Travis County Commssioners Court
June 24, 2003
The Closed Caption log for this Commissioners Court agenda item is provided by Travis County Internet Services. Since this file is derived from the Closed Captions created during live cablecasts, there are occasional spelling and grammatical errors. This Closed Caption log is not an official record the Commissioners Court Meeting and cannot be relied on for official purposes. For official records please contact the County Clerk at (512) 854-4722.
Executive Session
Before we take action, I will need to ask the city attorney's office several questions in executive session. What's the city of Austin's position on the applicability of 1204?
>> well, I guess I think the issue has been raised whether there was indeed a pending application, and I think that's really the question under 1204.
>> so the city's position is?
>> i'd have to say we're still sorting out what the effect of the statute is. And i'll ask ms. Terry to weigh in on this also.
>> as described earlier, we were talking in terms of what actually was happening in Sunset Valley and what was actually happening with the city of Austin in terms of the completeness check process. We're looking at the issues about whether or not a pending application actually existed and the timing of what happened at Sunset Valley. Those are issues that we have not fully sorted out. I will say this, it is sthat the legislature was addressing this issue. We will rather not go to litigation. What we would rather do is have frequent negotiations with lowe's and reach a settlement and compromise and bring that back to you. As ms. Gordon said, the compromise and settlement that we would need to develop with lowe's is something that the city council will have to pass on because it does -- it is directly affected by ordinances, assuming, for example, that 1204 does not apply, is directly affected by ordinances that the city has on the books and the city code. Consequently we've got to get city council blessing on any proposal that we would ultimately come to negotiation with or solution or in settlement that we would come to with lowe's. Our next council meeting is July 17th. But in terms of 1204, what we would rather do is we'd rather talk and not fight.
>> okay. But I understand you don't think the county has jurisdiction?
>> what I am saying is we are looking at those issues and we would rather not have to come to shore on those and litigate. We would rather settle them. We've looked at them, we have not provided that analysis yet to our city council. We would do so in session, the attorney-client privilege is not really something that I知 free to tell you what our position is.
>> sure. Frankly, I wish I had never seen this item. [ laughter ] but it is here, and what we have to sort through, I guess, are not a whole lot of issues, but ultimately we have to decide what is it that Travis County has a responsibility to do. And what I知 trying to get this morning is some indication of the earliest positions of the different parties. We've postponed this item 1 time last week. I don't want to vote to postpone it 45 to 60 days. I may vote to postpone it for a shorter period if it seems the matter may be resolved. This is one of the issues that no matter how you negotiate, maybe you will reach an agreement, maybe not. And since we won't be negotiating, we don't have a good feel for it. So I知 trying to ask the parties who have been negotiating and will hopefully continue to negotiate, if you've been negotiating two months, then it seems to me that another 45 to 60 days is a long time. And I don't know to what extent we defer to the city council's schedule in the summer. The county business goes on. When I知 on vacation, the county business goes on without me. And if I can be reachable by phone, typically I am, except during sleeping hours, then I would expect the council would be in the same position. That's a personal deal, though. And today, help us as much as I can. And today after we go to executive session, hopefully before noon, we will take some action one way or the other that will indicate the Commissioners court position. There seems to be a variety of options, but it seems to me that we ought to do the most reasonable thing to the parties who have been dealing with this issue working on it and that we had are in a position to really help us. Any other questions of city or county staff?
>> I just have one. I never thought I would see the day wishing we had a landfill item before us rather than this one! [ laughter ]
>> i've heard ms. Terry say we're still trying to sort through this whole thing. That seems to be a key thing. I知 not an attorney, I just play one on tv. You have a fact issue here that we've been asked to referee when we all know what the answer is. You have the ability to walk across the street and either file a motion for summary judgment saying saig that 1204 is applicable or to get a temporary restraining order saying no, county Commissioners, we enjoin you because it is in the city of Austin's e.t.j. I appreciate the fact that you don't want to get into litigation, but the reality is you're already in litigation. So why aren't we just cutting to the chase here? Why hasn't somebody waltzed across the street and either filed summary judgment or a motion to a temporary restraining order and get the courts, who are ultimately going to decide this, to weigh in on this now and then we clearly will have our instructions? We either will send it back to the city of Austin and have a good day or it is stuck here and we have add steer al duty and whether I like it or not there are things I have to do until somebody changes the rules around here about what to takes to get it done. Help me out.
>> let me respond to that. When we talked to council on June 12th, which was their last meeting, we were talking about negotiations and we did have some exchanges and some thoughts that we might reach a resolution. And one of the options is do we want to go to litigation. One of the reasons why we have not pursued that ahead of time is because, one, we think we have developed a balanced relationship and a good relationship, working relationship with the county. And litigation kind of destroys those relationships. Two, we did think there's an opportunity to come to a resolution if the parties are at the table and really working. And like I said previously, I mean, up until three weeks ago, we hadn't exchanged one proposal from the other side, only the city's proposal was sitting out there for six weeks. So unless we have an exchange of real solutions and we're trying to work there, then you're right, the only solution will be towards litigation, but that's the path that gets more adversarial, gets more contentious and does not necessarily come up with the best for the community. And I think one of the real issues here, and I知 sure other groups want to be good corporate citizens are that there's a larger issue in terms of what is the best for our community in terms of trying to come up with an outcome that balances the interests that we all have and the citizens that we all serve, that you serve and our council serves. So I think that is why we have not forced the issue to the courts; however, there might be a time where the city decides to take that action because we feel that we need to protect those interests.
>> there is one additional point I want to make, and that is when I say we're trying to sort out the 1204 issues, I知 not talking about the extra territorial jurisdiction issue. This site is in the city of Austin's extraterritorial jurisdiction, and that is --
>> that is a fact question.
>> okay. I understand it. Well, it's mixed fact and law. So that is in the city of Austin's position. But as far as the 1204 issues are concerned, those are the issues I was addressing in terms of what we're sorting through and how that plays out and whether -- whether 1204 applies in a particular situation.
>> anything further from the city?
>> just I think the next council meeting we have is July 17th, so the earliest would be 30 days because I would not want to say I can negotiate a settlement on behalf of the city council because I just don't have that authority. So that would be I think 30 days that would put you to the 24th or your next meeting after the city council meeting.
>> okay. When will y'all commence negotiations with -- in other words, I knowyou said the city council won't be coming back until July 17th; however, until July 17th you continue to meet with lowe's --
>> we have obtained an outside attorney to help us with the negotiations, to work directly with lowe's and with the property owner on this, similar to what we've done on other complex negotiations.
>> and those negotiations have been intense for the last several days in terms of discussions on a daily or almost daily, every other day basis with representatives for lowe's.
>> I don't want to step on anybody's authority that has the authority within the e.t.j. The city position is that that is the case. I知 looking forward to sharing that. I知 not really to intrude on that. (indiscernible). There is still some wiggle room, I think, to allow the city to not only negotiate, but also work within the purview of its e.t.j. And so that is still in my mind a big thing here that separates this from anything else, even though we're looking on this as far as -- (indiscernible). And suggesting this is a Travis County only jurisdiction. I think there are me challenges that I think we have to overcome in the next due few days, and that's one of them. However, the city is suggesting that it's within the e.t.j. And we should give it that recognition and go on accordingly. But again, that's my last question for the city. Thank y'all.
>> commission you are Daugherty?
>> i'll just wait.
>> the only thing I did want to say is in our last negotiation, the city asked the other side just to focus on the loe's issue. There are some larger issues which I知 sure you've heard about, but I wanted to say that for the record, but we wanted to focus and see if we can get something done.
>> okay. Is the city of Sunset Valley here?
>> i've got one more question. If you have a meeting on sentth, do you have a meeting on the 24th?
>> we have a meeting on July 17 the and on July 31st.
>> okay. So if the council needs to have the courtesy of seeing a potential settlement, if they would like more time, then it won't come back to then until th 31st. In which case the next meeting for us is the fifth, and then all of a sudden the schedule is anything but reasonable.
>> I understand that, but I do think if we don't do that the only course we do have is litigation, and that will be extending out just as long. Just what you said before. I know it's been timely and I know that is one of the issues that we have to overcome; however, if I could get this done b July 31st, August fifth, I would still consider that to be a great resolution.
>> thank you.
>> while the city of Sunset Valley is coming forth, when was the application for preliminary planning approval filed with Travis County?
>> March 5.
>> we have March 7.
>> March what?
>> March the 7th.
>> the application was submitted on that day.
>> was it complete? Was it a complete application?
>> unless we're in a single office situation with other municipality, we do not have to do completeness reviews of preliminary plans in the county.
>> all right. Let mesk another question then. [ laughter ] when was the the proposal for a septic system brought to our attention?
>> on Thursday.
>> has that come into play? That will be one of the questions I ask in executive session. Yes, how are you doing?
>> morning.
>> I知 the mayor of Sunset Valley. On my right is the mayor pro tem. On her right is council woman vicky powers. We appreciate the opportunity to talk to you today. And I just want to start out that honestly, we didn't think that when we took the action to protect the community's water supply that we were going to put you in a bind that you would have to get -- (indiscernible). We were just trying to do the right thing. And maybe some information about our business district would be helpful. As you know, before 1990, Sunset Valley had no business district. We had the highest property taxes in the county. We used to fill our roads by getting a bag of asphalt and going in somebody's pickup truck and running over it to press it down. We were literally in that position. Then the development community discovered us. First it was a development team from atlanta, georgia who developed the original site. That's the one with the home depot in it. That site was developed at Austin's impervious cover limits at that time. It was developed prior to s.o.s. We used Austin's impervious cover. And in that area was grandfathered in at that impervious cover level. After we got some money from the shopping center, we started being able to repair the streets, etcetera, we put up a better representation when the next development went in. As you know, the s.o.s. Went in about '92, Sunset Valley attempted to roll back there. We decided to take the tract by reducing impervious cover and trying to maximize the water quality treatment based on the best science available. And the second development that occurred in Sunset Valley, that's what we did. It was retention irrigation and one and a half inch runoff much there was land mitigation involved, the site development was around 20% impervious cover in the second development. Then we discovered that we could not treat that water in a way that it wasn't going to damage the water supply. Because there's an underground river that flows through our area, and that is when the lo lowe's situation came in. The city of Sunset Valley would have been much better off financially to allow that development to go in, but the developer came in and offered to be annexed into the city. Any competition between lowe's and home depot, the net gain would have been Sunset Valley's sales revenues. Teld have been better off to let that happen, but we determined for a number of reasons that that wasn't a good idea and we took the action that we took. We've been trying to do the right thing actually since 1990 to the best of our ability, and we're asking -- we're just asking for you all to do the right thing. And we feel like that this can be worked out between the city of Austin and the developer. Obviously everybody's working for leverage. This isn't just a Sunset Valley issue. This is a community issue. There are lots of people in the city of Austin and Travis County concerned about the effects that this will have on the aquifer and now we learn there's going to be a septic tank over this critical water area, critical recharge zone. We are determined to fight this to its conclusion no matter how long it takes, no matter what it costs. We spent $300,000 in the second development that went in in order to -- for a number of reasons was not to allow someone to come off the street and say look, we they got it, so we should have it. We're in this for the long haul. Obviously a negotiated settlement is the best course of action, and we encourage the county to take actions that will encourage that resolution. Thank you.
>> thank you, mayor.
>> it seems like I was just here.
>> you were!
>> I知 the mayor pro tem from the fine city of Sunset Valley and within Travis County. So we're all here. I have a couple of points that I want to make. Most of them ve to do with lowe's. We are here dancing as fast as we can because of lowe's. We're all answering to and figuring out the laws and all of this because of lowe's. My opinion is that is a really bad decision to take this piece of property on the aquifer to put their eggs in a basket, so to speak. This is a very sense sieve site. It affects our community, it affects the aquifer, it affects the traffic, it affects so many negative things and I don't think we're taking them into consideration when lowe's decided that they were going to choose this site. I don't know if it's because it was a bargain, I don't know if it has to do with competition. I don't know what their plan is, but the community has been very, very clear from the very, very beginning, this is a bad idea. Now it's all up to you guys. Our position, I think we concur, with the city of Austin. The reason that we released this land, with tears, I might add, were because we couldn't protect it. The money didn't matter that we might have made. We couldn't protect it. We released it, especially this type of store that is this big. They sell a great deal of toxins, pesticides and other things. It would just take one accident, not to mention what runs off from the parking lot. Our city is just down the road and the way a little bit. Most of our citizens are on a city well. There are a lot of individual wells. So with lowe's putting something in there and the possibility of something happening, something spilling, a big old can of test side falling over and just going into the creek, when would go immediately into our water system, they're basically saying that doesn't matter. That doesn't matter. We have the right to develop this property this way. We just don't agree. This is a community, and a community within a community and we just don't feel that it is right. All the con tortions that lowe's has gone through and all the ignoring the public out cry that lowe's has gone through, it's not right that this is being pushed here on this site. And I really believe that the best thing the Commissioners could do at this point is to postpone this and put it where it needs to be. There are obviously very strong legal issues that people have taken opinions on. There's a reason for you guys to get into this because of lowe's actions have forced construction on the wrong site. I ask for your help on that. [ applause ]
>> good morning, I知 vicky powers and I知 also on the city council for Sunset Valley. I don't know how I can follow that up. I think she basically said it all. I think what it came down to when I was listening to all the other persons from the city of Austin who said they wanted to see what was best for the community, and I think other box store in this location is not best for any of the communities, neither Sunset Valley or for Austin. Where I live in Sunset Valley, I can drive to the other lowe's store in five minutes and it will take me approximately five minutes to drive to this new one if it's built. We're not talking about a store that does not have other venues very nearby. The store on stassney lane is very nearby for someone to go to. So for another one to come and fill the same kind of niche in an area that close seems unreasonable. I wanted to tell you a little bit about that night that we disieed that -- and I知 glad cat said we released with tears. When you're surrounded by Austin, believe me, when you're giving up a piece of it, it is in tears and we did not want to do that, but our constituents were sitting in front of us and standing and speaking and saying please do whatever you can to not let this happen in our community. And so we knew we could not protect that being a city and limited and in the same way that the county is limited by some of the things that you cannot do. We decided that we should forego any financial advantage. And as the mayor said, it would have been better for us to just welcome it on in and taking the possibility of sales tax from both. Or should we in the future have a city tax, we would have a potential for property tax there also. And we forewent that also. Much of our development was grandfathered. We did not have an opportunity to do something about that or we did not have the environmental wisdom that we do today. So we come before you now as representatives of not only our 450 people in our town, but the people that use and recreate with the aquifer. One of the statements we kept using that night, and I notice that the mayor said several times in his speech not long ago is we're trying to do the next right thing. We had impervious cover problems that exist there now, but what's the next right thing to do in this particular situation? I知 not even sure that lowe's knows how to handle this. First we find that they are suing the city of Austin. And then the next thing we know, I don't know, maybe they thought maybe we don't have a really good chance here, so they go to the legislature and they get someone to sponsor a law that is directly for this situation. And then this law comes up that puts u all in this peculiar position and now they're here in front of you. So it's obvious that everyone thinks there are some jurisdictional matters here. And the proper place for that to be decided is in the courts. We're asking that you not knuckle under the pressure of one landowner and one giant corporation and join in this fray and possibly add confusion to the situation. And I hope you forego the conclusion today until this jurisdictional matters are settled. Thank you.
>> let me ask you a question. Thank you for your comments, all of you. Are you familiar with house bill 1445, the interlocal ability of the municipalities to -- particularly with Travis County dealing with -- (indiscernible). Not only by administrative extensions and agreements and a whole bunch of other things. The reason I say that is because I think there is going to be an opportunity, I think, for the county to -- in this municipality that's within Travis County to deal with subjects such as water quality, drinking water. I think it's a very key component, and if my recollection serves me correctly, tom, correct me if I知 incorrect, is that one of the criteria that we looked at as far as the interlocal was that the drinking water protection zone was something that we really wanted to defer to dealing with the other interlocals in Austin and Travis County and defer to Austin when it came to drinking water protection zone. Within the e.t.j. So this is still something that's very, very close to me, and as far as I知 concerned. Now, I知 only one person here, but as far as I知 concerned, i'd like to postpone it until we can resolve this issue and regardless of how long it takes. I think the essence is protecting the drinking water of persons that live in that area. That's very, very critical and I think it's very appropriate from the statements that I heard from y'all this morning, but as far as I知 concerned, I知 going to defer coming to resolution on this thing. Now, thas my position. [ applause ]
>> do you have a question?
>> I do have one. When you talked about the different options that you looked at, was one of those options purchasing this property on behalf of your city for a park or open space? You're land locked. You don't have many opportunities. Do you all have any public parks?
>> yes, we do. We have the highest ratio of conservation area to residential area in the state of Texas. And part of that is because that we've concentrated -- we had acres from the city of Austin that was going to be developed and we made it into a sanctuary for animals and wildlife, etcetera. I know that people think that we're the kuwait of Texas, but we are not as rich as you think. And we have a lot of infrastructure that was never done that we've been really focused on building within the city. And we have -- I was talking to the attorney. What we talked about in exutive session, I can't talk about.
>> yeah.
>> all right. But we looked at all the options and we're open to all the options.
>> so is that a yes to the question, did you all compare purchasing this property and for whatever reason chose not to? Did you choose not to purchase this property for open space?
>> we had not chosen not to purchase it?
>> is that still out there as a possibility?
>> we don't own this property.
>> it's not our property any more.
>> two quick questions. [one moment, please, for change in captioners]
>> down to 65, get an oversized water quality pond.
>> [indiscernible] home depot project, huh?
>> the latest one?
>> a couple of years ago; is that right?
>> yeah.
>> it's a one or actually '02, I think it's been done in the last year.
>> it's opened in the last year, I know that.
>> yes.
>> how far is home depot from this site? 20 seconds.
>> half a mile, quarter of a mile.
>> depends on how far you are driving -- how fast you are driving.
>> if I may contact, there's been no contact from my of the city officials with regard to home depot and this lowe's project, again it was in our economic self interests to do that.
>> anything further about Sunset Valley.
>> let me ask. When you all okayed the 65% plus impervious ground cover, did you all -- obviously you had public meetings, you did this during the -- did you have -- did you this this kind of show in opposition to -- to that?
>> we had opposition to it, yes.
>> did you have a -- did you have a medium --
>> for us it medium.
>> okay.
>> it's medium.
>> okay. Thank you very much.
>> thank you.
>> now, let's hear from the applicant briefly and then we will get to citizens who can have come down to give comments today.
>> I guess first from the applicant, any kind of presentation or responses to matters that we've discussed to this point? And then we will get questions from the court. If you would give us your name first, we would be happy to get your comments.
>> my name is terry urian, I am here representing lowe's home improvement centers, inc. I知 also -- I have to explain -- well, let me identify everybody else who is here, dan wheelis to my left is returning representing the property owner, eli garza. My client, lowe's home improvements has the property currently under contract. To my right is mr. Mark nellis, who is the new site director for lowe's and over here a man that these no introduction, former mayor bruce todd, former Commissioner. Mr. Todd has -- was hired by lowe's and by eli farza's -- mayor garcia's interest -- garza's interest two separate matters -- mayor garcia's interest, hired mr. Todd to be our single point contact with the city of Austin. I知 going to let dan wheelis give a little chronology of the history of mr. Garza's inner -- interactions with the city of Austin and Sunset Valley. And then let mr. Todd explain the negotiations that have gone on with the city. Before I do that, I want to let you know that I also represent prov dent development, which the contract [indiscernible] on mr. Garza's property that is contiguous with the lowe's site, but is in Austin's corporate limits [papers shuffling - audio interference] mopac boulevard. Negotiations with the city of Austin on that particular matter started in the spring of '02. And I will let mr. Wheelis and then mr. -- mr. Todd pick up on that. The only reason that I bring that up now is I saw a little bit of confusion on the Commissioners, assistant city manager lisa gordon was talking about the other matter. And I don't think any of you are -- understand what the "other matter" is that is related to in.
>> okay. Though the to cut you off, but if the other matter doesn't involve what we have before us today, I don't know that it helps us to hear a whole lot about it.
>> you won't hear a whole lot about it.
>> I知 interesting in hearing the status of negotiations, what additional time, if any, is required to maybe reach some conclusion one way or the other, what you believe the implications of 1204 are to the matter before us and any other advice that you have to give us about the issue before us today.
>> I will address the second and the third matter. I think that I will let dan and bruce address the first one.
>> good morning.
>> good morning.
>> not to cut you off, but if you could work your background in --
>> yeah.
>> -- that would be a whole lot better, I think.
>> my name is dan wheelis. I represent the property owners, which are eli garza and the garza family members that own the 30 some odd acres that is under contract with lowe's. Eli also owns property over on the mopac side of -- with frontage on mopac that is within the city limits of Austin which is called the garza ranch subdivision. You have heard lisa gordon talk about issues related to garza ranch subdivision, I will mention those only briefly in some of this history. I will try to get this through quickly here. In 1928, eli's father, ben garza purchased the property, it's a little over 130 acres. Referred to as the garza ranch. Eli was born and raised on this property and he lives on this property today. In the '80's, the city of Austin and texdot approached eli and asked him to donate 22 acres to the community for the right-of-way for mopac and for [indiscernible] and obviously their sales job, if I will use that term, was that eli, if you will donate this land, you will create a significant intersection in the southwest quadrant of Austin and thereby derive economic benefit from the land, the lands juxtaposition to major roadways, major utility lines, et cetera, et cetera. And eli complied with that request. And donated over 20% of his land to the public without consideration. There was no quid proper quid pro quo. Eli did not donate in exchange for anything. He donated it strictly on the promise that this would create value for him at shh point in the future. At some point in the future. Following that donation in the 80s, in '91 eli began the process of platting his property and the garza ranch subdivision, which ms. Gordon referred to was platted and it platted 34 acres of his land and that property is situated at the intersection -- intersection of william cannon and mopac. The plat detailed with great specificity what eli could do with his property and specified a particular watershed ordinance that would apply to the governance of the development of his property. And it referred to the -- to the comprehensive watershed ordinance of 1998 as being the governing law for his sight. In '92, the city of Austin passed the s.o.s. Ordinance and eli's c.w.o. Ordinance gave him 65 to 70% impervious cover rights on his property, the s.o.s. Ordinance attempted to reduce that to 15%. So obviously a significant impact on the utility of this tract. In 1980 -- 1996, eli contracted with circle k to make use of one of the corners at william cannon and mopac and Austin sought to prevent that by saying that the plat that they approved in '91 might be invalid for one reason or another. And that started the controversial that led up to a trial which was heard in Travis County in December of 2002 in which a judge determined that eli's plat was fully enforceable. And that the comprehensive watershed ordinance and the impervious cover rights on the garza subdivision were the applicable laws for eli's site. The city is in the process of appealing that judgment. Prior to that time there had been appeals to the city planning commission on behalf of elie and his -- eli and his users and the planning commission also confirmed the validity of eli's plat. So we had the city planning commission and a district judge in Travis County affirm the rights that eli had in his property. In '97 eli signed a contract to [indiscernible] also out at garza ranch to a local development company. And once again, Austin -- elected not to follow the ruling of the planning commission and that actually was the key event that triggered the lawsuit that was heard in 2002. In 1999, eli was requested, he did not seek this, but he was requested to appear before a land resource management committee of the Texas house of representatives to discuss the fact that plats and the rights attendant to subdivision plats were not being honored by the city of Austin. And so as a result of eli's testimony, the provision of 245 of the local government code was amended to say that plat notes are enforceable and that plat notes that appear on a person's subdivision plats mean what they say. We then move along to -- to -- to the lowe situation, the lowe situation is not directly related to garza ranch subdivision. The lowe's situation involved 30 acres that was in Sunset Valley's e.t.j. It was unplatted land. It -- it was governed by ordinances of the city of Sunset Valley to provide 40% impervious cover. Lowe's, I will let terry expound on this, but the property owner and lowe's have worked very closely together to achieve the permits necessary for lowe's to close the purchase. Lowe's does not own this property yet. This property is still owned by eli and his family. The -- the 40% impervious cover under Sunset Valley's ordinances was a precisely what lowe's needed to situate its store at this location. No variances were sought. No special deals were bought. The community let us know as the property owners that they desired for ben garza lane to be relocated to the north to juxtapose with oakdale so an arterial could be developed through to mopac and provide a reliever for the congestion at brodie and william cannon. Mr. Gieselman has written a letter specifically supporting and recommending that that road be built. And the property owners have responded to the communities request and low's has responded to the community's request and as part of the contract lowe's is committing to construct a new realigned ben garza lane connecting brodie lane with mopac and relieving some of the congestion at william cannon and brodie. Our -- our legislative packet came about as a result of the confusion that of created by Sunset Valley's dramatic fairly sudden release of e.t.j. Creating a jurisdictional question. I was present at the council meeting and I said that based upon state law 245 and other local government code provisions, that the city's release of e.t.j. May have no effect on whether or not the low's store would be built or not because of the protections afforded in state law to projects in progress. And I -- and I will let -- let doug young speak for himself, but I did recall that doug young also told the council that releasing the property from its e.t.j. May have no effect on the construction of the lowe's store. In order to address the confusion created by the sudden release of the property from its e.t.j., The -- the garza family members who eli has been out there for almost 30 years longer than Sunset Valley exists as a community and eli was not afforded any opportunity to address the council in making this very important decision to release his property from the e.t.j. Of Austin -- of Sunset Valley. But because of that confusion, we knew there was confusion. We went to the legislature did you, told them what had happened and the legislature unanimously, both houses, nam miscellaneously approved 1204 with a provision in it that mr. Nuchols has described to the Commissioners. Dealing can the consequence of release from e.t.j. We -- we dealt with this issue in the legislature totally above board.
There no secret floor amendments or no, you know, crafty ways of passing this legislation. It was handled openly at the committee level, discussed openly, it was approved unanimously by the house and by the senate. There was not a single vote of opposition in the house or the senate to 1204 and it is -- it was signed by the governor and the law today. We believe that approval of the preliminary plat will hasten, not retard, will hasten the negotiations with the city of Austin. We believe that -- that the preliminary plat is lawful. It fully complies with 1204. And it will -- it will accelerate the process, if you will, for the parties to -- to reach agreement on -- on issues of -- of impervious cover and water quality. Now, I will turn the mic over to mayor bruce todd.
>> judge and mexico of the Commissioners court -- members of the Commissioners court, we apologize for the length of this but it seemed very appropriate to me to hear the history because it has been a long history in the terms of the ownership of this land and steps, governmental steps in place at the city and state level over the last several years. But I want to talk specifically about the negotiations. And I do not want any comment I make today to impugn the integrity of those who have already talked about the process. There are two cities involved, it's not reasonable to expect that everybody is going to hear that everybody is doing in the organization. We are not here before you today because we haven't tried and are not still trying to get a solution that works satisfactorily, not only for the city of Austin, but the Commissioners court and the general public as well as landowner. My first conversation on this issue was in June of 2002. June of 2002, I made inquiry of the city manager as to whether or not she was, council would be desirerous of trying to negotiate a settlement of this issue. Because it had been long standing. I was convinced then that the interest in settling was genuine and staff would and they have devoted considerable effort to making that possible. Our first negotiations took place in my office in November of 2002. Over about a day and a half. Unfortunately, those negotiations were successful. In December of 2002, before the trial, there was an effort, a brief effort at least by telephone call to negotiate and that was successful because parties could not agree with the common issues that they thought were appropriate. There was an additional settlement discussion, attempt to settle, an offer to settle, in November, excuse me, December of 2003, during the week of the trial setting, about a day and a half before the trial went to -- before the case went to trial. That, too, was unsuccessful. In February of 2003, before the decision was announced by the judge, there was another attempt. But the parties felt, I think in good faith, that there simply was not enough known, not enough commonalty of interest to be able to proceed at that time and the city decided photo negotiate at that time. Between February after the judgment was issued, and today, there have been a number of exchanges of documents between the city and the developer. I think those have all been done in good faith. But they have not yet been successful. But they have been intensive. And for every document that has gone one way, there has been a document coming back the other way. Both sides have contributed equally to the attempt to settle this case. We countered -- five days after receiving the latest counter from the city, we made our own counter. Tuesday of last week. On Thursday of last week, I met with casey dobson the attorney representing the city in this case and he rejected the offer on behalf of the city. He said we would like to try yet another attempt bye-bye if you are indicating the -- bifurcating the property, the [indiscernible] tract and the lowe's tract, we would like to make a proposal and he wanted to know what my clients thought about that. Obviously, we were disappointed because of the delay that would be entailed, but we decided -- I told him anything they wanted to offer would be looked at seriously by my client and will be. We have not received that offer, but I hope it will be coming shortly. So the process is very much ongoing. The one caveat that I offered last Thursday was the one thing that's rely not acceptable to my client is more delay because it has been delayed for a long, long time. And we will continue to work in good faith and we will not come to the Commissioner court for final plat approval until we either reach a settlement with the city of Austin or decide finally that no more settlement talks would be productive. In closing, I would like to make an observation, I think this is really about two issues. One issue is the responsibility in the [indiscernible] of the Commissioners court to approve an application at the preliminary state that has met legal sufficiency and factual sufficiency that is required by law. I don't think there's been any testimony about that issue that would suggest that test has not been met and that your responsibility would be to approve it in an appropriate fashion. But there is another issue and that issue is a broader issue of a community issue having to do with water quality issues and all of the complexities that are involved in that particular area, litigation, the newspaper reports and certainly we understand the Commissioners court feels responsibility to make sure that the best thing that is possible can happen. I will pledge to you as have the other -- as have the attorneys here, that your approval today of the preliminary plat will only cause the process to go forward. It will not increase leverage. It will only be acting in accordance with the law. You will not receive a filing, a request for final approval of the plat until such time as those negotiations have concluded, whether successful or not. So I would make an argument to you, as I was previously, that proceeding in a logical way, with allowing the negotiating the rose to continue as it will is the appropriate public policy thing to do. And that you will not be required to make a final decision on this until such time as those efforts have been exhausted.
>> I would like to summarize some final comments. To reiterate on what mayor todd just said. We -- we filed our application in March. We had met all of the ordinance requirements for Travis County for a preliminary plan approval. It is merely a material act at this point. We very much desire to get this preliminary approved so we could move forward with some real engineering. Engineering which will also facilitate settlement negotiations because we can have some real detail to demonstrate to the city what it is that we actually can do. You have heard here earlier that -- that under Travis County regulations, that we could do unlimited impervious cover on the site. Maybe 80%. We have set consistently that the -- to the city of Austin that we don't desire to build any more than what we original represented we were going to build to the city of Sunset Valley. Which is a 40% impervious cover plan. The negotiations have -- have dealt with how we nailed that down and also addressed the water quality. It has been said that Travis County doesn't have any water quality regulations. That is perhaps true. However, because this is over the edward's aquifer, we do have to apply for water pollution abatement plan permit. With tceq. And that is in the works right now. So there will be water quality. What we are negotiating with the city is to add some level of enhanced water quality over and above what would be required under the old Sunset Valley rules. Over and above what may be required by tceq. It has always been, excuse me, thrown out, that this would be a horrible thing to approve a plan that had an onsite well and septic over -- in this sensitive area. We applied for the on-site septic permit application to comply with a technical process of the Travis County preliminary plan process. Nobody believes there will be onsite septic and well water out there. There is a 48-inch water line and [indiscernible], there is plenty of water. The problem is that since Sunset Valley released this area from its e.t.j. And applied to tceq, for a a transfer of the certificate of convenience and necessity at the city of Austin, the tceq is requiring a commitment of Austin to serve before they will release Sunset Valley from its ccn and Austin, I think, wants to conclude these negotiations before it makes that commitment. That is why the tceq application is still pending. I do not believe anyone believes this property will not be served by Austin water. I don't believe -- lisa gordon believes that. But you could ask her. One other point that mayor todd make that is we really do believe that the approval of this preliminary plan today will help facilitate and expedite the negotiations. My fear is the fear that was expressed by -- by the city attorneys and by ms. Gordon at the -- the response to your question, Commissioner Sonleitner, if the preliminary is not approved, what message is that sending to all parties here that perhaps their rights need to be litigated in a court of law through a declaratory judgment action. I think we would like to avoid that. I think Austin very truly would like to very truly avoid that. We think the way to do that is to move forward with the preliminary today.
>> if I could, my name is mark millis, I represent lowes. I would like to add a few things, we spoke about the broad perspective, but I do want you to be aware of the details regarding the site planning and the process that we have gone through to date. Since October of 2002, lowe's has submitted three separate applications to three separate jurisdictions. When we were in front of Sunset Valley, we addressed citizens concerns and actually met with several of those citizens, numerous times, to address issues such as the building location, location of detention and water quality ponds, buffering of adjacent neighborhoods. We moved the building to the rear of the property. We brought the ponds along brodie lane and we left approximately 8 acres on the northern portion of the property. Adjacent to the subdivision and ultimately Williamson creek to be left preserved and undisturbed. Traffic was another issue of Sunset Valley, some of the residents. We have conducted a traffic study. We have proposed to realign ben garza lane, connect to mopac which will alleviate some of the congestion at the intersection. Install a traffic signal at garza, realign garza and brodie lane and extend [indiscernible] for resident interesting brodie at oak detail. In addition water quality measurements that will meet most of the s.o.s. Requirements and in some instances possibly exceed those requirements. Lowe's wishes to meet the intent of the s.o.s. Requirements to as much as they can with the impervious cover requirements that we were under as when we originally applied to the city of Sunset Valley. Regardless of the settlement with the city of Austin, we will move forward with water quality standards that will protect the edward's aquifer. We believe that is important as most of these people here today do and we want to assure the commission that is one of the most important things in developing on this site. Thank you.
>> closing, judge, we are now almost in July of 2003. Preliminary application was filed initially in November of 2002. As mark indicated, we have been to three jurisdictions now. And nine months later we still don't have a preliminary plan approved. We had met your requirements and we ask that you do your duty and approve the preliminary plan. Thank you very much.
>> on a scale of one to 10, with 10 being settlement, one being fierce fighting in court, where do you think negotiations are?
>> your honor, I'm always optimistic, I have had not direct contact, maybe mayor todd can answer that. I think we are not arguing over that much. He ought to be able to get this -- but I don't think delaying helps it get resolved.
>> are we at 3 or 8?
>> I i know that casey dobson and me both have each other on speed dials on our phones. The answer is either one of those. The reason I qualify that is because casey told me in principle, I don't want to divulge any negotiations because I don't think that's appropriate at this point in time. But both of us believe from an engineering standpoint that it is possible to achieve the water quality standards on that tract. That are being -- that are desired. There's a methodology question which I the reason I can't answer your question more directly. There's a methodology question that we are in difference about. I think it's going take a while, frankly, if we reach a general agreement, to sit down and make that a very specific agreement that is absolutely clear about exactly what would be done. So until I receive the response from the city of Austin, it's really not possible to say how long it going to take. Neither he nor I would be involved in this process if we didn't think it was possible. If we didn't think it was perhaps closer to probable, but there are some big issues out there. I don't want the court to believe that it's a done dial. I do know that it's going to take time because it is complicated. That is where again as mr. [indiscernible] said that we are requesting not that the county cast a dye one way or the other today, but simply to provide preliminary approval which without final approval is of no meaning whatsoever except it entitles the applicant to the process anyone else would be given under normal circumstances.
>> allows us to move forward with the engineering.
>> which is critically important. Those issues frankly become very critical and relevant to the issue of if and when judge Biscoe that we are able to bring back an agreement that hopefully will be approved by the council. So again I -- I don't mean to dodge your question, it been one i've wrestled with. Sometimes a 10, negative two, sometimes a 12. It varies all over the board. I do know that the city of Austin and that the applicant are working very hard to make it possible. If we don't come to that conclude, it will be out of honest disagreements of what's possible, what can be done.
>> when do you believe it will be ready for final plat approval?
>> well, we probably would not come back here before we had issues resolved with the city of Austin. It will take us four to six weeks probably to do basic engineering and the any refinements to address some of the water quality issues may take longer.
>> I think that, you know, the point is, again, I don't mean to be redundant, but I think that it's critically important because it's come up in the last couple of hours or so, but this is an interim step and only an interim step that respects the process and it allow the technical work, the engineering that he referred to to go forward. It is part of the process and the final approval will wait until such time as the -- as these negotiations, which are a separate issue but important to the process, hard to believe. That's why we --
>> can we assume that no settlement is reached, if settlement is reached, when will it be ready for final plat approval.
>> if f a settlement is reached ?
>> is not.
>> if the settlement is not reached, we will probably need a declaratory judgment action to declare our rights under 1204 to have the plat approved only by the county and not by the city. So I -- if we can't reach a settlement agreement, I would assume that we would pursue that matter before coming back to the Commissioner court. There's no point coming back to the Commissioners court and asking for final plat approval, only to have the city notify the Travis County clerk not to record the plat because they claim some jurisdiction. So we -- we won't come back and ask the Commissioners court to approve the final plat until this jurisdiction issue and the settlement issues with Austin are resolved.
>> terry, if -- if there's no settlement and you have to get a declaratory judgment, have to seek a declaratory judgment, do you think Travis County would be a necessary party to that litigation?
>> they may need to be a nominal party, yes.
>> okay. Thanks.
>> terry, I have a couple of questions. When you are finished, judge. Okay? [indiscernible] former mayor bruce todd, let me ask you this question. Has there been any attempt by any of you to -- to contact the elected city council officials as we have gone -- as we have gone through this process as far as negotiations are concerned.
>> [multiple voices] city council?
>> yes, city council. Not staff level, but city council.
>> I have let a couple of them know about it. Our process said first work with staff to get staff recommendation.
>> I understand.
>> because that is a starting point and then to go to council after that.
>> well, I was looking at ways to -- the reason why I wanted to, I asked that question because it was earlier stated that staff would be taking something back to city council. I think that the city council will start --
>> the city council --
>> in July 17th. [multiple voices]
>> two executive sessions on this, am I right? So they are -- they are -- I think that I can say that, they are well versed in the dynamics.
>> okay. Thanks.
>> the city council has been briefed on the issue and some of the complexities and I think where the bills were, where we were in the process. So -- so they are briefed on the issue. But they have not been presented with any proposals or recommendations or solutions by which to judge settlement and make a decision.
>> all right. My final question, it just appears is it a there still may be some assumptions that are being made, I guess as relates to house bill 1204, it has not yet been determined if what we are dealing with here is subjected to 1204 because the terminology as far as is it still in the city's e.t.j.
>> well, what you are referring to --
>> right. [multiple voices]
>> what constitutes an application.
>> well --
>> I have a response t that. But I would agree with you that this court is -- is really not equipped to -- to make that factual determination or quasi fact, device quasi-law determination. The city of Austin testified earlier the way they reject an application, if they don't think it's an application, they don't take money and they don't give you a receipt. Sunset Valley when they don't want to take, accept an olympic, they don't accept money. They reject the tender of the money. And in our case, the city took the application, they gave us a receipt. It was only after, several days after the property was outside of their jurisdiction, at the release that they returned everything. Again that's a fact issue or maybe a mixed fact and law issue that I don't think we can resolve here.
>> thank you for bringing that point up, but I was referring to house bill 1204, instead of house bill 1704. 1204 being that the city, of course, position is that this particular property is in their e.t.j. We are looking at this because -- because for a lot of reasons, but one of the reasons is that -- that there has not been a basic determination and of course looking at 1204 suggesting that house bill 1204 suggesting that this is Travis County only taxing jurisdiction because of the fact that it's -- it's not in anybody's e.t.j. So the challenge to me is still the determination and finding of fact of the e.t.j. Criterion. So I don't want anybody to assume just because we are looking at this that the e.t.j. Is not operable. I think that it still is. If that's the case it's a whole set of new rules and other things to look at.
>> I understand the e.t.j. Is an issue. I know Austin believes it's in their e.t.j. I believe it is not in Austin's e.t.j. They presented argument to mr. Nuckols on that. I think mr. Nuckols is right. Whether it's in Austin's e.t.j. Or not is probably not relevant. To the question of whether or not county regulations still apply. 1204 really doesn't address e.t.j. It says under certain facts and circumstances only county regulations apply. We think that's applicable in this case. Again, I think if the determination of those facts, hopefully we can get this resolved through settlement negotiation, but we would like to be able to move forward and actually be able to authorize the engineers to start doing some real engineering which we think will help facilitate negotiations and not delay them further.
>> any more questions of the applicant or the applicant's representatives. Let's hear from some of the residents, there are five seats available, if you will come forward, give us your full name, we will be happy to get your comments. I this I that you have seen how the discussion has been going. If you would address those, we would appreciate it, limit your time to about 3 minutes, we would appreciate that, too, I'm assuming that we have multiple residents who want to give comments today? Judge, my name is brad rockwell, deputy director and attorney for save our springs alliance. I'm a former municipal lawyer, represented two cities here, done work for them, i've actually also represented the developers on indication, used to show up in bruce todd's office on behalf of an east side developer. I would like to -- to encourage you to recognize that you do have choice over the matter. That this is -- if there's any ministerial duty it would be a ministerial duty to reject the application. This is something that is before you, there's nothing that's -- that's required you to act now, there's no time table. There's no time frame that forces you to do anything right now. Will the context of this. Where this proposed lowe's is to be located is right next to an h.e.b. That is 100% compliant with the s.o.s. Ordinance. So it's very possible to build, you know, a large store in compliance with s.o.s. Ordinance and in fact we -- we have heard some testimony talking about not only the lowe's specific property, but adjoining property that the same landowner own. Certainly if creating more space for more impervious cover, to allow more impervious cover is -- needs to be done, certainly would -- would proceed to be done in this situation. What I have heard being told that you don't have the choice in this matter because i've heard statements that 1204 settles the matter. That's not true, it does not, the only way that you assume the 1204 operates is if you assume the facts in the law and -- in favor of the way the developer is looking at it. If you look at the matter, and look at how 1204 is worded, it's clear that 1204 does not apply in this context and in fact that's what's being litigated. There are other aspects that I want to go through to show that in fact 1204 doesn't apply and in fact what you are being asked to do is approve something way out of the ordinary during the course of business in terms of dealing with they see these matters. The applicant has gone to great lengths to [indiscernible] the laws of the city of Austin and perhaps Travis County. It is my understanding that Travis County requires subdivision applicants with property within the e.t.j. Of the city of Austin to file a subdivision application with both the city and the county. It my understanding that that's not -- there's no pending application with the city of Austin right now. Let me review -- we have heard about the 1204 provision. Final plat or preliminary plat application that is pending when the e.t.j. Was released. You've heard testimony from doug young of the city of Austin that in fact this was not an application. Crucial with 1704, with 1204 issues. The city can only be bounds to a project associated with an application, not just any piece of paper. What happened there is the developer rushed down to Sunset Valley, threw something in there, said this is a -- this is a subdivision application. Sunset Valley said no it's not a subdivision application, it's not complete. Because of that, 12004 does not apply at all. Even if 1204 did apply, 1204 by its own language has no bearing on the s.o.s. Ordinance other other water quality ordinances. As the attorney for lowe's mentioned, this only applies to certain regulations, not to everything. It says shall be subject only to the county approval of the plat application and related permits. And county regulation of that plat. 1204 only amends and regulates the subdivision regulations of the section of the local government code. It only applies to subdivision regulations, it doesn't oust the city of Austin's jurisdiction over water quality, doesn't take away the e.t.j. It says just if it applies, again it doesn't apply in this context because there was no application that was pending at the time that the e.t.j. Was released. If it did apply it still would not oust the city of Austin's e.t.j. Jurisdiction, does not exercise their water quality ordinance including the s.o.s. Ordinance. All it says is that Travis County would approve -- would approve subdivision plats. So the question is before you, another way this is relevant, you can't go ahead and approve this -- this preliminary plat without taking sides in this ir. If you approve it, you are signing off on the version of interpretation of 12004 that's being urged on you by the developer. I will give you another example of -- of that. There was a discussion here by mr. Gieselman about his review of the plat application. He noted that one of the requirements is showing that you can provide water and wastewater services that are available for the plat. The application, even working out the service agreements with the city of Austin and Sunset Valley, the way they have decided to do that is by -- by doing onsite septic with drainage fields and also water wells. And mr. Gieselman I believe said that they reviewed the application determined that there's enough space, enough setback to do both a water well and onsite drain. I think that assumes that the s.o.s. Ordinance does not apply to that tract and that in fact there is sufficient space because under the s.o.s. Ordinance, it's my understanding the drainage fields are not part of the I am impervious cover requirement. If you have a big drainage field, you would be taking away all of that space you would be able to set off with impervious cover. I think the analysis that's been done so far by city staff, based on the assumption that the lowe's developers legal arguments, and factual arguments are correct. And for you to approve the application at this point without asking your staff to go back and look at hypothetically if s.o.s. Ordinance applies, whether this -- whether this in fact could be done, the drainage fields, the setback, I think that you are -- that you are, you know, ultimately probably, because of my position misreading the law but also unnecessarily siding with the developer on a contested issue that needs to be litigated in the courts or otherwise negotiated. So our position is no matter what lowe's did through the legislature with 1204, s.o.s. Ordinance clearly still applies and needs to be factored into your analysis and there also needs to be an application that -- that meets the requirements of city of Austin subdivision regulations because 1204 does not apply in this circumstance.
>> so do you believe Travis County has jurisdiction?
>> you all do have jurisdiction, but based on your own agreements with the city of Austin, this should not be approved right now and I believe it also does not meet the requirements substantive requirements for your own ordinance of showing that they can provide water and wastewater because there's been no review done to see if there's in fact enough space for that if the s.o.s. Ordinance does apply.
>> what is the county's authority to apply s.o.s. Standards?
>> well, I think when you are looking at a subdivision application, your own rules require a showing that water and wastewater needs can be met. In this situation, I don't think that showing has been made yet because the only showing that's been made and analysis that's been done is assuming there's not any additional constraints of the s.o.s. Ordinance that would perhaps prevent drainage ponds from -- from being applied in this phase and perhaps also not leaving us -- [indiscernible]
>> anything from the court?
>> if this development could be reconfigured to meet s.o.s. Standards, would you endorse it?
>> ll, we actually do not endorse development over the recharge zone. But we would not appear possess it if -- we would not oppose it if it cop primed with the s.o.s. Ordinance complied with the s.o.s. Ordinance.
>> yes.
>> my name is [indiscernible] draker, I'm a citizen.
>> mr. Roberts, we may need your chair. By the way, you don't have to sign in, just come forward when there's a seat available.
>> I'm a citizen of Sunset Valley, probably the closest resident to this development in this room, my house is one house away from brodie lane. We have been there 18 years and I'm here because I'm scared of what this is going to mean. We have a well, a few years ago our well was part of a study, it found from our way it took less than a day and a half for reach barton springs, any kind of fliewtion that would occur is going to get there, they call it the super highway, going to get their awfully quick. I'm scared of the water pollution that's going to result from this development. But I'm also scared of the noise pollution, crime and the traffic that's going to result on brodie lane. Lowe's has told us to our face, to expect 18 to -- 18 [indiscernible] a day throug a residential street. There are houses on brodie lane. I don't know if you have ever driven that stretch, it takes me 15 minutes to go a mile from my stretch to 290, because of the traffic but also because of the unsynchronized lights. We don't need a fourth light at oakdale drive that's unsing noised. Four different entities, four different lights this that stretch. It takes a long time to get anywhere. I'm also scared of the influence that lowe's has. Their influence, their lobbyists, bullyin tactics. They have done all that they can do to negotiate with -- I don't think they have done all that they can do to negotiate with us. There's a legitimate lawsuit in the courts right now, I urge you to postpone action on this item until as a result. Thank you.
>> thank you.
>> yes?
>> yes. Hello, my name is helen bessie. I live at 795 oakdale drive, actually more at the end of the dead end. And I first wanted to just tell you thanks for being here. I was on the city council in the early '80's. I was on the council when that first development went in. And but even prior to that, it was the county who supplied us with the coal mix that terry cowan described, our councilmembers, not me, would go to the county and get that mix and tamp it into our potholes. So I have always felt a real affiliation with the county. We have worked very hard with you and had a very good relationship back in those days. I felt that -- that -- I still feel that -- that counties have a real, real -- have real, real problems with their regulatory abilities because you have none. And would support anything at all that could be done to change that, although I know that you have tried and tried and nothing has happened over these many years. But your -- you are at the short end of a very long stick. I just wanted to say thanks for being here. It takes a lot of courage to do what you do. And with that said, i'll make my few statements about -- about lowe's development. Just downstream from the lowe's development, which would empty into dry branch Williamson creek, there's a sink hole, you are probably aware of the dye studies that were done there in that sink hole. Years ago, when I first saw it, it was about 12 feet deep, just a straight hole down to the aquifer. When Williamson, when dry branch Williamson creek flows, any depth, my neighbor's well turns brown, totally brown. In the almost 20 years that he's lived there until he could get city of Austin water, he had to bring in his drinking water. Because of the water quality of his well after rains. I have a reputation at Sunset Valley of kind of answering everybody's comment. One of you asked Sunset Valley considering buying that piece of property. And a citizens group got together, they said let's just buy it, offer more money, do the capitalistic way. Well, what we fnd out through our investigations was that lowe's is paying over 8 million for that 30 acres, I don't know if it's 30 acres, mr. Wheelis said 30 acres. $8 million is princess diana pretty pricey -- is pretty pricey for any property other than a big highway commercial from my understanding of marketing folks. So -- so we had to drop that immediately because even though we are considered very rich, we are not that rich. And probably never will be. Just going on with that, wealth I think is a relative issue. I understand now that mr. Garza gave up 20 acres of his 130 acres with the promise of we would be acquiring a good piece of property to develop economically, I think that he's in a good position to do that. I don't know how much wealth we all need. It's all relative and everybody has their own -- their own needs, their own desires for wealth. But -- but I will say that -- that I have two acres, in Sunset Valley, they are about my only wealth and I drafted an ordinance that restricted my being able to subdivide my two acres because I am on the -- within the critical water quality zone and the buffer zone of that creek. So -- so I -- I just think that -- that money gained is not necessarily something that should be considered in your decisions. With the light of oakdale, some mentioned that the residents were very much in favor of having a light there. I was very opposed to do that. I want to go on record as saying not all the residents wanted that light there. The last thing that I just wanted to say is that I have written a letter to mr. Robert tillman, invited, the c.e.o. Of lowe's at north carolina, and I have invited him to come to Austin and to Sunset Valley to just meet us. To see where we live, to see what kind of community we have, looking for places to see -- to show him our local cuisine, et cetera. I really hope that he does come here. I hope that he has a chance to -- to really meet the kind of people that we are in Austin and in Sunset Valley, so -- so I ask you to please let those two entities deal with this. And to -- to either postpone or to reject today's item. Thank you very much.
>> thank you. [one moment please for change in captioners]
>> ... The Sunset Valley flow path flows basically from south to north underground more or less under this very vicinity. And it is -- it's conduit that the city of Sunset Valley is tapping for its drinking water supply, so this site is of serious concern to the aquifer district. It's an important site for the aquifer and it's a site that will directly affect someone's drinking water supply. We have -- the amount of imperviousover that is being proposed on this site, 40%, is an amount that, while I'm not a water quality scientist, I believe that all the water quality scientists that I have heard believe is too much to be mitigated by structural control on the site to eliminate the pollution that is going to be added to that water. So I haven't heard -- I have heard the applicant say they intend to meet the intent of the sos ordinance and meet most of the requirements and I'm not going to argue whether or not those requirements are the -- the only requirements that might achieve water quality, but I think I can -- I will take the risk that some scientists might contradict me to say that I do not believe it's possible at a 40% impervious cover to remove all the pollution from the water that would run off this site. And so what we're looking at here is a site that would, I think, unquestionably pollute the aquifer, and while we've had a lot of discussion of the law applicable to this tract, I think a fundamental principle should be that there is no right to pollute. The discussions of the law have made it clear that -- that the law is far from certain on this area. There's a dispute on whether the new house bill 1204 applies. There have been mentions of grants to the county of authority to enact water quality regulations which the county may not have done. I hope to be able to work with Commissioner Daugherty in the recently-convened hays, Travis County regional planning process to the point where we can have a consistent legal framework that would apply throughout the aquifer region all the way from mountain city down in Hays County to barton springs itself, that people would know what the rules were and that these rules would be adequate to protect the aquifer. We may not be there yet. The law is uncertain in this area. So I am suggesting, urging the Commissioners to postpone this item, as you have heard others urge as well, so that the city and the developer can try to reach a negotiated settlement on this -- on this, the issue of this tract, and so that the law can be clarified and made more consistent as the regional planning process goes forward. I think if the city postponed -- if the city/counties rather. If the county postponed action for 30 days it's likely to save far much more time than that later on because issues that would be thought overlay ter in over later in court, could be caught here more or less at the beginning. I know that the 1-point briefing that mr. Gieselman passed out indicated that if the applicant comes and decides to go forward with a well to provide water for the site, it would require a permit from the barton springs aquifer district. I have no authority to speak on behalf of the district on such an application which has not been filed. But I would say that my only point of view would be to grant a well to serve a tract that we would be pretty sure would pollute the aquifer, would be contrary to our management plan, and I can't see myself supporting that. Thank you.
>> thank you.
>> Commissioners, my name is judy paff, i've been treasurer of the Barton Creek association since 1981. I've obviously live add long time. In fact two of the garza girls were friends of mine back in at least the 1940s and the 1950s and I'm not sure about since then. I, too, echo the many speakers who are asking you to postpone this, and my main hitch would be is the representative of lowe's still here? My pitch would be an appeal to the national cooperation, or maybe it's multinational, lowe's, to find another site. We don't need the battle between home depot versus lowe's to be carried on over the battle ground that is our most precious acreage. There are plenty of other sites that would serve their financial and corporate growth purposes, and to subject the people of this community who love our natural resources with this invasion is just unconscionable, and what has not been mentioned is that beside Sunset Valley and barton springs, the last number I heard was that at least 45,000 people living just south of the city of Austin use this aquifer as sole source drinking water. That is in southern Travis County, which is your jurisdiction, and northern Hays County, so my appeal to you is to postpone it, and my greater appeal to lowe's is to get off of our watershed and find another location. [ applause ]
>> is Commissioner Davis coming back this afternoon? Are you able to come back this afternoon?
>> your honor, I'm not.
>> I wasn't planning...
>> we don't have the time and energy, to be honest. There's no way for us to finish it this morning and I'm about to suggest that this item be called up at the earliest possible time which is about 2:30. And if my plan works, this will be the only item left. And my recommendation to the court would be for us to come back at 1:30, go into executive session, and get whatever legal -- additional legal advice we need to, and complete the other items on the agenda. And that's the best we can do. Now, I never know whether these items will take one hour or three or four. This will be in the four-hour range, I think. Who else wants to give comments on this item that has not spoken already?
>> they need to come back?
>> yeah, we're looking at spending at least another hour on this, I would say. When we typically break for lunch at 12:00, not necessarily to eat, but normally other commitments that we make over the lunch hour, so... Yes, sir?
>> your honor, with all due respect, I have some commitments this afternoon that would make it really imposing on me to come back. I've been here all morning. My name is scott drakeer, I'm a councilmember for the city of Sunset Valley. I'm here as a citizen today before you and I would very much appreciate the opportunity to speak to you this morning and before you go into executive session.
>> are y'all able to come back this afternoon or are you in the same situation?
>> [inaudible]
>> that's our problem.
>> my recommendation would be if you e-mail those to me or other member of the court, whatever comments you have, we will enlarge the font, give those to the other members of the Commissioners court and if you get them to us by 2:00 today, by 1:30, we can do that when we call this item back up at 2:30, we can review those. I don't know that I can do more than that.
>> is it possible that we be given an opportunity if we come back this afternoon before you go into executive session.
>> that would be fine with me. Now, the other thing is I would ask myself am I saying something that has not been said already? I mean I don't know -- on one hand, I have received 150 e-mails at least. And 99% of them really were against the project. So there are laws and standards that we have to follow whether we like them or not. But in response to your question, I mean I have no problem with coming back and taking citizens comments at 1:30 if that will help.
>> at 1:30? If that is better than 2:30. But at some point there, to get advice of counsel, we have to put this item on hold this afternoon, get into executive session, when we go in there we have two other executive session item, may may as well discuss this one. If that is a better strategy to come back at 1:30 and take whatever additional comments from residents that we need to, we can do that ...
>> i'll make the arrangements to come back at 1:30 if that's what work.
>> yes. Let's do that. We'll take comments from the rest of the interested parties at 1:30. All in favor? That passes unanimously.
>>
>>
>>
>> good afternoon, we do not need the northwest Travis County road district number 3. As there are no claims and no investments. Let's call -- just a reminder, there's a work session, Thursday afternoon, two items there. We do have departments calling about budget impact of various pieces of legislation.
>> so it should be interesting, informative and exciting.
>> in that order.
>>
>>According to melissa and my calculations, that does it.
>> executive session?
>> oh, executive session?
>> executive session items?
>> I知 sorry.
>> they are not --
>> the reason is that on 28 there's no action necessary today. We really ought to have it back on next week. And on same thing for 29.
>> same thing.
>> after taking next week -- -- urge the property openers to treat this with urgency, we appreciate an and he shows response so that we can let tta no where matters are. Now no further business.
>> move adjournment.
>> all in favor? That passes by unanimous vote.
Last Modified: Wednesday, June 25, 2003 9:52 AM