An S-O-S for SOS
Does Council's capitulation spell the end for Barton Springs?
If not for Stratus Properties, the 10th anniversary of the Save Our Springs Ordinance might have come and gone with barely a ripple. We can thank this controversial development deal for a reactivated, informed public, and thus a renewed interest in the citizen-driven law that turned the town on its ear a decade ago with its stunning victory at the polls. In these nominally complacent times, hundreds of people turning out at City Council meetings to champion the ordinance is in itself worthy of celebration -- despite various and concerted attempts to paint the motley crew of activists, techies, stay-at-home moms, business owners, old hippies, professors, and lawyers as loony extremists.
For whatever it has been worth, the ordinance's 10-year mark could not have come at a better time.
In the grand scheme of things, the SOS regulation was supposed to eliminate the time-honored tradition of developer-dealmaking at City Hall. But old habits are hard to break: hence the elaborate Stratus deal, which was preceded by the Bradley agreement two years earlier and the still undeveloped Forum PUD a year before that ... All were products of another time-honored tradition of the development industry: the "grandfather" threat.
If there had been any doubt that the SOS Ordinance is at risk of going the way of other oft-ignored local policies -- not to mention the Barton Springs salamander -- one need only consider the Austin Tomorrow Plan of 1979: a comprehensive, citizen-inspired blueprint for future growth that the City Council adopted with the best intentions. Like SOS, its purpose was to limit development and city-funded infrastructure over the Edwards Aquifer (among other things). To this day, folks still invoke the Tomorrow Plan with a fair amount of regularity, typically to point out when it's being abused.
In fact, Circle C Ranch developer Gary Bradley, himself a former planning commissioner, pretty much pronounced the Tomorrow Plan kaput during testimony at the 1994 SOS trial initiated by northern Hays County landowners, including Bradley, who sued the city on property rights claims. With Bradley under cross-examination, the city's lawyer, Tom Watkins, asked the developer why he chose to build Circle C in such an environmentally sensitive area in Southwest Austin, when the Tomorrow Plan called for development in the north-south corridors of the city.
"The Tomorrow program, regrettably, had fallen apart," Bradley was quoted in the Austin American-Statesman's account. The developer went on to cite several reasons for the plan's demise -- voter approval of the southern extension of MoPac (which Bradley spearheaded), new ordinances regulating development in the watershed, and, of course, (promoted) market demand for growth in Southwest Austin. "We saw [Circle C] as a logical extension of development," Bradley explained.
This "logical extension of development" was a recurring rationale across the watershed before SOS, and it has continued to be -- albeit in fits and starts -- in the 10 years since SOS. Today, we have confirmed evidence showing high levels of pollutants in Barton Springs from both existing developments and new construction. Moreover, the federally protected salamander population is in a rapid decline, for as yet unknown reasons.
A Deadly Logic
What went wrong? There's no easy answer, but rest assured there's no shortage of opinions.
From the city's standpoint, SOS never had a fair chance in the face of a threatening Legislature, which effectively gave Stratus and other developers the right to build under water-quality regulations in place when they initiated development plans. "There are certain people who believe that SOS is not adequate to protect water quality," said Pat Murphy, the city's environmental services manager. "But with the unfortunate reality of what has occurred, we really have not had an opportunity to apply SOS to determine if it's been effective or not. We've not had an opportunity to enforce it uniformly to show us the results. It's a good ordinance," he said. "It's unfortunate that it's been usurped by state law."
By degrees, the city has steadily backed well away from its former persona -- that of an aggressive defender of the law -- and assumed the posture of a willing negotiator trying to achieve "the best possible deal" for the city, or (officials argue) risk losing the entire aquifer to pavement and getting whipped by the Legislature yet again. Yet it doesn't take a bully to recognize that a voluntary admission of fear going into negotiations is hardly a position of strength. Instead of insisting on a uniform application of SOS, the city's growing tendency is to apply the ordinance on a deal-by-deal basis, allowing developers to exceed impervious cover levels on one tract in exchange for preserving another, noncontiguous tract in its natural state -- all the while steadily ceding away, piecemeal, the ground over the aquifer and the lifeblood of Barton Springs.
Supporters of these incremental "compromises," like the just-concluded Stratus agreement, insist they have been the best among worse alternatives. Yet opponents, such as SOS Alliance leader Bill Bunch, see this strategy of rearranging and recalculating impervious cover levels on various tracts as nothing more than "an excuse for granting zoning changes that drastically increase density, and thus both traffic and pollution." Strict application of the law allows for such "clustered" development in exchange for open space, but only on a site-by-site basis, while holding developers to 15% to 25% impervious cover levels. "In concept, clustering is good, but these clusters are too intense," Robin Cravey, a former city planning commissioner, told the council. Most troubling, though, is the council's failure to follow the law in approving a development that isn't SOS-compliant -- thereby setting yet another precedent that under enough pressure, the city will crater. Cravey went on to hit a nerve. "Some on the council consider themselves champions in the protection of Barton Springs, but setting aside the law should never be done on the rationale that 'it's okay because it's us.'"
Nevertheless, some city staff and some council members appear more than willing to support the concept of jacking up impervious cover levels to as much as 45% on one parcel to spare another -- as recently demonstrated in one awkward, infomercial-style exchange between Council Member Daryl Slusher and city environmental manager Nancy McClintock.
Slusher: "Do you think it has all those advantages and still protects water quality in this instance? At least as well as the Save Our Springs Ordinance would be with strict tract-by-tract compliance?"
McClintock: "Yes, sir, I do. And I would even go so far as to say that I think that the SOS Ordinance could be improved with something that would allow this type of clustering."
That kind of talk doesn't sit well with Mary Arnold, one of the framers of not just the SOS Ordinance but also of the Austin Tomorrow Plan. She, like Bunch, would prefer to do away with the existing 15%-25% impervious cover limits and start afresh with an 8% limit for the entire watershed region that would include Travis, Hays, and parts of Blanco counties.
How Much Is Not Enough?
"The scientific literature at the time [SOS was written], and today, supports nondegradation development at 8 to 10% or less impervious cover," Bunch said. "In light of existing pollution levels and current science, the city should move to amend the rules immediately to lower impervious cover to levels that will assure a higher level of protection."
That same sense of urgency is not shared by the city staff members actually charged with enforcing SOS. "It's the law of the land," said Murphy, of the city's watershed protection division. "Unfortunately a great deal of the development was brought in under old regulations, but any development that comes in today is required to comply with SOS."
Despite Murphy's assurances, there aren't many SOS-compliant developments to speak of: the HEB at William Cannon and Brodie Lane (a second SOS-compliant HEB is also planned), the Lumbermen's Investment Corp. office on South MoPac, the new Seton Hospital in Oak Hill, and half a dozen small subdivisions.
As for dealmaking with developers, Murphy defends the city's willingness to negotiate agreements with builders holding Chapter 245 (aka HB 1704) claims -- that is, claims under the state statute that cleared the way for "grandfathered" developments. During the Bradley negotiations of 1999 and 2000, city staff estimated that 85% of the remaining grandfathered property within the Barton Springs Zone was controlled by Bradley and Stratus. "This is one of the main reasons that the city was interested in negotiating," said Murphy. "The goal was to achieve greatly enhanced water quality controls over what could be achieved under outdated watershed regulations."
Even with widespread opposition to the Stratus deal, the company's PR campaign has, in fact, managed to win over some key environmental and neighborhood players -- primarily by means of a semi-private "stakeholder" negotiating process that began last November, prior to any general public discussion of the agreement. Stratus may owe its success on that score to the now standard corporate strategy for defeating grassroots opposition to major business plans: Isolate the radicals, cultivate the idealists and "educate" them into "realists," and then co-opt the realists by investing them directly in the process.
Raising the Stakeholders
Not coincidentally, all three types of activists were represented in an original group of eight environmental stakeholders who came together late last fall to negotiate with Stratus. "Companies know that confronting the opposition could create even more problems for them," said Sheldon Rampton, editor of PR Watch, a Madison-based watchdog quarterly targeting corporate spin. The modern-day company method of conquering an adversary is to invite detractors to the table, ostensibly to work toward resolving a conflict. "One of the most efficient ways to manage activism is to dialogue with the opposition," Rampton said, adding that this is a tried-and-true method of both sizing up the opposition and identifying prospective converts. The opportunists are the easiest marks. "You can always count on them," he said. "Those are the easiest to work with."
In the Stratus case, the green stakeholders all came together with the best intentions -- to engage in meaningful dialogue with Stratus CEO Beau Armstrong.
As Steve Beers recalls, "No one formally represented any organization -- it was an ad hoc group, convened by [environmental engineer Lauren Ross]," who at the time was also advising the Lady Bird Johnson Wildflower Center on the merits of the Stratus proposal.
The end result was an even split: four environmental stakeholders who supported the agreement and four who opposed it. Not surprisingly, the four who stood opposed found themselves invited to fewer and fewer stakeholder meetings. This group included Bunch, Arnold, Ross, and Beers, a Save Barton Creek Association board member. Ross had helped write the SOS Ordinance, and her initial support for the negotiation process had been crucial to its progress. When she eventually turned against the proposed agreement, its proponents publicly dismissed her criticisms as either hypocritical or just more "environmental extremism." Last Thursday, the Statesman editors went so far as to twist Ross' frank description of the Legislature's intransigence -- "If you want to take a purely logical, political perspective of this, you will support this deal" -- into a declaration of resignation to the inevitable. They didn't care to repeat her defiant conclusion: "I can't live in a world where the Texas Legislature is more responsive to Beau Armstrong's lobbyist than to the people of Austin."
The other half of the stakeholder group brought to the table by Stratus -- SBCA President Jon Beall, Hill Country Conservancy Executive Director George Cofer, former SOS President Robin Rather, and Wildflower Center Director Robert Breunig -- chose to stay with the process, and all but Rather have publicly spoken in favor of the agreement. In his comments, Breunig qualifies his support by explaining that the Wildflower Center directly benefits from the deal with Stratus' donation of three tracts of open space.
It will come as no surprise to those who know Bunch that he was the first to leave the stakeholder table, citing dissatisfaction with the proposed density levels, among other things. Everyone else stayed on for a while longer. "I stayed ... because I felt that we could work with those density numbers," Beers said. "While I wasn't thrilled with the prospect of that much development, other offsetting concessions seemed possible -- most notably a plan by the city to save the aquifer, and a more enforceable version of the development agreement from Stratus."
In the end, Beers concluded, "It turned out that both city and Stratus were not as flexible as they represented initially. The deal we were presented with turned out to be 'take it, or leave it.'"
We can expect more "take it or leave it" offers to follow. Stratus still holds a large piece of undeveloped land -- known as Tract N -- on its Barton Creek Development property, north of Southwest Parkway. There Stratus wants to build a multi-use development of apartments, office and retail space, and a resort golf course. The initial proposal, put together last year, also sought water and wastewater service from the city. Again, Stratus would enter negotiations holding a powerful bargaining chip: "grandfathered" status.
Have We Got a Deal for You
"We are very interested in working something out with Stratus on Section N that would either preserve the tract in an undeveloped state or ensure development under SOS," Murphy said, adding, "No specific proposals have been discussed with Stratus regarding Section N."
Stratus, as it turns out, has already negotiated a deal on its Lantana property just across the Parkway from Section N -- a fact that many folks only recently discovered, because the agreement never went before the council. The decision was made administratively because the property already had the necessary zoning in place, Murphy said. Mary Arnold, who makes it her business to stay on top of commercial development in the watershed, is angry that neither the city nor Stratus volunteered this information earlier. (Stratus provides some information about the development and the agreement in its 2001 annual report.) "This just makes me all the more opposed to the [current] Stratus deal," she said.
Ten years after SOS, the water quality law that our leaders once valiantly defended now threatens to go the way of the Austin Tomorrow Plan. The ordinance has been sliding toward that end for some time, actually, but it took a consciousness-raising exercise like the Stratus debate to shine a light on the process. Yet just when many Austinites are primed -- for the first time in many years -- to fight for SOS in the name of the beloved Springs, the great green council limply waves a white flag.
When in Doubt, Surrender
This wasn't how this scenario was supposed to turn out, with hundreds of citizens -- not just Bill Bunch this time -- on one side of an issue and council members, grouchy and defensive, on the other. It's awkward and strange. And it's sad -- sad to see our supposed municipal leaders surrender -- out of frankly confessed fear. Mayor Gus Garcia admitted as much when he told the Statesman: "We have learned what happens when you just say no." Within hours after that July 31 edition of the Statesman hit Bunch's porch, the relentless correspondent had fired off an open letter to the mayor and council, citing the consequences of saying "yes" to the Terrace PUD settlement and a string of office buildings along South MoPac, saying "yes" to a settlement with Gary Bradley, who immediately violated the agreement when he tried to finagle a special taxing district for his land from the Legislature, and saying "yes" to a "truce" with developers and getting double-crossed on the deal.
The truce failure was devastating. In early 1999, in what was supposed to have been a precedent-setting moment in local history, the city and environmental representatives entered into weeks of peace-treaty negotiations with development interests, with a single goal: to circumvent passage of House Bill 1704 -- the most dreaded of all Austin-bashing bills -- designed to quickly grandfather developments still in the planning stages.
Miraculously, the two sides reached resolution and sealed a settlement agreement on a sunny March morning. Mayor Kirk Watson and the stakeholders, led by attorney David Armbrust for the developers and Robin Rather for the greens, called a press conference to herald the prized pact, touting it as the answer to Austin's prayers. It would, we were told, quash legislative efforts to "grandfather" development rights claims for the largest remaining landholders in the Barton Springs Zone: Stratus Properties and Gary Bradley. Yet even as the negotiations had been progressing toward the declared truce, an army of high-paid Stratus lobbyists -- including Dick Brown, Cal Varner, and Richard Suttle (a lawyer in Armbrust's firm) were making backroom headway in their aggressive drive to secure a win for 1704. The bill passed overwhelmingly.
Late that same year -- newly re-armed with a formidable bargaining weapon -- Stratus was ready to cut a deal. And the city, it seems, is now not only willing, but eager, to oblige.
For more on last Thursday's council meeting, see "It's a Done Deal".