When Is a Threat Not a Threat?

If Lee Sloan gets taken to court any time soon, he presumes it will be for speaking out against Parker Springs, a low-income condo complex currently planned near his neighborhood off East St. Elmo Road in Southeast Austin. On Tuesday night, the Zoning and Platting Commission tried to reach a decision on Sloan's appeal against a "balance of tract" waiver for the 35-unit project, which enables the developers to plat a portion of the tract without meeting criteria applying to the entire site. After the Commission couldn't achieve a quorum vote to uphold the appeal, the city attorney determined it was technically denied.

"I think the real issue is my constitutional right to free speech," said Sloan, who serves as president of the Kensington Park Neighborhood Association. In early April, he and others in the neighborhood began receiving "intimidating" e-mails and formal correspondence from King Fisher Creek Ltd., which includes Tampa, Fla.-based landowner Thomas McMullen and Austin-based civil engineer/project agent Carl Conley. King Fisher Creek has planned a three-story, low-income rental complex upon a 4.57-acre tract that includes city-certified wetlands and two 100-year floodplain creeks. Kensington Park is the closest neighborhood to the site, and has joined several other neighborhood associations and the Southeast Corner Alliance of Neighborhoods (S.C.A.N.) in fighting the project due to concerns about density, environmental impact, and accessibility. "King Fisher's claiming we're a racist group, that we don't want affordable housing," Sloan said, "but we've pointed out to numerous commissions and boards that we currently support four such projects in our immediate area."

Sloan declined to provide the Chronicle with copies of letters to him from the developer, but S.C.A.N. President Donna Lee supplied her own. "We realize that it is to your advantage, from your point of view, to present a unified front for political reasons," McMullen wrote to Lee in an April 18 e-mail. "However, we need to address all parties in opposition. Also realize that when people act 'on behalf of S.C.A.N.,' that you too become liable for their actions. Having said that, we realize that any substantive negotiations would have to be negotiated with S.C.A.N. as well as we will show S.C.A.N. the proper respect in that regard." (McMullen declined to comment.)

On April 24, McMullen sent Lee another letter, accompanied by an article from the March 27 St. Petersburg Times titled, "Deal quiets foes of housing project." "Our civil rights/fair housing attorney sent this to us," McMullen wrote. "We thought that it might hold some interest for you. It is not meant as a threat, but is worthy of consideration because when an organization such as Kensington/S.C.A.N. takes action, there are always responsibilities and liabilities associated with those actions." The article describes how the Wilson Co., developers of a low-income housing complex in Oldsmar, Fla., threatened a lawsuit against an opposing neighborhood group. Had Wilson not reached a settlement requiring the Oldsmar Community Alliance never to challenge their project, McMullen noted, "It appears that the developer would have recouped his damages from each individual homeowner since he won every legal battle in court." McMullen's letter is certainly, as he put it, "worthy of consideration" for the neighborhood: Among community groups, such legal actions against public opposition to corporate actions have come to be known as "SLAPP suits": Strategic Lawsuits Against Public Participation.

OCA Secretary Karen Manning told the Chronicle that Wilson threatened to file two $50 million federal housing discrimination suits against both the city and the Alliance if they continued contesting the project's potential traffic and safety impacts. "When the citizens banded together, they went after us."

Wilson had received more than $15 million in state funding for the project; likewise, the Texas Department of Housing and Community Affairs awarded low-income tax credits to King Fisher Creek two years ago. At the time of approval, the project included amenities such as athletic facilities and a computer area. But last year, both the city's old Planning Commission and the City Council rejected the project's zoning, citing density concerns. Conley says the project's latest version factors in those decisions by building taller instead of broader, and that King Fisher Creek will continue to work with city staff to possibly reinstate some of the scrapped amenities. Whether the new design still meets the TDHCA's criteria isn't clear, however. "Everything's on the table now," an agency spokesman said Monday.

Neighborhood opponents of Parker Springs would prefer a scaled-down development or hospice on the site. They're also concerned about the safety of East St. Elmo Road, described by Sloan as "a narrow, rural neighborhood collector road" without sidewalks or shoulders -- but their biggest concerns remain environmental. City wetlands biologist Mike Lyday said the city and developers worked out a 50- to 75-foot buffer along the stream course. Upstream of the tract, a spring runs into a creek that stays wet year-round; many springs in the area feed stream courses. Another issue represented by the project -- the city's plan to replace an existing waterline on East St. Elmo with a larger one -- has raised concerns about diverting water away from natural courses. Lyday says the city has hired a hydrologist to study the situation and "if necessary" will correct the situation with barriers and plugs.

Despite the project's latest changes, its density remains inappropriate for the site, said Z.A.P. Chair Betty Baker. At the Commission's April 30 meeting, she said, "I basically reminded Conley of the history of the case and that he had basically ignored everybody and every recommendation and had failed to work with the neighborhood." But, she said, although past zonings were denied, the current balance of tract waiver was administratively granted, and based on the criteria, "we had to agree with the administrative approval."

The next steps for Parker Springs involve completion of subdivision and site planning, said Don Perryman, subdivision case manager with the Watershed Protection and Development Review Department. Barring problems at the building permit stage, Parker Springs "is pretty much a done deal. But I wouldn't say there's nothing [the neighbors] can do. They've surprised me."

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