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Legal fight over Planning Commission likely to continue

Thursday, February 21, 2019 by Jack Craver

The city of Austin does not appear any closer to resolving a legal challenge from Attorney General Ken Paxton over the composition of its Planning Commission. So far, nobody on City Council has proposed removing any members in response to Paxton’s claim that the commission has too many real estate professionals.

Last year, in response to a complaint from several prominent local activists, Paxton sued the city, accusing it of being in violation of its own charter because too many members of the Planning Commission work in the real estate industry. The charter states that two-thirds of those on the commission must be “lay members” who are “not directly or indirectly connected with real estate and land development.”

Austin voters approved adding that provision to the charter in 1994. The proposition was framed as a way to keep the influence of developers in check.

According to Paxton, eight of the 13 members of the commission worked in real estate and therefore should not be considered laypersons. Those eight members included two engineers, three architects, a land use attorney who works for Travis County, a retired real estate agent, and a Habitat for Humanity official.

Two of the commissioners named in the suit have since left the commission, but the six remaining members named in the suit still account for more than a third of the body. Furthermore, new Council Member Natasha Harper-Madison indicated at a Tuesday Council work session that she plans to fill a vacancy on the commission with someone else who will likely not be considered a lay member by the attorney general.

Harper-Madison’s nominee, Patrick Howard, is the executive director of the Housing Authority of Travis County. On Tuesday, Harper-Madison said she and her staff decided on Howard after “very carefully considering our candidate pool,” and adding that Howard will be the only black member of the commission.

“District 1 has a very specific and very nuanced need in the city of Austin when it comes to who our representation is,” said Harper-Madison. “So while I understand that we’re generally risk-averse, I want to make certain that we’re taking every possible opportunity to have really accurate, thorough, fair, equitable representation on our Planning Commission.”

The commissioners’ terms all end in June. Commissioners used to serve in four-year staggered terms, but due to a charter change approved by voters in November, the terms are now all the same.

The vacancy on the commission was created when Harper-Madison removed the commissioner appointed by her predecessor, Ora Houston.

An aide to Council Member Paige Ellis, who was also elected in November, told the Austin Monitor that Ellis had not yet decided whether to reappoint Commissioner James Schissler, who was named to the commission by her predecessor, Ellen Troxclair. Schissler is a partner at Civilitude, a development consulting firm.

None of the Council members have pushed back against Harper-Madison’s nominee or suggested that some commissioners need to go.

Mayor Steve Adler suggested that Council have a closed executive session with city attorneys to discuss what to do about Paxton’s lawsuit.

Last year, Adler said that Council “ought to appoint a Planning Commission board that is clearly in accord with the charter.” However, in an open letter to Paxton, Adler ridiculed the suit: “You allege that a charter limitation on the number of land developers that can serve on our planning commission would apply to a retired real estate agent, a Travis County government attorney and an executive director of an affordable housing non-profit. Really?”

The language in the charter is vague enough that even two of the attorneys who prompted the lawsuit from Paxton disagree on who should count as a lay member.

Bill Aleshire, an attorney and former Travis County judge who signed the complaint, told the Austin Monitor in an email that he does not believe Howard “is a person to be counted in the commissioners directly or indirectly connected to real estate.”

Fred Lewis, who drafted the complaint, disagrees, writing in an email: “There are two components of the charter: they must be lay persons not connected directly or indirectly to real estate and land development. He doesn’t satisfy either requirement, in my opinion.”

The Monitor reached out to Paxton’s office for comment by email and phone early Wednesday. An aide said that the office would provide a comment by the end of the day but later said a statement wouldn’t be available until Thursday.

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