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Group says Champion tract vote broke rules

Tuesday, April 18, 2017 by Jo Clifton

City Council is facing yet another possible lawsuit over a vote it took that may not have complied with the Texas Open Meetings Act. City Attorney Anne Morgan confirmed Monday that she plans to discuss the matter with Council in executive session today.

Attorney Bill Aleshire, representing the Lake Austin Collective, a group of citizens who live near the tract owned by the Champion sisters on City Park Road, has notified the city that Council’s November 10, 2016, agenda posting for the zoning change vote on the tract, which the Champions propose to develop, was inadequate and missing certain essential information.

Members of the board of the Lake Austin Collective include Carol Lee, Linda Bailey and Susan Kimbrough. Marisa Lipscher, another plaintiff in the proposed suit, owns property next to the proposed Champion development and is the collective’s registered agent.

Council approved the zoning change on third reading, on a vote of 7-4, with Council members Sheri Gallo, Leslie Pool, Ann Kitchen and Ora Houston voting in opposition.

Council Member Alison Alter has since replaced Gallo on the dais. Council Member Jimmy Flannigan has taken the place of Council Member Don Zimmerman, who voted in favor of the new zoning.

Aleshire sent a letter to Morgan on April 3, threatening to file suit unless Council takes action to remedy the situation within 45 days. A remedy might include rescinding final action on the Champion tract. Then Council would need to schedule a new vote on the zoning change with the information Aleshire and the plaintiffs claim is missing, much like what occurred in the Pilot Knob case.

Aleshire alleged that the posting failed to notify the public that Council would consider waiving sections of the Hill Country Roadway and Lake Austin Watershed Ordinances when they considered the matter on third reading in November.

“This is an example of a critically flawed process that does not protect the neighbors,” Aleshire said.

The lawsuit Aleshire is threatening to file stated, “Ironically, and tellingly as to Council’s commitment to (Texas Open Meetings Act) compliance … The Council reconsidered its prior vote on the Pilot Knob development that had been declared void,” on the same day that it approved third reading on the Champion tract.

According to the lawsuit, “There is not even a hint in that agenda wording that would alert the public about what action the Council was contemplating. … This (Texas Open Meetings Act) violation becomes even more obvious by noting the additional wording that was included in the caption of the ordinance … that Council adopted.” The caption included this language: ” … and waiving certain sections of 25-2, (the Land Development Code) and Lake Austin Watershed Regulations.”

The plaintiff’s proposed petition asked, “If it was necessary and appropriate to mention the environmental waivers in the caption of the Ordinance, why wasn’t that included in the meeting agenda notice?”

If Council does not decide to rescind its final approval of the zoning change, the Lake Austin Collective will ask a court to declare Council’s action void. Attorney Richard Suttle represented Champion’s interest before Council. Coincidentally, he represented the developer in the Pilot Knob rezoning case. He could not be reached for comment Monday.

Plaintiffs in the lawsuit also complained about the fact that Champion redrew the lines in the area to be zoned, thus defeating a valid petition. In addition, the lawsuit states that the Council majority granted variances to the Lake Austin Watershed Ordinance without approval, or even consideration, from the Planning Commission.

The lawsuit concluded, “Council not only violated the (Texas Open Meetings Act) notice provision but the importance of the action the Council took is enhanced because it bypassed the city lay-person commissions for review and recommendation before such variances and waivers,” were granted.

If the city decides to fight the plaintiffs in court, Aleshire will be asking for injunctive relief to prevent further violations of the Open Meetings Act, according to the draft petition.

Attorney Michael Whellan represented the Champion sisters during their long battle with the city about what they could build on their property at Loop 360 and Ranch to Market Road 2222 and what regulations would apply starting in 1994. The case went on for years, including battles with the neighbors detailed by the Austin Monitor in 2009.

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