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Attorney's memo outlines possible challenges to public housing - The Galveston County Daily News : Local News

November 27, 2014

Attorney's memo outlines possible challenges to public housing

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Posted: Thursday, May 23, 2013 12:20 am | Updated: 1:53 pm, Tue May 28, 2013.

GALVESTON — Even as city officials attempt to appease state and federal authorities and restart the flow of federal disaster funds meant for housing and infrastructure projects, they are assessing ways to challenge the construction of hundreds of houses meant for low- and middle-income people on the island.

In a document obtained by The Daily News, the city is advised on ways it could challenge the locations of 388 scattered site housing units planned to someday be built on the island. Such a challenge would be based on an argument that the poor would benefit more if more of the houses were built on the mainland of Galveston County.

“It is worthwhile to envision some of the avenues of litigation and the potential timing for both the city and opponents of a city plan to move scattered site housing off the island,” wrote Dallas attorney Terry D. Morgan in the April 17 legal opinion sent to City Attorney Dorothy Palumbo.

Legal services

The city council on March 14 voted to hire Morgan’s firm and pay him $25,000 to enter a legal services agreement related to fair housing issues.

The legal opinion was written April 17, the same day the city council held a special meeting to address the General Land Office’s decision to freeze more than $100 million in disaster funds meant for the city.

According the public housing plan passed by the council in September, 388 scattered site housing units will be built on the island and another 50 could be built off the island. The units are meant to replace public housing units destroyed by Hurricane Ike.

In the memo

In the memo, Morgan reviews the history of plans for scattered-site housing and suggests the city might be able to stop their construction, if it can win an argument over whether the scattered sites would actually increase racial segregation.

That argument would come after the state’s General Land Office completes a housing development study meant to help determine the location of the scattered sites on the island.

“The city may wish to challenge the findings of the study, should the conclusion be reached that only sites in the city (affirmatively further fair housing),” Morgan wrote.

Appealing the result

He wrote that if the city disagreed with the land office study, it could appeal the findings to the Department of Housing and Urban Development or, if that failed, in federal court.

“The city could appeal the result in federal district court, alleging that the plan, if implemented, does not (affirmatively further fair housing), but instead promotes and perpetuates racial segregation,” Morgan wrote.

The memo also suggests that the city could, instead of filing a challenge, refuse to approve scattered site locations or projects — which could result in a similar outcome that a city-initiated challenge would.

The Daily News requested a copy of the legal opinion from the city under the Texas Public Information Act. The city referred the request to the Attorney General’s office, saying that it believed it fell under exemptions provided for attorney-client privilege and work product privilege. In her argument to the attorney general, Palumbo offered some insight into why Morgan’s opinion was sought in the first place.

“In 2012, individuals and groups made public threats of litigation to the city through the Galveston City Council,” Palumbo wrote. “The Galveston City Council took those ‘threats’ seriously and requested the city attorney to provide legal opinions on how to proceed should litigation regarding reconstruction of public housing ensue.”

Likely lawsuits

Morgan’s memo does not mention those threats but does raise the possibility that the city could be sued if it tried to seek alternatives to the current scattered site housing plans.

The city would likely face lawsuits from housing advocates who want to see 388 housing units built on the island, Morgan wrote. Any challenge to the land office study or the proposal to change the scattered-site plans would probably cause federal grant money to be withheld or directed away from the city.

“There are multiple parties that could be arrayed against any effort to located scattered site housing outside the city of Galveston,” Morgan wrote. “Such opposition may result in lengthy legal proceeding and termination of hurricane disaster funds.”

Settlement preferred

Morgan wrote that any arguments against a land office study would need to be backed up by studies conducted by the city.

On that front, the city may already be laying the groundwork. In March, the council voted to hire Kirk McClure, a professor of Urban Planning at the University of Kansas, to conduct a study on housing projects in the city. McClure has previously advised the Galveston Housing Authority during the development of the island’s mixed income housing plans — during which he advised against building the Cedar Terrace and Magnolia Homes development in their proposed locations. Instead, he advised the authority to try to build in one of 24 “high-opportunity areas,” 21 of which are on the mainland in Galveston County.

Beyond hiring McClure, the city council has not commissioned any studies about scattered-site housing or the alternatives that would allow more of the houses to be moved off the island. Morgan wrote that an independent study that would include analysis from economists and demographic experts, legal reviews and a critique of the land office study.

Morgan cautioned that pursuing an off-island strategy for scattered site housing would be “an uphill battle” and that the city should appeal to the federal housing department before taking the issue to court.

“A negotiated settlement is of course preferable to years of costly litigation,” Morgan wrote. “The foundation for negotiating a solution depends on establishing facts that support the city’s strategy for replacement housing.”

Morgan wrote that because of opposition from places that might receive public housing instead of Galveston, a thorough investigation of potential sites, followed by “discrete inquiries” with appropriate officials would be important toward implementing an off-island strategy.

A land office spokesman said Wednesday the agency had not yet chosen a consultant to conduct its housing study,