Walter Brown, father of Wimberley planning, dies

Walter W. Brown, Jr., who served on the first City Council for the Village of Wimberley and played a critical role in its planning, passed away October 7 at the age of 62 after a short bout with cancer. Brown also served on the Austin Planning Commission during one of the city’s high-growth spurts between 1988 and 1998. He is remembered as a man of great integrity, fairness and honesty, a man who never lost his calm demeanor and sense of humor.

His wife of 33 years, Sue Johnson, his sons Rafe, Benjamin and Austin Brown, his sister Diane Moore and grandchildren Christian, Sebastian, Audie, and Alexander survive him.

Wimberley Mayor Steve Klepfer said he was particularly appreciative of “Walter’s critical role in the forming of our local government and the initial work done in preserving the small town flavor of Wimberley. He was instrumental in getting those first ordinances written, including sign regulations and land use control, which just basically set the tone for our small town look and feel.” Klepfer noted that Brown helped Wimberley, which was incorporated in 2000, to get off the ground in terms of planning and zoning. “Walter’s planning expertise fit in perfectly with the job that needed doing at the time—drawing up the city’s comprehensive plan, subdivision and zoning ordinances,” said Klepfer.

Former Mayor Pro Tem Jackie Goodman, who served on the Planning Commission with Brown, said, “He could defuse a situation that was starting to get emotional or a little volatile. He would just step up with an easygoing comment and put some perspective to the issues. He never raised his voice and he was just always there with a willingness to keep everybody on an even keel, get everybody back to the table.”

Zoning and Platting Commission Chair Betty Baker worked with Brown both while she was on city staff and as a member of the Planning Commission. She said, “The thing that I remember most about him is that he truly cared about Austin. He based his comments and actions on how he really felt because he really cared. He was an awfully good friend.”

At the time of his death, Brown was working as a land planning consultant to the cities of Dripping Springs and Webberville. On Tuesday, the Dripping Springs City Council approved a resolution commemorating Brown’s passing and thanking him for his contributions to their city and the region. That resolution notes that during his time as a consultant, Brown “contributed his wisdom, experience, and planning expertise to the creation of the city’s first comprehensive plan, first water quality protection ordinance, and the adoption of new regulations addressing historic preservation, subdivision platting, development agreements, site development, signs and zoning.”

Attorney Jerry Harris remembered Brown as “about as calm and collected a soul as I've ever run into in the municipal government arena. He was quick to listen, slow to talk and impossible to anger. He was always just so gracious . . . a prince of a gentleman.”

Brown was a skilled carpenter who devoted 33 years of professional life to work in the construction industry, including 19 years with Faulkner Construction Company where he worked as a Project Manager, Business Development Manager and Marketing/Government Relations Director. Following the merger of Faulkner with Landmark, now called Faulkner USA, Brown worked for the Workman Corporation. In the 1990s, he also served as construction manager for the State Preservation Board managing the Texas Capital Building Restoration project.

Born in Charleston, South Carolina in 1943, Brown's enthusiasms kept him moving during his 62 years and he will be missed by a wide-ranging group of friends and family found in cities extending from coast to coast. A passionate man of many interests, Brown showed an early devotion to literature and writing. He received his BA in English from the University of Kentucky, followed by a Masters Degree in Creative Writing from San Francisco State. As a young man he taught literature and writing at the University of Illinois and the University of Kentucky. He eventually changed careers, leaving the academic world but not before publishing several poems.

He was generous with his time, composing well-crafted pieces commemorating important events when called upon. His family and friends relied on his creative gifts throughout his life, keeping him busy artfully revising an endless stream of rough draft poems, stories, proposals, homework assignments and letters.

A Community Celebration of his life will be held on Saturday, October 22 at 10am at Blue Hole Regional Park in Wimberley. Details about the service can be found at www.wbmemorial.com.

Seaholm substation relocation under study

Redevelopment of old plant site underscores need to move substation

City officials are studying a variety of ways to relocate the electric substation and control center near the soon-to-be-redeveloped Seaholm Power Plant. Members of the Council’s Land Use and Transportation Subcommittee heard city staff Monday outline the options currently under consideration by Austin Energy.

According to Cheryl Mele, AE’s Senior Vice President for Electric Service Delivery, whatever the city does with the current substation, which sits just east of the Seaholm complex along Cesar Chavez, a new substation will have to be built first.

“Time and money can accomplish most anything,” Mele said. “But it will take a minimum of three years to plan and construct the least expensive option, and the area would not be available for redevelopment until the new site is completed, the load is transferred and the old site is remediated.”

The city is in the process of redeveloping the Seaholm plant into a mixed-used project that also will serve as a transit hub for the community. Currently, the substation at the Seaholm site serves more than 1,000 mostly commercial customers in the downtown area with both overhead line and underground network power distribution.

Mele told the subcommittee that there are four main options being studied for the substation site:

• She outlined the pros and cons of each option, noting that with the first two the city is left with a larger area to redevelop, but in each case, it would be difficult to find real estate close enough to the original site that was not prohibitively expensive. The third option would give the city the largest area for redevelopment, but at the highest cost.

That left the fourth option as the one most palatable to subcommittee members and city staff. Chair Brewster McCracken said leaving the substation in place, walling it off from the rest of the area and extending the Second Street grid seemed to “accomplish the most for the least amount of time and money.”

Mele said the fourth option was a compromise which would not completely open up the area, but would clear approximately 1.4 acres fronting Cesar Chavez for redevelopment, and for an additional $10 million, the ECC location could be redeveloped too.

“Our next step is to refine the time and cost estimates, investigate properties available for any relocations, and study possible routes for the underground duct banks out of the area,” she said. “The new location of any substation needs to be within a mile or two of the original site, and east of MoPac. It needs to be near the Central Business District.”

Austin Energy General Manager Juan Garza said the least costly option, the fourth, could be paid for without raising electric rates, but that it would be a strain on the utility Capital Improvements Program budget. He did not address how the other, more expensive options would be funded.

The Austin Energy staff said it would continue to study the options and return to the subcommittee with a matrix that spells out more specifics of each plan, so that the panel can make a recommendation to the full Council at a future date.

Judge mulls bar owners' arguments against smoking law

Sparks grills both sides over constitutional rights, federal jurisdiction

Federal District Judge Sam Sparks will wait until next week to rule on a legal challenge to the City of Austin’s smoking ordinance. Attorneys for both sides made final arguments Wednesday afternoon, but the judge gave the parties until 5pm on Monday to submit written briefs. Judge Sparks also indicated he would be doing additional research into whether the conflict involved issues that fall under the federal court’s jurisdiction.

“I’m not prepared to rule from the bench,” he said. “I’d like to consult some authorities on what effect the interference of the federal court would have on this ordinance…even if I thought parts of it were hanging out over the railroad tracks.”

During closing arguments, the judge questioned both attorneys about the constitutional issues related to the case. Plaintiff’s attorney Brian Bishop first said the issue was a financial one, since the bar owners and employees had suffered a drop in revenues. But Sparks urged him to try another approach. “Business loss is not a constitutional right. This is not a First Amendment case,” he said. “Your best bet is due process, and I have yet to see any injury. Not one of your clients has yet to see a criminal citation. I’ve got to have a constitutionally protected right, and at least one of your clients has to have standing for me to get involved.”

Sparks suggested that a business would have to fight, and lose, a case in municipal court before the issue was ready for adjudication at the federal level. “It’s clear that only the one that has an injury has standing,” he said.

“The right to earn a living is a constitutionally protected right,” Bishop countered. “They’ve suffered losses. What do we do if they never charge us with a violation? We’re subjected to more severe penalties just with the ordinance being on the books. We are going to be out of business before we can be charged with a crime.”

Bishop argued that the ordinance was too vague to be consistently enforced, and that the definitions of smoking materials and accessories were overly broad. He also took issue with the lack of specific procedures within the ordinance itself for determining a violation or allowing for an appeal.

Although the city has established guidelines for appeals and provided businesses with a list of steps they should take to avoid citations, Bishop argued that those could easily be changed. The city’s provisions for investigating violations were also flawed, Bishop said, since inspectors did not offer Miranda warnings to business owners or customers when investigating reports of a violation. Should a business owner report a smoking violation in an attempt to get inspectors or even APD to enforce the smoking ban, he said, the business itself could be fined. “If we call someone and expose our selves to being charged, there is a constitutionally protected right against self incrimination,” Bishop said.

Sparks also had some tough questions for the city’s attorneys. He asked why they sought to have the case removed from state district court to federal court, noting that “mine is a court of limited jurisdiction.” Assistant City Attorney Lynn Carter responded that the claims of vagueness were within the court’s jurisdiction.

Assistant City Attorney Nancy Matchus, who argued that the city had presented sufficient evidence to establish that the procedures associated with the ordinance should be sufficient for businesses, joined her. She compared the language requiring business owners to take “necessary steps” to prevent smoking to state laws governing establishments that sell alcohol. “They have to take steps to make sure that minors are not drinking,” she said. The city has instructed businesses to post “no smoking” signs, remove ashtrays, and follow normal procedures for customers who continue smoking and refuse to extinguish their cigarettes or leave.

As for the plaintiffs’ claims that the terms of the ordinance were overly broad or poorly defined, she suggested using plain English definitions. “We do not believe the words smoking, smoking accessories, or public place are vague,” she said.

For Judge Sparks, the issue may come down to the validity of the ordinance’s directive that business owners must take “necessary steps” to prevent smoking, instead of the phrase “reasonable steps”. “It’s a whole lot more difficult to defend that your conduct was reasonable than you failed to take the necessary steps to stop someone from smoking,” he said. “I’m a little bothered by that.”

At one point during testimony on Wednesday, the judge went even further with his criticism of the language. “That’s the trouble with zealots,” he said, discussing the ordinance language with Austin-Travis County Health and Human Services Department Director David Lurie. “They over-reach.”

After the hearing, Rodney Ahart with the American Cancer Society said the language should be sufficient to withstand scrutiny. “I think it’s pretty understandable the interchangeable words of ‘reasonable’ and ‘necessary’. I think that this ordinance is definitely based on public health,” he said, “and people who are very, very adamant about providing protections from second hand smoke. If those are zealots, then I guess the 40,000 people who signed the petition to put it on the ballot would be zealots I guess.”

Attorneys for both sides indicated they would be filing additional materials in response to Judge Sparks’ comments from the bench. In addition, a new business is seeking permission to join the case. Click’s Billiards, which has received a warning from city inspectors about violations of the smoking ordinance, will seek permission to intercede.

In the meantime, the city will continue enforcing the ordinance on the books. A previous comment by the judge had prompted inspectors to proceed with caution, but he offered further clarification during Wednesday’s hearing. Austin-Travis County Health and Human Services Director David Lurie said afterward that “the ordinance is still in effect and still enforceable. We’ve had good voluntary compliance citywide. Frankly it’s overwhelmingly clear to the majority of the people in this community as to what this ordinance is about and what’s expected, and I believe that’s why we’ve experienced such good compliance to date.”

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

A push for more inspectors . . . Harry Savio of the Home Builders Association of Greater Austin has been visiting Council members this week to ask for more building inspectors. According to Savio, the two inspectors the city added into the current budget will not put solve the problem of delays caused by an insufficient number of inspectors. He said the home builders would like to see the city add six employees to the current staff of 13 inspectors . . . No City Council meeting tonight . . . The city has something promising a lot more fun for those who make it to City Hall tonight, however . . . Films debut tonight . . . Reflecting Austin's reputation as a high-tech leader with great cultural vitality, the multi-media program "Faces of Austin" debuts at Austin City Hall tonight The public is invited to the program debut and reception for the filmmakers, beginning at 5:30pm. Subjects of the films include Eeyore’s Birthday, the Broken Spoke, Bboy City dancers and music from Del Castillo, Don Walser and Alvin Crow . . . Bond hearing tonight . . . The city’s Bond Election Advisory Committee, Public Communication and Outreach Subcommittee will host a hearing at 7pm tonight at the Dove Springs Recreation Center, 5801 Ainez Drive . . . . The Round Rock City Council meets at 7pm at Round Rock city Hall, 221 Main Street . . . Telecom tidbit . . . The Austin Telecommunications Commission will be touring the Austin History Center on Nov. 9, with a specific eye to archiving, specifically the archiving of Austin Music Network programs. Following the tour, the commission will hold its annual retreat . . . Aulick’s salary . . . CAMPO Executive Director Michael Aulick does not want folks to think he got a better deal than other city employees. In Fact Daily reported that he received a 5.5 percent raise, but Aulick says his raise was 3.5 percent, plus the 2 percent one-time bonus—just like everyone else on the city payroll . . . Anti-smoking group fined . . . Onward Austin, the political committee that supported the smoking ban measure in the May 2005 city election, has been fined $500 by the Texas Ethics Commission for failing to disclose a $35,000 contribution of money by American Cancer Society. The complaint was filed by Wes Benedict on May 10. The TEC's order is found at http://www.ethics.state.tx.us/sworncomp/orderlst.html. . . . Relative peace at the SWAC . . . It was hardly a love-in, but things are going a bit more smoothly these days between members of the Solid Waste Advisory Commission and city Solid Waste Services Director Willie Rhodes. Commission members clashed with Rhodes last month over how he planned the transition from private to city-run garbage pickup in several blocks of the downtown area…so much so that the panel refused to recommend the new collection contract to the Council. (See In Fact Daily, Sept. 21, 2005) Last night, Rhodes explained that some of his comments were misunderstood, and all private contracts would be allowed to run out before the city takes over service. That made commission members happy and they voted to make sure that Rhodes’ comments were mentioned in a letter that will be sent to the affected business owners. The commission, however, again failed to recommend the contract to the Council, allowing it to go forward without a recommendation. . . . Courthouse dedication . . . Vernon Jordan, civil rights lawyer and Presidential adviser, is scheduled to speak at the dedication ceremony for the Heman Marion Sweatt Travis County Courthouse on October 21. The Travis County Commissioners voted to name the courthouse for Sweatt, whose 1946 lawsuit opened the University of Texas law school to blacks. The ceremony is co-hosted by the Commissioners Court and the Austin Black Lawyers Association. The Travis County Courthouse at 1000 Guadalupe Street was built in 1930.