Helotes’ Interim Development Ordinance is illegal and should be stopped, the town’s mayor said at last week’s City Council meeting, citing what he says are both former and current city attorney opinions on the matter.

“The IDO process is very expensive and cost prohibitive, especially to a small developer, and tends to repel rather than attract good, beneficial projects to Helotes,” said Mayor Tom Schoolcraft in his agenda request to repeal the ordinance.

The measure failed on a 3-2 vote. Council member Jeff Ellis and Rich Whitehead voted for the action, while Guillerma Contreras, Alina Matutes-Eckhardt and J.B. Richeson voted against it.

The IDO, developed in February and set to expire February 2008, was established to limit business development until Helotes could establish a comprehensive plan, its proponents say.

However, opponents of the IDO contend that the ordinance is tantamount to a moratorium on development, enforcing massive fees and demanding burdensome building requirements.

Schoolcraft said he asked the former city attorneys their opinion of the legality of the IDO, then asked the current city attorney.

“Our former attorney had some concerns about the IDO and its legality and it opening us to litigation,” Schoolcraft said.

Earl & Associates, the city’s former official law firm, declined to confirm or deny the exchange with Northwest Weekly.

The mayor added that he asked the current city attorney, Steve Peña of Davidson & Troilo, and the mayor read parts of the memo aloud at the meeting, admitting he was unsure whether it was public record.

One of the highlights, the mayor said, is that the city’s IDO is an “unwarranted invasion of property rights” unless it is an exercise in “police power,” which is substantially not the case.

Police power is the government’s right to enact laws for the general welfare of its populace.

The memo was not released to Northwest Weekly as of press time.

“Goals are admirable, even though not expressly permitted by Chapter 211 (of the Texas Local Government Code),” the mayor continued in quoting the memo that he says states that the city cannot use an interim development ordinance in lieu of a building moratorium.

However, Richeson, who received a copy of the memo along with the other council members on the day of the meeting, said there was a section of the memo not highlighted by the mayor that says that the legality IDO is debatable.

If the city doesn’t have an adequate development ordinance already in place, the IDO could be “a valid exercise of the city’s police powers,” Richeson said, reading from the memo.

“I did not vote on the IDO as a de-facto moratorium,” Richeson said, adding that the city’s original ordinance was wholly inadequate.

The mayor said he has asked the attorneys what constitutes an inadequate ordinance, and he is awaiting response.

Other council members weighed in as well, Matutes-Eckhardt reminding the council that the IDO will expire in February.

Whitehead said that no development under the IDO has occurred, recalling a case of an owner of a half of an acre who tried to build and was plagued with $93,000 in fees.

“Small business cannot afford this cost,” Whitehead said, implying that Matutes-Eckhardt, a nurse, and Contreras, who works for Northside Independent School District, don’t understand the details of running a business.

Whitehead contends that the IDO opens the city up to litigation, citing a suit with Balous Miller that could cost the city millions. Ellis said that for anyone to say the IDO doesn’t stop building is “disingenuous.”

“Anyone can read the document and see that you can’t build,” he said, adding that the tough pro-environmental restrictions within the IDO are “much more effective as an incentive.”

Contreras said that the environmental requirements are practices widely accepted round the world, and that the IDO is constructed in such a way that businesses can tailor the kind of features they want to add.

The IDO uses the Leadership in Energy and Environmental Design (LEED) points system.

“I still consider the IDO as more of a yield sign, not a stop sign,” Contreras said.

Jon Allan, the former mayor of Helotes, says that the IDO never would have been implemented had it been illegal.

“It’s not illegal. Having been mayor for two years I know how city attorneys operate. The law is not black and white. The mayor talks to the lawyers and their opinion is crafted to the mayor. Simple,” Allan said in an e-mail.

He added that developers can always sue no matter what the law is, and that the city has “legislative immunity” on the matter.

“When someone wants something, the first thing they say is ‘we shouldn’t do this or we’ll open ourselves up for a lawsuit,’ ” Allan said.