Travis County Commssioners Court
December 16, 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 13
That brings us then to the lowes item, number 13. Discuss status of plat for recording in precinct three: garza brodie subdivision (lowe's home center in Sunset Valley) (long form plat - 2 lots - 31.40 acres - brodie lane), and take appropriate action. We did receive this morning at about 9:00 a request from Sunset Valley. To postpone consideration of this item for one week. From Sunset Valley. Does anybody have -- here it is right here. Basically the city of Sunset Valley request that we delay a request a vote on the final plat until the conditions in the plat note are satisfied and this is from w. Thomas buckle. Who is the attorney for the city of Sunset Valley. Basically they provided a letter of reference made to the note that Travis County put on the preliminary plan which basically asked that the matter be resolved by agreement between the opener, which is rose, and the city, or that the matter be finally adjudicated prior to final plat approval. And mr. Nuckols, you are aware of the action that the city of Austin has taken?
>> yes.
>> and as to whether or not this condition by the Travis County Commissioners court has been met, what is your legal position?
>> I think the city council agreeing to the settlement that they voted on last Thursday meets the condition because the note on the preliminary was intended to address the issue of whether house bill 1204 applies and I do have representatives from the city and the city attorney's office here to speak to this, but having read the actual settlement agreement, that the city council approved, it addresses that very issue. Express language whereas the city basically agrees house bill 1204 applies therefore the city of Austin does not have jurisdiction over this plat. City approval is not required. So the intent of the preliminary plan note was to say to the applicant you must put to bed the jurisdictional issue, I think the jurisdictional issue was put to bed by the settlement approved by the city council.
>> okay. Another question would be that if the court were to take no action today, by operation of law, there's final plat approval when?
>> I believe it's Saturday. The statutes say that if the county does not act on a plat application within 60 days of it being filed, the plat is approved as a matter of law. And at one point I sat down with t.n.r. And we sketched out the time frame. I'm sure today is the last regularly scheduled Commissioners court meeting before that 60 days runs. I think it runs Saturday. So --
>> that [indiscernible] put it on the agenda today because I thought that some action was a little bit better than --
>> if you accede to the city of Sunset Valley's request, unless you can somehow schedule another meeting between now and Saturday the net effect is going to be the plat is approved by operation of law.
>> okay. Anybody from the city here to address this issue?
>> good morning, lisa gordon assistant city manager with the city of Austin. We also have an attorney, david lloyd is here. It's our -- it is our opinion that the agreement was final by the counc. That they took action last Thursday. And the settlement agreement acknowledges 1204 also acknowledges the terms that they will develop this area and the city will annex it in the near future.
>> I have been telling everybody if the county were to apply county standards it would fall short of the terms of the agreement that -- that lowe's and the city worked out. Or stated another way the agreement really contains stricter standards, terms and conditions than the county can legally insist on. Is that right.
>> that's absolutely right. [one moment please for change in captioners]
>> in the official records of Travis County. And that restrictive covenant will consist of the settlement agreement that we've reached. That note is actually being added to the plat at -- it's just recently been added to the plat. I think what you will be approving is the terms of that note.
>> as far as we know, there's no disagreement or objection from lowe's? As to adding that to the plat? For the record, we did receive from also brad rockwell, deputy director of save our springs alliance, a letter similar to the one that we received from attorney buckhold, pretty much the same reasons. Is either of them here?
>> [inaudible].
>> yes.
>> could you come up? Thank you.
>> good morning.
>> good morning.
>> I think mr. Rockwell's letter sets out exactly what I would say, but there's two things that he pointed out in the letter is that when you all approved the preliminary plat earlier, it had a condition that said that it was -- this preliminary plan is approved on the condition that jurisdictional issues currently contested in Travis County district court involving the city of Austin are resolved by agreement between the owner and the city or finally ajudd indicated prior to final plat approval. This preliminary plat has no force and effect if these conditions are not met and we urge to you recognize your conditions have not yet been met and reject approval of final plat and deny any efforts by lowe's to move forward because neither of the conditions you establhed at your prior meeting as set forth in this plat note have been fulfilled. The second thing that mr. Rockwell pointed out in his letter is that the city council's 4- 3 vote does not comply with strict standards by the s s ordinance which say unless determined by a court of competent jurisdiction that a development agreement does not have to comply with the s.o.s. Ordinance or the simple majority vote of the council. All development within the city's barton springs zone must comply with the s.o.s. Ordinance. So 4-3 vote by city council does not satisfy the requirements of the s.o.s. Ordinance and does not settle the issue of whether s.o.s. Should apply to this tract. And so there is some disagreement on the law as to whether or not this settle. Agreement is actually lawful and can lawfully allow this development to occur on the lowe's tract.
>> disagreement between s.o.s. And city of Austin?
>> well, the provision in the s.o.s. Ordinance which was passed by initiative and referendum of the citizens in 1992 reads if a three quarters majority of the city council concludes or a court of competent jurisdiction renders final judgment concluding that this article as applied to a specific development project or proposal violates -- and in this case state statutes that may pre-empt a municipal ordinance, the city council may after a public hearing adjust the application of this article to that project to the minimum extent required to comply with the conflicting law. But it explicitly requires a three-quarters majority of the city council, that is, six votes, not a simple majority, four votes.
>> so the argument is that the 4-3 vote is invalid because it was 4-3 and not 6-1?
>> correct.
>> what's the city's response to that argument?
>> well, judge, our response to that argument is that the council has approved a settlement agreement. It's effective, we are going to act in accordance with the settlement agreement as approved by council and any arguments that other parties might make as to whether it's effective or probably not an issue for the Commissioners court but an issue for another venue.
>> I guess --
>> my name is melanie overland.
>> I guess I'm sitting here thinking if we take no action, by law, county approval is effective Saturday.
>> uh-huh.
>> our next meeting is next Tuesday.
>> uh-huh.
>> and the reason I put it on the agenda is that, in my view, the government says, you know, take the action, don't hide behind statute.
>> uh-huh.
>> and we're sort of in a bind. I mean, if the legal interpretation is correct on our time running out and by law approval being basically mandated on Saturday, we're left in a kind of tough position.
>> I agree, and I do sympathize with you. I suppose I would urge you that this issue receive strong opposition from the community at the city council meetings. There were -- for example, at the last city council meeting on third ading there was only one member of the community who supported the lowe's settlement; whereas the dozens of other citizens who attended the meeting opposed the settlement. And maybe a no action decision in this case is one in support of the community's feeling about the lowe's settlement agreement.
>> but I guess for the city, what's the difference between us taking no action and this being approved by law Saturday or proactively approving it?
>> I think the decision to approve it or not approve it is a policy matter for the Commissioners court. But what I will say is there was add quality public debate by which the city council made its decision, considering that input, and they still approved the agreement. That being the case, at this point we are here to make sure it gets implemented and move forward with it.
>> but our lawyer is telling us if we take no action, we basically end up deferring to the city's judgment and decision.
>> plus, let me add that under the statute, if a plat is approved by operation of law for failure of the county to act, have you to refund half the plat applicant's fees. So there would be a fiscal intact on the county.
>> is that $10? [laughter]
>> i've been here almost nine years. I can't recall ever where the Commissioners court has not weighed in that you either meet our standards or you do not, but we have basically said, no, we're just going to go ahead and do that. You know, like at the state legislature, if the governor doesn't veto or assign, it just becomes. Have we ever --
>> the 60-day provision became law in '99, and I can't recall a simple application that we have allowed to become approved by operation of law since '99 when that statute went into effect.
>> and other than this issue, does the lowe's tract meet every one of Travis County's subdivision platting requirements?
>> yes. With the inclusion of a plat note that requires the posting of fiscal prior to the issuance of a development permit or the approval of construction plans.
>> as i've been following these settlement talks, it really is this 1204 apply or does it not, and the city council has said we think 1204 applies in this case. Is that it, lisa, david?
>> that's the first preamble for the settlement agreement.
>> I hear the argument s.o.s. Is making whether you need a super majority or not, but that's not real what I the settlement was all about. It was weather state law was going to be controlling legal interests, and you all have agreed yep, it does.
>> mr. Daugherty.
>> I mean I'm worn out on this thing. I mean I have waited 90 days. Now, I first waited one week. Then I waited two weeks. Then I waited a month. I mean this is ridiculous. We have been told by t.n.r. And we've been told by our legal that we have -- that the applicant has met the conditions of what we set forth. I mean for that reason, I mean this ought to be a simple and my motion would be to approve this plat. And to move on. Now, if somebody else has another thought about something, well, then, you know, we're plenty used to fights in central Texas. So let's get on. But I mean, you know, this thing has met the letter of what we set out to do and we need to approve this thing right now and we need to move on. So that would be my motion.
>> do you want to second?
>> well, I second the motion. The reason I thought the language we adopted was good was that we were sending the parties to the city where I thought that stricter standards were likely. If we were to apply county standards, they would be much, much less than those contained in the agreement. So I think that the agreement probably while not perfect for all involved is a whole lot better than the county would be able to achieve under county policy and state law. That's why I second the motion. Any more discussion?
>> yes, sir.
>> anybody else here on this item that would like to comment? If so, please come forward. While Commissioner Davis is speaking.
>> thank you. I would like to ask the s.o.s. Representative, is there going to be a pending challenge of the decision that the city made in the settlement agreement with lowe's? By s.o.s.?
>> I don't think that's been decided with certainty yet and we do have a board of directors who has to aphraof any legal action that we take -- approve. But I do think the lawyers, both at s.o.s. And possibly at the city of Sunset Valley would look at the legal issue and determine whether it's worth a lawsuit.
>> but you've predicated some things based on a 6-1 vote-posed to a 4-3 vote that was the ending vote and it did come before the Austin city council. I guess what I'm understanding to you say it would have taken a 6-1 vote to actually not maybe legalize but conform to what the rules and regulations are as far as s.o.s. Is concerned, but however a particular vote was 4-3 and in your opinion I guess you are saying that was an in valid tally of votes to actually invoke such an agreement that was reached between the city and lowe's. And I'm assuming that's what you are suggesting there.
>> correct. And also I will state that it is part of the mission of our organization to ensure that the s.o.s. Ordinance is applied uniformly and consistently throughout the watershed, and if there's some action we can take to promote such applications, we would try to do so.
>> okay. All right. So as you know, this did come before the Commissioners court early on, and that was basically dealing with the preliminary plat at that time. And of course I voted -- I did not support the preliminary plat during that time, first time around, and the majority of the court said let's move forward and go ahead with that. And of course, [indiscernible] on the dais now, so we're going to vote. But I want to make a record that I'm not going to support this final approval of the preliminary plat for lowe's. And so [indiscernible] make I official.
>> any more discussion? All in favor of the motion? Show Commissioners Daugherty, Sonleitner, kwraours truly in favor. Voting against, Commissioner Davis.
>> thank you.
>> thank you, Commissioners.
>> thank you.
Last Modified: Tuesday, December 17, 2003 6:46 AM