Texas 130 meeting paves way to more meetings

Officials cite need for bigger discussion of growth questions for

Dear FA Friends, Neighbors and Members, Seems Regional Planning is catching on. Let’s hope it really works here. We know it has elsewhere in the US. The article below outlines the general need for planning around Texas 130, which is akin to the FA asking for planning around and ahead of LCRA pipelines. Envision Central Texas, which the FA still has a board member on, will be taking the lead here, it appears. Please read on for the Statesman article below.

Texas 130 meeting paves way to more meetings

Officials cite need for bigger discussion of growth questions for tollway corridor

By Stephen Scheibal AMERICAN-STATESMAN STAFF Friday, July 8, 2005

More than two dozen Austin-area planners piled into a boardroom Thursday to begin — or, really, begin to begin — plotting the future of the corridor around the new Texas 130 toll road.

Everyone quickly agreed they will need more people next time.

The meeting was designed to deepen the talks that organizers hope will evolve into a growth plan for the 130 corridor.

The 49-mile road, half of which will be beyond Austin’s regulatory reach, will probably ignite a building boom along the region’s historically neglected eastern flank. But most of the cities, counties and other agencies along the corridor lack the jurisdiction or the resources to plan for the growth, leaving residents and officials in fear of poor development that could sap tax rolls with high maintenance costs and lower property values.

Thursday’s meeting involved a range of parties with an interest in the corridor. Yet organizers conceded that the spectrum will be far too narrow to plan development in the corridor.

So those present agreed to convene a much larger meeting this fall. And most agreed that Envision Central Texas, an Austin-rooted planning group, should coordinate future talks.

Thursday’s discussions helped illuminate some of the pitfalls that planners will face as they try to plot the future of the Texas 130 corridor:

* Austin City Manager Toby Futrell warned that officials must avoid allowing the tollway to become a dividing line between rich and poor.

* Representatives from the Lower Colorado River Authority, the agency that manages most of the region’s surface water, offered to work with rural officials to discuss the new highway and what it will bring.

* West Lake Hills Mayor Dwight Thompson, who is chairman of a group of 21 Central Texas cities, said policies must ensure that smaller jurisdictions will join the planning process and not desert it.

* Bob Tesch, chairman of the Central Texas Regional Mobility Authority, warned that some landowners probably will be asked to give up property rights and might fight the planning process.

* John Langmore, an Envision Central Texas committee chairman, noted that no single agency has planning jurisdiction over all of 130’s path.

“We do not want history to repeat itself and have 130 turn into (Interstate) 35,” Langmore said. He added that along the region’s often-clogged spine, “Pretty much whatever anybody wants to put up, that they can financially afford to put up, goes up.”

But the most prescient warning for Central Texas — a region in which distrustful governments sometimes spend as much time fighting as they do cooperating — may have come from Guadalupe County Judge Donald Schraub, whose court in Seguin is closer to San Antonio than Austin.

Schraub attended the meeting to remind officials that Texas 130, originally planned to extend all the way to the San Antonio area, will go no further south than Travis County when the first phase opens in less than three years. He came away less than optimistic that officials will draft a regional plan that would appeal to an entire region.

“I think a bunch of people have gotten their minds set about what they want to see,” Schraub said. “Cities have notoriously always taken advantage of rural areas.”

sscheibal@statesman.com; 445-3819

Regional Water Quality Protection Plan Completed

Dear FA Friends, Neighbors and Members, Following is an email from Terry Tull to the community relating to the presentation of the results of the Regional Water Quality Protection Plan to the Texas Water Development Board. Terry, who is a retired Navy Captain and Naval Architect with degrees in Architecture and Planning, was fortuitously available to shepherd this process through to today, and for this we should all be grateful. We cannot thank him enough. Please read on.

From: Regional Water Quality Planning Office <regionalplan@zeecon.com> To: regionalplan@zeecon.com Sent: Thu, 23 Jun 2005 17:14:15 -0500 Subject: Regional Water Quality Protection Plan Completed

Greetings Regional Water Quality Stakeholders, This update is to let you know that the Regional Water Quality Protection Plan for the Barton Springs Segment of the Edwards Aquifer and Its Contributing Zone has been completed and may be found on the Project website, www.waterqualityplan.org, after today. Thanks to a great deal of work by the Stakeholder Committee and our consultant, Naismith Engineering, the Final Water Quality Protection Plan was completed this month and delivered to the Executive and Core Committees.

On June 13, the Core Committee endorsed the Final Plan as follows: “The Core Committee of the Regional Water Quality Planning Project for the Barton Springs Segment of the Edwards Aquifer and its Contributing Zone endorses the final draft of the Regional Water Quality Protection Plan, including the amendments dated June 3, 2005, as a framework for adoption of water quality standards by the local governments represented on the Core Committee, recognizing that each has a unique role to play in achieving the regional solution and that it will take more time and a continuing strenuous effort by government and the public to reach the level of water quality protection described in the Plan.”

On June 22, the Final Plan was delivered to the Texas Water Development Board. We are now making arrangements to print and distribute copies of the Final Plan to the members of the Executive, Core and Stakeholder Committees who worked so hard to create the Plan, and to the local jurisdictions they represent. We are also making arrangements so that individuals may purchase copies of the Plan from local printing outlets. We will be sending out further details about these arrangements over the next few days. My role in the Regional Planning Process is drawing to a close. My appointment as the Executive Director ends officially today. However, I have volunteered to help the City of Dripping Springs, which has served as the Project Administrator, to attend to remaining administrative and financial details over the next few weeks. Therefore, you may continue to receive a few more emails from me. While the planning process is drawing to a close, the implementation process is just beginning. All of us, as stakeholders, have a role to play in the implementation process.

It has been my privilege to serve you over the past year while this important planning work was done.

Thank you for your support and interest in planning for the protection of our vital regional water assets.

Sincerely, Terry Tull Executive Director Office: 512.858.2148 Mobile: 512.663.2093 FAX: 512.858.5646

US Mail: Regional Water Quality Planning Project c/o City of Dripping Springs PO Box 384 Dripping Springs, TX 78620 Website: www.waterqualityplan.org

LCRA drops development limits

Hill Country projects can tie into water lines by meeting new state rules.

Dear FA Friends, Neighbors and Members,

From Tuesday’s Statesman is a damning article that typifies the LCRA’s bait and switch behavior we’ve observed these past few years. While we often find words like “bait and switch” to be hyperbole or inappropriate, in this case it is simply the truth, plainly spoken. We cannot begin to chronicle the number of meetings in the LCRA boardroom and elsewhere that we attended with staff and/or GM Joe Beal, where we were assured that these new pipelines would require specific rules to be followed in order to receive water. And now we are left with a veritable free for all of development regs for all comers getting LCRA water in the Hill Country.

Granted, the LCRA points out and has pointed out in the past, that regs and enforcement of them should be a local government issue, but it has been their pipelines that have caused the urgent need for these regs. And it has been their disingenuous reassurances to the community about their own committment to us, that worked to minimize objections, as they sought to mollify the community rejections of their plans. At this they succeeded, as citizens who were unfamiliar with the histrorical mendacity of the LCRA acquiesced in the wake of their false assurances. Now, our over-developed roads will be littered with their lies.

Sadly, we all recognize the need for water out here, whether by rain collection, well or surface supply. But, unlike the financially motivated LCRA, we who live here tend to understand that there is a solid relationship between planned growth and its localized economic and environmental benefits and an obverse relationship with unplanned growth, it’s associated sprawl and subsequent negative affects on our schools, tax base, home values and environment. Neither of these relationships actually matter to the LCRA. What does matter to them is simply having more paying customers, which puts them in direct opposition with planning. The LCRA has paid lip-service to our concerns for five years now and their true ideals and unprincipled approach is now laid bare in the wake of USFWS abdication of oversight to the TCEQ. While the article makes it sound as though “new state rules” will takeover, what it fails to explain is that these “state rules” are virtually non-existant and unenforced, leftover in the backroom deal cut between Washington and Texas to abandon US Fish & Wildlife Service monitoring of our area to the TCEQ. Again, a reality that does not mean “local control” as it should, but rather state sponsored abandonment of protection guidelines for the Hil Country, as it relates to LCRA provided water. This ultimately becomes a massive state “agency” sponsored subsidy of LCRA infrastructure for developers.

Support for and institution of our Regional Water Quality Planning project of the last year is now more critical than ever. It is now up to Dripping, Hays County and other municipalites to fill the glaring vacuum left in the wake of the LCRA. Please read on.

LOWER COLORADO RIVER AUTHORITY http://www.statesman.com/news/content/auto/epaper/editions/tuesday/news_243da67da0fe6230001a.html

LCRA drops development limits Hill Country projects can tie into water lines by meeting new state rules.

By Stephen Scheibal AMERICAN-STATESMAN STAFF Tuesday, July 12, 2005 For years, the Lower Colorado River Authority has dictated the laws of the land in Central Texas: If you wanted its water, you followed its rules.

Since 2000, the agency has required developers in environmentally sensitive parts of the Hill Country to follow federal standards limiting the density of houses, roads and other hard surfaces.

But federal regulators are no longer enforcing those limits, so neither is the LCRA, a move that has some people fearing for the health of endangered species, particularly the Barton Springs salamander.

The river authority announced last week that it will no longer require builders to meet limits on pavement or building cover. To get water service, developers now will follow new state standards that don’t cap such density.

The change marks the first ? and, perhaps, most meaningful ? fallout from a recent decision by the U.S. Fish and Wildlife Service to allow state environmental officials to enforce new standards that lack restrictions the agency once considered critical for protecting endangered species.

“It’s significant, and it is troubling,” said Daryl Slusher, a former Austin City Council member who helped lead a Central Texas planning effort that looked at environmental protections.

LCRA spokesman Robert Cullick said his agency, which manages water resources in the Colorado River basin, cannot block development that environmental regulators allow or impose restrictions that environmental agencies will not.

“The federal government has determined they’re not necessary,” Cullick said.

Limits that guided development by LCRA customers for a half-decade centered on the Barton Springs salamander, which lives only in Austin’s iconic swimming hole and went on the federal endangered species list in 1997.

Rainwater runoff flows across a 371-square-mile watershed along the Travis-Hays county line before percolating into the underground aquifer that feeds Barton Springs.

The U.S. Fish and Wildlife Service is charged with enforcing the Endangered Species Act and protecting the salamander. Regulators previously used limits on pavement and other forms of impervious cover in the watershed to maintain the quality of water flowing into Barton Springs.

Environmentalists and many scientists believe such hard surfaces can create pollution themselves or attract it from vehicles and other sources, plus make it easier for the pollution to enter water streams through stormwater runoff.

This year, the Fish and Wildlife Service recognized a set of optional standards that were drafted, and will be enforced, by the Texas Commission on Environmental Quality.

The new standards do not limit impervious cover. However, the Fish and Wildlife Service and the state environmental commission have said they will be sufficient to protect water quality in the watershed.

Developers who abide by the standards ? which the state considers optional ? will be judged to have not harmed the salamander. Those who don’t abide could go through an environmental review with federal regulators.

The old development rules, on par with Austin’s Save Our Springs water quality ordinance, were best seen in the Fish and Wildlife Service’s partnership with the LCRA.

The restrictions essentially forced developers in the watershed to limit their projects in exchange for a water supply. The limits were a key selling point when the LCRA sought support for new water lines in the watershed.

Harry Savio, executive vice president of the Homebuilders Association of Greater Austin, said the region is better off following a single set of regulations established and enforced by the state.

“LCRA is in the water supply business. They’re not in the land-use business,” Savio said. And because there are few water options besides wells for Hill Country developers outside of Austin, he added, “In many ways, they’re becoming the only alternative source.”

But the Save Our Springs Alliance, which sued to make sure watershed developers followed the old rules before receiving LCRA water, said the change will only hasten a planned lawsuit over the state standards.

“Development will be done differently,” SOS lawyer John Fritschie said. Cullick noted that landowners, activists and government officials across the region have worked on a growth plan for the watershed that may offer more protections for water quality and the salamander.

And Slusher said LCRA’s decision makes it more important that smaller governments take action to limit the effects of development on water quality.

“By bringing the water, LCRA is potentially catalyzing much more growth over the aquifer,” Slusher said. “I think they have a responsibility to protect water quality as they spark more growth in any area.”

It’s unclear what will happen if developers who have already agreed to the development limits decide they want to change or scuttle their contracts and build projects under the new guidelines.

Cullick said the agency’s board would have to decide how it would handle such an issue.

“I think there’s always a difference between people who are in an area early and people who are in an area later. It’s rare that the same set of rules apply to all development,” Cullick said. “Usually, it goes against the people who wait. This time, they may think it doesn’t.”

sscheibal@statesman.com; 445-3819

State hearing to discuss Edwards Aquifer

The Texas Commission on Environmental Quality will hold a hearing today to receive comments on how the agency should protect the Edwards Aquifer from pollution. The hearing will be at 9:30 a.m. at the agency’s office complex on Interstate 35 in North Austin: 12100 Park 35 Circle, Building E, Room 201 S.

Optional measures to protect Barton Springs

By voluntarily following a new set of standards, which will be administered by the Texas Commission on Environmental Quality, developers can avoid potentially difficult reviews by the U.S. Fish and Wildlife Service of their projects’ effects on the Barton Springs salamander and other endangered species, as well as tap into Lower Colorado River Authority water lines that run through the Barton Springs watershed. The new rules:

-Impose no limits on pavement, buildings and other forms of impervious cover.

*-Protect caves, creeks and other features with buffers.

-Require gates over caves and similar features.

*-Call for devices that trap sediment and pollution.

-Require maintenance records to be submitted every three years.

** Change from previous Fish and Wildlife Service rules.

Driveway Sealant Threat to Watersheds

Industries hear city’s findings on pollution More data on parking lot sealants is needed, company representatives say.

Special Series: ‘Toxic Waters: An Austin treasure at risk’

By Stephen Scheibal

AMERICAN-STATESMAN STAFF

Tuesday, July 19, 2005

Austin officials who think they’ve found a new pollution problem presented it Monday to people who may prove part of the solution: representatives of companies making or applying chemical sealants that protect parking lots.

The city and the U.S. Geological Survey released a study last month tying parking lot sealants to a rise in pollution from polycyclic aromatic hydrocarbons, or PAHs, in urban waterways. PAHs in sufficient concentrations and exposure levels can threaten the health of humans or aquatic life, though officials say the contamination levels they’ve found probably will not make people sick.

Monday’s meeting, held in a small ballroom in the Lions Municipal Golf Course clubhouse, allowed the city to present the findings of the study and to collect reactions, and advice, from the industries that are closest to the chemicals.

Through the extremely technical discussions of statistical studies and chemical concentrations, the audience of about a dozen industry representatives warned that the study might not account for variations in products or parking lots, not to mention a range of PAH sources from motor oil to the wood smoke that flavors barbecue.

“There’s always more to the story,” said Bob DeMott, an environmental consultant studying the sealant findings for an industry group called the Pavement Coating Technology Center. “The beginning finding is only a beginning. The story is always more complicated in the end.”

Last month’s report blamed parking lot sealants for as much as 95 percent of the PAH pollution in urban watersheds.

City officials have said they might seek to ban some sealant products to protect the environment.

Austin officials have worried about pollution from parking lot sealants for years. When the American-Statesman published stories in 2003 about pollution in and around Barton Springs Pool, the city pointed to the sealants as a likely source.

High levels of PAHs also have been found in parts of Waller Creek through the University of Texas campus, the ponds in the Central Market area north of UT, and Walnut Creek in North Austin.

City officials were most concerned about sealants made from coal tar. The substance comes from a toxic byproduct of coke, a fuel that’s used in the production of steel. PAHs are primary components of coal tar sealants.

Such products are usually easy to find at home improvement stores, though the city has worked with sellers and contractors to stem their use.

But authors of last month’s report stopped short of narrowing the blame for PAH pollution, saying it isn’t clear that other types of sealants, including asphalt-based ones the city has recommended, are substantially better for the environment.

Peter Van Metre, who represented the U.S. Geological Survey at the meeting, closed his presentation by noting substantial increases of PAH levels in Town Lake as well as urban waters in Chicago and Virginia.

“This could be an important source that has not been looked into,” Van Metre said.

DeMott, in turn, rattled off a menu of information that he still wants to see about the study’s methods and findings.

“Right now,” he said, “there are a lot of details that are only available in city offices.”

sscheibal@statesman.com; 445-3819

County to take up water rule proposals

Commissioners Court to consider regulations for development.

Dear FA Friends, Neighbors and Members,

What follows is from today’s Statesman. In light of LCRA’s recent abdication to TCEQ of their responsibility for their pipelines, and the pollution complaints brought on by their provision of water to “West Cypress Hills” that has in turn caused their Lick Creek neighbors to notice a dramatic degradation of their once pristine creek, this has caused Travis County to fianlly take notice, much as we in Hays did a few years back. While Gerald Daugherty, the Travis County Commissioner for SW Travis, is credited with beginning discussions in his area regarding these issues, it should be noted that he was the one participant in our Regional Water Quality Plan Process who arguably resisted the planning process the most. While he has initiated some dialogue in Travis, now that these issues have reared their heads in his own backyard precinct, one must not forget his vocal resisitance to these very same planning concepts when they affected us, here in Hays. This is not so clear in this article. For the sake of SW Travis, let’s hope this is indicative of a change of heart as opposed to the appearance of a Trojan Horse.

County to take up water rule proposals Commissioners Court to consider regulations for development.

By Marty Toohey AMERICAN-STATESMAN STAFF Tuesday, July 19, 2005 Travis County today will discuss a set of proposed water quality regulations designed to beef up its weak regulatory authority and avoid a repeat of the damage to a pristine creek caused by construction in a nearby subdivision.

The regulations would cover an array of topics, from new administrative processes to restrictions on building along ridgelines, waterways and other features deemed environmentally sensitive.

Some rules would be entirely new. Others would mirror those created by other agencies, effectively allowing the county to act as another enforcer.

After the county Commissioners Court hears the proposals today, there will be a 30-day public comment period.

Travis County, the governmental entity primarily responsible for unincorporated areas, now has limited authority over what’s built, where it’s built and how it’s built.

County Judge Sam Biscoe said the county has for years tried to beef up its subdivision regulations, which “didn’t really have teeth.”

In 2001, the state Legislature broadened the power of counties to regulate development, and Travis began examining how to use that authority, Biscoe said.

In 2003, people living along Lick Creek began complaining of chalky runoff in the waters. The Lower Colorado River Authority eventually fined an upstream development, West Cypress Hills, $5,000 and temporarily halted construction because of improper building techniques.

The Lick Creek situation galvanized discussions about how best to regulate development in the county. Talks included the county’s role. They proceeded in fits and starts, as landowners, environmentalists, developers and neighborhood associations clashed over what power the county should exercise.

County Commissioner Gerald Daugherty held a series of talks among landowners, developers and residents in southwestern Travis County, which is mostly unincorpor- ated.

The talks ended in June with a list of recommendations.

In March, as the talks were going on, the Commissioners Court issued a near-morator- ium on building in unincorporated areas after the various interests disagreed on the merits of some proposed regulations.

The moratorium, which will expire July 31, was issued to buy time to make the regulations more palatable.

The regulations that the county is now considering probably will be supplanted again late this year or early next year. The county, officials have said, will continue refining its regulations and present a more permanent set later.

mtoohey@statesman.com; 445-3673

Proposed water quality regulations

For a copy of Travis County’s proposed regulations, call the office of County Judge Sam Biscoe at 854-9555. The Commissioners Court will hear a presentation of the proposed rules today. They include:

– Minimum distances that buildings must be from ridgelines and waterways.

– Extra building requirements for developments on sloped land.

– Identical steps for dealing with stormwater runoff as required by the Lower Colorado River Authority.

– A requirement that developers prove early in the approval process that water and sewer utilities will provide adequate service by the time residents move in.

County presents water-quality regulations

Audience reaction mixed

County presents water-quality regulations

Audience reaction mixed

By Marty Toohey AMERICAN-STATESMAN STAFF Wednesday, July 20, 2005 A proposed set of Travis County environmental and building rules got mixed reactions Tuesday, with some saying they would be too lax and others saying they would be illegal.

The rules, presented during the Commissioners Court’s weekly meeting, would cover numerous topics, including new steps in the permitting process and new rules designed to protect the area’s water quality. They would affect only unincorporated areas of the county, which make up about 20 percent of the land.

The Commissioners Court is scheduled to decide on the regulations next week, County Judge Sam Biscoe said.

Officials said the rules would be a short-term fix, designed to beef up the county’s weak regulatory authority while discussions continue on long-term regulations. Joe Gieselman, head of the county’s Transportation and Natural Resources Department, said Tuesday that the rules are a fair short-term solution but “are not perfect, and we’ll admit to that.”

That appeared to be the general consensus among the handful of people who spoke about the regulations.

Brad Rockwell, a lawyer with the Save Our Springs Alliance, said the rules don’t do enough, particularly for the Edwards Aquifer. The rules, Rockwell said, should include additional measures, including limits on the percentage of a property that can be paved or otherwise covered by materials that keep water from seeping into the ground.

Neighboring jurisdictions, including places such as the cities of Austin and Sunset Valley, have such limits in place.

But Larry Niemann, an Austin attorney who said the rules would affect property he owns, told the commissioners that the county does not have the right to regulate water-quality issues.

“I beseech you to proceed carefully,” he said, “before you bring the county into a declaratory lawsuit judgment.”

At issue is the interpretation of several laws, including some passed in 2001 that gave urban counties greater latitude to regulate subdivisions.

The county contends that those laws give it the authority to regulate environmental issues that relate to subdivisions, such as the distance houses must be built from ridge lines and creeks.

Niemann and other landowners and developers present Tuesday said the county does not have the right to regulate those environmental issues and would land values. A legal brief from Alan Haywood, a lawyer representing several land- owners, said the county is interpreting the laws too broadly.

Biscoe disagreed. He said he didn’t think a court had ruled on the relevant issues, “so there’s two ways to read it now: their way and our own.”

“Our lawyers are still not wavering,” he said, “so we’re not either.”

mtoohey@statesman.com; 445-3673

Some of the proposed rules being considered

Many of the proposed regulations mirror ones enforced by other agencies, including the Texas Commission on Environmental Quality. Others are new. The proposed regulations include:

* Minimum distances that buildings must be from ridgelines and waterways.

* Extra building requirements for developments on sloped land.

* Steps for dealing with stormwater runoff matching those required by the Lower Colorado River Authority.

* A requirement that developers prove early in the approval process that water and sewer utilities will provide adequate service by the time residents move in.

To obtain a copy of the proposed water quality and subdivision regulations, contact the office of County Judge Sam Biscoe at 854-9555.

 

DS City Attorney Resigns

Dear FA Friends, Neighbors and Members,

The Friendship Alliance was originally founded and incorporated in 2001 to provide a collective voice and forum for concerned Northern Hays homeowners and their respective Property and Homeowners’ Associations (POAs & HOAs). We were moved to do this when some legal issues came to the attention of a few FM1826 POA & HOA board members, initially from Bear Creek Estates, Fieldstone, Goldenwood and Radiance. It turned out that our own government in Dripping Springs, which was then comprised of a considerably different City Council (whom we could not vote for or against) was signing Development Agreements (DA) that could not then stand the test of law. But being civil law, we could only change their approach by seeking recourse in court, since at the time, Dripping Springs was not willing to admit to any legal errors as it related to these incorrect DA’s. And these DA’s, since they were far reaching, long-term contracts between these new to the area large-scale developers and the city, became, to us in the FA, critical to all of our futures and truly emblematic of the need for principled and ethical governance.

By banding together, in a similar spirit to OHAN (Oak Hill Association of Neighborhoods), we felt a need and void could be filled and a voice gained. Time has born this out, with the FA suit settlement resulting in the rescinding and editing of the more offensive DA clauses, the passage of a city ethics ordinance, new subdivision regs, creation and acceptance of the Regional Water Quality Plan, election of two FA board members to the Hays Trinity Groundwater Conservation District, the appointment of an FA founder as Executive Director to the Regional Water Quality Plan and most recently, the appointment of our earliest counsel (in our early efforts to unravel the City’s behavior), Alan Bojorquez, as the new DS City Attorney. Mr. Bojorquez, who had come to our attention through recommendations by Mayors in Wimberley and Bee Cave, advised us initially and in time we, along with others, recommended him to the City of Dripping Springs.

To say that things have changed in Dripping Springs government, as it relates to those of us living in the ETJ, would arguably be an understatement. The leadership provided by Mayor Purcell, the present City Council and staff of Michelle Fischer and Ginger Faught has been commendable and should not be ignored, nor taken for granted.

From The Austin Chronicle

http://www.austinchronicle.com/issues/dispatch/2005-07-29/pols_naked.html

“With surprisingly little fanfare, Rex Baker III – a real estate lawyer/investor, title company owner, and Hays Co. justice of the peace – resigned from his position as Dripping Springs city attorney earlier this month. Baker cited a hectic work schedule and added responsibilities as the reasons for his July 12 resignation. Neighborhood groups and outside critics had long questioned Baker’s multiple roles in a small town that saw its greatest growth spurt during his seven-year tenure as city attorney. Much of the growth continues to spring up in sensitive recharge areas of the Edwards Aquifer. Baker profited from the development boom, which left many taxpayers wondering if his development ties influenced his legal advice to the mayor and city council in approving zoning requests and development agreements. Baker always insisted that he was without conflict, and pointed to his position on the state bar’s Judicial Conduct Committee as proof. Should a conflict arise, Baker told the Chronicle in 2002, he simply recuses himself from the matter and another attorney steps in. This time, another attorney has stepped in to replace Baker altogether. He is Austin attorney Alan Bojorquez, who has served as special counsel to the city for the last two years. Baker now fills Bojorquez’s role as special counsel.

–Amy Smith

Where Water Quality Rights and Property Rights collide

Dear FA Friends, Neighbors and Members,

Presently, there is a bit of a Battle Royale raging in the Statehouse and in our local cyberspace, regarding Water Quality Protection measures and their affect on the concept of Property Rights. Before the Lege right now, particularly the Senate in the form of SB1647, are bills that will work to increase our taxes, provide taxpayer funded profits to developers and diminish our quality of life immeasurably, if allowed to pass.

This effort to crush our towns’ and cities’ abilities to protect groundwater supplies is being funded, in particular, by the recently debunked group, The Texas Landowners Conservancy. This is the group that made last Sunday’s front page of the Stateman in an article that clearly pointed out their origins, their real estate backed funding and their misleading name, “Texas Landowners Conservancy,” established to create a land steward brand indentity that is actally in direct opposition to their stated purpose and goals, which are the eroding of local authority over their right to develop, pollute the watershed and/or protect it at our expense and to profit handsomely at the public trough. Basically, they opine that any law requiring them to develop at certain science based levels of impervious cover in order to sustain an aquifer or watershed safely is a “taking.” This new definition of “taking” flies in the face of all historic interpretation of the US Constitution’s Fifth Amendment no matter how hard they try to convince us otherwise. They are also working to create law that will not only disallow our healthy regulation of their affects on the watershed, but will also cause cities to pay them for developing at less than 45% impervious cover. Since many subdivisions are already done at around 25% for simple marketing reasons, this means developers will be paid by us to do what they planned already anyway. This, on top of the profits generated by their sales and on top of the infrastructure improvements and tax increases we will see for new roads and schools associated with their developments.

Former Ag commisioner, Susan Combs takes a fallacious stab at this new Fifth Amendament theory in the editorial below, which is followed by a remarkably cogent rebuttal by Gene Lowenthal, a large property owner and development investor in his own right, who lives along Hamilton Pool Road. In between Ms. Combs editorial and Gene’s rebuttal are some quoted case law opinions from the US Supreme Court regarding this very issue. They clearly illustrate how Susan Combs and others, such as Lanny Counts of the Dripping Springs P&Z, are working feverishly to mislead us or they simply misunderstand historic legal fact. These efforts are aimed specifically at two recent regulatory efforts in the area, as Ms. Combs alludes to. One is the effort to make the LCRA responsible for the results of their pipelines and the stakeholder driven Regional Water Quality Plan. Both of these efforts have been suggested, supported and spearheaded by The Friendship Alliance. Ironically, Ms. Combs even points out that Water Quality rules didn’t matter so much while they were in the jurisdiction of Austin, but that any attempt to spread these legitimate concepts elsehwhere in the state must be met head on and defeated. She also notes, somewhat misleadingly and most likely out of context, that the Texas Supreme Court pointed out that Austin Water Quality Regulations were responsible for a 90% reduction in the value of land. What she fails to point out is that there are also parcels whose value argaubly increased due to these very same kinds of protections.

Please read on and make up your own mind.

And then Call Senator Wentworth (463-0125) and get him to promise to vote against these bills that are against Water Quality protection and his own constituents’ greater interests.

Rob Baxter

The Legislature Must Reaffirm the Constitutional Right of Just Compensation for Landowners

By SUSAN COMBS

Embedded in the Fifth Amendment of the U.S. Constitution is a fundamental protection for American land and homeowners: private property cannot be taken for public use without just compensation. Public entities are entitled to take property when there is a demonstrable public good—examples include condemning property for use as road right-of-ways, new schools, flood control and the like. If private property is taken this way, the people who own the land are guaranteed a just compensation. In 1995, we passed SB 14 to accomplish that purpose.

As environmental regulations in some parts of our state have grown more stringent over the last two decades or so, the definition of what constitutes “takings” has blurred. We are now at a critical point where some types of environmental regulations are, in effect, takings, because they cause dramatic devaluation of private property. If such regulations are for the betterment of the general public, then the landowner who pays a dear price in loss of value should, under both our state and federal constitutions, be compensated fairly. Unfortunately, that is not the case in Austin.

In 1992, our Capital City’s electorate passed the Save Our Springs ordinance, a stringent anti-growth and land-use law labeled “water quality” protection. In addition, the city passed regulations over residents of the ETJ who couldn’t vote “for” or “against” the ordinance. Over the ensuing years, SOS, as it is widely known, has been used as a tool to prevent growth and devalue real property. SOS requires that many Austin-area developments not exceed 15 percent “impervious cover,” regardless of scientific evidence that clean-water standards can readily be met at higher percentages of build-out. SOS has been challenged all the way to the Texas Supreme Court, where it was ruled constitutional under Texas law. In that ruling in 1998, the Supreme Court noted that SOS was directly responsible for a 90 percent reduction in the value of land. By any reasonable person’s definition, that is a taking.

The bottom line: If it is constitutional for public entities such as the City of Austin to take private property for the public good, then the City of Austin should pay the landowners a fair price for that property. To no one’s surprise, the city is not rushing to write checks to anybody.

It was easy for the rest of Texas to ignore SOS—most of us thought it was just Austin being Austin and that this extraordinarily destructive law would never apply to the rest of Texas.

Well, take a deep breath Texas homeowners and landowners: SOS may be headed your way. There is a legislative effort underway which would extend SOS-type standards to a swath of Texas that encompasses 10 counties.

If a landowner decides to develop a piece of property, a river authority would have the authority to adopt impervious cover limitations on the land. Land that Texas families have been counting on to pay for their children’s college educations or for retirement will be devalued, virtually overnight.

Who will pay the landowners for this loss of value? A river authority? The counties where the farms and ranches are located? The sad truth is that no one is currently required to pay for this devalued land. The issue of paying landowners a fair price for “takings”—and of defining exactly what constitutes a taking—is front and center at the Legislature this session, as elected leaders debate a bill aimed at solving this problem. Our legislators have a chance to ensure that our right of just compensation is codified in Texas law. Sen. Todd Staples (R-Palestine) and Rep. Robby Cook (D-Eagle Lake) are both carrying legislation to clarify the definition of a taking and to ensure landowners are fairly compensated if their private property is taken by a public entity.

The Legislature has an opportunity to reaffirm a right we’ve all taken for granted: owning and enjoying private property. The time is now, and the stakes are great. Let’s preserve a value Texans hold dear: no taking of private property without just compensation.

The Hon. Susan Combs has served as the Commissioner of Agriculture for the State of Texas since 1999. She served two terms in the Texas House of Representatives and is a fourth-generation Texas rancher. She was the House author of the state’s private property rights legislation. EDITORS: For information on the bill, please contact Elizabeth Christian at echristian@echristianpr.com or call 512-472-9599. For comment from Commissioner Combs, please contact Allen Spelce at 512-475-1669.

FROM THE U.S. SUPREME COURT RECORD

DAVID H. LUCAS v. SOUTH CAROLINA COASTAL COUNCIL 505 U.S. 1003 (1992) U.S. SUPREME COURT Decided June 29, 1992

In this case, the opinion was written by arguably, the most conservative Supreme Court Justice of the last fifty years, Antonin Scalia. Justice Scalia delivered the opinion of the Court writing:

“The Fifth Amendment is violated when land-use regulation “does not substantially advance legitimate state interests or denies an owner economically viable use of his land….We think, in short, that there are good reasons for our frequently expressed belief that when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.”

Note that the majority determined that “all economically beneficial” value had to be taken from Mr. Lucas’s land before he was awarded a “taking.”

No one in Dripping Springs government or in the community is suggesting such, nor is this remotely happening to your land, or anyone’s land, for that matter.

In the same case, from Justice Blackmun, in the dissent, “Long ago it was recognized that all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community, and the Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to enforce it.”

Another relevant case:

TAHOE-SIERRA PRESERVATION COUNCIL, INC., etal. v. TAHOE REGIONAL PLANNING AGENCY etal. Decided April 23, 2002

Justice Stevens delivered the opinion of the Court.

“The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory takings. Its plain language requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical appropriation.

But the Constitution contains no comparable reference to regulations that prohibit a property owner from making certain uses of her private property.”

REBUTTAL FROM GENE LOWENTHAL

Susan Combs has written an inflammatory editorial on the collision between water quality protection and property rights, more specifically between impervious cover limits and the concept of “taking”. As an advocate for both water quality protection and property rights, I object to her inaccurate treatment of both topics.

Ms. Combs says that “SOS requires that many Austin-area developments not exceed 15 percent impervious cover regardless of scientific evidence that clean-water standards can readily be met at higher percentages of build-out”. On this matter she is dead wrong. I have spent the last 10 months as a member of the Stakeholder Committee for the Regional Water Quality Protection project, possibly the most comprehensive review of the available data, science and technology ever undertaken relative to protecting Barton Springs and the Edwards Aquifer watershed. The conclusion was abundantly clear: an impervious cover limit of 15% is an essential element of protecting the very sensitive recharge zone of the Edwards Aquifer. No amount of engineering can substitute for low impervious cover.

Ms. Combs is equally off the mark in the matter of property rights and especially takings. The U.S. Supreme Court has affirmed its interpretation of the 5th Amendment in multiple rulings.

A physical taking is an event in which a governmental entity literally takes property by condemnation, for instance to locate a school. The original owner of the property no longer owns it. The Fifth Amendment requires that the property owner be compensated for his or her loss.

Restrictions on land use or intensity of development, in contrast to physical takings, generally are not to be treated as takings, since ownership of the land does not change hands. However, in extreme cases where restrictive ordinances have the effect of rendering property worthless, the Court has deemed the action as equivalent to a physical taking for which compensation is justified.

The current debate centers on the cases where the effect of a restrictive ordinance falls short of being equivalent to a physical taking. If an ordinance restricts development rights but doesn’t extinguish them, should this be considered a taking? If an ordinance reduces the value of a piece of property but not make it essentially worthless, is this a taking? The Supreme Court said no, but many within the development community are pushing hard to broaden the definition of taking for their own benefit.

Ms. Combs writes “As environmental regulations in some parts of our state have grown more stringent over the last two decades or so, the definition of what constitutes takings has blurred”. What she is really saying is that developer interests are organizing to blur and broaden the definition of taking as a strategy to overturn environmental regulations. They want to convince us that water quality protection measures should somehow be construed as takings so they can be compensated by the public for not polluting water. Political activists serving development interests are seeking a new class of entitlements.

Today we have all kinds of rules that potentially affect property values. We have zoning ordinances. We have setback ordinances. We have regulations requiring that land be dedicated for on-site wastewater disposal. Subdivision ordinances may require that right-of-way be dedicated to insure safe entry and exit from a development. The list goes on. Neither the Supreme Court nor any reasonable person would consider these ordinances as takings (but I haven’t asked Ms. Combs). Why should regulations designed to protect water quality be different from these other rules designed to protect public health, public safety and community property values?

In the case of a physical taking it is relatively easy to determine how much the property owner should be compensated. This is a routine exercise. In the case of the more mushy definition of taking advocated by developer interests, the exercise is difficult at best, and subject to abuse. The abuse will take center stage if proposed legislation is passed.

What is particularly odious about House Bill 2833 and its companion Senate Bill 1647 is their treatment of impervious cover limits. If these bills become law, then any ordinance limiting impervious cover to a level below 45% will trigger takings. For instance, if I am required by a water quality ordinance to develop at 25% impervious cover or less, I can file a takings claim and get compensated by taxpayers.

The outlandish thing about HB 2833 is its underlying assumption that someone who is required to develop at an intensity below 45% impervious cover must therefore be damaged and must be entitled to compensation. The bill makes no distinction whatsoever between commercial property within a city center, suburban residential property, or country estates. It brainlessly assumes that the value any tract of land is linked to the right to develop at 45% impervious cover or greater. This is arbitrary and dangerous.

Outside of city limits there are very few residential subdivisions that even approach 45 % impervious cover. In my neighborhood near the town of Bee Cave the typical residential subdivision is 20% or less. The developers here weren’t forced to do this. They chose to because they were responding to consumer demand for such amenities as large lots, open spaces and green belts. They calculated that low-intensity development was the highest and best use of their property.

What HB 2833 will do is treat future developers of such upscale residential subdivisions as victims if they happen to be in a community that limits impervious cover. If they play their cards right, they will be entitled to substantial compensation from the government for simply doing what they were planning to do anyway – – design subdivisions that the market wants.

HB 2833 will either compromise water quality by making impervious cover limits economically unfeasible, or it will enable a bogus definition of taking that can be easily gamed by developers to get taxpayer subsidies, regardless of whether or not they are actually damaged. HB 2833 is a perfect example of poor public policy and a new public trough for special interests.

Last updated on Monday, May 16, 2005 by billc

Moratorium extended

Dear FA Friends, Neighbors and Members,

In a striking and progressive civic gesture, the DS City Council, led by the votes of Santos Alba, Doug Philip and Joe Volpe, in a 3-2 tally, chose to listen to the common sense pleas of their staff, their Planning & Zoning Commission and us, their disenfranchised ETJ subjects. It is very encouraging to see the majority of the elected City officials take the bull by the horns and rather than succumb to the self-centered principles of market forces and real estate gain, instead heed the call of civic duty and responsibility to our futures. We cannot thank them enough.

This continued Moratorium will allow the City to finish the hard, ongoing work on their Subdivision Ordnance updates and also incorporate the results and recommendations of the Regional Groundwater Protection Planning Group, which they are sponsoring along with Hays and Travis Counties, the Groundwater Districts and CIty of Austin. This is welcome news indeed.

Rob Baxter

Last updated on Saturday, February 5, 2005 by Bill c for Rob B

Texas Land Trust Conference

A reminder to register for the February 24 – 26 statewide land trust conference (highlights and registration brochure attached).

Updates: * Friday night dinner and jawin’ time will be at a fun Austin venue — Stubb’s http://www.stubbsaustin.com/ 801 Red River. * Continuing Education Units approved: 7.5 hours MCLE and State Bar College; 16 Range Management units * Chad Shaw cshaw@katyprairie.org or 713/523-6135 is organizing the Young Leaders gathering on Friday prior to dinner at Stubb’s. Give him a call.

Let me know if you want more hard copy registration brochures or provide addresses (within reason) and I will mail.

See you Feb 24 – 26!

Carolyn

Carolyn Vogel Texas Land Trust Program Texas Parks and Wildlife Department 512/389-4779 carolyn.vogel@tpwd.state.tx.us www.tpwd.state.tx.us/tltc

http://www.tpwd.state.tx.us/conserve/tltc/bulletinboard/

Last updated on Saturday, January 22, 2005 by billc