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2008-01-24

Bombshells, AG investigation dropped on city council

By Judith Pannebaker

Bandera City Administrator Gene Foerster may have inadvertently dropped a couple of bombshells while presenting his usually pro forma managerial update to city council on Thursday, Jan. 17.

A snag - bedrock
A controversial plan to extend utilities under the Medina River to accommodate a proposed nursing home facility - as well as other development - has apparently hit a snag, or rather “solid rock beneath soil and superficial rock.”

Foerster told city council that engineers hired by Smithers Merchant Builders LP must now “bore under the river and research the depth of the bedrock” before work can continue on the utilities extension. A municipal engineer - not associated with the project - predicted that, depending on the depth of the bedrock, installation of the water and wastewater lines might evolve into a long, expensive and complicated process.

As part of an development agreement with the city, Smithers Merchant Builders LP planned to fund installation of the utility lines in return for the city furnishing the facility with utilities. When the city eventually annexes the property, the utility lines under the river will be absorbed into the municipal utility system. By refusing to extend the utility lines, the city would lose approximately $40,000 per year in revenue from the developer, Foerster said at an earlier meeting.

During a Nov. 7 pre-construction meeting, Billy T. Cope of WT Cope Construction Services, Inc. said utility lines would be put in along both sides of the Highway 16 Bridge crossing the Medina River.

“Water lines will be installed upstream and sewer lines, downstream,” he said, adding a portion of the installation would begin at Maple Street. Four-inch forced main pipes will be used for the sewer main. Anticipating increased capacity in the future, 12-inch water mains will be installed under the river with eight-inch pipes leading to and from the river.

During the pre-construction meeting, Cope said construction on the extended care facility at the intersection of Highway 16 South and FM 1077 would begin after the utility mains were installed, predicting the facility would be completed in August or September.

At that time, Foerster characterized Cope’s completion date as “optimistic.”

AG investigation
Expansion of utility lines into the city’s extraterritorial jurisdiction came before the city council a trio of times before the extensions were finally approved in July. The 3-2 decision came after an hour-long closed executive session with council members sequestered with Municipal Attorney Monte Akers. Councilmen Horst Pallaske and John Hegemier voted against the extension.

The closed meeting is currently under investigation by Texas Attorney General Greg Abbott. Apparently, the AG’s office received several complaints that the July closed session violated the Texas Open Meetings Act. State law is specific regarding what can and cannot be addressed during executive sessions. Topics frequently discussed in executive sessions include threatened or pending litigation, real estate transactions, personnel matters and items subject to the attorney-client privilege. However, under no circumstances can city council members vote or be polled during an executive session.
During a Dec. 6 city council meeting, Akers explained the executive session was convened because “(city council) wanted the advice of legal counsel.”

To facilitate the investigation, council approved releasing certified minutes of the closed July 19 meeting in response to a subpoena from the Attorney General’s office. “To file a motion to quash the subpoena would be very expensive and would look like we are trying to hide something,” Akers said. He also secured the release of attorney-client privilege to enable city council members to speak to investigators.

Executive session
After the AG’s office received the complaints, two officers from the Criminal Investigations Division questioned several city council members about the July 19 executive session. Mayor Denise Griffin was contacted, as well.

To one query about the closed session, a council member told investigating officers he felt other council members might have “felt pressure” to change their votes. The council member said he was also questioned about any advice tendered by the municipal attorney regarding extension of the utility lines, and a letter written by Griffin to county commissioners telling them - prematurely, as it turned out - the extension was, in fact, a fait accompli.

In addition, one council member apparently thought the executive session would center on alleged threatened litigation by Smithers Merchant Builders LP against the city for failing to approve extension of utilities across the river. In retrospect, however, he regarded rumors of a pending lawsuit as “an attempt to intimidate council into approving the utility extension.”

A final report on the investigation is still pending from the AG’s office.

Club Bandera
In other business, plans for renovating 1005 Hackberry Street also seemed to have been amended.

Rather than construct a 30-room boutique hotel at the back of the property as previously proposed, owner Steve Ball is now “shifting gears and leaning toward lower density,” Foerster said during his Jan. 17 administrative update. Ball’s decision was relayed to the city by Lyndsay Thorn of Thorn Graves Architects of San Antonio, the firm that had drawn up the original plans for “Club Bandera.”

The latest evolution of Ball’s plans include putting up townhouses in place of luxury apartments, spa, pool, restaurant, upscale hotel and conference center.

Constructing townhouses on the site requires no zoning changes, according to Foerster. In addition, shelving a contentious plan to serve liquor at the restaurant attached to the hotel and conference center would please neighbors living near the historic complex, formerly known as the Butler Hotel, Hackberry Lodge and Mansion in Bandera.

Other concerns about Ball’s original project included inadequate parking, misgivings about the city’s capacity to provide sufficient sewer and water utilities, potential flooding due to increased impervious cover and increased traffic.
Since the Hackberry property on does not fall within the designation of Bandera’s Historic District, facades of the proposed townhouses would not be required to be constructed with western-style motifs.