A judge struck down fee waivers of $50 million to $80 million for the Easton Park development in Southeast Austin on Friday, saying Austin city leaders violated the Texas Open Meetings Act when they passed them.
The City Council voted in December 2015 to waive all fees for the development — a total of 6,500 single family houses and 1,500 apartments — in exchange for the developer putting that money into a fund to make 650 homes permanently affordable. But some council members realized only after the vote that city utilities would take a hit of at least $50 million over 30 years as a result of the deal on the development, which is also known as Pilot Knob.
Friday’s ruling voids that council decision.
Civic activist Brian Rodgers sued the city in February, arguing the council didn’t give the public advance notice of the deal.
State District Judge Stephen Yelenosky agreed, noting that the agenda item city leaders posted at the time spoke only of an ordinance to amend the property’s zoning.
“The subject matter of zoning a development does not, without more, alert a reader to an approval of water impact fee waivers,” Yelenosky wrote.
His decision adds that the actions taken were particularly important to the public.
“The dollar amount of the waivers is very large and the effect will be felt for 30 years,” his decision says.
“I’m proud to be part of a Council that is actively trying to do things to address affordability in Austin,” Mayor Steve Adler said in a statement Saturday about the ruling. “If we didn’t follow the correct procedure here, then we’ll just redo and fix that.”
Adler and Council Member Delia Garza were the architects of the deal. All the City Council members approved the fee waivers except for Council Member Don Zimmerman, who abstained from the vote.
A second, unrelated, lawsuit involving the development is pending. One of the homebuilders involved in the development is suing, calling the fee waivers a “highly suspect funneling of millions of dollars in public funds.”
Rodgers and his attorneys, former Travis County Judge Bill Aleshire and Republican activist Roger Borgelt, celebrated the ruling with a news release Saturday.
“It is sad that this Mayor and this 10-1 Council so stubbornly refused to correct and repost the Pilot Knob agenda item,” Aleshire said in the release. “Voters in Austin have every reason to doubt this Council’s devotion to transparency.”
At least if the council votes again, the public won’t be surprised, Rodgers said in an interview.
“As somebody who watches out for fee waivers, I had no idea there was going to be this mammoth giveaway when it came before the council in December,” he said. “The agenda posting was just about zoning, and it was a Trojan horse for all these other things.”
However, if the council passes identical measures again, Rodgers said he will sue again, claiming the deal doesn’t qualify for the fee waivers under state law. Rodgers made that claim in his recent lawsuit, but Yelenosky declined to rule on that aspect of the suit because voiding the council vote made it moot.
“If they try again, we will act,” Rodgers said.