Fate of drainage fee unclear after judge voids ReBuild election

From Houston Chronicle
By: Katherine Driessen

State Sen. Paul Bettencourt, a Houston Republican who led the effort to sue the city over ReBuild, said the city jeopardized the fee by failing to be honest with voters.

A state district judge on Thursday voided the 2010 charter referendum that enabled the city to create the ReBuild Houston program, muddying the fate of the multi-billion-dollar funding scheme to dramatically improve Houston’s streets and drainage.

Visiting Judge Buddie Hahn ordered the city to hold a new election on the drainage fee, though that is unlikely to happen any time soon if the city appeals the decision. Hahn sided with a ruling issued by the Texas Supreme Court in June that said the city had obscured the ballot language surrounding the drainage fee, a major funding source for ReBuild Houston.

By omitting the drainage fee, the Supreme Court said, the city failed to adequately inform voters about the intent of the ballot measure.

In a brief court hearing Thursday, Hahn said he had little discretion because the “Supreme Court has just about said as a matter of law” that the election should be voided.

Conservative activists, who deride the fee as a “rain tax,” originally lost at trial court but won their appeal before the state’s highest court. Now, attorney Andy Taylor is calling on the city to halt collection of the drainage fee altogether.

Over the summer, Taylor also filed a class-action suit seeking to reimburse all residents for drainage fee payments made. Taylor said he expects the ruling Thursday will strengthen his case, but it is still pending.


“We are elated that the city has finally, once and for all, been smacked by the legal system,” Taylor said. “They’ve been told that what they did in trying to mislead voters would not be allowed and wouldn’t be enforceable.”

Mayor Annise Parker said the city has no plans to stop collecting the fee. She echoed City Attorney Donna Edmundson, who said during the summer that the lawsuit targets the charter amendment, not the ordinance City Council later passed to begin collecting the fee.

City ‘disappointed’

In a written statement, Parker said the city is “disappointed with the court’s ruling and are considering our legal options,” but “the ordinance remains valid and in effect.”

Voters approved a ballot measure in 2010 that did not make specific mention of the monthly fee, asking instead if the city charter should “be amended to provide for the enhancement, improvement and ongoing renewal of Houston’s drainage and streets by creating a Dedicated Pay-As-You-Go Fund for Drainage and Streets?”

Then, in spring 2011, City Council approved an ordinance that set the fee and authorized its collection.

The fee was projected to bring in $500 million over five years. This fiscal year alone, the city has budgeted more than $100 million in drainage fee spending.

The drainage fee appears on property owners’ monthly water bills, and is based on the square footage of impervious surface on a resident’s property. The idea was sold to homeowners as a $5 monthly fee, on average, but the reality turned out to be closer to $8. To bring the average back down to $5 a month, Parker exempted the first 1,000 square feet of a property owner’s impervious surface.

‘An atomic bomb’

State Sen. Paul Bettencourt, a Houston Republican who led the effort to sue the city over ReBuild, said the city jeopardized the fee by failing to be honest with voters.

Bettencourt said the Senate Committee on Intergovernmental Relations will be looking into why the city now twice has been rebuffed by the Texas Supreme Court on its ballot language; over the summer the court also said the city had erred in wording the equal rights ordinance ballot measure on the November ballot.

“This is an atomic bomb going off on the city’s budget, and it’s gone off because of continual misuse and deceptive and misleading ballot language,” Bettencourt said.

Whatever effect the ruling may have on next week’s mayoral race is not likely to be felt until a probable runoff, said Rice University political scientist Bob Stein.

With the drainage fee in jeopardy, candidates will be forced to stake out a position on the contentious issue of whether they would take the fee back to voters and if they would modify or abandon the larger ReBuild program, Stein said.

Issue for runoff

In the last few days before Tuesday’s election, with six top candidates still jockeying for term-limited Parker’s seat, Stein said, it is unlikely to immediately force any meaningful debate.

“The good news is, this will focus the runoff campaign on really serious issues,” Stein said. “It’s not just a drainage fee; it’s something that links to recent flooding and the quality of the roads. The candidates are going to have address it.”