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Court rules Hays Commissioners

Friday, February 16, 2001 by

Violated Open Meetings Act

HCWPP wins at Court of Appeals

The Third Court of Appeals ruled Thursday that the Hays County Commissioners Court violated the Texas Open Meetings Act in 1999 by discussing a matter that was not properly posted on the court’s agenda, according to Phil Durst, attorney for the plaintiffs.

In its ruling, the court gave a long-sought victory to the Hays County Water Planning Partnership (HCWPP) and overturned a decision by visiting Judge Chuck Miller, who ruled last year that the Commissioners had not violated the Open Meetings Act. (See In Fact Daily April 25, 2000)

Durst, of Wiseman Durst Tuddenham & Owen, said the opinion will send the case back to Hays County for a hearing on a remedy and attorneys’ fees, Durst said.

HCWPP first filed suit against the Commissioners because County Judge Jim Powers and Commissioners Russ Molenaar and Bill Burnett attended an event at the Salt Lick Restaurant hosted by the Newhall Land and Farming Company. That meeting was on August 12, 1999. At the time, Newhall had an option on 6,000 acres of the Rutherford Ranch, which was planned for development. A few days after the meeting, HCWPP filed suit because a quorum of the Commissioners Court was present but the meeting was not posted as a meeting of the court. Newhall later gave up its option.

On October 26, 1999, a notice was posted for a Commissioners Court meeting that showed there would be a “presentation by Commissioner Russ Molenaar.” Lee Crawford, who lived in the Crosshouse Estates, asked the Commissioners if they intended to discuss the 2025 Road Plan. Crawford was told there would be no discussion about the plan and he left the meeting, according to Erin Foster, chair of the HCWPP. After the citizen left, Molenaar discussed the plan, including the extension of MoPac. Foster said Crawford lived about 20 feet from the planned four-lane road. She said the original suit was amended to include the events of October 26, and HCWPP appealed based on those events.

Foster said, “We were standing up for the right of the people. We really want to know what’s going on at the Court. Maybe this will help them (Commissioners) understand that. Sometimes vigilance is the price of freedom. It's taken a lot . . . We've had some pretty hefty legal bills.”

The ruling by the Court of Appeals overturns a decision granting an order for summary judgement in favor of the Commissioners. Durst said he believes the case will return to Judge Miller, since all Hays County District Judges have previously recused themselves. Whatever judge hears the case will only be deciding on a remedy, such as an injunction to prevent further violations of the law, Durst said.

Due to the late hour, In Fact Daily did not contact Hays County officials.

Split City Council

OK's new towing fees

4-2 vote means plan approved could still change

The City Council spent nearly two hours discussing the towing ordinance Thursday before voting 4-2, on first reading, to approve a substitute motion made by Council Member Danny Thomas which would increase “non-consent” towing fees by 46 percent.

The proposed ordinance is to go into effect March 15, but only after council approval on all three readings, or if it garners at least five affirmative votes. Mayor Kirk Watson was absent, attending a conference in Madison, Wisconsin.

The ordinance pertains only to “non-consent” towing, or “police-initiated” towing, such as when a vehicle is towed from the site of an accident or from an illegal spot. The city does not regulate consumer-requested towing.

Thomas, who noted his 21 years of experience with towing companies during his tenure as an Austin police officer, amended the proposed ordinance by pushing the set rate for basic towing from $65 to $95. Staff had recommended an increase of 31percent to $85. Thomas’ substitute motion also deviated from the staff recommendation by shifting a new $35 surcharge for flatbed wreckers to a citywide fee, at all times, rather than just for “rush-hour rotation” in stipulated heavy traffic zones.

Council Members Raul Alvarez and Daryl Slusher, who voted against the substitute motion, expressed concern about the steep rate of increase. “I don’t think Austin needs to be the city in the state with the highest towing fees,” said Slusher. Staff worked hard and did a thorough job, he said, so he was in favor of going with the staff recommendation.

Alvarez proposed a substitute motion of his own, calling for the $85 towing fee recommended by staff, with only a $25 flatbed fee. He said he couldn’t support Thomas’ motion because a jump from $65 to $95 was too much—especially considering that when adjusted for inflation (and set by the Consumer Price Index of 16.1 percent), the fee would go up only $10. For the fee to go up not just by $10, but by a leap of $30 was too much, he said.

Thomas said that after 21 years of police work he knew from experience that timing was a critical factor in incident management. He said safety was the main issue. Having higher fees to increase response time and to provide incentive for flatbed tow trucks to participate, which means quicker and safer accident clean up during rush hour, was more important, he said. The longer it takes to clear out an accident site, the more danger there is of another accident, he noted. “I-35 is very dangerous,” he said, “we’ve had officers lose their lives there.”

Safety is a primary issue, Alvarez agreed, but “I want to make sure we also look at the issue of affordability,” he said.

Thomas said the issue of money was not as important. “You talk about $10—most of this will be paid by insurance.”

Deputy City Manager Toby Futrell, presenting the staff recommendation, said staff got together with towing companies from all over the city and had a public hearing a week ago. This ordinance will make “a dramatic reduction” in the amount of time it takes to get cars off the road, she said. “It’s going to be a huge step . . . we’re very excited about it,” she said. “We think rush-hour rotation is going to be a huge boon.”

One of two significant changes in this proposal is a regular review period of two years, Futrell said, which will eliminate the current economic disparity towing companies are now experiencing. The last review of rates in ratio to the existing economic environment was in 1994, she said. By having more frequent reviews the city and the industry will no longer have to play catch up, she said.

The police chief will also now be able to make changes in the procedure without having to get City Council approval, Futrell said. This should allow the industry to become more nimble.

The $35 surcharge for flatbed wreckers spawned “a fairly hot debate in the towing industry,” she said. But when she talked to police officers about benefits of flatbeds, a hundred percent of them said, “they are grateful when a flatbed shows up.” They are faster and take up fewer lanes of traffic while clearing an accident, so the “additional time and safety” gained was the determining factor, she said.

“Flatbeds are much faster and much safer,” said Dan Digman, with Southside Wrecker, and representing the Austin Towing Association. In addition, most new cars require the use of flatbed tow trucks to maintain a valid warranty, he said.

But flatbeds are expensive, up to $89,000 each, according to Cathy Creamer, who’s been in the business since 1978. To remain competitive, flatbeds are necessary, she said; too many warranties are voided nowadays by using standard tow trucks. “I hate to ask you to play catch up, but that’s what we have to do,” she said. “Safety is safety is safety,” she said, “you’ve got to send the right equipment,” and more and more, that means a flatbed.

Creamer said her company’s business costs have increased tremendously over the last few years while the fees she can charge have remained fixed at a low rate by city regulations. Her husband sometimes works 20-hour days on the business, she said, and it’s still difficult to keep up.

Judy Machen, president of the Austin Towing Association, agreed. The cost increases in fuel, equipment, payroll and workers’ compensation have made it difficult to make ends meet, she said. “We have to make up money we’ve been losing,” she noted, emphasizing the increasing need to use flatbeds, despite the expense involved.

Council Member Beverly Griffith commented on the stipulation in the ordinance requiring wreckers to reach an accident site during rush hour within 20 minutes. “As I remember, the goal for last year to get wrecks off the road was 30 minutes,” she said. “We’re going in the wrong direction . . . we were trying for 30 and went from 44 to 47,” she noted, stressing the need to do what’s necessary to reduce response time.

For zoning junkies only

Most cases put off until March

In the last of a series of lackluster City Council meetings, the Council postponed a number of contested zoning cases. A number of cases were postponed to March 1 or March 8. There will be no Council meeting next week. The following were approved on the consent agenda with Mayor Kirk Watson out of town:

• 1901 Mariposa Drive from I-SF-3 to MF-3 (3 readings) • 609 W. 9th Street from GO to GO-MU (3 readings) • 1216 W. Slaughter Lane from DR to LR-CO (3 readings) • 7525 W. Hwy 71 West from RR to GO-CO (3 readings) • 6901 Guadalupe from SF-3 to MF-1-CO (1st reading only) • 7003 Guadalupe from SF-3 to MF-1-CO (1st reading only)

©2001 In Fact News, Inc. All rights reserved.

Unhappy anniversary . . . PODER (People Organized in Defense of the Earth and Her Resources) is celebrating the 8th Anniversary of struggle against the East Austin Tank Farm. On Saturday at noon, the group will rally at the intersection of Springdale and Airport Blvd. Next Tuesday, PODER will celebrate with a party at the Conley-Guerrero Senior Activity Center from 6-8 p.m. . . Mayoral Masquerade . . . Mayor Kirk Watson and his wife, Liz, will rein as king and queen of the Mardi Gras Austin Masquerade Ball at the Intercontinental Stephen F. Austin Hotel this evening. Proceeds from the event will benefit the Pediatric AIDS League . . . Slusher goes to Rap Session. . .To celebrate Black History Month, Council Member Daryl Slusher will participate in a rap session with Guru, a founding member of the GangStarr. The event, sponsored by Hip-Hop Mecca Promotions, will be at the Victory Grill, 1104 E. 11th Street from 4-6 p.m. Saturday . . . Technology meets Realty . . . Tech-Space Solutions, which was founded in New York in 1997, is coming to Austin in April. The company concentrates on assisting internet companies in recruiting, marketing and locating short-term offices. Tech-Space is currently remodeling the building at 301 San Jacinto, according to Paul Lyne, marketing and sales associate . . . Motorola Marathon . . .Hordes of running citizens will delay traffic Sunday morning beginning at 7 a.m. at U.S. 183 and Loop 360. The runners will continue through town along Shoal Creek Blvd, 45th Street, 26th Street and Guadalupe. Finally runners will head down Congress to 6th Street, finishing at Zilker Park. For more information, visit http://www.motorolamarathon.com . . . Children’s Museum welcomes new director . . .At Thursday’s Council meeting Will Wynn, a former director of the Children’s Museum, introduced Gwen Crider, the new executive director of the Children’s Museum. Crider, who came here from the East Coast to take the position, said it wasn’t easy to leave her roots and her family back east, but she was pleased to have the opportunity to be director of this “nationally acclaimed institution.”

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