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House approves anti-SOS bill

Tuesday, May 10, 2005 by

City would have to compensate landowners

Rep. Robby Cook (D-Eagle Lake), backed by the Texas Landowners Conservancy, had no problem getting preliminary approval of HB 2833 as a “regulatory takings” bill in the state House of Representatives Monday. The measure would force municipalities to compensate landowners when environmental regulations lessen the value of property.

Cook admitted that the bill took aim at Central Texas and its SOS ordinance. Cook told the House that the bill was not intended to stop jurisdictions from passing regulations; it would simply make sure that they justly compensated landowners for the cost of the regulations. He pointed to Austin as the one jurisdiction that had abused its regulatory ability in order to diminish the value of land.

“They tell you that you can only develop 10 acres over 90 acres of land. They devalue your property in such a way that it’s virtually worthless. Then the city and county purchase back the property for next to nothing,” Cook said. “That’s no different from taking money out of your retirement account and saying it’s in the public’s best interest.”

Most members on the floor termed the Cook bill a “property rights bill” rather than a rollback of city and county’s ability to regulate environmental issues, an assertion that Rep. Eddie Rodriguez (D-Austin) disputed in a series of amendments he put on the floor to protect the city’s ability to set up water quality regulations. Almost all the amendments failed, although Cook did accept an amendment to exclude San Antonio because he considered the city’s water quality standards for impervious cover more reasonable.

“In no way, shape, form or fashion does this stop any city from enacting a clean water ordinance or flooding controls,” Cook told the House. “It just simply says that a city cannot take land without just compensation, using the guise of water quality.”

When a city limits the use of land to only 15 to 25 percent of its area – when it seriously limits the amount of land the landowner can utilize – then that is a taking, Cook said. Cook referred to the city and county taking land at cut rates more than once during his arguments, but he never outlined whether these references were intended to reflect preservation land purchases, or other purchases, by Austin or Travis County.

Alfred Stanley, treasurer of the Texas League of Conservation Voters, said, “I can't say that Austin has done nothing to lower value of land feeding Barton Springs. On the other hand, the transactions that took place between Austin and the landowners were transactions between willing buyers and willing sellers. It seems to me that the argument Cook is making is Austin is damned if we do and damned if we don’t. We’re damned for trying to protect one of the jewels of the United States…and then we come up with some cash for willing sellers, we’re damned for that too.”

Stanley said Austin has paid large sums to buy certain land for water quality protection, some of it costing $60,000 per acre..

Rep. Elliott Naishtat (D-Austin) offered an amendment to exclude Austin, given the region’s strong commitment to water quality, but that amendment also failed to pass. Cook said HB 2833 clearly was intended to address Travis County. When local lawmakers protested that voters had clearly spoken about Austin’s own wishes when the SOS ordinance passed, Cook countered that many of the landowners affected under new water regulations lived outside the city and were never included in the original SOS vote.

“I’d like to see you get 15 percent (impervious cover) passed within the city limits,” said Cook, pointing out that Austin voters were ready to set restrictions on others, not themselves. While Cook said the original bill was intended to target Austin, he refused to bracket it for Austin or Travis County. Any place where local regulations steal a significant value related to the land – in this case, impervious cover set at under 45 percent – that should be considered a legal “takings” that was suitable for just compensation.

None of the arguments of Naishtat and Rodriguez resonated with the House. Most amendments were tabled by a 95-41 margin. All amendments on HB 2833 failed, with the exception of a proposal by Naishtat related to the Capitol view corridor. Cook said he would take that amendment under advisement. Cook termed all other amendments to be a weakening of the bill and a return of current “takings” language to HB 2833.

The bill passed on second reading 103-41-2. It will be up for a third reading today.

Notes from the campaign trail

Battle continues for control of RRISD

In the continuing conflict over political control of the Round Rock Independent School District, Saturday’s trustee election saw some hard-fought battles, but observers say the war is far from over. Battle lines were drawn in March when opponents of a $349 million bond proposal organized to defeat the measure, sending a shot across the bow of the previous administration signaling their displeasure with the status quo.

In Saturday’s election, Vivian Sullivan—a bond opponent—won Place 1 with 39 percent of the votes, defeating challengers Karla Satin and Yvette Sanchez. But in the Place 3 race, bond supporter Diane Cox won by the slimmest of margins over bond opponent Debbie Bruce-Juhlke, who said she is considering asking for a recount. She lost by just 90 votes out of total of more than 8,000 ballots cast.

In Place 6, Raymond Hartfield, the incumbent, handily defeated Mark Maund and anti-bond candidate Dan McFaull.

Sullivan, Bruce-Juhlke, and McFaull had campaigned as a block, calling themselves the “ Sensible Party.” The group was supported by Helping Our Educators make Learning the Priority (HELP), which led the opposition to the bond proposal. But with only one anti-bond candidate, one-pro bond candidate and one incumbent elected, neither side appears to have gained an advantage.

In addition to being one of the most hotly contested races in recent years, the RRISD election was also one of the most expensive. Final expense reports won’t be out until later this week, but at least one candidate, Maund, spent almost $6,500 on the campaign, mostly out of his own pocket. There were also some cries of foul over an outside political group—the Republican Liberty Caucus-Texas—backing the anti-bond coalition. Education Round Rock, which represents teachers and other non-administrative employees, made $500 contributions each to Cox, Hartfield and Sanchez.

The new board will face a number of challenges, in addition to coming up with another bond proposal that will win approval from the district’s voters. The new board must also replace Superintendent Tom Gau l, who is leaving that post on July 31. Gaul was credited with the so-called “ Taj Mahal” bond proposal that contained many items voters considered too expensive or frivolous.

The board is also adjusting to another change after Place 7 Trustee Steve Copenhaver resigned March 28 following his arrest on charges of offering legal services in exchange for sex. He was replaced with former trustee Brig Mireles, who will serve out Copenhaver’s term through May 2006. Mireles served on the RRISD Board from 1997 until 2003.

Newly elected trustee Sullivan said her first priority will be to put the rhetoric of the campaign behind her. “I want things to get back to some civility,” she said. “I don’t think we can accomplish much if we continue with personal attacks and name-calling.”

With the district at 37,000 and growing by an estimated 1,100 students per year, several building projects are becoming necessary to accommodate the influx of students. Sullivan says the board needs to work to craft a bond proposal that meets the district’s needs, but that doesn’t include the “frills” that were included in the March 7 proposal. She said her win was an indication that the voters want more conservative spending.

The district’s operating budget is expected to grow $10 million to $238 million in the next school year. In addition, the district will pay another $9.8 million to the state under the current “ Robin Hood” system, which may still be in effect this fall. District planners say there is a need for several new elementary schools, another middle school and another high school.

Hartfield, the lone incumbent returned to the board in the election, said the size of the last bond election — $349 million – may have overwhelmed many of the voters. “We need to bring these necessary projects to them in smaller increments,” he said.

The board is scheduled to meet on May 17 to canvass and certify the results of Saturday’s election.

Dormant projects rule coming back to Council

Expiration date set for last May

Two weeks ago the City Council gave preliminary approval to an ordinance that would define dormant development projects and backdate the expiration date for such projects to May 11, 2004. The matter will be on this week’s agenda for final consideration. Land use consultant John Joseph Jr., who asked the Council to postpone action on the matter two weeks ago, said last week he is talking to members of the Legislature and has been assured that the Council action runs contrary to their intent. Because the ordinance is outlined in Chapter 245 of the Local Government Code, the city believes the ordinance would be lawful. However, Joseph said he has asked several legislators to draft an amendment to the code that would prevent the city from declaring a project dormant retroactively.

Assistant City Attorney Marty Terry told the Council that the ordinance they were approving “tracks Chapter 245,” the state law governing grandfathering of development. Only one thing had been added to the ordinance that did not appear in the law, she said. That is a provision for an expiration date on permits that previously had none.

Mayor Will Wynn and Council Member Betty Dunkerley said they were uncomfortable with approving the ordinance on all three readings without a public hearing. “After looking at the ordinance, I don’t think people will have a problem with it. But I think just because this wasn’t on the radar screen that they need some time to look at it and comment on it,” Dunkerley said.

Mayor Pro Tem Jackie Goodman said she thought it might be hard for some developers to understand why they did not get more notice about the ordinance, which she said was “obviously under the radar screen.” The Mayor reminded his colleagues that he had just been at the Legislature pleading with members not to take away Austin’s authority to enact its own water quality regulations.

Council Members Daryl Slusher and Raul Alvarez were inclined to approve the measure on all three readings but Slusher pointed out that they could not do that with only four votes. So, he acquiesced to approval on first and second readings, with the idea that it would come back for final approval this week.

Joseph told the Council during their discussion that they should postpone the vote “until everybody understands the far-reaching implications of passing this ordinance.” He said the legislators he had talked to were aware of the city’s authority to create an expiration date on projects, but they were not aware that it could be retroactive. He said the intent of Chapter 245 was to give property owners notice that they had to perfect their grandfathering rights.

The way the city is construing the law, Joseph said, means that his clients will have to spend more money to try to go back and determine what the appraisal of the property was a year ago, among other things.

But the city’s Terry, disagreed. ” Those provisions were enacted on May the 11th, 1999, and the provisions as of May 11th, 1999, authorized the regulatory agency, that is the city, to impose an expiration date of no earlier than May the 11th, 2004. It was a five-year window to give folks an opportunity to satisfy the progress requirements in that provision. It was a five-year safe period for projects to be able to come into compliance. There really are no surprises here. The statute envisions and authorizes the agency to establish the expiration date as of that date.”

Joseph said that some of his clients are still trying to figure out whether they have the grandfathering rights they previously thought they had. He said he does not object to the ordinance itself but to the date on which the projects expired. Joseph said he does not believe that the city is actually trying to circumvent state law but that someone is afraid of a particular project. Joseph indicated that he is also working to find a bill currently going through the Legislature so that a clarifying provision can be attached.

©2005 In Fact News, Inc. All rights reserved.

Mayor Pro Tem post up . . . Both Council Members Raul Alvarez and Danny Thomas have expressed interest in becoming Mayor Pro Tem once Jackie Goodman retires in mid-June. Thomas was first elected in May of 2000 and Alvarez won a runoff the following month, so technically, Thomas has a few weeks of seniority, which may be a factor. Five members of the El Concilio political organization have signed up to speak in favor of Thomas during citizen communications on Thursday Council agenda. One of them, Gavino Fernandez, ran against Alvarez in 2003. They’re making their point early that Alvarez would not be their choice . . . Who’s got the money? . . . According to Rosemary Ybarra in the City Clerk’s Office, the Fair Campaign Finance Fund currently has $91,649.70 to be divided amongst candidates in the runoff who have signed the city’s Fair Campaign Pledge. The only candidate who fits that description is Margot Clarke, so Ybarra expects her to collect the entire amount, although she was uncertain about when that might happen. Opponent Jennifer Kim’s campaign may have the benefit of money from some supporters of Gregg Knaupe and Mandy Dealey, but she will have to work very hard to match the funding Clarke gets from the city. Consultant David Butts has been quoted saying the runoff would cost each $100,000 . . . Cops considering . . . Austin Police Association President Mike Sheffield said Monday he expects his organization to make a decision about supporting Kim by the end of the week . . . Labor pondering also . . . Members of the Central Labor Council have invited Clarke and Kim to come to another interview. Both the police PAC and the labor group, as well as the EMS PAC supported Knaupe, who garnered only 21 percent of the vote. . . Tonight’s meetings . . . The Planning Commission will meet at 6pm in the Council Chambers . . . The RMMA Advisory Commission will meet at 6pm in Waller Creek Plaza . . . The Council MBE/WBE subcommittee will meet in the Board and Commission Conference Room at 6pm. They will hear a presentation on procurement of services from MBE/WBE technical service providers . . . Water Planning meeting set for Wednesday . . . The Executive and Core committees will meet jointly at 7pm at the Dripping Springs City Hall, at 550 E. Hwy 290 West in Dripping Springs. They will talk about possible revisions to the final draft of the water quality plan. Whether the plan will ever have any impact on the ground, however, depends on what happens in the Legislature. . . Cleaning up their act. . . Thirty-seven customers of the Austin Water Utility will be honored at 7:30am today for their pretreatment of wastewater and efforts to protect and conserve water in the past year. The Utility is hosting the awards at the Austin Convention Center. City Council members and top city staff have been invited to the event. An AWU spokeswoman said by controlling the quality and quantity of their discharges into the City's wastewater system, these firms improve public health and safety and help protect the environment. For information on industrial pretreatment, go to

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