It’s
a huge victory for
the city.”
No, those are not the words of environmentalists Bill Bunch, Robert
Singleton, Mary Arnold, George Cofer, or even Al St. Louis. They’re not even
the words of the city’s attorneys, the city council, and of special note, not
the words of the daily paper of record. They belong to Mike McKetta, attorney
for Circle C Land Corp., home of Gary Bradley, and the new commercial home of
FM Properties. Go team.
It’s a suprisingly generous comment for someone who just lost a big case. The
3rd Court of Appeals turned back the clock last Wednesday, reversing a 1994
ruling in a Hays County court that invalidated the Save Our Springs (SOS) water
quality ordinance. The original lawsuit against the city over the SOS ordinance
was brought by Circle C Land Corp. and several small landowners in Hays County,
who were represented by McKetta and notably, Freeport-McMoRan attorney Roy
Minton. Not only did the Court of Appeals affirm the legality of SOS and
reverse the award of $321,500 in legal fees to the plaintiffs, its ruling also
symbolized a victory for the public will — for the Austin voters who
overwhelmingly supported SOS in the 1992 referendum.
Spoiling a good party, Minton immediately announced last Wednesday that he
will “take this to the Supreme Court,” if necessary.
As expected, the Austin American-Statesman has not declared the return
of SOS, or even a court win by the city, a victory. Instead, they said in
editorials to “hold the confetti,” and called it a “hollow” victory. The
editors’ reticence was echoed by headlines that read, “SOS decision clouds
development projects,” “Environmental-growth hassle flares once more under
SOS,” and “SOS moves to Republican-dominated Supreme Court.” Did somebody say
victory? Not us, reads the daily.
“Contrary to what the Statesman says, it’s not a foregone conclusion
that we’ll lose,” says Councilmember Jackie Goodman. The ruling “gives me
confidence that we’re fighting the good and righteous fight,” adds Goodman, who
supported funding the appeal. And to new Councilmember Daryl Slusher, that’s
sweet justice. “It’s vindication for the people [on the council] who voted for
the appeal… as for Ronney, Todd, and Mitchell — turns out they were wrong,”
he says, referring to objections raised by Mayor Bruce Todd and Councilmembers
Ronney Reynolds and Eric Mitchell against appealing the Hays court decision.
Slusher and Goodman, who, along with colleagues Gus Garcia and Beverly
Griffith, are expected to support funding the legal fight agianst any further
appeals by the plaintiffs, both remark that the new ruling will be hard to
challenge.
It certainly looks that way. The city won all 13 points of error cited in
their appeal, and the detailed opinion written by Chief Justice Jimmy Carroll
will be tough to argue against, says Save Our Springs Alliance lead counsel
Bill Bunch. “It’s a very sweeping ruling,” he says, and will likely also deter
other parties from challenging SOS in the future.
The appeals court decided, among other things, that the Hays County court
erred in ruling that SOS is “unreasonable, arbitrary, and inefficient”
according to section 26.177 of the Texas Water Code. That section of the Water
Code, says the appellate court, is unconstitutional in that it “permits a court
to review whether an ordinance is efficient and/or effective. Such a
determination is one of public policy…” In any case, the court wrote, SOS is
legal under the state’s Local Government Code, which says that home-rule
municipalities like Austin may “provide for the protection of and may police
any watersheds,” and exercise that authority “inside or outside the
municipality’s boundaries.” All questions regarding its legality under the
Texas Water Code, in other words, are moot. Thus, according to the appellate
court, the Hays County jury should never have been asked to decide several of
the questions on which it ruled. Another important point won by the city is
that SOS was not an improper subject for a public initiative, as was determined
by the Hays court. Leaving aside the obvious patronizing aspects of this claim
by the plaintiffs, the appellate court ruled that no “common law” exists for
determining what is too complicated for the public to understand. Besides, the
judges wrote, the City of Austin was not allowed to show the Hays jury several
points of evidence to prove that the public was informed at the time of the
vote.
This fight will continue at
the Texas Supreme Court, says Minton, but who will he represent? That question
has been floating around City Hall for days. Minton’s clients in the Hays
County trial were the small landowners, but many said his $450 per hour fee was
paid by FM Properties, a subsidiary of Freeport-McMoRan. FM Properties had a
stake in the suit since it owned a portion of Circle C Land Corp., and
therefore had two irons in the fire with McKetta and Minton. During the 1995
Legislative session, however, FM Properties and Circle C won passage of bills
that release them from Austin’s regulations. FM Properties, and all large
landowners, will benefit from a new law, Senate Bill 1017, which allows
property owners with over 500 acres in a municipality’s extraterritorial
jurisdiction (ETJ) to seek permits from the Texas Natural Resource Conservation
Commmission (TNRCC) if they can’t get what they want from their local
governments. Circle C simply got their own kingdom with HB 3193, creating a
Circle C water district where they make up their own rules and answer only to a
group of state-appointed district boardmembers. The new laws exempt FM
Properties, and the majority of Circle C, from city water quality ordinances.
At the same time all this was going on, according to McKetta, Freeport
acquired Circle C’s stock in their non-residential properties. Accordingly,
McKetta no longer has a client in the case. It’s all up to Minton now.
An appeal of last week’s decision is up to Freeport. Minton suggests that
Freeport may be in “the catbird’s seat,” with property exempt from SOS while
all other developers nearby will have to comply — allegedly Freeport’s land
will be all the more valuable. But “that is not Freeport’s attitude at all,”
claims Minton. “This [lawsuit] has almost nothing to do with water quality.
It’s about landowners being allowed to develop their property.” Although Minton
doesn’t say it, Freeport may have to pursue this case. FM Properties is
awaiting a decision from the U.S. Fifth Circuit Court of Appeals in their
$75.55 million federal lawsuit against the city. In that case, a jury awarded
Freeport $113,000 in damages for the “arbitrary and capricious” taking of their
4,000 acres near Barton Creek through the city’s enforcement of SOS —
actually, the city enforced the SOS rules on only 25 acres of that tract — and
the city is appealing. But Freeport’s case was based on the contention that SOS
was deemed null and void by the Hays County jury. Thus, it serves Freeport’s
interests to see Circle C’s case through to the bitter end.
So, what has the city won? A mere 15-minute halftime before another grueling
legal fight? And what are the city’s chances of another win?
The mood is subdued down
at City Hall amid the chaos — the less said, the better, seems to be the order
of the day. With Freeport’s threat, via Minton, hanging in the air,
councilmembers and legal staff are unwilling to chance a “misspeak” to the
press or public. Last Wednesday night in executive session, however, the
council pressed staff for a legal opinion on the status of the SOS ordinance.
Most of the issues raised are easy to imagine. Is the ordinance now in effect
or isn’t it? Is is retroactive, since it was never illegal in the first
place? Will it cost extra if we have to fight an appeal at the Supreme Court?
Can we, at this late hour, just chuck the whole thing and get Gary to run
through a gauntlet of paddlers? By Thursday morning, the city’s Public
Information Office sent out a terse message answering at least one question:
SOS is back on the books effective immediately. Other than that, information is
scarce. Everybody from the city manager’s office, the planning department, and
the environmental programs division, are directing all questions to the Public
Information Office, and that office’s director, Michelle Middlebrook-Gonzalez,
has just one thing to say: We don’t know yet.
Yes, SOS is “alive and breathing,” the city’s lead outside counsel Tom Watkins
pronounced to a small group of Save Barton Creek Association members Monday
night, but Watkins is nervous and still in battle-ready mode; consequently he
refused to answer any legal questions from the group’s members. He likely will
remain tight-lipped until after he briefs the council himself, this Thursday in
executive session. The pow-wow is expected to garner some answers for the
public — one of them being that retroactive action on SOS is probably not
going to happen, considering that the Texas Government Code strongly advises
against it. That would mean that everyone who filed site plans with the city
for development in the 112-square-mile Barton Springs Watershed zone where SOS
is effective, between the Hays decision in November 1994, and July 31 at the
reversal of that decision, will likely not be required to follow SOS
regulations.
Middlebrook-Gonzalez says the city doesn’t have the numbers yet on how many
site plans in the Barton Springs Watershed have been filed during that period,
but staff is working on it. Unless the council decides to make SOS retroactive,
those developments will fall under the weaker “Composite” Comprehensive
Watersheds Ordinance (CWO), or Composite II, as it is now called, which was
“re-adopted” by the council following the Hays decision.
A little history is called for here on the Composite II, in order to
understand the origins of the battle over SOS, and the ramifications of another
loss for the city in court. The Composite was originally adopted in 1991 under
Mayor Bruce Todd’s lead as a compromise between a development-friendly
ordinance recommended by the Planning Commission, and a stricter Interim CWO
which was very similar to the SOS ordinance. The 1991 Composite vote was
significant because it followed on the heels of the infamous 1990 PUD (planned
unit development) revolt over Jim Bob Moffett’s plans for the high-density
Barton Creek PUD. The PUD was ultimately voted down, but the council had
obviously waffled on protection of Barton Springs and Barton Creek, and
continued to waffle by passing the Composite the next year.
Thus was born the Save Our Springs Coalition, led by Bunch and the Coalition’s
then-director Brigid Shea. Their petition drive led to a referendum on a new,
strict water quality ordinance. The public voted almost two to one in favor of
the SOS ordinance on August 8, 1992. As mentioned above, SOS harks back to the
earlier Interim CWO, with strict impervious cover limits between 15-25% within
the watershed, as opposed to the Composite which allows between 20-70%. SOS
also lists 13 specific pollutants, and requires new developments not to
increase the amount of contaminants measured before building takes place; the
composite lists only four, and requires testing only after the development goes
up. More importantly, the Composite allows variances and exemptions; SOS does
not.
If the council adopted the Composite II last fall, why would SOS go back into
effect now? The issue is a bone of contention between attorneys for both sides.
Minton has argued that SOS is not in effect, since the council voted to adopt
the Composite, with wording in the ordinance that it “apply to development
within the Barton Springs Zone pending a final judgement and exhaustion of all
appeals.” But the council didn’t replace SOS, contends Watkins, it only added
the Composite to it. In addition, he says, the council voted 5-1-1 to adopt
Composite II; 6 votes are actually required by city charter laws for the
Composite rules to supercede SOS rules. Slusher says City Manager Jesus Garza
is working on a way to remove the offending clause in the Composite II to avoid
those legal hassles already brewing.
Minton says he will file a
request for a stay of the appellate court’s ruling, to keep the Composite II in
effect until the end of his appeals, along with a request for a rehearing. The
plaintiffs have 15 days from July 31 to do so; if the requests are rejected,
they may have up to 60 days to file a “writ of application” to the Texas
Supreme Court for a hearing. Unlike the lower courts, there is no automatic
entry into the Supreme Court’s docket — plaintiffs must apply and have their
cases chosen by the judges. According to Watkins, about one out of every ten
plaintiffs that apply are heard. For the most part, the Texas Supreme Court,
like the U.S. Supreme Court, hears cases that are based on principles and
philosophy, which is probably why Minton wants to paint their appeal as a
“property rights” issue. And yes, the Texas Supreme Court is led by a
Republican majority, but bets are even as to whether they would lean more
toward the property rights argument, or toward the essentially Republican
principle of home rule autonomy.
In any case, gone are the days of algae ties, and probably, too, all-night
hearings and harlequins dancing outside council chambers with bells and
placards. The lawyers are battling now. And things are relatively calm on the
environmental front. The public’s fervor appears spent. Is there any energy
left in Austin’s grassroots for another war over the watershed? Goodman offers
a sobering comment. “People are probably just tired of hearing about the SOS
case and just want it to go away.” Maybe that’s true, but the reality is, the
war has only just begun: If Bunch and sources at City Hall are to be believed,
the council is planning further legal action against those two new laws that
Circle C and FM Properties are basking in right now — HB 3193 and SB 1017.
Maybe the city has only begun to fight — now, isn’t that worth at least a
little confetti?
This article appears in August 9 • 1996 and August 9 • 1996 (Cover).