Lowe's Loses Again

One of many failed environmental controls documented by engineer Lauren Ross at the controversial Lowe's site on Brodie Lane. "What I saw was appalling," she said.
(Photo courtesy of Save Our Springs Alliance)

After District Judge Darlene Byrne issued a temporary restraining order last month against Lowe's Home Centers Inc. in the battle over its controversial new Brodie Lane store, the home improvement giant hired the judge's husband, attorney Dan Byrne, to represent the retailer in its next round of court hearings. That move forced the case out of Judge Byrne's court and back into the lottery hopper for the selection of a new judge – this time Scott Jenkins.

But Jenkins, it turned out, was not any friendlier toward Lowe's than Byrne had been when she ordered construction halted on the Southwest Austin site, after yet another district judge, Lora Livingston, had ruled that the Austin City Council's approval of the Lowe's project probably violated the Save Our Springs Ordinance. In a July 2 ruling, Jenkins extended the restraining order pending the outcome of a Sept. 7 trial, which could invalidate the city's settlement agreement with Lowe's and force the retailer to either bring the Brodie Lane store into compliance with SOS or vacate the site altogether.

By most accounts, Dan Byrne's acceptance of a case in which his wife had previously ruled is neither technically unethical nor illegal. It is, however, a curious set of circumstances, given the high-profile nature of the case. But attorney Byrne insists that his hiring, along with attorney Steve Adler, was just a coincidence. "There's no subplot here," Byrne said. "I can say that with absolute certainty." He said it's not unusual for him to take on a case that had previously passed through his wife's court. When that happens, Darlene Byrne becomes automatically disqualified from the case, said her husband, a commercial litigator with the law firm of Fritz, Byrne, Head, and Harrison. "This is a small town," he said. Lawyers for the three plaintiffs declined to express their thoughts on Lowe's new hired gun.

Those three plaintiffs – the city of Sunset Valley, the Save Our Springs Alliance and the Save Barton Creek Association – allege that the city of Austin erred when it sealed the Lowe's deal on a 4-3 council vote in December, because six votes are required for the City Council to overrule the provisions of the SOS Ordinance. (Previous controversial aquifer development deals, like the city's settlements with Gary Bradley and Stratus Properties, were approved by 6-1 or 7-0 votes.) But the city argued that the Lowe's deal was different, since it was a settlement of earlier litigation brought by the retailer.

This is one of the stickier environmental cases to come along in a while and is further complicated by the fact that Lowe's started construction at the site more than a month ago, and the city has already spent the $1 million that Lowe's paid in mitigation fees as part of its settlement. Then there is House Bill 1204, which included a tailor-made amendment theoretically designed to allow Lowe's to build outside the confines of either the SOS ordinance or Sunset Valley's development rules. Instead, Travis Co. rules would apply, allowing up to 90% impervious cover (compared to SOS' 15%, or the 40% allowed in the settlement).

The bill's sponsor, Sen. Jeff Wentworth, waded back into the fray a few days after Judge Byrne's ruling. In a June 24 letter to Mayor Will Wynn, Wentworth laid out a solution to the legal quagmire. The "City could quickly resolve this dispute," Wentworth wrote, "by ratifying the Settlement Agreement approval by a [super]-majority vote of the City Council." The San Antonio Republican, whose district reaches across Southwest Travis Co., urged the mayor "to prevail on your colleagues to consider and timely act on a ratification motion." Wynn responds that "my sense is that the council will not be revisiting this issue to vote a second time, unless a couple of opinions change."

Wentworth's advice to the mayor supports the legal argument at the heart of the current lawsuit – that any amendment to the SOS Ordinance, regardless of the context, requires a super-majority vote from the City Council. Livingston is expected to sign an order to that effect, possibly this week. David Frederick, one of the attorneys representing Sunset Valley, said that while he cannot disagree with Wentworth that a supermajority vote would legally ratify the agreement, he says the senator is nonetheless wrong in assuming that HB 1204 removes Lowe's from the SOS equation, as it was designed to.

Wentworth's letter further points out that Lowe's acted responsibly by installing enhanced water quality controls at its construction site. But those measures failed, according to environmental engineer Lauren Ross, who visited the site June 30 and found a number of violations that she recorded on film. At the time, she said she saw failures that had little to do with the recent deluge of rainfall. "Mother Nature had nothing to do with gasoline on the rock," she said of a collection of small stones covered with fuel that had apparently leaked out of a nearby fuel tank.

Ross, who was hired by Sunset Valley to monitor the Lowe's site, said that water meant to be discharged into a culvert on Brodie Lane was actually seeping into porous limestone rock, which she believes is an Edwards Aquifer recharge feature. "This has been our argument all along – water quality controls are not reliable, and here you have a site that's just typical of why we need impervious cover limits over the aquifer," she said. An HEB grocery store sits adjacent to the Lowe's site, built several years ago under SOS requirements. But it, too, has its failures. Ross said on the same day she visited the Lowe's site, she also photographed two malfunctioning water quality controls on the HEB property. The difference, Ross said, is that HEB's broken system on that particular day was causing the release of only one-third the pollution load released at the Lowe's site.

And Lowe's isn't even completed. "Sure," Ross continued, "every construction site has problems when we get a lot of rain, but what I saw was appalling and seriously a concern."