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Paxton sues eight Planning commissioners

Wednesday, July 4, 2018 by Jo Clifton

Texas Attorney General Ken Paxton on Tuesday received approval from a Travis County district judge to move forward with a lawsuit seeking to remove eight of 13 members of Austin’s Planning Commission. Paxton did so at the urging of opponents of the land use regulation rewrite known as CodeNEXT – including attorneys Fred Lewis and Bill Bunch – who presented evidence that the commission has too many members in development-related professions.

In the quo warranto suit, the attorney general alleges that eight members of the Planning Commission should be removed from the commission because Austin’s City Charter requires that “a minimum of two-thirds of the members” of the commission “shall be lay members not directly or indirectly connected with real estate and land development.”

Paxton named the following commissioners as defendants: architects Karen McGraw, James Shieh and Trinity White; engineers Fayez Kazi and Jim Schissler; Tom Nuckols, an assistant county attorney who specializes in real estate matters; and Greg Anderson, director of community affairs for Habitat for Humanity, which builds low-income housing among other things.

The suit also names Patricia Seeger, identifying her as a real estate broker, even though she’s retired. According to the Texas Real Estate Commission website, Seeger’s broker’s license expired on May 31, 2015, and she confirmed to the Austin Monitor that she retired five years ago.

A city spokesperson released the following statement: “The City has received the action filed by the Attorney General’s office aimed at removing a number of our Planning Commissioners, and will review the case. The City will provide legal representation to these volunteers who dedicate a significant amount of their time to serving the City.”

The majority of those named in the suit declined to comment, based on advice from the City Attorney’s Office, but Anderson and Seeger defended themselves and other members of the commission, and Shieh defended the commission and Council.

Anderson emailed the following statement to the Monitor: “The State is positioning my current role at Austin Habitat for Humanity as a reason to remove me from the Planning Commission. It’s being likened to me working for a for-profit developer, which simply isn’t the case. Austin Habitat is much, much more than a developer. We’re a non-profit who also runs financial counseling, home repair programs and a donation-based retail outlet for low-income clients who income qualify for our programs.

“I work for Austin Habitat for the same reason I’m on the Planning Commission, which is that I believe in the power of sustainable, healthy communities. My work there is solely my own to the point that I recuse myself any time there is an Austin Habitat item up for consideration.”

Council Member Jimmy Flannigan, who appointed Anderson, also provided the following statement: “Greg Anderson brings a wealth of knowledge and experience to the Planning Commission from his time working for former Mayor Pro Tem and future State Representative Sheryl Cole to his current role at non-profit Habitat for Humanity where he works to address housing affordability. His passion, expertise, and courage to challenge the status quo is a perfect combination to represent the people of District 6.”

Seeger, the former real estate broker, said that the state of Texas has made a mistake in suing her and that she believes the mistake will be corrected. She said, “I’m not concerned for me, personally. I would like to see this resolved as quickly as possible – whatever the decision is – because the Planning Commission has a lot of work to do. And this is a big distraction for the people that are being sued – my goodness – through no fault of their own.”

Some members of the commission have previously explained that they did not see their jobs as “development related.” For example, architect Trinity White’s website states: “Trinity White lives and works in East Austin. Her focus is on helping individuals and families through the process of dreaming, designing and finally creating houses and additions that are affordable, sustainable and inspiring.”

Lewis, a Democrat who is not usually on the same page as Republican Paxton, released the following statement: “I want to thank the local authorities, and especially the Office of the Texas Attorney General, for reviewing this matter thoroughly and filing suit to enforce Austin’s Charter to prevent development-related domination of the Planning Commission.”

He also thanked attorney Bill Aleshire, who was the primary author of a letter to Mayor and Council in 2015 pointing out that the commission’s membership included an impermissible number of development professionals.

He added, “The illegal composition of the Planning Commission undermines the validity of its work over the last 3 years, whether on individual rezoning of specific properties or CodeNEXT. Council should have fixed the illegal composition 3 years (ago), when brought to their attention, but has refused.”

The lawsuit also highlights a problem with how Council has made its appointments. According to the petition, “the Charter also requires that the two-year terms of the Commission members be staggered between odd and even years. The City of Austin Code provides that such terms are to begin on March 1. … The City Council’s appointment of 12 of 13 members in a single year, 2017, to non-staggered terms (for all 13 members) beginning on July 1, 2017, with 8 of such members directly or indirectly related to real estate and land development was in direct violation of the City Charter, the City Code and the Commission’s Bylaws. As a result the members of the Commission unlawfully hold seats on the Commission.”

Some members of Council have tried to address the apparent over-representation of the development and real estate sector, but Council as a whole could not agree on how to move forward without a change in the charter.

At its meeting last week, Council approved a resolution to put two recommendations from the Charter Review Commission on the November ballot. One of those proposes to amend the charter so that the commissioners will have terms that run concurrently with their Council members’ terms, so they will have three-year terms instead of the two-year terms that they currently have. In addition, the city manager was directed to develop ballot language to provide for a removal process for Planning commissioners.

Shieh said, “While I appreciate our AG’s interest in Austin politics, as anyone can see in the media, the City Council and city legal are already addressing and working on the issue. I appreciate the invaluable and diverse insight of my fellow commissioners, which help shape the city. I hope we can come to some resolution quickly so we can catch up on our work.”

Also last week, Mayor Steve Adler appointed Yvette Flores to the commission to replace Stephen Oliver, an architect who served as chair of the commission during many months of hard work on CodeNEXT. It is clear that Oliver would have been a defendant in the attorney general’s lawsuit if he had remained on the commission.

Bunch and Lewis were in a different court together on Monday urging District Judge Orlinda Naranjo to order the city to put a referendum on November’s ballot that would slow down if not eliminate many of the effects of CodeNEXT. Naranjo is expected to issue a ruling on the matter shortly.

This story has been updated to reflect the participation of Bill Aleshire.

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