Posted by: Patricia Salkin | September 5, 2010

TX Appeals Court Finds Lack of Standing to Challenge Development Agreement and No Violation of Open Meetings Law

The City of Dripping Springs entered into two “Development Agreements” authorizing Barton Springs segment of the Edwards Aquifer is located.  Save Our Springs Alliance (SOS), a non profit corporation dedicated to protecting the Edwards Aquifer, filed suit alleging the City did not have the authority to enter into the agreements, violating the Texas Constitution, and that the public notices did not sufficiently communicate the subject matter of the meetings, violating the Texas Open Meetings Act.  

The district court granted summary judgment to defendants’ Open Meetings Act claim, granted defendants’ pleas to the jurisdiction on remaining claims, and awarded attorney fees.  On appeal, SOS asserted it had standing to pursue on behalf of its members because they suffered environmental and procedural injuries a result of the development agreements, and the City violated the Open Meetings Act by not including information about the substantial impact of the development or property locations in the notices. 

Members of SOS who enjoyed the Barton Springs area for swimming and observing nature alleged the pollution to the aquifer from the development agreements harmed their recreational, environmental, and scientific interests, and posed a concern for contamination of the well water.  The court found that in the absence of any riparian ownership, an impact on recreational or environmental interests was insufficient to confer standing.  None of the members had a vested property interest or right in Barton Springs.  SOS pointed to several federal decisions holding plaintiffs adequately alleged injury in fact when their aesthetic and recreational enjoyment were lessened by the challenged activity, regardless of ownership of the property; but those cases involved the application of federal environmental protection statutes that either prohibited the alleged conduct, or protected plaintiffs same interests.  The court also found SOS did not establish their injury was concrete and particularized to confer standing under Texas law to pursue its claims under the Uniform Declaratory Judgment Act, because there was no Texas authority that conferred standing for injury to environmental, scientific, and recreational interests without real property involved. 

The concern over pollution of members who did own property near the proposed development was found to be ‘speculative’ as the only connection made was one of proximity.  They would have had to show their property was located in an area that was at least potentially “downflow” from the development, rather than somewhere in the recharge zone, and thus they failed to show any actual or imminent impact from the approval of the Development Agreement to the pollution in the water supply.

Members also displayed concern due to increased traffic safety hazards, increased light interfering with appreciation of nighttime skies, and decreased property value due to high density development.  The court held SOS did not have associational standing, because those interests were not germane to the organizational purpose, which is to protect the Edwards Aquifer by preventing further pollution of Barton Springs.  Even though the opposition to general development in the contributing in recharge zones is part of SOS’s mission, member’s opposition based on decreased property values is NOT related to the water and therefore was an unrelated concern that could not satisfy associational standing.  

SOS also claimed its members suffered procedural injury because the Development Agreements adversely and immediately impinged their rights afforded under the Texas Constitution, by closing of the democratic process over the development of the property for 15 years, eliminating the ability to act in opposition.  However, SOS did not provide any argument or authority that the constitutional provisions provided procedural protection akin to any federal statutes, or that the protections existed in their absence in their benefit.  The non-specified procedural interests did not constitute an injury in fact requisite to show standing.

SOS also failed to assert it had standing based on the taxpayer status of its members, because it did not show any evidence that public funds would be expended by the City on the Development Agreements, including any attorney fees defending challenges in a lawsuit.  The provision in the Development Agreements, which required the City and developer to cooperate and use their respective best efforts to resolve a suit or claim, was separate from another provision which required the developer to pay the City a deposit to cover all legal fees and administrative expenses. 

In its contention that the City’s public notices regarding the Development Agreements failed to comply with the Open Meeting Law Act’s requirement that the subject of a meeting be sufficiently set forth, SOS complained they did not alert a member of the public to the substantial impact- including thousands of homes, central water and wastewater systems, commercial development, and golf courses, and they did not refer to the property locations or the multiple variances from City ordinances, or the time periods for which the Agreements could not be altered.  The court found that if the notices had included such information, the purpose to inform the reader would have been defeated, since the length would actually overwhelm the general public.  The City’s notices identified the applicable parties, stated the type of agreement, and referenced relevant local government codes, and the City was not obligated to state all the consequences that would flow from the agreements.  Since the Development Agreements did not involve zoning, there was no “well established custom and practice” applicable to the postings, and the notices were sufficiently descriptive stating the subjects of the meetings in accordance with the Act.  

Save Our Springs Alliance v. City of Dripping Springs, 304 S.W.3d 871 (TX App. 2/11/2010) 

The opinion can be accessed at: http://www.3rdcoa.courts.state.tx.us/opinions/pdfOpinion.asp?OpinionID=18902


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