A view of the river in Brackenridge Park where the proposed drainage outfall will be builtCity Council voted Thursday to award construction contracts on the $15.5-million Broadway-Hildebrand drainage project that was approved as part of the 2007 bond program. By "approved," of course, we mean that voters signed off on a version that is substantially different from the one that's been working its way through the court system. Sometime after the bond election, the City came up with a design that runs west along Hildebrand rather than south along Broadway, and would enter into a drastically reconstructed river bank in Brackenridge and Miraflores parks. The Headwaters Coalition, which manages a spring-dotted 50-acre preserve just north of the proposed outfall, and the downstream River Road neighborhood filed a lawsuit that's headed to the Texas Supreme Court.
District Court Judge David Berchelmann granted the plaintiffs a temporary injunction last year, which the Fourth Court of Appeals lifted this spring. But that injunction is still technically in place while the plaintiffs take it to the next level, attorney Tom Kemmy said, unless the Fourth issues a mandate ordering the trial court to lift it. Even if that were to happen, the plaintiffs would almost certainly ask the Supreme Court for an emergency stay. After all, as the City well knows, once the thing is built, the lawsuit would be moot.
"They're going to try to bully their way into this," Kemmy said, "instead of letting it run its legal course."
So what's with the Council vote and the optimistic promise that construction will start in late September or early October?
The bids the City solicited after the Fourth's April decision were going to expire at the end of this month, City Attorney Michael Bernard said, and delay means more expense.
Bernard, not surprisingly, disagrees with Kemmy's interpretation of the case's standing. The plaintiffs have until mid October to file their appeal at the Supreme Court, but "I believe under the law we can move forward," Bernard said.
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