Are Austin’s hands tied on another land-use battle over the aquifer? Those who believe the Legislature gave Lowe’s the upper hand in its fight to build a new facility on Brodie Lane say Austin is smart to cut a deal that would generate an extra $600,000 a year in sales taxes.
And as of last week, a deal — for better or for worse — appeared to be headed for a City Council vote.
A council-approved settlement agreement, if it comes to that, would be a real downer so soon after Wal-Mart’s celebrated retreat from its plan for a Supercenter over the aquifer at MoPac and Slaughter Lane. A favorable vote could also do irreparable harm to neighborly relations between Austin and Sunset Valley — the little city to the southwest that tried to circumvent Lowe’s plans by releasing the land to Austin’s extraterritorial jurisdiction.
The Sunset Valley assumption then was that Austin would enforce its Save Our Springs water-quality ordinance and cap the development at 15% impervious cover — not at the 40% figure that’s on the table now. Austin seems inclined to give in on the 40%, though Lowe’s has promised otherwise to comply with water-quality controls, eliminate the use and sale of coal-tar-based pavement sealers, and adhere to the city’s Green Builder and Grow Green programs.
By brokering an agreement with Lowe’s, city staff and counsel Casey Dobson are giving Lowe’s reps and landowner Eli Garza the benefit of the presumption that their land rights are sustained by House Bill 1204. The legislation, passed this spring, essentially streamlines city and county development regulations in extraterritorial jurisdictions. The bill simplifies development because it is easier to work with only one set of subdivision regulations outside city limits. Hardly anyone disputed that proposition. But it also contains some stealth language tailor-made for Lowe’s. The retailer’s local reps lobbied the bill’s sponsors — Austin Rep. Todd Baxter and San Antonio Sen. Jeff Wentworth — to add language that, according to Lowe’s, allows them to skirt SOS compliance, by effectively placing the tract under much less restrictive Travis Co. jurisdiction. (An ironic side note to the bill’s passage was the seeming lack of effort on Austin’s part to stop the legislation, despite the millions spent on a team of lobbyists. That team included Dick Brown, who has previously lobbied on behalf of Austin-bashing bills.)
Lowe’s attorney Terry Irion argues that, because his client had a development application pending with Sunset Valley when the land was released to Austin, Sunset Valley’s then-current impervious cover limits — 40% — should apply. (Sunset Valley has since reduced its cap to 18%.) And he says HB 1204 confirms that with Lowe’s tailor-made grandfather clause (see “Open to Interpretation?” below).
Sunset Valley officials and Save Our Springs Alliance attorney Brad Rockwell believe Irion’s interpretation of HB 1204 should be tested in court. As Rockwell argues in a letter to City Council, Lowe’s never had a valid application with Sunset Valley because the document was administratively incomplete. Further, Sunset Valley never cashed the check submitted with the application, and it was returned within 48 hours. The city of Austin similarly rejected Lowe’s application. (That’s when Lowe’s sued, and that lawsuit is what the proposed settlement agreement is aimed at resolving.) The anti-Lowe’s forces also argue that the city should enforce its SOS regs by withholding water and wastewater services to the site — because for Lowe’s to establish its own septic system and water wells could be more trouble than it’s worth.
Adding to the complexity of the case is that Travis Co. — also thanks to HB 1204 — is wading into unfamiliar territory with its new land-use authority. The county has already approved Sunset Valley’s preliminary plat application, but it’s conditioned on one of two things: either a negotiated agreement between Austin and Lowe’s or a court ruling in Lowe’s favor.
For now, Austin doesn’t appear willing to bet the farm on a court opinion — especially if that could mean even fewer development restrictions than required under the settlement agreement. And if the City Council rejects a settlement? Irion doesn’t hedge: “I’ll go to court and ask for a declaratory judgment.”
Open to Interpretation?
Lowe’s is hanging its hat for its development plans on a single sentence in HB 1204:
“Property subject to pending approval of a preliminary or final plat application filed after Sept. 1, 2002, that is released from the extraterritorial jurisdiction of a municipality, shall be subject only to county approval of the plat application and related permits and county regulation of that plat.”
Translation: Lowe’s filed a preliminary application with Sunset Valley several hours before its City Council voted to release the property in question to Austin’s jurisdiction; therefore, Lowe’s attorneys assert, the development now falls under county regulations. Sunset Valley officials counter that Lowe’s application was rejected as incomplete and the check returned, so no such valid application existed.
This article appears in October 10 • 2003.
