https://www.austinchronicle.com/news/1999-10-22/74364/
This week, during yet another slow spell, let's take a look at another front on which the development war -- supposedly settled by the peacekeeping force of the Green Council installed in 1997 -- is still raging. Raging in the courts, that is. If the 1999 session of the Texas Legislature wasn't enough to convince you, and if the recent, um, shift in Statesman editorial policy hasn't given you pause, then consider this: The council's executive session agenda at its most recent meeting contained no fewer than four items pertaining to land development on the aquifer. As it happened, many of the items on the executive session agenda were not even discussed at the last meeting, Oct. 7, due to the time-consuming and mentally exhausting vote on the city's water deal with the Lower Colorado River Authority. And even if they had been, the very definition of executive session implies that the council's deliberations are, for the time being at least, between the council and the lawyers. That is, for them to know and us to find out. "The problem on talking about specific litigation," says Assistant City Attorney David Smith, "is that I'm not going to do it." Smith would only confirm for curious council watchers that "there's a lot going on" behind the closed doors.
There sure is. The Oct. 7 executive session agenda contained a little bit of everything. One item that sounded intriguing was a subdivision seeking "limited adjustment" exemptions from the SOS Ordinance (Item 8 on the executive agenda), a little-used provision for landowners who believe the ordinance is violating rights given them by the federal government (this one requires a public hearing first, so if the council approves their claim, you'll get a chance to comment before any exemption is given).
Other items may never see the light of day -- or if they do, as in the case of the recent settlement giving $9 million to Circle C for infrastructure expenses incurred before its annexation, it will be in the form of a brief announcement followed by a council vote. City officials say $9 million was a pretty good deal, considering Circle C's original request was for about $30 million. The lawsuit that produced that settlement isn't over, though; it appeared as Item 11 on the executive session agenda, and absent another settlement, Circle C Land Corp v. City of Austin is headed to court this winter, as other "developer reimbursables" are still in dispute between the two parties.
Items 13 and 14 on the agenda represent two lawsuits in the ongoing fight over "water quality protection zones." At issue is whether the Texas Legislature violated Austin's constitutional rights in 1995, when it established that the zones could be established in the extraterritorial jurisdiction of cities with a population over 5,000 that have "attempted to enforce three or more ordinances or amendments thereto" within a five-year period. The only city that those arcane standards applied to was Austin, so this was widely viewed as a way to exempt Austin-area developers from the city's increasingly useful water protection laws. In 1998, the city sued in Travis County to have these standards declared unconstitutional (Item 13: City of Austin v. LS Ranch Ltd., et al), and landowners sued in Hays County in defense of them, and in offense at the city of Austin's pending annexation of Circle C (Item 14: FM Properties Operating Co. v. City of Austin).
Both cases were won by the plaintiffs, meaning the Travis County court declared the zones unconstitutional, and the Hays County court upheld their constitutionality. The dispute headed for higher authority, and arguments were heard by the Texas Supreme Court in December of 1998. The ruling is expected "any day now, given when they were argued," in the words of one city attorney, though no one at the city seems to be holding their breath.
If water quality protection zones are upheld in court, Circle C's annexation will be invalidated. In that case, the city will get back the $9 million it recently handed over in the settlement of one part of the Circle C -- as well as a world of hurt from developers who will once again feel free to frolic in a self-regulated environment, without intervention from pesky Austinites trying to protect their community.
According to state law, the Planning Commission can't reject a subdivision application if it meets all legal requirements, but the commission nonetheless voted in August to delay amid lingering questions on the subdivision's legality. The applicant, Circle C, sued the commission. Finally, Planning Commissioner Susana Almanza switched her vote for delay to a "yes" vote, securing Planning Commission approval and causing the lawsuit to be dropped.
SOS believes that the Land Development Code gives it the right to general appeal of the Planning Commission decision. And since a disputed Planning Commission ruling would go before the council for resolution, the council would finally have to come clean with its intentions regarding 1704: Take the Legislature's action lying down or come out swinging (an option which seems unlikely, given the interval that's passed since the session ended).
City Attorney Smith seriously doubts that SOS will be allowed to bring its appeal. "In terms of [them] jumping in the middle of our land development process, there's no provision" in the code, Smith said. SOS hopes to push ahead anyway, but Godfrey doesn't sound optimistic about the city's involvement. "If the city was going to fight any aspect of HB 1704, they could probably find it in this case," he says. "The fact that they're approving it tells me they don't want to do it."
Could a Spillar Ranch agreement spell the end of all litigation between Bradley and the city? Memos traded by the two parties indicate the possibility that one aspect of the Spillar Ranch agreement would be that "all litigation between Bradley interests and the City of Austin will be resolved." City Attorney Smith would say only that there was "daily communication" going on between the city, Bradley, and his people, and that nobody knows when or where it will all end. As for longtime Bradley nemesis Council Member Daryl Slusher, he says of the agreement, "The odds are against it, but I wouldn't rule it out. It would be good for the whole region -- a historic event."
"I found this scene undignified and unnecessary," Slusher wrote, "as well as cavalier treatment of the citizens' money. It also smacked of everything being decided in advance and the council discussion and vote being just a formality."
The memo then charged that the episode was indicative of problems that had plagued the LCRA water deal from the start: "In my view this was an unfortunate end to a process that left much to be desired. In particular there was a lack of citizen involvement on the front end, even a lack of council involvement on the front end."
Garza told the Chronicle that the payment was made so quickly because, "We thought there were going to be some legal actions" that could thwart the deal, "maybe by someone affiliated with SOS." Garza went on to say that, "It was never meant as a disrespectful thing to the council or to the public, [though] I understand how Council Member Slusher feels."
Slusher, for his part, says he and Garza have talked things over. "He said there was no intent to be undignified or cavalier with the money." Slusher said though he still disagrees with the city manager's actions, the two have mended fences, and that the incident was, to coin a phrase, "water under the bridge."
This Week in Council: No council meeting again this week, but our dedicated public servants will be back next week, Oct. 28.
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