BudaFirst vs. U.S. Foods

Buda TX, (Oct. 26, 2009)—Attorneys for the group BudaFirst have filed a long-threatened suit against the city of Buda, seeking to force a referendum election that could prevent U.S. Foodservice from building a $50 million distribution facility east of town.

The Writ of Mandamus, filed on Oct. 9 outside of Hays County in Austin’s Third Court of Appeals, names the city of Buda, mayor, city secretary and individual city council members as respondents.

“This is a violation of the people’s voting rights,” said BudaFirst attorney Terry Irion of the Austin-based firm Irion & Slade. “This is a serious matter, and it is appropriate to take a violation of the citizens’ voting rights directly to the court of appeals.”

The saga started this spring, when Buda councilmembers first denied and then approved a land use change that would allow light industrial use on about 90 acres in the Sunfield development that U.S. Foodservice was eyeing for its new facility.

Though located outside of city limits and not subject to traditional zoning, a development agreement gives the city some control over land use in the 2,000 acre Sunfield development.

But some city residents complained that the food distribution company would generate too much heavy truck traffic, while owners of neighboring large acreage tracts, such as Carl and Betsy Urban, said a nearby light industrial complex could hurt plans for their own proposed upscale development west of IH-35.

A group dubbed BudaFirst began circulating a petition to call a referendum election that would give Buda residents the option of overturning the council’s land use change at the election polls.

City Secretary Toni Milam certified 788 submitted signatures, well in excess of the 20 percent of the city’s 3,514 registered voters required by the City Charter to call an election.

But on the advice of their attorneys, Buda councilmembers rejected the petition in September, saying the land use change constituted an “executive action” not subject to a referendum.

“You don’t have the fox regulating the henhouse,” Irion said. “Once the city secretary certifies the signatures, the city council doesn’t get to stand as judge and jury and say ‘we don’t think this is an appropriate petition for referendum.’”

U.S. Foodservice spokesperson Howard Falkenberg said that the company likely wouldn’t close on the property until the lawsuit was resolved, but noted that other work is moving forward. Last week the Buda Planning and Zoning Commission recommended approval of the preliminary plan for the development.

“I think the assumption is that this is going to work,” Falkenberg said. “We remain confident that the city’s position will be upheld in the matter. We might as well keep going and get the entitlements worked out.”

Falkenberg said the development would “give an economic uptick to the community,” generating jobs and tax revenue and spurring surrounding development.

“The fears of truck traffic and negative visual impacts are just completely overblown,” Falkenberg said. “It is going to be an attribute to the area and not a detriment.”

The lawsuit will likely prove to be costly for the city. Councilmembers recently placed an extra $100,000 in the legal budget to handle the expected upcoming litigation.


Jen Biundo is managing editor of the Hays Free Press where this story was originally published.

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