San Marcos Mercury | Local News from San Marcos and Hays County, Texas

October 29th, 2009
BudaFirst sues city over food facility

Stahl Urban, left, of BudaFirst, and Hays County Precinct 2 Commissioner Jeff Barton, right, discuss the US Foodservice issue at a recent meeting of the commissioners court. Photo by Sean Batura.

By SEAN BATURA
News Reporter

BUDA — A pair of Buda residents is suing the city for refusing to allow residents to vote on a city council decision that greases the skids for US Foodservice to locate east of town.

On June 2, the city council voted to allow light industrial land uses in a 95-acre area of extraterritorial jurisdiction (ETJ) land formerly designated only for commercial, office and retail uses. Funded by a family with land holdings near the site, a group called BudaFirst has formed to fight the location of US Foodservice on the tract in Sunfield Municipal Utility District (MUD).

Though BudaFirst later collected 788 signatures on a referendum petition to put the matter up to a public vote, Buda councilmembers voted, 6-1, on Sept. 15 to prohibit the referendum. City Attorney Susan Rocha advised councilmembers that the June land use change is not an action lawfully subject to a referendum.

The council’s June decision to allow light industrial uses on Turnersville Road site was essentially an update to a land plan created by the second amendment to Agreement Concerning Creation and Operation of Sunfield Municipal Utility District  No. 1. The council’s June land plan change constituted the third amendment to the MUD consent agreement.

“The whole purpose for a referendum is to reserve certain powers of self-governance in the people,” said Irion and Slade Partner Terry Irion, who is representing the pro-referendum Buda residents. “We’ve got a city council. We elect them, they legislate, they make all these legislative decisions — they approve zoning, they exercise the police powers and manage the city, they enter into contracts, they authorize MUD consent agreements, they authorize the land plans for these MUDs — but every now and then, if we don’t like what they’re doing, we’re going to reserve in ourselves, the people, the right to challenge that decision.”

Former Buda Mayor Jim Hollis and Buda realtor Christopher Juusola filed the suit in the Third Court of Appeals in Austin. The suit does not name BudaFirst.org as a plaintiff.

As of the latest financial filing by the BudaFirst political action committee (PAC), the descendents of the late rancher Herman Heep provided all of the organization’s funding. Heep Ranch Properties, Ltd, married couple Carl and Betsy Urban of Buda, and their son, Stahl Urban, an Austin resident were listed as the contributors. Heep Ranch Properties is owned by Kathleen Adkins. Adkins and Betsy Urban are granddaughters of the late rancher Herman Heep, who established a large spread straddling the line between Hays and Travis Counties lying mostly on the east side of Interstate-35.

“(The Heep) family was the owner of that property that was sold to the Winfield developer,” said former Buda Planning and Zoning Commission (P&Z) member Rahm McDaniel. “In fairness to them, I think they sold it anticipating that there was going to be a lot of retail synergy coming in as a result of the Winfield development. But when Southpark Meadows came in and the hospital went in Kyle, that sort of sucked the oxygen out of the atmosphere for retail development. So, that’s how we got where we are right now.”

McDaniel was chairman of the Buda P&Z when it issued a unanimous recommendation in February to allow light industrial uses in the disputed 95 acres.

The land use change allowing light industrial use within the 95 acres is necessary for US Foodservice’s construction of a proposed $50 million, 500,000-square-foot regional headquarters and distribution center on about 40 acres near the intersection of Turnersville Road and CR 118.

Opponents of permitting light industrial for the site in general and of locating US Foodservice there in particular warn of lower sales tax revenue and more traffic congestion, air pollution and water waste than the retail and commercial land uses originally intended for the area.

City staff and US Foodservice officials said additional heavy truck traffic would be negligible. McDaniel said commercial uses for the area would entail a great deal more traffic than industrial uses. Proponents of the US Foodservice facility claim city residents would benefit from the 157 jobs the company said would be created at the facility within 10 years. US Foodservice said it pays its warehouse personnel and truck drivers anywhere from $45,000 to $55,000.

Buda’s annual sales tax income increased from $774,000 to $1.4 million immediately after Cabela’s opened in 2005. After Wal-Mart opened near Cabela’s a year later, the city’s sales tax revenue increased to $2.3 million. Buda City Manager Kenneth Williams said in August that the US Foodservice facility would bring $100,000 in sales taxes annually to the city.

Buda City Councilmember Ron Fletcher, who, along with Councilmember Sandra Tenorio, voted in June against allowing light industrial uses in the 95 acres, recently estimated that the land could have accommodated “two or more” big box stores. Tenorio cast the lone vote on Sept. 15 against disallowing the referendum.

“The company is aware of the (referendum) petition, but we have no comment about this pending legal matter involving BudaFirst and the city of Buda,” said US Foodservice representative Howard Falkenberg.

Before the pro-referendum Buda residents filed their lawsuit, they sent the city council a letter demanding that it reverse its June decision or allow a referendum.

In March, two months before the last city council election, Buda councilmembers voted unanimously to deny Sunfield MUD’s earlier request for industrial uses to be allowed in the entire non-residential area north of Loop 4 and Main Street. Before the residents sued, Falkenberg said of their demand letter: “I do not expect it to have any impact on our plans.”

Falkenberg said Tuesday that US Foodservice had not yet purchased 40 acres of the tract from 2428 Partners, LP. The City of Buda, Sunfield MUD No. 1 and 2428 Partners are the parties to the MUD consent agreement.

“The Sunfield site will not be closed until all due diligence items have been cleared,” Falkenberg said. “That has not yet occurred, and I am not certain when it might happen.”

Irion said he filed a motion to prevent the granting of any permits that would facilitate the building of the US Foodservice facility. Irion filed a petition for writ of mandamus in the Third Court of Appeals in Austin on Oct. 9. The court hasn’t yet taken action.

The company months ago asked the Hays County Commissioners Court to fund construction improvements to Turnersville Road and CR 118. In August, the Hays County Commissioners Court directed county staff to create a Tax Increment Finance (TIF) agreement whereby the county could fund $1.8 million (including debt issuance cost) in road improvements using ad valorem taxes collected within a specified boundary encompassing at least the proposed US Foodservice facility. US Foodservice offered to pay the difference if the property taxes generated within the zone over a certain period of time are not sufficient to pay for the debt on the roads.

Hays County Judge Liz Sumter (D-Wimberley) voted against improving the roads. The commissioners court has not yet executed a TIF agreement with US Foodservice.

US Foodservice officials have said their proposed facility would generate $2.7 million annually in property taxes. The city will not collect property taxes within Sunfield No. 1 until the MUD pays off its bonds, which probably will not be until 2037.

“There are competing visions between developers and within the Buda community about how development agreements ought to be structured, as well as exactly what type of growth should be directed where,” said Hays County Precinct 2 Commissioner Jeff Barton (D-Kyle). Barton represents the region including the area in and around Buda.

Continued Barton, “None of us can completely control how growth unfolds, but I congratulate the citizens of Buda for trying to at least manage and shape growth as best they can to fit the community’s goals. I don’t believe the county should try to dictate the outcome. What’s right for one town may be different for another. The decision belongs at the most local level. I will work to support and coordinate at the county level whatever decisions are reached by the citizens of Buda. Typically, that means listening to the city through its elected council, but I will respect any outcome that legally reflects the views of Buda citizens.”

The light industrial designation within the disputed 95 acres allows for uses such as manufacturing, processing, fabrication, assembly, disassembly, packaging, warehousing and distribution of food products, apparel, accessories, home decorating materials, furniture, building materials, computers, electronic devices, medical supplies, books, newspapers and other printed materials, and comparable items, to be conducted entirely within an enclosed building, and for custom carving and packaging of meat, seafood and poultry products, to be conducted completely inside a self-contained building, and for parking, vehicle maintenance and fueling facilities accessory to the preceding uses.

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17 thoughts on “BudaFirst sues city over food facility

  1. Pct 2 County Commissioner Jeff Barton was quick to push for a Tax Increment Finance (TIF) agreement whereby the county could fund $1.8 million in road improvements for mighty U.S. Foods, against the expressed wishes of 788 of his constituents who signed the petition.

    Now we find out that Barton, “…will respect any outcome that legally reflects the views of Buda citizens.” That’s Barton weasel wording for he will abide by the court decision, but you can bet he will push the county TIF forward if the court denies a public referendum on the matter. So much for “respecting the views of Buda citizens.”

  2. What is wrong with a large corporation coming to Buda and creating higher than average jobs?

    It seems ridiculous that these “Buda First” folks are suing there OWN city. Is creating a lawsuit which will cost their city money really thinking of “Buda First”? Or are they just thinking of “Themselves First”? If they don’t like what is happening with their growing city, they can always move somewhere else.

  3. Get off your high horse Mr. O’Dell. Suing is what you do best. It’s not like you haven’t done it yourself before….

  4. Sorry Charles, I misread. On my first cup of coffee. That last comment was for you Jake. But it’s kind of out of context now since I really don’t know who you are…

  5. COS,
    There are 3,488 registered voters in the City of Buda. 517 (15%) of them voted in the May city council election. 788 (23%) of them signed a petition calling for a city-wide referendum on the matter of U.S. Foods. So which group of voters do you believe best represent the people of Buda?

    Jake,
    Companies always exaggerate the jobs they are bringing to the community. Just look at Cabela’s who has had to return money to the state and to the City of Buda the past two years because they failed to create the jobs they promised. City council is after the sales and ad valorem taxes, not the jobs. There is no city income tax. Jobs are just a smoke screen.

    Will U.S. Foods guarantee the new jobs, and will they guarantee that families in Buda will be hired for those new jobs? I don’t think so. Your “If they don’t like what is happening with their growing city, they can always move somewhere else” comment reflects your lack of understanding about how democracy works.

    Lila darling,
    Hopfully, our court system will save the citizens from public officials like the Buda city council that voted unanimously before the election against U.S. Foods locating near a residential area through a change in Master Plan zoning, and against weasel wording officials like your Commissioner Barton.

  6. Mr. O’Dell, it always scares me when you and I agree on something. But I think we are both in agreement on this issue. As for Commissioner Barton, I want a politician who will respond to the people. You want a politician you can control with an iron fist. That’s something we will never agree on. C’est la vie.

  7. Brian – I’m no English teacher, but I did date one once upon a time and I think their grammar is correct.

    In this case, “of residents” is a subordinate clause used to modify the noun “pair”. The noun, not the modifier, determines the verb tense. “Pair” is a collective noun so the proper verb tense is singular.

    In other words, you would say “A pair is….” so you would also say “A pair of residents is….”

  8. One pair is, two pair are.

    While we’re on (off) the subject…

    Bob and I are going to the movies. Would you like to join Bob and me at the movies?

    Say it like you would without the other person. I am going. Would you like to join me at the movies?

    Sorry, for the OT post. It isn’t often that I get an opening for that little rant.

    Also

  9. Heh….grammar cop with a bad memory 🙂

    My biggie is when someone adds an apostrophe to make a word plural. Apostrophes show possession, not plurality.

    That sign in front of your house should say “The Smiths” not “The Smith’s”. However, it is “Mr. Smith’s house.” or “The Smiths’ house.”

  10. Yes, Dano.

    It’s the dumbing down of society. You see it (the misuse of the apostrophe) abused in PRINT, just about every day!

    By print, I mean more than a hand-written sign, such as that which is painted on the side of a truck, or on a billboard, or a magazine ad, etc.

    It’s as if even our teachers don’t know the rules of punctuation and grammar anymore, so certainly their students don’t stand a chance.

    I suppose that when everyone (who knows the difference) finally gives up and does it wrong, that will become the new “right”.

  11. To everyone on this site, there are errors in the article (always seems to be). To give you naysayers a picture of the voting turnout in Buda, the last Mayor election, had a whooping 500 votes turned in, so yes, getting over 788 (that was what was required, Budafirst had at least another 100 in reserve and about 30 other neighbors they didn’t hit) signatures is an amazing feat and says a lot about BudaFirst and what the citizens want. Someone, I believe Jake, mentioned “what is wrong with a big company coming in and creating great jobs and revue for the city. Please do research on subject matters before you start spouting your incorrect theories and facts. US foods tax rev will not come to the city of Buda for at least 30 years, and at that point, will only receive around $100k a year (due to some deal Buda worked with the Muds). Additionally, US FOODs has said multiple times the reason they want to come to Buda, is they won’t have to hire any more people cause their Austin workers can commute without a problem. At most there could be 10-15 jobs, minimum wage working as a security guard. Sounds like an amazing deal for US Foods and crap for the citizens of Buda when it comes to jobs, Tax Revenue and all the great 18 wheelers that come with a distribution center. Additionally, the reason the two residents of Buda are suing is because the City Council fancies themselves a Dictatorship, and regardless of what the City Charter State as Law for Buda, Mayor Lane and 5 other Council Members, evidently are above Buda’s laws and are above their citizens that voted them into those spots. We have a right to vote on this, it is in our charter, we did everything by the book and the Mayor nor council members had any legal right to say no to their citizens. I would also like to point out that the Mayor and some other council members are being investigated by the DA for breaking numerous State and Federal laws.

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