Silence Is Not Golden: Speak Now or Forever Hold Your Peace
The silence surrounding the Bradley deal is becoming deafening. In this pivotal chapter in the development wars, so far the story is the absence of shots being fired from either side. When last week's second public hearing on the proposed settlement agreement with developer Gary Bradley drew a grand total of four speakers (Robert Singleton, Karen Hadden, Save Our Springs Alliance Board Chair Robin Rather, and Hays County Water Planning Partnership spokesman Jim Camp), we had to wonder: Will this thing go off without a hitch, and if so, will that be a good thing? Council Member Daryl Slusher apparently doesn't think so, making his second plea from the dais in as many weeks for folks to come on down and let the council know what they think. "I just want to say again that I want to invite people to come down and urge people to come down and comment on this -- Because this is a very important process -- I would still like to see some more folks participating as we head up to March the 9th" -- the council's scheduled voting day on the deal. (For Gary Bradley's own thoughts on the proposal, see p.30.) Slusher may get his wish when SOS takes a formal position on the deal, and rallies the troops whom they have been keeping posted in a wait-and-see fashion via e-mail. Both SOS and HCWPP have been meeting with city officials behind closed doors, expressing their concerns and fine-tuning their positions. In the case of SOS, sources say the Alliance is anxious to avoid a repeat performance of their opposition to the LCRA water deal, in which SOS failed to achieve its goal of a six-month delay, while alienating a great many people with whom it behooves them to work in harmony.
Indeed, the two cases have their parallels. Both feature a complex, comprehensive, long-term agreement with a bargaining partner with a spotty track record for environmental protection. Both require quick assimilation of large amounts of information simultaneous with political maneuvering. And both could have big consequences for water quality and development patterns in the city and its environs. At last week's hearing, as SOS's special review team was still churning the information through its various Bradley settlement subcommittees, board chair Rather noted some of the group's top concerns:
The first one, third-party accountability, is apparently a deal breaker for the Alliance. "We are requesting an answer on the issue of third-party participation as soon as possible," Rather told the council, "so that we can move on to other concerns that may be moot if enforceability is not ensured." Word is that SOS has had outside attorneys scrutinizing the deal, and while they deem it to be "very interesting," the accountability issue is its biggest weakness.
Another important concern is whether this deal, represented as an end to the city's long, litigious struggle with Bradley, would actually perpetuate the struggle, locking the city into a long-term relationship that could prove as contentious as it has in the past. There's no question that the relationship would continue; bringing Bradley's land -- which lies just south of Circle C and west of Brodie Lane -- under city regulations implies that the city will be working with Bradley and his partners for a long time to come. The concern is that future, perhaps more pro-development, councils, would fudge on the enforcement of the agreement and allow the standards to slip -- or in the worst case, to go away entirely. Addressing the council at last week's hearing, Karen Hadden said she feared that if Bradley is allowed to develop densely on some tracts now, future councils might permit denser development on other tracts, resulting in dense development over the entire area.
Outside city attorney Casey Dobson argued that the agreement would make it harder for future councils to accommodate Bradley, not easier, and that the conservation easement would provide an extra layer of accountability and enforceability for the city. Dobson got in a good zinger when he opined that even if anti-environmentalists took over the city, the agreement would make it harder for them to execute any evil plots. "It seems to me that if a future Austin City Council is taken over by aliens from Dallas or something and wants to flout SOS, they're going to have a much bigger political problem and perhaps even a legal problem doing it if -- they're also going to have to give back our property rights, give back our groundwater."
An Airtight Agreement?
But the criticism does raise an interesting point. Ascertaining the level of follow-through on the city's part has long been a challenge for council watchers (even professional ones). This is in part due to the obscure depths of bureaucracy to which follow-through and enforcement often falls, but it's also due to the sheer volume of initiatives taken by city government these days. Faced on an almost regular basis with another Computer Sciences Corp. deal on city land, or the LCRA water agreement, or a council election or bond package, not to mention the endless stream of zoning cases, city contracts, etc., both watchdogs and city staff may be tempted to let old priorities slide. Five years from now, who will be checking up on the adherence to the conservation easement provisions for allotting impervious cover to subdivided tracts?
Dobson and Mayor Kirk Watson argue that without the agreement, there won't be any standards at all for the still-zealous to check up on -- just Bradley doing his thing unabated, and environmentalists throwing up their hands. There are some, however, including SOS leaders, who believe that the throwing up of hands is not the only other option. They've been critical of the city's refusal to undertake a legal challenge to 1704 that, coupled with a victory in the Water Quality Protection Zone suit, would re-apply the SOS ordinance to Bradley's territory. Karen Hadden sounded this note again when she asked the council to consider alternatives to dealing with Bradley (though she herself didn't offer any specific suggestions).
SOS's third and fourth concerns are, respectively, that the deal is "the mother of all variances to SOS," and that all points of the deal need to be nailed down to ensure compliance. The Hays County Water Planning Partnership has concerns as well. The main one voiced at the hearing concerned the provisions governing underground drilling. Under the agreement, Bradley will deed all groundwater on his 3,076 acres to the city, except for that which he draws from already existing wells, and wells he drills in the Trinity aquifer. HCWPP wants to ensure that the new wells are drilled within the jurisdiction of the Barton Springs-Edwards Aquifer Conservation District, so that the group would have monitoring authority over them. Though Bradley has declined that request and stated his intention through Dobson to "drill where the water is," he has also agreed to monitoring by the BSEACD whether or not the wells are within the boundaries of their jurisdiction. Watson and Dobson have emphasized that the groundwater provisions are unsought bonuses achieved during the negotiating process -- gravy, basically, and that therefore imperfections in the provision are not grounds to impugn the overall agreement. The Hays County group also called for pumping limits, a call echoed by Slusher in a rare public comment by a council member on the content of the deal. "Keeping water in an aquifer would be more important than a golf course getting dry during a drought," said Slusher.
With SOS Board Vice Chair Mary Arnold and SOS Board "Science Guy" Mark Kirkpatrick on vacation this week, the team has been focusing on legal issues related to the agreement, meeting with Dobson to hash out the issues on a line-by-line basis. Next week, when Arnold and Kirkpatrick return, the world may finally see some of the Alliance's work and get more details of their specific concerns. The atmosphere may be nudged toward the more volatile by the return from the Czech Republic last week by Bradley's ultimate nemesis, Bill Bunch, the chief counsel for SOS. Though still officially on a book-writing sabbatical, he will surely surface to add his two cents, given that the chances that he'd accept any kind of a deal with Bradley seem slim to none, and as the old saying goes, Slim just left town.
So would the city's pact with Bradley turn out to be a marriage or a divorce? Perhaps it would be more like (an overtly) amicable separation, with past hostilities put away on behalf of the kids -- in this case, 3,076 acres of prime Barton Springs Zone land -- that the two parties must raise together.
The council rejected the recommendation of city staff to hire San Antonio firm Lake/Flato Architects to design the Carver Museum project, voting instead to award the $85,000 contract to the Austin firm Carter Design Associates, which was only just edged out in the city's ranking system for contract awards. Though Lake/Flato is a firm with a growing reputation and has experience with similar projects, they came up lacking when it came to the city's minority contracting goals, and in the "experience with Austin issues" category (which was devised when federal law prevented Public Works from explicitly granting preference to local firms). Carter Design Associates principal Donna Carter, who is African-American, told the council that she objected to Lake/Flato being selected even after they failed to meet minority contracting goals (a common situation, since the goals require only a good faith effort, not enforceable by law). "I have worked as a sole proprietor for almost 20 years in this town -- I've worked with the Carver for over 15. If they don't want me -- I'm disappointed, and it hurts, but there are other choices [besides Lake/Flato] that I think give the community a much better grounding, a much better representation." The council did want Carter, however, approving her firm for the contract by a 7-0 vote.
Designs on the Carver Museum
This Week in Council: The council will not meet this week. They will reconvene on March 2 to hold their second-to-last public hearing on the Bradley settlement, with the final hearing -- and council action -- slated for March 9. And you better believe that when March 9 comes, your council will be ready to move on this. So do yourselves, and Council Member Slusher, a favor, and turn out for the hearing on March 2, even if you support the thing. Just let the city know you're out there.