Thursday, January 29, 2004 by

Sunset Valley, green groups sue Austin over Lowe's settlement

Sunset Valley, SOSA, Save Barton Creek say city violated SOS Ordinance

The City of Sunset Valley filed suit yesterday against Lowe’s Home Improvement Centers, the City of Austin and four landowners to overturn a lawsuit settlement that allows Lowe’s to build a store with 40- percent impervious cover over the Barton Springs zone of the Edwards Aquifer. The Save Barton Creek Association and the Save Our Springs Alliance (SOSA) joined in the suit, which alleges violations of the SOS Ordinance and requests that Austin be enjoined from issuing any further approvals for development of the land. On December 12, the Council finally approved the agreement, which included a $1 million payment from Lowe’s to purchase mitigation land over the aquifer. (See In Fact Daily, December_12, 2003.)

Brad Rockwell, deputy director of SOSA, said, “This is not really any surprise.” The legal issues raised are “the same issues that were talked about extensively in all the public hearings about Lowe’s. What the City of Austin is doing is granting a variance to the SOS ordinance and that requires a three-fourths vote” of the City Council. The plaintiffs contend that since only four Council members voted for the settlement agreement, instead of the six needed to create a supermajority as laid out in the ordinance, the city has violated its own ordinance. Only four Council members voted for the agreement—which was approved on three occasions as an ordinance. Council Members Daryl Slusher, Danny Thomas and Raul Alvarez voted no.

In Fact Daily asked Austin’s outside counsel on the matter, Casey Dobson, why the settlement was structured as an ordinance, unlike most legal settlements. At that time, Dobson declined to comment, but it can be assumed that his reasons related to defending Austin in a future lawsuit.

The plaintiffs’ second contention, Rockwell explained is that the ordinance requires either a court decision or a Council supermajority to declare that the ordinance violates any state or federal law. That will be his argument, Rockwell said, “if the city or Lowe’s wants to argue this is not an amendment because the state statute took away Austin’s ability to apply SOS to this tract of land.”

Asked whether he was concerned that the lawsuit might result in overturning portions of the ordinance, Rockwell said, “I’m not concerned that would be the outcome of this lawsuit.”

The Lowe’s tract was previously under Sunset Valley’s jurisdiction. Lowe’s filed an application with Sunset Valley to build the store. However, Sunset Valley deannexed the property, turning it over to Austin, they say, in reliance on “the Defendant Austin’s promises that it would enforce the SOS Ordinance on the Garza Tract in making its decision to voluntarily release a portion of its very limited ETJ,” to Austin. When Austin tried to enforce the ordinance against Lowe’s, the company sued, arguing that it should only have to comply with ordinances on the books in Sunset Valley.

The lawsuit dragged on, and last winter, Lowe’s asked for legislative assistance. As a result, the Legislature approved a law taking away Austin’s authority to enforce its ordinance on the tracts where Lowe’s plans to build. HB1204 gave Lowe’s the right to build under county subdivision regulations. The lawsuit filed yesterday does not mention the law but it will figure prominently in the city’s defense.

Terry Irion, attorney for the landowners, was instrumental in getting HB1204 amended to include the Lowe’s provision. He represents the landowners, Eli Garza and three other members of his family. Irion said yesterday that ground had not yet been broken for the store but that the company does not need city approval to do so. Rockwell is representing SOSA. Tom Buckle and David Frederick are representing Sunset Valley. Rick Lowerre is representing the Save Barton Creek Association.

Mayor hopeful, despite racial tensions

Issues include hospital district, commuter rail, UT area changes

Upbeat in spite of facing a number of difficult issues yesterday, Mayor Will Wynn delivered his first-ever State of the City address to the League of Women Voters last night, declaring, “the State of the City is encouraging. There’s some big challenges for us, but ultimately the opportunities in this town are still dynamic.”

The Mayor plowed through a barrage of statistics and data assessing everything from the effectiveness of the Austin-Travis County EMS Service—which got a positive review for its ability to revive heart-attack victims—to the city’s bond rating (also good) before outlining the challenges and opportunities facing Austin. Topping the Mayor’s list of challenges were the hotspots of the day, race relations and community policing.

“It’s obviously the issue in our town right now, I wish it wasn’t . . . but it is, and so we’re going to deal with it,” Wynn said, referring to the controversy over the use of force by Austin police officers. He expressed confidence in the ability of the community policing model to make improvements in relations between the department and minority groups. “We have had remarkable success in lowering the crime rates throughout the community and throughout East Austin the past few years with Chief Knee’s plan for community policing,” he said. But he conceded that the community-policing model required citizen participation to be effective, and “right now we’ve lost trust in a big segment of the community. I don’t think it’s inconsistent to say I’m proud of the men and women of the Austin Police Department . . . I’m proud of progress that’s been made . . . (yet) we have a problem. And we have to address the problem.”

The Mayor reiterated his pledge to take that effort outside the normal bureaucratic channels and become personally involved. “It’s going to be uncomfortable for a while, because you’re going to have to have some real, street-level, face to face reckoning about prejudice in the community and about how we go about policing. But I’m committed to getting there and I think we will.”

The probable election this May on the creation of a new hospital district and the pressures on the city budget also made the Mayor’s list of challenges. He spoke passionately about the proposal being drafted to rezone the West Campus area near UT to allow more student housing, which he said could come before the Council in March or April. And the Mayor offered some tantalizing details about the possibility of a commuter rail line using existing right-of-way through Leander, Cedar Park and Austin. The key will be getting Union Pacific Railroad to move its trains off the portion of the track along MoPac. While that might seem difficult, Wynn said, there were several factors motivating the rail company to seek out a less-congested route. “U-P will be best served if they don’t have to use that MoPac line anymore.”

One alternative is connecting to a freight line in Bastrop County that runs from Elgin to Smithville. “We’re going to hear more about Red Rock, Texas over the next year or two,” Wynn predicted, referring to a tiny community about 15 miles southwest of Bastrop. “With only 12 miles of new right-of-way . . . U-P can be using an eastern bypass of this whole metropolitan area with not that much effort.”

Ending on a positive note, the Mayor pointed to several opportunities the city had for economic and cultural growth. The city is well-positioned to bring more film and video productions to town, and recruit new companies in the field of clean energy. A new medical school could have a significant impact on the region’s economy, he said, and help meet the demand for indigent health care. And he pointed to the prospects for unique retail development and the city’s premiere cultural arts attractions to lure suburbanites back downtown, boosting the city’s sales tax revenues. “As tough as some of the challenges are, there’s great opportunity out there,” he concluded. “It’s going to be challenging but fun to be on the dais for the next couple of years.”

Knee, Futrell, Council pledge to fix problems

Reducing random searches part of three-point plan

Police Chief Stan Knee outlined a three-point plan to reduce the occurrence of officers using force on suspects and bystanders on Wednesday. The announcement came on the heels of a four-part series analyzing department statistics by the Austin American-Statesman, which concluded that officers were more likely to use force against African-Americans. The points outlined in those articles were cited by a group of African-American ministers on Wednesday morning when they called for Knee and City Manager Toby Futrell to resign.

Reverend Sterling Lands, speaking from the pulpit at the Greater Calvary Baptist Church on behalf of the Baptist Ministers’ Union, said that while Chief Knee was not directly responsible for the treatment African-Americans received from police officers, he had failed to correct the long-running problem. “In my opinion, based on the data available to us, it was within his reach to change the operation of that department and bring about policies that would train the officers better,” he said.

A letter sent by the group to the Mayor, Futrell, and Knee outlines 23 different grievances including the deaths of Sophia King and Jesse Owens. “The history of the present City Government is a history of repeated racial discrimination, racially motivated police brutality and abuse of Black citizens,” Lands wrote. “We therefore demand the immediate resignation of City Manager Toby Futrell, Austin Police Chief Stan Knee and a revision of the Austin City Charter that will insure equal and equitable treatment under just law of Citizens of African Descent.” Reverend Ivy Rich warned that there could be “unrest” if the two top officials did not step aside, but did not outline what specific actions the group would take if its demands were not met.

At APD Headquarters, Knee and Futrell both promised to remain on the job and attempt to correct any problems within the department. The call for her resignation, the City Manager said, was somewhat unexpected. “That has never happened to me in my career, so I’m struggling a little bit with how to respond.” However, she did note that it was an indication of a serious problem in the community that was already the focus of concern at City Hall and APD. “I do recognize a few of the names (of the preachers who signed the letter) and those are men that I know and admire and respect,” she said. “What that tells me is I have not misgauged the level of anger and frustration that’s in the African American community.” The chief likewise pointed to the future and pledged to do his best to address the issues raised by the group of preachers and pastors.

“As Chief of Police I was hired by the City Manager and confirmed by the City Council,” he said. “But in reality, the Chief of Police serves at the will of the entire community. And it would be my personal opinion that if I could not regain the trust of the entire community then I would seriously consider the request.” During the meeting at APD headquarters, the Chief declined to set a deadline for establishing a new and better relationship with the African-American community. “I don’t put a time limit on it,” he said. “When I feel I’m ineffective as Chief of Police, then I’ll make that decision.” But the chief later told the Austin American-Statesman he would set a deadline of either September or December for improving the situation.

The Chief’s three-point plan calls for improvements in departmental training procedures, purchasing additional high-tech gear such as Tasers (electric stun guns) and bean-bag shotguns that give officers the option to use non-lethal force against hostile subjects, and reducing the number of vehicles randomly searched by officers during routine traffic stops. “In Austin and nationwide, there’s great concern over random searches of vehicles. Our own statistics show that 88 percent of vehicle searches conducted pursuant to a traffic stop, although lawful, do not produce any evidence,” Chief Knee said. To reduce those random searches, patrol officers will now be required to obtain a signed consent form from the driver of a vehicle. That policy previously applied only to detectives. The goal of the new policy is a 20 percent reduction in the number of searches that do not yield evidence in both 2004 and 2005. That directive will apply to random searches. Police will still be able to search a vehicle if they have probable cause or if contraband is in plain view during a traffic stop.

Futrell said the issues surrounding the use of force and random searches during traffic stops would continue to remain a high priority. “We’re going to publish a weekly update of what we’re doing,” she told In Fact Daily. “We’re going to put it up on the web. And every quarter, the Chief is going to come back here and report on where we’re going, and every month we’re going to track those numbers.”

One indication of the seriousness of the effort to improve the department’s relationship with the African American community was the presence of five City Council Members at Wednesday’s announcement. Joining Mayor Will Wynn were Council Members Betty Dunkerley, Danny Thomas, Raul Alvarez, and Daryl Slusher. Repairing the relationship, Wynn said, would take an effort beyond the previous outreach efforts by the department. “I’ll continue to be accessible at APD’s Commander Forums,” Wynn said, referring to the periodic meetings organized by the department in different areas of town. “But more importantly I’ll also make sure I’m accessible outside those Commander Forms by design. I think those forums are part of the administrative effort. If the problems we’ve identified can be addressed through the administrative process or policy directives within APD, I firmly believe our City Manager will ensure they’re administratively dealt with. I don’t know that that’s the case. I want to find out whether some issues are bigger than that and essentially whether these issues are bigger than our police department.”

Thomas, a former police officer, said he appreciated Chief Knee’s three-point plan to make improvements. “It’s obvious that there are some problems in the area of traffic stops. There are some problems in the use of force. The numbers don’t tell a lie,” he said. “We have a community that is crying out. We have to make sure that whatever we say today…stick to what we say.” Slusher predicted the city’s management team would be able to accomplish that. “I think we have a good team here in place to deal with these challenges that lie ahead…the rank and file of the Police Department, the Chief, his management team, and the City Manager,” he said. “I think we have about the best people we could possibly have to deal with this situation. I think they’re committed to dealing with it.”

Hot meeting for the aquifer district . . . The Barton Springs Edwards Aquifer Conservation District Board will hold a public hearing concerning the proposed drilling of test wells by Cypress Realty Inc. If they find water of the quality and quantity they need, the developer of land that was part of the Rutherford Ranch wants to pump about 20 million gallons of water per year. The Houston-based developer plans up to 2,700 homes and 36 acres of commercial development near Dripping Springs, northeast of FM 967. The Friendship Alliance filed suit against Dripping Springs in November in connection with city approvals on the property . . . Probably not so hot . . . The Austin City Council may postpone any particularly contest items from today’s agenda in light of the absence of Council Member Danny Thomas. Thomas, who also serves on the board of Capital Metro, is going to San Diego today to attend a transportation conference. His executive assistant, Sandra Frasier, said the Council member and several other Capital Metro representatives would be studying various transit solutions, including commuter rail and light rail . . . Hospital board honored . . . Trish Young of the city’s Community Care Department paid tribute to the members of the first Austin Women’s Hospital Board, along with the elected officials and private citizens who helped get the facility built, during last night’s official dedication ceremony for the Austin Women’s Hospital. The fifth-floor facility isn’t quite ready for patients, but was ready for dozens of visitors in the reception area for the ceremonial ribbon cutting. “From the inception of this concept more than two years ago to the recent naming, I’ve been so keenly aware of the importance of this facility to this community,” said Council Member Betty Dunkerley. “I’ve been inspired by the many people who’ve worked on this.” Officials from the Seton Healthcare Network and UTMB were also on hand.

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