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Seeking assurances, Council puts off action on extending water service

Friday, June 28, 2013 by Michael Kanin

Austin City Council members once again stepped into the legally difficult world of regulation via development agreement Thursday with their postponement of two items in the hope that a developer and third-party environmental groups might memorialize an agreement that the city cannot – by state law – make.


Mayor Lee Leffingwell expressed concern about the legal realm into which Council members were heading, but made it clear that his reading of the Council member was that they were indeed moving in that direction – an action with which he appeared to disagree.


At issue is a pair of Austin Water Utility Service Extension Requests that would allow a development project located mostly in the southwest portion of Austin’s extraterritorial jurisdiction to continue. The properties are located in the city’s Drinking Water Protection Zone. However, they are also mostly placed outside of city limits in Austin‘s extraterritorial jurisdiction. That limits staff and Council’s ability to enforce the Save Our Springs Ordinance.


Still, the project developer had offered verbal, non-binding commitments that included promises to offer SOS Ordinance-quality water protections for the bulk of the project’s lots. Leffingwell argued that would offer the city a much better level of water quality protection than it could otherwise enforce.


“I think it’s clear – it’s very clear – that this proposal is much superior than what could be done on the ground as it is right now,” Leffingwell said.


The Mayor initially sought to establish that even a private restrictive covenant could be legally problematic. “As to the question of a private restrictive covenant versus a public restrictive covenant, there is no difference in your mind?” Leffingwell asked counsel for the developer, David Hartman.


Hartman confirmed that that is the case.


Later, as debate continued, Leffingwell highlighted what remained for him a problematic issue. “All Council is asking for – I’m not asking for – is that you go back and document, legalize the promises that you made right here,” he said.


That statement kicked off a brief back-and-forth with Council Member Kathie Tovo, who wanted to be clear that Council was not asking the developer to make a legal commitment. “I just want to be clear that my vote in favor of the postponement is not asking you (the developer) to legalize and document anything,” she said. “It is just allowing you time to talk with the other interested parties.”


Leffingwell said that he “made that comment based on comments from the speakers, (Save Our Springs Alliance Executive Director)  Bill Bunch for example – he specifically said, ‘they say all this, but we want guarantees.’”


Indeed, Bunch urged Council members to postpone the service extensions so that an agreement could be formalized. He told them that he is looking for full compliance with SOS rules.

With the city unable to enforce an agreement that might preserve the developer’s promises, Tovo suggested that he could enter into a restrictive covenant with either Save Our Springs or the Sierra Club that might legally preserve the offer. Assistant City Attorney Clark Cornwell told Council members “so long as there is no city involvement in that condition,” such a deal would be legal.


Of course, because the city would be the entity to enforce the agreement, that would leave an open-ended question about how it could be regulated.


Nonetheless, Council members initially postponed the item Thursday morning. That move came without the presence of Hartman. When Hartman appeared after lunch, Mayor Pro Tem Sheryl Cole moved to reconsider the action. That offered Hartman an opportunity to weigh in.


Hartman immediately homed in on the legal concerns, noting that city legal told him and his client that an agreement of the sort proposed is “prohibited by state law.” He further noted that “when law department was asked if we could do that with (Save Our Springs) or a third party, the (response) was it’s a grey area at best.”


The reconsideration also allowed Council Members Bill Spelman and Chris Riley to further clarify the situation. “There is no prohibition on the applicant entering into any agreements he wants to. The prohibition is on our requiring him to enter into an agreement,” Spelman argued.


Riley echoed that statement. Cole then moved to make no change in the Council’s original postponement.


Hartman was diplomatic. He told Council members that his client would be willing to request an extension of his site plan expiration – set to come due in July – so that the developer could “if it’s the Council’s pleasure (that he)…go forth and further explore this.”


The items will be back on Council’s August 8 agenda. Save Our Springs and the Sierra Club have until then to work out an agreement with the developer.

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