The City had it coming, did everything it could to ignore friendly warnings and prosecutors’ advice
Litigation filed in a Travis County district court by the Texas Attorney General seeks to remove eight named members of the Austin Planning Commission because these people allegedly hold office unlawfully.
The grounds cite Austin City Charter Article X Section 2, which requires the Planning Commission to “have a number of members equal to the number of members on the council plus two additional members, a minimum of two-thirds of the members who shall be lay members not directly or indirectly connected with real estate and land development.” (Emphasis added.) Meaning no more than four.
“It’s shameful that the City of Austin ignores the will of the voters and its own City Charter, allowing the Planning Commission to be controlled by eight real estate professionals who unlawfully hold seats on the (commission),” Attorney General Ken Paxton said in a July 3 press release. “We’re seeking the court’s removal of all commission members whose appointments violate the two-thirds ‘lay member’ requirement of the City Charter.”
In reality it’s entirely permissible for four members of the Planning Commission to have interests in real estate and development. But it’s up to the City to decide how to whittle that number from the eight currently serving, who the Attorney General claims should not be. In this litigation, all of them have a target on their backs.
A City of Austin spokesperson responded to a request for comment: “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 time to serving the City.”
Planning Commission a sovereign body
Why is the composition of the Planning Commission so important? Because as boards and commissions go, it has super powers, so to speak.
Many of the City’s boards and commissioners are merely advisory. They review the work that boils up out of the bureaucracy and make recommendations. The council can act on matters that would ordinarily go through a board or commission with or without a recommendation.
Not so with the Planning Commission.
Local Government Code Chapter 211 mandates that the Commission provide reports to the City Council on proposed changes to zoning ordinances.
Further, Chapter 212 of the Local Government Code makes the Planning Commission a sovereign body responsible for approving subdivision plats and various administrative decisions related to water quality, drainage, and other development regulations.
All of which gives rise to the question of whether a party aggrieved by a decision made by an illegally composed Planning Commission might have standing to sue to overturn, for example, a zoning recommendation or a subdivision platting decision. That’s a question that may not be answerable at this time but it is just one implication of the City letting this situation fester for years and, until recently, making no attempt to address it.
Arrogant, hard-headed, or slothful?
This Attorney General’s litigation should have come as no surprise to the City. Red flags were waved starting long ago.
Attorneys Fred Lewis and Bill Aleshire informed the mayor in a November 16, 2015, letter that the City Council, which took office in January 2015, had appointed six planning commissioners with real estate or development connections when no more than four should have been appointed.
The letter asked that the City Council to “voluntarily and promptly replace at least two of the above-listed commissioners with lay persons who are not directly or indirectly connected to real estate and land development.
“We would prefer to resolve this without expensive litigation to the City of Austin and its taxpayers,” the letter concluded.
Lewis got the impression the mayor wanted to fix the problem through attrition.
Instead the city not only ignored the warning but over time increased to nine the number of planning commissioners who were directly or indirectly connected with real estate or development.
Aleshire said, “Both philosophically and legally it’s embarrassing that the majority of this council would choose to ignore this.”
Litigation stemmed from local complaint
Nearly two years after requesting the problem be fixed, and seeing the original problem was made worse by the council appointing even more people connected to real estate or development, Aleshire, Lewis and five others signed a complaint on October 30, 2017, and filed it with District Attorney Margaret Moore.
From a legal standpoint that was a necessary action, attorneys say, because it appears that a citizen or group of citizens would not have standing to bring a lawsuit to remove planning commissioners.
The letter to Moore named seven commissioners believed to be directly or indirectly connected with real estate and land development.
The letter stated, “We are not challenging the integrity of these commissioners, who are fine Austin citizens. We are challenging their qualifications to serve on the Planning Commission pursuant to the Charter.”
The letter was signed by Aleshire, Lewis, attorneys Bill Bunch and P. Michael Herbert, as well as Fred McGhee, PhD; Roy Waley; and Mike Lavigne.
The letter requested that Moore initiate legal action to remove the planning commissioners.
Prosecutors took complaint seriously
Moore said in a July 3 phone interview that she does not have a civil law division so she reached out to County Attorney David Escamilla, because he does.
Escamilla in a phone interview July 3 said that he met with Moore and looked into possibly taking the responsibility to file on this case. But he decided it would not be appropriate because one of the planning commissioners named in the litigation is his Assistant County Attorney Tom Nuckols.
Moore said that she and Escamilla discussed the complaint and met with Lewis, Aleshire and one other person who signed the letter.
“We met with them and explained our problems about handling the lawsuit,” Moore said, but we recognized there was an opportunity to request the attorney general take the case.
“We said how about if we go to city attorney and talk to her and explain?” Moore said.
Prosecutors concerns ignored
Moore and County Attorney David Escamilla said they met with City Attorney Anne Morgan January 12, 2018.
Both prosecutors told The Austin Bulldog they made it clear to Morgan this was a serious problem.
Morgan probably wasn’t surprised to hear about the problem. In fact, the City Council agenda for December 14, 2017 (Item 73) was posted to “Discuss legal issues related to the Planning Commission” during closed-door executive session. But the council took no action.
Escamilla said, “I think she was interested. She knew there was a complaint filed.”
“We tried to get their side of the story,” Escamilla said.
As time dragged on the prosecutors decided to act. “I did talk to AG’s office,” Moore said.
“I think it was right to pass it to the AG,” Escamilla said.
Foot dragging continues
Yet the first time the problem was publicly tackled was at the April 26, 2018, council meeting. The City Attorney provided two options for interpreting what the City Charter language meant by “directly or indirectly connected with real estate and land development.”
Option A would be narrow and include only intensive development and would not count fee-for-service design professionals against the two-thirds limitation. Option B would count design professionals, as well as real estate agents and attorneys if they profit from development projects or real estate transactions.
The minutes for that council meeting show that Mayor Adler and Council Members Alison Alter and Ann Kitchen each offered resolutions to address the problem. But the council deadlocked and voted 6-4 to postpone action, with Council Member Ellen Troxclair absent.
The last time the council tried to address the situation was May 10, 2018, when Item 16 was posted “to approve a resolution to clarify membership requirements applicable to the Planning Commission under the City Charter.”
After considering several options, Resolution No. 20180510-016 offered by Council Member Kitchen was adopted on a vote of 6-4. Voting aye were Mayor Adler and Council Members Greg Casar, Jimmy Flannigan, Delia Garza, Kitchen and Sabino “Pio” Renteria. Voting nay were Mayor Pro Tem Kathie Tovo and Council Members Alter, Ora Houston, and Leslie Pool. Council Member Troxclair was absent.
The resolution requires that the city manager and city clerk provide a questionnaire for applicants to serve on the Planning Commission designed to assist the Council in determining whether an individual is “directly or indirectly connected with real estate and land development.” The city manager is to require new applicants to complete the questionnaire. The questionnaires are to be given to the nominating council member. When a nomination is to move forward the clerk will provide copies of the nominee’s application 10 days before the council votes on approval and the council is to discuss nominations in a work session posted for a nominee’s approval.
Finally, the resolution directs the city manager to create and bring back for approval by June 14, 2018, a process for removing Planning Commissioners.
That did not happen.
The council has taken the month of July off and is not scheduled to meet again until August 9.
Did council really need to ask how-to?
The council may have wanted the City Manager to recommend a specific methodology for removing planning commissioners, such as “last appointed, first out.” Or require the planning commissioners to draw straws. Or just ask them nicely to resign.
The fact is that the legal authority to remove a member of a board or commission is absolute. Austin City Code Section 2-1-21 states:
Section 2-1-21(A): “A board member is appointed and serves at the pleasure of the council.
Section 2-1-21(J): “A board member may be removed at any time by an affirmative vote of the majority of the council.”
Because of the council’s ongoing neglect of this matter, the City must deal with litigation that was completely avoidable if city officials had taken the matter seriously.
Is CodeNEXT a factor?
Attorney General Paxton’s statement notes, “The City Council’s inaction on members who unlawfully hold positions on the commission comes as (they) work on a comprehensive rewrite of the city’s land-use code, a project known as CodeNEXT.”
The attorney general is not the only one who suspects the reluctance to eradicate the top-heavy influence of real estate interests on the Planning Commission is a plot to skate by at least long enough to get a strong recommendation to implement CodeNEXT.
That’s especially time-sensitive right now, while District Court Judge Orlinda Naranjo is mulling whether to overturn the City Council’s vote not to put the CodeNEXT petition on the November 6 ballot. (See “Attorneys Argue CodeNEXT Petition,” July 2, 2018.) If the petition ordinance is put on the ballot and approved by voters, the ordinance would require a waiting period and subsequent voter approval before CodeNEXT or any other comprehensive land development code could go into effect.
Attorney Lewis, one of the prime movers in bringing the Attorney General’s action, said, “Whatever their view of CodeNEXT, the people of Austin deserve a planning commission that is in compliance with the charter and is fair and not dominated by the industry.
“We can argue about over substance, but we should agree we will be fair about the process,” he said.
The council has to make a decision, Lewis said.
“Are they going to fight the Attorney General’s legal action and get discovery, spend money, and have it stay in the news, or will they fix it?
“We have a Planning Commission that’s illegally constituted. It’s recommendation on CodeNEXT should be disregarded,” said Lewis, who drafted the CodeNEXT petition and vetted it with other attorneys before the petition drive was launched.
The planning commissioners who were sued
The Charter requires that the two-year terms of the Commission members be staggered between odd and even years. The Code of Ordinances Section 2-1-22 provides such terms are to begin on March 1.
The Attorney General’s litigation notes that 12 of 13 members were appointed in 2017 to non-staggered terms beginning July 1, 2017, with eight such members directly or indirectly related to real estate and land development 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.
The Attorney General’s filing states that upon finding that a person unlawfully holds an office the court “shall enter judgment for removing the person from office … shall enter judgment for costs … and may fine the person for unlawfully holding … the office, per Texas Civil Practices and Remedies Code Section 66.003(1)-(3).”
So it’s a good thing for those named that the City is footing the bill for legal representation.
The people named in the attorney general’s litigation are Karen McGraw, Trinity White, Fayez Kazi, James Shieh, James M. Schissler, Patricia Seeger, Greg Anderson, and Tom Nuckols. (A footnote to the filing indicates that the Commission previously had nine members in violation, but, in June 12, 2018, Stephen Oliver resigned.)
While the individual commissioners were necessarily named in this action, in reality it was the City Council’s responsibility not to exceed the limit of one-third of members who are directly or indirectly connected with real estate and development.
So, what are the commissioners’ connections?
The Austin Bulldog called all eight of those named in the litigation.
Commission Chair James Shieh said he works with J Square Architecture. His webpage indicates he is a designer and has a history in real estate investments. He said he also works with Platinum Properties.
“We’re appointed by council members and the mayor,” Shieh said. “It’s their interpretation. We are there to provide a community service.”
Commissioner Trinity White said she is a “residential architect” and “I don’t work for developers.” Beyond that she said she had no comment. “I’m still digesting this information.” The Texas Board of Architectural Examiners website states her license was issued March 29, 2016 and expires May 31, 2019.
Commissioner Greg Anderson is director of community affairs for Habitat for Humanity. He said in an email, “The State is positioning my current role at 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.”
Anderson’s email included a statement from Council Member Jimmy Flannigan, who appointed him. “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.”
Commissioner James Schissler said he works for Civilitude as a civil engineer. He is vice president and partner in the firm according to his LinkedIn page. “I don’t want to make any comment right now since named in a lawsuit,” he said. But he added that the firm does land development for both the private and public sector, including school districts in Austin, Round Rock and San Marcos, and the nonprofit Foundation Communities.
Commissioner Patricia Seeger is a former real estate broker. The Texas Real Estate Commission website confirms that her license expired May 31, 2015. She said she gave up that line of work “five or six years ago when I had health issues and could no longer serve my clients.”
The other three commissioners did not return messages left at the numbers published on the commission’s official website. They are:
Commission Vice Chair Fayez Kazi is a professional engineer and president of Civilitude;
Commissioner Karen McGraw, according to the litigation; is an architect who specializes in historic preservation, neighborhood planning, conservation, and renovation; and commercial projects.
Commissioner Tom Nuckols is an assistant Travis County attorney, where, according to the litigation, he is director of the Land Use Section and certified in real estate by the Texas Board of Legal Specialization.
Voters approved composition long ago
City Charter Article X Section 2 states, in part: “The planning commission shall have a number of commissioners equal to the number of members on the council plus two additional members, a minimum of two-thirds of the members who shall be lay members not directly or indirectly connected with real estate and land development.”
This restriction isn’t exactly new. By a margin of 67 percent to 33 percent the voters of Austin approved Proposition 13 in the election of May 7, 1994:
“Shall the City Charter of the City of Austin be amended to provide that the members of the City Planning Commission shall be equal to the number of the members of the council plus two additional members and to increase the number of lay members who are not connected with real estate and land development to two-thirds of the members?”
The Austin Group of the Sierra Club endorsed Proposition 13 in a letter of September 30, 1993, citing the City Charter language of that time: “The Planning Commission shall have a minimum of four members who shall be lay members not directly connected with real estate or land development.”
But, since the Planning Commission at that time had nine members, it would have permitted a majority with real estate or land development interests to dominate the proceedings. Voters overwhelmingly turned the tables by mandating those with financial interests in real estate or development be kept in the minority.
That restriction was apparently observed for two decades, until the first council to be elected from geographic districts took office in January 2015, and later that year the new council members appointed a wave on inappropriate applicants to the Planning Commission.
“Frankly the city should be embarrassed that the top legal officer of the state had to sue them because they couldn’t follow their own charter,” Lewis said. “They were given every opportunity to fix it and they refused.”
Don’t settle for bits and pieces of the story. Get our in-depth coverage:
Request for District Attorney to File legal action to Remove Disqualified Planning Commissioners, October 30, 2017 (3 pages)
Resolution 20180510-016, which establishes an application process for those seeking appointment to the Planning Commission and requiring creation of a process for removing Planning Commissioners, May 10, 2018 (3 pages)
Related Bulldog coverage:
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