Brothers drop lawsuit against city, say dam will go In property-rights dispute, both sides staked environmental high ground. By Marty Toohey AMERICAN-STATESMAN STAFF
AMERICAN-STATESMAN STAFF Published: 7:37 p.m. Thursday, Dec. 16, 2010 Three brothers who live west of Austin have agreed to remove a dam from their property and drop a lawsuit against the city, ending a protracted property-rights dispute in which both sides claimed an environmental high ground. The dam straddles a wide creek that runs through their 13-acre property and was built without proper permits. City and county officials said it might threaten a nearby nature preserve. John Strickland , the eldest brother, still contends officials were more concerned with the letter of the law than common sense, an assessment shared by some environmental activists. But his case was considered a long shot by legal experts. And Strickland said he no longer could afford the rising bills — more than $100,000 — to fight the city. The City Council approved a settlement Thursday that waived mounting penalties against the brothers. "We take the responsibility to protect our watersheds very seriously," said Anne Morgan , the city's director of litigation . The dispute touched on several issues: the rights of property owners outside city limits; the degree to which regulators should negotiate; and what, exactly, is best for the environment. The Stricklands' dam is located along the intermittently flowing Bullick Hollow Creek near Lake Travis. The Stricklands built the 4-foot-high , 30-foot-wide structure in 2007 , spending about $3,000 . In the process, they created a pond the family says has ensured turtles and perch don't die when the creek runs dry and helped restore bald cypresses, a towering species that suffered when the arrival of Hill Country settlers triggered the spread of water-hungry cedars. John Strickland said the dam has partially restored the property to a natural state that existed before settlement of the area. "We say natural and traditional is having water in the creek all the time," Strickland said. "We don't believe that the best thing for the wildlife is always to leave the environment untouched. When we drain the pond, the turtles are going to die." City officials counter that the Stricklands are altering the waterway's natural state by damming it. During times of low flow, when there isn't enough water to fill the pond, the dam blocks water from continuing down the stream bed, said Nancy McClintock , assistant manager of the city's Watershed Protection Department . The dam, she said, violates the creek's "essential and fundamental characteristics." County officials have also objected to the dam, saying it could be diminishing the amount of water flowing into a section of the massive Balcones Canyonlands Preserve. "Yes, it's habitat on their property, but it's a different type of habitat than you typically see in the Hill Country," McClintock said. "We don't want to see our streams dammed up into a series of ponds." But longtime environmentalist Jack Goodman says the dam is "a net environmental plus." "It doesn't make any sense to tear (the dam) down, even if they created it improperly initially," said Goodman, a former president of the Save Barton Creek Association , and a member of the Barton Springs/Edwards Aquifer Conservation District board. "This is a unique situation. Let it go because in the end it turned out to be a good thing." But, Goodman said, the Stricklands should also have applied for permits in the first place. And he said they should have been more patient in finding a compromise with city officials before deciding to sue. "The lawsuit was a poorly considered idea," Goodman said. "It has just made the city stiffen its spine." The lawsuit argued the city did not have the authority to order the dam removed because it is located outside the city. The state Legislature in the 1980s granted cities some control over development in extra-territorial jurisdiction — a band outside city boundaries — as a way to curb undesirable development just across city lines. Numerous lawsuits challenged cities' newfound power. But most disputes ended in the cities' favor, said Buck Wood , an attorney specializing in property rights . Dana Johnson, an assistant city attorney handling the Strickland case, said there was no question about the city's authority. "The staff made a lot of efforts, and (the Stricklands) vacillated back and forth on what they wanted," Johnson said. "They could have asked for a variance" — a provision under which the city could waive some regulations — "but they chose not to." In court documents, the Stricklands contended they had no choice other than to sue because a city official had told them an appeal would be denied, but only after they spent tens of thousands of dollars on studies and applying for various permits. John Strickland said he also should not be expected to be aware of Austin's environmental rules because his family has lived on the property — outside city limits —since 1975 . "Do you know much city code there is?" he said. "We bought this land outside the city limits so we wouldn't have to deal with a situation like this. I'm being forced to pay to do something the city wants because I can't afford to fight it, but I also don't get to vote in the city elections." http://www.statesman.com/news/local/brothers-drop-lawsuit-against-city-say-dam-will-1127611.html
