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By Bill Oakey – November 13, 2017
Above All, This Is an Issue of Transparency
Soccer is a popular sport for people of all ages. Many folks would love to see a major league (MLS) team come here. The last thing we need is another messy, expensive legal battle over whether a stadium on City parkland would require a public vote. Supporters of bringing a soccer team here should embrace an election and rally people to support it. Under the right circumstances, a public-private partnership can be a valuable tool in our affordability arsenal.
In early 2015 I was in the City Council chambers when a local attorney threatened to sue the City if the Decker Lake golf course proposal were not put to a public vote. This followed many months of frustration over why City legal staff insisted that a license agreement with the developer would not trigger an election. Both the Colony Park Neighborhood Association and the Austin American-Statesman endorsed the call for an election. Finally, on April 29, 2015 City Manager Marc Ott reversed course and recommended that the City Council consider putting the proposal on the ballot. Today we should expect the same standard for the proposed soccer stadium.
Let’s Take a Deep Dive Into the Details
My blog posting from last week delves into the history of the City Charter requirement, dating back to 1952. Over the weekend, I finally uncovered the City staff’s reasons for initially not supporting an election on the Decker Lake golf courses. Buried in the digital equivalent of mothballs is this official question and answer document, dated March 5, 2015. Here is a portion of the relevant text:
Council Question and Answer
March 5, 2015
Additional Answer Information
QUESTION 1: In 2000, voters rejected a ballot proposal to create a golf course at Walter E. Long Park. (The City Charter requires Council to get voter approval before selling, conveying, leasing, mortgaging, or alienating parkland). Please provide specific details about that 2000 ballot measure, including the acreage that would have been allocated for the course and whether that proposal was to sell or to lease the parkland.
ANSWER 1: The ballot proposal in 2000 included a golf course development with a hotel on parkland which required a referendum as the contract was for a lease of the parkland. The hotel would trigger a Chapter 26 due to the change of use of the parkland. The referendum did fail by approximately 49-51%. The approximate acreage is the same being considered today, approximately 735 acres; however, the current contract will be a license agreement for public recreational facility with commercial elements similar to those found on other municipal golf courses (green fees, event space rental, food and beverage, equipment rental, limited retail, etc).
QUESTION 2: Please explain why converting 735 acres of parkland to use as a private golf course does not require voter approval.
ANSWER 2: The proposed development is for a public golf course, not a private golf course as stated in the question. Voter approval is not required because the land will remain open to the public as a park use and will be owned by the City of Austin. The City will not sell, convey, lease, mortgage, or alienate parkland by entering into a license agreement for the finance, design, construction and operation with Decker Lake Golf of a public golf course. The course will be operated by a private contractor similar to other PARD concessions. Supplemental information will be provided to Council from the Law Department as an attorney-client privileged communication.
A Look at the State Code That Protects Public Parkland
Notice that Answer 1 above mentions that the 2000 election for a hotel and golf course was necessary because the project would “trigger a Chapter 26 due to the change of use of the parkland.” That refers to Title 3, Chapter 26 of the Texas Parks and Wildlife Code. For a historical perspective on the application of this law, check out “Pitfalls In the Use Or Taking of Park Land,” presented to the Texas City Attorneys Association in 2014. Attempting to decipher these will make your eyes glaze over. That’s why we have lawyers. Suffice it to say that both the Austin City Charter and State law aim to protect parkland from unauthorized changes of use.
The Bottom Line – When Does a License Agreement Cross the Line Into “Alienation of Parkland?”
It all comes down to the scale of the enterprise. It appears that only small operations and concessions are permissible. Former City Manager Marc Ott perhaps said it best in his April 29, 2015 memo to the City Council. In it he stated, “While we have a variety of license agreements for the use of parkland, I have to acknowledge that none of them may approach the scale of the one currently in front of you for consideration. With that in mind, giving our residents an opportunity to directly vote to either sell or lease the land may be an equally viable option.” (This quote appears in an Austin American Statesman “Viewpoints” piece, dated June 10, 2015).
Can the Community Come Together On Golf and Soccer Facilities?
Wouldn’t it be nice if everyone could put past disagreements aside, and approach these opportunities with a positive spirit. Perhaps our park system could benefit financially with revenue from a limited number of public-private partnerships. But we need an open and transparent process, followed by a public vote.
One Final Tidbit – ESPN’s Take On an Austin Soccer Team
Last month, the sports network asked some probing questions about whether Austin would be a good fit for an MLS franchise. It’s always fascinating to read what the outside world thinks about major goings-on here in the Capital City. The article is highly recommended.