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City gets green light in controversial Broadway drainage case 

Talk about awkward timing.

San Antonio's on the verge of passing our largest-ever bond package, with early voting starting this coming Monday. But even as the $596 million package looks like a slam-dunk, given no organized opposition to speak of and a weighty development-backed PAC pushing the proposal, there's movement on a legal case that could make locals nervous of future bond pitches.

Following lengthy oral arguments before the state's 4th Court of Appeals late last year, the court ruled on Wednesday in favor of the City of San Antonio, dissolving an injunction that kept construction stalled on a controversial $14 million drainage project near the Broadway-Hildebrand intersection since last May.

City Attorney Michael Bernard said in an emailed statement Wednesday, “What the City promised to do is what the City plans to do; solve the flooding problem that has beleaguered that area for generations.”

click to enlarge broadway-drainagejpg

Approved by voters as part of the city's 2007 bond program, the project initially proposed piping storm water south along Broadway into an existing drainage ditch that flows out into the San Antonio River near the Witte Museum. Sometime after the bond issue passed, for reasons that still aren't exactly clear, city staffers conducted more studies and revised the plan, opting instead to pipe the water west beneath Hildebrand to flow out a new, massive outfall at the river south of the Hildebrand bridge, near Miraflores Park.

The River Road Neighborhood Association and the Headwaters Coalition, angered by the new plan, eventually took the city to court saying COSA broke its contract with voters by substantially changing a voter-approved project. They say the city's revised plan won't actually move nearby properties out of the 100-year floodplain, and that it disrupts the Coalition's well-known plans to build a “spiritual reach” of the river linking trails from Brackenridge up to the headwaters sanctuary, and the river's source at the Blue Hole. Add to the mix indigenous groups saying the new version of the project digs up pieces of the culturally and religiously important Miraflores Park, an area suspected to be rich with prehistoric deposits.

Bebb Francis, the attorney representing both plaintiffs, called Wednesday's appeals court ruling “a devastating blow to public trust,” adding, “I'm afraid this is going to have short-term and long-term effects on how our citizens look at future bond issues.” The opinion, Francis contends, gives the city too much flexibility to change bond projects after voters have already weighed in.

In the 17-page opinion Justice Sandee Bryan Marion disagreed, saying the word "permanent" was never used in the 2007 bond's drainage propositions, and that the city has the right to change projects as long as they achieve the same goal stated in the bond proposal before voters – in this case, she wrote, to relieve flooding in the area.

Still, Marion wrote:

“We sympathize with the appellees who actively participated in the process leading up to the bond election

appellees were entitled to rely on the City's representations leading up to the bond election. More importantly, all citizens, and particularly those affected by the structures constructed for the purpose of a public improvement, should have confidence that City officials have done their 'homework' when planning public improvements and prior to asking citizens to pay for the improvements. Otherwise, a loss of voter confidence may translate into a vote 'against' public expenditures.”

Said Francis, “I'm afraid that if the taxpayers really want to understand whether a particular project's going to be built the way the city says (in a bond proposal), they'll need to get an attorney and examine the language so they can know whether or not the city can just change it.

I'm not being tongue in cheek here.” Francis says his office is still determining whether to appeal to the Texas Supreme Court.

While Francis says the new ruling gives the city more flexibility, city officials had already taken steps in the 2012 bond package to keep a similar legal spat from popping up in the future. Consider the 2007 bond language on the disputed drainage project, which states, “Broadway Corridor, Phase III A (Carnahan to 150 ft. north of Davis Road),” a plan that's now been scrapped.

“Drainage and Flood Control Improvements” contained in the 2012 bond language avoid such specifics, listing instead projects like “Goliad Road Drainage (from SE Military Drive to Loop 410, generally).” Keep in mind that “generally” part.

-- By Michael Barajas, [email protected]

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