What do we do with road projects that were going to use ReBuild Houston funds now that the Supreme Court has ruled the 2010 referendum to have been illegal?
A necklace of neighborhood streets encircling Hudnell’s home is among the ReBuild projects, deemed beyond “economical repair” and originally scheduled for work late next fiscal year, which starts July 1, but recently pushed back several months.
Now, that delay could last much longer, and residents who have waited for their crumbling roads or poor drainage to be improved could simply be out of luck; a Supreme Court ruling two weeks ago found the ReBuild ballot measure voters narrowly approved in 2010 obscured the nature and cost of the drainage fee. The case is headed back to trial court where legal experts say a judge is likely to honor the unanimous Supreme Court decision.
If the city no longer can collect the drainage fee, ReBuild projects slated for mid- to late next year, like the one near South Acres, could be shelved. Next year alone, the city has budgeted more than $100 million in drainage fee spending, and the fee is projected to bring in $500 million over five years.
At a budget meeting last week, Mayor Annise Parker acknowledged the city’s Capital Improvement Plan could take a hit. Council members have pushed the administration for more clarity on the impact of the lawsuit as they consider the five-year plan, up for a vote Wednesday.
“The Supreme Court ruling, first of all, it’s ongoing litigation, it has no operational impact today,” Parker said. “But it would be the CIP. Probably a third to a half of the CIP would go away if we didn’t use the drainage fee. But there’s still other money in there.”
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City Attorney Donna Edmundson disputed the notion that the city could not collect the drainage fee if the trial court finds the ballot language was misleading, pointing out that the lawsuit targets the charter amendment, not the ordinance City Council later passed to begin collecting the fee.
“The ruling by the Texas Supreme Court regarding the language for the Proposition 1 charter amendment has no bearing on whether the drainage ordinance continues,” Edmundson said. “The enabling ordinance adopted by City Council created the drainage utility and accompanying monthly fee that finances the streets and drainage program. For this reason, the ongoing legal dispute has no impact on the city budget for the coming fiscal year or the five-year Capital Improvement Program City Council will consider on Wednesday.”
South Texas College of Law professor Matthew Festa said that the charter amendment is struck down and the city continues to collect the drainage fee, it begs the question why they sent it to voters in the first place.
“It might be a technically correct legal argument,” Festa said. “But it might not be prudent to continue implementing a law where the basis on which the law is enacted is in grave doubt.”
See here and here for the background. As I said with the calls for doing over the election, I’d like to hear what the district court has to say before we do anything rash. Proceeding as if nothing has changed strikes me as unwise. I hate the idea of putting off needed maintenance, and I still think the Supreme Court ruling was politically motivated, but we are in uncharted waters here, and any further activity involving ReBuild funds risks putting the city in legal jeopardy. If there are projects that can be done without tapping into that funding source for now, then go ahead with it. Anything else, let’s get some clarity about what the Supreme Court ruling means in practical terms.