected provider for the design and construction of ABIA Terminal Baggage Screening Improvements, in an amount not to exceed $14.5 million. If negotiations are unsuccessful, Turner Construction Co. of Houston, was rated second and would get the contract . . . Capital Metro to purchase hybrids . . . The board of directors of Cap Metro yesterday today approved the purchase of 15 new Toyota Prius hybrid vehicles for use in a pilot program. Currently, Cap Metro’s Vanpool program operates vans for groups of eight, 12 and 15 passengers; its minimum membership for a vanpool group is five people. The agency hopes the vans will offer a cost-effective way to allow groups of four to participate in the vanpool program. The vehicles will arrive in late spring 2004 and will cost $308,125 . . . Neighborhood coalition to celebrate anniversary and holidays . . . The Austin Neighborhoods Council will have its annual holiday party Wednesday from 6-9pm at Threadgill’s World Headquarters on Barton Springs Road. ANC will also be celebrating its 30th anniversary.

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