Lawsuit potential delays vote
BY PHIL REYNOLDS SOUTH JETTY REPORTER

The reported threat of a lawsuit drove city council members into a closed-door session on Thursday, July 19, before they agreed - sort of - to delay a vote on the second hearing of a special use permit until Councilman Rick Pratt is back on the council.

Four council members who were present - Mayor Claude Brown and Councilmen Keith McMullin, Mike Hall and Bubba Jensen - voted in favor of tabling the matter until August. Councilman Charles Bujan voted against the move; Councilman Keith Donley abstained.

Pratt, who was absent last month and at Thursday's council meeting, hasn't sat through a discussion on whether the council should have turned down the permit and then immediately tabled the question. But because more than 20 percent of nearby property owners objected to the project, the council must pass the enabling ordinance by 75 percent or more. With a seven-member council, that means six of the seven must vote in favor.

Pratt also hasn't been part of a discussion of whether developers must submit an environmental study to the council.

Both the vote to table and the study caused tempers to flare at Thursday's meeting. The issue also sent the council into an unannounced closed-door session for what City Attorney Mike Morris called "taking advice from their attorney on pending or potential litigation."

No lawsuit was mentioned during the open council session, either before or after the audience was locked out of the council chamber.

At issue is whether developer Tom Culp should be allowed to build a project on the former Island One Marine property near Oleander Street and Avenue A, and rent to short-term visitors.

The short-term rental is the basis for the special use permit. The property is already zoned R-2, which - as Culp pointed out - means he can build the 20-unit project with or without the council's approval.

The project gained planning and zoning commission approval after those who objected were heard. It also breezed through the first reading before the council, in May.

But that was before the council learned that the 20 percent objection ratio called for the so-called "super majority" council approval.

In June, when the matter came up for the second reading, four council members voted in favor and two - Bujan and Donley - voted against. A motion was then made to table the question and bring it up again in July.

It's that motion that Bujan questioned, to the point of bringing a formal point of order to Thursday's meeting.

"I'm agreeable to having it put on another agenda, but at this point I believe it should go back to (the planning and zoning commission), because we voted and it failed," he said. "I've never heard of a vote being taken and then tabled."

But Morris told the council that they have no overriding set of rules by which they have to abide. He said the legislature hasn't passed parliamentary procedure for local governments, and judges won't become involved in the question.

"Courts are not going to get into regulating how councils operate," he said. "They're going to say, 'Make your own rules.' They're going to say if you decide one time you need to do something differently, or if you decide you have a gap that needs to be mended, the court's … not going to get involved. They'll even say the majority may elect to suspend or modify its own rules."

Bujan agreed that the matter could be tabled until August, but some council members argued that Culp should be told at the Thursday meeting what he'd have to do to satisfy the council.

"We need to let the developers know what's expected of them before we close this matter," Jensen said.

Brown then cleared the council chamber and ordered the council into closed session for a discussion.

Following the closed session, members voted 4-2 - with Donley and Bujan again voting no - that they considered the June tabling of the matter a legal vote.

It still left councilmen with the questions of what to do about the people who objected to the project, and of whether the council should be concerned about environmental issues.

"If property owners have an issue, they can call the Texas Commission on Environmental Quality (TCEQ), and they'll send someone to look at it," City Manager Michael Kovacs said.

"I don't think the city should take speculation and have staff call TCEQ on it."

Doug Frank, who owns the property, said, "I worked with Mr. Culp through (planning and zoning), and resent the allusion that we have a polluted property. I don't have some kind of chemical waste dump. We went through with this and worked with you, and you've now thrown blood in the water. You've decided to create an issue where there wasn't an issue. You've incited people to stand up here and say maybe if we do this, nothing will happen. I hope you don't regret that."

Engineer Jim Urban, who is acting for Culp on the project, told the council, "We're under a little problem because we've tried to do everything we can do - we've changed the layout, we've done everything they want. Some of those people just don't want anything there, and I think the job of the council is to look and see if the developer has done everything reasonable to solve the objections. If 22 percent don't want anything built there, I don't think it would be reasonable to (turn down the application).

"We thought the only issue remaining was the environmental one," Urban said. "We've now spent a bunch of money on an environmental study to satisfy the council, and we're still told we can't build. I remind the council that there's very little in the special use permit that isn't allowed under R-2. The only difference is that we're asking to reconfigure it to allow short-term transient rentals."

Culp came to the microphone to tell the council, "We're putting in two fewer units than we have to. Correcting two dead-end situations on Roberts and Farley (streets), so if a fire truck or ambulance needs to get in there, they can. That should address your problem. I'm reconfiguring to bring the buildings away from the property line. I've redone setbacks.

"I'd really like to know next month what's going to be your issue, because this is getting frustrating - and expensive. As far as the 20 percent, I could have gone around before this meeting. We had a unanimous vote at (the planning and zoning commission) - unanimous. And if they vote unanimously and get shot down, you shouldn't even have a P&Z.

"I feel this is a viable project that's being held up unnecessarily."

"If you're opposed to the project, you should say so and not have these red herrings about environmental and that," added Realtor Mark Grosse, himself a former council member.

"I made the original motion to approve it," Donley pointed out.

"I need to know whether I've addressed your issues," Culp said.

Donley: "I haven't seen the environmental summary."

Culp: "I walked into your office and you read the executive summary, and I asked if this addressed your concerns, and you said yes."

Donley: "You walked in and let me look at it for 30 seconds, and wouldn't let me keep it."

Culp: "If you want me to make copies, I can. There's been a bunch of stuff around this property, nothing on this property. If this is your issue, you can read it tonight, you can pass it around up there. But if that's your issue, I'd like to solve it. You know it's not your position as a council to have that as an issue."

Donley: "I agree, but I also agree that I have the right to make my own decisions and vote my conscience, and when it comes election time I'll have to justify it at the ballot box. If I was against the project I wouldn't have made the motion to approve at the first meeting."

In the end, the council voted to bring the matter back up again for a second reading in August.

That meeting is scheduled for Thursday, Aug. 16, at 5 p.m. in the council chamber, 710 W. Avenue A.