Agreeing to Disagree

Still smarting from last year's whipping by the Texas Legislature, the City of Austin may be setting itself up for another beating. Only this time it could be worse. On February 8, city lawyers go to court to challenge the constitutional wisdom of state lawmakers' intervention in a land dispute between Austin and one of its suburbs, Cedar Park. Austin's quarrel really rests not with Cedar Park but with the Legislature, for having passed a law (one of nine "Austin-bashing" bills that cleared last session) that sought to punish the city for stymieing development interests with strict regulations and water quality ordinances like Save Our Springs (SOS). This particular law effectively jerked several thousand acres of land away from Austin's Extra-Territorial Jurisdiction (ETJ), and handed regulatory control of the tract over to Cedar Park in Williamson County, a young buck of a city to the north that's raring to woo new business and industry to its pro-growth community. Austin held annexation rights over those acres, the future development of which could have provided the city with an expanded tax base.

Austin will be fighting its legal battle in a courtroom in "unfriendly" territory -- Williamson County -- home base to Mike Krusee, the Republican representative who, along with Sen. Jeff Wentworth (R-San Antonio), sponsored the legislation. In this upcoming court case, Austin could lose the war, even if they win the battle. "Even if they win, they don't win," boasts Krusee. "If the court finds the law unconstitutional, I'll just rewrite the bill."

As attorneys for the two cities prepare to square off in court, though, the atmosphere around the respective city halls has been, well, downright Texas-friendly. Officials from the cities of Austin, Cedar Park, and Round Rock rang in the New Year with a well-publicized pact to work toward regional cooperation. It wasn't exactly the signing of the Yalta agreements, but all three mayors did shake hands with great enthusiasm before flashing cameras, as if they'd just brought peace to our land.

What really happened was not peace, exactly, but an agreement to disagree. The Austin/Cedar Park/Round Rock pact includes Austin's three-stage transfer of some 6,600 acres of ETJ land -- which includes the tract at issue in the disputed legislation -- to Cedar Park's control. The land is on both sides of FM 1431, north of Brushy Creek Road in southwestern Williamson County. The agreement also calls for the three cities to explore the possibility of jointly funding a wastewater treatment facility to serve Southern Williamson County. This cooperative deal additionally contains a note of irony in Austin and Cedar Park's stated "agreement" to continue their litigation concerning Wentworth's Senate Bill 421.

"We're having a trial because Austin wants a trial," said Cedar Park attorney Leonard Smith. "All the lawyers that I've talked to, with the exception of Austin's lawyers, are really scratching their heads over this one." Similarly, Terry Bray, a high-rolling land attorney representing two landowner partnerships on a portion of the tract, is wondering why Austin wants to pursue a $150,000 lawsuit when it's already backed away from fighting over the land. "There probably isn't any need to litigate this now," Bray said. After all, the attorney and his clients -- Aline Ltd. and Carolville Ltd. -- are getting what they wanted all along: To build several subdivisions of roughly 3,000 or 4,000 homes to accommodate Cedar Park's fast-growing population that now stands at 15,000. Development of the land had been frustrated by Austin's delay in providing the necessary utilities. In the most recent tri-city agreement, Cedar Park will reimburse Austin for the utility improvements to the area.

The agreement carried other important messages as well. It was Austin Mayor Bruce Todd's way of telling the Legislature to shove off; that Austin indeed is capable of getting along with its neighbors. Krusee snorted at Austin's show of magnanimity: "Austin is saying, `Aren't we wonderful? We're giving this land away.' But if not for the legislation, Austin would still be holding on to that land." Added Dorthey Duckett, the mayor of Cedar Park: "Of all the [Austin-bashing] bills, I don't know why they picked this one to fight. If Austin had gone ahead and done their part to develop the land, there never would have been this legislation. This is why the bill passed in the first place -- to bring Austin to the table."

But even though the land issue is a moot point, Renea Hicks, a litigation attorney representing Austin, is pressing ahead with the constitutional argument. "The overall reason we're pursuing this is because this statute is just one of many that were targeting Austin, and there is a revision that prohibits the Legislature from doing certain things, like targeting cities in legislation. Hicks added that Austin's perceived inability to get along with its neighbors is "somewhat of a myth," and pointed to Round Rock Mayor Charles Culpepper's opposition to the legislation as proof that Austin is capable of forming alliances with neighboring cities.

Still, before Austin and Round Rock agreed last year to stop trying to lure businesses from one city to another, the two entities had engaged in a rather vicious head-butting contest in 1993 to land the Dell Computer expansion project. Austin shied away from offering the computer giant any tax abatements, and Round Rock sealed the deal with a handsome incentives package. Now, Round Rock is sitting fat and happy with Dell as its largest employer. Austin, meanwhile, has spent the last few years wringing its hands while watching its tax base slouch toward the suburbs. "Maybe the City of Austin hasn't been the greatest neighbor in the past," conceded Mayor Todd's aide, Trey Salinas, speaking on Todd's behalf while the mayor was in Washington, D.C. last week. "But now we want to work for regional partnerships and work with our partners the best that we can."

Smith, the city attorney for Cedar Park, wonders how this partnership will hold up when the two cities face off in court. After all, Cedar Park appears to have the upper hand on two counts. Having moved swiftly to beat Austin to the punch with a lawsuit, they landed the case in Williamson County. "We had Austin telling us for two weeks through the newspaper that they intended to sue us, so we went ahead and struck first," Smith said. Austin followed up with a counter claim. Secondly, Austin has set aside $150,000 to argue the case -- a matter of concern among taxpayers tired of footing the city's mounting legal bills. "There may be rationale in making a point to the State Legislature," Smith said. "But $150,000 is a phenomenally expensive point to make. Fortunately for Cedar Park taxpayers, our legal cost is a fraction of that amount."