Statement by counsel for Plaintiff, Lake Austin Collective, Inc., Bill Aleshire:
Today, Judge Scott Jenkins ruled (see attached) that the City of Austin violated the Open Meetings Act by not disclosing on its agenda (November 10, 2016, agenda item 6) that Council was granting environmental waivers to the developers of the Champion Tract. The agenda item said:
“6. 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.”
That arcane wording hid what was really going on. Judge Jenkins’ Order declares “void” the action the Council took on that item to grant the developer waivers to the Lake Austin Watershed Ordinance and the Hill Country Roadway Ordinance. If the developer is going to get those waivers, they will have to convince Council to put it back on their agenda, with proper disclosure, and have Council vote on it again.
This is the second TOMA court ruling I’ve obtained against the City in the last year, after Judge Yelenosky ruled that the City committed the same violation by granting waivers to the Pilot Knob development without disclosing that on its meeting agenda. In that case, the plaintiff, Brian Rodgers, filed the lawsuit but immediately offered to drop it if the Council would simply repost the item with honest disclosure of the $100 million fee waivers they were granting. The City refused to settle and lost the lawsuit.
This case brought by the Lake Austin Collective, Inc. (a nonprofit organization of residents in the vicinity of the Champion development) is particularly bad for the Mayor and Council. The Council let the developer move the zoning back 205 feet from the property line the day of the final vote, so a super-majority vote of Council was not needed, despite there being a valid petition signed by adjacent landowners. Champion would have lost if Council had not let the developer pull that trick. And the Council approved the environmental waivers without them ever being reviewed by any City commission.
Then, before filing suit, we sent a draft of the lawsuit to the City Attorney in April and offered the City an opportunity to avoid the litigation altogether if they would simply repost the agenda item correctly and take another vote. We gave them 45 days to comply with the settlement offer, but they rejected that. So, 60 days later, suit was filed with the opening line in the lawsuit: “Chalk this case up to the category, ‘Some People Just Never Learn.’” In addition to voiding the Council action on the Champion Tract, we are asking Judge Jenkins to award about $8,400 in attorney fees and court costs against the City to the Lake Austin Collective. There is also an injunction in place to prohibit the City from issuing a site plan for Champion since the site plan would depend on the voided environmental waivers.
The Mayor and City Manager put out the meeting agendas, and Council votes using that agenda. The Mayor and Council could always insist on more honest disclosure of topics on their agenda, regardless of what technical legal advice, erroneous or not, they get. The lesson the Mayor and Council should learn is:
On Council meeting agendas, don’t try to hide waivers to developers by not clearly giving public notice, because, if you do, you’ll be back in court every time and Council’s vote will be voided.
And I would remind them, that every agenda item they mishandled like this in the last 4 years (the statute of limitations for TOMA actions) is still vulnerable to being declared void. Thus, even developers (and their lobbyists) should want honest wording of agenda items to avoid situations like the Pilot Knob and Champion developers are in.
A recent audit showed that the City is not even keeping track of all of the waivers it gives developers, effectively making those “secret waivers” undiscoverable by a public information request. But the Council won’t be able to keep developer waivers secret on their meeting agendas anymore, because it violates the Texas Open Meetings Act, and Austin citizens will not let that keep happening.
True transparency should be achieved just with the right attitude about public service, but if a good attitude is missing, then the Courts are available. One must wonder what kind of commitment Mayor Adler has to open government that he continues to stubbornly approve agenda wording that hides the fact that Council will be considering fee waivers and environmental waivers to developers and hiding out for interviews for City Manager. How could someone do that and then campaign as a champion of open government? I guess we’ll see next year.