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Judge says Council broke law in approving Lowe's deal

Thursday, June 17, 2004 by

Save Barton Creek will try to stop construction

Attorneys for the Save Barton Creek Association (SBCA) are preparing to ask a judge to stop construction activities at the Lowe’s Home Improvement Center site on Brodie Lane, according to SBCA president Harold Daniel. State District Judge Lora Livingston granted a motion for summary judgement filed by SBCA, Sunset Valley and the Save Our Springs Alliance late Tuesday. Yesterday, lawyers for Lowe’s, the City of Austin and the environmental organizations were contemplating their next moves.

In granting the motion, Livingston ruled that the City Council violated the SOS Ordinance because the vote to settle its lawsuit with Lowe’s was approved by only four members of the Council. The ordinance requires that there be six votes to adjust application or modification of the water quality regulation. Lowe’s also asked for a summary judgement on the grounds that House Bill 1204 trumped the ordinance, removing the property from the city’s regulatory authority. Livingston denied that motion.

Lowe’s attorney Anatole Barnstone said he believes that his client still has a right to develop its property—which is designed to provide 40 percent impervious cover on a site within the Barton Springs zone of the Edwards Aquifer. He said the City of Austin has already built the water lines that were promised as part of the agreement. Lowe’s has already paid the $1million in mitigation funds and the city has purchased conservation land in Hays County with those funds. However, he said, “We’re in a terrible limbo right now because the ruling isn’t final. We can’t appeal it but it doesn’t say you can’t develop the property.”

Brad Rockwell of the SOS Alliance explained that the plaintiffs “basically argued that the settlement agreement was void and ultra vires because the city did not have the 75 percent vote” required by the ordinance. “By granting our motion, the judge is saying, ‘no, the SOS ordinance applies’ and the Council did not get the necessary three-fourths needed to act on the matter,” he added.

David Frederick and Tom Buckle were attorneys of record for Sunset Valley. Layla Aflatooni of Lowerre & Kelly represented SBCA. Mike Blizzard, a public relations consultant for the Sunset Valley said, “The question for (the city) is…if Lowe’s goes forward and tries to continue with construction, is the City of Austin going to issue a stop work order?” However, Travis County officials issued the permits, acting on the authority given to them under HB 1204.

City Attorney David Smith said he is not certain what the city’s next step would be but that it is likely to appeal.

Sunset Valley Mayor Pro Tem Cat Quintanilla saw the issues differently. She told In Fact Daily, “The entire community is completely elated. Everybody has been participating and following along left and right.” She noted that construction crews were using bulldozers on the site yesterday. “And we’re really wondering about that because I would think they would have gotten the word. Maybe it’s just a miscommunication. We hope this is an opportunity for everybody to put their lawyers down. We’re hoping that Lowe’s is going to be magnanimous,” which she defined as “not building there. They own other properties in the immediate vicinity,” she said, but they want that particular site “because they want a store that is that big,” and other sites would not accommodate such a large structure.

Lowe’s spokesman Anatole Barnstone countered, “I find it highly ironic that Sunset Valley, whose commercial area is almost all impervious cover, would be concerned about the impervious cover at 40 percent.”

Council Members Daryl Slusher, Danny Thomas and Raul Alvarez voted against the settlement agreement. Slusher said yesterday that he had not seen the judge’s letter but that he had received no information since December that would cause him to change his vote on the matter if it should come before the Council again.

There will undoubtedly be several more chapters in this already lengthy saga.

LCRA agrees to water deal with Lazy 9

Agency has little choice on raw water sales

The Lower Colorado River Authority's board of directors approved a number of water contracts on Wednesday, including a raw water contract for the Lazy Nine Municipal Utility District's controversial residential development just outside Lakeway.

The Lazy Nine Municipal Utility District originally requested water and wastewater services for the MUD, which is located just to the north and east of the Barton Creek Watershed. When LCRA informed the MUD it would take six months to analyze the service extension, the MUD opted to buy raw water from LCRA.

Spokesman Robert Cullick says the rules of water sales are clear. The LCRA is a steward of the water; it can deny water contracts only under rare circumstances. The Lazy Nine MUD's nonpoint-source pollution abatement and conservation plans met all requirements for the river authority's approval. The LCRA board approved the raw water contract, for 1,615-acre-feet for a term of 40 years, with little discussion.

Stored water revenues from the contract will generate reservation fees of $84,788 annually, and once fully utilized, should generate $169, 575 annually. The Lazy Nine MUD rests just south of Highway 71. Lakeway is located to the north. Bee Cave is located to the east. The land sits on the Lake Travis/Lake Austin watershed.

Currently, LCRA has 49,808-acre-feet of firm water supply that has not been committed to other contracts nor is held in reserve by the LCRA board.

In other action, the LCRA board:

Adopted a Bastrop County Regional Schedule of rates, fees and charges. The new fee schedule would incorporate the Camp Swift and Lost Pines rate districts. It would also provide subsequent user fees for Bastrop Independent School District. BISD is providing infrastructure for future water lines and will recoup a portion of the cost from others that may choose to tap into the school district's infrastructure;

Authorized General Manager Joe Beal to execute an interlocal agreement for reclaimed water between the LCRA, the Brazos River Authority and the City of Round Rock. LCRA would spend $659,000 to expand the existing Brushy Creek Regional Wasterwater Treatment Plant. The city would utilize an existing 24-inch reuse line, which would take the reclaimed water out to the city's Old Settlers Park. The Brazos River Authority would operate and maintain the proposed LCRA facilities; and

Approved the final engineering and design for the Liberty Hill Regional Wastewater System. The total anticipated cost is $1.7 million. The total cost of the first phase of the liberty Hill wastewater system is estimated at $7.2 million and is included in the Fiscal year 2005 Water Service and 10-year Capital Improvement Plan. The population of Liberty Hill, near the intersection of Highway 29 and Highway 183 north of Leander, is projected to quadruple over the next 30 years.

Robinson Ranch zoning wins ZAP approval

Council to make decision today

The annexation, zoning cases, and development agreement for the huge Robinson Ranch in Williamson County go back to the Austin City Council today. The items have the approval of the Zoning and Platting Commission, which endorsed the proposed development agreement with some minor changes on Tuesday night along with the Planned Unit Development zoning proposed for the entire tract. The Council voted last week to approve annexation on first reading only, but delayed consideration of the zoning cases until this week to allow time for the ZAP to make its recommendation.

The unanimous vote from the ZAP came after a series of subcommittee meetings to study the extensive proposal, which includes several new terms created to define the guidelines for development within the PUD. Much of the acreage will be in a mixed-use category called MXD, which would allow residential, office, retail, restaurant, and other uses. The proposed agreement includes a list of development standards to help define MXD. The second category is TOD, for Transit Oriented Development. It allows for downtown-style, high-density development in the area immediately surrounding a major transportation hub such as a rail station or other mass-transit facility. The staff recommendation was that TOD be the mandatory category within 1,320 feet of a mass transit facility and optional within 1,320 and 2,000 feet. However, the recommendation from ZAP is that TOD be optional within that entire range. That was one of the few requests for modifications from Robinson family representative Richard Suttle. The third category, OS, will be used for open space to protect environmental features.

The vast area of open space, ranch land, and quarry operations has few nearby residents, which has meant few speakers at the ZAP public hearings to discuss the zoning change. At the last meeting, some residents along Council Bluff Drive and Secluded Hollow voiced concern about how the development of the ranch would impact them. Those two residential streets are just inside the city limits. They run along the southern edge of the ranch just north of Parmer Lane and west of Burnet Road.

The votes in favor of the development agreement, the PUD zoning, and annexation were all unanimous. "We support the annexation of the property. It is the right thing for the city to do," said Commissioner Keith Jackson. The ZAP also voted to attach a set of proposed architectural guidelines along with its recommendations. "I think we're heading in the right direction here," Commissioner Clarke Hammond said of the commission's list of suggestions "I think it will go a long way to make anything that gets built out there in the future something we can be proud of."

Commissioners applauded the staff for the volume of work necessary on the case, which covers more than 6,000 acres. But Commission Chair Betty Baker also had some reservations about dealing with such a large tract and long-range agreement. "What the subcommittee has brought to you," she told fellow commissioners, "it has some parameters that are very broad, very generic, that do not contain the specificity and controls or answers that some of us would like to have seen. This began as an assignment in frustration, given the size of the document we received." But she concluded that the time they had devoted to reviewing the proposal by the subcommittee had been well spent. "I think the commission would have been remiss to rubber stamp this."

Nearly done . . . Mayor Pro Tem Jackie Goodman told In Fact Daily that Wednesday's meeting of the city-county subcommittee on House Bill 1445 accomplished enough for both jurisdictions to approve a resolution or ordinance next week formalizing the agreement for regulating subdivisions in the city’s extra-territorial jurisdiction. Travis County Commissioners are expected to approve such a resolution next Tuesday and the City Council is expected to act on Thursday. Goodman said it would take longer to bring forward changes to the city’s Land Development Code, which must be reviewed by the Planning Commission. However, Goodman said she expects the subcommittee to have only one more meeting. Council Member Daryl Slusher, County Judge Sam Biscoe and Commissioner Gerald Daugherty are the other members of the subcommittee . . . Who would have guessed?. . . A fight is brewing between fishermen on Lake Travis, which is becoming quite a Mecca for carp fishing. Cid Galindo told the Downtown Commission last night that catch-and-release carp fishermen were concerned about the lake, soon to be promoted as a carp fishing destination, attracting bow fishing. Yes, the city does permit bow fishing on Town Lake and Lake Austin. The Downtown Commission said it needed more information before making any recommendation to Council . . . City seeks nominees for Hospital District board . . . The City of Austin is seeking individuals interested in serving on the Travis County Hospital District Board of Managers. Applications for the board, which will provide governance, oversight, implementation and administration for the newly created district are due June 28, 2004. For more information contact Julia Lee at 974-2374 or julia.lee@ci.austin.tx.us. . . Literacy Austin hosts BookFest 2004 . . . Literacy Austin will host its 15th annual BookFest this Friday through Sunday and 26th at Capital Plaza. More than 100,000 new and used hard and paperback books will be available and all proceeds from the sale go to Literacy Austin’s programs, which teach basic reading and writing skills to area adults. For more information visit their website at www.literacyaustin.org. . . Shelter dogs need your help . . . Town Lake Animal Center is in need of rawhide bones and chews to help keep the 300 dogs in its care calm during the July 4th fireworks display. The noise and lights of the fireworks can cause a great deal of stress on the dogs, but chewing rawhides can be a healthy way for them to relieve stress and nervous energy. Since the city cannot provide rawhide chews, Shelter Director Dorinda Pulliam says she hopes the people of Austin will help by donating natural chews in the coming days. Rawhides can be dropped off at the Town Lake Animal Center from 9:00am to 7:00pm weekdays and 9:00am to 5:00pm on weekends. Contact the shelter for more information, 972-4738.

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