Council Watch

Forget Batman. Where is Superman when you need him? Both the Chronicle and the Statesman -- which took verbal hits from the council at last week's meeting -- could have used the intervention of our colleague Clark Kent in his more powerful incarnation. Statesman reporter Dylan Rivera took the brunt of complaints from Council Members Daryl Slusher and Bill Spelman about the daily's stream of editorials -- not to mention political cartoons -- attacking the council's delay in approving the 50-year water pact with the Lower Colorado River Authority, which the council is expected to approve at tonight's meeting (Thursday, Oct. 7). Spelman, who might have to answer for the Statesman's criticisms of the council when he runs for re-election last year, took this dig: In talking about the dense development surrounding the site of the planned Gotham condominiums on the south end of the Congress Avenue bridge, Spelman cited the nearby South Congress offices of the Statesman, which, he added, don't seem to be going anywhere -- though "every Sunday morning, I wish the American-Statesman would go away," he cracked.

The Chronicle drew heat for printing an artist's rendering of the Gotham (which gained preliminary approval from the council Thursday by a vote of 5-2, with Griffith and Slusher voting no) on its cover last week, instead of revised architectural sketches done by the firm Page Southerland Page. The cover art was based on a rendering used -- successfully, since the building is currently sold out -- to market the place to prospective condo buyers.

The Gotham gained its first round of approval after a rather excruciating he-said, she-said debate, with each side presenting a stream of folks claiming old-time Austin pedigrees and the best interests of the city nestled in their hearts. In the end it was Spelman who earned superhero status for the Gotham, the blunt force of his logical argument carrying the day. (FYI: Run Spelman's name through certain computer spell checks and you get the options "Superman" and "spleen.")

Spelman, before casting his "yes" vote, reasoned that in terms of building size and view obstruction, the Gotham was a special case, since it will be bordered by the Hyatt on the west and the Embassy Suites on the south, both large buildings which have already blocked most of the view that the Gotham would be obstructing. Slusher countered the Hyatt-size-precedent issue by expressing the sentiment of most of the Gotham opposition that, "I don't think it's wise to use past mistakes as justification for what to do in the future." In addition, Gotham supporters pointed out that although the building is 120 feet high, 30 of those feet are below the level of the Congress Avenue bridge, so the effective height from bridge level is only 90 feet. The 30 feet below will be occupied by 30 feet worth of parking garage, which are required to meet the city's parking codes. (The Gotham's Houston developer, Randall Davis, said he would still need to build a similar amount of parking even if the city's requirements were waived, however, as the market dictates that condo units for sale have two parking spaces per unit.)

Then came the nail in the opposition's coffin, as far as key council members were concerned: A comparison with the planned Gordon Dunaway development, a 120-plus foot Town Lake condo project in the Rainey Street neighborhood that the council approved earlier this year (over the objections of some area property owners who wanted to see their neighborhood's redevelopment subject to more comprehensive planning). What's good for one lakeside neighborhood is good for another, the majority council reasoned, in approving Gotham. (In the process, of course, they also established both projects as precedents for future landowners who are lucky -- or rich -- enough to get their hands on developable lakeside land. Fortunately, such cases are likely to be rare, as much of the land, especially that west of Congress, is publicly owned.)

Gotham opponents argue that the Rainey Street building should not be a precedent for Gotham, as it is on the north shore, and therefore part of the city's official Central Business District. Gotham representative Sara Crocker alluded to this distinction herself, when she said that the project originally applied for Downtown Mixed Use (DMU) zoning, but was asked to go for LI-PDA instead, because of an unwritten agreement that the city would not approve DMU zoning south of the river.

One group concerned about the effects of downtown encroachment south of the river is the South Congress Avenue Merchants Association. Gail Armstrong, the group's representative to the council meeting, said he feared that such high-dollar, high-density uses as Gotham would get property owners along South Congress seeing green, and selling out the buildings that house all the groovy little shops and restaurants for which Austin is so famous. (The council assured Armstrong that they didn't want to see that happen, either.)

The motion for council approval required no modifications to the proposed design, though it did include instructions that the developer make "courtesy" visits to the city's Design and Parks boards, neither of which have examined the proposal. That motion prevailed over a previous motion by Mayor Pro Tem Jackie Goodman, which would have given preliminary approval of a 60-foot high building, with a provision that the building be scrutinized with the spirit of the Waterfront Overlay and Town Lake Corridor Study in mind. Passed only on first reading, this would have produced the exact same effect as an unmodified approval of the Planning Commission's recommendation, which is what the council did. But some on the council, including Mayor Kirk Watson, Willie Lewis, Gus Garcia, and Spelman, who made the prevailing motion, wanted to stake out their political support for the project to be built as-is. And Goodman ultimately joined the dominant coalition in voting to approve the project outright.

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Today's Issue: Water

"The council has a significantly better deal before it today than it did 45 days ago," according to Water Wastewater consumer rate advocate Birny Birnbaum, who has done a more thorough analysis of the financing of the deal than any member of the public (or the local press, for that matter). "It demonstrates that you, the city council, were prudent and fiscally responsible to take the time to look at this deal," he added. Birnbaum said the two proposals now being considered, which both have the city making an up-front payment to LCRA, and financing the remaining debt itself, were big steps in the right direction.

Despite the SOS Alliance's plea for a delay on the water decision, both of the aforementioned proposals are popular with the council, as they spread the burden of the water purchase evenly among present and future water customers, and ensure that the increase of water bills in the next 10 years -- when none of the water being discussed will be needed or used by Austinites -- will be negligible.

The favored plan, to this point, includes a $100 million up-front cash payment to the LCRA, with $27.3 million paid in cash from Austin Energy and the city's capital improvement fund, and the remainder financed with bonds.

Birnbaum says, however, that the city can do even better with a third option -- a pay-as-you-go plan that would eliminate the reservation fees the city would pay for 20-odd years under existing plans. Though the cost of water could be somewhat higher under this plan, it would be the very fairest to ratepayers, placing the burden of payment directly on those who use the water -- whom, it bears repeating, will likely be more industrial and commercial users than residential users.

Birnbaum said his plan would be the most conservation-encouraging, too, making the bold assertion that the best antidote to excessive water use is the high cost of the water itself. Birnbaum's pro-bono number crunching was the highlight of a public process which has been somewhat lacking in public participation, most likely because of the complex nature of the issue. And he won big points with the council for his praise of city staff, thanking them for their exhaustive work on the water deal. "It's hard not to come away impressed with their dedication," he said, "not to say I agree with everything they've come up with."

In another highlight of last week's LCRA water hearing, SOS attorney Bill Bunch was publicly criticized by attorney John Pitts of the the law firm of Akin Gump Strauss Hauer & Feld, the city's outside legal counsel on the water deal, for implying that Pitts and his team grossly misunderstood a key provision of the 1987 adjudication of Austin's water rights. According to Bunch, Austin "subordinated" to the LCRA its "hydro" rights -- that is, the right to pass water through the Tom Miller Dam in order to generate electricity for Austin's use. As a result of this, LCRA got to keep massive amounts of water in the Highland Lakes that it otherwise would have had to pass downstream. Though Austin retained its hydro rights, Bunch said, the agreement allowed for the city of Austin -- should it ever seek to purchase additional water from LCRA -- to be credited for water LCRA was able to retain in the Highland Lakes as a result of the subordination.

Bunch argues that the city should likely receive such credit for the water; i.e., free of charge. The provision was more or less snuck in under the nose of the LCRA, said Bunch, by clever lawyers no longer with the city. On the other hand, he said, "LCRA has the same team of lawyers they had in the Eighties ... The opportunity for some institutional memory to kick in didn't happen until way too late in the game."

The SOS Alliance, meanwhile, sent a memo to the council before last week's meeting that called for a delay of the water deal, so a hydrology study could be done to determine what the hydro rights provision might yield. Furthermore, the memo said, "Your legal counsel should have already provided you" with the hydro rights argument, and if not, "then we believe the city should hire recognized water counsel, immediately." The clear implication -- that the Akin Gump-led team didn't know what it was doing -- caused Pitts to make an angry public rebuttal, telling the council he was "more than a little bit annoyed" at Bunch's tactics, and refuting the SOS memo by arguing that LCRA and the city's water counsel both rejected the hydro rights claim on grounds that LCRA provided "consideration" in the 1987 adjudication, including LCRA's free storage of 150,000 acre feet per year for the City of Austin.

According to Bunch, however, Pitts' statements constituted an "outrageous violation of attorney-client privilege. There's no way the council would give him authority to stand up in public and trash a legal position that they might want to assert." Bunch is still fighting, refuting Pitts' refutations and warning against paying a lump sum to LCRA that the city couldn't get back should it come around to his point of view on the hydro rights. So far, however, the council majority seems to be leaning toward adopting some kind of long-term water deal at tonight's meeting (though the exact details of what deal they may adopt are reportedly ever-changing).

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El Concilio's Dismay

Much to the council's displeasure, El Concilio likely became the first-ever Austin neighborhood organization to excoriate the City Council for voting to put a youth center in their midst. The basis for their gripe was the origin of the plan -- the continued existence in their neighborhood of the Holly Power Plant.

The youth center, which received unanimous council approval, will be funded to the tune of $1.6 million by the Holly Good Neighbor program, designed to provide mitigation for the surrounding neighborhood to make up for the power plant burden. El Concilio representatives argued that there was no dearth of youth centers in the area, but that money was needed for other mitigation projects, such as bringing residents' wiring up to code.

As usual, however, their demands were accompanied by cause-killing inflammatory remarks, like this one from Robert Donley: "Your intent has always been against the Mexican American neighborhoods," he said. "It's a racist issue, and I charge you with that right now." The council has been ignoring (publicly, at least) calls for a bond project to raise money to pay for developing power alternatives that would hasten the closing of the Holly Power Plant.

In other Eastside news, the council unanimously approved rolling back the zoning on six properties from LI to residential, as part of the effort to clean up zoning patterns that residents have complained about for years. Many of the properties in question have long since been used as single family homes, though the zoning has remained LI.

Valid petitions of opposition accompanied several of the cases, as owners objected to the change on the basis that it would reduce their property values. According to Garcia aide Paul Saldaña, the opposition was based on incomplete understandings of the rollback process -- a rumor had circulated among the landowners that the city was planning to buy some of the land, which lies along the Seventh Street corridor, for public right-of-way, as a result of the airport's move to Bergstrom.

Saldaña said the rumor is untrue, and that if there were right-of-way to be acquired along Seventh Street in conjunction with the airport, it would have been done already.

This Week in Council: Expect a vote on the LCRA water deal, which will be in fact only the beginning of process, but will nonetheless allow SOS's Bunch to take his long-awaited book-writing sabbatical, beginning later this month. The West Lake sewer issue will likely be back for council discussion and action. In its morning session, in addition to an LCRA water briefing, the council will hear briefings on the Capital Metro Mobility Study, and on Austin's federal Clean Air Act non-attainment status from the Clean Air Force.

The infamous Champion tract zoning case was postponed by request of the 2222 Coalition of Neighborhoods, due to the death of one of its key members, Charlie Floyd, in a car accident late last month. Council members vied to keep the hot potato issue out of their hands, especially Goodman, who volunteered, "I think you all ought to do it on the 28th." "Why?" asked Spelman. "Because I won't be here," replied Goodman. That got a big laugh. Goodman is out of luck, though. Due to a packed zoning calendar next week and cancelled council meetings on Oct. 14 and 21, the Champion items are now slated for November 4.