August 17, 2018 • Local News
Latest Downtown El Paso arena lawsuit may force vote on area historic overlay
The latest twist in the ongoing Downtown multipurpose arena legal battle raises questions about whether the city will be forced to let voters decide on a historic district designation for Duranguito.
Max Grossman, who is leading the legal fight against the project, recently filed a lawsuit seeking emergency relief to force the city to place the petition ordinance on the ballot for the Nov. 6 election.
Citing time constraints, the local Eighth District Court of Appeals recused itself and said it would send an expedited transfer to the Second Court of Appeals in Fort Worth. The Second Court of Appeals also is handling another lawsuit filed by Grossman.
Grossman said the case was then transferred to Fourth Court of Appeals in San Antonio.
The San Antonio appeals court denied the request for emergency relief. Grossman said in an email Thursday that his attorneys are now taking the issue to the Supreme Court of Texas.
The deadline for municipalities to order a general election or special election is Monday.
“We intend to place our citizen ordinance on that ballot. We hope to prevail in the 2nd COA (court of appeals), very shortly,” Grossman said.
City officials could not immediately be reached for comment.
At issue is whether the petition will help ensure that voters decide whether the arena site should get a historic overlay zone.
The site for the project is in Union Plaza, which encompasses a neighborhood referred to as Duranguito.
Opponents of the planned site are trying to prevent the city from razing buildings that they say could qualify for national and state historic designations. Historic preservation advocates also assert there are buried archaeological artifacts that should be preserved.
The city took no action on the initial petition submitted last year seeking the historic overlay zone protection for Duranguito, so preservation activists then submitted a second petition, which the city also took no action on.
The zones create districts that make it more difficult to demolish buildings because approval is needed from the city’s Historic Preservation Office or Historic Landmark Commission before major changes can be made to buildings.
The city has argued that state law prohibits voter decisions on zoning and that the city’s historic overlay zones fall under the zoning ordinance.
A related lawsuit is pending in El Paso County.
The multipurpose arena, the largest of the 2012 Quality of Life Bond projects approved by voters, has been stalled by litigation for more than a year.
Another lawsuit in an Austin appeals court will determine which type of facility can be built and whether it can accommodate sports.
Last year, a judge ruled that the facility could not be built to accommodate sports. The judge also ruled that the city could not use funding from other sources to modify or enhance the facility to make it suitable for sports.
A hearing in that case is set for Sept. 12.
The appeals court in Fort Worth that will rule on the emergency relief order also will determine whether the city violated the Texas Antiquities code by failing to notify the state about the project.
The lawsuit alleges that the city violated the state Antiquities Code by failing to notify the Texas Historical Commission of demolition plans for historic structures in the arena’s footprint, which is required for projects on public land.
The city recently asked the appeals to court to dismiss an appeal it had filed.
City officials said the appeal initially was filed because it did not yet own all of the properties located within the arena footprint.
“This lawsuit was initiated solely on the premise that the City of El Paso had not complied with state law in regards to providing notice to the Texas Historical Commission (THC); however, the City has been and continues to be in compliance,” interim City Attorney Karla Nieman said in a news release. “At the time the lawsuit was filed, notice was not required because the City did not own the properties involved in the lawsuit.”
No date has been set for a hearing in that case.
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