Now that McKinney's annexation plans are over, we can digest the flurry of legal opinions that were involved in its abrupt end. All legal opinions focus on the how the annexation process started in McKinney. It makes sense to look at what happened at that first meeting and ask if somewhere, McKinney's processes could be improved.
If you previewed the agenda for the 8/28 Special Session CC meeting, you would not have had any idea of what was going on other than the attached generic resolution that included all options (A, B, C, and D). That was as detailed as the agenda and attached resolution were.
Here's the Brown & Hofmeister rebuttal from 11/7 and includes all the official city agendas, etc.
The Riggs & Ray TOMA Opinion letter was released late on 11/2. Mayor Fuller rescinded his support of the forced annexation on 11/3 on Facebook.
On 11/6, the Texas AG's office sent an official letter to McKinney regarding possible TOMA violations.
Only after the passage of the new state law banning involuntary annexations did the city of McKinney amend their 2017 annexation plan to include the pink areas below. On 8/28, the City got approval from 5 City Council members to proceed with Plan D: District 1 Shemwell, At Large Rath, District 3 Elliot, District 2 Rogers, and Mayor Fuller. There were only 2 against: At Large Philips and District 4 Branch. At the 9/18 City Council meeting, District 3 Councilman Elliot publicly stated that he no longer favored involuntary annexation.
Below is the 2040 Comprehensive Plan with the Plan D annexations over it so we can visualize whether these new forced annexations are really in support of the Comprehensive Plan or if they are not. Note how none of the planned involuntary annexations are in the important future economic commercial tax base generating Outer Loop Commercial District. Instead, many of the forced annexation properties are residential. Aren't we told our city is too residential heavy as it is?
The pink areas are the annexation by force areas. The dark areas are city limits. The regular map colors are still ETJ (non-city limits and non-forced annexations). The yellow/black hatch areas are development agreements entered into by both parties. Each of the 2040 Comprehensive Plan envisioned districts are outlined and named. All the major roads are in red and labeled.
Questions and Answers:
McKinney/City Council are giving two reasons for rushing through forced annexations: these areas are in the City's Comprehensive Plan and important economic interests need to be protected.
A Comprehensive Plan is just a best case scenario plan meant to put the city in the best position it wants to be in at the time the plan is made. It is not a contract or a legal document. Cities change and amend comp plans all the time. Cities often find their original plans were wrong. Perhaps the market wanted to go a different way (as in the case of the REC that was all but repealed in 2013 in McKinney). Perhaps the city decides to go a different direction.
Additionally, what a city might consider a good way to increase tax revenues, like bringing in more high-density housing, can be considered a negative from other perspectives. A city might have to build more roads, add police and fire, and increase their staff due to all the new people coming due to high-density housing. The ISDs might have to build more schools and increase staff. This city plan might also be considered a negative from the perspective of citizens who don't want more traffic and who want more green space.
The only way to learn about what McKinney and City Council are looking to protect with these rushed involuntary annexations is to look at the plans made for the future. At issue are the districts being planned and the areas being involuntarily annexed in the 2040 Comprehensive Plan: Medical District, Northridge District, Scenic District, and the Honey Creek Entertainment District.
The Medical District is nearly all in McKinney city limits. The big pink square at the top of the Medical District in the annexation plan above is slated to be suburban residential (not even high density). Why must forced annexation be rushed in this case?
The Northridge District is much the same. The yellow suburban district covers this largest district as far as eye can see. Other than a few red squares of urban high density and some business, it is all suburban residential. Why bother forcing through annexation at this time?
The Scenic District is mostly suburban residential, estate residential, and flood plain land.
The last district, Honey Creek Entertainment District is the most interesting because it is to have the most concentrated high density housing (all the red areas). Flood plains take up large parts of this district. There is also an entertainment area, mixed use, and office mix. This area is the scene of the long and expensive court battle the city is in to prevent the private property owners, Arch Resorts, from building a business.
Most of the land is owned by big developers who have already established what they want to build. Why are we involuntarily annexing here? If developers wanted the land for their developments, they should have purchased the land themselves to ensure they had control of the area. Does it appear that private developers with more influence are having the city do their dirty work for them?
Here is a map from the developers of The Village at McKinney, very close to Arch Resorts. Developer plans are included.
Here's a petition to sign if you are against these rushed involuntary annexations: https://www.thepetitionsite.com/takeaction/653/428/640/
At the very least, we can say there was a lack of transparency
when the annexation process was started—at the 8/28/17 City Council Special Session. There are also the
legal arguments that the transparency issues were so bad as to be TOMA
violations. We’ll most likely never have a definite answer on the legal
questions raised since the annexations were abandoned. But, we can talk about
the lack of transparency and what we want from our city moving forward.
The spirit behind the TOMA legal requirements cities must
follow is a guarantee to citizens that there will be an open decision-making
process on the part of cities, except under four very specific circumstances
that can be discussed in closed Executive Sessions:
- consult with an attorney on pending legal, settlement matters, and conduct matters
- deliberations regarding real property
- personnel decisions
- economic development matters
Everything not listed above must be done in the open with
sufficient notice and information for citizens. TOMA gives citizens legal
remedies that can help correct acts that are found to have violated TOMA. The
Texas AG’s letter let McKinney know there were potential violations of TOMA at
the 8/28 meeting as a warning. If the annexations had proceeded and it was later found there were clear legal violations of TOMA, a remedy could have been to
void all the annexations.
What were the concerns about the 8/28 Special City Council Meeting?
I can only speak for myself. I was over a week late in
catching up on the 8/28 City Council meeting. I read the agenda and watched the
video. After doing both, I had no idea what was decided on the resolution on
the annexation direction for the rest of 2017 other than the fact that Option D
passed with a 5-2 vote. There was very little written information on the agenda,
no verbal information was conveyed in the open City Council session by either
city staff or City Council, and there was not one question from any of the City
Council members which might have helped citizens understand the issue. The
gravity of the decision for the city to take on what I later found out to be
the largest amount of land (Option D) wasn’t reflected in the lack of any
discussion of the matter.
After watching the meeting, and especially after watching
Charlie Philips go on record to say that he thought it was a discussion item to
discuss and that he had repeatedly cautioned City Council to be prudent with
the limited amount of time for discussion they’d gotten. I emailed the Planning
Department to ask what exactly Option D was and what it meant. Instead of
getting answers, I was told I had to make an Open Records Request. If a
reasonably informed citizen reads and watches everything available on a vote and
still can’t understand what it is without an ORR, there’s a transparency issue.
Since City Council asked no questions before the vote and a
member of the planning city staff let slip that they’d already discussed all
the options earlier (and the only time that could have happened was during the Executive
Session right before this vote), we can conclude the resolution and various options
were discussed by the Planning Department staff in an Executive Session (that was
supposed to have been for a legal discussion with the City Attorney about SB 6
only). Now, whether this was a direct violation of TOMA or just a very shaky, boundary-pushing
interpretation of TOMA, we’ll never know. City Council could have easily discussed
the legal issues with the City Attorney in Executive Session and saved
everything else for the open agenda discussion.
In the City Attorney’s rebuttal to the Texas AG Office’s
letter and the Riggs & Ray letter, the City Attorney said that the
Executive Session discussion was related to SB 6. He asserted the SB 6
discussion led to the annexation options City Council was to vote on after the
session—all under the SB 6 umbrella. The City Attorney cited several different legal
rulings, however, they all revolved around City Council getting legal advice during Executive Sessions.
I don’t believe that was all that happened during the Executive Session based
on what we didn’t see during the open session. We didn’t see a discussion. We
didn’t see a presentation of the Options. We didn’t see what questions City
Council asked on behalf of the citizens of McKinney.
Also in the rebuttal, the City Attorney gives reasons for
the lack of information in the agenda about the Options A, B, C, and D. He said
the individuals who may be annexed don’t need to have specific parcel numbers
named because they’ll have the customary public hearings on the annexations.
However, he referred to how the interested public are the real beneficiaries of
TOMA and information needs to be given to the interested public. I would agree that
the interested public should get sufficient information to understand what City
Council is going to vote on. Sufficient information should include more
specific information on the options, discussion of the resolution, and
questions answered about the various options. That did not happen in this situation
and it should have.
If the public had been privy to the discussions, as well as
to the potential costs of each option, citizens may have felt there was more of
a reasoned thought process involved in the decision to annex. In this case, the city went forward first and
then tried to get support. That strategy may have been one of the reasons the
annexation had such little support from McKinney residents.
The forced annexation issue is over. Is our city one that
will push the legal envelope until it is faced with landowners who have enough money
to hire effective attorneys as in this case? Do we want to be part of a city that operates that
way? Were all the transparency issues due to the rushed nature of this
situation? What checks and balances are in place to assure transparency of all processes?
Continue below for the details on the agendas, events, a
rebuttal to the City Attorney’s rebuttal from a citizen concerned with city
transparency who has no legal
background at all, and copies of each of the three legal letters.
According to the agenda of the 8/28/17 Special Session City
Council meeting, this is what was going to happen in the Executive Session that
happened before the regular agenda
items (and I’ve bolded the specific part of concern from the legal opinions):
“In Accordance with the Texas Government Code:
“In Accordance with the Texas Government Code:
A. Section 551.071 (2). Consultation with City Attorney on any Work Session, Special or Regular Session agenda item requiring confidential, attorney/client advice necessitated by the deliberation or discussion of said items (as needed) and legal consultation on the following item(s), if any: • SB 6 (Annexation Bill)
B. Section 551.071 (A). Pending or contemplated litigation • Arch Resorts, LLC v. the City of McKinney, Texas, and Rick Herzberger, Chief Building Official of the City of McKinney, Texas, v. Collin County, Texas, No. 21901855-2015, 219th District Court of Collin County, Texas
C. Section 551.072. Deliberations about Real Property • Municipal Facilities
D. Section 551.087. Discuss Economic Development Matters • Project A159 – Project Cuisine”
Here’s the regular agenda item that came right after the
Executive Session:
17-853 Consider/Discuss/Act on a Resolution Providing Direction to Staff Regarding Municipal Annexations in 2017 Resolution
If you previewed the agenda for the 8/28 Special Session CC meeting, you would not have had any idea of what was going on other than the attached generic resolution that included all options (A, B, C, and D). That was as detailed as the agenda and attached resolution were.
If you knew to go to legistar.com, click meeting details,
and click on the Special Meeting Agenda Packet (instead of just the agenda),
you would have learned a tiny bit more about Options A, B, C, and D:
Staff has identified four potential approaches for municipal annexations for the remainder of 2017, which include:
o Option A: do not conduct municipal annexations in 2017
o Option B: conduct municipal annexations in support of specifically identified roadway and bridge improvement projects
o Option C: conduct municipal annexations in support of identified roadway, water and sewer improvement projects
o Option D: conduct municipal annexations in alignment with anticipated growth corridors and development pressures
Nowhere did it explain how much land was to be impacted.
Nowhere did it explain the definitions of “anticipated growth corridors and
development pressures.” Nowhere did it explain the costs associated with each
option. We still don’t know if the city had ever calculated the costs of this
annexation.
Here are my interpretations of the City Attorney’s rebuttal letter
(point by point, as it was presented) and my impressions of each item:
1. The City Attorney
responded that legal issues can be discussed in Executive Session. He also said
as long as items are listed on either the regular or executive session, any of
them can be discussed in Executive Session.
This is one of the reasons why I don’t trust cities or ISDs when they have their Executive Sessions before the regular agenda items. At least if the Executive Sessions are held after the regular items are over, we know they weren’t in there deciding on everything beforehand.
2. The City Attorney
responded that agenda packets don’t need to be up 72-hours before, nor are
copies of resolutions in the agenda required.
I would think that it would be a very good demonstration of government transparency to have pertinent information available in a timely manner so citizens can understand what’s going on. This gives citizens the time to get clarification from the city in time for support or opposition letters to City Council. Interested citizens need time to plan for public hearings, as well. How can they do that when they do not have all the necessary information? Of course, McKinney has been generally very good about presenting this information in a timely manner.
3. The City Attorney
responded that SB 6 was clearly the annexation bill and not something else.
I didn’t think this was an issue either.
4. The City Attorney
said that only the interested public needs general notification, not specific
parcel owners who may be affected.
Again, the interested public needed more information than what was provided in the agenda or through watching the meeting on video. This is a transparency issue that needs to be addressed for the future.
5. The City Attorney
responded that the posted agenda was enough as required by TOMA, including the
Executive Session SB 6 (Annexation Bill) notation on the agenda.
Speaking as a citizen, if I see that SB 6 will be discussed in Executive Session, I’m going to assume that only SB 6 will be discussed in Executive Session. SB 6 is not the individual annexation strategy of the city of McKinney for the rest of 2017. Citizens would never think that City Council would get an entire presentation by the Planning Department—that will not be given in open session—so they could decide on a particular approach for annexation. Not only that, but a citizen would not ever imagine that the city would say that the Planning Department’s presentation and discussion would be considered a legal consultation with the City Attorney (which is what it appears the city is saying from the City Attorney’s letter).
6. The City Attorney
responded that City Council was not delegating power to city staff to annex.
This is troubling. Did City Council approve of a plan without knowing the costs or other ramifications of such approval? Did City Council have access to the Option maps at the Executive Session (I’ve heard mixed answers on this)? Did City Council ensure that each parcel of land to be annexed was correctly identified as “Option D: conduct municipal annexations in alignment with anticipated growth corridors and development pressures?” Did City Council even know what the working definitions of Option D actually were to ensure that only parcels meeting that criteria were slated for annexation? If City Council made sure there were good answers to each question, we’ll never know because everything happened behind closed doors during the Executive Session. If City Council didn’t ensure the answers to the above questions, that means the process was too fast and needed to be slowed down to ensure everything was done correctly. Government moves very fast sometimes and that isn’t always good. I’d rather we erred on the side of correctness than rush.
7. Again, he
responded to the 72-hour notice.
I’ve got no idea on this one.
8. He responded that
having city staff in Executive Sessions was allowed if having them there helps
City Council have discussions with the City Attorney about legal issues.
The City Attorney cited two other AG opinions that weren’t exactly related to what happened here. The issue isn’t that other city staff were present, the issue was really should they and City Council conduct discussions about a regular agenda item behind closed doors that is only slightly related to SB 6 when a City Attorney private consultation isn’t directly necessary? There was no direct litigation McKinney was involved in, yet the City Attorney included an AG opinion related to litigation (JM-0238 from 1984):“We therefore conclude that governmental bodies may admit to executive sessions…those officers and employees who are their representatives or agents with respect to the particular litigation in question and whose presence is necessary to effective communication with the attorney…”The city of McKinney is not and was not suing or being sued over SB 6, which was the only item listed in the Executive Session agenda item.
Here's the Brown & Hofmeister rebuttal from 11/7 and includes all the official city agendas, etc.
The Riggs & Ray TOMA Opinion letter was released late on 11/2. Mayor Fuller rescinded his support of the forced annexation on 11/3 on Facebook.
LEGAL #68509 v1 TOMA Opinion Letter (2) by Bridgette on Scribd
On 11/6, the Texas AG's office sent an official letter to McKinney regarding possible TOMA violations.
Background: The City of McKinney had no plans to annex any property
from 1999 to 2016 (if you don’t include the involuntarily annexed properties like Arch Resorts or the voluntary annexations agreed on by both parties). In late 2016,
the City decided to follow law and plan out the 2 areas they were wanting to annex with the required 3-year notice (see the CC meeting on Legistar from 11/1/16). There were only 49 acres in the NW sector planned for annexation in 2017:
 |
| 2017 Annexation Plan before the anti-involuntary annexation bill passed |
Only after the passage of the new state law banning involuntary annexations did the city of McKinney amend their 2017 annexation plan to include the pink areas below. On 8/28, the City got approval from 5 City Council members to proceed with Plan D: District 1 Shemwell, At Large Rath, District 3 Elliot, District 2 Rogers, and Mayor Fuller. There were only 2 against: At Large Philips and District 4 Branch. At the 9/18 City Council meeting, District 3 Councilman Elliot publicly stated that he no longer favored involuntary annexation.
Below is the 2040 Comprehensive Plan with the Plan D annexations over it so we can visualize whether these new forced annexations are really in support of the Comprehensive Plan or if they are not. Note how none of the planned involuntary annexations are in the important future economic commercial tax base generating Outer Loop Commercial District. Instead, many of the forced annexation properties are residential. Aren't we told our city is too residential heavy as it is?
 |
| Forced Annexation Plan placed over the 2040 Comprehensive Plan |
Questions and Answers:
- Is McKinney/City Council breaking the current law? No.
- Is McKinney/City Council ignoring the spirit and intent of the new law starting on December 1st? Yes. The new law allows for annexations, they just have to be voluntary for both parties.
- What could be wrong with going through a process that makes both the private land owners and the City happy after this law is passed? Nothing.
- Are ETJ residents stealing McKinney's water and not paying for it? No. ETJ residents have their own contracts with water, sewer, electric, etc. that they pay for themselves.
- Are the ETJ residents using our roads and not paying for their usage? No. ETJ residents use McKinney's roads and services much like McKinney residents use Allen's, Frisco's, Plano's, and Dallas' roads and services. We all may drive on city roads that do not belong to us, but we also shop, eat, and use businesses there too.
- If the ETJ residents have a McKinney address, doesn't that mean they should know they'll eventually be part of the city anyway? No. The US postal service decides on zip codes and cities geographically, not via city comprehensive plans and ETJ boundaries.
- Why must the area touching the future Laud Howell Parkway be annexed in order for the City to build the road? Must it be city limits before they allow private developers to build the road for the City through a 380 agreement? I'm looking into this. On one hand, we're told that bonds are paying for the roads. On the other hand, the city is trying to build the roads through 380 agreements.
McKinney/City Council are giving two reasons for rushing through forced annexations: these areas are in the City's Comprehensive Plan and important economic interests need to be protected.
A Comprehensive Plan is just a best case scenario plan meant to put the city in the best position it wants to be in at the time the plan is made. It is not a contract or a legal document. Cities change and amend comp plans all the time. Cities often find their original plans were wrong. Perhaps the market wanted to go a different way (as in the case of the REC that was all but repealed in 2013 in McKinney). Perhaps the city decides to go a different direction.
Additionally, what a city might consider a good way to increase tax revenues, like bringing in more high-density housing, can be considered a negative from other perspectives. A city might have to build more roads, add police and fire, and increase their staff due to all the new people coming due to high-density housing. The ISDs might have to build more schools and increase staff. This city plan might also be considered a negative from the perspective of citizens who don't want more traffic and who want more green space.
The only way to learn about what McKinney and City Council are looking to protect with these rushed involuntary annexations is to look at the plans made for the future. At issue are the districts being planned and the areas being involuntarily annexed in the 2040 Comprehensive Plan: Medical District, Northridge District, Scenic District, and the Honey Creek Entertainment District.
The Medical District is nearly all in McKinney city limits. The big pink square at the top of the Medical District in the annexation plan above is slated to be suburban residential (not even high density). Why must forced annexation be rushed in this case?
The Northridge District is much the same. The yellow suburban district covers this largest district as far as eye can see. Other than a few red squares of urban high density and some business, it is all suburban residential. Why bother forcing through annexation at this time?
The Scenic District is mostly suburban residential, estate residential, and flood plain land.
The last district, Honey Creek Entertainment District is the most interesting because it is to have the most concentrated high density housing (all the red areas). Flood plains take up large parts of this district. There is also an entertainment area, mixed use, and office mix. This area is the scene of the long and expensive court battle the city is in to prevent the private property owners, Arch Resorts, from building a business.
Most of the land is owned by big developers who have already established what they want to build. Why are we involuntarily annexing here? If developers wanted the land for their developments, they should have purchased the land themselves to ensure they had control of the area. Does it appear that private developers with more influence are having the city do their dirty work for them?
Here is a map from the developers of The Village at McKinney, very close to Arch Resorts. Developer plans are included.
Here's a petition to sign if you are against these rushed involuntary annexations: https://www.thepetitionsite.com/takeaction/653/428/640/
Still curious, if and when this goes to the voters, who votes? Is it all residents of McKinney or is it the landowners who are going to be annexed?
ReplyDeleteRussell, only City Council will vote after the public hearings since involuntary annexations like this are still legal until December 1st. After December 1st, the to be annexed people would be able to vote.
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