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Toll road agency, tech firm square off in court

Wednesday, October 5, 2022 by Jo Clifton

At the end of a lengthy hearing Tuesday, Judge Eric Shepperd of Travis County Court at Law No. 2 told lawyers for the Central Texas Regional Mobility Authority and the technology company suing the agency he would be back with a decision as soon as possible on whether the toll road authority must repair drainage problems related to construction of the U.S. Highway 183 toll road.

Tech 3443, which is turning the former Motorola campus in East Austin into a mixed-use innovation district, is seeking to force CTRMA to fix a severe water pollution problem it claims the agency caused by poor planning and using negligent construction techniques.

After the hearing, Tech 3443 CEO Adam Zarafshani told the Austin Monitor, “The CTRMA should stop delaying and poisoning our environment and just finish the project.” He added, “I think the court listened to what we had to say and I’m looking forward to understanding what’s next.”

He told the Monitor that the group wants to get on with its development, fix the road, and “treat the dirty water coming from the expansion of 183.”

The argument is about a detention pond on the east side of U.S. 183, about a mile south of Martin Luther King Jr. Boulevard. According to documents from the tech firm, CTRMA dug up the pond in 2016 to capture rainwater runoff from the highway during large storms. Unfortunately for Tech 3443, one side of the pond is land that runs underneath the company’s road, Semiconductor Drive. The company complains that the toll agency did nothing to fortify or strengthen the land, “treating it essentially as a dirt wall on the side of a bathtub.”

“Naturally, the wall started to erode when heavy rains filled the pond, soon taking out Semiconductor Road with it,” according to a statement from the tech company.

Quoting one of CTRMA’s own engineering experts, Tech 3443 said water from the pond “is eventually going to collapse that road.” When questioned at the hearing, Tech 3443’s expert said there was no way to know when that might occur.

Charlotte Gilpin, an engineer from K. Friese & Associates, said the mobility authority was complying with all state and federal laws, and that the runoff problem was created when the road was built, not when the detention pond was added.

Engineer Bill Loftus, testifying on behalf of Tech 3443, told the court, “The CTRMA has absolutely butchered the management of this project.” In building the detention pond, he said, they cleared trees and regraded the site. They have also added “concrete low-flow channels … but they haven’t built the fourth side of the bathtub. … We have a three-sided pond that does not retain water.” He said the site is draining harmful pollutants into Walnut Creek, which feeds into the Colorado River.

The company said in a court filing, “CTRMA’s ill-conceived plans sought, among other things, to use the embankment of (Tech 3443’s) private internal roadway (Semiconductor Drive). Not only was the drive itself already eroding at the time the CTRMA prepared its designs, but the drive and its supporting embankment also were never constructed or intended to serve as a dam.

“The CTRMA was well aware of its engineering failures early in the design phase. Because of these failures, and due to the complexities needed to correct them, Defendant (Tech 3443) and the CTRMA eventually came to an agreement to correct these defects after years of negotiations. Yet, despite the parties’ agreement, and in the face of these well-known engineering defects, the CTRMA announced that it would disregard its agreement with Defendant.”

During Tuesday’s hearing, attorney Sue Ayers of Jackson Walker, who represents CTRMA in the case, sought to disqualify documents showing an agreement between the parties to settle the dispute and fix the environmental and roadway problems.

Tech 3443’s attorney, Michael O’Toole, argued strenuously against excluding the documents, which include an extensive chain of emails about shoring up the detention pond and protecting the roadway. The judge’s decision on whether to permit those emails and other documents showing an agreement between the parties will likely have a significant impact on the case’s final outcome.

Speaking with the Monitor after the hearing, Zarafshani pointed to discrimination as one reason the agency has not acted to reduce the pollution and eliminate the possibility of catastrophic flooding. “Do you think this would happen (during construction of) Southwest Parkway?” he asked.

CTRMA did not respond to a request for comment on the case.

Video still from Tuesday’s court hearing.

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