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Rodgers offers to settle Pilot Knob suit with city

Wednesday, February 24, 2016 by Jo Clifton

Bill Aleshire, who represents civic activist Brian Rodgers in his open meetings lawsuit against the city over the handling of the Pilot Knob case, has offered to settle the suit. Rodgers is asking the city to rescind its action or to sign a final judgment declaring the City Council action void.

On Dec. 17, Council approved the zoning for the Pilot Knob planned unit development with redirection of fees – up to $81 million that would have gone to the Austin Water utility and $18 million to $25 million that would have gone to the Development Services Department – to the city’s affordable housing fund. As the Austin Monitor first reported in January, a majority of the Council did not understand when they voted how much money would be diverted.

The fees will be put into the trust fund over 20 to 30 years to fund 650 affordable housing units at the development, which is to be called Easton Park. The PUD is within five Pilot Knob municipal utility districts, which will be fully annexed into the city “no later than December 31, 2047 or possibly earlier if the MUD debt is paid off and the city chooses to annex” the area.

Those involved in putting the deal together included Pilot Knob attorney Richard Suttle and staff from the offices of Mayor Steve Adler and Council Member Delia Garza.

The water utility has estimated that redirecting the water and wastewater fees for the Pilot Knob PUD will result in a rate hike for the typical residential utility customer of $1.39 per month, according to a memo from the city’s chief financial officer and three assistant city managers.

Rodgers’ lawsuit notes that the Council agenda item on the day of the Pilot Knob vote spoke only to zoning and not to fee waivers or diversion of funds to affordable housing. Rodgers contends that the city violated the public notice requirement of the Texas Open Meetings Act by failing to mention the diverted fees in that agenda item.

In a letter to City Attorney Anne Morgan, sent Tuesday, Aleshire wrote, “Mr. Rodgers cannot imagine that this City Council would believe in retrospect, as a matter of law or of good governance, that the way the Pilot Knob agenda item was handled is the right way to conduct taxpayers’ and ratepayers’ business.”

He continued, “Even the city manager, other city staff, and many of the Council members have publicly admitted that the agenda wording gave no clue of the enormous fee impact the adopted ‘zoning’ ordinance included.”

Rodgers is proposing that Council either vote to rescind its action or agree to “an Agreed Final Judgment that the action is void for failure to comply with (the Texas Open Meetings Act) … relating to disclosure of the ‘subject’ on the agenda item.”

In addition, Rodgers asks that “the city agree to a narrowly tailored permanent injunction prohibiting the Council from deliberating or acting on any agenda item in the future for a zoning matter that includes a waiver or redirection of city development impact fees without disclosing that fact in the agenda item public notice,” Aleshire wrote.

In the letter, Aleshire noted that rescinding the Pilot Knob action or declaring the Dec. 17 action void would not prevent Council “with proper public notice to vote again on the exact same deal or some modification of it.”

The letter says the settlement offer will expire one week after the city files its answer to the lawsuit, or March 22, according to Aleshire. The attorney notes that he is making the settlement offer early in the lawsuit before either party “starts spending a significant amount of money.”

Council members Ellen Troxclair, Leslie Pool, Ora Houston and Don Zimmerman had an item on the Feb. 11 Council agenda to rescind and reconsider the Pilot Knob vote. However, it was nearly 12:30 a.m. before they got to the item, and they ultimately postponed consideration to March 3, over the objections of Troxclair and Houston.

A city spokesman said via email, “We are currently reviewing the settlement proposal that we received today and have not had an opportunity to discuss with our client.”

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