Steve Adler’s Baggage: Environmental Lawsuits

HomeCity of AustinCity CouncilSteve Adler’s Baggage: Environmental Lawsuits

Mayoral candidate a lawyer whose work puts him at odds with environmental organizations

Investigative Report by Ken Martin
Part 4 in a series

Kirk Watson
Kirk Watson

The last lawyer elected mayor of Austin was Kirk Watson, now a state senator. Watson was elected in 1997 with strong endorsements of local environmental organizations. And why not, for he had served as the appointed chairman of the Texas Air Control Board, one of the predecessor agencies to what is now the Texas Commission on Environmental Quality. The Watson-led City Council was the first in which every member was endorsed by environmentalists—an important milestone in the mainstreaming of environmental values.

The 2014 mayoral election will be like none that preceded it. The strength of environmental group endorsements, as well as the endorsements of other groups, will be diluted now that elections are moving from May to November. Voter turnout will be much larger, about 300,000 as opposed to some 50,000 that usually vote in May elections. If no candidate wins an outright majority on November 4—and has to face a December 16 runoff while competing for voters’ attention during holiday shopping and vacations—the importance of the environmental vote may be a larger factor in who gets elected.

Still, no one aspiring to be mayor wants to be seen as anti-environmental.

Which may be a challenge for mayoral candidate Stephen Ira “Steve” Adler.

Steve Adler
Steve Adler

As reported in Part 2 of this series, Adler earned respect for his work in the state legislative sessions 1997-2005 as chief of staff and general counsel for State Senator Eliot Shapleigh (D-El Paso), and for his leadership in, and financial support of, numerous important nonprofit organizations.

Environmentalists are wary of Adler because as an attorney he represented developers who gained rights to construct projects over the Barton Springs portion of the Edwards Aquifer without having to comply with the Save Our Springs Ordinance, in one instance, or with predecessor ordinances in two others.

Brad Rockwell
Brad Rockwell

“It is important to remember that when Steve Adler helps clients evade City of Austin environmental regulations, Adler is representing polluters,” said attorney Brad Rockwell, who was deputy director of the Save Our Springs Alliance and represented it in a 2004 lawsuit that tried to stop the construction of a Lowe’s Home Center in Sunset Valley.

Adler, when questioned about the seeming contradiction between his stated support of the SOS Ordinance and his legal work representing developers, said, “I support the SOS ordinance and I support its application. I believe in the rule of law. I don’t think that government should be able to over-apply or misapply a law even for a really good intended result because I fear that if we let that happen we’re also subjecting ourselves to a government misapplying the law in a way that is harmful and bad. …

“I don’t think that my work in those cases, which I think turn on really narrow fact patterns, undercut the SOS Ordinance. I think when the SOS Ordinance is applied as it was written, as the people voted for the SOS Ordinance, then that makes the ordinance stronger,” Adler said.

Jeff Wentworth
Jeff Wentworth

The fact is that when Adler represented Lowe’s to get its facility built in Sunset Valley, Austin’s ability to require compliance with the SOS Ordinance was not lost in court on legal grounds. The case never got to a trial on the merits. Instead, the SOS Ordinance was brushed aside mainly through pressure exerted by a developer-friendly Texas Legislature—particularly State Senator Jeff Wentworth (R-San Antonio).

Wentworth not only got a special law passed for Lowe’s in 2003, but also wrote letters to pressure the Austin mayor and mayor pro tem to pass settlement agreements.

Doug Young
Doug Young

“Given that the first ‘Lowes law’ was adopted without a single word of discussion or debate in the Legislature, and given that Senator Wentworth had already publicly disclosed his effort in adopting a law intended to specifically favor this particular ‘constituent’ with regard to this particular property, we indeed had no reason to believe that Lowe’s would not be able to arrange another ‘Lowe’s law,’” said attorney Doug Young of Scanlan Buckle & Young PC, who, with attorney David Frederick, represented the City of Sunset Valley in litigation against Lowe’s and the City of Austin.

Sunset Valley sued to stop that project after the City of Austin entered a Settlement Agreement that let Lowe’s evade compliance with the SOS Ordinance. In that lawsuit, the Lowe’s defense team lost four different hearings before three different district judges. (Adler participated in only the final hearing.) The courts jammed the brakes on construction and forced Lowe’s to clean up fuel spills and remediate contaminated runoff going into the aquifer. But the threat of further legislative intervention—a concern documented in the settlement agreement itself—forced a settlement, albeit with major concessions to mitigate environmental harm.

Ultimately a second and final settlement was struck. At that time, Rockwell was quoted in the March 4, 2005, Austin American-Statesman saying, “It’s been a long fight and a tough negotiating process. Almost everywhere this agreement has been fought over. But I think the end result is very good, and it will be an important step in protecting the aquifer.”

The war over Lowe’s in Sunset Valley

In several lawsuits Adler represented clients that sought to avoid compliance with Austin’s environmental ordinances, based on claims of vested legal rights. All three cases involved contentious battles with municipalities over how much impervious cover—buildings, driveways, parking lots, and other structures that shed water—developers would be allowed to build on land located over the aquifer.

For voters concerned with environmental protection it is of paramount importance to understand the mayoral candidate’s role in these cases.

The scope of The Austin Bulldog’s investigation of these three cases is too large to be covered in a single story. This installment will address only the battle over whether Lowe’s Home Centers Inc. would be allowed to build a new outlet in Sunset Valley.

The other two cases will be addressed in the next installment.

Spoiler alert—A Lowe’s Home Center with an assessed value of $12 million now stands at 6400 Brodie Lane in Sunset Valley. It went on the tax rolls in 2009 and this year will pay property taxes estimated at $417,000.

We know how the story ends.

But how did it end?

And what was Steve Adler’s role in it?

The basics—The land Lowe’s was built on was owned by Eli James Garza and other family members. Environmentalists viewed Garza as an arch villain.

Garza, who died in June 2005, was notorious among environmentalists because he fiercely opposed passage of the SOS Ordinance. In urging its defeat, Garza “was featured in an anti-SOS TV commercial that came up short on veracity, according to KVUE’s ‘Truth Test’ at the time,” The Austin Chronicle reported December 12, 2003.

Garza was certainly not alone in fighting passage of the SOS Ordinance, which got on the ballot through a grassroots petition drive led by the SOS Coalition.

In 1992 a City Council majority was opposed to the SOS Ordinance. They wanted less stringent regulations. They avoided putting the SOS Ordinance on the May ballot, delayed the election until August, and then placed an alternative ordinance on the ballot to compete.

Nevertheless the SOS Ordinance won overwhelming voter approval, scoring a 2-1 margin of victory, while the alternative ordinance went down by a similar margin.

But Garza didn’t go away. He was one of three plaintiffs in a lawsuit that sought to overturn the SOS Ordinance voters approved. Plaintiffs won the initial trial and the ordinance was declared invalid. But on appeal by the City of Austin and Save Our Springs Legal Defense Fund, the Third Court of Appeals in Austin trounced the trial court’s opinion. After considering the plaintiff’s appeal of that decision, the Supreme Court of Texas upheld the ordinance in 1998; and upon rehearing, upheld it again in 1999.

In following years the ordinance has been undermined on several occasions by the Texas Legislature. The “Lowe’s law” enacted in the Sunset Valley case is one example.

The Lowe’s application

The legal battle involved the cities of Austin and Sunset Valley; environmental groups Save Barton Creek Association and SOS Alliance; and Lowe’s and landowner Eli Garza.

Opposition to the Lowe’s project included public demonstrations at another Lowe’s store, a boycott the SOS Alliance organized for all Lowe’s stores in the area, and intense testimony before Austin’s boards and commissions and the Austin City Council.

Finally, after nearly three years of negotiations, several lawsuits, special legislation, overt pressure from Senator Wentworth, multiple votes by the Austin City Council and the Travis County Commissioners Court—plus the threat of even more legislation—Lowe’s got what it wanted.

Austin mayoral candidate Adler played a role in that battle, although not until later in the struggle, when he represented Lowe’s. (Adler told The Austin Bulldog he never met Garza and never represented him.)

But it is important to learn how things wound up in his legal lap and what he did once he became involved.

On November 4, 2002, Lowe’s Home Centers Inc. submitted documentation to Sunset Valley to obtain approvals and related subdivision permits to build a new retail outlet on a 31-acre tract in Sunset Valley’s ETJ, near major competitor Home Depot. The Austin Chronicle would later report that Lowe’s paid Garza $200,000 an acre for the land (a total of $3.6 million) although the sale didn’t close until January 2004, after the initial settlement was reached with the City of Austin.

The sufficiency and the legitimacy of Lowe’s documentation would years later be called into question in court testimony provided by Sunset Valley’s deputy city administrator. But Lowe’s lawyers and state lawmakers never stopped fighting for Lowe’s as if a vested right had been secured. The legitimacy of these vested rights was never settled by the courts because a trial was avoided through settlement.

The Garza tract at Brodie Lane and Allegro Lugar Street is within the recharge zone of the Barton Springs portion of the Edwards Aquifer. The SOS Ordinance limits development in the recharge zone to 15 percent impervious cover if the property is within Austin’s city limits or extraterritorial jurisdiction (ETJ).

Sunset Valley’s lax regulations would have allowed 40 percent impervious cover on the tract.

The residents of Sunset Valley are largely dependent on well water from the aquifer and were opposed to the Lowe’s project. Seven hours after Lowe’s filed the documents with Sunset Valley, on November 4, 2002, the Sunset Valley City Council voted to release the Lowe’s tract from its ETJ. Its rationale was that releasing the tract would put the land in Austin’s ETJ, and development on the site would be restricted to the 15 percent impervious cover per the SOS Ordinance.

With 40 percent impervious cover Lowe’s could blanket the 31-acre tract with more than 12 acres of buildings and pavement; with 15 percent it could cover less than 5 acres.

Sunset Valley’s sincerity in wanting to protect its groundwater can be understood by the fact that in ceding the tract to the City of Austin it would be foregoing significant revenue from sales taxes the Lowe’s Home Center would generate. Later that tax revenue was estimated at $600,000 per year.

“We gave Austin 10 percent of our town to protect our drinking water,” Sunset Valley Mayor Terry Cowan stated, in an October 10, 2003, Austin Chronicle article. “We’re prepared to spend time and money to fight this thing because the Lowe’s case could be the template for all the other big boxes to come over the aquifer. This is a defining moment—where Austin decides whether its going to sell out or not.”

Lowe’s sues for relief

In February 2003 Lowe’s filed a lawsuit against the City of Austin. The lawsuit claimed that the Lowe’s Tract was grandfathered to Sunset Valley’s 40 percent impervious cover restrictions or, in the alternative, that the Lowe’s Tract had not been released into Austin’s ETJ, and therefore none of Austin’s impervious cover restrictions applied. (Cause No. GN-300629.)

In June 2003 the Texas Legislature enacted HB 1204 (the authors were State Representative Todd Baxter and Senator Wentworth). The bill was codified in Texas Local Government Code Section 242.001(i).

The bill was also known as the “Lowe’s law,” because, as one environmental attorney put it, the law applied to only one tract in the entire state of Texas. HB 1204 became effective immediately and was intended to allow the Lowe’s development to proceed subject only to Travis County’s approval of the plat application and related permits.

The situation heated up rapidly. Protesters from Sunset Valley and their allies held a peaceful demonstration in front of an existing Lowe’s on Stassney Lane that attracted coverage from four television stations, In Fact Daily reported June 23, 2003.

Bruce Todd
Bruce Todd

Former Austin Mayor Bruce Todd (who had been—and currently is now—a Travis County commissioner) represented Lowe’s in negotiations through which the company offered numerous major concessions. These included putting up $600,000 to buy approximately 52 acres of land that when left undeveloped would have the overall effect of lowering the Lowe’s Home Center project to 15 percent impervious cover. The offer also included agreement to early annexation by the City of Austin that would allow the city to reap an estimated $1.8 million in sales taxes over a three-year period.

Acting in accordance with HB 1204, the Travis County Commissioners Court approved Lowe’s preliminary plan August 5, 2003. But final approval was conditioned upon Lowe’s and the City of Austin coming to an agreement. Final approval would not be taken up until later.

One ace in Austin’s poker hand during negotiations was that Lowe’s needed water and sewer service. Its options appeared to be either get service from the City of Austin or depend upon a water well and septic system. Getting a well permit from the Barton Springs/Edwards Aquifer Conservation District seemed problematic.

Daryl Slusher
Daryl Slusher

“We are heading toward another raucous debate over a development agreement,” then Council Member Daryl Slusher stated, in the August 12, 2003 In Fact Daily. “The Council will have to sort out what is the best course for the aquifer.”

Environmental organizations backed by huge public crowds had previously forced Walmart to abandon plans to build a superstore over the aquifer at South MoPac and Slaughter Lane. With that success in mind, the Austin Sierra Club, Clean Water Action, Save Barton Creek Association, and SOS Alliance called on Lowe’s to follow Walmart’s example, heed public opinion, and abandon plans for the Sunset Valley store—to no avail.

Austin City Council wrestles with settlement

The Austin City Council voted three times on three different days—November 6, December 4, and December 11, 2003—to approve a settlement agreement to end the litigation and allow Lowe’s to build the project with 40 percent impervious cover on the site, offset through the purchase of mitigation land.

The City Council’s first vote was preceded by a November 5, 2003, letter from Senator Wentworth to Mayor Pro Tem Jackie Goodman, in which he stated: “As a state senator who represents Sunset Valley and the Senate sponsor of House Bill 1204, I encourage you to support the settlement agreement.”

The letter was a not-too-subtle reminder that what the Legislature had done in passing HB 1204 could be done again, in keeping with the long tradition of so-called “Austin-bashing” laws visited upon this city by state lawmakers.

Opposition to Lowe’s didn’t go quietly. In Fact Daily reported November 26, 2003, that environmental groups had called for a boycott of Lowe’s stores throughout Central Texas. The SOS Alliance purchased a full-page ad in The Austin Chronicle directing readers to sign up for the boycott through a “No Aquifer Big Box” website.

Robin Rather
Robin Rather

Environmentalist Robin Rather spoke at a December 1, 2003, Planning Commission meeting about the proposed settlement agreement and described it as “an utter failure” when compared to hard-fought agreements that allowed previous developments to go forward with much stronger protections for the aquifer.

The Austin City Council cranked up the pressure, symbolically, on December 4, 2003, by approving a ban on big-box stores in the Barton Springs Zone—although it would have no effect on the Lowe’s project.

Bill Oliver
Bill Oliver

Austin musician Bill Oliver, well known for decades of political activism and for delivering commentary through songs, got into the act that day. Oliver expressed the community’s sentiment to the City Council by singing “The Big Boxer” — his parody of Simon & Garfunkel’s ballad “The Boxer.”

Now I’m laying out my swim clothes looking for a swimming hole
But I get no clean ones
Just the run-off from the stores on pro-growth avenues
I do declare
There were times when me and my friends could go skinny-dipping there
Now the health department says we dare not dare
Nah nah nah ….

The settlement agreement came up for its third and final reading on December 11, 2003. At the urging of Mayor Pro Tem Goodman, Lowe’s had upped its contribution for buying mitigation land—originally $600,000—to $1 million. Goodman stated the additional money would allow purchasing more land to reduce the net impervious cover for the Lowe’s Home Center site to 13.6 percent.

The settlement agreement was enacted through Ordinance No. 031211-74 on a 4-3 vote in which Mayor Will Wynn, Goodman, and Council Members Betty Dunkerley and Brewster McCracken voted aye. Raul Alvarez, Slusher, and Danny Thomas voted no.

The settlement agreement provided that Lowe’s would get its water and wastewater service from the City of Austin.

Slusher was unhappy with the deal. According to In Fact Daily December 12, 2003, Slusher argued that Lowe’s already had 925 stores in 45 states. “It doesn’t meet the standard which Walmart set. They said, ‘We’re not going to build over the aquifer.’ Lowe’s … could afford not to build over the aquifer.”

Brad Rockwell of the SOS Alliance stated, “It’s a horrible settlement. Lowe’s got everything they wanted—40 percent impervious cover. That’s a huge issue.”

The SOS Alliance noted that the SOS Ordinance requires at least six votes to exempt a tract from impervious cover limits and the settlement agreement fell short.

City Attorney David Smith later stated that the SOS Ordinance did not apply because HB 1204 had given authority to approve the Lowe’s project to Travis County (which has no authority to regulate impervious cover).

On December 16, 2003, having seen the City of Austin and Lowe’s strike an agreement, the Travis County Commissioners Court voted for final approval of Lowe’s development plan.

On January 29, 2004, the Austin City Council voted to approve an ordinance that committed the $1 million paid by Lowe’s for the acquisition of mitigation land for the protection of water quality.

The city wasted no time in closing deals for that land. On February 6, 2004, the city bought the 18.98-acre Lundelius Tract for $436,563, plus $50,000 for watershed engineering studies on the tract. On April 2, 2004 the city paid $1.68 million for the 236.66-acre LS Ranch, located in Hays County, south of FM 967 in the Barton Springs Recharge Zone. Of the total paid, $510,536 came from the Lowe’s settlement. Total acreage acquired with Lowe’s money equated to 94.13 acres, according to Junie Plummer, a property agent in the city’s Real Estate Services Division.

Sunset Valley et al sues Austin, Lowe’s

On January 28, 2004, in an effort to overturn the settlement and block the Lowe’s project, The City of Sunset Valley, Save Barton Creek Association and SOS Alliance filed a lawsuit against the City of Austin and Lowe’s (Cause No. GV 400101).

The lawsuit claimed the City of Austin’s settlement of Dec. 11, 2003, was void because it did not pass on the required supermajority of 6 votes and therefore the SOS Ordinance still applied to development of the Lowe’s Tract.

Lowe’s filed a cross-claim lawsuit against the City of Austin contending that it had the right to develop its land in accordance with the December 11, 2003, Settlement Agreement (Cause No. GV-402301).

The Sunset Valley et al case proceeded through a series of four court hearings. Plaintiffs Sunset Valley et al prevailed in every instance.

Settlement thrown out—Both plaintiffs and defendants filed motions for partial summary judgment. Those motions were argued before District Judge Lora Livingston April 22, 2004.

Judge Livingston’s ruling was not signed until July 21, 2004, but it strongly favored plaintiffs Sunset Valley et al and denied defendant Lowe’s Home Centers Inc.’s motion.

The ruling scuttled Austin’s settlement with Lowe’s:

“Therefore it is ordered, adjudged and decreed that Plaintiff’s Motion for Partial Summary Judgment is hereby granted, declaring ultra vires the Defendant City of Austin’s approval of the Garza Brodie Settlement Agreement by less than 75 percent majority vote and without making the adjustment findings required by the SOS Ordinance and, therefore, declaring that the approval is void ab initio. (Ultra vires is defined by the online Legal Dictionary as the “doctrine in the law of corporations that holds that if a corporation enters into a contract that is beyond the scope of its corporate powers, the contract is illegal.” “An agreement is said to be ‘void ab initio’ if it has at no time had any legal validity.”)

Restraining order issued—On June 18, the plaintiffs won a Temporary Restraining Order (TRO) signed by District Judge Darlene Bryne. The TRO stated that unless defendant Lowes Home Centers Inc. was immediately restrained it will proceed with construction and plaintiffs would suffer irreparable harm through degradation of the waters of Williamson Creek, Barton Springs, the Edwards Aquifer, and the drinking wells of Sunset Valley.

Judge Bryne set a hearing for July 1, 2004, on the plaintiffs’ request for a Temporary Injunction.

Aquifer pollution discovered—As part of the discovery process preceding the scheduled July 1 hearing, Lauren Ross, PhD, of Glenrose Engineering was hired by the City of Sunset Valley to inspect the Lowe’s Home Center site, which had been under construction before the TRO was issued.

Lauren Ross
Lauren Ross

Ross entered the site on June 30, 2004—the day before the scheduled Temporary Injunction hearing. Her findings reinforced Judge Byrne’s concerns expressed in the TRO.

“I was hired to evaluate potential damage to the aquifer from the Lowe’s project,” Ross said in a recent interview.

“I found three things that are pretty powerful in one day in the total construction project. I found a leaking fuel storage tank. Hydrocarbons were floating in the gravel on the site. The contractor seemed unaware till I pointed this out. There happened to be big rain that day and water was moving toward recharge features.

“Silt fences at the bottom of the site were completely washed over. I followed that trail of water flow from construction site over the silt fence and I’m walking toward the drainage channel along south side of Brodie Lane.

“At Brodie and Oakdale, on the Lowe’s side of Brodie, there’s a concrete channel. I expected to see flow drop into the channel—but right before that it was washing into an opening in the ground and I could look down into the opening of maybe 10 inches where water was flowing directly onto exposed Edwards limestone.”

“It was totally my worst nightmare about why we need to minimize construction over the aquifer,” Ross said. “The fuel storage tank failed, secondary containment around the tank failed. … The silt fence was down, and there was direct migration into the Edwards Aquifer.”

Ross testified to these findings in the July 1, 2004, hearing before District Judge Scott Jenkins on whether to issue a Temporary Injunction.

Fuel tank and containment
Fuel tank and containment

Silt fence down
Silt fence down

Runoff into aquifer
Runoff into aquifer

(Photos courtesy of Lauren Ross)

Steve Adler joins the defense

Lowe’s team reinforced—Shortly before the July 1 Temporary Injunction hearing, defendant Lowe’s added to its defense team attorneys Steve Adler of Barron Adler & Anderson LLP and Daniel Byrne of Fritz Byrne Head & Harrison PLLC.

Byrne’s addition had the effect of removing the scheduled Temporary Injunction hearing from the court of Judge Byrne, his wife since 1992. Which is how the hearing wound up before Judge Jenkins of the 201st Judicial District.

The defendant City of Austin was represented by Assistant City Attorney Laurie Eiserloh and City Attorney David Smith.

Partial Transcript of the July 1, 2004, hearing (the court reporter for this hearing says the full transcript is no longer available) obtained by The Austin Bulldog indicates that plaintiff Sunset Valley was represented by attorneys David Frederick of Frederick Law and Doug Young of Scanlan Buckle & Young PC.

Brad Rockwell represented plaintiff SOS Alliance and L. Layla Aflatooni represented the Save Barton Creek Association.

Temporary injunction hearing—Adler argued Lowe’s case, saying “…we intend to present several different arguments why this property is not subject to the SOS Ordinance, why it’s not in the City of Austin ETJ … in addition to the argument relating to (HB) 1204….” (aka the “Lowe’s law”).

Adler told the court that he had only recently been brought into the case and could not speak to arguments made in previous proceedings.

Although Judge Livingston’s ruling was still three weeks away, Adler correctly stated that the issue before her had been whether the City of Austin could enter a settlement agreement that would dispose of SOS issues with only a simple majority vote.

Adler told Judge Jenkins that in 1978, when there were conflicting, overlapping ETJs between the cities of Austin and Sunset Valley, that Austin released the Garza Tract from Austin’s ETJ. “Now there has never been any affirmative act subsequent to that time where the City of Austin has taken this property back into its ETJ. The plaintiffs in this case argue that through a unilateral act on their part, by releasing it from their ETJ, that automatically means that the City of Austin has to take it back. And there is no statutory vehicle to support that.”

Adler said, “(HB) 1204 was a statute that was adopted by the Legislature specifically to address this particular case.”

Adler went on to state there were four grounds to prove the Lowe’ tract was not subject to the SOS Ordinance:

1. It’s not in the City of Austin’s ETJ.

2. If the tract is one jurisdiction’s ETJ and it’s released, then under HB 1204 the county rules apply.

3. Under Local Government Code Section 242.001(c) once a project is started a developer is “entitled to finish that project based on the ordinances and regulations and rules that were in effect at that time.” … [T]his is a plan that complies with the City of Sunset Valley’s ordinances. So there is no reason to enjoin the plan, unless the court finds that it’s in the City of Austin ETJ and (the) SOS (Ordinance) applies.”

4. Local Government Code 242.001(i) states, “Property subject to pending approval of a preliminary or final plat application filed after September 1, 2002, that is released from the extraterritorial jurisdiction of a municipality shall be subject only to county approval of the plat application and related permits and county regulation of that plat.”

David Frederick
David Frederick

Attorney Frederick, the co-counsel representing Sunset Valley, told Judge Jenkins the question of whether when Sunset Valley released the tract from its ETJ had already been argued before Judge Livingston and she had granted partial summary judgment. “…the system will fall apart if we just keep going back in and rearguing these things over and over,” Frederick said.

At the court’s request Frederick addressed why the property released from Sunset Valley’s ETJ automatically fell within Austin’s ETJ. He said cities the size of Austin by definition have a five-mile ETJ and anything within that area not in another city’s ETJ is in the City of Austin’s ETJ. In addition, the City of Austin already had annexed property near Lowe’s tract. Finally, the 1978 agreement contained a provision for the tract to revert to Austin’s ETJ if Sunset Valley gave it up.

Key testimony late in the hearing was offered by Jamie Fuller, deputy city administrator for Sunset Valley, who was questioned by attorney Doug Young regarding the plans that Lowe’s submitted to the city when it first for the project November 4, 2002, according to the transcript.

The Austin Chronicle reported October 10, 2003, that “Lowe’s had filed its preliminary application with Sunset Valley the morning of Nov. 4—some seven hours before the council acted on the land release. Lowe’s representatives argued that their development rights should be grandfathered because they had an application pending before the council took action. But the application had been rejected because it was incomplete, said Deputy City Administrator Jayme Foley. As Foley later explained, ‘When [someone] comes in with a stack of paper and a check, that doesn’t mean they have a project.”

Fuller said he had been employed by the City of Sunset Valley since 1986 and it was his responsibility to determine if plats, site plans, and watershed permits were administratively complete and should be accepted for review.

The transcript indicates Fuller said the documents were picked up the next morning (November 5) by someone from attorney Terry Irion’s office. On November 6, Fuller said he asked for a copy of the plans to be returned and never got them.

“We called for several days asking for the set of plans,” Fuller testified. “I was later advised by Mr. Irion that his client, Lowe’s, told him that he was not to turn over a set of those documents to me.”

Fuller said he made notes about deficiencies in the plans that were not administratively complete and sent a letter citing sections of the code where the plans were deficient.

In an interview May 15, 2014, Adler told The Austin Bulldog that in this hearing the question of how complete an application needed to be was not at issue. “We don’t know because no court ever ruled on that,” he said.

Scott Jenkins
Scott Jenkins

Temporary injunction ordered—On July 2, 2004, Judge Jenkins signed the injunction, which stated, in part, “It clearly appears that, unless Defendant Lowe’s Home Centers Inc. is temporarily enjoined, it will proceed with construction activities and development of the property … and that if … not temporarily enjoined, Plaintiffs will suffer irreparable injury in the form of degradation of the waters in Williamson Creek, Barton Springs, the Edwards Aquifer, and drinking water wells used by the City of Sunset Valley….”

And that wasn’t all. Judge Jenkins ordered Lowe’s to divert storm water runoff from the property to prevent it from flowing into aquifer recharge features, to remove fuel tanks from the property; to remediate water contaminated by hydrocarbons and remediate hydrocarbon spills on the property; to line any sedimentation or water quality ponds in contact with exposed bedrock; and, at Lowe’s discretion, to remove structural members of the building under construction to make it more stable.

Jenkins enjoined Lowe’s from developing the property without first obtaining permits required by the City of Austin SOS Ordinance and fully complying with restrictions of the SOS Ordinance unless and until the terms of the SOS Ordinance is lawfully waived in accordance with the terms of the SOS Ordinance.

Summary judgment denied—On August 25, 2004, Defendant Lowe’s motion for summary judgment was heard by District Judge Livingston and on October 4, 2004, she signed an order denying the motion.

Thus, the final score in the court hearings tallied Sunset Valley et al 4, Lowe’s and the City of Austin zero.

But things were far from over, because the forthcoming session of the Legislature in January 2005 loomed on the near horizon.

Final settlement agreement fashioned

Ultimately the Sunset Valley et al litigation was settled when the Austin City Council on March 24, 2005, enacted Ordinance No. 20050324-48. The agreement allowed the Lowe’s Home Center to be built with 40 percent impervious cover—the same amount as the original settlement agreement of December 11, 2003, allowed, but this time with the required super majority of six votes.

The settlement agreement recognized that Lowe’s had a separate lawsuit (Cause No. GV-402301) set for jury trial, the possibility of a outcome favorable to Lowe’s on appeal of the Sunset Valley lawsuit or as a result of new legislation, “which may endanger the Edwards Aquifer more than would have occurred had Lowe’s built in accordance with the December 2003 Settlement Agreement….”

Although Lowe’s had previously paid the City of Austin $1 million for the purchase “impervious cover reduction property” to mitigate the 40 percent impervious cover on its 31-acre tract, the new Settlement Agreement provided for a new Settlement Fund of $1,050,000 that was created by contributions of $350,000 each from the City of Austin, City of Sunset Valley, and Lowe’s.

Attorney Doug Young said the financial arrangements requiring the cities of Austin and Sunset Valley to each pay $350,000 made this an “unusual settlement” because they were “victims” for not being able to impose the desired impervious cover limits.

The final Settlement Agreement required the SOS Alliance to immediately suspend its boycott activities related to Lowe’s, not to resume a boycott for at least six months, and agree that the Lowe’s in Sunset Valley would never be the subject of a future boycott.

Lowe’s agreed not to use its resources to encourage or support any legislation in the 2005 or 2006 legislative sessions designed to weaken regulations protecting the Barton Springs Watershed.

The final Settlement Agreement was swallowed by the City of Sunset Valley, SOS Alliance, and Save Barton Creek Association, but it left a bad taste in their mouths.

“We had the case won and they pulled it out of the fire by saying they would get another ‘Lowe’s law’ written to give them the victory and we had no reason at all to believe they would not get it,” attorney Doug Young told The Austin Bulldog.

“Steve Adler was one of the attorneys that substituted in as counsel for Lowes after the plaintiffs obtained a summary judgment that SOS regulations applied to the Lowes property,” Young said. “The attorneys who had been substituted, as well as attorneys who had arranged for enactment of the first ‘Lowe’s law’ and would likely be involved in arranging a second ‘Lowe’s law,’ routinely represent developers in asserting grandfathering rights under Local Government Code Chapter 245 to avoid enforcement of SOS regulations and other environmental protection regulations. Those lawyers are quite open in their philosophy that property rights should be the paramount value to be protected in the use and ownership of property.”

The attorney who represented the SOS Alliance in the Sunset Valley lawsuit, Brad Rockwell, also is critical of the outcome, although at the time the agreement was sealed he was quoted by the Statesman as saying “the end result is very good, and it will be an important step in protecting the aquifer.”

Now he seeks to put that statement in perspective.

“The settlement was not agreed to because it was better than Lowe’s complying with City ordinances, including the SOS Ordinance, but because of Lowe’s threats to get the Legislature to override Austin ordinances,” Rockwell, told The Austin Bulldog. “(Adler’s) client urged Texas legislators to send threatening letters, one to the Mayor, urging him not to enforce City of Austin ordinances against Adler’s client.

“The kind of person who tries to subvert City of Austin ordinances and takes on clients who try to get state senators to pressure the Austin mayor and who engage in Austin-bashing in the Texas Legislature is not the type of person who should be Mayor of Austin,” Rockwell said.

Adler maintains that he did nothing to overturn Austin’s ordinances and had nothing to do with the legislative maneuvers that put pressure on the City of Austin.

The Partial Transcript of an August 19, 2004, deposition of Austin attorney Terrence “Terry” Irion—in which Adler acted as Irion’s attorney—indicates that Irion and two other attorneys were involved in the legislative initiatives.

In a May 15 interview Adler told The Austin Bulldog, “I had been asked to challenge the SOS Ordinance, to try to invalidate the SOS Ordinance, and I would not agree to take that kind of case.” Adler declined to say who offered him that job, adding, “What you can know is that I never handled that kind of case.”

Adler wants to be judged as a lawyer by the totality of his practice and not the handful of lawsuits that involved environmental regulations.

“I have handled hundreds and hundreds of cases, and the number of times I’ve handled these regulatory cases you can count on one hand. They are an exceedingly small part of my practice, and in each case I’ve handled, the court said the position I was taking was correct. … and the Lowe’s case was settled.”

Newfound dedication to the environment

In an exclusive interview April 14 Adler told The Austin Bulldog he supports the Save Our Springs Ordinance and if elected mayor he will enforce it.

Yet there’s scant evidence of Adler’s commitment to environmental causes that would deflect criticism for his legal work on behalf of developers. (Other lawsuits in which Adler represented developers will be covered in the next installment.)

A $100 contribution his wife, Diane Land, gave to the Texas League of Conservation Voters Political Action Committee in 2006 is the sole evidence of environmental interest the couple has shown financially. The only environmental organization Adler is a member of is Texas Environmental Democrats, which he just joined in January, according to Mary Ann Neely.

In sharp contrast to Adler’s generous financial support of numerous nonprofits and political causes, he has contributed nothing to local environmental organizations such as the Austin Sierra Club, Save Our Springs Alliance or Save Barton Creek Association and in fact fought the latter two in court.

Roy Waley
Roy Waley

Roy Waley, vice chair of the Austin Sierra Club, didn’t want to speak about Adler before the organization goes through its process leading to endorsement of candidates.

But Waley did say, “Every candidate seems to be an environmentalist leading up to an election. All current members of the council say they believe global warming is real but there seems to be a disconnect in some of their votes sometimes. Austin Sierra Club and the City of Austin have both been promised environmental policies with teeth but on deeper examination it turned out to be dentures that can be removed and reinserted depending on the circumstance.”

Related links:

The Big Boxer complete lyrics

The Big Boxer Recording

Court Decisions in City of Sunset Valley et al v. City of Austin et al (Cause No. GV 400101)

Related Bulldog coverage:

Steve Adler Launches Mayoral Campaign: Big crowd turns out on a hot day to hear what the little known candidate would do, May 5, 2014

What’s Steve Adler Done for Austin?: This mayoral candidate has given significant time, energy, and money to numerous important causes, May 1, 2014

Steve Adler Wants to Be Mayor: He views the 10-1 system as a gift and an opportunity to restart, revitalize city government, April 23, 2014

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