Help needed! Update on Valid Petition Lawsuit on The Grove

Good morning, neighbors!

I’ll start with an apology: you’re going to get a lot of Grove emails this week. In spite of the fact that there are massive gaps in the information required to make an informed decision on the biggest zoning case in Central Austin history, City Council looks like it’s bowing to the relentless pressure from Milestone/Topfer to hear this case on Thursday. It’s going to be a busy week, and we’re going to need a ton of help from you.

As you’ve heard, the hearing on Valid Petition rights for the neighbors within 200′ of the site didn’t produce a verdict this week. The judge will come back to the case AFTER the City Council has voted to determine if they violated the rights granted to the plaintiffs by State law. This gives the City Council an opportunity to get the City’s policy in line with State law now, so their vote won’t be overturned by Judge Meacham later.

Below, BCRC’s VP Grayson Cox spells out a lot of the details and explains very clearly why the City’s policy is in conflict with the State law. We know that in 2008, City Council adopted a unanimous resolution to sort out this problem, but City Staff failed to comply with the directive. We also know that in this case, City staff told us that Valid Petition would be in play as late as April 2015. Sources inside the review have confirmed that this was not just an error, there was a plan in place to resolve the conflict with State law, but apparently, pressure from Milestone on Management changed that. What been done to these neighbors in this case is absolutely disgraceful.

Take a moment to read Grayson’s legal wrap-up below, then take a minute to tap out an email to City Council today. We need to flood them with emails.

- Pick any topic- there’s an abundance of issues (Valid Petition rights, Bike Lanes, the “Road House”, Parks, Flooding, Affordable Housing, Traffic, Common Sense).
- Put it in your own words; they’ll get some robo-emails from the other side, but they just trash those.
- Be sure to tell them you’re from Rosedale!
- It doesn’t have to be long or eloquent, just let them know that we expect them to get this right and deliver a truly Superior PUD that’s a win-win for all.

(Council email addresses below)

Chris Allen
W. 39 1/2 St.

Council emails: Steve.Adler@austintexas.gov, Ora.Houston@austintexas.gov, Delia.Garza@austintexas.gov, Sabino.Renteria@austintexas.gov, Greg.Casar@austintexas.gov, Ann.Kitchen@austintexas.gov, Don.Zimmerman@austintexas.gov, Leslie.Pool@austintexas.gov, Ellen.Troxclair@austintexas.gov, Kathie.Tovo@austintexas.gov, Sheri.Gallo@austintexas.gov

———- Forwarded message ———-

From: Grayson M Cox
Date: Sun, Aug 7, 2016 at 1:14 AM
Subject: Update on Valid Petition Lawsuit on The Grove PUD
To:

Dear Mayor and Council,

You’ve likely heard by now that City staff decided to deny neighbors of The Grove PUD valid petition rights, and neighbors filed suit against to have the District Court determine if valid petition rights – as mandated by the Valid Petition Rights Statute of the Zoning Enabling Act – apply to The Grove’s zoning case.

Although both the City and neighbors wanted this issue settled prior to Council considering The Grove case, Judge Meachum of the 201st District Court decided that Council – you – must act first. Essentially, the judge wants you to decide if the valid petition filed in this case is valid and triggers a super-majority vote. And if you agree with Greg Guernsey’s opinion that the valid petition does not apply even though it meets all legal requirements, the case will be litigated and the judge will decide if that decision was in contravention of State law.

Since this initial decision to recognize the valid petition filed against The Grove PUD is yours, courtesy of the District Court, I wanted to explain why the valid petition DOES apply and Mr. Guernsey’s opinion is wrong:

The issue is simple: Can the City rewrite a State statute with an ordinance? The statute says valid petition rights apply whenever there are regulation changes. There are at least 27 regulation changes proposed by The Grove PUD application, not to mention the necessary amendment to the Land Development Code to create a PUD with its own special zoning. The city ordinance relied upon by Mr. Guernsey’s opinion ignores the statute language on regulation change and goes off on a different concept not in the Valid Petition Rights Statute.

The Texas Constitution says cities cannot do that, and when there is an “inconsistency” like this, the city ordinance is preempted and invalid. No court can avoid that and this issue was not addressed in the Appolo Development case also relied upon by Mr. Guernsey’s opinion.

None of the sound and fury of The Grove’s developer (or the City staff for that matter) can get around what the constitution says and what the courts say regarding the requirement of strict compliance with the Valid Petition Rights Statute. This is not an instance where the City has discretion in how it writes its ordinances, and the Judge made reference to this in her questions to The Grove’s attorney.

The simple solution for you, the City Council, is simply to say it will comply with the constitution and the superiority of the state statute and recognize valid petition rights and the super-majority voting requirement. If the City wants to preserve its ordinance, it should construe this case to be “rezoning” as it did with the 1994 rezoning case of a portion of this same former State tract, and/or because PUD’s always require a rezoning amendment changing the zoning from the base district regulations (Exhibit O of the Staff Report) to the PUD regulations under the City Code.

Another obvious factor in this case is the inclusion of the 2627 45th Street lot in The Grove PUD and how that changes the boundaries of the neighboring SF-2 zoning district – a classic example of “rezoning” under the City Code. None of the silly denials by The Grove’s developer can change the reality, confirmed by the City staff documents, that the 45th Street lot will be part of the PUD “site” and “infrastructure” (as opposed to off-site) and “integral to the viability” of the proposed development, with uses completely alien to its current SF-2 zoning – uses Mr. Guernsey admitted in his deposition would not be allowed without a zoning change. Boundary change is the other ground, in addition to regulation change, for valid petition rights under the State statute.

What’s the bottom line? City staff, at the behest of The Grove’s developer, changed their minds early last year and decided to interpret the Land Development Code in a way that contradicts State law and creates an illegal loophole to deny neighbors their valid petition rights. Neighbors filed a valid petition against The Grove anyways, and City staff verified that the petition meets all the applicable requirements to be valid, but denied it nonetheless.

If Council does not correct this injustice and comply with State law when you consider and vote on The Grove PUD, neighbors are confident that a District Court will determine that the valid petition is indeed valid and will invalidate Council’s vote.

How can we avoid this mess altogether? Council should indicate its support for BCRC’s beneficial amendments to The Grove PUD http://www.bcrcatx.org/wp-content/uploads/2015/08/BCRC-Amended-Grove-PUD-Summary-for-ZAP1.pdf and that its approval relies on the developer’s agreement to these amendments. (I suspect you might be surprised how quickly The Grove’s developer gets on board.)

These amendments increase residential and affordable housing, decrease traffic, and ensure truly superior community benefits in exchange for an unprecedented amount of development entitlements (1 million square feet over the staff’s baseline). With approval of the BCRC’s proposed amendments to The Grove PUD, all six surrounding neighborhoods and the BCRC will drop their opposition to the case and the valid petition issue will be moot.

There’s a free and clear off-ramp to this traffic jam, and it’s the approval of the BCRC’s amendments to The Grove PUD. Please do the right thing, and thankfully in this case, the right thing is also the way to avoid a legal snarl that would likely invalidate a city ordinance.

Lastly, I understand this is a LOT of information to digest, and you all have a ton on your plate right now. I’ll be happy to answer any questions from you or your staff, and many would support a postponement of The Grove so these and other many issues can be better understood.

Thank you for everything you all do for our city!

Grayson Cox
2621 W 45th

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