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Parks board asks Council to reconsider plan

Thursday, February 26, 2004 by

Tree planting, parks, library funds might suffer

The Parks and Recreation Board has decided to ask the City Council to reconsider changes to the proposed check-off box on Austin Energy bills for funding parks and libraries. Currently, money from the check-off box goes into a fund reserved for tree planting.

It’s not every day that a parks advocate shows up at a commission meeting to discourage the city from asking for more money for parks. But Ted Siff of the Austin Parks Foundation fears that the check-off box might discourage other forms of giving.

Siff noted the awkward position he was in. The City Council had approved a resolution and City Manager Toby Futrell had asked the Parks Department to implement that resolution to add parks and libraries to the check-off list. But Siff, a law school graduate who has devoted most of his life to non-profit organizations, said he needed to stress to the board that the change was a bad decision—one the Parks board should ask the City Council to reverse. The Council did not hold a public hearing on the matter before approving the resolution.

Expanding the check-off box to include libraries and parks would cause a number of problems, Siff said. For example, it would dilute the power of a program that only raises between $20,000 and $30,000 each year for trees. He also expected it to discourage people from supporting the libraries or parks through other fund-raising endeavors.

“This may sound somewhat self-serving, but the Parks Foundation fundraising and the Library Foundation fundraising and the Treefolks fundraising is potentially going to be hurt,” Siff said. “Someone who gives a dollar on a check-off box through a utility bill and then gets a solicitation through the Library or Parks Foundation may have a natural reaction that they may not want to give again.”

Joyce Basciano, vice chair of the Urban Forestry Board, has spoken against the check-off box at the last two Parks board meetings. Basciano asked for a plan from the department that could be reviewed by the Urban Forestry Board.

Assistant Director Jay Stone had previously proposed some compromises on the issue, such as dividing the money equally among the three entities or making sure that the city’s urban forestry program gets its $20,000 before others would benefit. The Library Board voted to support a measure to divide the money equally.

Board Member Clint Small made another motion, which won board support. First, the board agreed to ask the City Council to rescind the check-off box program. In addition, they agreed to continue to support Acting Director Warren Struss in his efforts to come up with an equitable solution.

Struss said he intended to give Futrell an effective plan, but he also wanted to hear the opinion of the Parks board. Struss said he was ready and open to find alternatives to this “very difficult issue,” and said he was also seeking the recommendation of the Urban Forestry Board.

RMA picks finalists for US183-A

Construction should begin next spring

Yesterday, the Central Texas Regional Mobility Authority announced it had narrowed the list of possible developers of the US 183A project to three, putting the toll road’s construction on track for next spring. The submission of an unsolicited bid for the development of RMA’s first toll road project triggered a Request for Competing Qualifications. The 11-mile Williamson County toll road will be developed under a Comprehensive Development Agreement.

Five teams submitted proposals and three made the final cut:

• Zachry Construction Corp. and Gilbert Texas Construction, LP, head San Gabriel River Constructors, LP.

• Austin Bridge & Road, LP, and HBG Flatiron, Inc. head the Austin/Flatiron team.

• Granite Construction Co. and J.D. Abrams, LP, lead the team known as Hill Country Constructors.

Executive Director Mike Heiligenstein said he was pleased by the strength of the proposals. The finalists will now be working on project proposals. “The industry saw a lot of promise. They saw a good project,” Heiligenstein said. “If they felt there was too much risk—the environmental or the right-of-way wouldn’t work—then they would have decided that they wouldn’t bid on this project.”

Consulting engineer Richard Ridings said the CTRMA had encountered no serious obstacles in the early months of preparing for the project. As the mobility authority moves closer to a decision on a partner “all the details are lining up,” Ridings said.

The CTRMA is laying the groundwork to start the project. Technical development is underway for the design schematic on the road, which includes feasibility studies and utility coordination. Early this month, the RMA met with Cedar Park to discuss how the road would connect to Brushy Creek, New Hope and Scottsdale streets. Revised plans also incorporate new CR 276 and FM 2243 alignments.

Some of the feasibility study will tackle the revenue generation of the toll road. US 183A will likely be a phased development, with the first phase being the most lucrative section of the toll road, Heiligenstein said. Motorists will likely drive that section before the rest of construction is completed. The feasibility study, which is due in May, will estimate revenue collection and the cost of electronic collection versus cash collection.

The CTRMA is also in the process of purchasing conservation credits. A draft contract is under development to pay the Hickory Pass Ranch Conservation Bank $393,750. That total will cover 75 credits at $5,250 per credit. The deal will likely be finalized within the next few months in order to minimize delays in construction.

Next steps will include the Request for Detailed Proposals. Attorney Brian Cassidy said an industry review draft of the project, with between 60 to 80 percent of the procurement documents completed, will be given to the three teams in order to make a detailed presentation to the board on possible options.

Heiligenstein described the RMA’s schedule as “aggressive.” The CTRMA would like to sign a Comprehensive Development Agreement with a partner by the end of the year. If all goes well, construction on the toll road should be underway by next spring.

Depending on which option the CTRMA decides to pursue, construction of the toll road should take between 18 and 36 months, Heiligenstein said. The timeframe allows the contractors to weigh building speed against the cost of construction.

Judge considers halt to Bee Cave Galleria construction

Environmental damage versus financial loss

The developers of the Shops at the Galleria in the Village of Bee Cave should know by the end of the week whether they will be able to proceed with construction activities. A temporary restraining order obtained by the Save Our Springs Alliance (SOSA) to halt work at the site is set to expire soon. After hearing arguments over whether to issue a temporary injunction prohibiting work at the site, Judge Darlene Byrne told attorneys for all parties involved she expected to issue a ruling Friday.

Much of the hearing was taken up by testimony from environmental engineer Dr. Lauren Ross, called as an expert witness by SOSA to explain the potential harm that construction on the site could do to the Edwards Aquifer and Barton Springs. She described the contents of a video shot by Stefan Wray from a nearby property, which showed runoff going through or under a silt fence carrying a plume of sediment into Little Barton Creek. Under cross-examination Ross said she was not saying that runoff from the Shops at the Galleria site was currently causing pollution of the Edwards Aquifer or Barton Springs. However, she did say that she believed the plans for the project did not include enough silt fencing to cover the total number of acres that would be developed. “They have massive areas where they’re proposing to construct buildings and there’s actually very little silt fence protection or any other kind of protection for sediment movement from the site to Little Barton Creek,” she said. She also testified that in her experience, the silt fencing is frequently installed improperly by construction crews and therefore does not provide the level of protection intended.

Ross’ testimony was in support of the claim by SOSA that a temporary injunction preventing work on the site was necessary to prevent irreparable long-term environmental damage. It was her conclusion that a disproportionate amount of pollution is generated during the construction process after the natural vegetation is removed but before the project is finished. “In the process of that transition, you open up the site…and all of the soils underneath those proposed buildings and parking lots are disturbed.” she said. “The vegetation is taken off, the buildings aren’t on there yet, and it’s a very unstable configuration during the construction process.” She estimated that 20 percent of the total suspended solids generated by runoff from the site during its entire lifespan would come during the construction process.

Attorney for the property’s developers Al Loewinsohn challenged Ross’ conclusions on cross-examination. Ross admitted that she had not done an analysis to determine the statistical probability that construction on the site would harm the aquifer, and that she had not had access to all of the documents submitted to the Village of Bee Cave as part of the developer’s application for permits. Loewinsohn also questioned Ross about other instances in which her opinion on environmental matters had been offered to city governmental bodies which later made decisions contrary to her advice. And in his concluding remarks, he told the judge the case should focus on the authority of the Village to determine whether its own ordinances and standards were being met.

The defense called some of the principal partners in the real estate venture behind the Shops at the Galleria, including Chris Milam of Milam Galleria Holdings LLC and real estate broker Robert Dozier of HCS Holding Co. Both men testified that any delay in construction would result in severe financial hardship and effectively scuttle the development. The financing for the project, Dozier said, had been based in part on pre-leasing the development to interested retailers. If the buildings are not ready to be occupied by the date promised, he said, the developers would suffer irreparable harm. He calculated that a delay could cost the companies involved anywhere between $28 million and $71 million, depending on whether they tried to sell the land immediately or kept the property and attempted to continue the development. Holding the site and continuing to build the stores—if construction eventually were allowed—would actually be the more expensive option. “We would have to sell the property,” he said. “We would act to mitigate our damages now.”

Loewinsohn told the judge his clients would suffer $33 million in economic damages should the project be delayed, and asked the judge to consider that when establishing a bond for SOSA if she granted the temporary injunction. SOSA Board Chairman Stuart Henry testified that the non-profit organization was not in a financial position to support an extraordinary bond, and that it was his experience as a long-time environmental lawyer that non-profit groups were generally not required to post bonds in such high amounts. Loewinsohn countered that under Texas law, the plaintiffs’ ability to pay was not normally a factor considered by the judge when setting a bond.

Milam, the local partner in the venture, testified that delaying the project would cause him personal hardship and also have a negative impact on the entire community. He said that developers had worked in a cooperative fashion with the Village of Bee Cave to improve the shopping center. If the plans resulting from that effort are put on hold by the court, he said, “developers will go back to the same old process of maximizing their square footage and minimizing their costs.”

Bee Cave Mayor Caroline Murphy, was called to testify about the benefits of the project to the Village. In addition to generating jobs and sales tax revenue, she said the development agreement the Village had reached with the companies involved would provide water quality and design standards superior to those the developers could have sought under grandfathering provisions. She testified that the water quality provisions on the site would be “nearly” in compliance with the Village’s current ordinances. “This project is a good project for the Village,” she said.

After just over two hours of testimony, Judge Byrne allowed each side a few minutes for closing arguments. “Twenty percent of the pollution from this site will happen in the first few months of construction. We will suffer irreparable damage, both to the environment and to our open government and procedural rights,” said SOSA attorney Bill Bunch, who argued that the Village of Bee Cave had not been forthcoming about providing documents related to the project, including a the development agreement reached with Milam and the other partners. That claim was refuted by an attorney for the Village who said certain documents had been withheld from the group in accordance with a provision in the Texas Open Records Act relating to matters of pending litigation. As for the claim of damage to the environment, Loewinsohn countered that the “SOS has not proven that any environmental harm will occur.” He told the judge that any environmental damage was purely speculative, and that Ross had not even provided an analysis of how likely it was that the damage would take place. But he pointed out that the financial harm to the developers, should the project be delayed, was certain. “My client has poured his heart, sweat, and soul into this project,” he concluded.

As part of their evidence, both sides submitted numerous depositions, including one from the former engineer for the Village of Bee Cave. SOSA submitted videotaped evidence with a deposition from Stefan Wray, while the developers submitted legal documents pertaining to the financing of the project. The judge will consider the evidence and testimony and expects to have a ruling no later than the end of the day on Friday.

City Council meeting today . . . The Council does not have a heavy agenda, but will be asked to make decisions on 11 zoning cases beginning at 4pm . . . Other meetings . . . The Master Plan subcommittee of the Environmental Board will meet at noon in Room 240 of One Texas Center. The MBE/WBE Advisory Committee will hold a special called meeting at 6pm to consider proposed revisions to the MBE/WBE Procurement Program Rules . . . Chamber to honor Valdez as Austinite of the year. . . The Greater Austin Chamber of Commerce will honor Gary Valdez, President & CEO of Focus Strategies, primarily for his work resolving differences between the business and environmental communities. One lasting creation of his work is the Hill Country Conservancy, which preserves open space for endangered species. The occasion is the Chamber’s Annual Meeting, which sold out with 800 members expected to attend the event, taking place at 11:30am at the Hyatt Regency . . . Historic house questions postponed . . . The Planning Commission has postponed a hearing on historic zoning for three houses on West Lynn until March 9. Representatives of the Old West Austin Neighborhood Association asked for the delay in order to do more research on the buildings. “Some of the people we have contacted have books that are original publications of documents that are really a needle in a haystack to find,” said neighborhood researcher Robin Carter. The neighborhood is seeking information from the National Archives to help determine if the homes do have a connection to the Austin Street Railway Company. Agent Jim Bennett, representing the property’s owner, asked the Commission to hear the case without delay. “We’re in no way fast-tracking this,” he said, responding to comments from neighborhood residents. “If your bureaucracy considers 90 days to be a fast track to get a demolition permit, then it’s not a very fast system.” Commissioner Chris Riley pointed out that it was the neighborhood’s first postponement request, and the first request from each side is generally honored. The vote to postpone was 6-0. Commissioner Dave Sullivan recused himself from discussion of the item. Sullivan said he had signed the neighborhood’s petition in favor of the historic zoning and therefore could not vote. The Historic Landmark Commission recommended granting historic zoning in spite of Historic Preservation Officer Steve Sadowsky’s recommendation to the contrary. Neighborhood advocates have not been able to substantiate the date of construction or even where they were built . . . Little businesses can have big ideas . . . Council Member Betty Dunkerley, several local bankers and representatives of various local chambers of commerce had a press conference Wednesday to promote the BIG (Business Investment Growth) Idea Awards, which will be presented in April to small businesses in five categories: Most with the Least, Rookie of the Year, Best Transition, Creative Business and BIG Graduate Award. BIG Austin bills itself as “Central Texas single-source solution for small businesses in search of comprehensive education and affordable loans.” Their message is that 90,000 Austin micro-enterprises—defined as businesses with fewer than five employees—are responsible for more than 13 percent of the total employment in Travis County. BIG Austin has provided training and technical assistance to 1,622 small businesses, disbursed $1.8 million in loans and created more than 1000 jobs. The awards program is open to any greater Austin area business with 10 or fewer employees. For more information, visit . . . Voting totals . . . Slightly more than one percent of Travis County voters have registered their preferences so far. The third day of early voting saw 2001 voters, with 368 taking advantage of the mobile polling places at various state office buildings. The University of Texas location tied with Northcross Mall for the largest number of votes at a fixed location, with 152 each . . . Austin Court of Appeals bar poll results. . . Incumbents have the edge in this one, as reported yesterday by the Quorum Report, for the 3rd Court Of Appeals (Austin- 24 counties), Place 4, Justice-Full Term:(R) Bill Green, Austin, 6 percent (101); (R) Ernest C. Garcia, Austin, 24 percent (387); (D) Jan Patterson, Austin, 69 percent (1097) (I); Place 6, Justice-Unexpired Term: (R) Bob Pemberton, Austin, 48 percent (700) (AI); (D) Diane Henson, Austin, 37 percent (537); and (R) William C. (Bill) Davidson, Austin, 15 percent (212).

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