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Judge considers Rodgers’ Pilot Knob claims

Monday, October 3, 2016 by Jo Clifton

How much notice should the City Council agenda provide to citizens who want to know what Council is doing that may impact their taxes and water rates? That’s one of the questions Judge Stephen Yelenosky will have to answer when he rules on Brian Rodgers’ lawsuit against the city of Austin.

Yelenosky heard arguments on Thursday from Bill Aleshire and Roger Borgelt, attorneys for Rodgers, and Assistant City Attorney Michael Siegel concerning whether the city violated the Texas Open Meetings Act in its posting for the planned unit development agreement for Brookfield Residential at the Pilot Knob site last December.

When Council approved the PUD in Southeast Travis County last year, many members did not realize the extent of the water and wastewater fees they were approving.

Members of the public, as well as staff at the Austin Water utility, learned later that the PUD agreement would divert $81 million in water and wastewater infrastructure fee waivers to be used for affordable housing, although that fact was not apparent either from the posted language or the backup material available to the public online.

It was also difficult to ascertain that the PUD agreement would waive $20 million in development fees. The approximately $100 million would go into what Aleshire characterizes as a city “slush fund.” It would not have been possible to know that by reading the Council agenda.

Council members have said they did not have that information, either. Rodgers argues that the lack of information available to the public makes the December vote illegal, and he has asked for an injunction to overturn the vote and to prevent the city from taking similar action in future zoning cases.

But Siegel, writing for the city, said, “Rodgers’ argument is not supported by law … and would lead to absurd results in the context of PUDs, which are complex agreements that contain numerous elements. … 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.”

Lawyers also argued about Rodgers’ second cause of action against the city, the claim that the city violated Local Government Code Chapter 395, a state law governing water impact fees.

The PUD agreement allows developer Brookfield Residential to move forward with construction of 6,500 single-family homes and 1,500 multifamily units at the development, only 10 percent of which would be affordable. The plaintiff says state law requires that 20 percent of those units be affordable.

In addition, Rodgers is arguing that Council waived water utility fees not just for the affordable units but for the entire development. “This ‘deal’ is in direct violation of (state law), which allows for reduction or waiver of the impact fees for any service unit that would qualify as affordable housing” but not the other housing or apartments, the lawsuit says.

Yelenosky seemed more interested on Thursday in the open meetings argument than the Chapter 395 argument. The Dec. 17 agenda stated that Council would consider amending Chapter 25-2 of the city code, which relates to zoning. It did not refer to several other sections of city code that were amended by the PUD ordinance.

For example, Aleshire pointed out, the agenda item did not indicate several other sections of city code that the agreement would amend, including the SMART housing regulation, that fall under Chapter 25-9. That regulation allows fee waivers and expedited review for SMART housing within city limits. Only by Council action can the city limits requirement be waived.

At the end of the hearing, Yelenosky said that he would have to study briefs and arguments presented by the lawyers and that it could take a while before he had a ruling.

Photo by AJEL made available through a Creative Commons license.

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