Props 1 & 2

Well, tomorrow is election day, and we will get to see how this all turns out. While the intentions behind both propositions are admirable, Prop. 1 would provide minimally better access to public information that is available today at a massive cost of our local tax dollars. Prop. 2 is more likely to endanger Barton Springs than protect them. It would undo most of the tools that the City uses to limit development and in return set the City up for litigation with developers and invite the Legislature to return to its Austin-bashing ways.

Set out below is a letter that I and some friends submitted to the Chronicle and below that ten reasons to vote against Prop. 2 from Daryl Slusher. You can read Props 1 & 2 here.

Editor:
We are all parks, trails, open space and clean water advocates who have worked for decades to protect and improve Austin’s environment, and we oppose Propositions 1 & 2. We worked all last summer and fall with some of the propositions’ proponents on a the Travis County Parks Bond election that permanently preserved Reimers Ranch and set aside thousands of acres to protect water quality in the Pedernales and Colorado Rivers–yet we first heard of this petition drive when we read about it in news reports and saw paid petitioners on the streets. At that point it was too late to offer input that may have improved the language and prevented many of the negative consequences.
As written, Propositions 1 & 2 will hurt, not help, efforts to protect parks, open space and water quality. 1 & 2 will limit the city’s ability to draw development away from the aquifer, undermine successful efforts to work around the state grandfathering law to limit development, and put us on a collision course with the state legislature. The steep cost of both these propositions will also force cuts in not just environmental protection but also parks, libraries and social services.
Perhaps worst, if 1 & 2 are approved it will almost assuredly delay a planned November bond election that is recommended by the citizen’s bond committee to include over $90 million for parks, open space and water quality protection. If this is bond election is postponed it will mean that some key properties over the aquifer will be lost to development forever.
If you care about parks, open space and water quality we strongly urge you to vote NO on Propositions 1 & 2 this Saturday.

Daryl Slusher's Top 10 Reasons to Vote No on Proposition 2

1. Proposition 2 would likely mean lands that could be purchased for
preservation will be developed instead. Proposition 2 is sold as a "Clean
Water" amendment with serene pictures of children bathing in a waterfall
juxtaposed against bulldozers tearing apart the Hill Country. Those are
moving images, but Prop 2 will very likely lead to more bulldozers and
less pristine waterfalls. One reason is that the costly implementation of
the amendments will take funds that could be used to preserve open space.

More specifically, the proposed November bond election will be postponed
if the amendments pass, in order to assess how much the City can then
afford in bonds. The citizen bond committee recommendation includes more
than $90 million for parks and open space, almost half of it over the
aquifer. If this election is delayed some key properties over the aquifer
that have been targeted for preservation will almost certainly be
developed instead and lost forever.

2. Does not strengthen the SOS ordinance. Although Proposition 2 drafters
titled it "the Save Our Springs Amendment" and sold it as a "Clean Water"
amendment it does not strengthen the SOS ordinance in any way. This is
not just a technical point based on one being an ordinance and the other
being a Charter amendment. Proposition 2 does not strengthen or create any
new water quality regulations at all.

3. Does not stop AMD from building in the Barton Springs Zone. Drafters
have repeatedly stated that the amendments, in particular Proposition 2,
were sparked by the City's inability and/or unwillingness to stop Advanced
Micro Devices AMD) from building in the Barton Springs Zone. Yet neither
amendment stops AMD from building there either, even though the company is
named in Proposition 2 - and would thus have its name in the City Charter
eternally (unless the measure is removed in a future election).

4. Does not "eliminate grandfathering" as claimed in the amendment text
(or define it either). The reason why neither the City nor the amendment
drafters can stop AMD is the "grandfathering" law passed by the state
legislature (which has been strengthened repeatedly over the years). That
law states that a development is forever subject to the water quality rules
in place the first time it was filed - no matter how much science learns or
public opinion changes over the years. It's bad legislation, but it is a
state law and state laws trump city laws. I often wish it wasn't true, at
least in Texas, but it is.

The City must follow the state law. Recognizing, however, the danger to
the aquifer from grandfathering, the City has been able to negotiate with
developers and come to agreements where many developers agreed to build
considerably less impervious cover than what would be allowed under
grandfathering. In these agreements developers have also agreed to build
with stronger water quality controls than would be required under
grandfathering. They have also agreed to cluster developments while
deeding other nearby or contiguous tracts for preservation. Frequently
this new open space is contiguous to preserve land already owned by City.

Much of the opposition to these agreements was based on novel legal
theories that grandfathering does not apply to many Austin developments.
These theories, however, have been unsuccessful in court and were most
recently argued in a suit that sought to remove grandfathering protections
at the site where AMD intends to build. The
arguments were thrown out of court.

Unfortunately Proposition 2 would require the City to adopt those losing
legal arguments as part of the City Charter and limit the City to those
positions in its interpretation of grandfathering. It will also take away
much, if not all, the City's flexibility to negotiate smaller grandfathered
development. The result would be bigger developments in the Barton Springs
Zone, and less purchase of open space.

5. Prop 2 features legally unsound provisions which drafters refuse to
discuss. There are several provisions in both amendments that drafters
have spent many hours and much cyber space trying to explain. There are
some provisions, however, that they try to avoid discussing at all. The
best example is the bankruptcy clause in Prop 2. This clause says the
City cannot grant a grandfathering claim if "any applicant or permit
holder in the series of applications has filed for bankruptcy protection
under Federal bankruptcy laws." The amendment forbids the City from
recognizing the claim even if it is "mandated by superior state law."
This means that if the amendment passes, an individual or company would
lose their rights under state grandfathering law, if that individual or
company once utilized a federal law that is available to all individuals
and companies - the federal bankruptcy law.

Yet, as attorney Ann del Llano, one of the amendment drafters, reminded us
in her Statesman op-ed favoring Prop. 1, it is "legally impossible for
local law to trump federal or state law." Every lawyer with whom I have
talked agrees with her on this point.

Nonetheless, if Prop 2 passes, the City will be obligated to enforce and
defend this provision because it will be in the City Charter. The City
will almost certainly be sued each time it tries to enforce this charter
provision. The City's case in defense will be very weak, if not hopeless.
City attorneys will not only have to argue that the City Charter can trump
state law, but will also have to defend the principle that someone can be
treated differently because they filed bankruptcy. The clear illegality
of this provision alone should be enough to send drafters back to the
drawing board with a No vote on Prop 2.

6. The Charter is not the appropriate venue. The Charter is Austin's
Constitution and is intended to cover fundamental matters of governance
such as: form of government; what the governing body will be; length of
terms for elected officials; budget responsibilities; and other such
matters of fundamental governance. The matters in this amendment, even if
one agrees with them, are rightly subject matter for ordinances and
resolutions rather than the City Charter. For example the 1992 Save Our
Springs Ordinance was just that, an ordinance. The Save Our Springs
Coalition (different from the current SOS Alliance although with some
overlapping membership) of that time collected enough signatures to get it
on the ballot as an ordinance.

In contrast one of the leaders of the Proposition 1 & 2 campaign
volunteered during a recent debate that the group went the Charter
amendment route rather than the ordinance route because a Charter
amendment only requires signatures from five percent of voters to get on
the ballot while an ordinance requires ten percent; in other words it's
easier. That seems like a very poor reason to amend the governing document
of the City - a document that has governed previous generations and will
govern future generations.

7. Council elections are an appropriate venue when one wants to change the
direction of the City -- especially when a majority of seats are up for
grabs. In addition to ordinance by initiative and referendum the City
Charter lays out another venue for citizens dissatisfied with City
government - that being our Mayor and Council elections. In Austin such
elections occur two out of every three years.

Backers readily acknowledge that both Proposition 1 and 2 are based on
dissatisfaction with, and profound distrust of, the City Council. Well, a
majority of Council seats are on the ballot the same time as the
amendments. That includes two incumbents (the Mayor and Place 5) plus two
open seats. This would seem like a good opportunity to tap into voter
dissatisfaction and change the course of City government - especially if
this dissatisfaction is widespread. Amendment backers, however, failed to
field candidates and have put little, if any, effort into the Council
elections. Conversely backers say they are counting on the Council they
so distrust to write definitions of central terms in both amendments -
necessary because drafters failed to include a definitions
section.

8. The "Big Developer" List is Getting Pretty Long. Drafters of the
amendments have tried to deflect attention from their contradictions and
overreaching by labeling all opponents as against open government and
clean water and as not caring about Barton Springs. Even veteran
environmentalists who oppose the amendments have been labeled "big
developers" and a myriad of other epithets. Well, the big developer list
is getting pretty long.

Community leaders opposing the amendments include former Mayors Kirk
Watson and Gus Garcia, former Mayor Pro Tem Jackie Goodman, and the entire
current Council. Other opponents include key citizens that are actively
working to acquire preserve land over the Barton Springs Zone and many
long-time environmental stalwarts. Also, many of the people who led the
original effort to pass the SOS Ordinance, like Jack and Jackie Goodman,
Mary Ann Neely, Craig Smith, and George Cofer, are opposing both
amendments proposed by the SOS Alliance (SOSA) of today.

The opposition to the amendments is also very diverse. Opposing groups
include: AFSCME (the municipal employees' union); Austin Firefighters
Association; Austin-Travis County EMS Employee Association; Austin Parks
Foundation; Central Austin Democrats; the Capital Area Progressive
Democrats; and the West Austin Democrats.

Also worth noting is the fact that editorial boards at the Chronicle,
Statesman and Business Journal are in solidarity against both Propositions
1 and 2. Such agreement is extremely rare. All three papers have made
very strong statements about how damaging both amendments will be to
Austin.

9. The burden of proof should be on those proposing the amendments. Only
days before the election, drafters are still trying to explain what the
amendments actually mean - and often arguing that they mean the opposite
of what the words on the page say. If approved these amendments will
become part of the governing document of the City, the Constitution of our
City. City officials will be bound to abide by them. There can be no
changes for at least two years, and then only through another Charter
election - which will probably be an even more painful exercise than this
one. The burden to prove that the amendments belong in the City Charter
should be on those proposing them. If doubt remains, the best course is to
vote No.

10. Both amendments are an incredible waste of time, money and energy that
could be better used. One thing that amendment backers have right is that
the springs are in trouble. Unfortunately these amendments waste time,
money and energy that could go into real efforts, like:
* Retrofitting water quality controls in existing neighborhoods;
* Purchasing more land over the aquifer;
* Working to better inform residents in the Barton Springs Zone about the
need for chemical free landscaping; and
* Working with allies in surrounding communities to pass local ordinances
as recommended in last year's regional plan.

Instead the amendments are dividing environmentalists as well as dividing
environmentalists from others in the community. I realize that some are
making a political calculation to vote against Proposition 1 and vote in
favor of Proposition 2 because they worry that a loss on both will make it
appear that support for the environment is weakening in Austin.

On the other hand if the amendments pass it will likely mean larger
grandfathered developments, less open space preserved, and a long series
of virtually hopeless court cases -- while the amendments will not
strengthen the SOS ordinance or stop AMD. That will certainly not help the
environment or make the environmental community look strong or wise.
Neither the process nor the substance of these amendments is worthy of the
Austin City Charter. If these amendments pass they will damage the City and
the environment. The amendments are bad for Austin and I urge a No vote on
both Propositions 1 and 2.  ¶ 3:21 PM