Rather than take its case to the Texas Supreme Court, the City Council would be smart to put the Plano Tomorrow plan on the November ballot or, effective next month, put it on ice while citizens continue to work on a substitute version.
Having written repeatedly since 2018 about this master plan mess — and how this bitter, divisive battle has defined Plano’s growing political split — I take no pleasure in suggesting that the city give up this fight.
While I’ve long argued that the city was losing the public relations battle in this dispute, its fight seemed a righteous one, especially given that losing could set up an unprecedented and overbearing statewide citizens’ veto power over master plans and related tools.
But an appellate court ruling Thursday made clear that the law is not on Plano’s side. The court ordered the city secretary to present the referendum petition to the council, and it set a 14-day deadline.
The City Council — as split on the Plano Tomorrow issue as citizens are — spent three hours in executive session Monday night, undoubtedly digesting the news and trying to figure out its best next step.
Afterward, City Manager Mark Israelson would say only that the city staff would research several options and present a detailed analysis of each at the council’s Aug. 10 meeting. The city did not respond to a question about why this discussion wouldn’t occur in time to meet the court-stipulated two-week deadline.
The city has steadfastly argued for five years that comprehensive plans like Plano Tomorrow aren’t subject to referendum petitions because they are a part of a city’s zoning ordinance fabric. But that argument didn’t stand up with the state’s 5th District Court of Appeals, which issued a unanimous opinion that included justices from opposite ends of the political spectrum.
Justice David Schenck dug carefully and deeply into state statutes behind the two issues that ran smack into one another in this case: the power to plan and the power to push for a referendum.
“That public officials may have to develop a new plan that survives voter hostility is inherent in the exercise of the power reserved to the people,” Schenck wrote in the opinion.
David Coale, a local appellate lawyer, described the opinion as “vintage Justice Schenck. He is precise in determining exactly what the Legislature did and did not say.”
The Plano Tomorrow ruling had caught Coale’s attention even before I called him Monday. The partner at Lynn Pinker Hurst & Schwegmann in Dallas pays close attention to this court and told me he was struck by the ruling’s unlikely political alliance of Schenck, appointed by then-Gov. Rick Perry, and fellow Justices Ken Molberg and Erin Nowell, both Democrats.
The Texas Supreme Court generally sees things similarly to Schenck, Coale said, and the unanimous ruling only steepens the slope of getting a different outcome.
“There are obvious policy reasons to read the statute the way Plano wanted to read it, but that’s just not what it says,” Coale said.
This was a tough call, Coale said, but the state’s government code does not include master plans in the items precluded from petitions for referendums. And the decision is consistent with the court’s rulings related to “unmistakable clarity”; that is, how specific the Legislature has to be in its statutes.
The judges “aren’t going to infer something that the Legislature didn’t explicitly say,” Coale concluded.
The Plano Tomorrow dispute dates to 2015 when, after the council approved the master plan, resident Beth Carruth submitted petitions with more than 4,000 signatures demanding that the council repeal its action — or let voters decide the plan’s fate.
The city secretary opted not to present the petitions to the council on the grounds that development plans such as Plano Tomorrow fall outside the bounds of referendum petitions. In response, Carruth and four other Plano residents filed the lawsuit, which for years was mired in jurisdictional disputes.
The lawsuit increasingly came to illustrate a split in the city and its council on political hot-button issues, many of which resulted in representatives being divided 4-4.
For instance, at the end of June, Mayor Harry LaRosiliere’s proposal that would have forced local businesses, at the risk of being fined, to require employees and visitors to wear masks lost to one that recommended — but didn’t mandate — masks.
The votes broke down along familiar lines: Lily Bao, Anthony Ricciardelli, Rick Smith and Shelby Williams, who are seen as more sympathetic to conservative points of view, vs. LaRosiliere, Rick Grady, Kayci Prince and Maria Tu.
In the final mask vote, Prince, who will be up for re-election next year, swung to the “recommend, don’t require” group, and that version passed.
The mask debate was only a small skirmish compared with the longstanding disagreements about development, density and the growth of apartments.
Pro-City Hall residents, many of whom unite under the banner of “Stand Up 4 Plano,” see their city as its nickname suggests, A City of Excellence, and fear the opposition is destroying good policy.
The other side, whose umbrella groups include Plano Future, is often distrustful of City Hall and particularly adept at getting its voters out in runoff elections.
While City Hall and many of its longtime supporters maintain that the Plano Tomorrow blueprint actually is more conservative in its approach to development than the prior, 1986 plan, many Plano Future residents just don’t buy that and, in response, have successfully reshaped the makeup of the City Council.
Late last year, with the Plano Tomorrow plan still mired in litigation, the council came together to appoint a Comprehensive Plan Review Committee, a group of 16 residents, to review the master plan and propose changes.
How last week’s appellate decision — and whatever council members decide Aug. 10 — will affect that committee’s work is anybody’s guess. How to move forward is an enormously complicated discussion. For instance, what happens to zoning cases if Plano ends its fight? Will development take on a wild, wild West quality for the short term or simply be frozen in place?
Attorney Jack Ternan, who represents the Plano Tomorrow plaintiffs, told me that almost no case law exists on that point but that he believes the 1986 plan probably would fill the void.
He’s also familiar with the argument from the Stand Up 4 Plano faction that, with the citizens’ “review and improve” committee at work, wouldn’t it make sense for his plaintiffs to drop their lawsuit?
“There is no actual remedy,” Ternan, who is also a Plano resident, said. “Just forming a committee to talk about it indefinitely isn’t anything.”
“We are entitled to a referendum,” he said. “The public is entitled to vote on this unless they [the City Council] repeal it.”
As for the concern I regularly hear that this lawsuit has allowed a small handful of residents to hold the city hostage, Ternan points to the more than 4,000 signatures on those petitions. That’s almost a quarter of the number of votes cast in last year’s hotly contested City Council runoffs.
Perhaps some who signed were misled about the facts. At least a referendum would give both sides an opportunity to get the correct information in front of voters.
