Travis County Commssioners Court
August 5, 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.
Item 25
We indicated this morning that we would call up item number 25 at about 1:45. 25 is consider and take appropriate action on request for approval of a preliminary plan in precinct 3, garza brodie subdivision, 31.40 acres, brodie lane. Can I have representatives of the developer, city of Austin, come forward? Maybe it would help us to get a status report.
>> judge, the city of Austin is on its way. We were just at a meeting. They are in transit right now. If we can proceed at your leisure, but they may be looking for a parking place.
>> do you want to wait 5, 10 minutes to give them a chance to get here? We will not run short of work to do.
>> we are completely at your pleasure. Whatever you would desire. I think they are on their way, though.
>> we've been talking about convert those paid parking meters to free parking spaces. [laughter]
>> well, judge, I do want to say that I just pulled up to the meter on the street and tried to use my city of Austin parking card that I paid for, by the way, it's available for anybody to purchase, but it doesn't work on those meters because they are state controlled.
>> these are tough times anyway. [laughter]
>> judge, how would you like us to proceed? We'll be glad to do that any way the court pleases.
>> it would help to get a status report from lowe's representatives and city of Austin can chime in.
>> is the staff going to make a report?
>> county staff? They will be third.
>> okay.
>> I did send county staff over lunch a short list of questions that I'm sure they have -- they didn't have a whole lot of time, I'm sure they have enough history and legal background to answer them anyway, but we'll check with them third and then receive any comments from any citizens who want to give comments today.
>> well, judge --
>> is that okay?
>> what we thought we might do is mr. [inaudible], of course, is representing lowe's as the applicant. Mark millis is a representative employee of lowe's, lives in the Austin area. But we would start with mr. Erian with a few comments pertinent to the application itself. Mr. Willis just briefly from the perspective of the landowner and I will close our portion of it with a discussion of the -- our negotiations with the city in conjunction with ms. Gordon who is here also. If that is everybody's pleasure.
>> judge Biscoe, Commissioners court, my name is terry and I'm here representing lowe's. We're here to ask you for approval of the preliminary subdivision plan. This is our second -- actually our third trip here. We were last here on June 24th, and at that time you received a full report from your t.n.r. Staff which indicated the preliminary plan we had submitted had met your ordinance requirements. During this past month, we have spent a lot of time in negotiations with the city of Austin to negotiate a settlement of issues we have with the city and also to make sure that we would be able to negotiate a water and sewer service agreement with the city, and those negotiations have progressed substantially. I feel that we are fairly close to final settlement on those issues. Ms. Gordon is here representing the city to give you her take on that at this time. The plan that we are asking you to approve is essentially the same plan that was originally submitted by lowe's to Sunset Valley back in November before Sunset Valley releasedhis property from its e.t.j. And this is the set of plans that was submitted to Travis County in March together with the application form and the preliminary engineering report. Copies of both this plan and the plan originally submitted to Sunset Valley have previously been given to your city attorney, and I believe he will tell you they are virtually the same plan. In both cases.
>> our county attorney.
>> I'm sorry.
>> don't demote mr. Nuckols. He does outstanding work for the county.
>> we are just asking for preliminary plan approval today. If this preliminary is approved, we will be back in approximately six to eight weeks with the final plat. And at a time that we submit the final plat, we will put a number of the covenants and agreements that we have been negotiating with the city in the form of final plat notes on the plat. You have up on this board here a list of some of the things that the city is negotiating with the city of Austin right now, including early annexation, which will allow the city to collect sales tax immediately in the approximate nature amount of $5,000 to $6,000 a year, and it will allow for that early annexation and collection of sales tax for that three-year period. Lowe's has agreed to limit the impervious cover on site to 40% and to construct structural water quality controls which are equivalent to s.o.s. Standard structural controls. We have also agreed that we would acquire or purchase or contribute to the acquisition of mitigation land to average down the -- between the on site and the off site dedicated tract of not more than 15% impervious cover. This is done by buying a tract of land that's over the recharge zone of the edwards aquifer and leaving it undeveloped in order to average between the two properties a maximum of 15% impervious cover. Finally, lowe's has agreed that because this project is located over the edwards aquifer, that it will develop its parking lot entirely out of concrete and thereby avoid any coal tire based sealants on the parking lot. They will also agree to a green builder program that will utilize things like a non-reflective light-colored roof with a rooftop storm water capture system that captures all the rainfall off of the roof and diverts it directly into a water quality pond without being washed over the parking lot. In addition, lowe's is willing when the traffic counts dictate to put a traffic signal at the intersection of oakland -- oklahomadale, I'm sorry, and brodie lane, which is the location where the real line garza lane will go through the property. So these are some of the agreements that lowe's is in the process of negotiating with the city, and those relating to impervious cover and water quality, we will offer as final plat notes on our Travis County plat when we come back for final plat approval.
>> let me make sure I understand the part about the -- I guess the fourth bullet. About not exceeding s.o.s. Requirement of 15%. What's the difference between what's here, I guess, and the -- I got a lot of e-mails about the 15% impervious cover. What the standard, straightforward s.o.s. Standard is at 15%.
>> well, the standard requirement is that you cannot exceed 15% impervious cover on site.
>> okay.
>> this site, as you know, was purchased or put under contract by lowe's when it was in the Sunset Valley jurisdiction. Their requirement is 40% under their subdivision ordinance at the time we filed our application. As you know, since 1204 was adopted, we're under just county regulations. Under those county regulations and Sunset Valley regulations, the water quality requirements would be those imposed by tceq. What we have agreed to do is to acquire or contribute to the acquisition of a tract of land approximately 52 acres off site of this property, but over the recharge zone. Which when you add that 52 acres to the 31 acres in this subdivision site, add it together, the impervious cover overall would be 15%. 40% will be on site, but with the acquisition of a mitigation site, it would average down to 15%.
>> how far from the project site is the 52 acres?
>> well, that hasn't been determined yet. But it's over the recharge zone of the edwards aquifer.
>> okay.
>> do we know if it's in Travis County?
>> no.
>> no, you don't know --
>> it could either be in Travis County or hays county.
>> but that is a possibility it might be in hays?
>> yes.
>> but it would be acceptable to the city of Austin?
>> I think we're still negotiating on those terms. There's been conversations in terms of the benefits of the land whether it would be in Travis County or hays county and closer to the site.
>> okay. That's the overview from lowe's.
>> judge, that is. I would let me say sort of in conclusion, we -- lowe's, on behalf of lowe's and everyone want to thank the city of Austin for working so diligently for us. It's a busy time during the middle of budget. And lisa gordon, david smith and others have worked very hard since we last met to try to find an agreement that we thought was going to be one that everyone would feel very good about signing. I think that in terms of a site that has entitlement rights obviously to develop in a more condensed way or with greater impervious cover, this agreement, in my opinion, probably represents one of the largest steps toward addressing water quality, traffic issues of any site that I can think of in recent times. We address both water quality issues through both water quality controls. That cost is -- to the developer is somewhere around $200,000 for those extra controls. In addition, the impervious cover averaging at 15% among the two tracts, I think, is a remarkable improvement from where we were. The traffic issue is being addressed with the realignment issues. Those will pay for the traffic stph-l and I think that is a major financial concession. Last, on a pure financial note, we would value this proposal at well over $2 million. About a million eight in sales tax that will come in due to voluntary agreement to annex early. Another couple hundred thousand for the enhanced waerbgs on site, as well as the amount to be determined by negotiations for the land purchase. As you can well imagine, land purchase is something that needs to be done on a confidential basis with the city and lowe's working together give ten nature of real estate transactions, but we would not be where we were were not the city of Austin to be working very diligently with us to try to find an agreement that was acceptable both to you and the city. Obviously these are not easy issues to work through, but only through that work has -- have we made such progress. I believe, and lisa will speak to this, we are down to one issue in substance and that is how to address mitigation issue and I think that solution will come within the next few weeks perhaps.
>> ms. Gordon.
>> yes, I would like to say that we have been working very diligently since we last were at the Commissioners court. I know there were some questions about whether or not we could make some progress in asking for the first postponement, but we have made significant progress. I think the issue that is outstanding mitigation is still substantive, but I think there's a willingness on each of our parts to continue negotiating. So the staff, from my perspective, we don't have a recommendation until we get that final [inaudible] and there's a lot of questions, but we have been working on good faith on negotiations. At this time we're not requesting there's any further delays or postponements because we do feel like we have been negotiating in good faith up until this point t rest of the details we still have to present to council. They have the final decision. But we would like to make sure that whatever we get to final recommendation on is something palatable and kind of meets the interest we've heard expressed by the community and all the parties we've heard from on this issue.
>> well, is our preference to find a 52-acre tract of land in Travis County and then failing to do so start looking at hays or --
>> well, there's always a balance between -- as mr. Air I don't know said, it needs to be in the watershed. There's always a balance between the fiscal constraints on purchase and finding the best and largest tract, frankly. So I don't know that we could give you an answer that was absolute other than to say that we're trying to find what that balance would be. You have to factor in what's available, what's available at a reasonable price with a willing seller. Its features and how it might k-bt undeveloped he-contribute undeveloped to water quality that might be another tract. So there are many factors that are going to weigh in to making that determination. But the desire is obviously the closer in the better.
>> have you discussed what input the city of Austin would have? On the 52-acre tract of land?
>> at this time I think there are a number of tracts that we're looking at, but I think we would be wanting to look at something that's experiencing development pressures that is going to have a positive impact on -- back to the watershed in light of the development that would be occurring if this were approved. So we will be looking at that and doing those assessments, but right now we're still discussing what those options will be and we'll present them as we get closer to resolution.
>> you believe there may be suitable tracts or a suitable tract in hays as well as Travis County?
>> I'm not the expert on the real estate. I think we're looking at what's available in the assessment tracts and where we are on that, I don't have a firm recommendation right now. But we are certainly keeping all the options open in looking at what's the best benefit to that area.
>> lisa, can you tell me if this particular issue is going to come back before the Austin city council any time in the near future?
>> at this time the city council is considering our budget meetings so we will have to schedule it in. I think once we finalize any recommendation on the mitigation tracts, then at that point we would bring it back to the council. The next meetings we have are the 14th and 28th and only in September, so we have about three meetings that are coming up. It will really depend on the timing because we need to have kind of a final agreement that we're bringing forward before we make the recommendation. So we will be keeping them up to date on the progress.
>> is it the city's position that you feel that this is within the city's e.t.j. And do you have jurisdiction over this particular project?
>> yes, the city's position is that this is in our e.t.j. And we do have jurisdiction.
>> and that's a big concern of mine because if it is such and it does hold true, which stated a different way we have to look at what we're doing here.
>> I think one of the reasons why we're at the table is because there is some debate about that.
>> exactly.
>> and in order to have a settlement that would solve the debate because all parties would be in agreement because this is what we're doing and it settles that question. We're hoping to resolve the issue through settlement, we kind of table that debate. That's the approach we're taking.
>> there's going to, I think, probably continue to be strong outcry and debate with projects that are locating over the edwards aquifer, such as this one and probably others. This is a probably one of the first times i've had to deal with one as such. I remember the frate barker situation, which I adamantly did not support to receive as far as being placed on the ballot bere the citizens of Travis County to approve making improvements or allowing moneys for that particular project to happen. I've been a, I think, a strong supporter against over the edwards aquifer, and I don't see why my position should even change to deviate and go from where my previous position has been. I'm really concerned about not only this project but any other future projects that deem to locate themselves over the edwards aquifer and the drinking water -- in the critical water zone, protection zone here in Travis County. I do, though, like to encourage and look at the possibilities as we go through h.b. 1445, we're looking at the emergence of h.b. 1204. And really exhausting where we are on that in a legal perspective, I guess, this is, I think, one of the first tests that we will really look at as far as those particular bills are concerned. My concern, though, is continued to the direct development I think away from the critical water zone, the edwards aquifer where folks do receive their drinking water, not only here, but in the entire district. But also direct development to areas, desired development zone, which is not as critical. So my continued effort to come with the resolve, and I guess the development community just is aware as anybody else as to what the circumstances are here in Austin-Travis County. Of course, as I stated earlier, there may be some legal hurd hurdles that still have to be crossed at some point. And we haven't gotten there yet. I do not want to be premature in taking an action on something that will end up handcuffing us in the future on such type of projects that affect the water quality over the edwards aquifer in the critical water zone as such. And so this is probably the reason, as I stated earlier before, and bruce, I talked with you yesterday, you called me, and I told you that then, as I stated before earlier when this was brought before the Commissioners court, that I was not going to support this project being located over the edwards aquifer. And in fact, I wish you really could locate somewhere else. We have -- we are in desperate need of development east of ih-35 for an example. We had some discussion about that this morning. Not saying that we're trying to direct you there, but there is a need for economic development in this segment and quadrant of the community. So, again, I'm going to come right up front, I'm not going to -- no bells and whistles, but continue to stick to my position as far as not supporting this particular item number 25 if it's to allow lowe's to locate over the edwards aquifer in the critical water zone. So my position is not going to change, and I think I told you that yesterday, bruce, also.
>> Commissioner, and obviously that's the prerogative of the court. I would say about this project, though, in terms of this is a fairly unusual situation. Perhaps one of the most unusual i've ever seen in terms of the effect of a sudden disannexation and the confusion that comes about as a result of that action. But I think the law is pretty clear about the responsibility of the court to approve something in a ministerial way. But our whole objective in being here, ms. Gordon, the city, the lowe's team, was under the circumstances bring the very best project forward that we possibly could in a reasonable time period. Again, the dual test of the s.o.s. Ordinance, of water quality and 15% impervious cover, we have met that or the proposal is to meet that and we will meet that for this project to be successful under the agreement we're striking with the city of Austin. 15% impervious cover among the two tracts or with the two tracts as well as the water quality standards that we believe the city will find are the same as would be coming forth with a s.o.s. Application. The payments that are being made to put in the concrete parking lot reducing a fairly substantially known source of pollution that has been well written about in the local newspaper and the media by avoiding that particular product, the ability to bring essentially a $2 million project, 1.86 of that being extra tax refuse that will occur to the city of Austin that would not occur without this agreement, we think those are all positive things. One of the most positive proposals i've seen in quite some time. So I think everyone understands the issues fairly well, but under the circumstances and the procedures that were available, we think this -- we believe this city will once completed will believe this agreement is in the best interest of the public.
>> mr. Davis, I think the reason we're all here together at the table right now is, as you mentioned, with the adoption of house bill 1204, this project, even though it's in Austin's e.t.j., Is subject just to the Travis County regulations. And we're here trying to negotiate with the city of Austin a plan that while subject just to the Travis County regulations meets, as bruce said, the s.o.s. Ordinance requirements both in terms of impervious cover and in structural water quality controls. And we've made a great deal of progresses and we think we're very close to an agreement that is satisfactory to all parties.
>> well, I beg to differ with you on some things. I think there's still some clarity that needs to be defined and determined by l where we really are on this thing. Annexation, pending application, what defines an application. You know, we ran into a lot of problems with house bill 1704 really what is the gut and what is the teeth and the mechanism as far as an obligation is concerned. Is an application when a person comes in and lays one on your desk and says, all right, here it is, folks. Or is an application something that is completed, all the is dotted and the ts crossed.
>> no, that's a permit.
>> well, all the is and ts dotted and crossed as far as an application is concerned for such things. And I'm looking at 1704 that looks at a lot of things. But anyway, that's another issue. But I'm not fully convinced that we have exhausted this enough to whereby the county, in my opinion, is placed in a position of having to take an action when we really are not clear on a lot of issues. And of course until we have clarity on those, I will not feel comfortable until I have clarity. And right now I'm uncomfortable. And again, as far as having projects located over precious drinking water supply area which is something that's very critical in my mind, as I stated earlier, I don't want to be redundant, but it's very critical to me. And of course the city council, again, has not formalized any such action. I'm really wanting to hear from the city, the elected body of the city of Austin, which is the Austin city council. Because there is some turf situation here. Jurisdictional situation. And we have heard testimony even from the folks in the Sunset Valley area that came and testified before us as far as the way the applications were presented to them. And we've heard that. I don't want to revisit that. But I'm having a lot of ambiguity and of course with that ambiguity I don't feel comfortable in supporting this and I'm not going to support it. But that's just me. I'm one vote on this court. [applause]
>> ms. Gordon, if a suitable 52-acre tract of land is acquired by lowe's for the purpose indicated, are you satisfied that this would be an agreement that's acceptable to the city for even under s.o.s.?
>> I think we are still looking at the mitigation land, so I would be hesitant to say what the final recommendation is going to be, but we are working towards a resolution, and the 52 acres is what we consider as a minimum to meet those standards. So from my perspective, that is movement in the right direction. But since we're not there yet, I'm hesitant to comment so that it would be taken as a -- you know, that we're already at the recommendation -- at the point of recommendation when we haven't finished that assessment.
>> judge, I may not have been clear earlier to your question. We cannot go find any old tract of 52 acres or plus and say that satisfies it. This is a volunteer agreement between the city and lowe's, and so ultimately the city will have say as to what is an acceptable -- what is acceptable mitigation. That is part of the give and take process in negotiations. So I didn't want to leave you that just any 52-acre tract would work or the tract would be 52 acres or that lowe's would purchase that as a purchaser. It may be contributing money to the city for purchase of an even larger tract. That's one of the issues on the table. So there are a lot of dynamics of that. But I'm saying that the agreement will -- to be successful will have to be approved by the city council and the selection of the mitigation, whether it's in cash or in land, will be a call made by the city ultimately based on what we're able to define in the marketplace and what we're able to negotiate.
>> a couple of questions. Ms. Gordon, can you tell me why this is not on the council's agenda even for purposes of updating them on where this is? I thought it was supposed to be on this Thursday and I found out from my favorite publication in found which is in fact daily, plug, plug, plug, that it's not. How did that occur?
>> we had it on council agenda last Thursday and the practice is we don't bring items back to council until there's final resolution. And since this issue was outstanding, we knew that we wouldn't have an answer to it for this Thursday and that's why it's not scheduled. Not because we didn't anticipate, but we know in a week's time for this kind of issue and the type of work that needed to be done in terms of assessing what kind of tracts are out there, what kind of criteria would be appropriate, we didn't think in seven days it was going to happen so we did not schedule it for this week.
>> we shouldn't read anything more into it than that. I've been reading the e-mails which have arrived, there's conflicting information. Some folks are under the impression that a 4-3 vote will get this down at Austin city council. There are others expressing the opinion that because s.o.s. Is involved somehow it may take a standard of a 6-1 or better vote to get this through city council. Can you give us some insight as to whether it's a simple majority over at the council to approve a settlement or there is a different number?
>> I think there is of has been debate legally. I think the simple answer if it's six or better, than there's no discussion. So I really -- I mean you can debate it on both sides legally which it is, but if you get the higher number, then you don't have the -- you know, you are above the bar. So that's probably the best answer I could give you because I'm not an attorney and there's been differing opinions among attorneys on that.
>> I'm trying to ask questions i've gotten through these e-mails.
>> that's fine. I hope that clarifies it.
>> does ms. Plumber still have her shopping lift of water quality -- it's my impression she always had more things you all want to buy and not enough money as opposed to the opposite.
>> I think the city's real estate department keeps track of what opportunities there are in terms of land and as it meets the objectives of the city as per se, a shopping hreugs, I'm not -- list, I'm not sure that's what she has, but it's part of her job to keep track what's available in the market lace.
>> and I just want to make sure that I have an understanding of where we are in the process. If I'm hearing you correctly, the debate is over the paragraph related to mitigation fees. It's a all about money in terms of how much would be paid into a pot and what piece of land that will buy to satisfy the 52-acre requirement. Is there any other piece of this settlement agreement that you feel that there are still debates about related to impervious cover restrictions, water quality standards, everybody backing off on the jurisdictional issues? Is there anything other than that one paragraph that you feel that you have not come to a meeting of the minds, still respecting the fact this is subject to the Austin city council agreeing wh your position?
>> I think there are a -- I haven't looked at the latest proposals going back and forth, but I think the substantive issue is going to be the mitigation of land because that is what hits to the core of offsetting the impacts of any development over the aquifer. So that is critical. I think we have discussed some other minor issues in terms of how the city has other ordinances and those will be in effect. But I haven't looked at the agreement recently to say unaoe vocally that's the issue. But that will require additional conversation and negotiation.
>> where I'm going to is this. Related to folks that are saying, well, we don't think it meets the s.o.s. Standards or we don't want you to extend wastewater service, is this what you all have negotiated in terms of a peace accord between lowe's and the city of Austin in exchange for things like early annexation, the tax base, the sales tax base? That's you all's gig in terms of whether you feel that is a peace accord you all could live with. We're not really a party in terms of whether that's an acceptable thing or not. It's up to you all to figure if that's acceptable to the parties involved in exchange for dismissing your various lawsuits against one another. Is that an accurate assessment? The judge said it best, this never was our fight, although it has landed here eye think the city shares the same position, meaning is that part of this was the release of the e.t.j. Is how we got into this position. We are going to provide any proposal agreement that we think meets the best interests of the communities and settling those lawsuits if we're able to to do that.
>> one final question. So if you guys have a settlement agreement, you would have vigorous and open discussions and invite the public to comment on this settlement agreement once it does hit the Austin city council meeting?
>> there would be a copy public hearing. I mean -- an open public hearing. Citizens would speak up about the issue and present their views or perspectives, that is correct.
>> because I didn't see a space here for Travis County to sign off on this agreement. It really is --
>> I don't believe we want to do that.
>> I'm not saying we want to. That's my point. It's between the landowner, city of Austin, lowe's and various and sundry attorneys and trustees. But Travis County is not a party to this agreement and so people aren't happy with what's in here, they need to go talk to the folks who are the signees on this thing.
>> in your view, would action by Travis County help or harm the city's position today?
>> the Commissioners court has to take action on this item. The city is not requesting any further delays. And nor are we supporting you approving it or denying it. So we're taking a position of neutrality.
>> tom, let me ask you a couple, three pointed questions. The first one is, help us understand what we do in the preliminary plan and what options we have left when we are presented a final plan or plat later on.
>> well, the preliminary plan is different from a final plat in that the preliminary is not filed of record in the county plat records. And it is more in the nature of a planning document than anything else. So i've heard people say preliminary plans don't have any legal effect. I wouldn't go that far. They are planning documents, and basically when the county approves a preliminary plan, what you are telling the applicant is if you come in with a final plat that looks substantially like this, then we will approve your final plat. But there's a lot that happens between a preliminary plan and a final plat. A preliminary plan just sort of puts the basics in place. So I would say you've got more flexibility on what you do with a preliminary plan than you do a final plat. I've herbd it said that -- heard it said that you can deny this application because a preliminary plan is not required by law. A preliminary plan is not required by law or by statute, but you have adopted regulations that tell an applicant if you file a preliminary plan application and it meets our requirements, we'll approve it. So I think you are bound by. That but you can put conditions on that approval. I think you've got more flexibility to put conditions on a preliminary plan approval than you would on a final plat approval. So if you want to use sort of conditions to deal with some of the uncertainties present here, that's one that's available to you. You can see this issues have to be cleared up before the final plat stage.
>> what authority does Travis County have to approve the preliminary plan conditioned upon achievement of the nine point settlement currently under s-rgs by the -- consideration by the developer and city of Austin and touch upon its inforce built, if you will.
>> I think that's doable because there is an issue as to whether or not city of Austin has jurisdiction here or not. And the issue comes down to house bill 1204 and whether there was a pending application filed with the city of Sunset Valley at the I'm Sunset Valley released this from their e.t.j. I would point out that issue is in litigation right now. The settlement that these parties are talking about is over a settlement of a lawsuit that contests the fact whether this application was pending. And that's what's at stake in terms of 1204. If there was an application pending, then city of Austin doesn't have jurisdiction under 1204 and it's county only. Conversely, if there was no pending application, then the city of Austin does have jurisdiction here. I think it's within your ability to say this is an unknown fact. It bears on -- let me clarify this also. If the city of Austin does have jurisdiction, then transportation and natural resources department would have to look at this application again because they reviewed assuming that the city didn't because that's the representation the developer made. Now, again, this is just a preliminary. I don't think you have to make a final conclusive you binding legal finding on that fact. You can do exactly what you are talking about, which is this appears to meet our requirements, assuming this set of facts, but you've got parties of the parties with a stake in here telling us we have sort of a -- maybe an agreement in principal on this point. If you want to make those conditions of your approval, I think you can.
>> okay. Let's say that we incorporate the nine points into the preliminary plan, and when presented an application for final approval, we believe that one or more of the nine points have not been met. Do you think we have the authority to deny the final plan based on that?
>> well, let me put it this way. What needs to happen before the final plat application is for the issue of whether the city of Austin has jurisdiction or not to be conclusively resolved. So that's sort of what you are dealing with. What I hear the city saying is if these things happen, we will drop our jurisdictional dispute. And if that happens, then a final plat, you are okay, you can go ahead and approve it. If there's still a jurisdictional debate over whether the city has to approve a plat or not at the time of final plat application is filed, I don't know that you all have a whole lot of options other than maybe to take -- to join in the litigation. Because obviously I think the jurisdictional issue is not resolved, that litigation is still going to be pending. And like I said, there's a fact issue in dispute that has direct bearing on your jurisdiction. So I think you all maybe won't have any other choices. I can't think of any options right now. That's not to say that getting together with the litigation attorneys we can't find one or two between now and when that happens, but if there's a final plat application filed and the jurisdictional issue is still disputed, I don't know but what we don't need to just go over there and ask the judge to decide.
>> let me understand what legal options we have today.
>> there's no time deadline on a preliminary application. There are no regulations and there are no statutes that tell you you have to act by a certain dated. Given that this jurisdictional fact is in dispute, I think you could say we're going to decline to act on this until it is resolved. [applause]
>> once the issue is resolved, you can act. Notwithstanding that there's a jurisdictional dispute, you can go ahead and make your own finding anyway. You can say there was a pending application, we believe the city of Austin doesn't have jurisdiction, our staff has reviewed this plat application and it mee all the requirements for a preliminary plan where the county is the only entity with jurisdiction. So the fact that the pending application issue is being litigated I don't think bars you from making a finding on that today. Or of course you can go this conditional approval route. That we just discussed. [one moment, please, for change in captioners] allow us to move forward with that process because we have made a lot of progress. And these bullet points are indicative of a level of progress that we've made. And so we're asking that you approve the preliminary, which the last time we were all here, we heard from your tnr department met all ordinance requirements of the county. So we would ask that you approve the preliminary and help facilitate us moving forward and completing our negotiations with Austin.
>> but the question is jurisdictional. Even though it appears to have met the county's approving of a preliminary plat, there are still in conditions and there are still some relevance to fact finding of jurisdiction. Now, again, if you remember what I stated earlier, I would hate to be handcuffed to a situation whereby we would have to back off from something we did, back off, facts come out that the city actually has jurisdiction. This is really a city thing. And yet the county has went and acted on it. Of course, again, there is some litigation hurdles that we still have to I think address in my mind. Like I said, I'm one person, one vote, but I know how I'm going to vote, and there are some contingencies here that I addressed earlier. I think you just hit on some of them -- until those facts have been determined, I think I'm premature on acting on any of them at this point. So again, i'd like to delay it. And let it go through the legal process and determine if the city does have jurisdiction -- I think it should have to appear on the city council's agenda. I would like to hear from the elected officials from the city of Austin on this thing. Again, there is lawsuits and things like that, pending applications versus application that may not have been pending. There's still a lot of things in here there are not clear, not in my mind.
>> I just have one clarification based on what you said. Yes, tnr approved it, but I think they were of the opinion that the city of Austin did not have jurisdiction.
>> exactly.
>> and we need to go back and re-- we need to clarify that point. And in which case we can also do it by delaying action and letting the court process determine what needs to be done. And that way I wouldn't feel like I'm meddling in something in which I don't have any business or authority. And based on -- and I'm basing all of this on advice I'm getting from our county attorney, the county attorney's office. And so it sound like that's an option that we have.
>> anything else of these five outstanding public servants before us? Before we get to comments from citizens?
>> a quick procedural question. Tom, can you give us a sense of how long it generally takes for somebody to get from a preliminary plan being approved by the Commissioners court to final platting? Is there a -- that a question to you?
>> i'd like to defer to tnr.
>> is there a sense of how much time is between here?
>> I'm with tnr. It's totally up to the applicant how long it takes. There's time it's taken for engineering plans. The plans are more detailed, they have to gather more information. I don't know if they've been doing that while they've been doing their preliminary plans. It's totally driven to the applicant how long it takes to go from one to the other.
>> is it weeks, is it months, is it days? I'm just trying to get a sense for --
>> it can be days, it can be years. I mean, it can -- there's no one answer. Every development is different. But it could be weeks, it could be months.
>> now, how long would it take not the city of Austin, but how long would it take Travis County?
>> I would answer the same. I don't know. It's still up to the applicant. [ laughter ] [overlapping speakers].
>> there's a statutory deadline, if the applicant files a complete application for a final plat, you have 60 days to act on it. If you don't act on it in 60 days, it's deemed approved as a matter of law.
>> but as far as a preliminary plat, no time on a preliminary plat. That's the thing we need to look at. My whole feeling about this until we resolve the jurisdictional situation, and again as I stated earlier, the preliminary plat does not have to be approved and we're not sitting on the butt of a gun that we have to do this today. I think there's a lot of time that a lot of things need to be done. The city council, of course, in my opinion has to get involved in this process. They have to. And, of course, the jurisdictional question is still paramount in my mind. And the lawsuits that are pending, there's a lot of things we need to consider. Again, I'm redundant, I'm not going to act on this today.
>> now, having said that --
>> judge Biscoe, could I address just about three point.
>> something new hopefully.
>> I hope so. The jurisdictional issue I think that has come up to question here several times is somewhat addressed when lisa was sitting here earlier. And my the points that you see on this board here. The last time we were in front of this body, we did not have any negotiations with the city of Austin. And here you see nine points before you and all but one we are very close to settling. And if lisa wasn't sitting at this table with us, I would say there was a strong argument that we may be far apart, but we're not. The other issues is that with respect to a conditional approval, lowe's is in agreement with the water quality standards, impervious cover, no -- (indiscernible) green builder, grow green, traffic, all but two items we would be more than happy for you to condition this approval on, and that is mitigation of early annexation, which has only to do with the city of Austin. The issues that were raised by all of the residents, especially Sunset Valley, have been water quality. We have addressed water quality meeting and sometimes exceeding s.o.s. Water quality standards. No, we do not have 15% on site impervious cover. We do not. But we have an application that says that we met the city of Sunset Valley's 40% impervious cover requirements. That's what we've done. In addition to that, we are looking at purchasing land that reduces our overall impervious cover to 15%. But it can be shown and it has been approved by city staff, city of Austin staff that we have met water quality standards that exceed s.o.s. Requirements, non-degradation. And I believe that has been the issue here at this court. Thank you.
>> has a precedent been set for the city considering a non-contiguous tract of land to achieve the 15% impervious cover requirement of the s.o.s. Ordinance?
>> the city has had several settlement agreements where we have used similar approaches to address water quality off site, and in different areas. And so it is by a case by case because each case is different. This one is -- one of the strangest, one of the most unique and one of the most complex that i've had to deal with, and because of that in trying to meet the goals that the city puts out, which is a very high standard for the environmental protections and water quality, we have had to be creative about how we address this in light of balancing all the issues. So I can't say what the city council will do because that's not really my role, but I can tell you that other settlements have been reached using the same types of principles.
>> your honor, lowe's filed its original preliminary subdivision plan in November of 2002. We have been ping ponged between jurisdiction for nine months now. And I would respectfully submit that it is up to the county to determine -- to this court to determine whether or not you have jurisdiction to approve the preliminary plan, which has been submitted to you. Ultimately it is your decision if we have filed an application under the 1204 this is subject only to Travis County regulations. And I think at some point in time somebody is going to have to take a definitive step. They're going to have to say, you're in our jurisdiction. We are going to review you and approve you or reject you because we have made a decision you're in our jurisdiction. We have been bounced between three jurisdictions since last November. And we're asking that you consider the law, consult with your attorney, and take an action on this application. And that application necessarily involves determining that we're in your jurisdiction.
>> okay. Now, how many have come to give comments today? All right. We will need those five chairs. This is not citizens communication, therefore you do not need to sign one of these, but if I could get five individual to come forward and if you could give us your full name, each of you, we'd be happy to get your comments. We ask you to try to limit your testimony to three minutes. Now, I have received about 200 e-mails. 97% of them said the same thing, so I know what they said. It would help us to hear something new and different if you have something new and different, otherwise we'd be happy to hear what you have to say today. Yes?
>> do you want to start over here? Nice to see you guys again. Name is (indiscernible), I'm the mayor pro tem of the city of Sunset Valley, but I'm here beyond my official capacity as a representative from the community. And I think -- first of all, I need to apologize to you guys for getting dragged into this. We are the horse's mouth that lowe's has claimed to have made its initial applications with, and our position has not changed. There is and never has been a pending application before the city of Sunset Valley by lowe's. There was an attempt to submit an incomplete application. It was found not to be complete and they did turn around and pick it back up from us. So we have nothing pending and never have had a valid application before us. That aside, I keep asking myself why is the county being pushed so hard to get involved in this preliminary? To what end? What advantage is it? I think what i've come up with in my mind is when you rush to settle, when you want something other than a determination made by a legal body like a court, you're probably not too secure on where you stand. We feel confident that because there was no legal application before the city of Sunset Valley that none of these other items like 1204 or any of these other things are going to come into play. But i'll let the lawyers talk about that kind of stuff. I said I was here as a member of the community. The community by way of this process of looking at a settlement that is actually a staff -- this is where staff has not gone to the elected officials as far as I understand to get their thumb's up on it. The community's been somewhat excluded from this. And I'm not just talking about Sunset Valley, I'm talking about other neighborhood groups. Which I know i've been in communication with that don't know anything about this. Normally when something is going to take place of this scale, it has this much impact on a community like the brodie lane area, neighborhood groups should have been contacted early on to know what's going on. By the time it gets to council and deals have been made through settlement negotiations, it's kind of far down in the process to bring people in that may have direct -- that are directly impacted by a development of this size. And so as a community member I will tell you that we are very unique community. We depend on our well water, which is across the street from this proposed development. And we know that deviation from 15% s.o.s. On site and doing land mitigation in timbuktu is not going to help us in Sunset Valley when our water, our drinking water, is polluted. It looks good on paper to say, okay, you've got this large area that is over the he did he had. Let's offset over here and do this. Edward's aquifer. That does nothing for a community with a well across the street. It does nothing for numerous, numerous citizens that live in our area that rely on the well water. We do know geographically our area is extremely unique. That the stuff that lands on the ground is in the aquifer like that. And we do know, we have commissioned the studies that tell us that that is the case. So again I apologize for the county being dragged into this. I keep hearing the word premature, and I think that would be the word of the day. It's premature without the elected officials of the city of Austin being allowed the opportunity to make comments on settlements that are being made by staff. I appreciate your time.
>> thank you.
>> Commissioners, i'll be brief. My name is doug --
>> I think there are others waiting if you would have a chair.
>> I would like to ask some questions of staff.
>> i'll sit right there.
>> if it's a water quality issue, it's a water quality issue, then why have you all permitted so much impervious ground cover to date in Sunset Valley? Is it not true that in the last 12 months you all okayed a tract by home depot that was a 66-68 percent? You all, everybody knows where y'all are. Everybody knows that y'all have two very large impervious ground cover tracts out there. What is the distinction? Is it just because all we want and we don't want any more? Or how did you do the other, but now all of a sudden the brakes and the 40 percent would not pass at this stage?
>> are you asking me why we don't want lowe's on brodie lane?
>> no.
>> or are you asking us why we have the development on the land preexisting that we have now?
>> what is the distinction between if this thing is a water quality deal for you all, why did you all not care whether you had the intense impervious ground cover with the two large retail tracts that are in Sunset Valley, and now this tract is a water quality issue and it can't -- is it the straw that broke the camel's back? I mean, somebody just needs to tell me. I don't understand these things.
>> first of all, it is never only been a water quality issue. It has been a community issue from the get go. Brodie lane has severe traffic problems which impact public safety in the least. And you use the phrase about the straw that broke the camel's back. That wasn't even the case. We consider ourselves a progressive community that is capable of learning and progressing and improving our ordinances as time passes. We have -- we have mirrored many of the things and many of the ordinances that the city of Austin has, which as you know, at one time you could pave from one corner to the other and the city of Austin as well. We feel that we have grown, we have learned, we have seen that even though a lot of development has taken place in Sunset Valley, that that makes what's left even more precious. And as we have learned from our water quality specialists that there is no way to mitigate high levels of impervious cover by way of water facilities or manipulating pollutant loads and all of the other manipulations that appear on pages with graphs and such. The bottom line is too much density cannot be offset. And it has a direct impact on our community. The city of Sunset Valley has taken extraordinary moves to have set aside properties. I told you this group this last time, the city through looking at balancing within our own community has nearly 2 hundred acres of set aside land. This is contiguous. We're one city. We're not mitigating land in tim buick tiew. So if you have one lake acre of land and two acres of it is greenbelt, then I think we have done what we could do. And it got to point where we needed to look coming in solidarity with s.o.s. As close as we could and reducing the impervious cover from what was left of the undeveloped land in our area.
>> and I suppose what I want you to tell me -- I mean, don't beat around the bush with me.
>> I don't think I am.
>> well, no. If it is a water quality issue, then just tell me that, do you know what, we have got all of the retail development that we want in this community because we have two very large intensive -- I mean, impervious ground cover tracts in Sunset Valley. And do you kw what? It really is, Gerald, we don't want any more. I mean, somebody would go a long ways to just tell me that as opposed to telling me that what this thing really is is now you're saying this 40% on this tract is really our wells, it's a yada, yada, yada. I understand that, cat, but I guess I just want somebody to say, do you know what, we just don't want any more impervious ground cover. I mean, somebody would go a long way with just telling me that. I know somebody will tell me that, but I would like for somebody from Sunset Valley to just tell me that point-blank. Is that what it is?
>> I don't think I can tell you what you want me to tell you.
>> okay.
>> because it is not that simplistic. I cannot answer that question. You can ask it three more times and I still can't answer it.
>> thank you, then.
>> we as a community made changes in our ordinances. You and a board have made changes in our ordinances to accommodate what the law need to be to protect who you represent. This is what we did as soon as we could. We reduced impervious cover several times over the last few years. I'm proud that we were able to come in to alignment with s.o.s. And it was our hope that the county would be thrilled about being able to do that too. But it wasn't saying, okay, I got up this morning and you know, there's just too much retail in our area, I think I'm going to change the law. Didn't happen that way.
>> how far from the city of Austin boundary line is the lowe's site? How far is it from the city of Austin proper?
>> well, we're both on brodie lane.
>> do you know about how far?
>> how far they are outside? Probably about 600 feet.
>> lowe's is about 600 feet from the city of Austin boundary line?
>> yeah. It's adjacent to it. It touches it on one side. And there's one tiny bit of e.t.j. Between us and that site.
>> thank you. I didn't really know.
>> it's right there.
>> let's move along if we can. We caused you to go way over your three minutes.
>> well, it was --
>> can I have two more speakers to come up, please.
>> Commissioners, I'm doug young. I'm one of the attorneys that represent sun vet valley in the litigation. Sunset Valley intervened in that case to establish what law would apply. And by the way, Sunset Valley's impervious cover cover limit is 18%. It's no longer 40%. Sunset Valley was uniquely a good party in that lawsuit since it was an application submitted to Sunset Valley, and an application of their rules to determine whether it was a good application. The scope of that suit has probably gotten a little bigger in light of subsequent legislation. The parties haven't postured yet in their pleadings as to what they're going to be pursuing. Commissioner Daugherty, I wanted to touch on point you made, though. The development you're referring to, the home depots, the application for that was submitted in 1991 at a time when Sunset Valley was essentially a rural town with almost no budget. It was run entirely on a voluntary basis. The ordinances were not very good. They didn't have comprehensive water quality ordinances. To some degree it was a matter of budget. To some degree it was kind of they were in the milghtdz of nowhere and they got kind of caught unprepared with that particular development. They were -- home depot was able to avail itself of the grandfathering rules that lowe's is trying to avail itself in this case. Home depot clearly did submit an application, and while Sunset Valley probably would rather it had to develop under its current rules, the law is lawsuit. They had to live with that. Lowe's has to live with the law as well, and that's what the fight is about here. Are they entitled to the grandfathering? Does Sunset Valley want no more development? I don't know. I suppose you would get a different answer depending on who you ask. Do they want development according to their current rules? I think probably you would get a unanimous answer on that one. I wanted to point out that I think Commissioner Davis' point about delaying is well taken. As mr. Knuckles said, if this property, the lows development, was found to be in the Austin e.t.j., The county would have to look at it again. It would make a difns how it was reviewed by the county. The county's own regulations require a certain amount of coordination between the city and the county when the property is in the e.t.j. Of another city. In fact, it is a requirement of your rules that the applicant submit an application to the city of Austin anything since they are in the e.t.j. There is a fact tral issue that you've already heard about and I won't touch on that any more. We'll add that there's an additional legal issue that I think has been brought up here, but I'm not certain. The house bill 1204 is an amendment of a chapter dealing with subdivision and who has the authority to regulate subdivision. Let's assume that -- and, of course, this is denied, but let's assume the application submitted to Sunset Valley was a good application that froze in the grandfathering rules, etcetera. There's still an issue as to whether a city gets to apply their watershed regulations. House bill 1204 deals with subdivision regulations. It's silent on the issue of whether a city that otherwise, through other chapters of other code, has the authority to regulate water quality. There's nothing in there to indicate that that kind of power is stripped from a home rule city like Austin or a general rule city like Sunset Valley. Those issues have to be decided. Ultimately the legal issue has to be decided, does a city and which city get to regulate even if the county is the only regulator of subdivisions, given that those issues remain outstanding, having listened to the presentation here today, I can't say how the ball is moved forward at all. As I understand the application, it's premised on lowe's is going to dig a well and put in a septic system, and I don't believe they want to do that. I'm certain no one wants them to do that. If they have to go forward on kind of a mac believe, just to meet your requirements, what is the hurry to approve this now. Why not if they think they're close to a deal, let's see what the deal is. If there is no deal, we've got legal issues and factual issues that have to be resolved. If you want to be the body that resolves them, I would respectfully request that you give an opportunity to make a factual determination regarding the circumstances of that application submitted to Sunset Valley, perhaps maybe while the parties agree on the -- agree on the legal issues, if you want to be that decision maker, I would ask that you establish some procedure for all the parties to make their case, factual and legally on what you ought to be doing. It would seem based on the presentation today that we could all agree maybe we don't need to do that. Maybe there's going to be a settlement soon, maybe we need to go to court and have the court decide these issues either way. It may be that you don't have to either make a decision without taking the time to find the answer to these issues or going through the elaborate process of making yourself like a true court if you wanted to make these decisions. And for that reason it is the city of Sunset Valley's position that delay is warranted in this case.
>> yes, sir?
>> good afternoon, judge and Commissioners. My name is colin clark. I work for save our springs alliance and while try to be brief. The only reason that there is an issue here today is because lowe's sued the city of Austin because they don't want to comply with the law of the land, which is the save our springs ordinance. Bruce todd was alluding to entitlements. Well, there are no entitlements. And I think that's been made clear here before. And further more, as mr. Young pointed owrks 1204 -- 1204 does not apply to water quality ordinances. It's a subdivision regulation. I'd like to talk about why the s.o.s. Ordinance says 15% impervious cover on the site and why these representations to what lowe's is doing is in compliance the s.o.s. Ordinance are false. The reason that that ordinance was written is to have 15% impervious cover on site is because when it rains, if you have 40% of that land paved, you can't filter out the pollutants with the remaining undeveloped land. You need all of that extra space on that site to filter out the pollutants. And if you buy some land in hays county, that's not going to do anything with their concrete parking lot. And if the city wants to settle, they can do that and that's their business. And if you guys can vote on the preliminary plan, but as your attorney's pointed out, there's no time line and you're not obligated to do. So like Sunset Valley, s.o.s. Would request that you delay taking action on this preliminary plan. And further that you not let lowe's use this Commissioners court to try to gain entitlements when when stratus was trying to get their deal through the city of Austin last summer, they pointed back to their original preliminary plan filed in 1984 and said, we got approved in '84 in a preliminary plan. Now we get to build it higher impervious cover levels than the new ordinances. So I think if you did approve this, lowe's certainly would use that and say, hey, the Travis County Commissioners court said we can build a 40% impervious cover. And they might use that in court and might go up to the capital and during who knows how many special sessions we'll have, try to get another bill through that would exempt them from Austin's regulations. And one solution to this -- and we're not saying that they shouldn't build anything on the property. That lowe's could build a smaller store. That way they could build on it, build it at 15%. People could shop there, city of Austin could collect sales tax and water quality could be protected.
>> colin, are you saying that if they were to get this and then you're not comfortable with the fact that they may go back to the legislature and in essence get something that would take them beyond the 40%? You're fearful of that?
>> I think given the history of how things go with the legislature, yeah, that's a concern.
>> let me tell you something. If that were to happen, you would probably see Gerald Daugherty come down and line up on the s.o.s. Side for probably the first time.
>> that would be great.
>> if that were to happen. Because I will tell you that I would not tolerate that any more than I really want to tolerate some of these other things. For me, I would not tolerate that.
>> thank you.
>> yes, sir?
>> yes. I'm steve beers, resident of Austin, barton springs swimmer. Lowe's could have located at the forum p.u.d. At william cannon and mopac five years ago. The reason they didn't was their addiction to giantism. There's a cap on there because that tract has a settlement of 100,000 square feet, which apparently wasn't big enough for them. The company's ceo, robert tillman, in a recent speech says the garden center in our new stores is twice as large as our entire stores were in the 1980's. So the fact is they could have located there five years ago if they had simply omitted the garden center. They could have located off the aquifer, but they have this obsession with head to head competition with home depot. So there's no hardship for lowe's in locating here. They waited five years to locate in this haven't. They could have located out of the this haven't off the aquifer, which I really think is the socially responsible thing to do. Is there a hardship for the landowner? No. He already had an entitlement for the apartment complex under the old rules. These two tried to create an entitlement where none exist with the legislative conjuring act. And from what we're hearing here, they didn't even succeed at that. So the proposed settlement is really a settlement under duress. It's an attempt to force an outcome that is going to hurt barton springs and is going to hurt the wells of this small town. Now, i'd like to address the merits of the settlement. You heard from colin here that it's really overdosing a small property with a lot of storm water. Let's put a visual on that. Compared to one acre of meadow, one acre of pavement is a 1,600% increase in storm water volume. Now, the center for watershed protection, which is the national outfit, says that between 15 and 25 percent impervious cover, if it's any more than that, structural water quality controls fail. But let's say it was distilled water that was released off site. It's going to cause flooding downstream on Williamson creek where we've had lots of problem. And that itself is a water quality problem because it's eroding the banks, it's flowing over the banks. It's picking up pollutants. I'm glad about this mitigation. They could do it today because the landowner has adjoining land. In other words, they could do it today and comply with s.o.s. And stop this farce. I appreciate that there's no cold tar based pavement sealers to be used on the site. I appreciate that, but one thing I noticed when I went to lowe's yesterday is that they sell these cold tar-based pavement sealers in their store. The grow green program, that's nice, but they're not poisoning that site. That's nice because in their garden center they're a major chemical pusher. They have 24-d, they have roundup, they have lots of other chemicals. Roundup recently I went to the internet and looked up some facts about it. The country of denmark has found that if roundup is applied as directed in the concentrations that are regulated, it's showing up in their shallow groundwater and in amounts much, much higher than they expected. While I was doing my little shopping, I noticed piles of arsenic-treated lumber only a few feet from storm drains going directly into shoal creek and Williamson creek, two different stores. This arsenic-treated lumber is -- was found by -- it's on its way to being banned for residential purposes because it was found that a single swipe with a wet -- with a wet rag produced 500 500 times the arsenic. It comes off on your hand. 500 times the arsenic in a ghas of water that's deemed safe by the world health organization. This is just an amazing contaminant. Arsenic used to be used as a pesticide. It's been banned in everything except this treated wood product. And lowe's and home depot and others who were pressured into taking it off the market, but they still haven't removed it from the market, number one. Number two, they're only removing it for residential purposes. I don't know whether that includes contractor purchases. Number three, if they have an unsold inventory at the end of the year when they're supposed to take it off the market, you know, they're going to make a big order right befor December 31st. So that stuff will be in stores for years. You know, I think -- I think what you've got here is a situation where the stuff on the site is unusually dangerous, at least the arsenic-treated wood. Most of the rest of the stuff is inside. Where are they locating? They're locating to capture the market in the recharge zone. So they'll be pushing these chemical, including things like a fertilizer, ier ronite, which contains let in arsenic. I recommend that you not act on this preliminary. Don't call a delay, instead have a resolution calling on lowe's to either locate not over the aquifer or supply comply with s.o.s. This act causes you nothing, it really causes them nothing because they can still submit a final application and that sets the clock running for four weeks. But what it does do is let us know where you stand. Are you with us or are you with them?
>> yes?
>> thank you. My name a bliek blizzard. While I do do work for the city of Sunset Valley, the s.o.s. Alliance and some other groups that are involved in this, I'm just representing myself today. I would ask you to decline to act on this item until all the legal and jurisdictional issues have been clearly resolved. You have the legal authority to do so. And I think this is the appropriate action to take. I would urge you not to conditionally approve those preliminary plans based on these nine points here because they may not be the ultimate points of agreement. There may be more, there may be less. They may be different. There may not be an agreement and all these issues resolved in a court of law. So I would ask you not to pass a conditional approval based on an offer of lowe's that has not been approved by the city staff nor been approved by the city council. In fact, a lowe's attorney said either a settlement will be reached or he will seek a declaratory judgment, which means that one way or the other in the near future these issues will be resolved and your path and the jurisdictional issues will be clear at that time. As far as the specific offer, just a couple of quick points. One, while mayor todd called it one of the most positive proposals he's seen in some time, it does compare unfavorably on several key points to some very high profile and contentious settlements that have been done at the city council over the last year, I refer to the bradley deal, the stratus deal. They brought their offers to the community. They came to the save Barton Creek association, they came to seert ra club, they came to the neighborhood groups with their proposals before they kent went to scownt. They went to the aquifer district. All of these applicant -- number two, all of these applicants, while they did not comply with s.o.s., Were grandfathered projects. It's questionable whether this is a grandfathered project or not. It has not been determined. And they agreed to mitigate their projects with property that was in very close proximity to their development. That is not clear that that is what will be done in this case. So it can be done. And three, all of these projects agree to a variety of trips on the very sort of big box retail that lowe's is proposing in this community. Bradley can't build lowe's. Stratus can't build lowe's. And the forum p.u.d. Can't build lowe's. Not as a level thing. They are restricted to their agreements to do so. So this actually fails on several of the points even though those deals were opposed by many in the community. And last, I would say that this proposal before me today is almost exactly the same as the wal-mart proposal in southwest Austin. All these point right here are being adopted by the wal-mart. And that proposal has sparked an incredible amount of community concern and opposition and several city councilmembers and the Austin mayor have expressed opposition to that process. So approval of these terms is by no way guaranteed by the Austin city council, who faces an uphill battle for approval there and certainly an uphill battle in the community. So I don't want to take any more of your time. Once again, I would urge the county to decline to take action today.
>> thank you.
>> thank you. Mr. Baird?
>> judge, Commissioners. I'm gus garcia. I don't live in this part of the city, but I served on the council during the time that this issue came up both before I came to the mayor's office and after. I think that the city's administration and its council is looking at this issue. They need additional time to be able to look at how this whole thing works. They're developing for a mate trick for that land -- mate triks that would be used. A matrix that will tell what use of the land is most appropriate for mitigation. They're not there yet. I looked at the -- mayor todd sent me the proposal, the development proposal. It's not yet. He indicated this they were still working on it. I didn't call mr. Dob to see where they were at on it because I feel that mr. Dobson has seven councilmembers that he has to answer questions to and the last thing he needs is to have a former councilmember call him. But I think it would be very appropriate for you as a courtesy to the council who deals with issues on a regular basis to let them have an opportunity to work this thing out. This has been a convoluted, complex case, and there has been maneuvers along the way that have bothered people in the area. And I think that a good way to resolve that is to allow some time for all the jurisdictions that are involved and be able to have an opportunity to solve those issues. So thank you for allowing me to speak. I promise you that I will not be making this very often. You have citizens that are closer to the issue than I am, but I wanted to put in my two cents.
>> mr. Mayor, gus, i'd like to ask you something. When lisa was before us earlier, I asked a question of when would this be coming on the city council agenda, this particular issue. And of course, I don't know exactly when it will get there, but I would be very attentive to what the city council does as an elected body of this city of Austin. Of course, staff is one end of it, but of course the city council is the other end. And, of course, they have not formally given any direction I think, per se, as far as what is going to actually end up taking place here. And I'm kind of concerned about that. And -- I'm sorry, go ahead.
>> the reason is that this thing was dropped on us rather suddenly. Sunset Valley says we're taking it off of our e.t.j. And all of a sudden we didn't know whether it was y'all's or ours or what. But we know for the water quality issues that the city of Austin had jurisdiction. So one area of the recharge zone is like a big puzzle. In the lake we used to head up -- (indiscernible). He wrote a viewpoint that talks about the complexity of this land that we call the recharge zone and how development has affected it. So the council has a very broad view of how all these things fit together. We have to apply these principles during the time we were doing the stratus and the one on the forum p.u.d. And the one with bradley. And I think that this council can do that. They can look at all the issues, see how all the pieces fit together, but they need more time. And in talking to the staff -- I talked to the staff as late as last night. I bothered lisa gordon at home to make sure that I knew what was happening. And they're moving, and I think that the council can resolve this issue, but we need to give them time.
>> at least the point has been made by I think the county attorney that as far as action is concerned, as far as the preliminary plan, we do not have a state-established mandate that would not prohibit us from delaying this for as long as necessary as far as the preliminary plan is concerned, there's no time line. I think that gives the city in my opinion an opportunity to look at that because I still think that there are some legal hurdles, some jurisdictional hurdles that need to be taken. And so that's basically where we are with this issue. So as far as I'm concerned. I'm just one person here on this court, but that's the direction I'm going is to allay that with that particular regard. I really do appreciate your input. Thank you.
>> and I heard the county attorney and I agree with him that there's jurisdictional issues, there's environmental issues. This puzzle that we call the recharge zone, the contributing zone, how do all the pieces fit together and how does the dropping a big box of this type with 40% impervious cover fact the whole process? Those are good questions.
>> any idea how much time the city may need?
>> I asked that question of one councilmember, councilmember slusher, and one staff member, the assistant city manager, lisa gordon. Let me tell you, judge, we don't know. I sat on the council for nine years and about 18 months as mayor, and sometimes these things look like they're going to be settling quickly and they're not, but then it moves -- the stratus one was one that we moved through the process and it was very methodical and very sound. And there were disagreements. We had, what, 600 people signed up to speak. You all don't see those kind of numbers here regularly like we did over there, but we settled that issue and I think it was in the best interest of the people that lived in that area. And in the city itself. So I don't know. I think ms. Gordon is a better judge. I don't see councilmember slusher here, so he could -- he could probably give you a good reading.
>> as far as I know, members of the court haven't received any communication from the city council. And the city manager's position is they have no objection to whatever we do. And this item was on the Commissioners court agenda five or six weeks ago, and I voted basically to postpone it to get some reading from the city. Some folks say quietly the best thing we could do is to take some action and then it would go to the city and they would take action one way or the other. On the preliminary plan we're not taking a final position. I guess at some point either the city has jurisdiction over this matter or we do. It's kind of been riding the agenda five or six weeks. So we're in a kind of kwan try here -- quandary here. It would help me to get some --
>> one of the methods for them to contact you, I can do that, but I don't speak for them.
>> i've read that numb raws times the past four or five weeks. [ laughter ]
>> but like I indicated earlier, this was a strange case because it was not in our e.t.j. And then it was dropped on us. And the whole myriad of things, actions by the legislature. So it's been a complex case and the city, as you probably already read in the papers, is struggling with the budget. And I don't know exactly where the -- I'm not going to interpret for you the meaning of what the city manager said, but I know that councilmembers have great concerns about, you know, how this is going to be resolved. And I don't know why they're not here.
>> my name is judy pfaff. I'm speaking for myself. I've lived in Austin since I received a degree from the university of Texas in 1937. So i've been here awhile. My recommendation and hope would be for this court to postpone this item unless and until that two or more Commissioners put it back on the agenda, which would give time for a lot of these other actions maybe to be resolved. I also want to ask you to remember that the last number I heard was 45,000 people use the barton springs aquifer as their sole source drinking water. A whole lot of those people are in southern Travis County. Others are from hays county. I also want to thank Commissioner Davis for his steadfast support for barton springs. I remember June 10th and 11th, 1990, during an all night hearing on the freeport mcmoran issue and somebody spoke for barton springs way after two a.m.
>> more like three in the morning.
>> yeah, three in the morning. And he's been a steadfast, stall wart supporter of barton springs. And I for one appreciate it and I know his constituents do. With 40% impervious cover, which was proposed on this site, I think any knowledgeable scientist will tell you there is no that can be mitigated totally. It's not possible. And it's not going to help the pollution coming off of a location with 40% impervious cover. And remember that that's water going into the sole source drinking well -- drinking water wells. I've been real important to be allowed by the great being to have lived to be old. And I guess some people would also say I'm old-fashioned, but when I grew up and all my life, we were told that you go where you're not wanted. And lowe's is not wanted by the city of Sunset Valley, by the citizens of Sunset Valley, by the neighbors of that location, by the city of Austin, by the -- by the barton springs -- I think I can speak for the aquifer district if they ever have to get into the act. And by all the environmentalists who voted in the s.o.s. Ordinance, 15% impervious cover on almost a two to one vote. With the state of the economy in Austin, I think if lowe's would say we want to find the proper sized location, move it east of the watershed, doesn't have to go very far to get east of the watershed or northeast of the watershed, I think they would get lots of help from the real estate business in finding another location. And like I say, to me it's just rude to come here and keep asking for something that nobody wants. And y'all don't really want to handle it, I believe. I think I'm reading that. You wish it would go away. But the least you can do is postpone it, give these other things a chance to play out if they're going to play out, and in the motion to postpone it say you might put it back on your court agenda unless and until two or more Commissioners sign to put it on. That's all. I don't envy your position, but I hope you would be steadfast in whatever help you can give.
>> thank you. Anybody else? So am I hearing that the request is that we postpone this item indefinitely until the city of Austin --
>> [inaudible - no mic].
>> is the county judge or Commissioner, he doesn't have any role?
>> well, I'm not very --
>> [inaudible - no mic].
>> two of us favor putting it back on this time because we basically thought a compromise had been reached. Either I was told that or misheard a few days ago. If this matter were to just go away completely, it wouldn't bother me at all.
>> I think I made it clear that if lowe's would put out the woornd give us some of their high priced consultants and agents and so forth and just let the free real estate business find a suitable location, I think they could find one. Then we would all applaud. We wouldn't be talking about go away or whatever. There's plenty of room in Austin for a lowe's that's not on the barton springs precious watershed. [ applause ] [one moment, please, for change in captioners] to this court. It is not the way to deal with me. You can be different from me, I can be different from you, and I'm not going to try to create that rift. But I will tell you this is not the way to deal with these kinds of things. If I really thought that this project could be moved if somebody would give me a time about give me time, give me time, we have given six weeks of time and I don't think anybody is comfortable on the city side giving us a time that we can move this thing along. The thing that really disturbs me the most is this is a preliminary plat. I mean, you've got a long ways to go before you move this thing any farther. And if I really thought that what we were doing here was going to absolutely okay something without everything being met with regard to -- I mean, the city obviously is the other player in this whole deal. And I would love for the city to tell us, but we know what the city subpoena against. We know -- is up against. We know the budget. There are so many things in front of us. Plus, we know they don't really want to deal with it any more than we do. Everybody has tried to dance around, tried to be politically correct, everybody has tried to act like we really are trying to do the right thing. What everybody is really trying to do is say we don't want to deal with it, and unfortunately we do have to deal with in thing. I know there are going to be other comments made before I make a motion, but I am going to make a motion. Either it's going to pass or fail. And you know what? I know it's going to be challenged and I recognize that and I understand that. I don't think that whatever we do today is just going to skip right through and all of a sudden lowe's is going to be putting impervious ground cover on the grounds. But I do feel compelled and I will make a motion here in a moment because I know some of my colleagues would like to say something about this and I do have a question at the time of the motion so don't feel like you don't have to sit there if you don't want. Thank you, judge. [multiple voices]
>> are there --
>> there's just two things I would like to add to the discussion and that is the way we use time. I'm really concerned about the efficiency and I realize democracy is not efficient, but still I think a lot of knowledgeable people should be able to get together and work out problems in a certain given period of time instead of carrying this discussions out, you know, just forever and ever and really not making any progress. The other thing that i've noticed throughout the years too is I don't know why we insist building over the aquifer either. And especially when I think that this community has a reputation of being concerned about everybody. Downstream, you know that folks in southeast get flooded out all the time and it's because of development upstream. The other thing is the water. People downstream in southeast Travis County may have to drink dirty water. Do we care about that? And so there's -- those are two major issues that really concern me a lot throughout my -- I guess my involvement with the county and certainly while i've been here on the Commissioners court. I think Commissioner Davis had an idea this morning, you know, can you all build in northeast Travis County. I would support that. There is a great need for jobs. And it is in the desired development area. Is that a possibility? Over in -- I don't know what location he was talking about, but you can certainly get with Commissioner Davis and work out a place where it would really serve the community well and would be accepted.
>> I'm really actually glad you brought that up because it points to an issue that really addresses why we're all here. And that is we spend -- that is, the company of lowe's, spends quite a bit of time in researching where people live, how many households are there, how many rooftops, what's their income, and that determines where we look in a trade area for a piece of property to build. If there were not people in southwest Austin, we would not be here. And i'll say this as politically correct as I can, the issue that all these people are here today to fight lowe's and lowe's is putting a store in the wrong location and lowe's is going where they don't belong and they are not wanted, again, if the subdivisons weren't approved, if the people weren't living in southwest Austin, then not only lowe's, but no retail would be there. We go where the people go. And if the community is truly concerned about water quality, then they will look more proactively at limiting the number of people that occupy southwest Austin. And we would limit the fights that go on between the s.o.s. And communities and retail. But to answer your question initially, we do have a store in northeast Travis County.
>> could you have a conversation with Commissioner Davis about that?
>> sure.
>> I would love to welcome your input. Be talking to a whole bunch of people before Friday.
>> i've got a person here in the audience that would love to discuss that with you.
>> get in touch with my office, because I'm looking for economic stimulus for eastern Travis County. Incentives, in other words, for you to come my way.
>> thank you.
>> do you want to ask your question of anna now?
>> I would really like for the judge to be back because I think -- [inaudible] time for a motion.
>> which item are we on now? [laughter]
>> unfortunately.
>> judge, i'll make this short. I've got two questions and a comment and then a motion. First of all, anna, has lowe's met all of our standards and qualifications for a preliminary plat to be approved?
>> for a preliminary plan that is in our jurisdiction solely, yes.
>> okay. Tom, do we have, in your opinion, the legal authority to be the person or to be the organization or the entity that would pass the preliminary plat for the lowe's tract?
>> again, solely or -- we have jurisdiction. The issue is do we have sole jurisdiction. That depends on house bill 1204.
>> so we have both a and b.
>> we've got jurisdiction one way or the other. The issue is are we the sole he want at this time of that jurisdiction.
>> okay.
>> but lisa garden came over and told us today -- gordon came over and told us the city is not asking for a postponement. The reason that my motion is going to be a conditional approval is because specifically of what you are stating, tom. If this thing goes local and it goes against and it goes in favor of Sunset Valley or the city of Austin or whatever, well then so be it. But what I would make a motion for today is approving the conditional -- with a conditional approval with all the things that we have stated today, that those have got to be met before a final plat could go forward. That's my motion.
>> let me ask you this. Is this friendly? Alternate conditions including compliance with the nine points brought before us today, or a specific agreement by and between the city of Austin and lowe's, or a court ruling on jurisdiction, or -- and this is the final one -- some direct communication to the Travis County Commissioners court from the city, from the Austin city council.
>> judge, I think that I probably can live with a through d. I mean if it's going to move this thing along. What I want is for us to be able to get beyond this point. And if any of those things that you are talking about cannot be met, obviously I think we're all back to the table. But I think what we are looking for today is to move this thing somewhere other than coming back in four, five, six more times. I think that we have -- I think we've been pretty patient with this thing, and I think each time we've gone back and asked by the city to give us another postponement, that we have done that. So I would accept that as a friendly amendment.
>> with those alternate conditions, I second the motion. Any discussion of the motion?
>> well, I think I'm going to have to say something because I think I can [inaudible]. Seems like I'm stuck in the middle. So let me give a little prelude so that people know where I'm headed before we get there. I am probably one of the few people left in Austin and in trbt that has boycotted the Barton Creek square mall since day one, and I kept pure to my boycott because I felt it was big box impervious cover, all the wrong things up until I had a fashion emergency last year. So one time in 20 years is pretty darned good. But I will also tell you there are fewer and fewer and fewer people that stuck with that. As years went on people found reasons to go to the mall that was closer to where they work. And I will definitely tell you once nordstroms gets here, I'm dumping the boycott. With the city of Austin, I think we have been patient. I applaud the city for the tremendous amount of progress that i've seen. I mean it was like they did use the time that we gave them wisely. But I did not hear lisa gordon say don't do this. And if she had come in here saying don't do this, this would have said a great deal to me about where she felt the negotiations were. And I respect the fact that there is a city council here that has to weigh in on this. But I did not hear lisa say stop, don't do this, which is quite different from where they were when they first came in to see us back in June. They said please don't do this and we respected that and said go use your time wisely. In terms of the questioning related to the agreement, I asked specifically where are the points of disagreement. And it still came down to the same facts, and I heard it from mayor garcia, I heard it from ms. Gordon and others. It seems to be the mitigation package. It's all about money. It's about not if they are going to mitigate, but what [inaudible], what's the matrix, what's the piece of property. I have every confidence in ms. Phr upler in the real estate to come forward with an excellent piece of property. But it's not about if they are going to mitigate, they are. They are just trying to work [inaudible]. They didn't say we're not going to go with the county having a role in this. They didn't say we're not going to go with the s.o.s. Water quality standards. They didn't say that they have disagreement over the impervious cover. The only thing seems to be about the mitigation, and that's something that there's more than enough time between now and a final plat to get work through or not. And I think all the provisions that you two have laid out in the motion in terms of its a preliminary with all these things attached, which are safeguards, which are cushions to make sure that what they are promising indeed happens. And that's where I'm going. A preliminary plan is not a final plat, and if they don't follow through, there are 5,000 different ways this thing can be stopped, including everybody waltzing across the street to the courthouse to settle the jurisdictional matter. So -- hang on a second. I'm not finished. A settlement is all about settling points of disagreement. And it means that people walk away from saying we're going to argue about certain kind of things and we're going to move forward. And I'm ready to move forward, and again, I hope folks heard what Commissioner Daugherty said about please don't think that we're not with you on something, that somehow it means we're against you because it's not true. I voted for s.o.s. I was proud to vote for s.o.s. And again, I'm ready to move on this one.
>> I would like to make a substitute motion.
>> one moment. Let me just clarify something. With the motion, does it mean that the preliminary plat would be approved is not the vehicle that would be used for grandfathering in? People can come back and say that was passed, now we are going to hold you what was in that preliminary deal. So it's straight out, clear?
>> it's my understanding that with the friendly amendments she basically we incorporated into the preliminary plan the nine points we heard about today. But we also incorporate raid two otheral nature conditions, one being basically reach an agreement -- I mean they could get with city council and agree on nine other points that they come back with an agreement, I'm saying that makes me happy. But there is some court determination of our jurisdiction, we basically follow that. Not that we have a whole lot of choice. But if the parties think that getting a judicial determination will simplify matters, then it seems to me we ought to bless that to the extent we can and expedite it. And the last point I added was getting some direct communication from the Austin city council. I mean at some point if the developer is ready for the final, that ought to be submitted to us. If the Austin city council were to call next week and say we wish you hadn't moved, don't take any final action before hearing from us, before taking final action I would can't someone down there. Unfortunately this is government and politics both. And they may well be waiting on us to take action. I don't know that it's fair to anybody, though, for this matter to be left just in limbo indefinitely. So I'm hoping that this preliminary plan approval will get us off of dead center more than anything else. In the end, it seems to me that to the extent we can work with the Austin city council and the developer to resolve these issues, then we ought -- and Sunset Valley, and to the extent we can do that, then we ought to be in position basically to [inaudible]. My thinking was, the answer to your question is --
>> it's going to be hung around Travis County's neck that, well, you all approved the preliminary, that means we can have 40%, you know, impervious cover.
>> I don't think so.
>> okay.
>> can I make a substitute motion?
>> can I clarify, judge? What I understand you saying is the developer has represented in his application to us that Travis County is the only entity with jurisdiction and your friendly amendments to Commissioner Daugherty's motion essentially say it's conditioned on the developer basically achieving that through the agreement or the court adjudication.
>> right.
>> right.
>> judge? I would like to make a substitute motion.
>> may I say a couple words in reference to what the Commissioner asked?
>> yes, go ahead.
>> i've been through more chapter 245 questions in the time i've been on the council, and practically any permit that's issued of any kind has been judged to be grandfathered -- has been judge to do grandfather on a specific piece of property. And I think that issue needs to be discussed with -- I don't see david here anymore, with the city attorney. No, david smith. I think that that's a very, very important and key question that you are asking.
>> well, I'm wondering because i've heard -- other actions before.
>> i've heard attorneys tell me more times that any kind of approval grandfathers a specific [inaudible] and I think -- [multiple voices]
>> but I do think the five of us who have the authority to vote today will have the same authority to vote on the final plan. So I'm -- these alternate conditions are to guide us as well as lowe's and the city of Austin. There are a whole lot of ways to keep us from being here looking at a final plan that the city of Austin disagrees with. And I'm thinking that city of Austin ought to take advantage of at least one of them. So I'm on record as I'm going to vote based on these four things. I can't tell the other four members of the court how to vote. But at the final plan stage, I'm looking at these. And I'm saying these are -- these provide a whole lot of latitude than we have had heretofore.
>> it's just that I would feel more comfortable doing it real clean. You know, go through the court, get that jurisdictional issue cleared up legally, and then I would feel, you know, that I could take a vote more cleanly.
>> well, maybe my substitute motion may be will address that because I do have a substitute motion.
>> [inaudible] pending? A new lawsuit has been pending -- 2002? Okay.
>> my substitute motion is to delay the preliminary plan for the garza brodie subdivision lowe's home center at this time until legal and jurisdictional issues can be resolved and that we hear something definitive from the Austin city council elected body. So that is my motion and i'll make comments if I can get a second.
>> all right, now, Commissioner Gomez. Discussion?
>> the reason why I'm making this particular motion is because of the fact that the city council and the city staff has told us -- well, not the city council, but city staff has told us directly that they have jurisdiction in this particular process. And I would like to see the city council do something officially, have something placed on their agenda, and as I stated earlier before, there is no time line on this preliminary, so what's the big hurry, what's the big rush. We do not have to act on this preliminary plan. The law does not dictate us to act on this preliminary plan. That's by law. So since that's the case, I'm not in a big hurry to move on something that the law tells me I don't have to move on as rapidly as others would like to move. And I would like the city to have an opportunity, those elected officials, duly elected by the city of Austin from the city council to have a voice and have a say in what we're doing here. The jurisdictional issue has not been settled. It needs to be. And I think i've stated many, many comments prior to this leading up to this particular motion. Again, I feel verya commissionee been kind of pointed in this situation, however, there will be some litigation still pending and jurisdictional issues still need to be resolved, house bill 1204, a whole bunch of other things, pending application, Sunset Valley, whole bunch of stuff. So since there are legal hurdles that we must cross and jurisdictional hurdles that we must cross, I feel that this is a appropriate matter and appropriate motion at this time and I hope that it passes. Thank you.
>> so the motion -- the motion -- the motion is to delay action until legal issues are resolved by the court.
>> right, and also the city council has had the opportunity to address as an elected body. That we've heard staff say they have jurisdiction in this particular matter. I would like the county to get handcuffed in a situation whereby we have to come back and retrofit something later.
>> any more discussion of the motion? The substitute motion. All in favor of the substitute motion? Commissioner Gomez and Commissioner Davis are supporting. Voting against, judge Biscoe, Commissioner Sonleitner and Daugherty. Now let's go to the original motion. All in favor?
>> judge, before you do, I have something. I've heard the motion, the original motion that Commissioner droughtry and your original amendments. We lawyers and staff have to go back and incorporate that. Do I understand the motion is to incorporate everything you've said, put it into the plat and bring it back for final approval of the wording? Because otherwise I'm worried all i've got is what's in her record, exact words you've said, which may not be as specific as you might intend it to be.
>> please get pen and paper ready.
>> i've got it right here. Tom suggested some language.
>> and I have my ears ready, tom.
>> this would be in a form of a note on the preliminary plan, which is the customary way of reflecting things of this nature, and the language would be this preliminary plan is approved on the condition that jurisdictional issues involving city of Austin are resolved by agreement between the owner and the city of Austin or finally ajudd indicated prior to final plat approval.
>> or?
>> now, do you have the agreement betwe city of Austin and lowe's as an alternate condition?
>> well -- resolved by agreement between the owner and the city. The owner is the person who is going to have the ability to resolve the agreement over the platting of this land. That's who signs the plat, and I believe that -- is that okay? The owner has to agree to the settlement, tom?
>> and not only preliminary plan is another condition and that is this is prior to taking final action that we receive a direct communication from the Austin city council.
>> same direct
>> that's not necessarily on the preliminary plan. That's just part of the motion.
>> saying what? Direct communication --
>> by final action.
>> agreement --
>> that they are dropping the suit or --
>> let's drop the last part. As the county judge's position i'll take care of that myself. Fair enough?
>> as long as we reference any actual cases and the parties.
>> agreement [inaudible] determination --
>> there's two we need to reflect on the preliminary plan note to protect the county legally.
>> and that either says there's a court of law that's going to tell us whose jurisdiction it is and we go from there, or it says the city of Austin will reach some kind of an acord to which we are not a party, and if they can live with it, then that also settles all issues related to jurisdiction as well.
>> would you consider delegating to one of you the language we would bring back in accordance, the specific language that incorporates that that yes, this is what voters want and this is what will go into the record?
>> I'm hoping after this vote we'll never see this matter again.
>> ols that plat, I think there ought to be a note that this -- [multiple voices]
>> tom? I also believe that protect the county, I think that adoption of the preliminary plat does not mean that it's grandfathered -- actions in it are grandfathered. Or grandfathers any action.
>> well, if --
>> if not approved. If those conditions are not met.
>> right. If those conditions are not met, this preliminary plan has no meaning.
>> exactly.
>> it's kind of like what we did on the landfills. That by saying we were okay with what was going on with the drainage improvements, that we were not giving to them any rights to expand. It just simply said it's about a drainage issue only and we did not convey any rights or privileges simply because we were dealing with that very narrow land use.
>> so we need to say the last part on the preliminary plan? About not being grandfathered?
>> we can add that.
>> I think it ought to be to protect the county.
>> the preliminary plan has no force and effect if these conditions are not met.
>> that's right.
>> david also wants to add the title of the lawsuit and the cause number, I guess.
>> like a real lawyer.
>> yes.
>> too many ways out of this. Be specific as you can.
>> having beaten the original motion and friendly second, all in favor of the motion? Show Commissioners Daugherty, Sonleitner in favor. Against, Commissioner Gomez and Davis. Thank you very much. One and all.
Last Modified: Wednesday, August 6, 2003 4:52 PM