Something is very wrong in the Land of Cotton



Dr. Robert Bullard
Environmental Justice Movement Founder

New Business Alliance BARD Convinces JeffCo to Pull Out of SWMA

Birmingham News (AL)
December 10, 2006
Section News Page 1A
Volume 119
New business alliance flexes its muscle to get its way Foes accuse BARD of putting its desires above community's

Jeff Hansen News staff writer

Behind the scenes in the past 23 months, some of the Birmingham area's economic giants, developers, major landowners and utilities - worked to find a unified voice.
They found it in BARD, the Business Alliance for Responsible Development. 

Few in the region ever heard of the group before it lobbied successfully to substitute its own floodplain ordinance this year for one crafted by county planners. The group's instant clout drew attention and controversy.

Supporters say BARD promotes what they call reasonable growth, which the group sees as inherently good for the region and its people.
Detractors see it as a my-way-or-the-highway group, out to help its members build what they want, where they want, regardless of the long-term consequences.

But on one thing, both sides agree: BARD quickly emerged as a formidable force.
The group is well-funded, backed by some of the region's biggest businesses, and intent on continuing to use its now unified voice to influence change across the region.

''The fact that they have the strength of a lot of the business folks - the power company, the Chamber of Commerce, a lot of the members of the chamber - that's where their clout and their power come from,'' said former Jefferson County Commissioner Gary White. ''The business community in our area has had a lot of power for a long time; they just haven't flexed it collectively."
''I think, in this issue, they've flexed it collectively.''

The impetus
BARD formed in January 2005, when some business leaders were troubled by a study of the upper Cahaba River watershed, a major source of drinking water that the Birmingham Water Works draws from its intake on the river at U.S. 280.

Joel Gilbert and Rob Fowler, lawyers at the firm Balch & Bingham, attended the meetings about the watershed on behalf of the Birmingham Regional Chamber of Commerce. They felt that business voices went unheard, and Gilbert said he felt the ability of landowners to develop their property was being threatened.

Don Erwin, vice president of corporate development for the Barber Cos., agreed.
''I was one of the five businessmen on the advisory committee (for the study),'' he said. ''It didn't feel like a fair, impartial hearing.''
Such perceptions were the seeds for BARD.

The watershed study, funded by 23 local governments and the Birmingham Water Works, found there was a need to control new construction in the floodplain, create buffer areas alongside streams where development would be banned, and manage stormwater surges and pollution from places such as parking lots.

When a draft ordinance for floodplain protection was introduced by Jefferson County in the fall of 2004, Erwin and others grew more alarmed. The proposal followed a disastrous flood along Five Mile Creek in May 2003, which caused more than $1 billion in damage.

Business leaders felt that the proposed regulation would prevent new construction in most of the floodplain, a blow for many future residential or business developments. They feared the ordinance would become a model for towns, cities and other counties throughout the metro area.

Seeking a coalition
The Cahaba River Society, a nonprofit group begun in 1988 to restore and protect the river's watershed, disagreed. Members said it would balance growth with water protection, safeguarding the quality of drinking water in the upper Cahaba River and steering intensive growth to less-sensitive areas.

One of the businessmen worried about the proposed ordinance was Tom Howard, Southeast general manager for USS Real Estate, a subsidiary of U.S. Steel that developed Trace Crossings, Ross Bridge and The Preserve and owns more than 100,000 acres in Jefferson County.

''When you are the largest landowner in Jefferson County, and you have a very successful real estate business, you have to pay attention to rules and regulations that will affect that development,'' he said. ''But from the USS standpoint, our company couldn't oppose that alone.
''We needed a coalition.''
Howard's home office in Pittsburgh agreed and, in January 2005, Howard became one of eight board members of BARD, a 501(c)(6) nonprofit organization.

The board was packed with the business elite: Walter Johnsey, senior executive vice president of Drummond Co.; John Grogan, manager of environmental compliance for Alabama Power Co.; John Knutsson, a vice president of Daniel Realty Co.; Samuel Lowrey III, construction-infrastructure manager of Liberty Park Joint Venture; Joseph Saiia, president of Saiia Construction; William Crawford, then the executive director of the Greater Birmingham Association of Home Builders; and Joseph White, owner of Curtis White Cos.

Its bylaws require the BARD board to have one member from a public utility, two who are local developers, one from a home builder or developer trade association, and one from construction services.

A crisis from the start
BARD faced an immediate problem.
The proposed floodplain ordinance that they deemed too restrictive had been approved by the county Planning and Zoning Board and was headed for a Jefferson County Commission vote in May 2005.

The Cahaba River Society strongly supported the ordinance.
Johnsey, BARD's chairman, decided the alliance would function as a three-legged stool made up of science and engineering experts, skilled legal advice and an experienced public relations firm. BARD hired Lehe Planning, Walter Schoel Engineering Co. and Sain Associates for floodplain expertise and engineering, Balch & Bingham for legal advice, and Stephen Bradley & Associates for public relations.

''That's when we started to talk to Jefferson County staff and commissioners,'' said Balch & Bingham lawyer Gilbert.
''We testified about the impact of what they were about to adopt,'' Bradley said. ''We would go to those elected officials and say, 'We want you to be sure you understand what is at stake here.' . . . We have been attacked for doing that.''

That proposed ordinance never came to a vote. It would take until September 2006 for a substitute ordinance favored by BARD to reach the commission.

The substitute started as an alternative that BARD submitted, said Frank Humber, director of the county's land development office. Humber and then-Commissioner Mary Buckelew met with alliance officials several times to make some changes the county suggested, Humber said.

When the BARD-backed ordinance finally came to a vote, all four commissioners at the meeting approved it, despite opposition from environmental groups.

Beth Stewart, executive director of the Cahaba River Society, believes the BARD-backed plan poses a threat - worse flooding for existing buildings as new developments are built on the floodplain.
''It ignores the cumulative impacts of displacing water off onto other property owners,'' she said.

BARD disagreed, and stated its case to commissioners.
''What swayed me was the engineering reports,'' Commissioner Shelia Smoot said of her vote for the BARD-backed plan. ''I kept asking for technical data, not emotion, from BARD opponents. I never got that.''

Commissioner Larry Langford said BARD's big-name involvement had nothing to do with his vote. ''I don't know who BARD is, but that doesn't matter. What mattered for me was which one worked best for the community.''

On the offensive
While it was working to sway political leaders, BARD used its public voice to polarize the floodplain issue.

In a September 2005 opinion piece in The Birmingham News, Bradley called environmentalists such as the Cahaba River Society who were active in the upper Cahaba watershed study ''extremists,'' ''no-growth zealots'' and ''no-growthers (who) rammed through their agenda.'' He called their efforts ''underhanded'' and their case ''distorted.''
Bradley also said The Birmingham News had ''inaccurate and incomplete'' reportage about the issue, and ''wrongheaded'' and ''naive'' editorials.

That opinion piece, Bradley said, was a conscious, strategic decision.
''We decided to call them in public what they are - no-growthers,'' he said. ''I've always been an advocate of plain language.''

Stewart said the Cahaba River Society was disappointed with BARD's tactics.
''We say developers need to be a voice, but not the only voice,'' she said. ''Their negative approach, fear-mongering approach, has basically cut off the conversation.''

Three times in 2005, she said, the Cahaba River Society unsuccessfully sought compromise talks or mediation with BARD.
BARD refused all three indirect requests for discussions, Bradley said, because BARD felt the society couldn't be trusted and had little credibility.

The next battleground
Jefferson County's new floodplain ordinance covers property only in unincorporated areas. Cities and towns and the Shelby County Commission still are considering tougher floodplain regulations.

''One of our next initiatives is to go out to all the municipalities,'' said Gilbert, lawyer for BARD. ''We've spoken at the Jefferson County mayors' meeting. We've developed a model municipal ordinance (based on the county floodplain ordinance) for cities.''

The Cahaba River Society's Stewart said her group will push for cities to adopt floodplain regulations that are tougher than Jefferson County's.
''The decisions by mayors, city councils and developers will determine if the Cahaba River is saved,'' Stewart said.

BARD is tackling other issues as well:
-- It has joined in a lawsuit against the Storm Water Management Authority, a coalition formed by 27 local governments in Jefferson County to monitor and reduce polluted-water runoff as required by the federal Clean Water Act. The suit charges that the authority overstepped its mandate and illegally increased its fees. The Cahaba River Society has asked permission to intervene in the lawsuit in support of the authority, only the third time in 18 years that the society has litigated.

-- BARD's attorneys have gone to council meetings of nearly every SWMA member to encourage them to pull out of the coalition. Two of the largest members, Jefferson County and Hoover, have decided to pull out; Hoover Mayor Tony Petelos said BARD had nothing to do with his city's decision.
-- BARD has drafted a model ordinance for buffers around streams and rivers in Jefferson County.

Paying to grow
One key to BARD's success: Money.

Dues are $12,000 a year for full members and $6,000 a year for associate members. Since it was formed, its membership has grown to 16 full members and three associates.
Among its new members are; Alabama Associated General Contractors, Alagasco, Alabama Coal Association, Stonegate Realty, Barber Cos., Thompson Tractor Co., RealtySouth, Tractor & Equipment Co., and Associated Builders and Contractors as full members. Associate members are the Birmingham Association of Realtors, the Coalbed Methane Association of Alabama and Sherman Industries.

BARD wants its membership to grow. The group recently held a recruiting meeting at the Barber Motorsports Park. As many as 50 companies were invited, Bradley said.

''Everyone in that room had benefited from what BARD is doing, and we felt they ought to help fund the effort,'' he said.

Erwin of Barber Cos. gave a PowerPoint presentation that portrayed slow growth in the Birmingham metro area as a worry for the overall community, as well as his own company.
''Our company has a lot of assets in the Birmingham MSA,'' he said recently. ''How are we going to be prosperous if the Birmingham MSA doesn't grow?''

Howard of USS Realty said the money his company has spent on BARD has ''been a very good investment for us.'' He said growth is important for both the companies and the region.

''We tell cities,'' he said, ''that what's good for us is, in almost every case, good for the city.''
News staff writer Michael Tomberlin contributed to this report.
WHO IS BARD? Here are the members of the Business Alliance for Responsible Development:
Saiia Construction
Liberty Park Joint Ventures
Drummond Co.
Daniel Realty Co.
USS Realty
Greater Birmingham Association of Home Builders
Alabama Power Co.
Alabama Associated General Contractors
Alabama Coal Association
Stonegate Realty
Barber Cos.
Thompson Tractor
Tractor & Equipment
Association of Builders & Contractors

Birmingham Association of Realtors
Coalbed Methane Association of Alabama

2006, Birmingham News Record Number: MERLIN_3756510