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Imminent Harm

Does the Stratus gambit spell endgame for Barton Springs?

By Amy Smith, Fri., July 19, 2002

Imminent Harm
Illustration By Jason Stout

"I hope we can proceed tonight with respectful dialogue and respect for everyone who's here," Daryl Slusher announced at the start of the City Council's June 27 public hearing, "and I hope we can have a constructive discussion ... on the challenges we all face in trying to save Barton Springs."

Slusher's initial attempt to establish a tone of civility was in principle well-intended, given the nature of the hotly contested issue that had drawn hundreds of locals to the meeting that evening. And had things gone as planned, the council would have cast the first of three votes on a long-debated development agreement with Stratus Properties. The vote finally came two weeks later, on July 11: 6 to 1 to approve the deal, with only Raul Alvarez opposed (see "City Council Eternal," p.16).

If eventually approved on third and final reading, the quasi-official theory goes, the agreement would bring closure to a longstanding and costly land battle between the city and Stratus -- formerly known as FM Properties, when its parent company was international conglomerate Freeport-McMoRan. FM Properties later spun off as an independent, publicly traded company, and changed its name to Stratus under the leadership of Beau Armstrong. But to the seasoned neighborhood activists and the environmentalist old-timers, neither a name change nor a user-friendly CEO named Beau can wipe away the memory of Freeport-McMoRan and Beau's old boss, Jim Bob Moffett, whose bullying tactics won him no support in his quest to build a massive development in the Barton Springs watershed over a decade ago. To paraphrase longtime activist Robert Singleton: Stratus could call itself "Fuzzy Bunny Realty," but it would still be Freeport-McMoRan.

It was in part the ghost of Jim Bob Moffett -- and persistent suspicions of his continuing covert interests in Stratus -- that helped rally the troops last month, in numbers not seen since June 7, 1990, when 800 Austinites showed up for a hearing that lasted until the next morning. In the end, the council rejected Moffett's megadevelopment. The week following that watershed moment in local history, Slusher, then a columnist for the Chronicle, offered this lyrical account of the experience: "Poems were composed for the occasion. Videos were shown. Songs were written and sung. People spoke of childhood memories, sacred places, departed loved ones. Eloquence was on parade."

George Cofer addresses the City Council.
George Cofer addresses the City Council.
Photo By Jana Birchum


What Goes Around --

That's pretty much how a lot of people would describe the current Stratus hearings -- but Slusher would no longer be one of them. Though the attendance did not break the 1990 record, the opposition this time included an even mix of suburbanites teamed with the stalwart troops of center-city environmental activists. With emotions running high, tempers short, and the surprisingly large turnout throwing city clerk employees for a loop (the sign-up procedure for speakers was a mess) the council decided to call it a night shortly before 3am, to be continued last Thursday, July 11. But first, the council decided to suspend its own rules, limiting public input only to those who had signed up to speak on June 27.

Unfortunately, Slusher's initial call for courtesy on the first night of the hearing was rather quickly forgotten -- by the council member himself. Still early in the evening, about 9:30, Slusher lashed out at the first of two unsuspecting Southwest Austin residents who rose to speak against the proposed development. Slusher personally admonished them for living in a "massive-density neighborhood that is polluting the aquifer." Slusher appeared to suggest that unless the residents and their neighbors immediately ceased using all chemical lawn products, they had no business coming to the council to oppose expanded development over the aquifer.

Responding to Slusher, Paul Tesluk of the New Villages at Western Oaks neighborhood drew loud applause with his rebuttal: "Well, shame on whoever approved that density, and shame on the developer for requesting it. But I did not do that. And let's just be careful here and ... not make the same mistake again."

Afterward, Slusher told a reporter that he "could have been more polite" when he addressed the problem of fertilizers and pesticides from lush suburban lawns contributing to the pollution of Barton Springs. Slusher reflected, "I'd liked to have been a little nicer about it, but I'm going to keep bringing this up -- we've got to clean up the Springs, and one way to do that is to organize these neighborhoods and get them involved. What we need here is some personal responsibility, for people [over the aquifer] to stop putting chemicals on their lawns." (For the record, Tesluk said that when he moved to Austin from Boston in 1994, he knew nothing of Southwest Austin's controversial history. "Certainly the realtor didn't share that information," he said. "But if I knew then what I know now, I would not have moved there.")

From Tesluk's and the opposition's perspective, the same sort of development mistake would indeed be repeated if the council comes to approve the Stratus agreement in its current state. The deal lays the necessary groundwork for the company to develop 1,253 acres of environmentally sensitive terrain in Southwest Austin, with most of that property located in the vital recharge zone of the Edwards Aquifer. The proposed settlement and zoning changes now under consideration would allow for 1 million square feet of office and retail space and 1,700 residences on land currently zoned interim rural residential. Additionally, the deal would provide to Stratus a $15 million subsidy package, primarily via waivers of various city development fees and assessments. The $15 million was Stratus' incentive for shrinking the size of its overall development, resulting in less impervious cover -- concrete and asphalt -- over the aquifer (see "Point/Counterpoint," p.28).

(l-r): Council Members Danny Thomas,  Will Wynn,  and Betty Dunkerley
(l-r): Council Members Danny Thomas, Will Wynn, and Betty Dunkerley
Photo By Jana Birchum


How Imminent Is Imminent?

The defenders of the pending proposal say Stratus has the city over a barrel. Most of the council and city staff believe they have little choice but to cut a deal -- or instead risk enabling a great deal more pavement and pollution over the aquifer, should the developer seek political alliances elsewhere. Not surprisingly, Austin has Stratus itself to thank for this fear. The company and its army of hired guns -- Austin lobbyists Dick Brown and Cal Varner, to name just a couple -- have a successful track record of promoting Austin-bashing bills at the Legislature. In this instance, Stratus' tailor-made House Bill 1704 (now Chapter 245 of the Texas Local Government Code) allows developers to build according to the water-quality standards in place at the time the initial site plans were filed -- at least, that is, according to the officially prevailing interpretation. As the city's legal advisers see it, that "grandfathering" law renders Austin's 1992 Save Our Springs ordinance useless, because development plans on the Stratus/Circle C property (then under the ownership of developer Gary Bradley), got under way in the mid-Eighties.

But not everyone agrees that Chapter 245 would automatically override SOS -- because, they argue, state law prohibits developments that would cause "imminent harm" to public health and safety. In a recently filed lawsuit against the city and Stratus, the Save Our Springs Alliance, along with the Circle C Neighborhood Association (the antithesis to the pro-Stratus Circle C Homeowners Association), argues that the imminent threat rule would apply to the SOS ordinance, and thereby block the Stratus development. Why? Because the ordinance was explicitly written to prevent imminent harm to Barton Springs, the endangered Barton Springs salamander, and the 45,000 residents who rely on the Springs as their main source of drinking water. The plaintiffs further argue that when the city established Municipal Utility Districts in 1980 (including the Circle C MUD) the agreement called for the development to comply with the "applicable special watershed ordinances, as amended from time to time" [emphasis added].

The announcement of the SOS lawsuit generated a round of loud ridicule from interested parties around town. Much of the abuse was heaped upon the SOS Alliance's indefatigable executive director, Bill Bunch, whose legendary intransigence on matters connected to Barton Springs consistently earns him beaucoup political scorn from the moderating voices of dealmaking and compromise. Bunch's detractors roundly denounced the lawsuit as a joke, the final gasp of a dying organization, and -- in an e-mail exchange between two environmentalists who support the Stratus deal -- the action of an "arguably mentally ill person" pursuing an unreasonable "vendetta against 'rich developers'" (see "Strange Bedfellows, Stranger Enemies," p.32). Many experienced observers were convinced that this time Bunch and SOS had gone too far, and had marginalized themselves to the extent that no one but "environmental extremists" would answer the SOS clarion call to attend the council meeting and oppose the Stratus deal.


Inside the Tent -- and Out

For the moment at least, Bunch and SOS have enjoyed the last laugh. The disdainful criticism prevailed in the days preceding the surprising turnout at the city's Stratus hearing -- a turnout generated in large part by SOS's organizing efforts. The marathon and heated session proved, if nothing else, that SOS still has some kick -- and sufficient citywide support to throw a public monkey wrench into the done deal that the Stratus agreement was supposed to be. Moreover, as of last Thursday's meeting, not one local environmental group had yet voted to support the Stratus deal, although furious internal lobbying remains the order of the day.

That's not to say that in the wake of the latest public outpouring, Bunch's detractors have changed their opinion of him or of the SOS strategy. On the contrary, they've been inclined to dig in their heels even deeper. Among consensus-building groups, like the temporary one that came together as "stakeholders" in the Stratus agreement, true believers like Bunch are regarded as spoilers and deal-breakers. The deal took two years to negotiate and included input from various community elders invited to the table -- Robert Breunig, executive director of the Lady Bird Johnson Wildflower Center; the Circle C Homeowners Association; and half a dozen or so environmental leaders, including Bunch, who eventually walked away in frustration. (SOS representative Steve Beers stayed with the process, but SOS was never happy with the apparent prospects.)

The proposed Stratus Properties development, scheduled for City Council's final approval today (Thursday, July 18), would bring 1,700 residences and 1 million square feet of retail and office space to all but six of these 15 tracts in the Barton Springs watershed. Tracts 104, 105, 109, and 111-113 will be dedicated open space. Stratus will meet or register below SOS impervious cover levels on six other tracts. The densest developments will end up on tracts 103, 106, and 107, near the proposed Longhorn gasoline pipeline, where Stratus would be allowed to double or triple impervious cover limits. Neighborhood opponents include New Villages at Western Oaks and Cherry Creek on Brodie, neither of which were included in lengthy stakeholder negotiations. The Circle C Homeowners Association and the Appaloosa Run NA have both signed off on the deal after winning a number of concessions from the developer.
The proposed Stratus Properties development, scheduled for City Council's final approval today (Thursday, July 18), would bring 1,700 residences and 1 million square feet of retail and office space to all but six of these 15 tracts in the Barton Springs watershed. Tracts 104, 105, 109, and 111-113 will be dedicated open space. Stratus will meet or register below SOS impervious cover levels on six other tracts. The densest developments will end up on tracts 103, 106, and 107, near the proposed Longhorn gasoline pipeline, where Stratus would be allowed to double or triple impervious cover limits. Neighborhood opponents include New Villages at Western Oaks and Cherry Creek on Brodie, neither of which were included in lengthy stakeholder negotiations. The Circle C Homeowners Association and the Appaloosa Run NA have both signed off on the deal after winning a number of concessions from the developer.

Jon Beall, president of the Save Barton Creek Association, was among the Stratus stakeholders who stayed on to the bittersweet end. Beall says he's not 100% sold on every last detail in the agreement, but for the most part supports the concept underlying it -- that both sides would walk away with some of what they wanted. In Beall's mind, that meant getting the most environmentally sound deal for Austin. "It was a very long process involving many complex issues, and it is not something that can be explained in a few sound bites," Beall said. The process as a whole was made more difficult by "people who appeared to be paranoid -- suspicious of Stratus, suspicious of the city, suspicious of anybody who participated in the process."

The relationship between the Save Barton Creek Association and the Save Our Springs Alliance has always run hot and cold, beginning with SOS's emergence in the early Nineties as the fresh, "radical" answer to SBCA's mainstream, nonconfrontational approach. The new group's phenomenal organizing strength and, a few years later, its political dominance at City Hall, substantially diminished SBCA's visibility. However, SBCA's strength lies in its steadiness; the group has not suffered the well-publicized internal struggles that have plagued SOS off and on over the years. (Two of SOS' founding "radicals" -- Brigid Shea and Mark Yznaga -- have gone on to establish themselves as "consensus builders" in a new community group called LiveableCity, where they are joined by another former SOS leader, Robin Rather.)

Despite these simmering differences, SBCA and SOS continue to be allied on a number of environmental fronts. Late last month, SOS sought the better-funded SBCA's participation in the lawsuit against Stratus and the city. That request touched off yet another controversy, which has gathered strength from both the high stakes involved in the Stratus decision as well as the persisting fractures of principle, personality, and style between the two groups.

Bunch had pitched the lawsuit at an SBCA board meeting, and a Bunch ally called for a vote. By that time, several board members had already left the meeting, unaware that the remainder, still a quorum, would take action on the proposal. Their absence, however, created a greater opportunity for the vote to go in favor of the SOS proposal. It did.

All hell broke loose, with charges and counter-charges of unfairness and underhandedness. In the wake of the meeting, SBCA President Beall, who had been on the losing end of the vote, personally polled those board members who had left the meeting early. Among them was board member Jack Goodman, who had been angered by Bunch's appearance at the SBCA. Goodman also had a prior engagement -- which just happened to be a meeting with some of the other players in the Stratus negotiating team, including Stratus CEO Beau Armstrong, Stratus attorney Steve Drenner, and Casey Dobson, the attorney negotiating the deal for the city. Not surprisingly, Goodman had no interest in joining a lawsuit that would pit him not only against the city but indirectly his spouse, Mayor Pro Tem Jackie Goodman (also an SBCA board member).

Public hearing: The City Council suspended its rules to limit the amount of Citizen Communication.
Public hearing: The City Council suspended its rules to limit the amount of "Citizen Communication."
Photo By Jana Birchum

Goodman's fears were allayed, at least temporarily. Beall's private poll swung the vote against immediately joining the lawsuit, and the board opted instead to hear from supporters of the Stratus deal before casting a final vote. On Monday, board members decided to delay a vote for two weeks while they continued weighing their options. "We're hesitant to join the lawsuit since the city is working so hard to find a solution to this, and we're hesitant to pursue a case as questionable as this one," SBCA president Beall said.


What's the Password?

In the initial Stratus negotiation meetings, which began two years ago, Bunch argued unsuccessfully for the inclusion of additional stakeholders, particularly those Southwest area neighborhood associations that would be affected directly by the development. But that didn't happen -- and now these neighborhood groups' leaders, representing some 9,000 homeowners in a newly formed umbrella group called the Southwest Austin Neighborhood Coalition, are demanding a say in a massive development deal they only learned of a couple of months ago.

"We call ourselves the disenfranchised stakeholders," said resident Tesluk, an officer in the New Villages at Western Oaks Neighborhood Association. But he isn't placing his money on the likelihood of winning concessions from Stratus so late in the game. "We're still in the early stages of trying to come up with some solutions," he said. "And since Stratus has already reached agreement with other parties, is there enough room in the deal for our concerns to be addressed?" To be fair, Stratus representatives have spent the past month or so holding kitchen-table negotiations in the New Villages neighborhood. So far, the residents have rebuffed Stratus' offer to create greater setbacks, or distance, between the neighborhood and the proposed multi-family and retail development (Tract 103 on map, p.28), in return for the association's endorsement of the deal. But residents say they have many more concerns beyond setbacks -- such as the prospects of school overcrowding and additional traffic problems -- so they've decided to stick with the organized opposition.

All things being equal, it appears that under the Stratus agreement as currently proposed, some neighborhood associations are a good bit more equal than others. The politically influential Circle C Homeowners Association, for instance, enjoyed the luxury of two years of private negotiations with Stratus. At public forums, Circle C leaders never fail to point out that they're in no way connected to developer Gary Bradley -- although by sheer coincidence, the association's business address is identical to that of Bradley's office on West 11th Street, miles from Circle C. During the negotiations, the Homeowners Association scored on several fronts -- it will collect dues from commercial businesses on property adjacent to the Circle C neighborhood (Tract 110 on map), and it will be represented on an architectural advisory committee for the office/retail development. Additionally, under the agreement Circle C HOA will receive one tract of open space (Tract 109) from Stratus, the Wildflower Center will get three (Tracts 111-113), and the city of Austin will pick up two (Tracts 104 and 105). Similarly, Appaloosa Run residents won substantial changes to the Bear Lake PUD development that Stratus originally had planned for Tract 115 on the Hays/Travis county lines.

This divide-and-conquer approach, as some Stratus opponents refer to it, has left other nearby residents holding the (empty) bag. In response, Southwest Austin neighborhoods are demanding a comprehensive neighborhood, traffic, and environmental plan that would establish a blueprint for any additional new development over the aquifer -- and they insist that it should be in place before a development as massive as the proposed Stratus project creates unplanned and unchangeable density, traffic, and related problems. So far, that request has gone largely ignored by City Council members, as have most of the other concerns the residents have about the deal.


No Seats at the Table

So, while city officials and other agreement proponents continue to frame the increasing public dissent as little more than Bill Bunch and his SOS comrades "making a lot of noise" -- as one city leader described it -- the disenfranchised stakeholders have a much different and more complex story to tell.

"I don't know what we need to do to convince them that we're just a bunch of everyday homeowners, in very suburban-looking homeowner clothing, trying to be heard," said Stephani Stone, president of New Villages at Western Oaks NA. "We're not saying, 'Kill the deal and go back to square one.' But I do think we need to take a few steps back and look at this deal."

John Larkin, president of the Cherry Creek Neighborhood Association, says he is "shocked" that the council has yet to acknowledge the neighborhoods' concerns. "The only interchange we saw [June 27] was Daryl Slusher attacking the guys from New Villages," he said. "The appearance is that it's the city and the developers against the neighborhoods. But then," he chuckled, "maybe they know what's best for us. They're trying to protect us from ourselves."

Certainly in the testy atmosphere of the council meeting, there was little to indicate that either the council or city staff want to expand the circle of recognized stakeholders, or even to prolong the discussion. The council decision to restrict the permitted speakers at the July 11 meeting only to those who had already signed up at the June 27 meeting -- and the exile of many of the attendees to a big-screen TV area outside the building -- suggests that the public hearing may be largely for show. That council had chosen not to move the hearing to a larger, more citizen-friendly venue was telling. If there is to be, in Daryl Slusher's words, "a respectful dialogue and respect for everyone who's here" -- it might well begin with an official recognition that "everyone" includes a good many more citizens than have yet been allowed a voice. n The proposed Stratus Properties development, scheduled for City Council's final approval today (Thursday, July 18), would bring 1,700 residences and 1 million square feet of retail and office space to all but six of these 15 tracts in the Barton Springs watershed. Tracts 104, 105, 109, and 111-113 will be dedicated open space. Stratus will meet or register below SOS impervious cover levels on six other tracts. The densest developments will end up on tracts 103, 106, and 107, near the proposed Longhorn gasoline pipeline, where Stratus would be allowed to double or triple impervious cover limits. Neighborhood opponents include New Villages at Western Oaks and Cherry Creek on Brodie, neither of which were included in lengthy stakeholder negotiations. The Circle C Homeowners Association and the Appaloosa Run NA have both signed off on the deal after winning a number of concessions from the developer.

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