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Opponents slow takings bill

Tuesday, May 17, 2005 by

Environmentalists, cities, counties oppose legislation

Sen. Todd Staples (R-Palestine), faced by strong opposition from a variety of environmental groups, failed to get his substitute for the takings bill, House Bill 2833, out of the Senate Natural Resources Committee on Monday.

HB 2833 has drawn opposition not only from environmentalists but also from cities, counties and neighborhood associations. The Conference of Urban Counties calls it the “colonias bill,” because almost anything a county now regulates could be considered a taking. Those opposed to the takings legislation showed up in force yesterday.

Sen. Gonzalo Barrientos(D-Austin), showing sympathy to Austin’s environmental community, held the gavel at one point during the hearing, giving broad latitude to many of the early speakers who were opposed the bill. James Marston of Environmental Defense argued that his rule of thumb was that if a bill needed more than five exceptions, it was probably a bad bill that needed to be redrafted. HB 2833, after its whirl on the House floor, has more than 15 exceptions, many of them poorly crafted, he said.

“I’m not sure this is needed,” Marston told the committee. “If you think a bill is needed, then it needs to be much narrower. There ought to be a true balance.”

Attorney Dan Wheelus, who represents the Texas Landowners Conservancy, helped draft the bill. Wheelus said the legislation was aimed at jurisdictions that are no-growth or anti-growth – city or counties that attempted to apply standards of no more than 15 percent impervious cover.

“The target of this legislation is the use of regulations to accomplish more than environmental goals – to accomplish no growth or slow growth goals at the expense of the individual property owners,” Wheelus told the committee. “We note the bill does not prevent any local government from adopting or enforcing ordinances. If they exceed the parameters of the bills by Staples’ and Rep. Robby Cook, however, then they have to pay for the privilege of doing so.”

Hill Country resident and venture capitalist Gene Lowenthal, who served on the regional water quality planning team, said HB 2833 went far beyond a “no growth” stance. In fact, his take was that any developer could choose to build at 20 percent impervious cover and then claim the local city had forced that choice, making the local city or county reimburse for the “taking.”

“This bill makes no distinction between a suburban subdivision or a country estate,” Lowenthal said. “It just blindly assumes that property rights are linked to the ability to develop at 45 percent. This is arbitrary and dangerous because very few residential subdivisions in our area ever approach 20 percent impervious cover.”

Any developer choosing to use large lots and green belts – the common choice of Austin developers – could claim that they were ‘victims’ of impervious cover limits, Lowenthal said. He considered that to be a gaping loophole in the bill, which he did not think the Texas Landowners Conservancy had addressed.

“To me, this says if I want to build at 20 percent – even if that’s highest and best use – I can do that, and then I can go and get a taxpayer handout,” Lowenthal told the committee.

The Texas Municipal League also weighed in on the bill, saying it would be a tremendous step in the wrong direction when it came to a city’s abilities to regulate land use. The original property rights bill, passed by then Rep. Susan Combs, was intended to recognize that cities are given specific rights by their residents to regulate issues such as zoning and land use. That was the purpose of creating cities.

Neither Staples nor Senate Natural Resources Committee Chair Sen. Ken Armbrister (D-Victoria) appeared particularly sympathetic to those opposed to the bill. When Marston said the bill was written so broadly that it applied to almost everything a city or county regulated, Staples suggested he submit language. Everyone acknowledges the problem, said Staples. Now was a time to find the right solution, rather than getting bogged down with objections to the bill.

Staples did tell the committee he had met that afternoon with Austin Assistant City Manager Laura Huffman to discuss some of the concerns the city had with the bill.

“I hate to say it, but there was no magic pixie dust that was out there that we could wave and make some solution, but I think there was a more clear understanding of the objectives of the bill,” Staples said of the meeting.

Neighbors organizing against Wal-Mart

ZAP will hear request for reconsideration tonight

Neighbors of a proposed Wal-Mart Supercenter on FM 620 near Lake Travis will be at tonight's Zoning and Platting Commission meeting, calling for the ZAP to reconsider some environmental variances the commission approved for the site earlier this month. Neighborhood groups say they were not properly notified and want the city to adopt special notification procedures for big box retail projects along with special regulations for those larger retail stores.

"Development at this site could affect close to 50 neighborhoods within 15 ZIP codes that are within or border the Bull Creek Watershed," Tony Carey with the Comanche Trail Community Association said of the FM 620 location. "The overwhelming majority of these neighborhoods were not notified of this development because of the Zoning and Platting Commission's current and existing notification guidelines. But these families will be impacted."

Fellow Comanche Trail resident Jeanne Graves confirmed that the group is not alleging that the city or Wal-Mart violated notification procedures in the variance case, but rather that those procedures are inadequate. "We are more than the notification requirement in distance. We learned of this a few days before the hearing and requested a postponement that we might speak to the Zoning and Platting Commission," she said. While neighbors were under the impression that a postponement was a sure thing, the commission went ahead and heard the case, endorsing the variance requests. "We are asking the Zoning and Platting Commission to reopen the environmental variance case which was approved without our input at their May third meeting," Graves said.

Neighborhood groups, small business representatives, and environmental organizations are forming an alliance to oppose the company's plans to build on FM 620. "We believe that approving Wal-Mart to build at this location sets a bad precedent by allowing a damaging big-box store to be developed on an environmentally-sensitive site, because this location is in the drinking water protection zone," said Harold Daniel, president of the Save Barton Creek Association. Residents say they are not convinced by the company's pledges to preserve environmental quality in the area. “These individuals have not been able to prevent the damage that Wal-Mart has done to the environment in the past," said Carey. "The history of abuses have proven that these are promises they cannot keep."

In addition to a rehearing of the variance request, the groups are calling for more systematic changes to prevent future big-box retail projects from taking neighborhoods by surprise. The first of those is expanding the territory for city notification on zoning change requests. "Today's Supercenters are larger than five football fields and come with 20 acres of parking, yet our current code only notifies you if you live within half a city block of these projects," said Susan Moffat with the group Austin Full Circle. "The impact range of Supercenters is measured in miles, not feet, and we must adopt new notice requirements to reflect that reality."

The second change being advocated by Moffat's group was previously proposed by LiveableCity following their big-box retail study last year (see In Fact Daily, October 7, 2004). Both Austin Full Circle and LiveableCity want the city to require big-box stores to obtain a conditional-use permit, which would only be granted after a community impact study. "It's a device that would measure the economic impacts, increased infrastructure, increased road building and maintenance, housing and health care, economic impacts, neighborhood impacts, all of the things that would cost the community money, and then weigh that against any possible community benefits," said Moffat. "If the net benefit to the city was positive, then the project would get a green light. We don't want companies coming into Austin that would not pay their own way."

Moffat emphasized that the proposed changes were not designed specifically to keep Wal-Mart from building new stores in Austin. "Honestly, I am not focusing on Wal-Mart in particular in this case; these are common sense ordinances we need in place," she said. "Wal-Mart may just be today's bad guy. We really need to have a mechanism as cities to understand when large projects are coming in—Is this going to help us or is this going to hurt us? That's not directed at anyone in particular. In our minds it is just a very common-sense zoning ordinance given where we are today with huge multi-national chains and all of that money leaving town to go to some distant corporate headquarters.

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

Tonight’s meetings . . . The Mexican-American Cultural Center Advisory Board will meet from 6-8pm tonight at the Parks and Recreation Department, 200 South Lamar . . . The Resource Management Commission will meet at 6:30pm in the Boards and Commissions Room at City Hall . . . The Planning Commission’s Codes and Ordinances Committee will meet at 6pm in Room 2017 of City Hall. They will discuss amending the Land Development Code to remove language a section that allows automatic approval of a variance application if the Sign Review Board does not act on the variance request by the 46th day after the application is filed . . . The Zoning and Platting Commission will meet at 6pm in the City Council chambers . . . Canvass of votes . . . The City Council will canvass the May 7 election during a special meeting at 10:30am today. Barring an unforeseen glitch, the Council will certify the election of Lee Leffingwell and Betty Dunkerley . . . Place 3 runoff candidates Margot Clarke and Jennifer Kim will participate in a drawing at noon at City Hall to determine which name will appear first on the June 11 ballot. . . Mayor Will Wynn will proclaim today as Austin Wranglers Day to celebrate the end of the football team’s second season. Accompanying the proclamation will be appearances by the Lady Wrangler Dancers, team president Doug MacGregor and General Manager Glyn Milburn. Events will begin at City Hall Plaza at 5:30pm. . . Smoking lobby still alive . . . Keep Austin Free may have lost the smoking referendum at the polls on May 7, but it has not quit fighting the ordinance. Paul Silver, owner of 219 West, sent an email Monday to supporters (and the media) seeking financial support for his group’s planned legal challenge to the ordinance. The email also contained a list of local night spots that contributed to Keep Austin Free’s cause, and asked supporters that if their favorite venue was not listed to go and ask them why they didn’t fight the anti-smoking effort. . . Symphony prepares for summer season. . . The Austin Symphony Orchestra will begin its third annual Hartman Foundation Concerts in the Park series on May 29. The concerts are free and each is set for 7:30pm Sunday at Wooldridge Park, 9th and Guadalupe, through August 21.

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