The Kyle Report

The Kyle Report

Tuesday, February 24, 2015

P&Z: Mid-rise? Yes. High-rise? Let’s wait and see

Kyle’s Planning and Zoning Commission voted 6-0 (commissioner Irene Melendez was a no-show) tonight to recommend the City Council amend Chapter 53 of the Code of Ordinances to allow the construction of nine-story buildings in areas zoned RS (Retail Service Districts) on a case-by-case basis.

I would guess the proposed change will appear for a first reading on next Tuesday’s council agenda and will pass without much debate. The only discussion might come from those who, along with P&Z Commissioner Dan Ryan, believe restricting building heights to nine stories will hamper transit-oriented projects, to site one example. Ryan said he wanted to lift zoning restrictions to allow for high rise residential construction near the proposed Kyle/Buda rail station that’s being floated by the Lone Star Regional Rail Product.

"I love developments like that," Ryan said. "They require only one water line, one sewer line."

Commissioner Mike Wilson argued that current residential zoning does not allow for that type of density and that new residential zoning would have to be created before those height requirements could be addressed.

In the meantime, those developers that want to construct buildings up to nine-stories tall in areas zoned RS can so but on a conditional use basis. In other words, each such project plan would have to be submitted to and approved by the Planning & Zoning Commission and then the City Council. But this does mean some interesting mixed-use developments combining first-story retail, topped with three-to-four-story office space and possible four-story residential on top could be in the works for Kyle, possibly along Kohlers Crossing. Imagine that — living, working and shopping all in one spot. It sure could put the city at a competitive advantage.

Wednesday, February 18, 2015

City council misinterprets misleading information resulting in the unnecessary delay in the passage of a resolution

Section 255.003 (a) of the Texas Ethics Code states "An officer or employee of a political subdivision may not spend or authorize the spending of public funds for political advertising." And part c of this same section says "A person who violates this section commits an offense. An offense is a Class A misdemeanor."

Here’s what that means. Kyle City Council candidate Elmore Electme can run on a platform of transforming Tohellandgone Blvd. from a potholed filled street that swallows pedestrians, cars and 18-wheelers into a well-lit, superbly maintained rodeway with sidewalks and all the other amenities that befits a well-traveled esplanade. However, once elected and once a bond program is approved by the council that is designed to achieve his goals, he is forbidden by the above-referenced TEC statute from using his position on the council to urge voters to approve the bonds. Nor can the council as a body endorse the passage of the bond proposal.

Now, you may argue, simply voting in favor of putting the bond proposal on the ballot is an endorsement. The law doesn’t see it that way, however. The argument here is the council’s action wasn’t an endorsement of passage per se, it was simply an action supporting the democratic process of allowing the voters to decide whether to spend the tax money on the necessary road repairs.

To use another example. The Kyle City Council could decide it would be really nice if the Texas Department of Transportation had more money to spend on needed road upgrades and construction in and around the city. It could even pass a resolution urging the elected state officials who represent the area to find ways to make that happen. However, once something like last year’s constitutional Proposition 1 goes on the ballot, they are forbidden from using their positions, either collectively or individually, from campaigning in any way that suggests how voters should cast their ballots on the issue.

Got it?

Last night’s Kyle City Council agenda included a seemingly innocuous item that said: "A Resolution of the City of Kyle City Council requesting the members of the 84th legislative session of the State of Texas to support increases of funding for the Texas Recreation and Parks account and large county and municipality Recreation and Parks Account Local Park Grant Programs, and the Texas State Park System."

This is, as Parks and Recreation director Kerry Urbanowicz described, asking the legislature to endorse refunding park grant programs and placing on an upcoming ballot a constitutional amendment to refund state parks through the use of sales taxes.

Council member David Wilson moved to approve the item and it was seconded by Mayor Pro Tem Diane Hervol. An unanimous passage without discussion was forthcoming until city attorney Ken Johnson said "You should proceed with caution on voting on anything that might turn into a constitutional amendment."

But then he said the Texas Municipal League "advises you do not pass resolutions supporting any constitutional propositions."

But that’s not what the council was considering since there was no constitutional proposition to support. What they were going to support was recommending their legislators endorse and work in favor of the concept of such a proposition.

Mayor Todd Webster asked Johnson "The advisory opinion specifically refers to a ballot initiative?"

"Yes," Johnson replied.

Webster then asked Johnson if he was saying there is no distinction between an actual ballot initiative and an idea for one?

"What I’m saying is if you pass a resolution supporting a proposition that will be voted on by the voters as a constitutional amendment, then TML advises not to that," Johnson said.

All well and good but that’s not what the council was getting ready to do. They were voting to support the concept of creating such a proposition, not a proposition that already existed.

Wilson, for one, saw right through the apples and oranges discussion.

"Because it’s not passed, because it’s maybe in the proposal stages, I think we want to communicate to our legislators that this is something that’s important to us," Wilson said. "When you are talking about individual pieces of legislation with numbers on them and information inside of them I am not one that will jump on that bandwagon. Once something goes on the ballot, I will defer to my city attorney and not promote that. I will promote the election, but not how someone should vote."

Mayor Pro Tem Hervol to Johnson: "Can you clarify something for me? If we’re supporting this resolution but yet it’s not made it to the ballot, where’s TML’s caution for council members to support the resolution prior to it making it to the ballot?"

Johnson: "Well, I will have to tell you I was caught a little bit unawares because I did not know that part of this resolution was tied to a constitutional proposition. I thought it was strictly a resolution supporting legislation for funding of the parks system. So I don’t have that election code information in front of me at this point because I did not know this could lead to a constitutional provision. With that said, from what I recall. It basically says that if you support as measure with a resolution than you may be in violation of what they call political advertising. If you look at the election code that same section it does define that is a measure and a measure is something — I do not have the exact language — but it is something that basically eventually ends up on the ballot for the voters to vote for in an election. It doesn’t say legislation. It doesn’t say constitutional proposition. It’s very indirect, very generic. It talks about something that if you support this legislation or this measure and this measure is the actual constitutional proposition that is held out for an election by the voters — that is as vague and as general as it gets. The only reason I bring it to your attention is there are both civil and criminal potential penalties if you are found in violation of doing this. So I feel I would be remiss in my duty if I did not bring that to your attention."

Mayor Webster: "So it’s your opinion that if we pass a resolution that supports any legislative measure that is not on the ballot yet, that in doing so we subject us to criminal or civil penalties. Is that what you just said?"

Johnson. "No. What I’m saying is that if you vote on legislation that you do know in fact will go to the voters in an election as a constitutional amendment then yes."

That italicized portion of Johnson’s response is the key statement. There is absolutely no way that any member of the Kyle City Council can say with absolute certainty that they "know in fact" that any portion of the resolution they were considering "will go to the voters in an election as a constitutional amendment." They could hope it might and I’m betting the purpose of the resolution is to try to convince legislators to make that election happen. But there is no guarantee that it will, which renders all of Johnson’s cautions to the council absolutely irrelevant. In fact, according to Urbanowicz, some legislators during previous sessions have tried to get such an amendment on the ballot but their efforts have, to date, failed. Urbanowicz also told the council even stronger resolutions on this subject have been passed by the city councils of "at least 20" other Texas cities, including Houston, Austin and San Antonio, without concern.

Johnson: "May I ask this out of an abundance of caution. Is there any way this can be set aside so I can get the language and bring it back. That I can provide you with the specific election code information."

Mayor Webster: "My recommendation is that we don’t have a lot of choice other than to accept the city attorney’s recommendation. If the city attorney says we need more time to consider the resolution than my recommendation is that we do that, my feelings and my opinions aside. I just don’t want there to be any risk whether or not I think such a risk exists."

With that, council member Shane Arabie, who said quite emphatically he supported the resolution, requested it be tabled until "we get our ducks in a row," which he expected would occur at the council’s March 3 meeting. Wilson, somewhat reluctantly, withdrew his motion to approve the agenda item and substituted a motion to table it for two weeks which was passed.

Mayor Webster concluded the discussion by saying: "I absolutely think we have every right to pass a resolution that petitions our legislators for what we want to do."

But the council didn’t do that. Instead they misinterpreted misleading information and then balked. It’s not the end of the world, by any stretch of the imagination. I suspect the same resolution will come before the council in two weeks and sail right through and a two-week delay isn’t going to affect anything one way or another. Yet, on general rather than specific terms, what this episode says to me at least is somewhat troubling.

Council appoints Dean police officer

There was not a dry eye in the house.

It was like that moment when a terribly sad movie you are heavily involved in suddenly and unexpectedly has a happy, joyous ending. The miracle that occurs when the filmmaker somehow elicits from his audience tears of joy, not sadness.

That miracle came toward the end of Mayor Todd Webster’s reading of what Item 7 of last night’s City Council agenda described as "a resolution of the City of Kyle, Texas, acknowledging the contributions of Samantha Elizabeth Dean and her service to the citizens of Kyle through her passionate dedication as victim services coordinator for the Kyle Police Department."

I have not written about the Dean murder until now because it was my belief that the tragedy was a "crime" story and this blog is devoted strictly to "city government." Last night, the city council elevated it to an entirely higher level than anyone outside the council anticipated.

Police Chief Jeff Barnett talked about how Dean told him she had always wanted to be a police officer, and how those dreams were dashed after she was diagnosed with a form of cancer that left her somewhat disabled. "That didn’t slow her down, however, as she chose the next best thing, helping to bring comfort to victims of crime and families facing tragic loss" Barnett said. "

Then, with Dean’s parents, Kelvin and Kimberly, along with her sister, Alex, standing at the podium, Mayor Webster, after calling for a full minute of silence in Dean’s memory, read all the obligatory "whereases" that spoke about her passion, her dedication, her "tireless efforts" on behalf of crime victims, her being "a positive role model," her compassion and her humanity," and then said it is hereby resolved that Samantha Dean was "a valuable member of the City of Kyle."

But he didn’t stop there.

"…and in recognition," the mayor read "of Samantha Dean’s lifelong desire to be a police officer that she be posthumously promoted to a position of honorary police officer for the City of Kyle Police Department, having all honors and benefits bestowed upon her through that position…"

When the mayor said these words, my gaze turned immediately from him to Kelvin and Kimberly Dean. First I noticed Kimberly’s stoic posture wither ever so slightly and Kelvin’s body language betrayed his emotions as well. After that Chief Barnett presented the family with Dean’s police officer badge.

If one brief moment of joy, happiness and celebration can be extracted from an ocean of sorrow, that moment took place at Kyle City Hall last night.

Wednesday, February 4, 2015

A tale of two road extensions

Although no action was taken directly on either how or by whom Marketplace Road will be extended to North Burleson or whether Onyx Lake Drive will be extended to Goforth as per the wishes of many of the residents of the Southlake Ranch subdivision, the prospects for both looked a little brighter as a result of actions taken at tonight’s city council meeting.

Council member Tammy Swaton met with a group of residents of the subdivision about their concerns over a prospective zoning change at 1433 and 1435 Goforth Road. It really wasn’t about the possible changing of the zoning designation from agricultural to retail that bothered those living directly behind the property in question, it was more about extending Onyx Lake Drive to Goforth. (You can get much of the background on this discussion here.) Swaton apparently alleviated the residents about the zoning, telling them that much of their concerns were going to be satisfied because the property was located directly across Goforth from Lehman High School, which would eliminate many of the types of retail establishments that worried the residents. She also told them that before ground would be broken on anything at those addresses, a "concept plan" would have to be presented and approved by the City Council. Now, I may be overly optimistic because the road extension makes so much sense, but I got the impression by what was said and left unsaid by council members at tonight’s meeting that the concept plan had better include the Onyx Lake extension.

"At the last (council) meeting the residents had some concerns," Swaton said. "There is an existing road that is not finished out — Onyx Lake Drive — and we discussed the possibility of bringing that to Goforth Road as well as some other issues. I do not believe there was an agreement made between the applicant and the residents. With that being said … we are looking at two different legitimate issues." One, she said, was the actual zoning. "But with the road and other items, I was hoping that (the city staff) would bring the site plan to the council for approval rather than having it administratively approved."

Mayor Todd Webster said he wanted the staff to present "a concept plan" to the council before it offered a site plan "instead of using the administrative review process that’s already in place."

City Manager Scott Sellers told the council in no uncertain terms "We will move forward and present a concept plan to council when it’s ready. We will bring that total site plan back for council approval as opposed to administrative approval."

Webster said the immediate concern was the zoning and then there will be "a future conversation about the appropriateness of a road which seems from an aerial point of view very logically placed here."

Now anyone is free to interpret the above any way they like, but my interpretation of it is the current thinking of the council is to make the Onyx Lake Drive extension to Goforth a reality.

The Marketplace Road extension was a slightly different matter. There was never any question about the fact it was going to be extended from its current terminus point at City Lights Drive to Burleson. The issue was where exactly it would connect to Burleson. Under an agreement the council voted on during its last meeting, Marketplace would take an almost 90 degree left dogleg intersecting Burleson in the vicinity of Old Post Road. However, between the last meeting and tonight’s, Sellers, along with Swaton and council member David Wilson met with the Parker family that owns property in that area and the family agreed to donate a right of way through its property allowing Marketplace to extend in a straighter path, intersecting Burleson just north of where it intersects the Santa Fe railroad tracks, the alignment the city preferred from the get-go and, to be honest, the most logical alignment.

After being told all this, the council voted to replace the agreement it approved two weeks ago with a new one that incorporates the land donated by the Parker family.