Well it’s pretty clear that we’ve touched a nerve with our stated intent to overturn the council’s anticipated decision to borrow money to cover its budget shortfall.

The city manager sent me a memo from Stan Lowry, City Attorney this morning:

MEMORANDUM

TO: Dan O’Leary, City Manager
City of Keller

FROM: Stan Lowry
Boyle & Lowry, L.L.P.
Leroy Grawunder, Jr.
McCall, Parkhurst & Horton L.L.P.

DATE: March 29, 2010

SUBJECT: Application of Charter Section 7.03 to General Obligation Refunding Bonds

The City of Keller (the “City”) is preparing to issue general obligation refunding bonds to refinance portions of its outstanding Combination Tax and Tax Increment Reinvestment Zone Revenue Certificates of Obligation, Series 2000, and Combination Tax and Tax Increment Reinvestment Zone Revenue Certificates of Obligation, Series 2001.

You have informed us that a citizen has notified you that he is planning to submit a petition pursuant to the City’s’ home rule charter to require a referendum election on the ordinance authorizing the proposed refunding bonds, and have asked what would be the effect of such petition on the issuance of the bonds. Section 7.03 of the City’s home rule charter provides that any ordinance passed by the City Council is subject to referendum if a petition, meeting the requirements of the charter, is filed.

The proposed refunding bonds would be issued pursuant to Chapter 1207, Texas Government Code. Section 1207.003, Texas Government Code (“Section1207.003″), provides that refunding bonds may be issued without an election, unless an election is required by the Texas Constitution. We are not aware of any constitutional provision that would require a municipality to hold an election with regard to the issuance of general obligation refunding bonds.

It is a recognized principal [sic] of Texas law that if there is a conflict between State law and a home rule charter provision, State law prevails. Section 1207.003 specifically authorizes a governing body to issue refunding bonds without holding an election. A home rule charter provision that requires, upon the filing of a petition, a referendum election on the ordinance authorizing the refunding bonds contradicts the authority granted by Section 1207.003, and therefore such ordinance would not be subject to the referendum requirement of Section 7.03 of the charter.

State law requires the refunding bonds to be submitted to the Texas Attorney General for review and approval. We have contacted the Public Finance Division of the Attorney General’s office to determine if they agree with our analysis and will let you know if they agree or not.

Please contact us if you have any questions regarding the above, or if we may be of further assistance.

Wow.

First, Texas courts have ruled repeatedly that the power of referendum is reserved, not granted, to the people. As such, its provisions must be liberally construed in favor of the reservation [of the power of referendum].

Second, courts have ruled that the power of petition can be “limited…through either express directive or by implication. Quick v. City of Austin, 7 S.W.3d at 124. And, before it can arise through implication, the provisions must evince a clear and compelling intent to limit the power.”

Let me stop here and ask two important questions:

1. Where in Section 1207.003 of the Texas Code does Mr. Lowry find a clear and compelling intent to limit the power of referendum?
2. Whom does Mr. Lowry represent?

The answer to question #1 is left to the informed reader. The answer to question #2 is found in the City Charter:

Section 5.04. City attorney.
The city council shall appoint a competent and duly licensed attorney practicing law in Tarrant County, Texas, who shall be the city attorney. He shall receive for his services such compensation as may be fixed by the city council and shall hold his office at the pleasure of the city council. The city attorney, or such other attorneys selected by him with the approval of the city council, shall represent the city in all litigation. He shall be the legal advisory for, and attorney and counsel for, the city and all departments thereof.

So the City Attorney represents the City. And that includes us. Page vi of the Keller Budget lays out an organizational chart that puts The People of Keller at the top. So whom does he represent when there is a conflict between the city council and the people they represent? History says he represents the council every time, and sometimes represents the city manager against the people and the council.

Here are some lowlights of Mr. Lowry’s tenure with Keller:

• Failed for ten consecutive years to recognize a blatant charter violation with the city manager’s contract.
• Failed to timely disclose pending lawsuits against the city to the city council.
• Allowed the threatened exercise of sovereign immunity in response to potential litigants without the council’s knowledge.
• Held at least one secret meeting with the city council without justification (consideration of animal control petition.)
• The above memo

Mr. Lowry’s argument is without merit, and it’s time for his tenure to end.

So where was I? Oh yeah…

This blog has been resurrected, remodeled and renamed, at least temporarily, to take advantage of a rare opportunity.

How many times in the last few years have you anguished over government excess? And how many times were you able to do something about it? To rapidly effect real change?

Sadly, there’s little we can do about Washington or Austin. And due to our omnibus budgeting process, it’s usually impossible to limit Keller’s excesses, too.

The following letter to the editor of the Keller Citizen should appear in next week’s paper, to be followed the next week with a quarter-page ad displaying the same a week later:

A year ago the city council, facing declining revenue, nonetheless directed the city manager to lay off NO city staff under any circumstances. In the year since, the circumstances have only worsened.

Development in Keller has slowed dramatically (more than 50%) but the Community Development Department is still fully staffed.

Now the council is planning to issue new debt to cover its budget shortfall. It will cost taxpayers an additional $2.7 million. Council members have flatly refused repeated pleas to even consider budget cuts instead.

We now have a rare opportunity to take a firm stand against wasteful spending. We can overturn the council’s decision and take away their credit card by filing a petition of referendum. We need only about 500 signatures, but we firmly believe we can get many more.

If you’d like to help in this effort, with time or money, please contact us. Signatures will need to be gathered April 7th through May 5th. Read more at www.kellercitylimits.com or beyondrightfield.wordpress.com.

Jim Carson, Keller City Councilman 2006-2008
jim@kellercitylimits.com
817.874.7755

Doug Miller, Planning and Zoning Commissioner
doug@kellercitylimits.com
214.215.0870

I posted this under a different headline, questioning the Texas Open Meetings act, and got it all wrong.

Had lunch today at the new Zaxby’s and ran into Mayor Pat McGrail. He told me there was an article coming out in the Citizen tomorrow detailing how three City Council Members showed up for the 2:00 pm Town Center Vision Meeting on October 16th.

The meeting did not have a posted agenda, therefore it is not allowed to have a quorum show up and discuss items that may come before them at a later point. I know Councilman Mitch Holmes stated on this blog they were asked who wanted to show up for what meeting at their City Council Meeting on October 7th. I know P&Z Members were asked the same question at our meeting.

To be fair, I haven’t read the article nor did I want to interrupt the Mayor’s lunch to discuss this in more detail, so I don’t even know who is in violation.  I do know the Mayor told me he stayed away from both meetings to make sure there wasn’t a hint of a violation (two council members and the Mayor do not technically make a quorum, but the law is so widely interpreted by the courts, you go out of your way to make sure you don’t violate it).  I am interested to hear the excuse given by the offending council members, and why one didn’t get up and leave when three showed up?

UPDATE:  The Mayor called and wanted to clarify things, said that Ray Brown did leave after he realized there were three council members there and that his concern was more on how it would read in the paper rather than the three members being there.  He read the blog and wanted to make sure I reported it right.  As I said, I didn’t want to interrupt his meal any more than I did, so maybe I jumped the gun.  My apologies. We will see the reaction after the paper comes out tomorrow.

UPDATE #2:  Councilman Mitch Holmes responds in a comment on this post basically summing up what the Mayor said to me in his voicemail, but with more detail.  I’ll repost it here so it will be read by those that just scan the site and don’t read the comments (the juciest part of KCL)

The mayor told me Tuesday night he likes to stick to two council members max at any unposted event to avoid the appearance of a quorum, that appearance being drawn from the fact that three votes can make a majority vote in session. Personally, I disagree… if a quorum is legally defined in the Charter as four, and three appears less than four, then three doesn’t appear to be quorum.

Regardless, respecting the mayor’s preference for the more conservative approach, not to mention Doug’s litany of AG questions, we had a mix-up when three showed up. To keep the mayor’s wishes, Councilman Brown left within just a few minutes… five by my estimate. I sat next to him in the back, and didn’t even know Councilman Baker was in the front of the room until he stood up and walked back to Ray to discuss which of them would leave. Then Ray got up, whispered to me he was leaving, and left.

To explain the mixup, Ray told me Tuesday night that two weeks earlier, when the mayor was confirming attendances, both he and John heard the mayor and me agree that I’d attend the evening session. I don’t doubt they understood that, but I agreed to attend the afternoon session, and put the 2:00 time in my BlackBerry as we spoke. Plus, their understanding would have destined the evening session to the same dilemma, so my case is almost made. The only question, then, is how five of us thought we were attending two events, with no more than two attending either one.

I can’t answer that. But between the letter and intent of the Charter, copied above by Jim… which allows three to attend… and Ray’s leaving within the first few minutes of the 2:00 session… reducing council attendance from three to two… I think there’s only enough substance left in this story for the most conspiring of theorists. In fact I think it’s a non-story and will be interested to read what the Keller Citizen makes of it.

I absolutely agree with Jim that the Texas Open Meeting’s Act hurts cities, particularly when there is a town hall meeting that several elected officials might want to attend out of interest for their community. But I also don’t see why we don’t just post them, and let them come. I feel I missed too much of what was said at the 7:00 session by trying to watch it in a 2 1/2 inch box. And the mike never gets passed around very well during the spirited exchanges, so the viewing audience misses that entirely. Then there’s the absolutely vulgar sound the podium mike makes to the viewing audience when it gets gnarled around.

Update #3: I went to the Keller Citizen office to get an advance copy of the paper. The story mentioned that three council members attended the 2:00 meeting, but said nothing at all about quorums or the Texas Open Meetings Act.
–Jim

Update #4: I renamed the post and apologize to the readers for getting this all wrong. - Doug

I couldn’t attend the meeting due to a conflict in my schedule that came up at the last minute…..work comes first.  I just got home a few minutes ago and I will watch the meeting later and comment on it in a followup post.  I caught the closing seconds on the TV when I came in and it looked like they had a good crowd.

Just received an email from Chris Fuller with some good news.  I’m not taking credit for this, but I’m glad it’s happened.

Doug,

 The City will be conducting a second public input meeting for the Town Center Visioning Project.  The meeting date has not yet been determined but will likely be held the second week in November.  The intent is to involve the public prior to the Thanksgiving holiday.

 A date in November will be selected and public notices will be mailed and advertised this week.  That will provide a four week lead time before the meeting.

 If you have any questions, please do not hesitate to contact me.

 Thank you,

 Chris Fuller

 

I highlighted the important parts.  Score that a victory for open and transparent government. 

I sent off an email to the Mayor as I stated I would in an earlier post.  I explained that I was extremely disappointed in the timing of the meeting on Thursday and that he and staff should have done a better job letting the public know about the Thursday meeting.  Late tonight I received a response from Assistant City Manager Chris Fuller.  In carrying on the tradition of being completely open, here is the entire email:

Mayor McGrail has asked that I respond on his behalf regarding the Town Center Visioning Project process.

It is not staff’s intention to limit public input regarding the Town Center Visioning Project process.  There will be several opportunities throughout the process for the public to provide comments and recommendations regarding development standards within the Town Center zoning district.  The Workshop being conducted by the facilitator at 7pm on the 16th is one method for soliciting citizen input.  (As an aside, the workshop being held on the 16th will be televised, recorded, and available as streaming video on the City website.)  Citizens who are unable to attend the workshop, or who would like to submit additional information after the workshop, will be able to fax and email comments to staff throughout the month, as well as provide input at the Planning and Zoning Commission and City Council public hearings (dates TBD).  Staff has also developed a webpage, accessible through the City website, that is intended to inform the public of current Town Center Visioning Project events and to provide additional avenues to submit public comments.

Among the goals of this project is to engage as many of the citizenry as possible.  To do so, staff has mailed workshop notices to all Homeowners Associations within the City and to property owners within 200 feet of the Town Center zoning district.  The notices were mailed 10 days prior to the Town Center Visioning Project Workshop, which is the notification standard for rezoning public hearings.   Staff has also emailed a number of individual citizens who have been involved in previous Town Center discussions and activities.  In addition to the notices sent to advertise the Workshop, staff has mailed notices informing property owners within 200 feet of the Town Center zoning district and to all HOAs within the City of the continuing public comment period through the end of the month, staff’s fax and telephone numbers, and email address.

Notices advertising the October 16 Workshop meeting were also sent to subscribers of the Mayor’s Update, and listed throughout the City website including the following locations:  the Homepage Calendar, the Homepage Highlights, the Keller News, Community Development Events and Community Development News.  Announcements were made at the October 7 City Council meeting as well as the October 13 Planning and Zoning Commission meeting.  A notice was posted in the October 12 Fort Worth Star Telegram Northeast Edition.  Additional newspaper notices will be published in The Keller Citizen advertising the public comment period as well as postings throughout the City website, including the upcoming Mayor’s Update.

The Workshop being held on the 16th is simply an instrument for gathering citizen input.  No decisions will be made, no votes cast, no plans unveiled.  The purpose is to invite public participation.  City staff will not be present at this meeting so that the facilitator can receive unfiltered, unbiased comments, opinions, and recommendations directly from citizens throughout the City.  Citizen comments received after the 16th will be forwarded to the consultant (and to the Planning and Zoning Commission and City Council) and will be included in any reports and analyses regarding the Town Center Visioning Project.

Citizens who are unable to attend the Workshop will be able to access a recording of the meeting through the website.

Thank you,

Chris Fuller

Assistant City Manager

City of Keller

I like Chris a lot and think he is a remarkable hire for the City of Keller.  But, (there is always a but isn’t there?) Chris wasn’t here last fall, he didn’t experience the outrage of the citizens when Keller Station came on the scene.  The staff should have went out of their way to make sure this news got out in a better fashion than what happened.  As I stated, even as a member of P&Z we weren’t notified until last night.  Councilman Holmes has made a comment on another post stating basically the same thing, and he’s an elected official.

Chris states that the information is all on the City’s website, but really, how many people besides us weirdo’s that read and post on this blog read the City’s website on a weekly basis?

I now understand that there will be further opportunities to elaborate on the TC Vision project, but when you hold your first meeting before it makes the local paper it doesn’t look good.  I’m afraid it could poison the project before it gets off the ground and it’s too important a project to let that happen.  This is what the citizens want, public input into changing the Town Center UDC.  The people just wish to be heard.

What should have been a positive for the City has quickly turned into a negative because of lack of communication.  In a town of nearly 40,000 sending out a few hundred postcards and notifying the HOA’s doesn’t cut it.  Heck, I took it upon myself to email Hidden Lakes HOA and have yet to receive a response.

Maybe I’m being overly sensitive on this and please tell me if I am.

I do know one thing, me speaking out on this issue isn’t going to look good in my P&Z reappointment interview.  But you got to do what you got to do.

They are calling it a web exclusive…..but since we had it here on Friday night, I don’t know if I’d call it exclusive.

Tonight we were briefed about the Thursday Town Center Visioning meeting, requesting that only two members show up for the Public Meeting and a 2:00 meeting with the Mayor and staff to make sure we didn’t have a Quorum and violate the Texas Open Meetings Act.  I expressed my displeasure with the way the public was being notified during the meeting and in a short session I had with Richard Ludke after the meeting was over.

This whole thing has been bungled by staff and possibly the Mayor.  The explanation I recieved was that the Mayor wanted to get this process over before the Holiday season and the consultant pushed for this schedule.  Where the staff screwed up was not getting a notice in the Citizen last Friday.  Richard stated that they were given misleading information from the Citizen on when the deadline was for placing the notice in the paper so they missed getting it in the paper last week.  I told Richard that they needed more than a notice, that they needed to have a front page story detailing how the process was going to work.

I told Richard, as a citizen that I was disappointed in the whole process.  That with everything that happened last year at this time this whole process needs to appear to be as open and translucent as possible.  Right now it looks like they are trying to sneak one by the citizens.

There was some clarification given though, for those of you that can’t make the meeting, there will be a public comment period that officially runs from tomorrow through the end of the month.   Richard also stated that post cards were mailed to every HOA in Keller last Monday.

I am going to send the Mayor an email and ask his side of the story why this got so messed up.  It’s so disappointing because this should have been handled better.  I’d also like to hear Councilman Holmes’ opinion on this also, so Mitch, if you are reading, post up a comment or give me a call.

This was posted today in both the Mayor’s weekly update and the City’s main page.  I didn’t “read” the Keller Citizen, but rather skimmed it today and didn’t see a mention in there.  The timing of the meeting kind of ticks me off as this should have been publicized further out than 6 days.  Heck, besides this blog and the City’s website, all we have is a weekly newspaper to get the word out and the paper won’t come out until after this meeting is over.

The Mayor mentioned the Visioning Project in our interview the other day but he didn’t say the first meeting was going to take place next week…but I’ll give him a pass.  He showed me his Blackberry and the list of appointments and meetings he attends on a daily basis is mind boggling.  I don’t know how he finds time to eat.

I am also a member of P&Z and didn’t get prior notification of this meeting through that avenue.  I plan to ask Richard Ludke at the meeting Monday why this was put out on a Friday afternoon before a three day weekend instead of a week or two ago.

Enough of my rant…..here’s the blurb:

The City of Keller would like to invite you to attend and participate in the Keller Town Center Visioning project, at 7:00 PM, Thursday, October 16, 2008 at Keller Town Hall.

The public is invited to participate in this public meeting to gather opinions and discuss issues concerning the Town Center Zoning District. The meeting will be conducted by Mr. Dan Sefko, FAICP, from Freese and Nichols, Inc., on behalf of the City of Keller. The purpose of the meeting is to receive input from citizens and all other individuals, groups and organizations/associations interested in this process and to develop an updated plan for Keller Town Center. Please come to provide your input.

For more information, call the City of Keller Planning Division at (817)743-4130 or contact Richard Luedke, Planning and Development Manager, at rluedke@cityofkeller.com.

Why is this meeting important?  Because this is the first step in making sure the “Primarily Non Residential” designation stays in the Town Center UDC.  Not only that, if you want to strengthen the language about Apartments in the Town Center UDC, this is your chance to do so.

Because for some odd reason I’ve been posting a lot on this website instead of doing something more productive with my life, I will keep bumping this to the top this week.

Please, get the word out!  The more people that show up to express their opinion on this, the better it will be.

I’ve posted on the TIF many times.  I’ve written LTTE about the TIF many times.

Fast forward all these years and now we have a City Manager who is not afraid to tell the cold, hard truth.  As I stated in a comment on a previous post, Mr. O’Leary does have some cover on this issue, because he didn’t create it.  He wasn’t around for the beginning of this fiasco; he has to clean it up.

From the Ft. Worth Star Telegram today:

The city’s special tax increment financing district, which includes Town Hall, apartments and shopping centers, is facing a deficit of more than $500,000 next fiscal year to cover the interest payment for bonds used to create Town Center, City Manager Dan O’Leary said.

“The TIF has never paid its own way,” O’Leary said. “Since the beginning, the TIF had a shortfall that was made up by using funds borrowed.”

See, it’s right there in black and white….the TIF has NEVER paid its own way.  Just what I’ve been saying for nearly a decade.  In 2005, the City Council passed a huge incentive package, giving away building permits and rebating sales tax back to tenants, it failed.  Sure, Arthouse was built and they got free building permits, but it didn’t save Town Center.  In 2006 right before the Library vote, the Citizen did a front page story about how great the TIF was doing, happy times were here and this chicken little character in town saying all is not well is just not telling the truth…mmmmmmm, wonder who was correct and who was wrong?

More from the ST:

Although Town Center’s residences and businesses are expected to raise $3.1 million in property taxes next fiscal year, it’s not enough to cover the next $3.6 million interest payment on bonds issued for Town Center, O’Leary said.

To make up for the shortfall, the City Council has approved by borrowing the difference of $513,291 from the city’s general fund, tax revenue normally set aside for streets and public safety.

“These are real uncertain economic times; that’s why we’re in the situation we’re in,” Mayor Pat McGrail said. “Yes, we have fallen behind on revenue for Town Center but I feel optimistic development will come.”

I’ve said this day would come and I’m glad the new City Manager just gets right to the heart of the matter.  What we need is the truth.

But even as Arthouse moves forward, residents have begun to object to more Town Center projects that include apartments. In November, Greenway Investment of Dallas had to pull its project from City Council consideration after residents opposed its plans to build 324 apartments at Keller Smithfield Road and Keller Parkway along with shops, offices and restaurants.

“If that project had moved forward, we probably wouldn’t be talking about the TIF today, but sadly it included apartments,” McGrail said.

The city has hired a consultant to look at the uses allowed under Town Center’s zoning, McGrail said.

“We have to be careful that we bring in Town Center projects that are acceptable to the citizens and that support the TIF,” he said.

Don’t forget it either.  We should not lower our standards because the previous city manager, mayors and councils screwed up.  Rather than living with apartments for the next 50 years, it might be time to cut the budget for the next few years until somebody decides to build something other than multifamily in the district.

Former Councilman Jim Carson, who has been vocal against bringing more apartments to Town Center, said taxpayers may no longer be able to be selective because of the TIF. He believes that former city leaders overbuilt and overspent on Town Hall, he said.

“Residents are going to have to decide if they want to continue to limit development with apartments in Town Center or relax their standards to save money in their pocketbooks,” he said. “I think we made a mistake 10 years ago and now we’re paying for it.”

I was expecting a little bit more forceful statement from Jim, but I guess he’s mellowed in these past few months.

I think this is only the beginning of Mr. O’Leary dropping bombshells about future budgets.  If you read his comments within this year’s budget document, it is not full of happy and joy about future budgets, but rather doom and gloom.  Previous administrations have put this City in a bad situation, and now it’s time to pay the piper.

Monty asks the following rhetorical question in a prior post:

But to prevent this situation in the future, the “predominantly non-residential” language needs to be replaced by “no additional residential” or something equally unequivocal. Given the ubiquitous opposition to apartments in this town, I don’t understand why that hasn’t been done already. Can someone explain that to me?

First, the legal case for denying Keller Station goes well beyond the “predominantly non-residential” clause. All we need to do is to properly understand and uphold the definitions of single-family attached (which is a permitted use) and multi-family (which is NOT a permitted use.) We also have several limitations on the use of this land in the 1990 Town Center Guidelines. The 1998 update to the Town Center Guidelines only dealt with the properties in the heart of Town Center, and said nothing about parcels north of 1709.

But the primary reason this language hasn’t been made unequivocal is the Community Development Department doesn’t want to. They know—know—that apartments/condos/mixed use are the way Keller needs to go. It says so right there on page something-something of the City Planner’s Handbook. To them, you people who are so upset about high-density housing are just wrong, and they’ve got to explain to you why you’re wrong. And Mitch Holmes is right there with them. He said in a meeting tonight that Live/Work/Play* is something we have to do, or he might have said it’s the only way.

Monty also said “Harness and Kirk are not going to publicly discuss how they would vote…” I’m not sure if that’s true of Bob Kirk, but it’s definitely true of Mark Harness. Mark Harness is convinced that council members must not express opinions on matters that may come before council. He is so convinced of this that he voted that I had violated the City Charter by my actions on this blog as they related to Keller Station. I later asked him to provide supporting documentation for his view. He acknowledged my request, but never cited any rule that backed up his vote.

Keller Station was stopped cold by Doug Miller, yours truly, and the grass-roots legwork of citizens of Saddlebrook and Hidden Lakes. My role was 1) researching city codes and pointing out the ones that the city staff had failed to enforce in their initial assessment of the project, and 2) fostering debate on this website. For this, Mark Harness branded me a scofflaw. Curiously, he said just before his vote, “I can honestly say I haven’t read the blog in over a year.” What the heck does THAT mean? Is he somehow proud that he has ignored the reasoned debate of two Keller councilmen and many of his own constituents?

You can stop future Keller Stations by remaining ever-vigilant and then working your tails off on petition-and-email campaigns, or you can elect some more councilmen who will do it of their own volition through the courage of their convictions.

*Another euphemism for high-density residential/mixed use development

From the DMN today:

These days you can’t build anything bigger than a branch bank without someone calling it a town center.

The truth is that most of these suburban wannabes are far from the center of anything and amount to a strip mall with a few apartments sprinkled on top.

Along with village, town center is one of the most overused labels in the developer tool kit.

Back in the 1970s, everything was called a place, and in the ’80s it was centre. Now every other project is a town center. Catching on fast are commons and park.