Hands off My MUD
Davenport Fights to Retain Independence It Never Had
By John Spong, Fri., Nov. 14, 1997
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About an hour into the city council's October 23 hearing on the annexation of the Davenport Ranch area, Davenport resident Mike Neely, a retired IBM planner and Jim Lehrer lookalike, leveled complaints at the council and mayor typical of the evening's proceedings. He called the city's annexation push "the kind of action that caused our forefathers to revolt and throw out the British," and he compared it to a rape: "It's somebody bigger and stronger coming and taking what they want from you." But perhaps his lowest blow, unless you happen to have been the victim of a rape, was directed at the mayor. Noting that other affluent communities adjacent to Davenport were not being annexed, namely Rob Roy and Lost Creek, Neely demanded of the mayor, "Is the fact that the President of the Lost Creek Neighborhood Association is a partner in your law firm part of the reason you aren't annexing Lost Creek?" The crowd erupted with spiteful, giddy applause and cheers. The mayor looked stunned, more by the question than the gleeful response. As order was restored, Watson managed to answer, "Absolutely not, absolutely not."
A Davenport protester whose role in the hearing up to that point was to yell "Bingo" whenever a speaker made a dig at the council, started to mimic Watson, sarcastically shouting, "Oh, absolutely not. Absolutely."
The mayor stared at the heckler a second, then explained that the city is not moving to annex Rob Roy because state law requires annexation of entire water districts, and a section of Rob Roy's district is already incorporated as part of the city of Westlake Hills. Assistant City Manager Toby Futrell then described a "poison pill" that prevents annexation of the Lost Creek Municipal Utility District (MUD). Like Davenport, Lost Creek treats its own wastewater, then disposes the treated effluent through irrigation of the Lost Creek Country Club golf course and an adjacent 60-acre tract. But in the agreement that gives access to the 60 acres, a provision says that if Lost Creek is annexed, the irrigation of that tract must end, leaving the treatment plant without enough irrigable land to dispose of its effluent. This means no annexation of Lost Creek unless the city first builds new wastewater treatment facilities, regardless of how many friends or business partners Watson does or does not have in the area.
After the explanations, Neely subtly offered that he had been an officer of an elected condominium board in Lost Creek at the time the poison pill was created, and was familiar with its effect. He added facetiously that he did not in any way mean to advocate that the city should move to annex Lost Creek.
"We know you weren't," said the mayor, adding, with a little sarcasm of his own, "We know exactly what you were trying to do."
Still celebrating the sucker punch thrown by Neely, many Davenporters most likely missed Watson's counter and the city's explanation of its annexation choices.
Neely and the boisterous crowd from Davenport sound like a great many irate, potential new Austinites, a class created by the city's September announcement of its plan for a sweeping annexation push that will bring 14 outlying areas from Austin's extra-territorial jurisdiction into its city limits. Although the various communities-in-waiting each have distinct issues and reasons for opposing annexation, the more vocal elements of those areas, the annexation opponents, do have in common a loud volume and testy tenor that have made for a highly acrimonious debate. The battles have frequently been heated, and as the annexation process has gone on, it has become apparent, at least in Davenport, that the real problem for opponents is less a question of "Will the city provide adequate services?" and more one of "Why should the city get to do this at all?"
Back to the Basics
The early debate centered around the services that the Davenporters unarguably must have: police and fire. Given the gravity of the need, the drama that crept into the annexation opponents' arguments was understandable, albeit a bit over the top. One Davenport area doctor even used the hypothetical rape of his own daughter to illustrate the need for fast response times by city police. "Can you protect our women and girls when they hear a noise in the night?... What role will you play in the rape or death of one of our children because you are unable to provide adequate services?"
The problem with these arguments, however, is that the city services appear to be equal to, if not better than what the Davenporters receive now. The Austin police substation serving Davenport will be 10 miles away, at MoPac and Parmer, a locale that prompted hearty hoots from the opponents at the first Davenport hearing. But when the city pointed out that the Travis County substation that currently serves Davenport is 111/2 miles away, the criticism lost a little steam.
Similarly, the Austin Fire Department substation that will tend to Davenport is located near Loop 360 on FM 2222, closer to Davenport than the Westlake Fire Department station that serves it now. Add in the Mutual Aid System, a networking of all Austin area fire departments under which any and all necessary fire stations will respond to a given fire, regardless of jurisdiction, and the quality of Davenport's fire protection should stay as it has always been.
Other service changes inspiring Davenport's protest do not exactly stir up an inordinate amount of sympathy. "The garbage pick-up will be a real problem," said Neely in an October phone interview, discussing the ever-sexy topic of solid waste disposal. "All of our trash, as much as we have, is picked up twice a week, for about nine dollars. With the city we will be limited to one pick-up and one can, but we'll pay almost $18." According to Neely, the $7.75 monthly difference merits staunch resistance to annexation.
More financially impressive, however, is the likely increase in Davenport residents' water and wastewater bills. According to city projections, which were based on a home's use of 10,000 gallons of water and 6,500 gallons of wastewater each month, the difference between city and MUD prices for these services would be $17.48 a month, or $209.76 yearly. But according to a chart put together by Davenport resident Amy Deex, which used numbers provided by the MUD, the actual values for average water and wastewater usage are 23,354 and 12,500 gallons, respectively, for a monthly difference of $54.68, or $656.16 per year.
Significant as this amended figure is, the jump in dollars is tied closely to Davenport's own wealth. "We have a lot of large yards that require a lot of watering to keep looking good," Neely said. "Our water bills will about double." Neely could have also mentioned the numerous swimming pools and an occassional fountain or two.
When Deex presented her chart at the October 29 hearing, she did not help herself by pointing out that the city had also erred by using $200,000 as the assumed house value in its comparison projections. "It only took one call to the tax appraisal to learn that the average home value is $363,000." With home values that high, the extra $55 a month does not sound quite so severe.
But the Davenport annexation opponents cite more than just financial strains; they base their arguments on reasons of principle too. Jenny Swilley, a Leander High School teacher who has lived in Davenport since 1993, believes that fire and police services will be "about the same." Her opposition is with the process. "I used to teach government, and philosophically I'm concerned that no one gets to vote on this. We didn't vote for that city council, but I look at them and see that this is a done deal," Swilley said. "They don't care about us or our concerns, and that's bad government."
Davenport Ranch Neighborhood Association President Liz Newel concurs. "This seems dictatorial, it seems undemocratic, and it's not done with the residents or their welfare in mind. We did not choose to live in Austin."
Caveat Emptor
With annexation of the MUD thus proven to be wrong, fiscally, philosophically, and whatever other way the opponents can come up with, why does the city get to proceed?
"The whole original purpose of MUDs was to facilitate future annexation," said Jim Duncan, a city planning consultant based in Austin, who over the last 10 years has advised more than 200 cities in 26 states on matters like infrastructure financing and plan implementation. Although he has no dog in the Austin annexation fight, he knows a little about the issues; he was the director of Land Development Services in Austin from 1984 to 1987, just as the last MUDs were being created. "The whole idea was to provide interim financing so that the MUD could sit out there until the city could afford to absorb it."
Most MUDs were created in the early Eighties, a period when a booming economy and aggressive developers pushed Austin to grow faster than it could afford to do. Austin voters continually voted down bond proposals that would pay for the infrastructure needed to service the budding developments, and again and again the solution was for the developments, with the requisite blessing of the city, to form Municipal Utility Districts, which would then issue the bonds. The city -- in addition to giving its consent, a requirement for MUDs created inside the city's extra-territorial jurisdiction -- would provide what services it could, usually water and wastewater, and occasionally even guarantee the MUD bonds. In exchange, the MUD agreed to one day be annexed.
The Davenport MUD is somewhat different from the general model. Since its creation in 1979, the Davenport neighborhood has grown as envisioned into one of the wealthiest in the Austin area, and one of the most self-sufficient. Aside from tending to its own water and wastewater needs, as well as providing the superior, cheaper garbage service, the area also enjoys a regular patrol presence from a private security company hired by the neighborhood association. With its bond debt close to being paid off, and the MUD tax supposedly poised to decrease, many Davenport residents are offended at the suggestion that they should pay slightly higher taxes for slightly lesser services, regardless of what the Davenport founding fathers may have agreed to.
"A problem is that a lot of those people just weren't around 10 or 15 years ago," said Duncan, and do not know about the obligation to be annexed. Davenport resident Jenny Swilley, for instance, testified at a recent hearing that she had no idea it was even a possibility. "Who told me that when I bought here? No one." Her voice rose. "It was in the deed restrictions when I bought the house, but I didn't get that until the closing. Do you know how many pages that is? You can't read all that at a closing. I feel like I was hoodwinked." Numerous others said much the same thing at the hearings.
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Unfortunately for Davenport annexation opponents, however, the city has a significantly more recent agreement to bolster its position. Just this past April, the MUD, city, and developer amended the 1980 consent agreement to reflect a new deal between the parties, known as the Loop 360 Pumpover Plan. Under this deal, initiated by the MUD, the city will finally start providing wastewater services to Davenport via a pipeline that will run along the Loop 360 Bridge. Approval from the Highway Department came in October. As part of the agreement, the MUD acknowledged the city's right to annex, and agreed further not to challenge that right in court, nor to do any lobbying with the state that could interfere with that right.
"They've always been fairly independent out there," said Mike Erdmann, the city's Wholesale Services Manager and general water and wastewater guru, "and then they approached us about the possibility of connecting the MUD to city wastewater." He started to laugh. "We didn't know if they were serious. We said, `Go and talk to the politicians, and if nobody throws any furniture then come back and talk to us.' They came back, and we said again, `Are you serious? Go talk to the environmentalists and see what their issues and concerns are, and then come back to us.' And they kept coming back." Now the deal is done, and according to Erdmann, it was these negotiations, seen by the majority of the city council as an opportunity to strengthen Davenport's annexation promise, that gave rise to the current push to annex 14 outlying areas.
Davenport MUD board member Claude Ducloux explained the Pumpover Plan as a move that had to be made. "We had to have that expansion of facilities to grow as an area," Ducloux said. "As a MUD board member, a position that has all the governmental power of a dogcatcher, the only concern was with the water. When you turn on the faucet you want water that's clean and drinkable, and when you flush the toilet you want it to go away."
Still, the residents continue to protest. "Those people won't acknowledge," said Duncan, "that they are here because Austin is here. Nobody moved here from Timbuktu or Minnesota to be closer to Davenport Ranch. The bottom line is that they are just not going to be happy."
Just how unhappy they are can be surprising. "I'm going to vote for paving Zilker Park with a four-lane across Barton Springs Pool," said Swilley, without any discernible sign of humor. "If they're going to stick it to me, I'm going to stick it to them."
Davenport MUD board's Liz Newell shows the same kind of ingrained opposition. When asked if she could envision a time when annexation would be acceptable, when she would be willing to honor the MUD's underlying agreement, she said, "Do you mean, if the city was doing its job, could this be the right thing at the right time? That's not the case, so I can't answer that."
Too Little, Too Late
Tempers have not stayed always in the red, however, and occasionally, reason has poked through long enough for the city and some residents to establish productive, short dialogues. At the Oct. 29 hearing, John Doherty, a graying computer development manager for Dell who appeared every bit as uneasy as the rest of his neighbors, questioned the mayor about the police department shortfall and the fire department's ability to fight brush fires from the FM 2222 station. When Watson reminded Doherty of the opening remarks from the fire and police department representatives, Doherty asked if those reps could be reintroduced to the crowd. They were, and Doherty left the podium to woodshed with Acting Fire Chief Gray Warren and Assistant Police Chief Michael McDonald.
The ensuing exchange was a picture-perfect, grade-school-civics lesson in local government, both sides rational and respectful. Doherty explained his understanding that the Austin department had no brush fire truck at the FM 2222 substation, whereas current provider Westlake has three between the two stations serving Davenport. Warren countered that the 2222 site did have a brush truck, and added that by the Mutual Aid System, all three stations would be available anyhow. The only difference with annexation would be that the city will respond first.
"I guess that's fine, unless Bull Creek is flooded," said Doherty. Holding back a wink, Warren said, "Generally you don't have a lot of brush fires during a time of flood."
Doherty agreed, thanked Warren for the info, and got Warren's promise that the two could talk again after Doherty had a chance to visit with friends on the Westlake department. Then Doherty asked McDonald about the police shortfall.
"The vacancies will all be filled with overtime officers. But that doesn't mean you will have just overtime officers out here," McDonald explained. "We will have permanent officers scheduled out here 24 hours. The county only schedules regular officers here from 8pm to 2am. And we will be able to provide other divisions like narcotics and gang crime that the county doesn't have."
Doherty was somewhat satisfied with the substance of the answers, but not completely. Later he said, "That was too late. Not too little, but way too late," Doherty said. "I have attempted to get answers to those questions via e-mail and calls to the city and city council, and I haven't gotten anything until just now."
Other annexation opponents also complain about what they say is the city's slow response time to their questions. While city staffers scramble to crunch numbers that favor annexation, their process appears even slower when compared to the full-steam-ahead annexation process being pushed by Watson. The sheer sweep of the annexation push has made the process seem fast, and that has given annexation opponents a place to hang their hats. On the other hand, the statutory time mandates to which the city must adhere -- in terms of announcing its desire to annex areas and posting public hearings no more than 20 days before they are to be held -- give the city a convenient explanation for its fast pace.
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"You know, the annexation system stinks," said the mayor. "It is set up to be adversarial, it forces people to keep their cards close to their chests. If a MUD knows all the aspects of what you are doing, they can create poison pills."
The Davenport Neighborhood Association will not say what it plans. "We're examining all our options," said President Newell, referring both to plans to ease the transition to city life, and ways to prevent it from ever happening. Rumors run that the Davenporters will take on new debt or move to restrict their own ability to treat wastewater so that the city will not be able to afford to bring them in. It's a strange situation, said Watson as he put a straightened index finger to his right temple. "It's like someone has a gun to his own head and says `Don't move, or I'll shoot!'"
But the public reaction from the loudest, most passionate opponents of annexation shouldn't be considered an accurate reading of every potential annexee, according to Watson. "I've gotten lots of calls from people who are about to be annexed who are in favor of joining the city," Watson said. "But you're not going to have a lot of those people come down and testify `For.'" Least of all if it means taking a public stand against a neighbor that you have to see each morning when you go out to get the paper.
And so with only the "Against" residents of Davenport speaking loudly enough to be heard, one sarcastic benefit to Austin citizenship has still managed to register: all the new citizens will get free library cards, and a unanimously welcomed chance to vote the council out of office.
Single-member districts, anyone?
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