Why Is the Open Space Advisory Board Being Hindered from Preserving Open Space?

The City Council of El Paso passed the ordinance which created the Open Space Advisory Board because it deemed that doing so "will benefit the City in preserving and acquiring open space, which will benefit the residents of El Paso."

Unfortunately to reach the goal to protect and preserve open space, there remains some lingering obstacles. The Chairman of the OSAB, Rick Bonart, enumerates:

1. The enabling ordinance of the Open Space Advisory Board does not allow the board to provide any input into the development process to implement the Open Space Plan.
2. The Ordinance transferring duties of the Mountain Committee to OSAB removed authority to 'review and comment' creating barriers that block effective input necessary to protect the Planned Mountain Zone.
3. The only source for open space funding is 10% of the stormwater fees; yet OSAB is not allowed to review or comment on the budget or expenditures of these monies. Understand that the Storm Water Committee has yet to reconvene and has no fiduciary authority over the fees either. Therefore, no citizen oversight exists for these important quality of life funds.
4. Current Ordinances are incapable of persuading developers to preserve open space, eliminate large ponds and cement-lined channels. The City has to rely on handouts from the development community.

What are the solutions? Bonart suggests the following:

1. Replace OSAB duties with those from the old Mountain Committees' enabling ordinance to include the review, monitoring and expenditure of open space funding especially stormwater fees.
2. Expand duties so that the OSAB has purview not just to open space assets in the Open Space Master Plan and to Planned Mountain Development (as part of the ordinance transferring duties of the Mountain Board to OSAB) but also to the Hillside Development Zone as one City plan suggests.
   
3. Amend the drainage design manual to require submission of alternate drainage plans with the Public Improvement District and Stormwater.
4. Amend subdivision code to include standard methods for calculating open space requirements and to quantify 'substantial change' (suggest push-pull type test) that prohibit vesting and require new applications.

There was an attempt to make Rick's first solution a reality when Council abolished the Mountain Committee at their regular September 22, 2009 board meeting. The planned ordinance was to move the duties of the Mountain Committee to the City Plan Commission. Bonart and others had convinced Representative Susie Byrd that those duties would be better placed under the OSAB. She moved to do just that at the Council meeting and her motion passed.

So far so good until the next Open Space Board meeting when members were told that the ordinance did not contain any of the duties enumerated in Ordinance No. 014790 that changed the duties of the Mountain Committee to read as follows:

"Review and make recommendations on proposed changes of zoning, detailed site development plans, special permits, subdivision plats/replats, land studies, righ-of-way dedications or vacations, and other land development applications received on property within the Mountain Development Area. In its recommendation of these items, special attention shall be given to drainage and flood control, open space requirements, grading impacts, and developmental controls, etc."

In other words, what Council may have thought they were doing was possibly changed by legal since the hard copy words in front of Council had been amended and the hard copy ordinance that was substituted a day later was different. (See pages 4 and 5 of this document.) The ordinance before amendment (the one that would transfer duties to the CPC) simply transferred the duties of the Mountain Committee to the CPC without the added verbiage of the document of the ordinance actually passed that watered down those duties.

Was Council's intent met? My opinion is that it was not and I suspect legal knows that it was not.

Item #3 on tomorrow's Legislative and Review Committee for Planning and Development agenda is the discussion and action on clarification of the role of the Open Space Advisory Board - an item requested by Representative Susie Byrd. It certainly will entail more than the duties of the Mountain Committee and whether the ordinance written as a hard copy after passage is correct.

The Open Space Board has been denied several duties that are critical if it is to "benefit the City in preserving and acquiring open space, which will benefit the residents of El Paso." These duties are:

1. Earlier input in the development process.
2. The ability to review and comment at appropriate stages to the CPC, various departments and Council
3. Expanded review to all open space categories, Planned Mountain Development Zoning and foothills development
4. Inclusion in the budget oversight for the 10% stormwater fee.

LRC meets tomorrow at 9 AM tomorrow in the City Council Chambers on the 2nd Floor of City Hall.

By the way, as Chairman of the Open Space Advisory Board, Rick Bonart wants the members of that Board to discuss and act possibly by a resolution to City Council on the issue which will be discussed at the LRC meeting tomorrow. A city staff member, Shamori Whitt, attempted to short circuit his privilege to have this item on the agenda for its November 23rd meeting. In an email to Bonart and others dated yesterday, November 17th, she writes:

Rick,

The way it works with the LRC is that they decide if matters need to be forwarded to City Council as a whole, almost like a pre-trial. This is done so that City Council meetings flow more efficiently. Typically, if the Planning LRC wants to take action on an item it will be sent to the City Council to be heard at a general meeting. Then, City Council will direct the City Manager how to proceed with their wishes and she will delegate responsibility to staff. In the event the LRC were to take action on the OSAB item at the LRC, it will not be heard by the entire City Council prior to the OSAB November meeting. (Provided we're not asked to return to the LRC.) Therfore, I think any action from the OSAB on the matter would be pre-emptive. City Council is to dictate to us how to proceed.

For the information of the OSAB, I am happy to add a report on the outcome of the 11/19/09 LRC.

Maggie,

Please add 'Report on the outcome of the Open Space Advisory Board item from the Nov 19, 2009 Planning LRC'

Maggie is Maggie Binkley, the Administrative Assistant who acts as Recording Secretary for the OSAB.

I don't want to dissect Ms. Whitt's comments too much except to say that a citizen's board (advisory or otherwise) has every right to let City Council know its position (it provides recommendations to the Mayor and Council not to staff and/or a department) and a resolution made next Monday will be in time to reach Council by next Tuesday when it may hear the findings of the LRC.

Rick Bonart responded to her and Nanette Smejkal, the Director of Parks and Recreation, in an email also dated yesterday:

Nanette and Shamori,

My concern is that all members of OSAB probably won't make the LRC; further, OSAB members attending the LRC (including myself) can only speak as individuals, as this issue has not been formally discussed by the Board.

I think the Board should have the opportunity to hear and act... ie, resolution to let Council know their position, as this is their charge.

With all due respect,

Please amend the agenda one more time and allow this to move forward as a discussion and action item so the Board can deliver a formal opinion to Council in a timely manner.

Thanks for your patience and understanding.

Rick

No amended agenda with Chairman Bonart's request has been sent out to OSAB members as of this posting.