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Jo Clifton is the Politics Editor for the Austin Monitor.
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Tuesday, April 4, 2017 by Jo Clifton
Bastrop resident claims open meetings breach
After years of litigation and hundreds of thousands of taxpayer dollars spent on attorneys fees, the case involving the Pine Forest development in Bastrop County took a startling turn this week.
Paul Burt, a Pine Forest homeowner, filed suit against the city of Bastrop alleging that its City Council violated the Texas Open Meetings Act in 2013 when it voted to cancel the contract between the city and Pine Forest Investment Group LLC, owned by Robert Leffingwell and his partners. Leffingwell is the brother of former Austin Mayor Lee Leffingwell.
Burt is asking the court to declare the vote to cancel the contract invalid because the item was not on the Council agenda. Council evidently discussed the matter in executive session and then reconvened to vote.
According to the lawsuit, which quotes minutes from the meeting of May 28, 2013: “Mayor (Terry) Orr reconvened into open session and the following action was taken. Mr. (Willie) DeLaRosa moved to authorize the city manager to issue a letter to the Trustee over the Pine Forest Unit #6 regarding the city’s position as to the status of the development in that subdivision. Seconded by Mr. (Ken) Kesselus and carried unanimously.”
That vote, and even Council’s discussion of the subject, “was a clear and flagrant violation of the (Texas Open Meetings Act) … which requires the subject be listed on the Council agenda in order for the Council to lawfully deliberate or vote on it,” the lawsuit said.
Bastrop contracted with the Pine Forest group to develop 262 lots in Unit 6 that were supposed to become a residential subdivision. After a dispute over a drainage study, the city nullified the contract, leading to the lawsuit, a countersuit and an additional legal action by some members of the Pine Forest Property Owners Association, including Burt.
Austin attorney Bill Aleshire is representing Burt, who is angry that the local governments, including the city, the county and Bastrop ISD, have taken over the Pine Forest Property Owners Association. The suit states that “the mess in Pine Forest is well known (and) has led to residents in sections 7 – 12 of the Pine Forest POA, like Paul Burt, to have almost no influence at all in the association matters,” even though they outnumber residents of Section 6, the subject of the lawsuit.
Burt said he could not talk about the lawsuit and referred questions to Aleshire.
Aleshire told the Austin Monitor that the three governments that control the empty lots in Unit 6 are using the lots “to cast basically a majority of the votes, so they have hand-selected their board of directors. And so there’s only one member who lives in Units 7-12.”
“That’s a primary aggravation,” Aleshire said. “They’ve lost democracy. They’re aggravated about losing control of the association where they live.”
Before the lawsuits between the governments and Leffingwell and the subsequent shakeup of the property owners association, “They were planning to put in fire hydrants in the subdivision, and there is no progress being made on that. The litigation is going to go on for years apparently, and until it’s settled the government’s not doing anything,” including paying the association fees.
The lawsuit also says that “because the Bastrop Council unlawfully discussed this matter in secret session, without a corresponding item on its meeting agenda, (Burt) seeks an order from the court requiring the city to publicly disclose its documentation,” either a tape recording or certified agenda, “of that unlawful discussion in their secret session. … Who knows if reversing the illegal vote by the Bastrop Council that started this mess will help resolve the mess, but Plaintiff Paul Burt does not want the Council to get away with such conduct.”
In addition to the evidence of the Council agenda and minutes from May 28, 2013, there is also an affidavit from Paul Grabowski, an associate of Leffingwell’s.
The affidavit states that Grabowski attended the May 28, 2013, meeting and decided to depart after Council went into executive session without discussing the Pine Forest project.
Grabowski swears in the affidavit that on the morning after the meeting, Bastrop “Councilman Willie DeLaRosa approached my car on the passenger side and (said), ‘I just wanted to tell you that last night I did what I had to do for a friend.'”
DeLaRosa also told Grabowski that the city would be sending a letter to Leffingwell stating that the development agreement was canceled, Grabowski reported. “I called Mr. Leffingwell and informed him what I was told. Mr. Leffingwell called the city and they told him that was correct and a letter would be sent in a day or so. There was no notice given that a decision was going to be made about the development agreement or anything affecting Pine Forest Agreement with city of Bastrop until after the executive session.”
DeLaRosa, who still serves on Council, is currently running for mayor of Bastrop. His opponent in that race is a member of the city’s Planning and Zoning Commission, Connie Schroeder. That election is May 6.
Mayor Ken Kesselus is prohibited from running again by term limits.
As of the end of September 2016, Bastrop had paid attorney William Bundren $700,800 for litigation involving the Pine Forest Investment Group. Tracy Waldron, chief financial officer for the city, told the Monitor via email on Monday that the city has not paid Bundren any additional funds since last fall.
It is not clear what would happen if the judge declared Council’s vote to cancel the contract with Leffingwell invalid. Aleshire said he didn’t know the answer to that question.
District Judge Carson Campbell, who ruled in favor of the various Bastrop governments in their lawsuit with the Pine Forest investment Group, will hear Burt’s lawsuit.
Burt filed an affidavit in the Pine Forest case alleging that he saw Campbell speaking with members of Bastrop’s legal team during a recess, although Burt said he could not hear what they were saying. Leffingwell’s attorney, Ben Wetmore, attempted to have Campbell recuse himself, but another judge decided that Campbell should continue to preside over the case.
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