Judge sides with city of Austin in lawsuit involving former American-Statesman site

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A judge this week ruled in favor of the city of Austin in a case involving the former American-Statesman site just south of downtown along Lady Bird Lake.
The ruling denied a motion for summary judgment in a lawsuit filed by the Save Our Springs Alliance, an environmental watchdog group.
The lawsuit alleged that the Austin City Council violated key provisions of the Texas Open Meetings Act in 2022 when it approved a special type of zoning known as a planned unit development, or PUD, for the former Statesman site. The lawsuit sought to void the council's Dec. 2, 2022 vote to approve the PUD, based on the alleged open meetings violations.
The Statesman moved several years ago from the site at 305 S. Congress Ave. to a new location near the airport.
In arguing their case before District Judge Jan Soifer on May 15, Save Our Springs attorneys Bobby Levinski and Bill Bunch contended that the council granted the PUD zoning in violation of two key mandates of the Texas Open Meetings Act: proper public notice, and a reasonable opportunity for the public to speak before the vote was taken.
Levinski said today that the Save Our Springs Alliance might appeal the ruling.
"Given the importance of this case for governmental transparency and proper enforcement of the Texas Open Meetings Act, we'll be evaluating our options for appeal," Levinski said. "This case ultimately impacts the ability of residents to weigh in on important matters that affect their community, including the relocation of the Hike and Bike Trail and removal of the natural, tree-lined aesthetic of the Lady Bird Lake shoreline. Every case has its challenges, and we may need to work on it a little longer to ultimately prevail."
More: Lawsuit seeks to halt planned redevelopment of former Statesman site on Lady Bird Lake
Casey Dobson and Sara Wilder Clark represented the landowner, the Cox family of Atlanta, along with Austin-based Endeavor Real Estate Group. The Cox family hired Endeavor several years ago to create plans to redevelop the prime waterfront site.
The site formerly housed the newspaper offices and printing plant. Cox sold the Statesman but retained ownership of the 18.9-acre site, a property many developers had long coveted and said was ripe for new development.
Dobson did not immediately respond to an email for comment about the ruling and what it means for future plans to transform the property into a mixed-use project with high-rise buildings and other uses, which could include housing, office and retail development.
Richard Suttle Jr., an Austin attorney and the spokesperson for the planned redevelopment, said he hasn't seen a final judgment yet in the case, so couldn't comment on what it might mean for the future planned redevelopment.
Dan Richards represented the city in the lawsuit. Richards said Soifer's ruling, signed Monday, means "the trial court case is basically over."
At last month's hearing, Richards told Soifer that voiding the PUD could jeopardize the developer's ability, in the current economic climate, to secure a new amendment offering the same level of community benefits — such as 6.5 acres of green space — at the site.
At the same hearing, Dobson and Wilder Clark said the PUD zoning change was properly noticed, and the public was given sufficient opportunity to speak at nine different meetings.
However, Levinski said that, while the PUD was listed on the council agenda as a zoning item, that posting was misleading because it failed to provide "full disclosure of the subjects to be discussed."
The proposed PUD ordinance encompassed "numerous provisions that extend well beyond traditional zoning regulations," Levinski told Soifer. Those included "sweeping changes" to environmental protections and other city land-use codes, including a failure to disclose height limits, setbacks and the elimination of two restrictive covenants.
"There are so many different parts of this (PUD) ordinance that are not zoning, yet it was sold to public as a rezoning," Levinski said.
The zoning changes included modifications to the Lady Bird Lake shoreline; the relocation of the Ann and Roy Butler Hike and Bike Trail inland away from the lake; the removal of more than 90 mature trees; code waivers; and "amendments to almost every chapter of Austin's land development code," Levinski told Soifer.
In arguing their case before Soifer, Leviniski and Bunch said that the Texas Open Meetings Act requires a public notice identifying these major changes to city standards and a public 'right to speak' on them before council granted the approvals.
The Cox owners and Endeavor have the right to build high-rises — up to 725 feet tall — within 140 feet of Lady Bird Lake. The development would be "forever exempt from a plethora of water quality, parkland and lakeshore rules and regulations," according to the Save Our Springs Alliance.
"The key here is the Statesman PUD went beyond zoning," Levinski said. "This didn't give sufficient notice to the public to say what is occurring with this zoning."
Among other issues, he said the PUD included "non-zoning provisions, including items the council doesn't have authority over."
There was a way the city could have described with greater detail what was occurring with the zoning case, "but they chose not to, and it's deceptive that they chose not to," Levinski said.
The level of specificity "gets enhanced" when the issue involves matters of "significant public interest," Levinski said. "It's not enough to rely on the assumption that the general public may have knowledge of the subject matter."
Dobson and Wilder Clark, however, told Soifer that the public notices complied with the Texas Open Meetings Act.
The notices properly and adequately disclosed the subject of the PUD at various meetings on the council's printed public agenda, Dobson and Wilder Clark said. Moreover, all the details that Save Our Springs claims were lacking from the notice were available at "the click of a link" in backup materials on the council's online agenda, Wilder Clark said.
"Not only did (the public) get to talk in meetings, but they got to submit written testimony," Wilder Clark said. She also noted that the council postponed meetings on the case.
Showing slides of newspaper articles, Dobson said the proposed redevelopment of the Statesman site was front-page news. He said the case was "noticed out of the wazoo."
"(Opponents) think this was done in the dark of night, with adequate notice to nobody," Dobson said. "In fact, the polar opposite happened."
Dobson said no special notice was required, and opponents "didn't need it. They wrote letters, they spoke at length to (the city) Planning Commission and City Council. This did not take place under the shroud of secrecy," Dobson said.
Countering the city's arguments, Bunch said the city "invented out of whole cloth" its position that it upheld the open meetings act, saying "there's no support for that in the entire body of open meetings cases."
Early in the hearing, Dobson showed a photo of the current Statesman site "in all its glory," showing a low-slung building surrounded by a near vacant parking lot with lots of asphalt and concrete.
Attorneys for the city and the developer stated that "virtually no one" opposes the proposed development, which may include condominiums, apartments, a hotel, office space and retail areas. Noting the site's popularity as a prime location for viewing the famed bat colony under the Ann Richards Congress Avenue Bridge, they emphasized the new development will enhance the bat viewing area. Additionally, they said the project has the support of bat conservation groups.
Last year, the Save Our Springs Alliance won a lawsuit contesting the city's creation of a special financing district, a so-called tax increment reinvestment zone, to fund infrastructure improvements within the proposed Statesman redevelopment project. A judge ruled that financing method unlawful.
This article originally appeared on Austin American-Statesman: Judge rules for city in case involving former Statesman site