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City strikes back on Pilot Knob lawsuit

Tuesday, March 15, 2016 by Elizabeth Pagano

Though downtown has been almost completely colonized by South by Southwest, a development in the Pilot Knob lawsuit filed by Brian Rodgers last month managed to break through the tech fog Monday.

Taking into account the March 22 settlement deadline from Rodgers, it was almost a given that the city would not be settling the suit. On Monday, the city made it official with an answer to the lawsuit (embedded below).

Essentially, the city has denied Rodgers’ material allegations. Specifically, the city says that the notice given for the item when it passed in December was adequate and, further, that “any defect was subsequently cured” by City Council’s actions on March 3, when it voted to reconsider the case.

In the city’s response, the attorneys note, “If Rodgers’ argument were to prevail, the City would be required to post massive notices of each PUD zoning action, which would have the contrary effect of defeating public participation by overloading agendas with details of each development.”

The city also maintains that the posting that did occur on the Council agenda complied with the Texas Open Meetings Act, contrary to Rodgers’ assertions.

According to the response: “As a matter of law, the December 17, 2015 notice concerning the ‘Pilot Knob Planned Unit Development’ substantially complies with TOMA requirements. The notice properly discloses the ‘date, hour, place, and subject’ of the proposed City Council action. … Rodgers does not contest that the date, hour, and place are properly noticed. He only contests where the ‘subject’ was properly disclosed.”

“Rodgers argues that the notice should have also disclosed details of the PUD zoning decision, including details of the agreement between the City and the developer concerning how certain fees would be allocated among City departments,” it continues. “Rodgers’ argument is not supported by law, however, and would lead to absurd results in the context of PUDs, which are complex agreements that contain numerous elements.”

Attorney Bill Aleshire is representing Rodgers in his suit against the city.

“They want to fight,” Aleshire wrote in an email to the Austin Monitor. “The City contends the notice was adequate. Besides being circular … logic on jurisdiction, the scariest thing about their answer is that the City is defending the notice that mentioned nothing about there being a $100 million price tag for the ‘zoning’ agenda item. If they think that notice was adequate, then they’ll do it again.”

He continued, “If they think that Pilot Knob agenda wording gives adequate public notice (when even the City Manager and Council members did not realize what they were doing with $100 million in water utility revenue), I’m left to wonder whether the City Attorney or this 10-1 Council understand or believe in the spirit or the letter of the open meetings act. Apparently not.”

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