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Stone Creek- Part Two, Warning Signs and Missed Opportunities.
There has been a series of events surrounding Stone Creek that would have prompted a reasonable City Council
to reconsider their stance and act more responsibly for the tax payers of the City of Glenn Heights. In
addition to these actual events, there also were many warnings that the Council, as a body, chose to ignore. Even to
this day, the Council could bring our liability to an end and prevent the need for tax increases and the loss of services
that are sure to occur if we are forced to pay hundreds of thousands of dollars to an experienced developer to try to keep
him from
investing and working in this City. But instead of correcting their previous misdeeds, the Council is pursuing
the same type of illegal retroactive actions against two other developments although their actions are certain to result in
additional lawsuits and judgments. Even though their stated goals might be popular with certain vocal groups in town,
there is no greater threat to this City than having lawmakers that see themselves as above the law.
Mayor Coffman states that they are "passionate about this" but this passion seems to have
blocked out all reason and all since of fairness that she, Councilman Jesus Humphrey, and Councilwoman June Johnson have
shown to possess on some other issues. This passion also seems to have separated them from the ability to understand
the seriousness of having two State Court Judgments against our City. Both Humphrey and Johnson, in recent days, have denied
that
we have two judgments against us. Just today, I was given a copy of a response that Johnson made concerning this web site.
In this response she closed by stating "I, too, am waiting for the
court's decision." Can she really not know that two State Judges, one Jury, and one Court Master have already given their
decisions? What more is she waiting for?
Being as brief as possible, (those that know me realize this is difficult for me to do), I have listed some events along
with the action(s)
the Council took in reaction to these events. It is my hope that the readers of this article who live in Glenn Heights
will begin to understand the kind of people that they have elected to represent them. I hope this will result in either
forcing these representatives to clean up their acts or lead to them being replaced in the future.
EVENT ONE: October 26, 1998-Missed Opportunity
(Settlement Rejected)
Of all the significant events or actions taken by the City Council concerning Stone Creek, the single most important event
was a public vote that occurred October 26, 1998.
This was just days before the
first trial in Ellis County was to occur. When this vote occurred, every Council member was aware of the decision of the
Texas Supreme Court (Mayhew case listed below), every Council Member was aware of the uncertainty and risk involved in allowing
the City to face charges in court, and every Council Member knew that the proposed settlement plan had substantially
reduced density and greatly increased minimum home sizes. Knowing these things, before a room full of witnesses, we made a
vote of record with the following result:
Those FOR accepting the compromise with 125 fewer lots and with larger homes and accepting the end of all litigation and
risks concerning Stone Creek:
Councilman Gary Jean
Councilman Don Williams
Councilwoman Nancy Otto
Mayor Stephen Pape
Those AGAINST accepting the compromise and in favor of relying on the court to decide the look of our City, risking the
loss of all negotiated improvements and risking the possibility of millions of dollars in monetary penalties:
Councilman Jesus Humphrey
Councilwoman Mary Coffman
Councilwoman June Johnson
The decision to settle required a 3/4 vote of the Council, or six affirmative votes.
Therefore, though the majority of the Council said YES to avoiding an almost certain Court Judgment, the three that
said NO now bear direct responsibility for our current precarious financial and legal situation. One Council Member
recently stated
the entire Council including "the person who was mayor through the Stone Creek process" are equally to blame. Maybe we are
all to blame but as far as "equally", this vote on October 26, 1998 shows otherwise.
EVENT TWO: Spring & Summer 1997-Warning Signs and Missed Opportunities
(Council Directive, Secret Meetings, Replaced Commissioners, Compromise Offered, City Sued)
Going back a couple of years to March 24, 1997, the City's Planning & Zoning Commission, with a split decision, recommended
keeping the 1986 Stone Creek Zoning as-is without making any changes to the house size, lot sizes, or site plan.
In reaction, on April 21, 1997 the Council tabled action on Stone Creek and referred the matter back to the Planning and
Zoning
Commission with the instructions to "work with the property owners and propose an alternative recommendation."
Following the Council's directive, the Planning Commission sent a letter to the owner of Stone Creek on May 2, 1997
asking him to "submit an alternate written development (land use) plan for review by the Planning and Zoning Commission."
Just days later, Councilman Humphrey recruited three
individuals from the Stone Creek area and invited them and three members of the Council to join him in two
separate meetings at his Stone Creek residence. I was told that he intentionally held two separate meetings so that one of
the four Council members could stay away at each meeting to appear to avoid violation of the "Texas Open Meetings Act." The
Act
clearly states that this type of action is still a violation and all four members could have faced criminal charges for
participating in those two secret meetings. The four Council Members then
Joined as
a voting block
in forcing the removal of two long time Glenn Heights residents from the
Commission and filling their positions (and the position vacancy created by Mary Coffman's election to the Council)
with the three individuals with whom they had met in secret. These three new members joined Gerald Johnson (Councilwoman
Johnson's husband) and another Stone Creek resident already on the Commission, creating a strong Planning Commission
"voting block" under Humphrey's control. It is ironic that Humphrey, Johnson, and Coffman then began arguing that the
Council needed to allow the Planning
Commission to work without Council interference.
The developer insisted on continuing to deal with the Mayor, Council, and Staff rather than start over with the clearly bias
"Humphrey" Commission. He finally agreed to submit a compromise development plan that
met, or exceeded, all of the recently adopted 1995 Unified Development Code requirements on August 26, 1997. In that
compromise, he offered
to give up his dense development comprised mainly (182 acres) of 6,600 sq. ft. lots with 1350 sq. ft. homes and
replace it with 25 acres of 20,000 sq. ft. lots w/2100 sq. ft. homes; 38 acres of 12,000 sq. ft. lots w/ 1800 sq. ft. homes;
43 acres of 9,000 sq. ft. lots w/ 1600 sq. ft. homes; 130 acres of 7,500 sq. ft. lots w/ 1450 sq. ft. homes; and a 4 acre City
Park. All of these lot and house size minimums met or exceeded the Development Standards that the Council had adopted just
one year earlier. This compromise development also was within the land use ratio that the Council had set for that neighborhood
and it also had land set aside for the park that the Council had required in the land use plan as well.
However, the Council could not even agree to allow a public hearing and vote to occur to consider this compromise and the
City Manager informed the developer that his offer had been rejected with no vote having even been taken.
After his attempt to compromise on August 26, 1997 was rejected, the developer filed suit on
September 30, 1997. The courts proved to be much more friendly and agreeable to him than the City Council had been.
EVENT THREE: From March 13 of 1998 till past Election Day-Warning Signs & Missed Opportunities
(Supreme Court Decision, Council Agreement, Election, Sabotage)
On March 13, 1998, the Texas
Supreme Court delivered a land mark decision in which they "set forth in significant detail new Texas standards for regulatory takings...".
In this decision the Court stated "Historical uses of the property are critically important when determining the reasonable
investment-backed expectation of the landowner." They went on to find in favor of the City of Sunnyvale and against the
Mayhew
family because "the zoning ordinances had for twelve years limited development to one unit per acre." The Mayhews
had argued that
the City had "taken" their property because they wanted a higher density than the City would allow them to have but the Court
ruled that the higher density was not the "Historical use" and the Mayhews claim was denied.
In the
suit against Glenn Heights, the developer argued that, unlike Sunnyvale, the dense zoning had been in place for over
10 years
and the City had reduced density, thus interfering with his "reasonable expectation" based on the
Historical use of the existing Stone Creek Phase One and the 10 year old zoning plan. Based on the Supreme Court Decision,
it was very clear that the City of Glenn Heights would have to pay some
compensation to the developer if we did not strike a compromise or return his original zoning to him. When we learned
of the full extent of the
Supreme Court ruling from March 13, 1998 we had already "down zoned" Stone Creek and we were unable to find a reasonable
compromise without Humphrey's, Johnson's and Coffman's consent. This they would not give.
Prior to the Council's action, Councilman Humphrey had argued that we could begin "negotiating with strength" if we
showed our resolve by adopting the legally questionable larger lot zoning rather than continue to work from the existing
smaller lot zoning. On April 27, 1998
the City Council, unaware of the specific details of the Mayhew ruling and following the advice of our City Attorney voted unanimously
to rezone Stone Creek from 6,600 sq. ft. lots
to 12,000 sq. ft. lots with the agreement that we would continue compromise efforts.
Maybe it was Humphrey's failure to be elected as Mayor five days later, or some other unknown reason, but following the "down zoning", he
broke the agreement to seek a compromise and used his influence to sabotage all attempts at finding a
solution suitable to the developer and City by continuously adding new issues and by spreading false rumors in and around Stone Creek.
EVENT FOUR: December 10, 1998-Warning Sign and Missed Opportunity
(1st Judgment, Appraisal, Jury Award, Appeal, 2nd Judgment, Appeal)
Based solely on the Supreme Court Decision mentioned above, Judge H. G. Andrews held that "the rezoning of Sheffield's property
by the City on April 27, 1998 constituted a taking under the investment-backed expectations inverse condemnation theory discussed in Mayhew v. Town
of Sunnyvale." Judge Andrews subsequently set a Jury trial for damages aspects of the takings claims for July 6, 1999.
In preparation for this July trial, the City hired an appraiser who reported that
the City, at best, could expect to be ordered to pay $290,000 to the developer for the changes we made. This did not make
sense to me since we were still talking about paying to keep the best development in the City of Glenn Heights from being
continued. Therefore, I called for another Council meeting and pleaded with the Council to discuss settlement. The
developer once again had indicated his willingness to allow "reasonable" improvements as long as they were "marketable".
While there were others that felt as I did, the same three Council members chastised me for continuing to bring up the issue
and taunted the developer by stating he should deal with the Planning and Zoning Commission, which still was heavily influenced
by Humphrey. They insisted that we needed to wait on a Jury award, and then file an appeal.
On July 8, 1999, an Ellis County
Jury awarded the developer a Judgment of $485,000. Following this Judgment both the City and the developer did "timely file their
respective notices of appeal seeking review of various aspects of the rulings and judgments of the trial court." The appeal
is currently pending in the Court of Appeals for the Tenth District of Texas at Waco. Their decisions are expected to
be announced within days.
At best, the Court of Appeals could throw out the Judgment as well as all the points of Appeal that the developer has raised. They
could also order another trial and there is still the possibility of them re-instating some of the claims connected to the developers
multi-million dollar original damage request. Even if the City defies the odds and "wins" in Waco, we still have the 2nd
Judgment (which re-instated the original dense zoning) to fight in the
Dallas Court of Appeals. All this to keep $110,000 and up homes from being built in Glenn Heights. Is it worth it?
CONTINUED
Stay tuned for the continuation of this series of events as I shine light on the actions of your elected officials.
These
people represent you and are a reflection to our neighboring cities, to the business community, and to potential
developers considering investing in Glenn Heights. Do these elected officials present the image you want people to see?
Do you approve of secret meetings that are used to plot against those that come before the City Council? Raising standards
and
improving quality can and should be done but do you think it is ok to break State and Federal laws in the process? Do
you think that
the end justifies the means? Hearing of these highly questionable actions, are you proud to be from Glenn Heights?
Please visit again in the near future to read the continuation of
"Stone Creek- Part Three, What Can Be Done Now?"
Please take the time to e-mail your elected representatives so they will know that you care what they do.
E-mail your representatives direct here.
