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Ballot language stirs ill will

Friday, March 10, 2006 by

Council jousts with SOS over wording of charter ballot

If there was any doubt that this spring’s campaign on the SOS amendment and the Open Government amendment would be rancorous, with accusations of dishonesty—at the least—coming from both sides, Thursday’s daylong battle over the ballot language erased it.

The SOS Amendment proposes to mandate that the city discourage development in the Barton Springs Watershed and prevents it from offering any tax incentives to companies who propose to build there. The Open Government amendment would mandate that top city officials conduct business online, archiving all emails and other communications online, and that officials post emails, calendars and phone logs on the web in real time.

SOS leaders, incensed that the proposed ballot language for the two amendments did not mention the title of either amendment or outline their major provisions in neutral language, accused Council Members of breaking state law by “campaigning” in the ballot language.

“The ultimate goal is to make sure citizens know what is going on,” said SOS Executive Director Bill Bunch. “There is too much that goes on behind closed doors. There’s a secret Chapter 245 Committee that decides grandfathering issues that meets behind closed doors. Most members of the Council met with AMD four months before any of us knew about their plans. Deals are being made and citizens are coming to the party as outsides to the process.”

In turn, Council members—particularly Brewster McCracken—hammered away at both the city’s cost estimates of carrying out the amendments and what they see as the unintended consequences of the measures, saying they had an obligation to inform the voters.

“We are aware of how often the (federal) government gives something a title – “Clear Skies” for an initiative on burning coal – that is the opposite of what the program is really about,” said McCracken. “The language that SOS is proposing here is deeply misleading. It talks about things that will improve water quality, but in reality will make it impossible to do any improvements.”

Raul Alvarez said, "We’re the ones being accused of doing deals behind closed doors….who drafted this? From when the language was drafted there was a lot of holes and a lot of questions left unanswered and these are questions we as public officials have to weigh…" In the end, the Council voted unanimously to put both amendments on the May 13 Charter Election ballot using its own language.

For the SOS Amendment, the Council rejected phrases proposed by SOS such as “take actions that encourage new development away from the Barton Springs watershed,” in favor of “limit the city’s ability to influence development in proposed utility and special districts.” For the Open Government amendment, Council members rejected SOS’s language stating that the measure would “conduct significant business online and (make it) accessible to the public through the internet” in favor of “require the city to create at taxpayer expense an online electronic data system” at a cost of $36 million dollars in the first year.

Voices were raised several times on both sides during the debate, and at one point SOS’s Bunch called a statement made by Council Member Betty Dunkerley “sleazy.” Another speaker, Robert Singleton, called McCracken a “bully” for the way he was questioning SOS attorney Sarah Baker.

Though the debate was over the ballot language of the two amendments, Council Members went to great lengths to point out what they saw as the problems with both of the measures. One major point of contention was a phrase in which the Open Government amendment calls for all email communications to be made available in “real time.”

“What is ‘real time?’” asked McCracken. Mayor Will Wynn called Chief Information Officer Pete Collins to talk about that. “Real time means it is posted online as it is happening,” Collins said. “That means that there will be no time for any screening of information for privacy purposes before it is posted. There is no artificial intelligence program that can do that. We would have to hire staff to screen the materials.”

Collins went on to discuss the process by which he arrived at the $36 million price tag for the Open Government amendment, noting that he expected an ongoing expense of $12 million annually.

Late in the debate, both sides accused the other of bad faith in negotiations that were held to try and keep the amendments off the ballot.

“We tried to work out better language that would have gotten the results they were looking for, but we could not get an agreement,” said Council Member Lee Leffingwell. “We spent a lot of time in meetings but they refused to talk about much of it.” Bunch denied the accusation.

After the vote, Bunch was hesitant to say what SOS might do next.

We’ll look at the actual language…and we’ll look at the law, which gives them a whole lot of room,” he said. “It’s basically an ‘abuse of discretion’ standard, and that gives them a lot of leeway to do a fair amount of campaigning on the face of the ballot. We’ll assess it to see if they’ve crossed that line, whether it’s worth that kind of legal fight.”

Bunch said he would rather spend time educating the citizens on the merits of the proposals themselves, rather than arguing over this ballot language.

The Council’s final act of the matter was to set the ballot order. Mayor Wynn suggested that the citizen-initiated ordinances come first, with Open Government first, then the SOS amendment. The election-oriented measures were next, followed by the state-mandated Council term adjustment, term limits and campaign finance changes, and insurance for the domestic partners of city employees and retirees. The measure on municipal court terms will be last.

Vacant lots added to McMansion ordinance

The City Council approved amendments to what has been dubbed the “McMansion ordinance” last night, closing a loophole created by last month’s ordinance by adding language to cover vacant lots created in neighborhoods platted before March 7, 1974. The Council approved the changes 6-0, with Council Member Jennifer Kim off the dais.

Under the amendment, homes built on such lots would be limited to a floor-to-area ration of.4 to 1 or 2500 square feet.

Council Members Raul Alvarez and Lee Leffingwell said they were uncomfortable with the change, coming so soon on the heels of the original moratorium, but both said they saw the need to close the loophole.

“Are we going to have something that comes up in another two weeks or a month that we say—oh, another loophole?” asked Alvarez.

Leffingwell complained, “Vacant lots should have been included in the first place. I realize it doesn’t make much difference in terms of neighborhood compatibility whether there was a house there before. Despite my discomfort, I am going to support the motion.” Alvarez said he was concerned about people who had been told that the ordinance would not apply to them learning suddenly that it does.

Council Member Brewster McCracken, on the other hand, defended the staff and the additional language, noting the many hours of hard work devoted to improving the original regulations. “We are off on the right foot on this and I'm confident we’ll have a great national model for an ordinance that we’ll all be proud of.”

The interim moratorium ordinance on large-scale residential development on single-family lots was passed in mid-February and will last until June 6, or until the Council chooses to repeal it in order to replace it with more permanent measures.

The Planning Commission recommended taking duplexes out of the ordinance again, given the limitations of the lot size. That idea did not find Council support. The Greater Austin Homebuilders Association, and a second group, called the Duplex Council, supported the recommendation to take duplexes out of the process. The Duplex Council is recommending graduated setbacks and height restrictions on duplexes when a long-term ordinance is formulated.

Only a handful of people addressed the Council last night. Assistant City Attorney Marty Terry outlined the changes. In addition to the inclusion of vacant lots, the changes proposed by the task force and approved by the Council include:

Gross floor area now includes portions of the second and third stories on homes that are covered by a roof but may not be an enclosed structure, including porches, porticos, breezeways and corridors. Portions of a structure that are below grade, such as a basement, can be excluded from the gross floor area calculation. Secondary and attached structures will be included in gross square footage;

Setbacks will be determined by a complicated formula. On a lot on a developed street, the closest and furthest setbacks are thrown out of the equation and the setbacks on the remaining lots are averaged. That equation creates the new setback. The new house or structure is no closer than the closest setback or any further back than the furthest setback. City staff created an additional formula for setbacks on streets where only one or two lots are developed on the street;

There are also additional rules for the waiver process. Besides required documentation, there must be a showing of no substantial adverse impact on neighborhood properties. Requests for waivers will require notification of appropriate neighborhood organizations and members of the task force, as well as the posting of signs on the property.

Term limits, donations return to city ballot

Three terms, $300 per person would be OK under proposed changes

The Austin City Council will ask voters to decide this spring if the city’s regulations for campaign funding and term limits need adjustment. The Council approved placing measures on the May 13 ballot raising the limit on individual campaign contributions from $100 to $300 in City Council races and allowing Council Members to serve three terms instead of just two before collecting signatures from registered voters in order to run again.

“This particular change actually maintains term limits, it just adds one additional term,” said Council Member Raul Alvarez. “There are still term limits. Anyone wanting to serve beyond three terms would still have to go through the petition process that is in place.”

Allowing for three terms of three years each, Alvarez said, would allow voters to send experienced members back to the dais while still holding onto the goal of limiting one person’s overall time spent in office. “When you look back over the past 20 or 30 years, there aren’t that many Council Members that have served more than two terms. When we think about the contributions of folks like Gus Garcia, Jackie Goodman, and Daryl Slusher…I think we find that we do lose a lot when we do lose Council Members such as that. If folks want to continue serving, and the community is supportive of the work they have done…it seems like giving them the opportunity to serve one more term would be a reasonable change to the charter at this time.”

The measure is crafted to apply to candidates first elected to the Council this year, meaning that current Council Members will still have to abide by the two-term limit. The change will also eliminate the loophole in the existing rules allowing a Council Member who has served two terms in one place to simply run for a different seat on the Council.

The Council had previously discussed the campaign finance proposition last week. In addition to changing the limits on individual contributions, the measure will also adjust the boundaries for which contributions are considered to come within the city limits and allow retired Council Members or unsuccessful candidates to raise funds to retire campaign debt.

The charter amendment does not specifically create a new limit for the amount an individual can contribute to a political action committee that in turn contributes to candidates in local races. However, the Council is expected to take up that issue at its next meeting in two weeks and will likely adopt restrictions in the form of an ordinance.

Fred Lewis of Campaigns for People spoke to In Fact Daily as he was waiting for the discussion of the amendment. He said he favored putting a limit on the amount a person could contribute to a political action committee and how much one PAC may contribute to another.

However, Lewis said he and other campaign reform advocates would be satisfied if the city would make those rules in the form of an ordinance rather than as part of the amendment—so long as they do it before the May 13 election.

“The federal law since 1974 has limited the amount individuals and PACs can give to PACs, and that has been upheld in 1976 in the Buckley case and in the McConnell case in 2003,” he said. “And I think that it’s fair to say if you asked 50 election law professors in the United States what is the current state of the law, they would tell you that placing limits on how much individuals can give to PACs is constitutional. Now, there are people who wish that weren't the law and who are arguing that we should change the state of the law.”

But allowing unlimited donations to PACs would be a mistake, Lewis said. “You have to limit how much an individual can give to PACs in order to prevent them from sending lots and lots of money through different PACs…and therefore get around the contribution limit. So limiting how much individuals can give to PACs is very common as a sort of anti-circumvention measure.”

The Council also voted to place a charter amendment on the ballot that would alter the terms served by municipal judges. Instead of having to be reappointed every two years, those judges would be allowed to serve four-year terms. Judges who become candidates for an elected office would still be forced to resign their position.

©2006 In Fact News, Inc. All rights reserved.

BOA goes to seven . . . The Council voted yesterday to expand the Board of Adjustment from five to seven members. The reason for the change seems to be the need to ensure that enough board members attend each meeting to have a quorum without the need to call up reserves. The Council must now appoint two new members to this important statutory board . . . Filing deadline approaches . . . Place 2 candidate Eliza May filed the signatures to place her name on the May 13 ballot to take the seat currently held by Council Member Raul Alvarez. Hector Uribe and Mike Martinez, both of whom have announced their intention to seek the seat, can file either today or Monday, which is the deadline . . . Democrats gather . . . U.S. Senate Democratic Leader Harry Reid's national "Red State" tour will bring him to Austin today, along with local Congressman Lloyd Doggett and State Rep. Garnet Coleman, Chair of the Legislative Study Group. The trio will appear at the Speaker's Committee Room, Room 2W.6 at 4pm today to criticize “why Republican incompetence has made our homeland less safe.” Hurricane Katrina and port security will be among the highlighted topics . . . TOD changes . . . The Council approved two amendments to the city’s transit-oriented development district ordinance last night. First they approved an amendment to put no boundaries on the Oak Hill TOD site. Then they agreed to send all TOD cases to the Planning Commission, rather than splitting the cases between the Zoning and Platting Commission and the Planning Commission. . . Tree planting . . . The Austin Parks and Recreation Department’s Forestry Division will be planting 31 large pecan trees at Town Lake Park on the west end of Auditorium Shores at 9am today. This Friends of the Park tree donation by Susan Toomey Frost is being given in honor of her father, John Marshall Toomey, her uncle, Dan Toomey, and her grandfather, Robert P. Toomey. Robert Toomey is revered in the Parks and Recreation Department for planting the pecan trees along Barton Springs Road. Elementary school age children will be joining Parks and Recreation staff in the tree planting . . . Austin honored . . . Austin has been named among the top three U.S. cities for dealing with issues involving disabilities. Austin was third behind Cambridge, Mass. and West Hollywood, Calif. in the fifth annual Accessible America contest, sponsored by the Washington, D.C.-based National Organization on Disability. Cities are recognized for their focus on disability issues and successful design of programs, services and facilities accessible to residents and visitors who have disabilities. Austin was cited for its work with homebuilders and developers to promote voluntary accessibility designs and for an online survey about disability standards. The city will receive a $10,000 cash award sponsored by Wal-Mart Stores Inc. . . . Cap Metro survey . . . Capital Metro is hosting an online survey to gain more public insight on further development of the All Systems Go Long-Range Transit Plan. The survey is based on recommendations made at the Future Connections Study Workshop held on February 4, where some 200 attendees provided Capital Metro with suggestions on upcoming projects. The brief survey is accessible online through the All Systems Go home page at . . . Next week . . . In Fact Daily will have an edition on Monday of next week but staff will take the rest of the week off for Spring Break . . . Finally . . . Let’s put it off . . . The Council postponed for two weeks consideration of a compensation package for City Auditor Stephen Morgan. Council Member Jennifer Kim’s memo suggesting that Morgan might be fired made it into the American-Statesman on Thursday.

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