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Mertzon City Council May 20 2024


Aerial view of a city street in red, school district in background, with arrow pointing to City Gym.
The City Council voted unanimously at this meeting to close W. Fleming Ave. between 3rd and 4th streets, as depicted here in red.

 

A. Agenda and Meeting Analysis Time limitations and completing my post on the school board meeting last week prevented me from posting a meeting analysis prior to this meeting. I am combining them below. Here are the meeting documents for this meeting, which include the approved meeting minutes for the previous meetings on April 15 and May 6 meetings.

1. Lawyer present, agenda item 5. At the last meeting during discussion of the temporary closure of W. Fleming Ave., Councilmember Holland requested at the next meeting the City invite its lawyer, Jeff Betty, to attend this meeting to answer questions. Mr. Betty has been the City's lawyer since at least 2019 when I began speaking out against the closure of 4th Street for the City Gym. 2. Public comment, agenda item 4. The Ibarra's, Santiago and Sandra (who own the property relating to agenda item 12) and I (who own the property relating to agenda item 8) were the only members of the public present. None of us spoke during public comment. ICISD did not have a representative present at this meeting or at the previous Council meeting. (Both agenda items, 8 and 12, involve properties adjacent to ICISD.) 3. Executive session, agenda item 6. Council member Holland requested the City enter executive session, and the Council met with Mr. Betty for almost an hour.

4. Fleming Ave. repairs, agenda item 8. Upon returning from executive session, Mr. Betty left the meeting and Mayor Stewart first addressed the purchase of stop signs at item 7, then entertained a motion on item 8 on the repair of W. Fleming Ave. The brief discussion leading up to the motion made it transparent that the City had received the advice of Mr. Betty to temporary close the street and place traditional street closure barricades at each end at 3rd street and 4th street. Councilman Councilman, who was not present at the last meeting (and who is an employee of the Texas Department of Transportation), made a motion to temporarily close W. Fleming Ave. between 3rd and 4th "until proper repair can be made". Councilman Elliot, who had made a similar motion at the last meeting, seconded. There was no further discussion and the Council, including Holland, Crutchfield and Lindley (who all voted against closure at the last meeting), unanimously voted in favor of the motion. Below is some of my additional analysis of this street closure, including two of my photographs back in 2020: a. Governmental immunity - there are exceptions. Of course, I was not privy to the discussions in executive session with Mr. Betty. But, I have an inkling. I've done a word search for "tort" as in the Texas Tort Claims Act (and see here for local government immunity) in my bank of 5 years worth of public comments made to ICISD and the City Council. Sure enough, I recalled correctly that back in September 2020 I warned both the District and the City Council about the potential for liability under the Texas Tort Claims Act for flooding on W. Fleming from the 2019 bond build out. At the time of my warning, the cafeteria was still under construction and the gym had not yet been built. Indeed, I went so far back then to print out on foam board two of my relevant photos as exhibits to make my point as clear as possible. Here those photos are in 2024: Photo 1


A pickup going through a flooded street.
A 7.5 inch rain in September 2020, before construction of the new gym, caused this level of flooding. I told the ICISD Board and the City Council about it at the time.

Photo 2

Caliche flow down a parking lot under construction.
I argued as far back as September 2020 that construction gravel from the new cafeteria kitchen was washing down to W. Fleming and making it dangerous. Neither the ICISD Board or the City Council cared enough to respond, so WBK Construction and architect Jeff Potter never did anything to stop it. It was not until Dec 2023 that the City bladed the street and hauled off the construction gravel.

b. Why the 2024 bond build out should (hopefully) be different. Flooding streets with stormwater runoff not only implicates Takings clause violations, it also implicates exposure under the Texas Tort Claims Act. There are other laws, like the Equal Protection clause and of course civil rights laws in US Code section 1983, that protect citizens. Perhaps the ICISD Board is currently recognizing that it needs the cooperation of the City of Mertzon, who regulates the streets, to successfully expend the 2024 bond money without violating these and other laws.

c. Who is still here. Today in 2024 there remain only a handful of elected officials present who were involved with those 2019 bonds that, once spent, by design dumped water into city streets. On the ICISD side, Maegin Carlile, Ricky Rey and Ashley Hill were present, though in different capacities. On the City side, Council members Crutchfield, Holland and Lindley were all present. Each of these folks, especially, need to be cognizant that doing what they did in 2019 to solve the stormwater runoff from the ICISD campus - which was nothing - may well lead to increased exposure for them in 2024 under Texas tort laws. Governmental immunity is never a sure bet when children and flooded streets are involved, especially when the risks of danger have been known and documented for years. Eight years to be exact. d. All roads lead to free speech as the best remedy. It was also back in 2020 that former Supt. Ray DeSpain called me out of order during my public comments to the ICISD board. He took offense to my saying that his legacy as superintendent would be that all future superintendents would have to drive through flood waters from the 2019 bond build out in order to reach the superintendent's office. This May 20 2024 formal vote temporarily closing W. Fleming underscores the truth of my statement back then, as W. Fleming is, or now was, a flooded route to the superintendent's office. Citizens should not be shut up or shut out, especially when they speak the truth. Thankfully, our Founders understood the significance of the right of free speech. e. The onus is back where it should be. Councilman's motion, properly worded, was that the street should be closed "until proper repair can be made". I contend elsewhere on this blog that former Mayor Taylor had both his arms broken by ICISD in a political firestorm, initiated by ICISD board member Ashley Hill, to close 4th street for the new gym. That gym is now the leading contributor to the flooding on W. Fleming Ave. Thus, the onus is back on the school to pony up some of those 2024 bonds, as promised before the election, to correct this flooding. The City Council's initial position back in 2019 was to NOT give the street over to ICISD for the new gym (the very first motion on the issue never received a second, and so failed under Roberts Rules of Order). So, now that the 2024 bonds are soon to be sold the City of Mertzon should not bear a single penny in costs for any repair of W. Fleming Ave. f. And one final thing, where's that sewer line? All involved need to remember that a City sewer line that services ICISD goes under W. Fleming Ave. and enters my property. I therefore own that sewer line for almost the entirety of a city block because the City does not have an easement for it to cross my property. In other words, there's reason for all stakeholders to continue to cooperate should the City or ICISD ever wish for the City to one day receive an easement for that line.

Road Closed to Thru Traffic sign.
By 9:00 am on May 21, the morning following the meeting, the City crew had closed W Fleming. But the ultimate issue of what to do with the stormwater runoff from the ICISD campus still remains .

5. Third and Fayette shoulder barrier, item 12. The Council is going to attempt to reach an agreement with the Ibarra's to allow them to use landscaping rocks to keep that portion of the shoulder closed, with the condition that the Ibarra's accept the liability. That's a big liability given there are so many teenage drivers around... But, eventually drivers will figure it out. 6. Pro Forma Discussion. There was a bit of side bar discussion on last meeting's decision for the City to go "pro forma" with its speeding laws so that Sheriff Estes could begin enforcing the state speed limit inside the City of Mertzon. I feel confident that the matter was discussed in their closed session, but of course am not privy to that. Regardless, no action was taken in this meeting to change this decision. Citizen's should begin to see the City's PR statements on this to educate them on the new approach. Hopefully, there will be some PR statements coming from Sheriff Estes' office so that citizens know what his take is on what the new speed limit will be. I have heard both 30 and 35, so this might be a point for the City and the Sheriff to consider being consistent on. 7. Council member leaving. Council member Micah Elliott submitted his resignation and will serve his last meeting in early June. He will be missed for one who independently stood up for things he believed in. You might recall last meeting he was the one who made the motion to close W. Fleming for the safety of our citizens, and that motion failed. He was vindicated in this meeting, however, and his noncelebratory demeanor during this meeting indicates the exemplary nature of his character. He has been serving the public.


8. Pending Copyright 2024 G Noelke

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