Mall floats past flood-plain rule
Web Posted: 12/11/2004 12:00 AM CST
John Tedesco
And Christopher Anderson
With big-name stores planned for the Shops at La Cantera, the new mall is touting a "dramatic site plan" to lure nearly 20,000 shoppers a day to the city's far Northwest Side.
But the $200 million retail center might have looked dramatically different if the developers were required to follow local environmental ordinances.
Under city code, developers could have been forced to preserve a flood plain that runs through the heart of the project, and provide buffer zones for sinkholes, fissures and a cave where water seeps into the Edwards Aquifer.
Instead, a corporate partnership that includes USAA paved over the flood plain and sensitive recharge features, records show, thanks to a state law that allows developers to grandfather projects and avoid city rules.
The Shops at La Cantera is one of three large shopping centers planned at North Loop 1604 and Interstate 10.
The projects have much in common: nationally known developers, prime locations at a busy intersection and blueprints for millions of square feet of retail space.
But the shopping centers also fall over the most sensitive property in the county, the Edwards Aquifer recharge zone, a stretch of land over the city's main drinking supply.
Owners of all three centers have obtained — or are trying to obtain — grandfathered status for their projects that would allow them to avoid city rules such as the 1995 aquifer protection ordinance and tree preservation codes.
Development plans for each site were filed before the ordinances became effective. The owners say they should be granted "vested rights" under a 1987 state law that prohibits cities from imposing new rules partway through a project.
The shopping centers wouldn't earn a free pass to pollute the aquifer. They still must follow state regulations, which environmentalists view as weak compared to the city's aquifer code, but still better than nothing.
And developers always can voluntarily preserve vegetation and green space. At the Shops at La Cantera, steps were taken to incorporate trees into the mall's design. The construction site is dotted with clusters of shady oaks.
The developers say they spent at least $100,000 to dig up more oak trees at the property and store them at a tree farm until they can be replanted.
Plans also call for the construction of water basins designed to filter pollutants from stormwater runoff, in compliance with state regulations.
Engineer Gene Dawson Jr., whose firm helped design La Cantera, preaches the gospel that responsible developers don't need to be saddled with local codes to build an environmentally friendly and attractive project.
He called La Cantera a perfect example.
"It looks awesome," Dawson said, crediting his client and property owner USAA. "That's how they do everything. They take it to the next level."
Last-minute filings
Records show the Shops at La Cantera and Regal Hills, a proposed 95-acre shopping center at the southeast corner of North Loop 1604 and I-10, benefited from a loophole that allowed the property owners to obtain grandfathered status.
In the contentious months before passage of San Antonio's aquifer protection ordinance, the City Council had imposed a moratorium in September 1994 to prevent last-minute project filings by developers trying to seek vested rights.
But the moratorium didn't explicitly say it pertained to a type of do ent known as a preliminary overall area development plan. The plans describe in broad strokes how multiphase developments will look.
The omission allowed engineers to file such plans in December 1994 for the two shopping centers, locking in city codes just weeks before the aquifer ordinance became effective.
At the same time, Dawson was co-chairman of a city task force set up to draft the aquifer rules.
The task force's other leader, environmentalist Danielle Milam, recalled the shock of learning Dawson and other engineers were enabling property owners to bypass the very ordinance she and Dawson were working on.
"The week we found out, we had spent close to 20 hours in meetings, and nobody had ever given us an indication that this was happening," Milam said.
Then-City Councilman Howard Peak, who later became mayor, called the flaw in the moratorium "a major loophole" and "a significant mistake on the part of the city."
A city report shows Dawson's firm filed a preliminary plan Dec. 20, 1994, for a 1,600-acre property that now includes the Shops at La Cantera. The firm filed an additional 17 plans for other projects.
Five days earlier, the engineering firm Vickrey & Associates filed two plans for a different property owner at a site that is to become Regal Hills.
The aquifer ordinance became effective Jan. 22, 1995.
Dawson and Vickrey engineer Steve Horvath described the filings as routine and said they weren't trying to pull a fast one at City Hall.
"I've been working on this project since its inception and I don't even recall that we filed it during the moratorium," Horvath said. "I'm not certain we paid attention to whether there was a moratorium."
Today, the Regal Hills property is thick with cedar and oak trees — construction has yet to begin. Developers want to build the shopping center on land along Loop 1604 that overlaps the aquifer's recharge zone.
Property owners are required to ask the San Antonio Water System if their project is grandfathered from the aquifer ordinance or if it falls under protection rules.
The Shops at La Cantera is grandfathered; SAWS has yet to determine if Regal Hills is vested.
To seek exemptions from other city ordinances, such as tree preservation rules, owners must turn to the city's Development Services department. The city has granted vested rights permits for Regal Hills and the Shops at La Cantera.
The Rim, a proposed development on the northeast corner of the intersection, applied for a vested rights permit but was denied. City staff informed landowner Thomas Enterprises it can revise and resubmit its application with more detailed information to gain vesting.
A different plan?
Construction has started at the Shops at La Cantera, but how would it look under the city's 1995 water-quality ordinance?
The site includes a flood plain and nearly 20 significant aquifer recharge features, including a cave.
The city ordinance says the "sealing of significant recharge features shall be prohibited" and protected with buffer zones. Flood plains with drainage areas more than 100 acres must also be preserved.
"That's where most of your water-quality benefits accrue," said Richard Alles, an environmentalist who believes the city is too lenient in granting vested rights.
But developers told the Texas Commission on Environmental Quality the cave should be covered. Otherwise, tainted water from parking lots would have flowed into it.
The state approved the plan, and the issue of the flood plain didn't come up. Engineers took steps to divert water around the project.
A geologic report paid for by the developers shows a total of 52 recharge features, ranging from low to high significance, were discovered on the property. They were all covered.
Scott Halty, director of SAWS' resource protection department, said the important recharge features wouldn't have been paved over if the development fell under city rules.
"We do not allow that," Halty said. "That is prohibited under the ordinance."
The caves, fissures and sinkholes identified at the Shops at La Cantera are scattered around the site. They would have presented a serious design challenge in order to develop a large mall without destroying at least one of them, Halty said.
The city rules allow developers to seek a variance if they want to build over a sensitive recharge feature, but SAWS has never been asked to grant one.
The city sets "impervious cover" limits to preserve recharge features, and the amount of buildings and pavement planned at the Shops at La Cantera actually meets the city's rules.
But because the project is grandfathered, there is no guarantee the shopping center will stay under the city's cap.
The current plan calls for 63 percent coverage of the 155-acre site. That falls under a 65 percent limit for commercial properties under the city ordinance.
However, a portion of the property to the east is marked as future expansion on maps filed with the state. That expansion could push the project over the limit, although John Rinehart, senior vice president of Pape Dawson Engineers Inc., said it's unclear how much impervious cover would be built.
"The actual layout of Phase 2 isn't set in stone yet," Rinehart said. "We weren't even sure we were going to build it, but the interest from the retail world has been so good for this mall. There's a lot of tenants who want in, so we're starting to plan for the next phase right now."
Rinehart said the recharge features and flood plain wouldn't be insurmountable obstacles.
The flood plain was small enough to slip under the preservation requirements, he said.
How would the mall preserve the recharge features under the city code?
"I don't know the specific answer to your question," Rinehart said, but he noted SAWS had a chance to write state regulators and object to the project.
"I do know that SAWS reviewed our water pollution abatement plan submittal and concurred with it," Rinehart said. "I'm assuming that they were satisfied with what we did."
Rinehart said the project has preserved so many trees, it probably would have met the city's 1997 tree ordinance, but not a more stringent version that became effective last year.
"We're going to try as best we can to meet the ordinance," Rinehart said. "But if we fall short, then I'll pull the vesting card and say, 'Look guys, we tried, but we're vested anyway.'"
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