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

March 29th, 2010
State Supreme Court demands Buda response

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The pink areas (Parcel B and Parcel C) on the map are where US Foodservice would locate a warehouse and distribution facility. Opponents of the facility want the Texas Supreme Court to demand that the Buda City Council call a referendum on the land use change making the facility possible.

By SEAN BATURA
News Reporter

The Texas Supreme Court has given the City of Buda until April 22 to respond to a charge that Buda councilmembers illegally refused to give residents a chance to overturn a land use change approved by the council last June.

The court’s demand for an answer from the city is the first glimmer of hope on the legal front for Buda citizens hoping to stop US Foodservice from locating in a portion the city’s extra-territorial jurisdiction (ETJ) where the land use change was approved.

In November, a three-judge Texas Third Court of Appeals panel sided with the city, finding that a change in a land use plan is not subject to referendum because the city charter only specifies “ordinances” as being subject to referenda, and a land use change is a resolution, rather than an ordinance. The justices also ruled that a land use change is not subject to a referendum because it is not “legislative in character.”

In February, the appeals court denied a re-hearing for former Buda Mayor Jim Hollis and Buda realtor Christopher Juusola, who had sued councilmembers on behalf of pro-referendum Budites.

Undeterred, Hollis and Juusola filed a Motion to Stay and a Petition for Writ of Mandamus with the Texas Supreme Court on March 18. In their Writ of Mandamus, Hollis and Juusola ask the Texas Supreme Court to order councilmembers to place the referendum on the ballot for a vote.

In June 2009, a 5-2 vote of the Buda City Council allowed light industrial uses within 95 acres of Buda’s ETJ, paving the way for US Foodservice to locate a warehouse and distribution facility in Sunfield Municipal Utility District (MUD) No. 1. Councilmembers Sandra Tenorio and Ron Fletcher cast the two dissenting votes.

Opponents of the land use change say it will lead to more pollution and less sales tax revenue for the city than retail uses would have generated. Proponents of the change say the city would benefit greatly from the 157 jobs in 10 years US Foodservice said it would create. US Foodservice said it pays its warehouse personnel and truck drivers anywhere from $45,000 to $55,000.

A group called BudaFirst formed to oppose the land use change. Representatives of the group gathered 788 signatures from voters wishing to put the land use change up to a referendum, exceeding the requirement for signatures from 20 percent of the registered voters. However, Buda city attorneys advised the city council that the change wasn’t subject to referendum, and the council voted, 6-1, last September against calling such an election.

In their Petition for Writ of Mandamus, Hollis and Juusola argue that the city charter language allows for both a resolution and ordinance to be referendable. Hollis and Juusola argue that the State of Texas “liberally construes its citizens’ rights to review their municipal government’s actions by referendum,” adding that the Texas Supreme Court “has consistently reaffirmed this rule.”

Hollis and Juusola argue that the council’s land use change was legislative in character because it is a policy-oriented decision and permanent in character. The appeals court, quoting an opinion issued by a judge in 1976, held that “‘legislative’ relates to subjects of a general or permanent character, as distinguished from those subjects which are transitory, temporary, or routine.” Hollis and Juusola argue that a land use decision that results in the building of a 500,000 square-foot light industrial facility is neither transitory, temporary, nor routine.

Hollis and Juusola’s Motion to Stay is intended to prevent construction of the US Foodservice facility from occurring until a referendum is held. Hollis and Juusola asked the Texas Supreme Court justices to order the city to “halt all regulatory approvals, permits or other regulatory entitlements for the development of Phase 5 Sunfield MUD Property.”

The land use change overrode the city’s comprehensive plan, which was developed and approved in 2002 based on surveys of Buda residents and input from a consulting firm hired by the city.

The 95 acres within the boundaries of the Sunfield MUD No. 1 were originally designated for commercial, office and retail uses in the city’s comprehensive plan. Tenorio said that one reason Sunfield MUD No. 1 allowed the city to dictate land use and collect sales taxes within its jurisdiction is because the MUD wanted the city to extend road improvements on Main Street east of Interstate-35 into the MUD. Fletcher said city officials were hoping to get substantial sales tax revenue out of the MUD to retire some of Buda’s bond debt for the work on the Main Street East extension.

Tenorio cast the lone vote in favor of allowing the referendum. Shortly after the city council voted against calling the referendum, Tenorio said that even if the city had no legal obligation to honor the citizens’ petition for referendum, the council could have — and should have — called a referendum on its own.

“I think that when the matter was pending before the council, I was very clear in my position, but as a councilmember of the City of Buda, now that it’s in the court system, then it’s no longer up to me,” Tenorio said Thursday. “I’m a member of the Buda City Council, and my responsibility is to the city, and so I don’t really have a comment one way or the other. I’ll respect whatever the decision is.”

Hays County commissioners court members voted, 4-1, on Aug. 4 to draft a Tax Increment Reinvestment (TIRZ) agreement, whereby the county could fund $1.8 million in road improvements using ad valorem taxes collected within a specified boundary encompassing at least the planned US Foodservice facility.

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