Council Watch
Peace at Last? City, Gary Bradley Strike the Deal to End All Deals
By Jenny Staff Johnson, Fri., Feb. 11, 2000
It wasn't just Central Texas that got a cold snap last week. The gates of hell must've been swept by a cool breeze as well, as it looked like the thing that many thought would never happen -- an agreement ending legal hostilities between developer Gary Bradley and the city of Austin -- could come to pass. The sketchy single sheet of paper that has been the only sustenance for Bradley-watchers since November of last year was finally replaced late Wednesday with a 46-page, detailed explanation of the deal Bradley and the city have struck. So all those who harbor suspicion of what watershed-shredding tricks Bradley may have up his sleeve are finally getting their chance to see for themselves. As the "exhibits" accompanying the agreement -- the backup material which in some cases comprises the real meat of the deal -- streamed out of the dark depths of the negotiating chambers this week, Austin got its first real look at the deal to end all deals. Or the deal that is supposed to end most deals, anyway.
Between now and the council's declared decision date of March 9, the Planning Commission, Environmental Board, and Water and Wastewater Commission will examine the proposal -- much of which isn't even public yet -- and make their recommendations to council, and three public hearings will allow for citizen input.
Meanwhile, activists and citizens face the dirty work of actually analyzing the merits of the detailed environmental provisions in the deal, something that only the best-trained laypersons are qualified to do. According to Mayor Kirk Watson, however, no one should expect to revolutionize the Bradley agreement with comments made during the public input period. "This should not be viewed as an opportunity for either side to retrade the deal," Watson said. Public input may change and improve some details, but "the fundamentals of this deal as I'm laying them out today are to stay the same or the parties are going to back away."
One outside party who's already reportedly unhappy with the proposal is Hays County Judge and property rights advocate Jim Powers. He apparently called the mayor to complain that the deal would "inhibit" the county's big road plans, which include extending MoPac over the aquifer. According to a well-placed source, the mayor responded: "Well, judge, I'd like to help you out, but I see this as a property rights issue. It's Bradley's land. He should be able to do what he wants to with it."
The Nitty Gritty
So without further ado, here's the thumbnail sketch of the proposal:
Overall, 399 acres of the Bradley property in question, which lies just south of Circle C, west of Brodie Lane and east of FM 1826, will be developed, out of a total of 3,076 acres. The city estimates that under the existing Water Quality Protection Zone regulations, the amount allowed to be developed could have been as much as 832 acres -- about 30% impervious cover, compared to the proposed 15.9%. It is claimed that structural controls -- treatment methods for rainwater runoff -- will limit water pollution to between 90-95% of what would be required under the requirements of the SOS water-quality ordinance.
In the realm of structural water quality controls, Bradley's ungrandfathered tracts, Spillar and Pfluger (about 1,800 acres), will be developed to SOS standards, and the city will provide water and wastewater service to those areas. The rest of the land -- Bradley's "grandfathered" properties, some of which would currently be permitted under the less stringent Lower Watersheds Ordinance -- will now be developed under the Composite Watersheds Ordinance, which preceded the SOS ordinance. The even earlier Lower Watersheds Ordinance will govern a small portion, about 32 acres.
All Bradley properties covered under the agreement will be subject to annexation by the city of Austin. Public hearings on the annexation begin at this week's council meeting, Thursday, Feb. 10.
All lawsuits will be dismissed, except the Circle C annexation lawsuit and another concerning infrastructure reimbursements. All Water Quality Protection Zones within Bradley's jurisdiction will be dissolved, even if the detested things are later deemed constitutional by the Texas Supreme Court.
Of the unresolved lawsuits, the annexation suit can't be dropped because a resolution requires the consent of the Circle C Homeowners Association, according to attorney Casey Dobson of Scott Douglas & McConnico, the city's outside attorney. The other lawsuit concerns a dispute over how much the city owes Bradley in developer reimbursables due to the Circle C annexation. Through the course of the negotiations, the parties have narrowed the gap in their estimates: Bradley says he has $8 million coming to him; the city estimates it owes $5 million. The final amount will be decided in arbitration after the deal is signed.
For his part, Bradley gets to proceed unmolested in the relatively high-density development of his currently grandfathered tracts, which will reportedly include a 350-room hotel, an 18-hole golf course, and 2,000 to 2,500 homes. He'll get water and sewer service from the city from his nascent Spillar and Pfluger Ranch developments, and he'll get a waiver of $9.5 million in capital recovery fees -- water and wastewater fees the city normally charges developers to recoup money spent on infrastructure improvements for new development.
In one of the biggest surprises of the agreement, Bradley will give the city groundwater rights to all of the 3,076 acres, except water that can be pumped from existing wells and the amount of water that is required to irrigate the golf course and hotel landscaping. On one hand, the water rights are important in that they take away Bradley's immediate alternative to city water service, guaranteeing the city more oversight of his land use. (Critics are already hinting, however, that even though Bradley is prevented from drilling to serve his developments, other entities, such as the Lower Colorado River Authority, could easily step in to fill the breach. And due to Texas' reviled right-of-capture rule, any water the city receives could be sucked dry by a Bradley neighbor not bound by the agreement -- or, for that matter, by Bradley himself, if the new golf course turns out to be thirstier than originally anticipated.)
There's more to the agreement, of course -- much more. But much of it is still being negotiated and has yet to be published. Early this week, city staff worked furiously to load new documents onto the city's Web site, and anxious Bradley watchers tracked their every move.
Watching and Waiting
Environmental groups with strong interests in the deal, including the SOS Alliance and the Hays County Water Planning Partnership, are declining formal comment until all details are revealed; nonetheless, the mood in most quarters seems cautiously optimistic. The SOS has a Bradley settlement review team furiously analyzing the deal, and the Hays County folks will meet with Austin City Council members on Friday to talk over some of their concerns.
So for now at least, the waiting game is on. The most important documents, still unpublished at press time, are the conservation easement (which details what methods will be used to preserve water quality), the land use plan, and the zoning plan. These will reveal whether the environmental and land use principles outlined in the agreement -- no large or regional employers in the commercial development, for example -- have been translated into the nuts and bolts that will make it a reality.
To give one example, the details of the conservation easement are going to be hugely important. Though impervious cover is limited to 15.9% overall, one provision of the agreement allows that the landowners "will be allowed to transfer allowable Impervious Cover from any parcel within the Land to another parcel within the Land." This means that, barring other restrictions, Bradley could cluster his impervious cover on certain parcels -- around major roads, for example, but perhaps also around significant environmental features -- and leave others undeveloped.
"This is one place where there is a deviation from the SOS ordinance," agreed Nancy McClintock, the city's Environmental Conservation Division manager. Protections, however, will be included in the conservation easement, which McClintock said will contain impervious cover caps for individual tracts. Spillar and Pfluger, for example, will be capped at an SOS-abiding 15%, as has been advertised.
Last week, the SOS Alliance distributed a memo (written before the agreement was published) that outlines an aggressive, comprehensive regional conservation plan as envisioned by SOS, starting with a two-year moratorium on major developments while the details of a proposed Recharge Zone Protection Fund, to be used to buy 10,000 more acres of land for preservation, are hammered out.
Naturally, this will not be addressed in the agreement; however, in his address last Thursday, Watson said he was creating a "small committee" to advise him on how to get non-city funds for land acquisition. In addition, there is a good deal of city-owned Proposition 2 land abutting the property covered in the agreement, effectively extending the reach of protected property.
Other SOS recommendations included eliminating the golf course and hotel from the agreement (they haven't been) unless their extraordinary water demands are vastly reduced (they haven't been). The dreaded hotel and golf course will still be built under the agreement, and although the city will get some oversight privileges in the golf course's management, which they would not otherwise have had, the monitoring system provided in the plan will be overseen not by the city but by the Bradley interests, who will then provide the information to the city.
The Road Ahead
Roads will be "right-sized" to serve only existing development, eliminating the possibility of oversized roads that will accommodate or spur new growth, and Bradley interests agree not to seek the expansion of MoPac. The city believes that the development limitations on Spillar and Pfluger will decrease the pressure to expand MoPac. That doesn't do much to alleviate the pressure coming from points south, however, and for that reason SOS has recommended that the city create a "sprawl wall" by acquiring land south of Circle C along the length of MoPac. Environmentalists are also questioning what impact the agreement will have on other roads in the area, aside from those within the Bradley boundaries.
Despite the continued absence of the zoning and land use documents, the agreement does include general land use agreements, perhaps the most important of which is the prohibition on major employers in the commercial development at MoPac and SH 45. To achieve this goal, which is meant to keep development local -- not regional -- in scale, total office space will be limited to 150,000 square feet, and no single tenant may occupy more than 100,000 square feet. The activities that will be considered "local needs" include medical offices, schools, restaurants (including fast food), auto repair, and software development facilities, to name a few. Will all this bargaining ultimately result in peace in the land? Will it wrest the Edwards Aquifer from Bradley's evil clutches forever? The SOS memo distributed this week lays out a program to do so. Straight from the don't-hold-your-breath file, SOS proposes including as part of the agreement the statement, "Bradley agrees that this arrangement effectively ends all his business activities in the Aquifer and that he will limit any further involvement in development activities -- to areas outside the Edwards Aquifer Watersheds."
For the sake of enforceability, SOS suggests the assignment of third-party enforcement powers, a $100 million reserve fund to be paid if the deal falls apart later, and a provision for "poison pills," or damages that Bradley will have to pay if he reneges on any portion of the deal. And, as if to further demonstrate that the group does not trust this man, SOS notes that they are "compiling a list of all major deals that have been broken over the past decade" by Bradley, "indicating a need for extraordinary enforcement measures."
Needless to say, none of what SOS requests in its memo is happening. But according to Mayor Watson, the agreement includes three things that "the city has never had" to make it enforceable:
The Bradley settlement will face its first public hearing at 6pm tonight, Thursday, Feb. 10, by which time, presumably, all will be told.
This Week in Council
Briefings in the morning session at City Hall include the Austin Revitalization Authority and the Workforce Development segment of the city's Social Equity Initiative. Highlights of the evening session -- being held at the LCRA building at 3701 Lake Austin Blvd. (west of MoPac) -- will be public hearings, including:
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