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West Lake postpones action on subdivision pending investigation

Monday, June 23, 2014 by Elizabeth Pagano

The West Lake Hills City Council, acting as its Board of Adjustment, has postponed action on a Redbud Trail subdivision and asked its city attorney to hire outside counsel to investigate whether the developer’s representative –who recently stepped down as city planner for West Lake Hills – acted unethically while working for the city.


However, Chris Gunter, the resident who brought the issue to the Council’s attention, has raised questions over whether the city attorney, Alan Bojorquez, is himself violating ethical rules governing attorneys hiring members of their own firm.


The investigation centers on the proposed subdivision of 806 Redbud Trail, which is located next door to Gunter’s home. Gunter filed a formal complaint with the city, alleging the relationship between developers Keller Capital and Davin Fillpot violates the city’s code of ethics, and may involve illegal behavior.


In addition to being the city’s first city planner, Fillpot is also a former member of the West Lake Hills City Council and Zoning and Planning Commission. Gunter alleges that the relationship between Fillpot and Keller Capital began before his employment at the city was over.


When asked for comment by the Austin Monitor, Fillpot said he was waiting until the investigation was complete, saying, “I don’t think there’s anything there… I’m just waiting for them just like everyone else is.”


The Austin Monitor has obtained an email from Gunter saying that, while he applauded the decision to hold off action on the subdivision, he was concerned about the choice of outside counsel. Gunter points out that the attorney that will conduct the investigation, Herb Prouty, works at the city attorney’s law firm, Bojorquez Law Firm, PC. Gunter asked that the city find a different attorney to head the investigation.


“Frankly, this is not an independent investigation by outside counsel,” writes Gunter. “An attorney associated with (that) firm does not engender even the appearance of an independent and objective investigation, much less an actual one”


His concerns were addressed by the city attorney, who explained that he had selected an “extremely well-regarded and highly-qualified lawyer who has no direct past connections with you, city hall, Mr. Fillpot, or 806 Redbud Trail.”


Gunter also points out that while Fillpot should be held accountable if the allegations against him are true, he also expected the city to hold Keller Capital accountable if the company paid Fillpot money to get their project approved. For Gunter, that accountability would take the form of not granting Keller Capital “any concessions or favors.”


City Council Member Darin Walker took the unusual step of telling his colleagues that he would not recuse himself, despite being asked by more than one resident to consider doing so.


“It’s been insinuated that a conflict of interest exists, due to my affiliation with Moreland Properties… I’ve asked the city’s attorney for counsel on this matter, and I’ve been advised that in order for a conflict to exist it would need to clearly show that I would directly

benefit financially from any decision made on this matter. While I am a real estate agent… I do not represent the seller or the buyer, and I do not receive any financial benefit from any party involved,” said Walker. Moreland had the listing for the seller.


City attorney Bojorquez could offer no further clarity on the matter.


“I’ve searched and researched. There are no case law opinions, there are no AG (Attorney General) opinions directly on point, describing his type of relationship with Moreland (Properties) and whether it is a conflict of interest,” said Bojorquez. “To me, it’s not clear. You

can’t definitively say whether he has a conflict or not.”


Even without the allegations, the case has attracted a lot of negative attention. Acting as the Board of Adjustment, the Council heard public testimony on the case at its last meeting. However, they will not be making a decision on the variances until June 25, after an investigation into improprieties has concluded.


Neighbors showed up in force to protest the subdivision of the 15-acre property into five lots. As proposed, developers would need several variances to build on the steep, canyon-like land. Though those developers have told neighbors that the current plan is much better than what they could do without variances, no one has seen that non-variance plan. Several neighbors expressed doubt that it would be possible to build on the steep slope without a variance, resulting in a promise to produce the yet-unseen plan the next time the case is considered.


Agent Sarah Crocker said the parcel was one of the oddest she had ever seen in her 25 years of work.


“I want to see the eight or nine lot plan, with the road, that has no variances. That would be great. I’d really like to see that, because I don’t think you can do it. I don’t think you can do it when you have that much steep slope,” said Crocker.


Many of those who lined up to speak against the subdivision cited safety as their primary concern, saying the development would create fire and traffic hazards for existing residents. Several neighbors also expressed concern about the allegations about the process leading up to the development, and advocated a thorough investigation. 


The opposition did not seem to matter to Keller Capital CEO Mitch Johnson.


“I am so confident that there is a plan to develop this acreage that I am going to close on this property with no approval from any City Council. I am that confident,” said Johnson, who added that he had already spent $250,000 “due-diligencing” the project and knew he could put seven lots on the property, which he was sure the neighborhood did not want.


West Lake Hills Mayor Dave Claunch urged those present at the meeting to wait until the results of the investigation were made public.


“I ask everyone to keep in mind that, at this point in time, these are allegations. Nothing has been proven or confirmed. Mr. Fillpot and his family have rights too, and I caution against drawing any premature conclusions based on hearsay, innuendo, and unsubstantiated accusations. That being said, I assure everyone that we are taking these allegations very seriously, and I am certain that Alan’s office will conduct a thorough, transparent and fair investigation,” said Claunch.


The next City Council meeting is Wednesday and the next meeting of the Council sitting as the Board of Adjustment is scheduled for July 10.

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