For the first time, the City of El Paso and those who want to preserve the area known as "Duranguito" had a chance to plead their case orally before a court of appeals.
The Third Court of Appeals in Austin will weigh in on a seminal issue for the future of the $180 million arena: whether the project can include sports.
The City is appealing a decision from Judge Amy Clarke Meachum who last summer in Austin reaffirmed the City had the authority to build the Multipurpose Performing Arts Center (MPC) in Duranguito, with bond money approved by voters for that purpose during the 2012 Quality of Life Bond election. That was a win for the City, until Judge Meachum indicated the arena could not be used for sports.
As ABC-7 has reported, consultants told city council the arena would have to have an anchor tenant, such as a D-League basketball team, to make the project a success.
"We are building a multi-purpose facility," Interim City Attorney Karla Nieman told ABC-7 immediately after the hearing. "And multi-purpose encompasses many types of performing arts and entertainment events. And I think it's unfortunate that we've come this far and we've had an election where a large percentage of the voters in El Paso approved this language and we're having to defend something the citizens of El Paso want."
William Jefferson, an attorney for the City of El Paso, said Wednesday the "grammatical gymnastics at play are counter to decades of jurisprudence." Jefferson said the City wants the court to declare the City has the discretion to include sports. "Even assuming a few citizens of El Paso may resist the idea that sports is entertainment or believe that sports should have been specifically stated in the ordinance and ballot, the law gives the City the discretion to make that call," Jefferson said.
The City further argued that in the lead up to the election, interviews with the deputy city manager, editorials and news stories indicated the facility would accommodate ceremonies, concerts and all kinds of sports, to include college and high school basketball tournaments. "There was no deception on the voters and there was no question about what this facility was going to embrace," Jefferson said, "The intent here was to be as broad as possible in order to have a successful facility, one that is going to be financially solvent over time."
Arena opponents, who maintain the Duranguito area is historically significant, say the City misled voters and the Texas Secretary of State's office.
ABC-7 archives show sports was part of the discussion during public meetings ahead of the bond election; however, court documents show the City's bond attorney indicated to the Secretary of State that sports would not be included in the plan. The issue was bundled on the ballot with other culture-related signature projects like the Children's Museum and the Mexican-American Cultural Center.
"It is extremely important that the will of the voters is affirmed," Historian Max Grossman told ABC-7 outside the courtroom. "When the voters vote on a measure that's in front of them they expect what they voted for is what is going to be realized; nothing more, nothing less."
Lisa Bowlin Hobbs, an attorney for Grossman, said "sports arenas are controversial. To use the City's terms: 'a lightning rod for taxpayers.'" Hobbs argued the City deliberately misled voters. "It is our position that it is unreasonable to tell the voters that you're going to build a performing arts center and then decide you're going to build a basketball arena," Hobbs said, "It is unlawful for you to take bond money for a performing arts facility and decide you're going to build a sports arena."
The Third Court of Appeals was not expected to rule on the issue Wednesday.