By Jo Clifton
Originally published June 6, 2017
A group of Lake Austin homeowners on Monday sued the city of Austin, claiming that the city’s notice concerning the zoning and waiver of environmental regulations on what is known as the Champion tract, was inadequate and therefore violated the Texas Open Meetings Act.
According to the lawsuit filed by the Lake Austin Collective Inc., when City Council approved new zoning for the tract on City Park Road on Nov. 10, the notice failed to mention that it would also be approving waivers of environmental regulations as well as the Hill Country Roadway Ordinance.
As the Austin Monitor reported in April, the group notified the city of its intention to sue and gave Council 45 days to post the item on its agenda again with notice of the pertinent waivers. However, the city failed to do so.
The claims are very similar to the allegations made by Brian Rodgers when he sued the city for violating the Open Meetings Act after Council approved the zoning changes and diversion of money from the Austin Water Utility for affordable housing at Pilot Knob. The city lost that case and Council then reposted the item, minus the diversion of utility money, and approved it once again on Nov. 10, the same day it approved the Champion tract zoning change.
Attorney Bill Aleshire, an open meetings expert, filed both suits.
Although they do not usually comment on pending litigation, a spokesperson for the city released the following comment: “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.”
There were two items on the Nov. 10 agenda related to the Champion tract. One of those was the zoning case and the other was an ordinance authorizing adoption of an amendment to the settlement of the lawsuit Josie Champion and her sisters filed against the city in 1994.
The Lake Austin Collective’s lawsuit points out that the caption of the ordinance Council adopted includes the following notice: “… and waiving certain sections of City Code Chapter 25-2 and Lake Austin Watershed Regulations …” Chapter 25-2 refers to zoning regulations, including the Hill Country Roadway regulations. Although waiver of the watershed regulations and Chapter 25-2 was noted in the caption, that information was not part of the meeting notice.
The Lake Austin Collective argues the Nov. 10 adoption of the zoning ordinance and the waiver of environmental regulations should be declared void because of the city’s failure to include that notice on Council’s agenda.
According to the lawsuit, “The Council’s action was highly significant because it endangers the Lake Austin water supply, increases traffic dangers, sets a precedent for granting waivers and variances that were never considered by the appropriate commissions.”
The lawsuit points out that in the posting of various other zoning items on their agendas, the city has included similar language. The posting for the Villas at Vinson Oak said, “the ordinance may include waiver of fees.”
And when Council approved the zoning for the contentious Grove at Shoal Creek planned unit development, the posting said, “The ordinance may include exemption from or waiver of fees, alternative funding methods, modification of City regulations, and acquisition of property.”
In another controversial case, the Austin Oaks PUD, the agenda stated: “The ordinance may include waiver of fees, alternative funding methods, modifications of City regulations, and acquisition of property.”
The lawsuit also alleges, “The City Council deceived the neighborhoods and gamed the system of citizen review of such developments.” This section of the plaintiff’s petition notes that the zoning change and other changes were approved by a simple majority, with a 7-4 vote. Council members Sheri Gallo, Ora Houston, Ann Kitchen and Leslie Pool voted no.
If the developer had not pulled back the area to be rezoned from the boundaries of the property by a little more than 200 feet, the neighbors would have had a valid petition and four votes would’ve been enough to reject the zoning and other changes. It was not City Council, but the attorney for the developer, Richard Suttle, who changed the area to be rezoned. He is not the first to employ this tactic and it is legal. However, the petition says the neighbors were not aware of the revised map until they got to the Council meeting.
“Because the Council majority condoned the surreptitious tactics, with only last-minute exposure of what was really being done, not only did the super majority vote not apply, but Plaintiff’s members and others were barred from providing formal input before the Council voted on the final ordinances,” the lawsuit states.
The variances and waivers approved on Nov. 10 were not reviewed by any land use commission, such as the Zoning and Platting Commission or the Planning Commission, as would normally be the case. Plaintiffs say, “Council not only violated the (Texas Open Meetings Act) notice provision but the importance of the action the Council took is enhanced because it bypassed the City lay-person commissions for review and recommendation before such variances and waivers are granted.”
Plaintiffs are seeking not only to have the Council action on the Champion tract declared void but are also asking for “an injunction to prevent such Council actions in the future.”
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