Analysis of Bradley Agreement
In late March the city council unanimously approved an agreement
with developer Gary Bradley, his affiliates and partners -- called Bradley
Interests. The agreement covers 3,086 acres over the northern Edwards Aquifer
and the Barton Springs Zone. This was not an easy decision and I want to report
to you on how I reached it. I do so because of your interest in the issue, my
long involvement in it, and the trust you placed in me by putting me on the
city council.
I would have preferred to get this to you sooner, but I have been
very busy with ongoing matters and unable to devote the time needed to get this
out as fast as I would like. I think it is important, however, that I get my
written thoughts on the record.
Along with other council members I worked very hard to get
protections for Barton Springs and against urban sprawl into the agreement as
well as financial safeguards. I spent many hours looking at the larger picture
for the entire aquifer and at the complex factors surrounding this deal. I
considered every alternative that was offered by citizens and pursued several
on my own. Ultimately I concluded that the best choice for protecting Barton
Springs under the circumstances was to approve the agreement. I remain confident
that the council made the right decision.
Why an agreement?
The first question one might ask is why enter into an agreement with Gary
Bradley? It is a very legitimate question. I will elaborate more on this
question later, but the short answer is that I believe an agreement was in the
best interests of the city of
My thinking falls into two basic categories. One, the city is in a
stronger position to protect Barton Springs and the aquifer under the agreement
than without it. Two, we should give peace a chance and explore what can be
done in a cooperative, peaceful manner with those with whom we have been in
conflict for some 15 years.
The Land
To understand the agreement, as well as the reasons for entering an agreement,
it is necessary to know the different tracts of land involved and the uncertain
regulatory environment -- an uncertainty caused mainly by Austin bashing laws
passed by the state legislature.
The land involved can be divided for purposes of discussion into
three pieces. One is the original Circle C subdivision with some acreage that
has been added. The Circle C holdings total around 1,345 acres. Second is the
1,085-acre Spillar Ranch to the south of Circle C stretching into
The Circle C properties are contiguous except for small breaks
where the property is owned by non-Bradley interests, mostly Freeport-McMoRan
successor Stratus Properties. Spillar is directly south of Circle C, contiguous
to both existing portions of Circle C and city preserve land. Pfluger is
directly south of Spillar. Those two properties are contiguous except for a
thin strip of city-owned land between them.
Who Gets What?
The biggest gains for the two parties to the agreement revolve around water
quality protections and the provision of water and wastewater utilities. A huge
accomplishment for the city is that Bradley will build at the impervious cover
limits of Austin's SOS (Save Our Springs) ordinance, something virtually no one
thought he would ever agree to do, and something he fought against having to do
for more than seven years. (The limit is 15.9%.)
This is accomplished by allowing Bradley to count all three tracts
of land as a whole. That is, the Circle C tracts -- which have grandfathering
claims under state law -- may be developed with higher levels of impervious
cover than SOS allows, but only if this is offset by developing the other two
tracts at levels well below SOS requirements. The total amount of impervious
cover on the combined tracts must comply with the SOS ordinance's requirements.
(The limit is 15.9%)
Additionally water quality controls at Circle C will be improved
to where, according to city biologists and engineers, they will capture 95% of
the pollution that would be captured under strict SOS compliance.
The biggest gain for Bradley is the provision of city water and
wastewater service for a resort hotel and golf course on Spillar, and water to
Pfluger for large lot residential development. The water for Pfluger will be
provided through a third party private company. All infrastructure and other
expenses to bring services into the area will be borne by the developers. As part
of getting Bradley interests down to SOS impervious cover levels, however, the
city will waive capital recovery fees and hook-up fees. The total amount of
waived fees will range from $5.7 to $7.8 million.
Capital recovery fees help the city recover part of the costs of
installing infrastructure. Hook-up fees pay for the meter. On Spillar and
Pfluger the developers will be paying for the infrastructure so there are no
costs to recover. At Circle C much of the expenses were incurred long ago, but
the city will be foregoing the opportunity to recover part of those costs.
The hotel and golf course were very painful for me to accept.
After very close examination of the entire situation, however, I concluded that
the golf course and hotel were likely to occur whether the city reached an
agreement with Bradley or not. I concluded there were much stronger protections
with this agreement than without it.
For example the city negotiated an unprecedented
management/anti-pollution plan for the golf course that would not have been
possible without the agreements. The golf course will not be irrigated with
treated sewage, which has caused pollution in other parts of the aquifer.
It will irrigated with water from the Trinity aquifer -- not the
Edwards. There will be monitoring and if any pollutants are detected the golf
course managers must eliminate that pollution to the satisfaction of the city.
Remedies include: prohibition of certain chemicals; further limitation of
nitrogen use; creation of additional structural water quality controls; and
relocating golf holes.
The water and wastewater lines will be sized to serve only the
existing development with the added protection that if any extensions are
proposed they would have to be approved by the city council. This is in
contrast to the original Circle C agreement in 1984 where lines were sized at
four times the estimated need for Circle C in order to serve additional
growth/sprawl in the area. Then the city agreed to pay 80% of the Circle C
bonds, payments that are still being made.
Another improvement is that the city has used bond funds approved
in the May 1998 election to purchase environmentally critical tracts around the
area. These preserves help construct a "sprawl wall" against further
extension of utilities. Additionally, on the day the agreement was approved the
city acquired an option to purchase a nearby site where one-third of the total
recharge on Onion Creek takes place.
Environmental laws in the state of
The city obtained many more protections and safeguards than listed above.
Before going into those, however, I believe I should describe what happens on
each of the three tracts -- in regards to development, water quality
regulations and utilities -- as a result of the agreement. That first requires
an explanation of the major laws in play, and in conflict. They are as follows:
· The city's SOS ordinance. SOS is a product of citizen initiative
and referendum. It passed by a two-to-one margin of
· The state water pollution grandfathering law known as House Bill
1704 (HB 1704). HB 1704 allows developers to build under the water quality
regulations in place at the time of their original development application --
no matter long ago that was and no matter how much science or public opinion
has changed in the meantime. This means higher impervious cover limits and much
weaker water quality controls than under SOS.
· The state's cynically named Water Quality Protection Zones
(WQPZs). More accurately dubbed Big Developer Protection Zones or Water Quality
Pollution Zones, WQPZs allow developers who own more than 500 acres in a city's
ETJ (Extra Territorial Jurisdiction) to declare their property a WQPZ and free
it from all city regulations -- in particular water quality regulations. The
law also prevents annexation for 20 years. The city filed suit against the WQPZ
law in 1998. A Travis County court threw out the law. A Hays County court upheld
it in a separate suit. It is currently on appeal and not in effect.
· An amazing bill, which declared Circle C a sovereign district
free from all city regulations and free from annexation. That law was declared
unconstitutional under city challenge in 1997. It is on appeal.
I opposed these state laws and believe they are deeply wrong. The
fact is, however, that they passed. As a council member sworn to act in the
best interest of the city I believe I had to consider the entire situation. I
believe that many opponents of the agreement failed to take into account these
bitter realities.
The Agreement and Circle C
As usual some history is in order here. The conflict between Bradley and the
city is some 15 years old. The last seven years of that conflict centered
around the city seeking to require Bradley's Circle C development to comply
with the SOS Ordinance.
This is a long and complicated legal matter, but the essence of it
is as follows. The 1984 Circle C MUD (Municipal Utility District) agreements
say that Circle C will comply with city water quality ordinances "as
amended from time to time." Thus the city sought SOS compliance at Circle
C. Bradley claimed, however, that state laws and previous city rulings
"grandfathered" Circle C, meaning the development was subject to the
much weaker water quality ordinances that were in effect when the development
was originally approved in 1984. This grandfathering legislation was
strengthened by the legislature in 1999.
The result of all this is that without the agreement, Bradley
would almost certainly be able to develop Circle C at significantly higher
impervious cover levels than SOS permits, with much weaker water quality
controls.
Additionally, Circle C filed a WQPZ in 1998. That WQPZ, however,
would face more legal hurdles even if the zones were declared constitutional.
With an adverse ruling on WQPZs, however, it is possible that every property in
the agreement would escape all city regulations.
Another key factor is utilities. The already developed portions of
Circle C have city water and wastewater service and there are contractual
agreements to provide city service for future development.
Under the agreement, as previously mentioned, Circle C will be
developed at impervious cover levels higher than SOS, but lower than what would
be possible under HB 1704. Water quality controls will be improved well beyond
HB 1704 standards to where they will be 95% as effective as SOS controls.
If the Circle C sovereign district were declared constitutional,
a long shot, the negotiated protections of this agreement would remain in
place -- including improved water quality controls and impervious cover limits.
Swearingen]
Spillar and Pfluger
Spillar and Pfluger are still ranch land and do not have city water or
wastewater service. Neither have HB 1704 claims. Thus both properties are
currently subject to SOS, even absent an agreement. Both properties, however,
are filed as WQPZs. The outcome is very uncertain and the city can not
automatically assume that it will be successful on the appeal. If the city does
not prevail on the appeal both tracts would escape all city regulations, and be
able to build much more than SOS allows -- with virtually no water quality
controls.
Under the agreement both Spillar and Pfluger will have SOS water
quality controls and less impervious cover than in the SOS ordinance. The only
way the two tracts will be built up to SOS impervious cover levels is if the
impervious cover is transferred from Circle C to Spillar and/or Pfluger. That
is highly unlikely because impervious cover is more valuable in Circle C than
in Spillar or Pfluger.
The 600-acre Pfluger tract will be large lot development, perhaps
as large as 50-acre lots. Pfluger will not receive central sewer service. The
lots will have septic tanks. There will be trail easements across Spillar and
Pfluger. The city can claim up to 400 feet for trails that will connect to city
preserve land east and west of the two tracts. Trails will also be possible
from city preserves to the north.
The agreement removes WQPZs as a factor on these tracts as Bradley
interests agree not to utilize WQPZs even if the zones are declared
constitutional. This removes a tremendous threat to water quality and the
springs from these tracts.
Features of deal that go beyond SOS,
In addition, a number of important provisions were obtained in the agreement
that would not be possible even under strict SOS compliance. Those include:
· a city property right to the 84.1% of the land that will not be
allowed to have impervious cover on it, giving the city added protection to
insure development will not exceed that permitted in the agreement;
· third party enforcement by the Lady Bird Johnson Wildflower
Center (Suggested by SOS, third party enforcement helps protect the city from
further state legislation because private entities have stronger property
rights than cities);
· water rights to all underground water above that permitted under
the agreement to be used on the golf course, meaning the city will control
pumping above that specified in the agreement;
· pumping limits and other provisions to protect neighboring
wells;
· trail easements connecting to surrounding city preserve land;
· deeding to the city of an extremely fragile tract at Slaughter
and Brodie (the result of appeals to Bradley from Environmental Board member
Tim Jones when Bradley gave Jones a tour of the properties at my request);
· small sizing of the water and wastewater lines to serve only
these developments and thus help prevent further sprawl;
· small sizing of roads also intended to work against further
sprawl;
· a strong golf course management and anti-pollution plan written
by city engineers and scientists;
· a contractual agreement that the agreement binds over any future
state laws that might allow more development;
· the previously mentioned contractual agreement not to take
advantage of so called Water Quality Protection Zones if they are declared
constitutional; and
· negotiated protections at Circle C still apply even if Circle C
sovereign district is declared constitutional.
Dealing with Gary Bradley
I realize that many people are extremely cynical about peace with Gary Bradley
-- as well as peace with Circle C residents -- and opposed to entering any deal
with him or them. That cynicism is certainly justified, as I am well aware. I
am hopeful that the city, Bradley, and Circle C residents emerge from these
long negotiations with a new good faith working relationship. This agreement,
however, is not based on that hope.
Even assuming treachery by Bradley -- assuming that he will renege
on the agreement and the city will have to fight to enforce it -- I still
believe that is a better alternative than fighting the development of each
individual tract of land. Such a strategy would require: long shot lawsuits to
overturn HB 1704; denying utilities to Bradley developments, then fighting at
the state level to keep him from getting them elsewhere; and depending on
unspecified private sources to buy thousands of acres of land.
The arguments against an agreement
Some people whom I greatly respect opposed this deal. I considered their
arguments up to the very last minute. Following are the main arguments and
alternative proposals from deal opponents and the thinking that went into my
ultimately not agreeing with those arguments.
Challenge HB 1704
One proposed alternative was suing to overturn HB 1704. This would have been an
expensive long shot, a steep uphill battle, with a very uncertain outcome. An
unsuccessful lawsuit would mean not only expensive legal costs, but
dramatically higher impervious cover levels than in the agreement -- plus much
weaker water quality controls. In other words there was a huge risk of more
pollution accompanied by huge legal fees.
Under the agreement the city gets the same overall impervious
cover level it would have won under a successful lawsuit and almost the same
water quality controls. And, even if the city won such a long shot suit, many
of the protections won in this agreement would not be possible.
Deny utilities, buy the land
Opponents also argued that extending utilities (water and wastewater) to
Spillar and Pfluger would cause more urban sprawl. They pointed out that the
hotel is further sprawl and argued that it will be a catalyst for sprawl beyond
the borders of this agreement. So, argued deal opponents, better to deny the
utilities and let Bradley Interests try to get them elsewhere. A golf course
and hotel would be much less likely under this scenario, they argued.
Most proponents of denying utilities also wanted to purchase the
golf course property. This was difficult because the owners didn't want to
sell, plus the city is all but out of land purchase funds from the 1998
Proposition 2. Some said that the private sector would step forward and
purchase the properties although no funds were identified.
As previously mentioned, I definitely would have preferred not to
have the hotel and golf course. The argument against granting utilities,
however, depended on the assumption that Bradley Interests would be either
unable to obtain utilities to serve the hotel and golf course anywhere else, or
that the cost would be prohibitive and/or much slower in coming than if
provided by the city.
Councilmember Bill Spelman engaged in several days of research on
this with experts at the city Water/Wastewater Utility. The conclusion,
discussed at length at the March 23 council meeting, was that utilities are
available from a variety of sources, and at a cheaper cost. The city utilities
could be provided slightly faster.
The Austin Chronicle noted this discussion with the following:
"The only problem [with arguments against the agreement]. Nobody could
explain exactly how the travesty of the golf course/hotel in the recharge zone
could be stopped." I found that to be the case as well.
I agonizingly concluded that the golf course would be much less of
a "travesty" with the city-negotiated management agreement than
without it. I also concluded that granting city utilities with land use
controls and other protections in the agreement was better for the springs than
leaving the utilities to chance and giving up the provisions of the agreement.
Those provisions include:
· the golf course management/anti-pollution plan;
· all utility infrastructure is the expense of the developer
· pipes be sized to serve only the developments in the agreement
· Spillar and Pfluger developed with less impervious cover than
allowed under SOS or the impervious cover will be subtracted from Circle C
where impervious cover is more valuable;
· the southernmost tract, Pfluger, will not receive sewer service;
· water service to Pfluger will be by a private company through an
extremely small pipe making it virtually impossible to service more sprawl;
· city council approval of any further extensions;
· a buyout clause in case the private provider seek ways to expand
and service sprawl.
· In addition, already purchased city preserves in the area will
serve as a buffer against sprawl and further utility service. For example, on
the day of the vote the city obtained an option to purchase part of the
Rutherford Ranch, south of the agreement area. One- third of all recharge in
the Onion Creek watershed occurs on the tract under option. This adds to
thousands of acres already purchased adjacent to the area covered by the
agreement. Additionally, the Pfluger tract itself should work as a sprawl
buffer as it is envisioned as having lots up to 50 acres. Trail easements make
it possible to eventually connect city preserves throughout the area.
· Bear in mind that all these tracts have been filed as Water
Quality Protection Zones. Absent this agreement the city would lose all
regulatory authority over Spillar and Pfluger if it does not prevail on that
appeal, and perhaps lose all authority over Circle C as well. As previously
mentioned, under the agreement, the developers will not utilize WQPZs even if
they are declared constitutional.
Separate the utilities and the HB 1704 properties
As a vote on the agreement neared, attorneys for SOS proposed granting HB 1704
protection for the Circle C properties, but refusing utilities to Spillar and
Pfluger. I have already discussed the dangers of leaving utilities to chance.
This strategy also risked losing the regulatory gains that are in the
agreement.
Additionally, I could not accept just letting Circle C build under
HB 1704. One, I have fought too long for those properties to comply with city
ordinances and the agreement gets us much closer to that goal that granting HB
1704 protections. Two, that strategy would mean more pollution. Again, the
agreement gets them much, much closer to SOS than HB 1704 does, as in 95% of
the pollution capture rate of SOS.
I further developed this option, however. I seriously considered
the following strategy. Deny the utilities to Spillar and Pfluger. Offer the
capital recovery fee waivers at Circle C in exchange for keeping the
improvements in water quality controls and the impervious cover reductions.
This approach also depended on the assumption that utilities would
be difficult, if not impossible, to obtain from anyone other than the city - an
assumption that is, as we have already discussed, questionable at best.
Furthermore, this option, as well as the grant HB 1704 option
proposed by SOS attorneys, depended upon eventual purchase of the golf course
and hotel tracts through massive collection of private contributions. I wanted
badly to find a way to preserve these tracts.
Such contributions, however, have not been forthcoming to this
point. In fact on the Onion Creek option mentioned above the city challenged
the private sector, and those saying the private sector would contribute, to
come up with the money to exercise the option on that tract. No money has been
forthcoming and the city will likely have to put the funds together with no
private help -- or lose the opportunity to acquire this critical tract.
Back to the proposed purchase of Spillar and Pfluger by private
contributors, this would also have required a willing seller and most likely
another city election. Critically, both alternatives also left the fate of
WQPZs to chance.
With one vote more than my own I could have stopped the entire
deal and then sought to implement this alternative. (That is because six votes
were required to approve the deal.) If I were convinced that was the best way
to protect Barton Springs I would have taken that path.
I talked to colleagues and several citizens at length about this
option and considered it up to shortly before the vote. I ultimately concluded,
however, that this route simply risked too much that had been gained in the
negotiations and left too much acreage open to more development than the
agreement allows -- possibly with no city controls. At best, without the
agreement, Spillar and Pfluger would have developed at SOS impervious cover levels,
which would be more development than they will have under the agreement. And,
if the city does not prevail on WQPZs those two tracts could be developed with
no city regulations at all.
This agony was what I was referring to when I said that night that
I would wonder about this decision for the rest of my life. The yes vote makes
the hotel and golf course an almost certainty. I will have to accept that and
know it is there for the rest of my life. A no vote would have put that into
question, but I believe the eventual outcome would have been worse for the
springs and the aquifer and not in the city's best interest.
It wasn't easy. In fact it was painful, but I was elected to make
tough decisions. This was among the toughest.
The Prospects of Peace
In closing, I would like to discuss matters on a plane beyond impervious cover
regulations and deal enforceability. Beyond those important matters, what the
council did was opt for peace. We took a chance for peace. Now, it's about what
we do with the peace. In the absence of conflict, attitudes can change. People
can come to understand each other better. Therein could lie the real hope for
the permanent protection of Barton Springs and the aquifer.
For example the
One accomplishment that has already resulted from talking rather
than warring is the deeding to the city of the fragile tract at Slaughter and
Brodie. This resulted from Gary Bradley accepting my request that he give
Environmental Board member Tim Jones a tour of the property. Jones emphasized
the fragile nature of the tract. It was then deeded to the city as part of the
agreement.
If the hopes for lasting peace on this issue prove unfounded,
however, I still believe the city is in a stronger position trying to enforce
this agreement than any of the alternatives: opposing HB 1704; leaving
utilities to chance; risking the constitutionality of WQPZs; and fighting
development tract by tract.
In closing I want to assure you that this council will continue
its untiring efforts to protect Barton Springs and the Hill Country.
Thank you for your attention to this matter and your love for this
city.
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