Newsmonger: The loophole that keeps on giving, Exoneration Commission 

click to enlarge Last Friday about 20 activists with Southwest Workers Union protested outside downtown's One Alamo Center, which houses the Canadian consulate offices in San Antonio. The protest was part of a nationwide action led by the Idle No More movement, which is fighting against damage to land and water in indigenous communities. The group continues to oppose the Keystone XL Pipeline, which, if approved by the Obama Administration, would carry Canadian tar sands to refineries along the Texas Gulf Coast. - MICHAEL BARAJAS
  • Michael Barajas
  • Last Friday about 20 activists with Southwest Workers Union protested outside downtown's One Alamo Center, which houses the Canadian consulate offices in San Antonio. The protest was part of a nationwide action led by the Idle No More movement, which is fighting against damage to land and water in indigenous communities. The group continues to oppose the Keystone XL Pipeline, which, if approved by the Obama Administration, would carry Canadian tar sands to refineries along the Texas Gulf Coast.

The loophole that keeps on giving

Last week the city's Planning Commission green-lighted more dense development over the Edwards Aquifer's environmentally sensitive recharge zone, a porous slice of geology where our main source of drinking water gets replenished with each rainfall. The landowner did so with the help of a loophole developers wrote into the city's aquifer protection ordinance nearly two decades ago.

Morgan's Wonderland and San Antonio Scorpions founder Gordon Hartman plans to build Wortham Oaks, a 527-acre, 1,493-home subdivision, over the recharge zone on the far North Side. The site, currently an expanse of grassland, mesquite and oak trees, is also home to five natural caves that environmentalists say feed directly into the aquifer. Neighbors worry the land may contain habitat for the endangered golden-cheeked warbler, and caves, home to other endangered species.

Once completed, Hartman's development will have 20 sections with as many as three homes per acre, along with two Judson ISD schools.

Cheered by environmental groups, the city passed its aquifer protection plan in 1995, which sought to stem dense development over the recharge zone by capping how much land could be covered in buildings and paved roadway. The ordinance set the cap at 15 percent.

"The studies show a relationship between impervious cover and water quality," said Edwards Aquifer Authority board member Enrique Valdivia. Over 15 percent, he said, you start to see water quality problems – either from tainted roadway runoff, spilled motor oils, lawn fertilizers, or San Antonio's woefully common sewage spills. "15 percent seems to be the tipping point that's been identified."

Hartman's subdivision, however, plans for impervious cover of over 40 percent. At the Planning Commission meeting last week, Hartman attorney and prominent local lobbyist Ken Brown argued the subdivision is exempt from the strict limits, having inherited vested rights from the Century Oaks development, plans for which were filed with the San Antonio Water System, which is tasked with enforcing the city's impervious cover cap, before the aquifer protection plan passed.

Dial back to 1995 to see why Hartman's property, and many more like it, has been exempted. Pape-Dawson Engineers, which coincidentally have done much of the environmental work for Hartman's subdivision, filed preliminary plans for the land right before the 1995 ordinance went into effect, thus grandfathering the site (those opposed to the development argue the current project strays too far from the original plans and shouldn't be grandfathered). Gene Dawson Jr., the firm's president, co-chaired the city committee tasked with drafting the ordinance. Then-VP Stephen Kacmar also sat on the committee. And while council imposed a moratorium that banned filing development plans in the months before the new aquifer protection rules passed, Pape-Dawson exploited a loophole the firm itself helped create – the moratorium didn't explicitly ban filing so-called preliminary master plans.

Pape-Dawson filed 20 plans, covering 7,300 acres over the recharge zone, including the controversial PGA Tour site and Hartman's new subdivision, before the city fixed the mistake.

Dawson didn't return calls for comment.

"You have to understand, when these committees are formed with environmentalists and developers on them, the developers can insert language into an ordinance that only they understand the ramifications of," said Richard Alles, a local mechanical engineer and conservationist with the group Aquifer Guardians in Urban Areas (AGUA), which has routinely challenged heavy development over the recharge zone. "I think this particular provision was one of those instances, and this particular development seems to be one that benefits." In a 2005 report on the PGA property, E-N reporter John Tedesco uncovered a letter showing Pape-Dawson's role behind the loophole, wherein Kacmar boasts to PGA developers, "For the last few weeks, we have been working behind the scene with respect to the new development regulations over the Edwards Aquifer recharge zone."

Last year, the Cibolo Creek Conservation Society, with backing from AGUA and the Greater Edwards Aquifer Alliance, threatened to sue Hartman, SAWS, the city, and Judson ISD in federal court, claiming the new development violates the Endangered Species Act. The group's attorney, Brad Rockwell, insisted developers haven't complied with city requirements to survey the land for endangered species and submit the report to the U.S. Fish and Wildlife Service. City staffers wouldn't discuss the development, citing the threat of lawsuit.

The conservation groups were set to meet with Hartman's representatives this week to see if a compromise could be struck.

Exoneration Commission

Last week state Rep. Ruth Jones McClendon (D-San Antonio) filed a bill that would create the Timothy Cole Exoneration Review Commission, named after a Texas Tech student who died in prison 13 years after being convicted of a rape he didn't commit.

This is McClendon's third consecutive session calling for the commission, which would be comprised of nine governor-appointed members and tasked with studying cases of wrongful conviction. "The goal is to uncover errors in criminal procedure that led to these wrongful convictions," McClendon said. "It seems like everyone should be in favor of that."

Well, not everybody. To the surprise of some, the Innocence Project of Texas has come out against the proposal.

"Legislators can't get anybody out of prison," said Jeff Blackburn, IPOT's founder and chief counsel. "All they can do is study these cases. Well, we've already done that. We already know why these things happen. What we need is muscle, and money, and government backing to actually get this work done."

Texas ranks third in the country, behind New York and Illinois, for the number of prisoners exonerated, according to a report last year by the Center for Wrongful Convictions at the Northwestern University School of Law. Those cases compiled by the center show exonerations have been radically uneven across the state. The report shows Dallas County, which set up a Conviction Integrity Unit in 2007 to re-investigate potential innocence cases, has seen 36 exonerations. Bexar County has only seen two, according to the center's list. The Bexar County

DA's office last year dismissed charges against Gilbert Valdez, who was convicted of sexually assaulting a 15-year-old girl and served a 10-year prison term. Prosecutors withheld testimony of police and hospital officials in which the victim said Valdez wasn't her attacker, his lawyers said. In 2011, Andre Heygood, convicted of murder based on faulty eyewitness identification, was exonerated.

As it stands, IPOT gets about $80,000 from the Texas Indigent Defense Commission to tackle innocence cases, Blackburn said. "You can't run a candy stand on that. … Prosecutors are able to enjoy the fact that there are weak and impoverished innocence projects." Rather than establish an exoneration review commission, the state should instead fund law schools or nonprofits to actually do the work of unearthing and investigating such cases.

"As it stands, we're given just enough money to fail," Blackburn said.

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