S.o.s. 101

Politics council watch illustration by Doug Potter
illustration Doug Potter

1993 was a year a lotof people came to Austin. It was the year they split the phone books into White and Yellow Pages. It was also the year after Austin voters overwhelmingly passed the Save Our Springs Ordinance, presumably to settle once and for all the conservation vs. development debates that had long plagued the city.

Think of S.O.S. as the fulcrum of Austin's environmental history. The disputes in fact continued, but under a new paradigm -- BC vs. AD, if you will. The advent of S.O.S. has been accepted by some and rejected by others, and though some have tried to straddle the fence, deep down they're either with it or against it. Everyone has responded to it in one way or another. But S.O.S. was not the beginning, nor the end.

For the many residents who've arrived here since Austin became a two-phone book town, you may be wondering what all the ruckus is about over the recent Texas House of Representatives' vote to revive the dreaded SB 1704 (now known as HB 1704) legislation, which was passed in 1995 but inadvertently deleted in the 1997 session. The reinstated bill would allow development projects to proceed under the regulations in effect when their building permit applications were originally filed. If an identical bill passes in the Senate (SB 679), Austin's landmark pact between the environmental and development communities could well be dead in the water. How did we get to where we are now? Where do we go from here? Here's an abbreviated primer:

The 1970s. On a municipal level, water quality concerns started in the late Seventies, when the Austin City Council first sought to initiate some protective measures of local waterways. The first effort was a series of individual watershed protection ordinances for Austin's various creeks. The ordinances basically established setbacks, which protected the creeks and their banks from encroaching development. They did not include limits for impervious cover -- the asphalt and concrete allowed over land in environmentally sensitive areas.

1986. The Comprehensive Watersheds Ordinance (CWO) took Austin's various original watershed ordinances, made them consistent with one another, and applied Austin's first impervious cover limits, which were in the 40% to 60% range. (The limits did not apply in the urban watersheds -- those that feed into Town Lake -- where there is still no such regulation. Impervious cover limits for urban watersheds come attached to zoning designations, and vary from 45% in residential areas to 100% downtown.) But many argued that the new ordinance was too lax on development in the environmentally sensitive southwest.

1990. Austin's Interim Ordinance was precipitated by an emotionally charged, all-night City Council hearing on June 7. Folks turned out in record numbers to oppose FM Properties (now Stratus Properties) and its Barton Creek Planned Unit Development (PUD). Some 900 people signed up to speak. By daybreak, the Lee Cooke council had voted 7-0 against the PUD. Later, the then-director of city's Conservation Services, Austan Librach, was forced to admit that the CWO was not a non-degradation ordinance, and it was replaced with the "Interim Ordinance," which imposed tighter impervious cover limits and promised "zero degradation" (pollution) of Barton Creek.

1991. After howls of protest from the development community, the Interim Ordinance gave way to the Composite Ordinance -- an amalgamation of the Interim Ordinance, the results of a mayor's task force, the development-controlled Planning Commission recommendations, and 12 pages of addenda (which included exemptions for developers, the result of city staff allowing developer reps to join them in the back room when the plan was hammered out).

It was this kind of dirty dealing that inspired environmentalists (Bill Bunch, Brigid Shea, Mary Arnold, to name a few) to form the S.O.S. Coalition (since renamed the S.O.S. Alliance) and agitate for the Save Our Springs Ordinance. It was around the same time that, in response to all Austin's environmental wrangling, the 1991 Legislature passed HB 4, the granddaddy of the SB 1704 under which we currently chafe. The bill established the language stating that a development was bound under the regulations in place when the developer filed the "first in a series of permits," granting developers indefinite access to the laws in place when they filed their first permit application, regardless of how remote or abstract the actual development. To protect itself, Austin subsequently interpreted that filing a project's site plan was a separate series from applying for actual building permits -- thus forcing projects to comply with updated regulations. This policy became known as the "Austin two-step."

August 1992. Austin voters, in a near-record turnout, passed the S.O.S. Ordinance with 64% of the vote. The victory came after a long legal fight by theCity Council majority RULE (Ronney Reynolds, Charles Urdy, Bob Larson, and Louise Epstein, as they were known collectively) to keep the citizens' initiative off the ballot. The ordinance established impervious cover limits for a 112-square-mile area, which includes some land outside the Austin city limits, known as the extraterritorial jurisdiction, or ETJ. Impervious cover limits range from 15% to 25%, depending on the property's proximity to the creek. The law establishes a non-degradation policy, and requires construction setbacks of 200 feet from a waterway, and 400 feet from Barton Creek.

1993. A Hays County jury overturned the S.O.S. Ordinance. Pending appeal, city legal staff advised the council that the ordinance could not be applied until the case was settled. But because of legal history showing that lower court rulings could be set aside on appeal, there was uncertainty about whether S.O.S. was still in effect. So city staff began requiring applicants to sign a document to that effect, essentially warning them that their exemption status from S.O.S. was possibly tenuous. "We were just trying to be nice -- put people on notice," said one city employee who was there at the time. "But it got twisted as, 'we don't care what the court said,'" and the policy was rescinded. Building permits were granted without the warning.

1995. State legislation allows for ironically-named "water quality protection zones" in the city of Austin's ETJ, zones which would be exempt from all city ordinances. The Legislature also passed SB 1704, sponsored by Sen. Florence Shapiro, R-Plano, which allowed for development projects to proceed under the regulations in effect when the project's permit application process began.

1997. This year's legislative session saw the inadvertent repeal of SB 1704, passed in 1995. Austin became the first of several Texas cities to institute its own "interim 1704" ordinance, which recognized grandfathered projects, but instituted time limits during which various kinds of projects would have to be built, or lose their grandfathered status.

1998. Austin enjoyed a bumper crop of court victories. Water quality protection zones are declared unconstitutional, and the Texas Supreme Court rules that the S.O.S. Ordinance is not only constitutional, but has been constantly in effect since originally enacted. Despite this, the ordinance was not retroactively applied to developments approved between 1992 and 1998, as councilmembers decided against further inciting the legislators.

1999. The Legislature seems on its way to re-establishing 1704, bringing joy to grandfathered developers everywhere and removing the time limits established by the city of Austin's interim 1704 ordinance. This will leave the city once again as one of the only major Texas cities without expiration dates for filed building permits and site plans. It also renders somewhat irrelevant the brand-new power coalition of the S.O.S. Alliance, the Real Estate Council of Austin, and the Greater Austin Chamber of Commerce, whose "Austin Amendment" to the 1704 legislation was soundly rejected by the House last week.

And then there have been the lawsuits. There will always be lawsuits, and rumors of lawsuits, muddying the waters of Austin's development regulation, as developers choose to sue the city to achieve goals which the prevailing development regulation would not let them achieve. The settlements of those suits have brought results ranging from the atrocious (the IHOP, which sits along MoPac on Zilker Park's western edge, and virtually in the shadow of Philosophers' Rock) to the almost palatable (the Lost Creek settlement, in which developers promised to provide greenbelt land and water quality controls in return for higher impervious cover limits).

The Future. The city is working on a final version of a mitigation policy, which would allow the clustering of impervious cover in the Barton Springs Zone in exchange for land set aside for conservation. Also to be discussed throughout the year is the long-awaited rewrite of the Land Development Code, which promises not only to streamline the city bureaucracy but also to codify some of the city leadership's Smart Growth policy goals.

Also potentially in the works is a land use plan for the Barton Springs Zone, which the S.O.S. Alliance and Councilmember Bill Spelman have advocated as an appropriate context and desired predecessor for the final adoption of the city mitigation policy. The land-use plan has been tried many times before in Austin, without success. The closest thing we've had is the Austin Tomorrow Plan, from the 1970s, which is the basis for much of the Smart Growth philosophy reigning in the city today, but even it wasn't land-use specific. The City Watershed Protection and Development Inspection and Review departments are reportedly collaborating on a land-use analysis, which would be the logical predecessor to any useful land-use plan. Oh, and there are more proposed Planned Unit Developments coming down the pike, too.

This Week in Council: The Austin City Council will not meet this week as we roll into election day, Saturday, May 1, with three incumbents up for re-election. But check this space next Thursday for an update on the issues our city officials will be tackling when they return from their two-week break.

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Hb 1704, Sb 1704, Texas Legislature, City Of Austin, City Council, Save Our Springs Ordinance, S.o.s. Alliance, Composite Watershed Ordinance, Water Quality, Brigid Shea, Bill Bunch, Mary Arnold

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