The city applied for the emergency TRO, alongside Madrone Canyon homebuilder Eppright Homes and the city of Lakeway, following complaints from nearby residents about noise and light pollution emitted from the ongoing construction of the 270,000-square-foot distribution facility.
The virtual hearing with Judge Jessica Mangrum of Travis County’s 200th District Court took place Oct. 18 at 3:30 p.m. Legal representatives of Bee Cave described immediate harm being caused by construction to nearby residential areas. The restraining order will last for 14 days in order to mitigate the harm described, and a hearing Nov. 12 will further address all aspects of the case.
Current situation
Bee Cave Communications Director Crystal Cotti described impacts of the current construction in an Oct. 18 email.
“The city is already receiving complaints from residents about the noise and light pollution resulting from construction. Recently, Bee Cave police documented construction noise of almost 100 decibels in the middle of the night, far beyond the nighttime limit of 58 decibels,” Cotti said in the email.
Industrial grade floodlights are also currently in use at the site to allow for construction at night, Cotti said.
In its restraining order application, the city describes a project that attempts to “dramatically alter the use of land in the city’s jurisdiction and transform a quiet residential area into an industrial hub, threatening the well-being of the surrounding areas and violating defendants’ binding development agreement with the city.”
Some context
The development agreement between the city and developers Wheelock and Velocis was first approved in 2015, and development continued without issue until the city became aware of large concrete walls that were constructed on-site. On Aug. 14, the city of Bee Cave filed a lawsuit against the developers.
These walls indicated a larger industrial facility that was not initially agreed upon, according to the city. A legal battle between the city and the developers has ensued, and the city has accused the developers of violating the development agreement for the project.
Bee Cave claims that terms stated in that agreement require the developers to submit detailed site plans and to follow “master development standards” incorporated in the development agreement. The city claims that the developers failed to submit those plans, and that they “deliberately kept the city in the dark” for over a year.
“We’ve not been able to inspect this thing, and we’re worrying because it’s going up so fast that there’s no one who’s inspecting it, at least to the degree that the city would be obligated to under the development agreement,” said Bee Cave’s legal representative Casey Low with Pillsbury Winthrop Shaw Pittman, at the Oct. 18 hearing.
This is the second time that the city of Bee Cave has applied for a temporary restraining order. On Aug. 16, the city’s first request for a TRO was turned down.
The response
Scott Weatherford and Mike Clark, representing developers Velocis and Wheelock, respectively, disputed claims made by the city at the Oct. 18 hearing.
Weatherford said that the city’s support for injunctive relief relies on a “drastic rewrite of their terms of agreement,” and urged the judge to turn down the city’s second request for a TRO. Weatherford also said that the development was not required to adhere to the normal permit processes for a development, as outlined in the development agreement, and was therefore not in violation of the contract.
"The express intent, by virtue of this agreement is that the parties not follow these ordinances," Weatherford said at the Oct. 18 hearing. "The city makes a big deal about how it can’t waive its right to enforce certain ordinances and standards ... it contractually agreed to relinquish those rights by virtue of the language here, and the same is true for inspections."
Weatherford also stated that the harm inflicted on Velocis by the TRO would outweigh the benefits to the city, citing additional costs and safety concerns that would be caused by a sudden halt of construction.
Discussion regarding the immediate harm to residents caused by construction mainly related to light pollution and excessive noise levels. Representatives for Velocis and Wheelock argued that the city actually made certain exceptions for construction sites, citing city lighting ordinances, and also maintained that the rate of construction on the development has not hastened in recent months.
In relation to its obligation to provide the city with letters of intent for the nature of the development and any accommodations made to adhere to ordinances, Weatherford cited a letter sent to former City Manager Clint Garza, which detailed the site would be used for industrial purposes. Low with Bee Cave said this was only sent to Garza, however, and not shared with other staff.
What else?
The city of Bee Cave and the developers will attend a public hearing Nov. 12 to argue their case for a permanent injunction on the development.
