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Then There's This: Urban (Watershed) Legend

In reversal, city says planned development must comply with SOS

By Amy Smith, Fri., March 14, 2014

Barton Springs saved, for now.
Barton Springs saved, for now.
Photo by Jana Birchum

Good news for Barton Springs. Yes, once in a while good news bubbles up from the eternally threatened Springs, so consider this a catch-as-catch-can celebration.

A development planned for a site just up the hill from the iconic swimming pool must comply with regulations under the Save Our Springs Ordinance. City staff made the determination this month, reversing a previous decision that less-restrictive urban watershed regulations would apply. (See "Then There's This: Overlooking the Springs," Jan. 17.)

The latter decision had drawn instant criticism from neighbors, environmentalists, and the Environmental Board, and sparked enough internal consternation at City Hall to prompt staff to dig deeper. In the end, staff found that because of the site's location within the Barton Springs Zone, the project would be held to higher development standards. The three-acre property at 1201 Robert E. Lee Rd. sits on a slope leading directly to Little Zilker Creek, which flows into Barton Springs, which serves as a habitat for federally protected salamanders.

The SOS finding could potentially short-circuit the proposed Blue Bonnet Hills subdivision of nine duplexes – about half the number of condos originally proposed in a requested upzoning denied by the Planning Commission. But it was unclear early this week how developer Steven Radke and engineer Jerry Perales would proceed. It's possible that the new SOS determination could render the project altogether cost prohibitive. Or perhaps the applicant could challenge the decision and obtain an engineer's certification showing that the site is not, in fact, in the contributing zone of the Edwards Aquifer, as city staff now claim.

Past Practice

In a March 6 memo to Mayor Lee Leffingwell and City Council members, Environmental Officer Chuck Lesniak summarized the long, drawn-out process of the proposed subdivision, noting that a city watershed map shows the subdivision to be within the Lady Bird Lake urban watershed. "In my [Jan. 13] memo to you ... I concluded that staff's review of the subdivision under the urban watershed regulations was consistent with City Code as well as past policy and practice," Lesniak wrote. He went on to explain that since that time, city staff re-evaluated a number of cases in the same general area south of the pool and Zilker Park, and concluded that not all past and current projects were developed under urban watershed regs. There was the case of one South Lamar project, for example, that required a portion of the development to be built under SOS, while in other cases developers had to certify that their projects weren't in the more critical recharge zone, according to a list of potential "overlap" projects compiled by city staff and provided by Council Member Laura Morrison's office.

The list also identifies those in which exceptions were made on portions of small redevelopment projects. And several other projects, such as the longstanding Golden Corral Restaurant, on far South Lamar, were developed either before the 1992 SOS Ordinance, or at a time when the regulations were suspended during litigation. In any case, South Lamar from Barton Springs Road to Ben White Boulevard to the south has developed beyond the days of Golden Corral, Broken Spoke, and a hodgepodge of strip centers and repair shops to what is now a dense stretch of residential construction projects either recently completed or in progress.

Happy Ending

Morrison, who raised the question of "past practice" after neighbors and enviro leaders brought the Blue Bonnet case to her attention, agreed that if the project had slipped off of local watchdogs' radar, the proposed subdivision might have sailed through administrative review, enabling the applicant to build a project the city would later regret. "The bottom line is that there's a happy ending for protection of the Springs," Morrison said. Requiring urban projects in the Barton Springs Zone to build to SOS standards "is precisely what the code says to do, and it's precisely the intent of the SOS Ordinance – to regulate under SOS any time you're in a situation of being in either a contributing or a recharge zone."

One of the lessons learned here perhaps is that anytime staff tells an inquiring commissioner or council member "we've always done it this way," it's probably a good idea to ask for evidence to back up that assertion. "What staff had told me," Morrison said, "was that everyone they talked to said, 'Hey, this is just the way we do it.'" Which is to say if a project is in an urban watershed it's treated under urban regulations independent of whether it's in a contributing zone of the aquifer. Turns out that's not the case. "Number one, I would question how that kind of approach could be administratively adopted, and number two, I was thinking we can call that the urban legend ... even though staff said that was their understanding, none of the cases showed they did it that way. So the point it raises is, if we have standard operating procedures, they really need to be written down."

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