Seven months and counting and, still, the City has no Finance Director.
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The City recently took the Finance Director job listing off its website. Either the listing did not attract the type of applicant the City wanted, or the City is close to an announcement that it has made a hire. Let's hope the latter is the case.
Here is a screenshot of the job description that the City posted.
You may find helpful this briefer description of the important responsibilities typically assigned to a City's finance director: `"Finance directors have broad authority in city government. As the chief bookkeeper, a finance director promotes transparency, efficiency, and accountability. While finance directors may only have a basic understanding of the different city departments, their financial expertise is invaluable in ensuring citizens get the most out of their tax money and in proving so. Numbers go further than rhetoric in proving that tax money is collected and spent according to the public’s best interest."
A position of this importance -- the most recent Finance Director, Paul Turner, was paid $130,000 per year -- should not remain open for months on end. Unfortunately, the City has not had a Finance Director since January 19. Former Finance Director Ralph Gabb has been used in a limited way since that time, but that is no substitute for having a full-time Finance Director on staff. Mr. Turner began serving as finance director in August 2016. On January 10 of 2018, he submitted his resignation. Here is a clip from a May 2017 work session in which Mr. Turner asks for an additional accountant to assist him:
I find particularly concerning Mr. Turner's contention that the City did not have enough accountants. He pointed out in this Work Session that, while there are accounting clerks, there is a dearth of actual accountants who can perform financial analyses.
Not only was Mr. Turner not given the additional accounting support he sought, Mr. Turner is himself now gone -- and no replacement has been hired! Mr. Turner's January 2018 exit interview is also noteworthy:
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Notice that Mr. Turner did not check a single box "very satisfied". And, when asked if he had been given the opportunity to get tasks done, he checked the "very dissatisfied" box. His commentary, as you can see, is hardly comforting: "I don't feel many people in the City understand and appreciate what Finance does."
"I was not always supported throughout the year and undermined by other departments."
"I was questioned and undermined by several departments and people throughout the year. My initiatives were not taken seriously and instead questioned and undermined with no support....(snip)......some colleagues have formed cliques that seem to be more important than process improvement for citizens." I of course have no way of knowing whether Mr. Turner's evaluation of his job situation is accurate. What I do know is that any municipality, if it is to be run competently, must have a finance director who is trusted and respected. And, it goes without saying that other personnel must fully understand the importance of the responsibilities assigned to this crucial position.
As some of you will recall, I started this blog when I learned that the City Administrator received a car allowance while simultaneously using a city-issued car and claimed he didn't realize it. As a former finance director, I was shocked. It was clear to me that financial control systems were sorely missing. As I began to look into this, I came to the realization that the City's organizational structure seemed specifically designed to undermine the "checks and balances" process. For me, it is a glaring red flag when Payroll, which should report directly to the Finance Director, is instead made part of Human Resources and reports directly to the City Administrator. Although Payroll has since been shifted to Finance, the requisite checks and balances are still missing because the City has no Finance Director after several months. The red flag continues to glare brightly as the financial ship remains rudderless.
The last day for filing as a candidate for the municipal elections has come and gone. Be sure to check out the candidates' positions, and get out and VOTE! Please check Shelby Vote for information on early voting and more about the upcoming election. Campaign disclosures can be searched for here (they start at about page 16 of Shelby County list).
Here are our candidates (sorted alphabetically by position) Their Facebook pages and websites are linked:
Astonishingly, it appears that certain supporters of the administration agree with me. "Germantown Voice", formerly known as "Blocked in Germantown" (hereinafter referred to as GV), stated:
The decision to deny their applications was not about someone saying a bad word on social media or even being rude. It was about retaliation. Your fellow aldermen had to do what you lacked the political courage to do. They had to protect the citizens who serve on Public Safety Education Commission and that Commission's integrity from the fringe element in the City that will ruthlessly attack anyone and everyone who dares to question or criticize Dean Massey.
Here is the same quote snipped from the blog:
Needless to say, I wholeheartedly agree with GV's assessment that the rejections were "about retaliation". GV, it seems obvious, agrees with me that the three aldermen who voted against Messrs. Peyton and Riley were merely feigning outrage when they claimed in the meeting and in emails that the anonymously reported Facebook comments failed to comport with a "culture of kindness". And What About That Anonymous Letter?
It certainly was convenient that the anonymous letter transmitting the screenshots mysteriously appeared in the aldermen's boxes shortly before the start of the BMA's 5:30 Executive Session. The letter gave the three aldermen a perfect opportunity to reject the applicants without having to explain that, in fact, their real purpose was to retaliate against a fellow alderman.
We are left to wonder, at this point, who placed the anonymous letters in the boxes. The envelopes containing the letter were not stamped; thus, the letters were not mailed. This leads me to believe this individual was sufficiently familiar with City Hall that he or she would not have looked "out of place" in the secure area where the boxes are located. Susanne Riley, wife of one of the rejected applicants, overheard two women in the audience talking about the letters prior to the meeting (see the email from Ms. Riley that I quote at the end of this post). How, we are compelled to ask, did these women know about the letter prior to the meeting? In any event, whoever wrote the letter and placed it in the boxes undoubtedly earned the gratitude of the three aldermen who were able to use it as a pretext for rejecting the applicants.
Why All the Focus on Alderman Massey? I am not sure what "fringe element" GV is talking about. Over 10,000 Germantown citizens voted for Alderman Massey. GV, like the administration it supports, seems obsessed with Alderman Massey. This is evidenced by the fact that its original name, "Blocked in Germantown," referred to Mr. Massey's having blocked a number of political opponents from his personal Facebook page following his receipt of a threat. (He shares this page with his wife.) This may have been an issue at one time, but within a few weeks he opened a separate page for his posts about Germantown, "Massey for Germantown," and that is open to all.
The administration's intense hostility stems from Alderman Massey's zealous quest for transparency. He continues to uncover information about development projects with his open records requests. He found a covenant on the Reaves property that City staff had failed to disclose to the aldermen, the Planning Commission, and the Forest Hill residents. That forced the developer into negotiations with the neighbors. He is calling for a forensic audit of the City's books in order to ensure we learn the full scope of any and all questionable financial transactions that may not yet have surfaced. I support all of the above, as it shows his commitment to transparency. Does that mean I like everything he does or posts on his Facebook page? Of course not. Do I wish that his "tone" was sometimes less harsh? Yes. He holds a number of strong opinions, and he is entitled to that. Do I always agree with them? No. That he chooses to voice them in ways that I would not personally choose is really not relevant. This is not a referendum about Mr. Massey, nor about my feelings. And his behavior as a liaison to the PSEC while being viciously attacked by the Chair was exemplary. Please see my post which contains the audio from a meeting where the Chair exploded at Mr. Massey-- Why Does the Chair Have A Problem with Alderman Massey? and you can judge the evidence for yourself. Let's be clear: The administration is focusing on Alderman Massey to distract our attention from the substantive issues in the campaign -- for example the future of development in the City. For goodness sake, Alderman Massey is not even up for re-election this year. It is much easier, I suppose, to attack an outspoken alderman, even when he is not up for re-election, than it is to change the views of the 94% of citizens who do not want more apartments. (Please see The People Speak on Apartment Complexes.)
I can just picture the administration's strategy sessions:
"Let's not talk about buildings that are too close to the street and tower over expensive homes, let's not talk about overcrowded schools, let's not talk about residential density levels that are routinely increased by the Planning Commission and the BMA, let's not talk about Small Area Plans that we are ignoring, let's not talk about the fiscal impact of apartment projects, and oh, let's definitely not talk about how the moratorium on apartments ends in July 2019. Let's talk about ............ Alderman Massey." The PSE Commissioners Sided with Alderman Massey over the Former Chair. I find disingenuous GV's assertion that the three aldermen who voted against the applicants were acting to "protect" the PSEC from Alderman Massey and the "fringe element." Putting aside the silliness of the notion that the adult members of the Commission cannot take care of themselves, the fact is that, when given the opportunity to request the removal of Mr. Massey as BMA liaison, they refused to do so. The PSEC members' refusal to side with the former Chair led to his resignation. See my July 7 post.
In its praise of the three alderman for supposedly "protecting" the PSEC, GV omitted any reference to these events. GV's omission of these material facts signifies its recognition of the inconsistency between, on the one hand, its portrayal of Commission members in need of "protection" from Mr. Massey and, on the other hand, the reality that those very members voted to "permanently table" the motion when given the opportunity to remove Mr. Massey as liaison.If you listen to the recording of that meeting in the July 7 post, you will understand that the Commissioners want no part of the political sniping that the former Chair, with the administration's blessing, had initiated.
Destruction of a Public Record The PSEC Secretary destroyed a public record. (Please see my May 28 post.) GV somehow justifies the Secretary's conduct by noting that the Commission session in question was a public meeting, and that, therefore, anyone could attend and record the proceedings himself. Guess what? It is the very fact that this was a public meeting that makes the Tennessee Sunshine Laws applicable here. It is true that if John Q. Public wishes to attend and record the proceedings, he may do so; however, his recording is not a public record. The recording would belong to him alone. The recording made by the Secretary, on the other hand, is, because she is a public official, most certainly a public record. The Secretary's recording remains a public record until such time as she is authorized to discard it. On this particular occasion, Alderman Massey specifically asked the Secretary to retain the recording, and she flagrantly ignored his request. How GV can justify the Secretary's conduct is beyond me.
Why do you suppose the Secretary obliterated the record of the meeting after being asked to keep it? That is another thing to contemplate! If the evidence had been favorable to the administration position, you can be assured that she would have kept it.
The Real Victims The real victims of the vitriol hurled against Alderman Massey are Jon Riley and John Peyton. They just wanted to serve the City as volunteers. I quoted Mr. Peyton's email to the aldermen in my last post. Please read below a portion of the email that Jon Riley's wife, Susanne, sent to the aldermen after the vote: "As the wife of Jonathan Riley, I would like to share my thoughts and the reason why my husband wanted to be on the Public Safety Education Commission in the first place, since he was not able to be heard. As you all know, Jon was a Military Police Sergeant in the United States Army for over eight years, and after he was honorably discharged, he went on to become a commissioned special deputy with the Shelby County Sheriff's Office. What you don’t know is he was forced out of his career due to medical a diagnosis that resulted in a back injury at 33 years old. (I will not state the 2 diagnosis because they are his medical records). He had to leave the profession he loved for so many years due to his body not being able to work properly for the intense physical activity on a daily basis that career field often requires. He's been working a desk job for the past few years ever since this news and would love nothing more than to be able to use his education, experience, leadership and teamwork to help others in a service capacity. When he saw that there was an opening to be appointed to the Germantown Public Safety Education Commission, he felt that he would have a lot to offer. He quickly and excitedly filled out the application and we talked in depth about how this would fulfill his need to serve and help others. He truly has a heart for service. Not only am I disappointed in the way this was handled by “an anonymous tip," but by the very people in our community that were elected to be the community voice. The fact that two ladies in the audience were talking too loudly before the BMA started about this “anonymous tip” and had knowledge of the screenshots before it was brought up is very concerning.How did they know when it was only given to the alderman in their secured mailboxes just prior to the executive session?? I am very disappointed in the no-votes and even more disappointed the mayor let this go on without calling to remove it and discuss privately or at the very least, let the applicants address the BMA directly in the face of these very selective screenshots. My husband and I, along with Mr. Peyton were both present. Why they weren't afforded an opportunity to explain or defend their sides is beyond me. This has hurt my husband’s character and was handled extremely poorly. I had higher hopes for our administration."
In my June 7 post, Macro Trends in Apartment Buildings Points to Oversupply, I explained why current economic conditions have generated an overabundance of luxury apartments. The Mid-South area is not a trend setter, but a trend follower; therefore, by paying close attention to nationwide trends, we can avoid the pitfalls that have beset other markets. If, on the other hand, we ignore the signals and turning points in the macro trends, we will be acting foolishly. I have recently looked at some new data on vacancy rates, and it confirms my June 7 assertion that there is a nationwide trend of luxury-apartments overbuilding. There is indeed a housing shortage in certain parts of the country. This shortage, however, is not in luxury apartments; rather, it is in lower-cost apartments.
One would think, therefore, that developers would be building lower-cost apartments. Instead, however, they are flooding the market with luxury apartments. As I explained in my June 7 post, this is because developers are focusing too much on costs and paying too little attention to actual demand.
This is not "Field of Dreams". Developers cannot economically proceed on the premise that, if they simply build luxury apartments, "the renters will come." Have those taking the risk in luxury-apartment projects (not always the developer) forgotten the housing crash of 2007 and, in particular, the false over-confidence that triggered it.
Long Term Trends in Vacancy Rates Suggest A Bust is Coming
I recommend you take a look at Ian Ippolito's recent article, How Will All the Apartment Overbuilding End? Although Mr. Ippolito's purpose is to offer investment advice, his views are germane to the question of whether continuing to build luxury apartments is economically sensible.
Mr. Ippolito's opinions are based on his review of concrete data on vacancy rates. He points out that, in contrast to the historical norm, vacancy rates for luxury and low-cost apartments are moving in opposite directions and that a bust-inducing glut of luxury apartments looms ahead. Traditionally, vacancy rates for luxury apartments have been lower than those for "middle class" apartments, and vacancy rates for "middle class" apartments have been lower than those of "lower rent" units. Tradition, however, no longer holds today. Now, luxury apartments have the highest vacancy rate. Not only that, both the vacancy rate itself and the gap between the luxury and the other two rates are increasing. This is illustrated by the following graph:
The dark blue line is luxury Apartments, the red line "middle" level, and the gray line, lower rent apartments.
Whenever you see a graph like this, showing that long-term trends have shifted dramatically, you know there are significant dysfunctions in the marketplace.
Are Millennials the New Baby Boomers?
Mr. Ippolito sees similarities between today's conditions and those existing in 1969-1972: Today's fad investment is luxury apartments; back then it was apartments in general. As Mr. Ippolito explains, the fad investment of five decades ago did not fare well: "But then, it all came to a very quick and catastrophic end. Boomers got tired of apartment life, wanted to start families or were sick of paying rent. So they moved to single-family homes." My take on his comparison is that the "millennials" of today are akin to the "baby boomers" of that earlier period. As did boomers, today's millennials will likely tire of luxury-apartment life. Developers are, in my view, incorrectly assuming there are more millennials seeking luxury apartments than is actually the case. Please see Millenials are Buying a Lot More Homes Than You Think (discussing the popular myth that millennials are destined to be a generation of renters).
And, see also the following excerpt from From Their Parent's Basements to Dream Homes; Millenials are Skipping Starter Houses: By renting or living with their parents for years, many Millennials in their mid-30s can now afford pricier houses because they’ve socked away more money and moved up to better jobs, Swonk says. And they need the extra space because they’re finally getting married and having kids after deferring those transforming events. Also nudging them into more lavish houses is a severe shortage of lower-priced starter homes.
Mr. Ippolito, I should point out, does not contend that the current overabundance of luxury apartments has reached the crisis glut of the "baby boom" period. He does believe, however, that, if the trend depicted in the above graph continues, a "major adjustment" is likely in the 2022-25 time frame. When investment projects fail, the communities in which their projects are located suffer. If Memphis and Collierville, two cities in which luxury apartments are being fast-tracked, want to risk a luxury apartment glut, so be it. Let's at least keep it from happening here.
PILOTS and Other Tax Incentives Now Allowed in Shelby County
Just recently, the Tennessee General Assembly passed a law that extends to apartment projects located in Shelby County the benefits of PILOTS and TIFs -- two forms of tax rebates/tax incentives that incentivize development. The addition of these taxpayer-funded benefits will likely exacerbate the oversupply of luxury apartments in Shelby County. In its May 31 edition, the Memphis Business Journal, quoting an official familiar with the legislative process, points out that this legislation, which was sponsored by Brian Kelsey (Germantown) and Kevin Vaughn (Collierville), most likely "was not carried for just an exercise. I’m sure there is a project out there that will utilize it.”
And, here's another thing. We are losing population in Shelby County. Do we need a plethora of apartment buildings, luxury or otherwise, in Germantown when our county's population is declining? Since 2012, the population in Shelby County has decreased from 939,425 to 936,961. Because births in the county exceed deaths, the population decline is attributed to movement of people away from the Memphis area. I don't see how can we count on millennials to satisfy the influx of luxury apartments when there is net population migration from our area. Because of this population decline, the luxury-apartment bust, when it comes, will likely hit our area harder than others. Commercial Appeal Article Given an overestimated forecast of millennial demand, new tax incentives that will increase supply elsewhere in the County, and a declining population, does it really make sense to continue building luxury apartments in Germantown?
Just when I think the drama of the Public Safety Education Commission is over, a new chapter begins. The resignations of the Chair, Al Gabriel, who failed in his attempt to remove Alderman Massey from his liaison position, and the Secretary, Denise Walls, who destroyed a public document, led to two openings on the Commission (see Commission Members Indefinitely Table Motion to Request Removal of Alderman Massey as Liaison). The BMA, in in its August 13 meeting, rejected the applications of two citizens, John Peyton and John Riley, who were seeking to serve on the PSEC. The vote was the usual 3-2 vote, with Rocky Janda, Forrest Owens, and Mary Anne Gibson voting against the appointments, and Dean Massey and John Barzizza voting for the applicants. Mr. Massey had encouraged both Mr. Riley and Mr. Peyton to apply for membership on the Commission.
Mr. Riley, the recipient of multiple decorations in his combat service, has law enforcement experience both in and out of the military. Mr. Peyton has performed a service for the City by starting a webpage entitled Developments in Germantown, TN and a Facebook group by the same name. Their applications and bios can be found here (click on agenda item 17).
The applicants were done in by an anonymous letter that transmitted to the BMA screenshots of remarks that they each had made in the closed Facebook Group, "Germantown, TN Bulletin Board" (hereinafter called the BB). The screenshots included only their remarks, not the bulk of the conversations that led to the remarks. The aldermen who voted to reject these applicants expressed the view that the intemperate nature of their Facebook remarks disqualified them from volunteer service on the PSE Commission. I placed the link to the BMA meeting and the notes I made of the aldermens' remarks at the end of this post. I also include Mr. Peyton's reaction to the events at the BMA meeting.
I am not able to quote the comments that these men made on the Facebook group, because the rules of the BB prohibit me from doing so. Every member of the group agrees to abide by the rules, which bans quoting remarks made within the group or taking screenshots of conversations and reporting them outside the group. This rule is strictly enforced. Their remarks were indeed intemperate, the kind of insensitive remarks that social media users, myself included, have occasionally made during heated discussions. Undoubtedly Messrs. Riley and Peyton wish they could claw back their remarks, and I know that feeling. Although it does not excuse the language, each was baited by individuals whom a number of people have blocked because of their behavior on social media. In fact, I never saw the remarks in the Facebook group because I have each of these members blocked because of past online behavior (and the total number of Facebook users I have blocked is only three). Each of these applicants also reasonably believed that, in keeping with the group's rules, his remarks would not be transmitted to third parties, much less sent anonymously to the BMA for the purpose of torpedoing their efforts to serve the community. Still, I am not denying that their remarks were inappropriate. Let this be a lesson to all of us. Keep those lips zipped, and those fingers away from the keyboard when provoked.
Notwithstanding the inappropriate remarks, I detect more than a tad bit of political hypocrisy in the 'holier than thou' attitude expressed at the August 13 BMA meeting. Messrs. Riley's and Peyton's real sin, I submit, is not their intemperate Facebook remarks, but the political positions they have taken. Both are vocal opponents of the overbuilding of apartment complexes. Opponents of the Mayor are not welcome on the commissions. Both of these men are vocal supporters of Mr. Barzizza's mayoral candidacy. Mr. Peyton recently filed a police report regarding the political signs that were stolen from his yard. (The Neshoba North neighborhood had Barzizza, Sanders, and Brown signs stolen one night last week. Sarah Freeman, another active administration opponent, also filed a police report for the same offense. In her case, her garage was entered and a magnetic sign stolen from her car. I seriously doubt that it was a coincidence that their two homes were targeted in this criminal act.)
Two Massey-supported applicants for a volunteer service position get way-laid by an anonymous letter and, voila, Massey's opponents on the BMA are given a free pass to thwart their nemesis, in the process invoking high-minded appeals to the "community of kindness." Give me a break. What happened to these and other lofty ideals when Mr. Palazzolo, in his alderman race in 2008, used a sample ballot that falsely indicated that he was endorsed by the Republican party (see my 4-22-17 blog post)? And somehow I must have missed the aldermen's praise of civic virtue when the City Administrator, after it was discovered that he had been receiving a car allowance while simultaneously using a city-owned vehicle, was allowed to keep his job without a proper investigation. (see October 20, 2016 blog post). And let's not forget that the City staff purposely hid from the neighbors a covenant on a parcel in the Forest Hill Heights area, failing even to take the simple step of checking with the City Attorney (see 4-13-18 blog post) to ask about its enforceability. Is this the "community of kindness" Alderman Janda is talking about? I could go on, but I think you get the drift. Bottom line: These applicants would not have been turned down if they had been supporters of the Administration.
What else will the citizens' have to endure before November 6?
Before signing off, I would like to make what ought to be an easily heeded appeal: Please, can we stop the practice of anonymous mailings and postings? For those who may have forgotten, we have seen this play before. Recall for example that the employer of Roland Mittag (administrator of the BB Facebook group) received the following anonymous email:
This anonymous email sought to muzzle the Facebook group by intimidating Mr. Mittag's employer. REALLY!!~
I had to roll my eyes at that. 🙄 Never have I observed any "antic" on the part of the very able Mr. Mittag. I am sure Mr. Mittag is thankful for having an understanding boss.
The BMA Discussion of the Nominations
And, as promised, below is the discussion in the meeting yesterday.
Forrest Owens said that he had been “provided some information tonight” and he preferred not to get into the deep discussion, and requested that Alderman Massey consider making two different appointments. “not the type of behavior that we would like to see a volunteer of the City exhibit” “It begs the question of whether they can work well with commission members.” Janda in reviewing many comments he has seen them make, he does not consider them part of the “community of kindness.” Barzizza—“It goes both ways. Both sides made disparaging remarks to one another. I think the entire issue is blown out of proportion.” Calls for everyone to please settle down, we have a long way to go until November 6. Massey- Blindsided that his appointments would not be approved, The Mayor’s appointees decided to resign “They destroyed the public record and that was a problem. “It is dangerous for us to base our decisions on political discussions that occur among individuals in the community……….(snip)………..it is a slippery slope.? He lists all the medals and awards (Army Achievement Medal, Army good conduct medal, etc.) of Mr. Riley ”He served our country proudly”. Year after year people put the same people on commissions, their friends and family The information--“It was from an anonymous person who selectively took quotes from a Facebook page, and these quotes are fairly mundane. It was an argument between two citizens about politics” He notes that aldermen only got these quotes and not the entire conversation, this came too late in the afternoon to look up the entire threads that led up to the quotes. What is going on is attacking these people for expressing viewpoints that are unfavorable to the three aldermen. Barzizza “I look at this whole matter as political hype and I think it needs to cease.” “I agree with Alderman Massey on his comments. We do not even know where this came from and that should not have any bearing on the merit of the individuals. “Who are we to judge what really happened in that thread, throughout the entire thread.” Tone down the rhetoric, speaks of signs that suddenly appear, and suddenly disappear.
Subsequent to the BMA meeting, I asked Mr. Peyton about what had taken place. He stated that he no longer felt like volunteering for the City and that he had rescinded his application. He gave me a copy of his letter.
The Court dismissed the lawsuit, which had been filed by the Owen Trust, because it was premature. The lawsuit was aimed at overturning a decision by the Planning Commission, rather than an action taken by the BMA. When the lawsuit was filed, I was surprised it had been filed before the BMA had approved the removal of the T4 overlay on the Triangle. If, as expected, the BMA votes to remove the T4 overlay, the Owen Trust likely will refile its lawsuit.
The petition is short and I recommend that you read (or at least skim) it if you are interested in this subject.
In its August 3 article, the CA highlights two specific parts of the Owen Trust's petition-- namely, paragraphs 13 and 20-21.
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As can be seen, Paragraph 13 alleges that the Planning Commission made a political decision motivated by the effect that removing the T4 zoning overlay would have on the results of the upcoming November municipal election. Again, this is the plaintiff's allegation, not my assertion. It is worth noting, however, that, as I pointed out in my July 14 post, the Planning Commission's decision can be reversed after the election. Indeed, the Commissioners themselves made this clear at their July 10 meeting. If the Owen Trust's allegation in Paragraph 13 is correct, the T4 overlay removal could be, depending on the results of the election, much ado about nothing. Paragraph's 20 and 21 allege that the Planning Commission's removal of the T4 overlay violated a city ordinance because it was not supported by a sketch plan.
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I am advised that the plaintiff's lawsuit may be deficient on the grounds that the Planning Commission's action did not constitute a zoning change covered by the ordinance. The zoning for the Triangle has always been residential, and it would continue to be regardless of whether the T4 overlay is removed. Whether the mere removal of the T4 overlay can be successfully challenged by the Owen Trust is a legal issue that would have to be addressed by a court in the event the lawsuit is refiled.