New Braunfels Herald Zeitung (Newspaper) - October 20, 2000, New Braunfels, Texas
Friday, October 20, 2000 — Herald-Zeitung — Page 3ATABC/From 1A
commission generally “rubber stamps” these kinds of requests and there was no problem with New Braunfels trying to approach a ban in this manner.
“I’m very disappointed with this letter,” Akers said. “It’s not like we Entered into this thing lightly.”
He continued later, “I certainly believed we had a chance of doing it, especially after Mr. Bright assured us that we could do it. We didn’t go into it willy nilly.
“I went straight to the horse’s mouth.... He said do it. They’re rubber-stamped basically. Now that it’s gotten some attention, they’re not so rubber-stamped anymore.”
News of the recommendation caused different reactions throughout the community Thursday.
Paul Rich, who operates Mountain Breeze river outfitters, said he was pleased with the news Thursday. Rich is a member of the Water Oriented Recreation District and president of Tourists Associated Businesses, an organization of about 60 local businesses.
The group has retained a lawyer to help fight the ban.
“I’m very happy about (the recommendation),” Rich said. “I believe the city will still try to go through with it, but again, I think they should have checked this out before they went ahead and went through the process.”
Kathleen Krueger, who helped lead efforts to enact the ban, said she remained hopeful that the commission still will enact the ban.
“This is one interpretation by one lawyer,” she said. “I know the city will make its presentation Monday and argue forcibly that the area in question is a central business district.”
New Braunfels is better equipped to determine what the central business district is than an attorney who does not live and work in this city, Krueger said.
# “I respect his judgment, but I think that those of us who work and livp,(iefe Jjay.e a clearer understanding of what needs to be done,” she said.
Earlier this year, Councilman Robert Kendrick asked city staff to draft an ordinance to ban alcohol in a central river business district.
The city said from the beginning * that the ban could not be enacted without approval by the commission.
The ordinance was proposed under a portion of the state’s alcohol
laws that allow cities to establish a central business district and ask the commission to prohibit possession of open alcoholic beverage containers and public consumption of alcohol within the district.
The district was proposed to include the Guadalupe River between the Gruene Road and Faust Street bridges and on the Comal River from the Landa Park Drive bridge to the river’s confluence with the Guadalupe.
Council voted to delay consideration of the alcohol ban ordinance. That prompted a petition drive by residents to place the issue on the November ballot.
The group, led by Krueger and Betty Dunkin, successfully obtained enough signatures to have the item placed on the ballot. However, the council instead voted unanimously to approve the ordinance on which it previously delayed action.
That triggered the city’s request for the commission to approve the ban.
Bright said the city’s request is the first of its kind.
“The law defines a central business district as a “compact and contiguous geographical area of a municipality in which at least 90 percent of the land is used or zoned for commercial purposes and that is the area that has historically been the primary location in the municipality where business has been transacted.”
Bright’s decision to advise the commission that it does not have the authority to grant New Braunfels’ request centers on that definition.
“The only question I believe my clients are authorized to consider is whether the area designated by the city complies with the definition of a central business district,” Bright’s letter states.
His letter states that he cannot believe that the portions of the river in question are used primarily for commercial purposes. He said he recognizes that many people travel down the rivers on rented boats or inner tubes — sometimes with commercial guides.
“I believe that these rivers are used for recreational purposes, and the use of rented equipment, or even the payment of a fee to use a portion of the bank, does not change these purposes,” Bright said in his letter. “I reached this belief through several analogies.
“One may certainly rent a car to travel over public highways on vacation. That would not, in my view, become a ‘commercial’ use of the highway. Similarly, many of our
public parks impose entry fees. We do not conclude from this that the citizens using those parks are engaged in commercial activities.”
Bright’s letter also said the law requires that the district be the primary location where business is transacted, not the location where the “city’s primary business is.”
“I believe that in New Braunfels, like other cities, this will be an area marked by its collection of stores, offices and similar enterprises,” he said.
Bright also said a fair argument could be made that the proposed central business district is not compact and contiguous as required by law.
“For example, in the context of gerrymandered voting districts, the Supreme Court has held that a district following the contours of an interstate highway was not compact and contiguous,” Bright said, referring to a specific case named Shaw v. Reno. “I do not, however, take the Shaw case as authority for a legal definition of the term but, rather, as providing evidence that what is or is not ‘compact and contiguous’ lies largely in the eye of the beholder. This is simply too subjective a ground on which to base my advice, at least in this case.”
“It’s all connected,” he said. “The river is no more than 30 yards wide at its widest point.”
The city’s proposed business district is about 95 acres, compared w ith another city Akers cited that established a 246-acre district through the TABC.
“That doesn’t sound very compact to me,” he said.
Bright’s letter also states that he does not believe the proposed district meets a requirement in the law for at least 90 percent of the land to be used or zoned for commercial purposes.
“I do not believe that municipal zones extend into the bed of the river owned by the state,” Bright’s letter states. “Even if I am wrong in this, those portions of the land lying along the designated portions of the Guadalupe sftid Comal that are zoned for commercial purposes do not constitute 90 percent of the whole.”
However, Akers said the city’s 1999 Master Plan states that 60 to 70 percent of the city’s sales tax revenues are generated by tourism.
“If commercial activity is not taking place on those rivers, how are we getting 60 to 70 percent of our sales tax from tourism?” he asked.
Akers questioned where else New Braunfels’ central location for business would be — Home Depot, Gruene, historic downtown or the
Michael Meek, president of the Greater New Braunfels Chamber of Commerce, said the formation of the river committee was critical in light of Bright’s recommendation.
“Now it looks like this committee is going to be even more
important than ever,” Meek said.
The committee on Thursday selected Kevin Webb, who works for Rockin’ R River Rides, as chairman and Ken Valentine, a retiree, as vice chairman of the committee.
The committee set the top three
priorities it wants to address: increasing police and law enforcement on the rivers; litter control; and the last public exit, crowds, shuttles and parks.
The group will meet again at 6 p.m. Wednesday in the municipal building, 424 S. Casted Ave.
Bernice Virginia Shurley, passed away in New Braunfels on October 16, 2000 from complication following a major stroke.
Mrs. Shurley was born March 14, 1914 in Galveston, Texas, the second daughter of Nels and Sigrid Nelson. She was a graduate of Ball High School and Draughon’s Business College. She was married for fifty-six years to Homer C. Shurley, until
his death in December of 1990. She moved to New Braunfels in 1978, after residing in Killeen, Texas for thirty years.
Mrs. Shurley is survived by her daughter, Shirley Morrell of New Braunfels, Texas; her sister, Edna Eriksson of La Marque; two nieces, Barbara Jean Eriksson of La Marque and Karin McCall urn of Arlington, Texas; one nephew, A.E. Eriksson, Jr. of La Marque.
Funeral Services will be 2 p.m.
Friday in the Chapel of the James Crowder Funeral Home in La Marque, Texas, with Pastor Walter Dube, officiating. Burial will follow at Galveston Memorial Park Cemetery in Hitchcock, Texas.
Pallbearers will be Ed Daudy, Brent Daude, Roald Anderson, Herb Parsons, A.E.. Eriksson, Jr., and John Victor Eriksson. www.legacy.com James Crowder Funeral Home La Marque, Texas 1-888-935-2401
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place where the most sales tax revenues are generated.
“Who is in the better position to determine that, us or the Texas Alcoholic Beverage Commission?” Akers said.
Also, Akers pointed to a portion of the law that says the alcohol prohibition cannot extend into motor vehicles, buildings not owned or controlled by the municipality, residential structures or licensed premises.
“That leaves you the street and the sidewalks,” he said.
No money is exchanged on the streets and sidewalks, he said, likening that to the fact that money is not actually exchanged on the river.
The city had questions about whether it could establish a central business district on the rivers, Akers explained. But that is why city officials talked with Bright, he said.
“We knew it would be a unique application, to do it on our rivers,” Akers said. “That’s why we checked into it ahead of time with their attorney.”
Kendrick also said he had talked with Bright, and Bright had pointed the city toward the ban.
Bright said he does not doubt that conversation took place because he has many conversations like that. In his experience, the commission deliberates little on these types of requests.
“The definition of a central business district is pretty broad, but it is a definition with parameters,” Bright said.
The commission has considered numerous requests for alcohol bans in central business districts, but none on a river or or water, he said.
Bright said this is the first time he has ever advised that the commission cannot approve a request. The commission does not have to follow his advice.
“They exercise their own judgment and they are careful to do that,” Bright said. “There is never any doubt about the fact that the staff members ... make recommendations and the board makes decisions.”
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The city plans to try to convince the commission to go against the advice of its attorneys.
Akers said the city has prepared a video to show to the commission.
“Monday, we’re going to put our best foot forward,” he said. “We’re going to try to refute the argument made by their counsel, try to convince the commissioners, who don’t have to follow the advice of their attorneys, that we do in fact have a central business district. It is our rivers.”
And he said the city has serious problems on its rivers. Now the city is looking to the commission.to rec
ognize that the city has a problem and help fix it.
If the commission follows Bright’s advice Monday, and does not implement the ban, the city’s proposed ordinance dies, Akers said.
That would leave the city only a couple of other options. It could call an election to consider banning alcohol in the entire city, Akers said.
Or the city could go to one of its representatives in the state Legislature and lobby for a new law that allows cities to prohibit alcohol on state waterways that run through cities.
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