To Our Readers:
The Wednesday, April 20 CTG staff’s determination to post an e-mail submitted to the paper by Town Council Deputy Mayor Pro Tem Itamar Gelbman was based on the fact that he chose to share confidential information publicly; not the content of the information, or the parties it involved.
Under his self-heading: “Gelbman: When developers and friendships are more important than residents, liability and safety,” the council member included confidential attorney client privileged communication—he attributed to Town Attorney Bryn Meredith.
As posted in his response, Meredith wrote: “The legal advice provided to the Council was delivered in executive session, under the “consultation with attorney” exception to the Open Meetings Act (“Act”), and was intended to be confidential.”
The CTG staff determined that the public should be made aware of Gelbman’s submission. He is currently under investigation by the Denton County District Attorney’s office for a Code of Ethics Violation related to sharing information obtained during a Town Council Executive Session.
The entire response from Meredith and a related response from Town Manager Jimmy Stathatos are all posted, unedited; as was Gelbman’s original submission.
Lyn Rejahl Pry
In the last few years we saw tremendous growth in Flower Mound. Some think it is too fast and some too slow. But as a resident it concerns me to see that every single development and every single exemption was rubber stamped “aye.”
I was elected in May of 2015 to Town Council with the promise that I will come open minded, that I will listen to the residents, and put the residents and the Town above developers and their bank accounts.
After a year on P&Z and almost a year as a council member, the current council and Mayor proved to me once and for all that for them, developers are more important than our residents and community.
On Monday, April 7, Council voted 4-1 (I was the lone Nay) to approve a Master Plan Amendment and a Special Use Permit for a QT gas station. Although this vote seems insignificant, it actually has a profoundly negative impact and precedent for our community.
A few months ago, the landowner came to Council with a request to rezone the property from Agriculture to Commercial. So initially, it was supported by many residents (including the neighbors) because the landowner PROMISED this development would be fully developed according to the Master Plan and SMARTGrowth.
On Monday, QT confirmed that they had been negotiating a location in Flower Mound for about three years now, and for this location for almost a year. This means that the landowner was not forthcoming with the neighbors and Council who supported them when they applied for the original rezoning. Indeed, the landowner played a great game of “switch-a-roo” with everyone.
History has proved over and over this trick of getting approval in Flower Mound: present one thing, and after it passes, just continue to submit amendments and waivers until ultimately you get exactly what you really wanted all along.
What deeply concerns me is that the Town Council refused to listen to Town Staff and the Town Attorney who both did not support of this project and/or exemptions.
The Town Attorney’s recommendation was “cautionary advice was that if approved, the decision will likely have precedential value.” This is the first time that the town has approved a developer’s design that does not confirm the town urban design ordinance. This waiver was asked by Target, Home Depot, McDonald’s, Chase Bank and other national retailers – but was always denied.
So, the majority council has announced that anyone can now build in Flower Mound in total violation of the Town Ordinance. And in addition, should the town not also approve future violations, the Town might be liable for a “loss of income for the developer which can reach millions of dollars per development.”
The Town Staff’s recommendations to deny this project was based on QT’s outright refusal to work with the Town Staff. What this really means, is that by QT’s going to the Council to ask for the waivers without the blessing of Town Staff, developers now know they can bypass the staff, as staff’s expertise no longer matters.
During the meeting some council members and QT supporters mocked residents who explained their substantive concerns regarding this waiver, and suggested that their objections were simply about a “red stripe” on the QT facade. The stripe was NOT what was voted on.
One of Town Staff’s concerns was that QT outright refused to work with Flower Mound regarding the design plan and that QT came on board stating “we do not negotiate our designs and looks.” Staff proved that was untrue by showing pictures of QT from Southlake, TX and from Arizona where QT had modified their designs to fit the Town ordinances.
Another troubling concern that I have regarding my fellow council members is their stated reason for voting for this project: “because more residents supported than opposed it.”
If that is true, then what is their reasoning for supporting other projects where the majority, or all of residents opposed them? For example, just two weeks ago the majority council voted to give exemptions and waivers to a development that was unanimously denied at P&Z, with no residents supporting it. In addition, the impacted neighbors asked Council to uphold the P&Z denial. But yet again, Council approved exemptions and waivers from our ordinances. Twice, the majority Council voted to waive the requirement for burying utility lines because the developer stated he didn’t know it was going to cost him so much money. So, the majority council put residents’ lives at risk for a few extra bucks in the developer’s pocket.
Early voting begins this Monday. I am earnestly asking you to do your homework. Check which candidates receive money from special interest groups such as developers, land owners, and developer consultants, and who did not. For you and your community’s sake, vote for the people who you think will represent the residents, rather than the special interests that do not care about you or our community.
EDITOR’S NOTE: The Cross Timbers Gazette was forwarded the following emails by Flower Mound’s Town Manager regarding statements allegedly made by them during the QT deliberations:
From: Bryn Meredith
Sent: Tuesday, April 19, 2016 3:26 PM
To: Place5 – Itamar Gelbman
Cc: Jimmy Stathatos
Subject: RE: QT – Question – please ignore the previous e-mail as it was incomplete…
Confidential attorney client privileged communication
Good afternoon Itamar,
I will address the statements in your email that are attributable to me. I have highlighted those areas below for ease of reference. I will not comment on/approve/disapprove anything that is not highlighted (since those statements are policy arguments) except to state that my understanding from the meeting during which the QT item was presented is that – from my perspective – it appeared that the Town Manager’s office and the Planning Department held different viewpoints regarding whether the application was recommended for denial. I have copied Jimmy on my response so that he may comment on “staff’s position.”
Let me begin by first stating that the legal advice provided to the Council was delivered in executive session, under the “consultation with attorney” exception to the Open Meetings Act (“Act”), and was intended to be confidential. While it is not a violation of the Act to reveal confidential legal advice to the public, as a general rule I would discourage the practice. This is because council members owe a fiduciary duty to the Town and if the revelation of confidential advice results in liability to the Town, such Council member may incur personal liability. Also, the regular practice of disclosing privileged attorney-client advice may discourage the seeking of legal advice in the future and stifle legitimate legal questions.
With that said, I would offer the following responses and clarifications to the highlighted legal matters addressed below:
- “the Town Attorney . recommended denial of this project”
I did not recommend denial of the application. Instead, I indicated that it is the Council’s job to interpret the design standards language in the master plan. My cautionary advice was that if approved, the decision will likely have precedential value. As a result, when considering future applications, the issue of whether a particular building style constitutes “franchise architecture” – while fact specific – is subject to review by a court and will in part likely be measured against the broader interpretation made in this case. I also indicated that the Council’s decision in the QT matter – if challenged – would be upheld unless an aggrieved party with standing was able to show that the decision was completely arbitrary.
- The Town Attorney’s recommendation to deny this project was based on liability
I did not recommend denial of the application. I cautioned the Council on the precedential value of the decision.
- the town has approved a developer’s design in violation of the town urban design ordinance.
From my perspective – as Town Attorney – I do not believe that the Council’s decision approved a design in violation of the urban design ordinance. A court would need to rule that the Council’s decision was completely arbitrary, which I believe is unlikely given the rather vague language in the Town’s urban design standards regarding franchise architecture.
Instead, the Council has essentially adopted a broader interpretation of the standard, which has some precedential value for future applications.
- should the town not also approve future violations, the Town might be liable for a “loss of income for the developer which can reach millions of dollars per development”.
I did not state that this was a violation of the urban design standards and did not state that approving QT would require approving future “violations”
of the urban design standards. Also, I believe this statement is taken somewhat out of context. The question that I was asked that prompted (something similar to) this statement involved a hypothetical which assumed that a future, similarly situated developer to QT were denied the same interpretation by the Town and a court found that the denial by the Town was completely arbitrary (in other words – a worst case scenario). I stated that the Town could suffer liability in the amount of lost profits (in unspecified amounts that would have to be proven in court) to the landowner if the project could not go forward as a result of the decision (if the decision was found to be arbitrary and unreasonable by a court). I also stated that a legitimate response argument would be that no two applications are identical and that each application is distinguishable from all other projects.
Ultimately, my advice both during executive session and now is that the decision does have important precedential value but 1) it does not dictate future decisions and 2) I did not recommend denial of the application.
I hope this helps to clarify the legal issues addressed below and the statements that are attributed to me. As I noted above, it is not my place to weigh in on the policy arguments raised in the correspondence below and I will defer to Jimmy regarding staff’s recommendation during the meeting.
Please let me know if you have any other questions.
Bryn D. Meredith
Attorney at Law
From: Jimmy Stathatos
Sent: Tuesday, April 19, 2016 3:43 PM
To: Bryn Meredith ; Place5- Itamar Gelbman
Subject: RE: QT – Question – please ignore the previous e-mail as it was incomplete…
I know I wasn’t addressed by this email, but I feel compelled to offer some feedback.
I just want to mention that Town staff didn’t recommend denial of the QT project. While some staff members may have felt that a recommendation of denial was warranted, others felt that it should be approved. Therefore, I don’t think the Town staff recommended denial is completely accurate. Also, QT has been working with the staff for years. From my perspective, I think an impasse was reached between the development staff and QT. Therefore, as has been the case on other projects, the application is forwarded to P&Z and Town Council since they have the final voice on the matter.
Please let me know if anyone has any questions. Thanks.
Town of Flower Mound