Money is really none of the three things we are taught. It’s not a commodity, it’s not a medium of exchange, and it’s not a store of value. It’s an IOU. We issue IOUs to each other for the services we will provide in the future or goods we will produce. The scam is that the banks require that our IOUs be issued through them, a totally unnecessary service for which they charge interest. Banks charge interest despite not actually loaning anything out. They simply issue our own IOUs to us to distribute.

The origin of money is: when direct bartering was not desirable, because one party did not want what the other had to offer, an IOU was issued for what that party had to offer instead, and the party receiving the IOU accepted it knowing others would want what the party had to offer, which they themselves did not. When the next person received the IOU, they could use it as a bartering chip themselves, or redeem it for the good or service it promised. If they redeemed it with the issuing party, it went out of existence. Therefore, money is ultimately a temporary instrument, designed to come into, and out of existence.

And in fact, that’s what it does, even in our modern central banking system. When a bank issues a loan, the money comes in to existence, and when it is paid back, it goes out of existence. Because it is essentially an IOU, not a commodity like gold or silver, or even bitcoin.

Excessive loans beyond what can be realistically redeemed by the borrower create inflation when they remain in circulation. They become essentially worthless IOUs, or in a more practical sense, dilute the redeemability of every dollar in existence by a degree below what it was originally.

By charging interest on loans, accepted by the public because they mistakenly believe the bank is loaning something out, the bank actually sets in motion a bizarre system where there is always owed some percentage higher a total number of dollars than currently exist. Because every dollar in existence is owed back plus interest.

This would, on its own, produce constant deflation. But because the banks lend just beyond what they know can realistically be paid back, they maintain a delicate balance of loans that go bad creating inflation, and loans that get repaid creating deflation. Their goal is 2% inflation, which is enough to not tank the economy, but enough to steadily launder 2% of every good or service produced in to their possession.

Hunter Biden was already under FBI investigation during the 2020 Election, when the NY Post revealed his laptop full of incriminating information he’d failed to pick up from a repair shop. In fact, The FBI were the first ones to receive the laptop from the shop owner. But, All they did with it was warn Facebook and Twitter that it may come out as an October Surprise and that they should assume it was Russian propaganda!

Fast forward to the run up to the 2024 Election rematch, in the summer of 2023. IRS employees came forward to blow the whistle on how much evidence of influence peddling and other political crimes the FBI was sitting on and refusing to charge Hunter with. (In fact by that point they’d sat on it so long statue of limitations had run on many of the potential crimes). 

In order to try to maintain the moral high ground against Trump (“No one is above the law!”), the Deep State cooked up a plan: they would charge Hunter with the two least bad crimes they had evidence of, the lie about drug use on the gun form and not paying taxes on illegal bribe money, and buried in the plea deal, which would require no jail time, would be a blanket immunity clause for all the real serious crimes.  Hunter agreed.

Unfortunately, the Deep State doofuses forgot to make sure the Judge was in on it. And she wasn’t. They went before her for a quick rubber stamp and she said what the hell is this immunity clause? The DOJ lawyers were embarrassed at being totally busted. They really couldn’t admit in court to what the deal said, because it was so unorthodox. So they had to Disavow it and take out the immunity.

At that point Hunter, the little entitled prick that he is, said, “well in that case the deals off!” The only reason he was willing to go along with this was because it included the wider immunity.

So at that point the DOJ was totally screwed. They’d already charged him with crimes. He just revoked his own plea deal. They had no choice now but to go to trial and eventually sentence him to prison!

THAT, and that alone, is the ONLY reason Joe was faced with having to pardon his son: Because his keystone cops bungled so badly their attempt to pimp out the justice system.

Everyone knows Matt Gaetz is accused of having sex with a minor and possibly “trafficking” her (flying her to another state with the understanding she would do sex work once there). 

What not everyone knows is once Gaetz and his father were approached by several men in 2021 with a bizarre offer: if they could put up $25M to fund a quixotic rescue campaign in Iran, the men could make Gaetz’s legal troubles go away.

https://www.washingtonexaminer.com/news/1811339/documents-detail-wild-alleged-25m-gaetz-extortion-scheme/

As bizarre as the story was, Gaetz and his father, a rich businessman who was the Florida Senate president for decades, viewed it as simple extortion. They went to the FBI, Don Gaetz wore a wire, and the man recorded is now serving 5 years in prison.

https://www.nwfdailynews.com/story/news/courts/2022/08/22/alford-sentenced-five-years-attempted-extortion-gaetz-family/7864230001/

The weird thing about the far fetched story (seemingly unnecessary to a more standard blackmail/extortion/bribery approach) is that another person once got the same pitch 12 years earlier: Oleg Deripaska. And not only that, but he actually did pay the money.

If that name sounds familiar, it’s because he played a “heel” role in the Russiagate conspiracy theory pushed by the media from 2016-2019.  In fact, two prominent members of the Russiagate prosecution, Andy McCabe and Robert Mueller, were involved in the pitch to Deripaska.

https://thehill.com/opinion/white-house/387625-mueller-may-have-a-conflict-and-it-leads-directly-to-a-russian-oligarch/

Deripaska did get his Visa back for his efforts. However, the alleged point of the money, to find and rescue former FBI agent Bob Levinson who’d gone missing in Iran, never turned up any success. 

https://www.newsweek.com/robert-levinson-fbi-agent-iran-rescue-1356990

One wonders whether Oleg cared, though, after all, he got his Visa.  Which brings us to the real question: what’s going on here?

There are a couple possibilities:

1) The effort to rescue Levinson was real, in both cases. But since Levinson was engaged in clandestine off the books work for US intelligence when he went missing, US funds were not available to rescue him and new methods had to be found.

2) the Levinson story was just a sales pitch to try to make straight up extortion/bribery seem more noble than it really was.

If the answer is 1 you feel bad that Stephen Alford is in jail

If the answer is 2 you kind of wonder why Andy McCabe isn’t.

By the time you read this the Austin City Council will have voted on, and most likely passed, the HOME Phase 2 Ordinance, greatly reducing minimum lot sizes across the city.  While most of the commentary in the past week has centered on what the effects of this new Ordinance might be on the community, and on housing prices, another interesting question is whether it runs afoul of Texas Law.  This is not a question out of the blue.  The City has recently lost three lawsuits over zoning issues, and a fourth over tax increment financing.

Shortly after the first of these losses, the original Acuna v City of Austin lawsuit, but before losing again on appeal, the city filed a document with the lower court that is very relevant to any discussion of the legality of HOME Phase 2. 

It was titled “REQUEST FOR CLARIFICATION REGARDING THE SCOPE OF THE COURT’S FINAL JUDGMENT”.  

In it, the City basically whines that the Acuna ruling was written too broadly. So broadly, in fact, that it endangered the city’s contemplated future redefining of single-family zoning classifications to reduce minimum lot sizes throughout the city.  The City complains that the arcane 211.006(d) should not apply to something like the redefining of existing zoning classifications when, nominally, no one’s zoning classification (or boundary) had been changed.  However, they had just lost on this very question, and would soon lose twice more on it.  Their confusion was understandable, however, because, as they would elaborate on in their appeal, how were they supposed to ever determine whether there was, or was not, a valid petition in existence for every parcel affected by a city-wide rewrite?  (It’s estimated over 174,000 parcels will be affected by HOME 2.)

That’s a good question.  Unfortunately for the City, and really for all of us, the City never received an answer.  The reason for that is that they had already filed for appeal, so the original Judge was off the case, and no longer in a position to “clarify” her ruling.  The Appeals court Judge did not respond directly to their request either, except to say in her ruling that the City “failed to preserve the argument for appeal”, because they never brought it up in the original lawsuit. 

In fairness to the City, they weren’t really making a new argument on appeal, they were sincerely requesting clarification.  Their disbelief that Chapter 211 of Texas Law really means what it appears to say has been the running theme throughout this saga.  The City just can’t wrap its head around the concept that Texas Law does not allow for Code Rewrites, the way they are commonly done in other states.

So now HOME 2 is passed, but it’s on the clock.  The City has three years before the statute of limitations runs and they can no longer be sued to have it invalidated.

Will the Acuna litigants challenge?  As I discussed before, their lead attorney Doug Becker painted himself into a corner by making a more narrowly-tailored argument in Acuna v Austin.  The litigants would have to make an all new argument in the case (should they go the route of a new motion to enforce permanent injunction).  Assuming they can get around this problem, or assuming a new litigant steps forward with a fresh challenge, it might not need be a very long petition.  Given this filing and the court’s subsequent rulings, much like in the recent TIRZ petition from Bill Bunch, they might only need quote the City’s own words to be successful.

§.175.10 appears to be about business records that are false in a monetary sense, rather than in a mislabeled sense, and which further a financial fraud, not an election fraud.

This becomes more obvious when you go back and read §.175.05, falsifying business records in the second degree, the prerequisite for §.175.10, falsifying business records in the first degree.

Why would a “falsified business record” be a misdemeanor, but get elevated to a felony if its intended to commit a second crime? Because both laws are aimed at “cooking the books“, ie financial fraud.

Neither statute is designed to criminalize the mere mislabeling of inflows or outflows that actually took place in the amounts claimed, that were “mislabeled” for non-financial reasons, like to hide an affair.

The legislature’s intent here is rather easy to divine: What crime would you falsify a business record to commit? A financial fraud, obviously.

When we examine the allegations in Bragg’s case, we see that the amounts were accurate.

Even if you wanted to argue §.175.10 still covers “mislabeled”, but otherwise accurate, business records, under an expansive interpretation of the law, you would still have to acknowledge that Michael Cohen really did submit legal invoices. And the accountants in charge of Trump Org.’s books were likely not aware these were not legitimate.

So what Bragg is really alleging is a conspiracy between Trump and Cohen to submit false legal invoices.

The amounts in the entries were accurate, the labels were at least superficially accurate, and none of it was in the service of a greater financial fraud.

It’s also instructive to compare §.175.10 with FECA and the Clinton Campaign’s fine for labeling payments to Fusion GPS as legal fees to Marc Elias.  FECA, unlike §.175.10 really is concerned with the labeling of expenses (on FEC reports) because FECA is about election transparency. §.175.10 is not about Election, or Business, transparency.  It’s about financial fraud.

Bragg has misinterpreted §.175.10 in a way similar to how Jack Smith is currently accused of misinterpreting § 1512(C)(2) in the Fisher appeal.

I’m personally indifferent to the policy impact of the HOME Ordinance and HOME Phase 2 Ordinance. However, it strikes me that there currently exists a failure to communicate between Texas Courts’ recent rulings in the Acuna v City of Austin lawsuit, and the City’s interpretations of those rulings. There seems to be a state of denial happening that prevents the City from grasping the real takeaway: that Texas Law, as currently constructed, simply does not allow for Code Revisions the way major cities in other states routinely carry them out.

In Texas, any proposed change to the restrictions imposed by city zoning on a piece of property, however it’s done, results in the owner of that property, and every owner of every piece of property within 200 feet, getting the opportunity to protest the change in writing. If 20% of those eligible to protest do, it’s what’s called a Valid Petition. It then forces the vote in question to be a 3/4ths super majority to pass, rather than a simple majority.

This becomes a major snag in any attempt at Land Code Revision. Why? Because it’s not one piece of property being affected, in the case of the HOME Ordinance and HOME Phase 2 Ordinance, it’s an estimated 174,000. Every one of those 174,000 property owners has the right to protest. The City has the legal duty to formally collect those protests, as well as anyone 200 feet away, and do the math calculation to see if it is greater than 20%, before voting. (And then do that over again, 173,999 more times.)

Texas cities can’t simply skip that step because they have already taken the temperature of the council, and worked out ahead of time that the vote will likely be a super majority. It doesn’t work retroactively like that. These are official city procedures, allowed only by, and exclusively governed by, the State of Texas.

Every parcel affected by any zoning action must be determined to have or not have a “valid petition” before that zoning action can be voted on. Even if you accept that the onus of filing such protests is on the property owners, it’s clearly required by law that the City accept them formally, and do the math to determine if they reach the 20% threshold, before a vote can be held.

Obviously, this is not feasible with 174,000 parcels. To ask “What does a valid petition mean in a city-wide Code Rewriting Ordinance?” is like a Zen kōan akin to “What is the sound of one hand clapping?” The mind shuts down when contemplating it.

From Final Judgement in Acuna v City of Austin (D-1-GN-19- 008617), we read:
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that Defendants be, and hereby are, commanded to desist and refrain from: Refusing to recognize and accept Plaintiffs’ protest rights pursuant to Texas Local Government Code § 211.006(d) as to any change in the zoning regulations… in order for such change to be effective…”

When we look up the cited Section 211.006(d), we read: “If a proposed change to a regulation or boundary is protested in accordance with this subsection, the proposed change must receive, in order to take effect, the affirmative vote of at least three-fourths of all members of the governing body. The protest must be written and signed by the owners of at least 20 percent of either: the area of the lots or land covered by the proposed change; or the area of the lots or land immediately adjoining the area covered by the proposed change and extending 200 feet from that area.”

If there was any question that maybe a city-wide Code Rewrite was somehow accounted for in other parts of Chapter 211, a look at the Appeal Ruling quickly disabuses us of that notion: “The statute requires compliance with these provisions for certain zoning “changes,” but not for the initial adoption of zoning ordinances. The City Parties maintain that a comprehensive revision of zoning ordinances is more like the initial adoption of city-wide zoning, and thus, those provisions should not apply. A number of property owners disagreed and filed this suit. The trial court agreed with the property owners and rendered declaratory and injunctive relief. The City Parties appealed, and the appeal was transferred to this court. We conclude that a comprehensive revision “changes” existing zoning ordinances, and thus, the statute’s written-notice and protest provisions apply.”

The truth is Texas Law in Chapter 211 does not appear to contemplate Code Rewrites, and interpreting one section or another to assess their legality is more art than science. 211.007 appears aimed at larger cities with established zoning classifications. While the City thought it could be clever by changing the definition of what each classification allowed, without technically changing anyone’s nominal classification, this just caused their action to be reviewed under 211.006, which appears aimed at less sophisticated zoning schemes in small towns, and which is clearly about standard single parcel rezoning, not city-wide “code rewrites”. Nevertheless, the language in 211.006 is clear enough that three courts have ruled it applies to Code Rewrites.

In my opinion, it’s not great policy for the City to just hand wave away these problems and pass the ordinances they want, and hope no one sues. Because all it takes, right now, I think, is for someone to sue over HOME or the upcoming HOME Phase 2, and the courts are going to rule in their favor. And it will be Austin’s fourth loss in a row on this issue. Sending notice to the entire city telling them to comment on online forums and sign up for speaking time at City Hall isn’t going to cut it with Texas Judges. Even if the City includes the tag line “This is your chance to protest!”. That’s legal wishcasting.

The City of Austin has two legally sound options, it seems to me:

Create HOME and HOME 2 as new zoning classifications “on paper” and require that every property owner that wishes to take advantage of it rezone one at a time through the traditional process of Notice>Protest>Vote. (like DB90)

or

Wait until the next legislative session and pressure the legislature to address this hole in Chapter 211.

IS THERE REALLY A “BUT FOR” TEST IN THE TIRZ LAW?

The forthcoming ruling in Bill Bunch’s South Central Waterfront TIRZ lawsuit, which could come down any day now, promises to be a watershed moment for the political struggle over the last few years between the emerging New Austin and the Old.

Bill Bunch has just filed another lawsuit against yet another Endeavor project, this time challenging the zoning for the Borden Plant redevelopment on the Eastside.  There’s no indication he plans to slow down.  All this comes on the heels of recent big wins by Bunch’s compatriot Doug Becker, successfully striking down the City’s 2019 land use rewrite and several piecemeal follow-ups (although the HOME Ordinance has so far gone unchallenged).

Meanwhile the Related Cos. have announced plans to build their own modern mixed-use mini-downtown in the SCWF-TIRZ.  If the SCWF-TIRZ is enjoined, will this project be in jeopardy as well?

If so, a Bunch victory in the SCWF-TIRZ case could force a public reckoning over the direction of Austin growth and development.  A Bunch defeat, however, could go a long way towards moving past this municipal existential crisis.

At present Bunch has the stronger argument in the TIRZ case, because the City Attorney has essentially agreed with his reading of Section 311 of the Texas Tax Code, while asking the Court for “deference” to City determinations.  However, “deference” to City decision making has not been a winning argument in recent lawsuits.

Interestingly, though, the City may not need such deference to be granted, after all.  Section 311 is a very interesting part of the Texas Tax Code, that, when read with Bunch’s and the City’s interpretation in mind, appears to be logically incoherent. This raises the question of whether their interpretation might be incorrect. If it can be shown that a different interpretation makes the entire section become coherent, the very premise of their interpretation could be questioned.

Consider the following two statements:

A) “You may attend tonight’s outdoor concert if you have a ticket”

“However,”

B) “We may cancel tonight’s outdoor concert if it begins to thunder”.

May and if are doing very different things in those two statements.  Now, consider the half sentence in Section 311 on which all of Bunch’s (and the City’s) argument rests:

“(a) The governing body … may designate a contiguous geographic area in the county …. a reinvestment zone to promote development or redevelopment of the area if the governing body determines that development or redevelopment would not occur solely through private investment in the reasonably foreseeable future.”

My Clintonian parsing of this language may seem absurd, but remember that the City Attorney’s argument, partly, rests on the meaning of “solely” and “reasonably foreseeable future”.  And it’s not clear how those words’ interpretations even help her argument, to be honest.

The history of the TIRZ law, which was originally open-ended, then struck down as unconstitutional over this very issue that Bunch is suing over, and then reinstated with a new narrower focus, certainly has led everyone to assume that A) is the proper reading of the crucial half sentence.  Additionally, the Attorney General at the time issued an opinion letter making clear that’s how he interpreted it.

The problem is, under the A) interpretation (the supposed “but for” test) the Section as a whole becomes incoherent.  Let me explain why.

Two sections after 311.003: “PROCEDURE FOR CREATING REINVESTMENT ZONE”, from which the “but for” half sentence comes, comes section 311.005: “CRITERIA FOR REINVESTMENT ZONE”.

It sets out four possible avenues for an area to qualify as a TIRZ:

(a) To be designated as a reinvestment zone, an area must:

(1) substantially arrest or impair the sound growth of the municipality or county designating the zone, retard the provision of housing accommodations, or constitute an economic or social liability and be a menace to the public health, safety, morals, or welfare in its present condition and use because of the presence of:

(A) a substantial number of substandard, slum, deteriorated, or deteriorating structures;

(B) the predominance of defective or inadequate sidewalk or street layout;

(C) faulty lot layout in relation to size, adequacy, accessibility, or usefulness;

(D) unsanitary or unsafe conditions;

(E) the deterioration of site or other improvements;

(F) tax or special assessment delinquency exceeding the fair value of the land;

(G) defective or unusual conditions of title;

(H) conditions that endanger life or property by fire or other cause; or

(I) structures, other than single-family residential structures, less than 10 percent of the square footage of which has been used for commercial, industrial, or residential purposes during the preceding 12 years, if the municipality has a population of 100,000 or more;

(2) be predominantly open or undeveloped and, because of obsolete platting, deterioration of structures or site improvements, or other factors, substantially impair or arrest the sound growth of the municipality or county;

(3) be in a federally assisted new community located in the municipality or county or in an area immediately adjacent to a federally assisted new community; or

(4) be an area described in a petition requesting that the area be designated as a reinvestment zone, if the petition is submitted to the governing body of the municipality or county by the owners of property constituting at least 50 percent of the appraised value of the property in the area according to the most recent certified appraisal roll for the county in which the area is located.

The grammatic ambiguity at the heart of the half-sentence in the Procedural section could have been easily cleared up by making the “but for” test (a determination of developer disinterest) the sole criteria listed here. Instead, this section lays out four different options, of which the City need only choose one, and none of which are a finding or determination of developer disinterest absent a TIRZ.

If these four options were all conditions that would necessarily cause developer disinterest, that would reinforce the A) “but for” reading of the half-sentence, even despite its lack of literal inclusion in 311.005.  However, you will notice that only the first two criteria relate to conditions that might possibly cause a lack of developer interest. The final, fourth option, a petition of property owners, has no obvious connection to a lack of Developer interest.

Additionally, the question must be asked: why would the fourth option, a petition of property owners, be included at all, if that alone was insufficient, absent a finding of Developer disinterest?  How can it be argued there is a “but for” test required, when Section 311.005 does not mention it as any of the four potential criteria, while including an option that has nothing necessarily to do with it?

Even more perplexing is Section 311.004: “CONTENTS OF REINVESTMENT ZONE ORDINANCE OR ORDER”.  The contents it requires are as follows:

(1) describe the boundaries of the zone with sufficient definiteness to identify with ordinary and reasonable certainty the territory included in the zone;

(2) create a board of directors for the zone and specify the number of directors of the board as provided by Section 311.009 or 311.0091, as applicable;

(3) provide that the zone take effect immediately upon passage of the ordinance or order;

(4) provide a date for termination of the zone;

(5) assign a name to the zone for identification, with the first zone created by a municipality or county designated as “Reinvestment Zone Number One, City (or Town,  as applicable) of (name of municipality),” or “Reinvestment Zone Number One, (name of county) County,” as applicable, and subsequently created zones assigned names in the same form numbered consecutively in the order of their creation;

(6) establish a tax increment fund for the zone; and

(7) contain findings that:

(A) improvements in the zone will significantly enhance the value of all the taxable real property in the zone and will be of general benefit to the municipality or county; and

(B) the area meets the requirements of Section 311.005.

(b) For purposes of complying with Subsection (a)(7)(A), the ordinance or order is not required to identify the specific parcels of real property to be enhanced in value.

(c) To designate a reinvestment zone under Section 311.005(a)(4), the governing  body of a municipality or county must specify in the ordinance or order that the  reinvestment zone is designated under that section.

You will notice that nowhere, again, in this section is it required to include in the Ordinance a “but for” determination (finding of Developer disinterest).  Even more shockingly, we are given an all new “test”: whether the development contemplated will “significantly enhance the value of all the taxable real property in the zone and will be of general benefit to the municipality or county”, a reality no one is contesting when it comes to the development plans for the SCWFD.  Finally, notice the strange special treatment the petition option is given.

So, to recap: we have the grammatic ambiguity of the “but for” half-sentence; we have the vanishing of it from anywhere else in the bill, including a no-show in the Criteria section; we have criteria that only partially relate to a finding of developer disinterest, together with ones that seemingly have no connection to it; and then we have a detailed listing of what should be in the Ordinance that again excludes any mention of developer disinterest, and which seemingly sets up an all new, lower threshold, test.

Now consider the entire section with the B) grammatical interpretation. To paraphrase: “A City may (decide to) designate an area a TIRZ to stimulate development if it determines development is otherwise unlikely to occur.”  Under this interpretation the “but for” test becomes merely an explanation of why the Legislature is granting this tax sequestering power, that was previously ruled unconstitutional, to cities.  It’s encouraging its use for this purpose, without shackling the City’s flexibility.  And it’s placing this in the Procedural section, alongside binary rules such as holding public meetings and giving proper notice. The section then proceeds to lay out rules the city must follow in order to use the TIRZ tool, but not strictly along the lines of a determination of developer disinterest. Instead, they are more flexible rules, that track generally with the “but for” concept, but which clearly allow for some leeway and flexibility.  Section 311 is now logically coherent, using this interpretation. And the SCWF-TIRZ Ordinance is compliant.

The City once asked Texas Courts if a HOME Phase 2 Ordinance was legal; they never received a response.
https://ombudsman4truth.home.blog/2024/05/16/the-city-once-asked-texas-courts-if-a-home-phase-2-ordinance-was-legal-they-never-received-a-response/

Does Texas Law Ever Allow a Code Rewrite?
https://ombudsman4truth.home.blog/2024/04/10/is-the-city-of-austin-following-the-law/

Did Doug Becker outsmart himself in zoning fight?
https://ombudsman4truth.home.blog/2023/12/21/did-doug-becker-outsmart-himself-in-zoning-fight/

Did the City just admit the HOME Ordinance is illegal?
https://ombudsman4truth.home.blog/2024/01/30/did-the-city-just-admit-the-home-ordinance-is-illegal/

In December of 2022 the Austin City Council established the SCWF-TIRZ, a Tax Increment Reinvestment Zone covering the abandoned Austin American-Statesman lot and other contiguous properties.

This would save the developer Endeavor an estimated $500M in infrastructure costs. In exchange, Endeavor is planning to build a sparkling new south bank downtown, which the City highly desires.

Tax Increment Reinvestment Zones are a tool allowed to cities by State legislation, provided the city follows the rules laid out in Chapter 311 of the Texas Tax Code.

On April 24th, 2023 a group led by Bill Bunch filed a lawsuit against the city council members involved in the 2022 decision, seeking to enjoin their action, and revoke the TIRZ designation from the area.

In the lawsuit, Bunch argued that the City misused the TIRZ tool as a sweetheart tax giveaway to a wealthy developer, when it was created by the Texas Legislature, he argues, only as a way to entice development where, “but for” the TIRZ, no developer would be interested in developing. To the contrary, he argues, rightly, that the Statesman lot is the most highly prized piece of land in all of Texas for redevelopment.

While there is some evidence for Bunch’s reading of the code, it’s up for debate, in my view. And there appears to be, buried in the code, a loophole the City and Endeavor could avail themselves of if they chose to do so.

The code is written in a strange and somewhat sloppy manner, the best example, and most important in this case, being the almost throw-off half-sentence in section 003(a). Under the headline “Procedure for Creating Reinvestment Zone”, It states:

(a) The governing body of a county by order may designate a
contiguous geographic area in the county …. a reinvestment zone to promote development or redevelopment of the area if the governing body determines that development or redevelopment would not occur solely through private investment in the reasonably foreseeable future.

Bunch argues that this sets up a “but for” test that any area must pass to be legally granted TIRZ status.

The problem with this reading is that this section is outlining merely the “Procedure” for creating a TIRZ.

Two sections later, 311.005 is explicitly headlined “CRITERIA FOR REINVESTMENT ZONE”.

This section sets out four possible avenues for an area to qualify as a TIRZ:

1) the area is “blighted”,

2) the area is undeveloped,

3) the area is in a “federally assisted new community”, “or”

4) half of the property owners, by virtue of appraisal value, sign a petition seeking TIRZ status.

If that half-sentence was to be the preeminent test of whether a city could designate a zone a TIRZ, the authors forgot to include it in this fifth section titled “CRITERIA”.

Indeed, Section 311.004, titled “CONTENTS OF REINVESTMENT ZONE ORDINANCE OR ORDER” says the following:

(B) the area meets the requirements of Section 311.005.

(c) To designate a reinvestment zone under Section 311.005(a)(4), the governing body of a municipality or county must specify in the ordinance or order that the reinvestment zone is designated under that section.

This leads one to wonder whether the petition option is meant as a sort of loophole, circumventing not only the need to find the area to be “blighted” in Section 4, but also the supposed “but for test” of Section 3.

Why the authors of this tax code would include the explosive “but for” half-sentence in section 3 and then not include it in Section 5 is hard to reconcile.

Additionally, the question must be asked, why would the option of a petition be included at all, if that alone was insufficient, absent a “but for” finding?

If Section 5 laid out four unique conditions that could be the underlying reasons behind a “but for” finding, that might have made some sense. But only the first 2 criteria relate to that. 3 and 4 have nothing to do with a “but for” finding. Rather instead they seem to be a type of work around.

Lastly, it’s important to note the “or” at the end of the third criteria, clearly suggesting the City Council need only pick 1 of these 4, which also raises more questions about the meaning of the half-sentence in Section 3.

A plausible explanation is that the half-sentence in Section 3 is not meant to be a matter of law, but an expository explanation of why a City Council may want to designate an area a TIRZ. ie. “if a City decides to designate an area a TIRZ to encourage development there, here’s the procedure, and here are the criteria necessary.”

Alternatively, the petition option may have been added in to the law later in the drafting process , somewhat upending the overall logic of the bill.

The first criteria suggested in the code, a finding of blight, is what the City Council went with in its original decree in December of 2022. That unfortunately played right in to Bunch’s hands, because it reinforced the reading of the code that an area must be blighted, and would not be enticing to developers, but for the creation of a TIRZ.

If the City continues to argue the case on these grounds, I think Bunch will have a strong chance of prevailing, and putting the TIRZ on hold, and with it likely the current plans to redevelop the Statesman lot. (Endeavor has threatened to walk away from the project entirely if Bunch succeeds).

A more foolproof approach by the City would have been to utilize the fourth criteria, a petition by half of the property owners by virtue of appraisal value.

Whether it’s too late now is an open question. But the possibility may exist for the City to withdraw the original TIRZ designation, give Bunch a pyrrhic victory, and then receive the petition.

The City Council could then re-designate the area a TIRZ, this time on the basis of the petition alone, and state that clearly in the Ordinance, as instructed by Section 4.

Several quotes from a presentation by a city attorney to the City Council, as transcribed in this article from the Austin Monitor, appear to indirectly suggest that the correct procedure was not followed in passing the HOME Ordinance.

In her presentation about re-adopting three ordinances that were recently struck down by a state judge, the city attorney was asked by the Mayor, and other affordability advocate council members, what procedure the city needed to follow this time to not get sued again and have these same ordinances overturned a second time.

She outlined the following procedure:

1) create new zoning classifications “on paper”,
2) let property owners request to be rezoned to the new classifications,
3) go through normal process of notice>protest>valid petition>super majority vote on a parcel by parcel basis.

This begs the question: If that is what is required to re-establish the density bonus zoning districts, under the law and under the 3 rulings in Acuna v City of Austin, why was that not the process for adopting the HOME Ordinance?

How was the city able to simply alter the definitions of existing zoning classifications with a single 9-2 vote?

Relevant portions of her transcribed answers from the article:

Assistant City Attorney Patricia Link told committee members that city staff planned to give citywide notices for hearings related to density bonus zoning districts. This new density bonus district is modeled on provisions within the VMU2 regulations that the court found impermissible because of lack of notice. The new regulation will allow for the development of mixed-use buildings on commercially zoned lots throughout the city. In exchange for providing affordable housing, the rezoning process will allow for an extra 30 feet of height.

Mayor Kirk Watson asked questions about the process for adopting the new regulations. He told his colleagues, “Because this is one of the tools that focuses on affordability, we need to get this right. By putting it into the code, what notice are we going to need?”

Link said, “The first step would be to create the district and put it into the code. In order to do that, we would give published notice, and then it would go to the Planning Commission for recommendation and then to Council for approval. That is the only notice that needs to happen because it’s not touching anyone’s existing regulations. It is just going to exist, as we say, on paper, in our city.”

She explained that if Council approves the creation of the district, someone will come into the city and ask to be rezoned into that combining district. “When they do that, staff will review when it goes to the land use commission,” and property owners who are within 500 feet will get individual notice. Those within 200 feet will have the right to protest.

Alter wanted to know whether there was a process the city could use to speed up zoning changes for developers who want to participate in the density bonus program. The answer was no.