Mayor to seek re-election

Downtown vitality requires more commitment, says Wynn

Mayor Will Wynn received a warm welcome from the Downtown Austin Alliance on Thursday, outlining several projects that will transform the face of downtown. Answering a question from Downtown Austin Alliance Chair Jeff Trigger, the Mayor confirmed that he plans to seek re-election in 2006. In response, the audience gave him a standing ovation.

Council candidates may not solicit or accept contributions more than 180 days prior to an election for that office. Expect official announcements to begin in mid-November.

During his address, the Mayor pointed to the Long Center for the Performing Arts, the upcoming First Night celebration, and the redevelopment of the old Seaholm power plant as cultural attractions boosting the vitality of downtown Austin. He also cited the increasing number of retail shops as a sign that downtown is becoming a more desirable place to live. But he warned it would require a commitment from the community to keep the downtown population growing. "Let's set our goal now of having 10,000 residents living downtown within three years and 25,000 within 10 years," he said. Accommodating that population, he said, would also require a commitment to allowing taller residential structures downtown. "We should be cognizant of their proposed height, but the real focus should be on the streetscape, that is, the pedestrian environment and experience,” he said. “If we get that right, then we should want to have more, not fewer, pedestrians pouring out of the buildings onto the sidewalk. In those cases, taller is better."

Mass transit downtown should also be a community priority, according to the Mayor. He said the start of Capital Metro’s commuter rail service in 2007 would be a positive step, but that the city needs to do more to promote mass transit downtown. “What we need to keep our eye on as a downtown group is to push Capital Metro, and have not only Capital Metro but the rest of the community to recognize that we need more rather than less, and we need it sooner rather than later. We can’t sit back and let Capital Metro come up with that plan and that advocacy,” he said. “We as downtown stakeholders need to make sure that Capital Metro gets that support and that the larger community gets behind having a lot more mass transit sooner rather than later.”

Wynn is on the board of directors of the DAA, which he chaired in 1998.

Federal judge upholds city’s smoking ordinance

Sparks says ban is constitutional, but cuts back fines and other penalties

Austin’s voter-approved ban on smoking in bars and nightclubs will remain in effect. U.S. District Judge Sam Sparks upheld the ordinance on Wednesday, but made it more difficult for the city to collect fines of more than $500. He also said the City Manager may not revoke a permit or license to operate without a mechanism for expedited judicial review.

Judge Sparks rejected claims by bar and nightclub owners that the ordinance is unconstitutionally vague, and that the city had not sufficiently spelled out the provisions for enforcing the ban on smoking in public places.

The plaintiffs had argued that the terms “smoking” and “smoking accessories” in the ordinance were not clearly defined, and could be applied to wood-burning stoves, candles, candle holders, and even incense used in religious ceremonies.

“Any reading of the entire ordinance will inform a reasonable person that the ordinance is intended to ban smoking, primarily of tobacco, in public places,” Judge Sparks wrote in his decision. He ruled that both terms passed constitutional muster, and that as a whole, “It is obvious from reading the ordinance that its simple purpose is to protect persons in public places and employees in their occupational environments from second-hand smoke.”

Sparks also upheld the city’s interpretation of the clause in the ordinance requiring business owners to take “necessary steps” to prevent customers from smoking. While he criticized this wording during last week’s hearing (See In Fact Daily, Oct. 13, 2005), he decided that the list of steps offered by the Austin-Travis County Health and Human Services Department to business owners provided sufficient guidance as to how the ordinance would be enforced.

The judge did issue an injunction against two specific portions of the ordinance. He found that the maximum fine of $2,000 dollars per violation was in conflict with Texas law, which sets a maximum fine of $500 unless the city can prove the person had a “culpable mental state”. The plaintiff’s attorneys had argued that it was unfair to fine business owners $2,000 if a customer smoked in their establishment, considering that the owner may not have even been aware that the violation was taking place. Sparks’ order limits the city to fines of no more than $500 unless it can prove that culpable mental state.

Assistant City Attorney Lynn Carter said that would still be an option as health inspectors are called out to investigate complaints. “The penalty is up to $2,000 as long as the city alleges in its complaint that there is at least recklessness, they can also allege knowing conduct or intentional conduct,” she said.

Carter said the city would comply with the second part of the injunction, which dealt with the provision of the ordinance allowing the City Manager to pull any or all city permits from businesses charged with smoking ordinance violations.

“Because a permit or license may be a constitutionally protected property right, this Court enjoins the City of Austin from suspending or revoking any city permits or licenses without allowing for expeditious judicial review,” Judge Sparks wrote.

Carter said that city management had not even considered revoking businesses’ permits, so complying with that ruling would be simple. “The City Manager’s ability to revoke permits is something that we saw as a last resort,” she said. “I think the city will look at that if and when the need for that arises. But again, that is really a last resort, and we are hopeful that through the other means that we have of enforcing the ordinance that the bar owners will comply.”

The plaintiffs in the case have the option to proceed to trial in Judge Sparks’ court, appeal his ruling to the Fifth U.S. Circuit Court of Appeals, or to let the matter stand as is. “We believe that under federal law, federal judges don’t have the power to rewrite ordinances to cure problems with them,” said plaintiffs’ attorney Marc Levin, who indicated that the bar and nightclub owners were seriously considering an appeal. The city may also may move to dismiss the case but that would not prevent the bar owners from appealing.

Planned change to flood plain upsets neighbors

Developer asks FEMA for changes to allow for easier development

A request to rezone a small tract of land along West Bouldin Creek in South Austin from commercial (CS) to family residence (SF-3) drew little interest from the Galindo Neighborhood Association when it came before the Zoning and Platting Commission in September. But after taking a harder look at the case, neighborhood representatives will be at City Council today with concerns and questions about the item.

The developer, Forest Cove Ltd., plans to combine this tract with another one to the south to develop a subdivision. The 1.5 acre tract is located at Barton Skyway and the east side of the Union Pacific rail line. City staff says several issues will need to be resolved, including that most the property falls within the current 100-year flood plain.

According to Kathryn Kawazoe with the Galindo Neighborhood Association, the item slipped through the ZAP hearing without drawing much attention.

“No one is opposed to down-zoning this little triangle of land,” she said. “But the issue is that it would pave the path for the developers to build a subdivision. The developer has also submitted a new 100-year floodplain map to FEMA (Federal Emergency Management Agency) that hasn’t been approved yet.”

Their concern is for future use of the land next to the rail line, Kawazoe said.

“Hopefully, when they acquire the tracks and convert it to commuter rail, they will address the flooding that is happening on both sides of the tracks,” she said. “There are a bunch of issues at play here. There are some 40-odd houses on the west side of the track that flood regularly, and the rail line seems to be the problem. The rail line is a man-made barrier there, and a culvert that runs under the rail appears to be blocked, causing more flooding.”

The new flood plain map, as proposed by the developer, does not include any water coming through the culvert, Kawazoe said. “We had a meeting with city staff and expressed our concerns,” she said. “They seem to be waiting to see what FEMA says, because the city is proposing these changes to flood plains throughout the city and county, and they are waiting to see what happens around the end of February.

“So with the concern about flooding, you don’t want people living there, but you don’t want commercial in there, either.

The item is scheduled for a public hearing before the City Council at 4pm today.

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

Judge hasn’t lost his spark. . . Federal Judge Sam Sparks has a long history of witty writing in his opinions. Unlike many of his brethren, Sparks displays a keen appreciation of the written word, frequently poking fun at the antics of lawyers who appear before him. In his analysis of the anti-smoking ordinance lawsuit, Sparks notes that the plaintiffs used the “everything-but-the-kitchen-sink style” in their petition to the court . . . New gal on the block. . . Heidi Gerbracht, a recent graduate of the LBJ School of Public Affairs, has joined the staff of Council Member Jennifer Kim. She joins Amy Everhart as an aide to Kim. Gerbracht said she will be concentrating on economic development, technology issues, affordable housing and business opportunities for women and minorities . . . Council meeting today . . . The City Council is scheduled to meet at its usual time at 10am. Supporters of the Mexican-American Cultural Center say that the Council will consider three items at 1:30pm to allocate a grant and newly found city money to begin construction of the MACC. The city will transfer $1.57 million from the CIP contingency fund and add $1.5 million in grant funds from the federal Economic Development Administration to build the multi-purpose center, exhibition space, classrooms and office space . . . Appointments . . . The Historic Landmark Commission has two vacancies and only two of seven commissioners’ terms have not expired. The Council may act to remedy that situation with today’s appointments . . . Pfluger Bridge extension plans . . . To see the best option for the extension of the Pfluger Bridge, mark your calendars for this Saturday, from 8am to 2pm During those hours, city staff and design consultants will display boards on the north end of the bridge showing the recommended design. The public is invited. Public Works staff and design engineers have taken a look at various options for extending the existing bridge north over Cesar Chavez, under the Union Pacific Railroad, and to destinations beyond. To see more information on the bridge and the extension, go to http://www.ci.austin.tx.us/publicworks/pflugerbridge_default.htm