Is the National Swim Center Deal Dead in the Water?

Council still dodges park issue.
The City Council and the National Swim Center Corporation seemed to be going through the motions of patting each other on the back and working towards a deal, even though confidential sources from City staff say the deal is dead. Ignoring the lack of resolution on whether the area is a park or not, Council has plunged ahead with more negotiations. Even if those negotiations could bring an agreement, the City probably couldn’t legally execute their end without a protracted (years long) legal fight with community groups who have vowed to oppose any attempt to place development on what they consider a public park.

Even with the City Council go ahead, unrelated to the park issues the negotiation team faces a formidable mountain to climb. First there is the little matter of the five million dollar difference between the $2 million the City is offering to restore the Coliseum and the $7 million the NSCC says they need to move ahead. During the bidding that developed after the RFP was awarded to Brass Real Estate, the NSCC said they would only need the $2 million designated for demolition. In addition to the extra $5 million, they now say in order to meet the parking requirements, they would have to build a multi-story parking garage with one story underground and need additional government funding for that.

NSCC also would like a lease longer than the City Charter maximum of 60 years. Even the 60 year maximum would be unable to be met if park advocates are right. There is case law that says that any lease over 40 years is a taking and therefore subject to a public vote if it is a park. The longest a park can lease out land without a vote according to current case law and statute is 20 years. Between 20-40 years is up to future court decisions.

Questions still remain regarding the NSCC relationship with the USA Swimming (the actual Olympic folks) and its fundraising arm USA Swimming Foundation. The agreement which NSCC says they have had for weeks still has not been shared with the City. The agreement according to USA Swimming only gives the group the right to use the Olympic logo for marketing purposes. The issue of whether the promised swim events would actually be guaranteed also remains an unanswered question. While NSCC officials keep saying they would be guaranteed sanctioned events, USA Swimming says they have to bid on them just like everyone else.

City staff is said to have told the Council before the last meeting that the proposal is not further negotiable based on the current positions of the parties. Despite that, Council members and John Bell, the attorney hired to create a legal path for the development, promoted the idea that the deal can still be done. Bell continues to insist the area can be developed without a public vote. The area according to WtP and others indicates the area is a park which would require a public vote for development.

During Tuesday’s meeting Bell discussed the Title Commitment completed by Security Title stating the only covenant was one granted to Carrie Lichtenstein for land across from the Coliseum that said nothing can be constructed east of the property except for governmental or ornamental buildings. Bell stated that since the Coliseum is a public building it would not impair the development of a swim center rental.

The Commitment did not however settle the park question. The Title Commitment, which is not a Title Opinion or Title Insurance, is merely a promise to sell title insurance if certain conditions are met. Security Title outlined conditions that would need resolution before that could happen. Those conditions would include resolution of the park issue, issues which were not explored by the company.

While the City Council, with the exception of Mark Scott, seems to accept Bell’s interpretation at face value WtP and others have presented evidence to the contrary and asked the Council to take note. Acknowledging the park designation would require a public vote on any development, something the Council seems determined to avoid.

In addition to numerous Master plans, maps and other evidence the area is a park, an inventory of parks included in the 1967 Comprehensive Plan lists the (old) City Hall Grounds, the Coliseum and Exposition Centers and the Bayfront Parkways all as parks. The 1985 Bayfront Activities Committee Final Report recommended that a festival area be built in either the Bayfront Arts and Science Park/Shoreline Median or the McCaughn Park/Coliseum/City Hall/Sherrill Park area. City planning records indicate that decision was approved by Council in 1987 to designate the later as a festival park. As recently as 2008 a bond issue (Proposition 7) citizens voted to sell $13 million dollars in bonds to finance “Bayshore Park” on the site to complete Phase III of the Bayfront Master Plan which included a festival park. (see related articles on front page).

While some public officials may feel they can ignore the law and once the deal is done it is over, legal precedence says that isn’t the case. In Leeco Gas & Oil Company v County of Nueces (Supreme Court of Texas case No. C-5950) in 1987 Nueces County officials attempted to use condemnation and payment of a nominal fee to remove a reverter clause on property that was given to them as long as it was used as a park.

The purpose of the condemnation was an attempt to develop it that resulted in a Texas Supreme Court Decision saying the nominal fee was not enough and that fair compensation would have to be paid. In other words, millions of dollars. The County backed off and that land became the current Nueces County Packery Channel park now under development. Whether either the current owners of the Lichtenstein property or ordinary citizens having an interest in a park, would have standing for such a suit is open to debate, and an outcome worth possibly millions in damages.