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Judge rules Charter provision not in conflict with state law

Monday, February 11, 2002 by

District Judge Suzanne Covington ruled Friday that the City Charter provisions requiring two-term incumbents to collect signatures from 5 percent of the city’s registered voters are valid. The decision dampened the hopes of Council Members Jackie Goodman and Daryl Slusher and their supporters that they could discontinue their arduous task.

The Austin Police Association (APA) and the Combined Law Enforcement Associations of Texas (CLEAT) had filed the lawsuit. Attorney John J. “Mike” McKetta of Graves Dougherty Hearon and Moody argued on behalf of the APA that state law should trump the City Charter. The charter, as amended by voters in 1994, calls for two-term incumbent Council members to obtain signatures from five percent of the city’s registered voters if they desire to run for re-election. State law specifically mentions a much lower figure, but the judge decided the City Charter should be followed. “The provision of the election code that the plaintiffs were relying on is directed at petitions that can be submitted in lieu of a filing fee,” Assistant City Attorney David Smith said.

Although the charter amendment was passed in 1994, it is just now facing its first application. Council Members Beverly Griffith, Slusher, and Goodman are all seeking enough signatures to be allowed to run for re-election. However, none of those candidates had any involvement in the lawsuit by the APA and CLEAT. “No candidates were party to the lawsuit,” Smith said. “None of the evidentiary stipulations involved particular candidates . . . the ruling absolutely was strictly on a point of law.”

Detective Mike Sheffield, head of the APA, said his group would respect the judge’s ruling, but he still had concerns about possible unintended consequences of the 1994 campaign-reform measure. “It’s an important issue of fairness, and our system should be fair to all,” Sheffield said. “Some candidates have wealth, some don’t . . . and the ones that are wealthy will be able to overcome this.”

Council Member Beverly Griffith has been the most successful so far at collecting signatures. Griffith said her campaign has obtained more than 20,000 signatures, but intends to collect several thousand more to allow for the probability that a percentage of the signatures would not be valid.

The exact number needed is unknown because City Clerk Shirley Brown must call Travis County and ask for its count of registered city voters in order to determine the magical 5 percent. The Charter amendment does not give Brown a date on which to call for the number, nor does it tell her whether the number could change, so that a petitioner delivering signatures on one day would be required to have a different number than one delivering names on another day.

Brown has told In Fact Daily that she would be calling the County Clerk’s office this week to find out what the number is, and that she would use the same number for all three incumbents. But the lawsuit filed by the Austin Police Association Political Action Committee did not address the question. The suit argued that there is a conflict between the City Charter and state law, and that state law must prevail. State law for other candidates seeking to be on this May’s Council ballot requires that they gather only 178 signatures.

Covington made it clear that she was not ruling on problems with determining the number of signatures, the basic constitutionality of the regulation or any other matter not before her. She said, “I’d also like to note that this case deals only with questions of whether the City Charter is inconsistent with state law . . . the charter provision has not been attacked on any other basis; for example, it’s not been attacked as unconstitutionally vague because it’s impossible to know how many signatures are required because the number of registered voters can change from day to day. I deal only with the issue that the attorneys presented today.” Covington said she could read the provisions of state law and the charter in a way that could allow both to stand, and denied the APA PAC’s request for an injunction.

The ruling in favor of the citizen-passed term-limits provision was applauded by representatives of the Save Our Springs Alliance, who had filed a “friend of the court” brief in favor of the city. Bill Bunch, SOS Executive Director, said a ruling against the voter-approved term limits could have emboldened developers interested in attacking the SOS Ordinance. “We didn't want any bad precedent to emerge that would reduce any of the protection offered by the city's home-rule powers,” Bunch said.

Former Mayor Bruce Todd, who was in the audience during the hearing, immediately filed papers for a new political action committee, the Committee for Voter Choice. He is the treasurer. He said the group would make every effort to secure enough signatures to ensure that Goodman and Slusher would be on the May 4 ballot. The deadline is March 20, but Brown is hoping the signatures will come in at least a few days early, so she will have time to count them.

Todd, who once faced Slusher as a mayoral opponent, said, “These two candidates have served this community admirably. They deserve the right to run for another term.” Furthermore, he said he was troubled that the present law “requires a greater number of signatures than is possible to obtain unless the candidate has substantial personal wealth to fund such an effort. Qualification for running for office ought not to be based on someone’s financial position.”

Sara Cowles, who works for Todd, is temporarily in charge of the committee. Todd said the group most needs workers to collect the signatures. Those workers will receive one dollar per signature, just as have Griffith’s, he noted.

At a fundraiser/signature gathering party at Antone’s last night, both Slusher and Goodman said they were “more than halfway there” in gathering the necessary signatures. Slusher said he believes they can reach the required number, adding that the rate they’ve been coming in has picked up recently.

Goodman offers new twist On billboard ordinance changes

Competing sign companies unhappy with new system

In some political battles, both sides claim victory. But in last week’s third round of City Council consideration of changes to the city’s complex billboard ordinance, both sides are claiming disappointment—if not outright defeat.

The crux of the argument between the Reagan Outdoor Advertising and a number of smaller companies is whether the city should allow the replacement of billboards, and if so, at what rate. A Planning Commission committee worked for several months on a new version of the ordinance, recommending that signs not on scenic roadways or in historic districts be replaced only on a two-for-one and three-for-one basis. However, the whole commission rejected that version, recommending a hybrid version that would allow replacement if a monopole sign were removed, or a sign on a scenic roadway coupled with another. The alternative recommendation was for a replacement one-for-one replacement with 25 percent reduction in area.

On Thursday Mayor Pro Tem Jackie Goodman made a motion to change the ordinance so that any sign replaced on a one-for-one basis would have to be reduced by 25 percent in both length and width—a 44 percent reduction in area.

Council Member Will Wynn, who had tried unsuccessfully to eliminate the one-for-one provision altogether on the first two readings of the ordinance, seconded Goodman’s motion. Mayor Gus Garcia and Council Member Raul Alvarez joined Goodman and Wynn in voting for the revised ordinance. Council Members Beverly Griffith and Daryl Slusher voted no. Council Member Danny Thomas abstained, as he did on the prior to votes on the ordinance.

Sarah Crocker, who represents Acme Signs, was not pleased with the changes. “We were disappointed that they put the dimensional aspect in there and we’ll have to wait and see over the next year how many signs come down. My clients are going to have to weigh the economic impact; and we’ll have to wait six to eight months to see if the ordinance that was passed will actually have any impact on signs,” said Crocker. “I would hope that after we’ve had about a year and we haven’t had any signs removed, and we haven’t had any reductions that the City Council would take another look at the ordinance if it doesn’t achieve the goals that it set out to achieve.”

John Joseph Jr., who represents Reagan, told In Fact Daily, “We didn’t consider that a victory at all . . . What we want is no replacement period . . . We were frustrated and fatigued by the whole process. We are going to do what we’ve done in the past,” keep doing business here, in spite of the difficulties the company feels are imposed by the ordinance. “Granted, the Mayor Pro Tem feels that this better achieves the purpose of the ordinance, but we’re not expecting this to run any of the other companies out of town.” Basically, Joseph said, the city should not be involved in competition between billboard companies.

Planning Commissioner Lydia Ortiz, who supported removal of the one-for-one provision, commented, “I think it’s a good compromise.” She was also happy that signs replaced on a two-for-one or three-for-one basis will be reduced by 25 percent in area.

The other provisions of the new ordinance, which eliminates appeal of the department director’s decisions to the Sign Review Board, were approved without discussion.

ZAP sides with northside neighbors

In declining to recommend ballroom use

Landowner wants to convert auto sales lot next to flea market

Northeast neighbors last week won a preliminary round in their fight to keep a reception hall out of their neighborhood, saying the establishment would only intensify current traffic problems.

Humberto Suarez wants to convert the auto sales business next to the Austin Country Flea Market on US 290 East, a move that frustrated neighbors who already deal with the chronic traffic issues around the flea market. Suarez and the Northeast Action Group came to an agreement to bar a variety of uses on the land, with one exception.

Suarez agreed to avoid uses like a liquor store, a pawnshop, a cocktail lounge or transitional housing, but he didn’t want to rule out the possibility of a reception hall that could be used for wedding receptions and quinciñearías. Adan Castaneda of AIC Designers, who represented Suarez before the Zoning and Platting Commission, said Suarez would like to consider building a ballroom that could be rented out for events. Zoning would thus include, Castaneda admitted, the possibility of alcohol being served on the premises at catered events.

Neighbors protested that the addition of a business allowing alcohol consumption would be a problem adjacent to the flea market. Joyce Best, representing the neighborhoods that included Harris Branch, Walnut Place, Chimney Hill North and Austex Acres Land, said the flea market causes a major traffic snarl every weekend. Collisions at the intersection have increased more than 100 percent in the last three years, Best said.

“I would say this is one of the five or six most dangerous intersections in the city,” Best said, quoting Austin Police Department statistics. “We asked the highway department to put post and cable down the median to stop people from cutting across to the flea market, and people are still running over the post and cable.”

The addition of the ballroom, Best said, would be an “unbelievable hazard” given the flea market and the truck traffic from two local landfills and the Budweiser plant on an adjacent street. The neighborhoods, Best said, wanted to avoid more traffic “at particularly high traffic times and making the whole traffic situation worse.”

The traffic numbers appeared to strike commissioners as being a problem. Castaneda’s offer to address the liquor issue with proper enforcement did not sway commissioners. Commissioners also questioned the vagueness of Suarez’s plans. Commissioner Keith Jackson said he would entertain the possibility of indoor entertainment on the site if Suarez came back with more definite plans about what he wanted on the site. Otherwise, it was a “pretty dicey use to just allow right now,” Jackson said.

Vice Chair Joseph Martinez said he had been in the neighborhood around the flea market and agreed that traffic was a significant problem. Commissioner Michael Casias praised Suarez for trying to work with the neighborhood on a compromise.

“You did everything 99.9 percent right, but we agree with the neighborhood,” Casias said. “When we have input from the neighborhood, we take it seriously.”

The zoning change for the 1.44 acres—from Development Reserve (DR) to Commercial Services (CS)—has been on the table since November, delayed by neighborhood protests. Chair Betty Baker said she appreciated the meetings with the neighborhood but that Suarez would need to show a demonstrated need for the ballroom, and more specific plans, before gaining the Zoning and Platting Commission’s approval.

The Zoning and Platting Commission recommended the CS zoning with an conditional overlay prohibiting the uses Suarez and the neighborhoods agreed to exclude, but refused to recommend that the City Council approve the ballroom room exception that Suarez was seeking.

Tuesday Wednesday, Thursday, Friday

CAMPO Policy Advisory Committee meets tonight . . . One of the hot items on their agenda is a vote whether to delay or remove SH-45 South from I-35 to FM 1626 from the Long Range Transportation Plan. Environmentalists have argued long and loudly that the road will have a negative impact on the Edwards Aquifer . . . Sonleitner sweeps endorsements . . . Pct. 2 Commissioner Karen Sonleitner is winning endorsements left and right—at least among Democrats. Last week, she received the backing of the University Young Democrats and the Austin Progressive Coalition, as well as Central Austin Democrats and West Austin Democrats. She had previously received endorsements from the Travis County Women Voters and the Travis/Williamson County Mexican-American Democrats. The Austin Women’s Political Caucus has also endorsed Sonleitner, as have the South Austin Democrats and the South Austin Tejano Democrats . . . One more endorsement dance . . . The Austin Gay-Lesbian Political Caucus is holding its endorsement meeting beginning at 7pm tonight at the AFL-CIO Auditorium at 11th and Lavaca . . . That purse . . . Ever since Susan Smith wrote in her column that Council Member Beverly Griffith had money in her Prada purse, Griffith has been telling everyone it was from Nine West, bought on sale, etc. But at last night’s fundraiser for her colleagues, the same purse was sporting a cardboard sign bearing the word ‘PRADA.’.

© 2002 In Fact News, Inc. All rights reserved.

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