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 Lawsuit Alleges Open Meetings Violation

Yet another instance of agenda posting
not sufficiently detailed for public notice

by Ken Martin
© The Austin Bulldog 2017
Posted Tuesday June 6, 2017 3:00pm

Potential Plaintiff to City of Austin: Like to settle instead of getting sued?

City to Plaintiff: No thank you.

The plaintiff in the latest lawsuit against the City of Austin made a settlement offer before filing the litigation and gave the City 45 days to accept one of two options: (1) Cancel the City Council’s approval given November 10, 2016, and repost with proper notice of the proposed waivers of sections of two city ordinances. Or (2) Accept an Agreed Judgment.

By not responding to the offer, the City will have to face off in court.

Bill AleshireBill AleshireThe lawsuit, Lake Austin Collective Inc. v. City of Austin (Cause No. D-1-GN-17-002447) was filed in Travis County District Court yesterday by Austin attorney Bill Aleshire of Aleshire Law PC.

Anne MorganAnne MorganCity Attorney Anne Morgan did not respond to a request for comment about the lawsuit and instead funneled a written statement through a City spokesperson: “The City of Austin appreciates having had the opportunity to review the issue before the plaintiffs filed the lawsuit, but we disagree with Mr. Aleshire’s interpretation of the Texas Open Meetings Act.

“We believe the City gave appropriate public notice about the subject matter to be discussed. In fact, the record shows that this issue had a robust public engagement process,” the statement said.

Aleshire disagrees.

“The City Attorney said the same thing about the Pilot Knob open meetings lawsuit and lost. The ‘robust’ discussion of environmental waiver the City claims occurred did not start with or ever involve the boards and commissions before the Council let the Champion developer slip those waivers (of the Lake Austin Watershed Ordinance and Hill Country Roadway Ordinances) in on third reading. Part of the robust engagement process was just trying to find out what kind of backroom deal the developer and the Council majority was cooking up.”

Plaintiff Lake Austin Collective Inc. is a Texas nonprofit whose certificate of formation was filed with the Secretary of State March 17, 2017. The registered agent is Marisa Lipscher. Board members are Linda Bailey, Susan Kimbrough, and Carol Lee. All are property owners affected by Council’s approval of zoning for the nearby Champion Tract.

(Disclosure: Aleshire represented The Austin Bulldog in two lawsuits filed in 2011 against the City of Austin for it’s violations of the Texas Public Information Act. He currently represents the Bulldog to intervene in County Attorney David Escamilla v. Attorney General Ken Paxton, in which the county attorney seeks to close the courtroom and permanently seal all records to be considered in the hearing.)

Key points at issue

The overarching issue in the lawsuit is the claim that concealing the waiver of environmental rules entailed in Champion Tract rezoning did not provide adequate public posting under the Texas Open Meetings Act.

Further, the zoning application was taken up directly by the Council and not presented to the Planning Commission beforehand, Aleshire said.

The application initially asked for the entire tract to be rezoned. But, faced with a valid petition of 25 percent of the opposing property owners, zoning approval would have required an affirmative supermajority vote of three-fourths of the council members.

The applicant dodged the supermajority requirement by redrawing the area to be rezoned—just two days before the third and final reading—to include 205-foot setbacks from the tract’s boundaries, Aleshire said.

Agenda Item 6 for the November 10 meeting was posted as follows:

Approve second and third reading of an ordinance amending Ordinance No. 960613-J and authorizing execution of the first amendment to a settlement agreement relating to the development of property located at 6409 City Park Road (Champion Tract). Related to Item #43

The minutes for that Council meeting indicate Agenda Item 6 was approved on a vote of 7-4—two votes shy of the supermajority of nine needed in cases opposed by a valid petition.

But the agenda item description did not state that approval also entailed granting variances to the Lake Austin Watershed Ordinance and the Hill Country Roadway Ordinances.

Not the first violation

“Chalk this case up to the category, “Some People Just Never Learn,” Aleshire wrote in the petition. “The Austin City Council has struggled for years to avoid compliance with the Texas Open Meetings Act.”

Stephen YelenoskyStephen YelenoskyCase in point: The vote on the Champion Tract rezoning was on the same agenda in which the Council reconsidered its prior vote on the Pilot Knob development. A lawsuit filed over the latter development, Rodgers v. City of Austin (Cause No. D-1-GN-16-000615) caused its approval to be voided by State District Judge Stephen Yelenosky because the agenda item description failed to alert that public that approval also would grant $50 million to $80 million in fee waivers for the Easton Park development in southeast Austin.

On the same day the Council was fixing the problem created by failure to properly inform the public of the potential fee waivers for Pilot Knob, the Council made the same mistake in describing the variances entailed in the Champion Tract rezoning, the lawsuit states.

Brian RodgersBrian RodgersThe City Council previously followed an institutionalized practice in which each council member met with every other council member before every council meeting to discuss the agendas in private, closed-door meetings. The Austin Bulldog exposed that practice with an investigative report published January 25, 2011, and Brian Rodgers, the plaintiff who won the Pilot Knob decision, filed a criminal complaint about it.

David EscamillaDavid EscamillaCounty Attorney David Escamilla’s office spent 20 months investigating the matter and publicly announced the mayor and council members had signed deferred prosecution agreements to avoid being charged, prosecuted, and if convicted fined and being sentenced to one to six months in jail. Such conviction would also have required removal from office.

The Austin Independent School District made the same sort of posting error in hiring a new superintendent for the district under an agenda item that described an innocuous “personnel matter.” The Austin American-Statesman’s parent company sued and won the case, which went all the way to the Texas Supreme Court [706S.W.2d 956 (1986)]. Escamilla said that case established an important precedent, in that, “As the community interest in an agenda item is greater, so is the responsibility to be more specific in the agenda posting.”

Links:

Plaintiff's Original Petition for Mandamus and Discovery Requests, Lake Austin Collective Inc. v. City of Austin (87 pages)

Settlement Offer Letter April 3, 2017 (2 pages)

Lake Austin Collective Inc. Certificate of Formation (3 pages)

Related Bulldog coverage:

New Open Meetings Violation Alleged: City of Austin again accused of insufficient notice of agenda item, April 3, 2017

Deferred Prosecution Ends Open Meetings Investigation October 24, 2012, with links to 35 previous stories about the City of Austin’s problems and progress in dealing with open government issues. This story also includes links to the seven deferred prosecution agreements.