Save Our Aquifer v. City of San Antonio

• Decision Date: 16 December 2002
• Docket Number: No. CIV.A.SA-02-CA-618-F.,CIV.A.SA-02-CA-618-F.
• Citation: 237 F.Supp.2d 721
• Parties: SAVE OUR AQUIFER, an Unincorporated Association, et al., Plaintiffs, and League of United Latin American Citizens (LULAC) District 15, Plaintiff-Intervenor, v. CITY OF SAN ANTONIO, et al., Defendants.
• Court: U.S. District Court — Western District of Texas

237 F.Supp.2d 721

SAVE OUR AQUIFER, an Unincorporated Association, et al., Plaintiffs, and League of United Latin American Citizens (LULAC) District 15, Plaintiff-Intervenor, v. CITY OF SAN ANTONIO, et al., Defendants.

No. CIV.A.SA-02-CA-618-F.

United States District Court, W.D. Texas, San Antonio Division.

December 16, 2002.

Nina Perales, Mexican American Legal Defense, San Antonio, TX, Amy H. Kastely, Center for Legal and Social Justice, San Antonio, TX, Leticia M. Saucedo, Mexican American Legal Defense & Educ. Fund, Inc., San Antonio, TX, Isabel Cristina de la Riva, Les Mendelsohn & Associates, P.C., San Antonio, TX, Joseph Pacifico Berra, Mexican American Legal Defense and Educational Fund, San Antonio, TX, for Plaintiffs.

George Joseph Korbel, Texas Rural Legal Aid, San Antonio, TX, Rolando L. Rios, Attorney at Law, San Antonio, TX, for Defendants.

ORDER REGARDING PLAINTIFFS' MOTION FOR SECOND TEMPORARY RESTRAINING ORDER

BIERY, District Judge.

A fable by the Court:

Once upon a time there were two armies of Amphibia Anura.

One army was pitched into a tub of boiling water. The frenetic frogs reflexively jumped out and saved themselves.

The second frog army was put in a pot of tepid liquid, gradually warmed to the boiling point, too late realizing: They were cooked.¹

* * * * * *

The flood of lawsuits anticipated over a proposed upscale golf resort begins with this unique set of facts brought under the Voting Rights Act of 1965 and other legal theories. The underlying current of the litigation is long standing concern about the main source of water lying under this region.² Hanging over these issues are the clouds of extreme term limits and allegations of a tainted political process.³ Plaintiffs apparently are fearful we Homo Sapiens will figuratively boil ourselves before realizing too late what we have done. Plaintiffs Save Our Aquifer ("SOA") and others allege causes of action under:

* Section 2 of the Voting Rights Act, 42 U.S.C. § 1971;

* Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c;

* The Due Process Clause of the Fourteenth Amendment to the United States Constitution, U.S. CONST. amend. XIV, § 2;

* The Texas Open Meetings Act, TEX. GOV'T CODE ANN. § 551.142 (Vernon 1988).

Initially, plaintiffs seek to temporarily restrain "defendants from taking any action to implement the `PGA Village Agreement in Lieu of Annexation' approved October 24, 2002 and from taking any other action to implement the PGA Village Project without first submitting the matter to a vote of the electors or submitting the voting change to preclearance by the Department of Justice, in compliance with Section 5 of the Voting Rights Act." Defendants contend plaintiffs have not shown they are entitled to injunctive relief and have not shown a voting change subject to preclearance.

Background

The Professionals Golfers' Association of America ("PGA") Village is planned for land north of San Antonio on a nearly 2,900 acre site which was purchased by Lumberman's Investment Corporation ("Lumberman's") in the mid-1980s. The property spreads across the Edwards Aquifer Recharge Zone. The original PGA Village concept negotiated between the San Antonio City Council and Lumberman's, on behalf of the PGA, would have granted the developer taxing authority as a special conservation district.

A bill was passed by the legislature which allowed for the creation of the taxing entity (SB 1629), which was to be the Cibolo Canyon Conservation and Improvement District No. 1. As the law required formal city council agreement before the entity could go into effect, city council held a number of hearings and voted nine to two in favor of the creation of the conservation district pursuant to Ordinance No. 95579.

Community activist groups, citing danger to the Edwards Aquifer and contending a for-profit entity should not be given the taxing authority of a governmental unit, launched a petition drive in April, 2002. Opposition to the development in the Cibolo Canyon was led by three groups: Communities Organized for Public Service ("COPS") and Metro Alliance ("METRO") and SOA. COPS and METRO are long established "public watch dogs," while SOA is recently formed. A referendum petition was circulated and supplemented. The petition requested city council to either repeal Ordinance No. 95579 or submit it to a vote of the electors as a referendum. Specifically, the petition stated:

PETITION TO REPEAL ORDINANCE NO. 95579 (THE "PGA VILLAGE ORDINANCE")

TO THE CITY COUNCIL OF SAN ANTONIO:

We the undersigned, together with the signatories to the multiple counterparts of this Petition, being ten percent or more of the electors qualified to vote at the last preceding regular election of the City of San Antonio (the "City"), hereby respectfully petition and request that: Ordinance No. 95579 approving a development agreement between the City, Cibolo Canyon Conservation and Improvement District No. 1, Bexar County, Texas, and Lumberman's Investment Corporation (the "PGA Village Ordinance") be either repealed by the City Council of the City of San Antonio or submitted to a vote of the electors of the City of San Antonio as provided by article IV, § 35 of the Charter of the City of San Antonio.

(Emphasis added). The drive garnered approximately 107,000 signatures, 77,419 of which were certified as registered voters by the city clerk, Norma Rodriguez.

This case began as an attempt by SOA and the individual plaintiffs to enjoin the City, acting by and through its city clerk, from the use of computers to sort petition signatures by requiring the city clerk to verify each of the more than 100,000 signatures. Plaintiffs alleged that computers were being used to count the signatures and to qualify or disqualify persons as registered voters in violation of the Voting Rights Act. In their complaint, plaintiffs alleged: "Thousands of people disqualified through this computer-referenced process are qualified registered voters and a disproportionate number of disqualified voters are members of minority racial, ethnic, or language groups." The League of United Latin American Citizens ("LULAC") filed a notice of appearance and joined the suit as a party-plaintiff. This Court refused to enjoin the use of computers. Ultimately, the referendum petition was certified as sufficient by the city clerk and as claimed by plaintiffs.

On August 1, 2002, the city council held a regular meeting to consider whether to repeal or refer the ordinance for a vote as requested in the petition. Just prior to the beginning of the meeting, the executive vice president for Lumberman's, John Pierret, sent a letter via facsimile to the mayor in which he urged the ordinance be repealed. Mr. Pierret stated he had been advised by the PGA:

[T]hey desire not to proceed with an election on the Cibolo Canyon Conservation and Improvement District No. 1 project. As such, given the development agreement is contingent upon PGA participation, please consider this correspondence our formal request that the city council repeal Ordinance 95579.

Mr. Pierret attached a letter which he had received from the PGA which set forth the commitment of Lumberman's and the PGA to continue to work with the City on the project. The letter states:

[T]he PGA has been supportive of the desire to protect the aquifer as outlined in the development agreement. We had hoped that all parties were moving toward implementing the agreement previously approved by the San Antonio City Council.

Recent actions, however, have caused us to reevaluate the current position of the PGA toward the Cibolo Canyon project. While we remain interested in a future relationship with Lumberman's, we must withdraw our commitment at this time. The PGA does not wish to be involved in an issue that is creating so much controversy and divisiveness within the San Antonio community. If in the future an agreement is reached between Lumberman's and the City of San Antonio regarding the development of the Cibolo Canyon property, we would be interested in revisiting a PGA relationship.

At this August 1, 2002 hearing, representatives of the three groups which had circulated the petitions addressed the city council. COPS and METRO each recognized and joined with Mr. Pierret and the PGA in urging the city council to repeal Ordinance No. 95579 rather than hold the election. Significantly, all three organizations (COPS, METRO and SOA) urged the mayor and council to continue to try to find a way to locate this project in San Antonio. SOA, however, continued to oppose the location of the development over the aquifer. A partial transcript of the August 1st city council meeting provides testimony from the groups' representatives. Pastor Armando Trujillo of St. Leonard's Catholic Church stated on behalf of COPS and METRO:

I am here representing COPS and METRO to say that we are glad that the city council is repealing the PGA development agreement. I want to underscore that COPS and METRO were never against PGA coming to San Antonio. We are for responsible economic development. Mayor and council, you know very well what are our issues: protecting our water, living wages, and opposing corporate welfare. We would have hoped that you, mayor and council, would have listened to the community and rescinded your vote when the petition was certified. We recognize PGA officials for providing the leadership and understanding that an election was not in the best interests of San Antonio and asking that you rescind on this issue.

(Emphasis Added). Mike Phillips of METRO stated:

Let me reemphasize that our focus was not against the PGA. METRO Alliance and COPS focus has always been on the effects on our families and on our most precious public resources of our community. COPS and METRO recognize the leadership in PGA in understanding that an election was not in the best interests of this community. Let us put this distraction behind us and refocus the vision of San...