Abbott wasn’t always opposed to local control,
On state Supreme Court in 1998, he backed Save Our Springs Ordinance.
Texas Gov. Greg Abbott has been on a tear lately against local control.
He signed legislation on Memorial Day that pre-empts ride-hailing rules in Austin and other cities. His to-do list for the special session of the Legislature included a crackdown on local rules concerning tree removal, use of a cellphone while driving and access to bathrooms by transgender people.
Abbott finds the capital city’s embrace of local control especially galling.
“Once you cross the Travis County line, it starts smelling different,” he said in June at a Bell County Republican Party dinner. “And you know what that fragrance is? Freedom. It’s the smell of freedom that does not exist in Austin, Texas.”
Those are strong words, and quite an about-face, for a man who, 19 years earlier, gave his blessing to an Austin ordinance that might qualify as the poster child for local control. Abbott was a member of the Texas Supreme Court at the time, and he wrote its unanimous opinion in 1998 upholding the Save Our Springs Ordinance.
That ordinance sharply restricts development in the Barton Springs watershed, an area of southern Travis and northern Hays counties that supplies drinking water as well as continuous flow at the iconic swimming pool in Zilker Park.
Depending on a tract’s location within the watershed, no more than 15 percent, 20 percent or 25 percent of the property can have buildings, parking lots and other impervious cover. What’s more, the ordinance requires substantial buffers of undeveloped land near creeks, sinkholes, caves and other sensitive ecological features. On top of that, runoff after development cannot cause more stream pollution than predevelopment runoff.
“The fact that the Ordinance severely impacts some property values does not make it invalid, arbitrary, unreasonable, inefficient, or ineffective in its attempt
to control water quality,” Abbott wrote in his fullthroated, 32-page opinion in the case, known as Quick v. City of Austin. “While the Ordinance’s impervious cover limitations undoubtedly substantially affect the value of some property parcels, such limitations are a nationally-recognized method of preserving water quality.”
He added: “Because we have concluded that the Ordinance is rationally related to the governmental interest in protecting water quality, the City has the right to significantly limit development in watershed areas in furtherance of this interest.”
Lawyers on both sides of the SOS Ordinance litigation said the evolution of Abbott’s view of local control has been striking.
“It’s ironic that in 2017 a governor’s unhappiness with local ordinances preserving important trees has soared to the top of a legislative agenda when the same public servant, as a Supreme Court justice, seemed to honor and appreciate how important local control of important policies is,” said Mike McKetta, who represented Circle C Land Corp., which challenged the SOS Ordinance.
“It is ironic our governor is so anti-city autonomy when he authored the Supreme Court opinion expanding local cities’ power through things like the SOS Ordinance,” said Thomas H. Watkins, who defended the ordinance on behalf of the city of Austin.
Abbott spokesman John Wittman said his boss wore one hat as a judge and wears a different one as governor.
“Greg Abbott’s constitutional role as governor is to advocate for changes in law that will make Texas a better place to live,” Wittman said. “Justice Abbott’s constitutional role in the Save Our Springs case, and in every other case he ruled on, was not to make the law conform to his personal opinions, but to apply the Constitution, regardless of his personal opinion. Today’s judicial system is filled with judges who impose their personal policy preferences at the expense of the rule of law. Justice Abbott was not one of those judges.”
A state District Court in Hays County had struck down the SOS Ordinance after a monthlong jury trial in 1994, but Abbott wrote that the voters of Austin, who approved the ordinance by a nearly 2-1 ratio in 1992, were due considerable deference. A group of citizens had drafted the ordinance and collected signatures to place it on the ballot, and its approval amounted to “a valid legislative act that need not be approved” by the state’s environmental agency, Abbott wrote.
Abbott’s opinion included a point-by-point rebuttal of issues raised by the plaintiffs — three couples, an elderly widow and Circle C Land Corp. In one of the more memorable moments of the trial, McKetta produced a bottle of Evian drinking water and argued that the ordinance’s limits on nitrogen were so strict that it could not legally be poured into Barton Creek.
Abbott’s opinion dismissed that line of reasoning, declaring that the comparison “merely establishes that natural runoff in the Barton Creek watershed has a lower concentration of nitrates than the spring waters producing Evian bottled water. Accordingly, this evidence is actually not probative of whether compliance with the technical requirements of the Ordinance is possible.”