Judge voids Austin’s approval of development, citing Open Meetings Act violation

By Elizabeth Findell
Austin American-Statesman
Originally published Nov. 21, 2019

Austin city leaders did not give the public a proper heads-up about their intentions before voting to waive environmental regulations for a controversial housing development, a judge ruled Tuesday.

The ruling marks the second time in just over a year that the city of Austin has been found to have violated the Texas Open Meetings Act in approving a development plan. Both suits came from former Travis County Judge Bill Aleshire, an open government attorney.

In yet another Open Meetings Act case, the American-Statesman is suing the city alleging violations during a Nov. 2 executive session to conduct interviews of city manager candidates. Intent on evading the media and keeping the candidates secret, City Council members raced away from the posted meeting location in vans to an undisclosed location, later found to be a meeting room behind federal security checkpoints in the Austin-Bergstrom International Airport.

Mayor Steve Adler could not be reached Tuesday for comment. The city issued an email statement saying officials are still figuring out their next steps.

“While we are disappointed in the ruling, we appreciate the court’s thoughtful consideration of this matter,” it said. “We are committed to following the Open Meetings Act. In light of the judge’s decision, we will assess our options, and will advise council accordingly.”

Aleshire challenged Austin in June over the agenda posting for the vote on the Champions tract development, a planned apartment complex near RM 2222 and Loop 360. On behalf of a local watchdog group called the Lake Austin Collective, he argued the zoning change the city posted ahead of the meeting gave no indication that the council might waive watershed regulations to allow more of the site to be covered by pavement and buildings — which it did.

Aleshire first asked council members to simply redo the vote. When they declined, he sued.

“Chalk this case up to the category ‘Some People Just Never Learn,’” Aleshire wrote in the opening line of the lawsuit.

After hearing arguments from Aleshire and Assistant City Attorney Matthew Tynan last month, Travis County state District Judge Scott Jenkins this week ruled for Aleshire and declared the vote on the tract void. It was not immediately clear how that could affect the development.

The ruling comes after a similar one last year, which overturned the council’s vote to grant utility fee waivers of $50 million to $80 million for the Southeast Austin development Easton Park, also known as Pilot Knob.

A judge ruled that, because the posting mentioned only rezoning of the property, the city did not give the public enough notice to weigh in on the fee waivers. At that time, Adler characterized the violation as a simple mistake that could be cleared up by holding another council meeting and reconsidering the matter.

The council voted on the Champions development on Nov. 10, 2016 — the same day it voted on a redo of the Easton Park zoning, minus the fee waivers that had been overturned. The fee waivers never returned for another vote from the council.

“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,” Aleshire wrote in an email statement Tuesday.

Monday, he filed a motion requesting the city pay $8,323 in attorneys’ fees related to the lawsuit over the Champions vote.

Aleshire added that any similar cases that have occurred within the last four years — that’s the statute of limitations for Open Meetings Act cases — could still be vulnerable to being declared void, so even developers and lobbyists should want more detailed wording on council agendas.