The Kyle Report

The Kyle Report

Wednesday, June 24, 2015

Charter Commission deadlocks on council districts, says council should set its own salary

The Charter Commission voted to approve some significant changes to Kyle’s constitution last night, although they failed to come to an agreement on the makeup of city council districts. One of those changes, involving council pay, might worry enough citizens that the entire proposed charter is shot down by voters. I am not going to go into great detail over the discussion on these items because it was mostly pro-forma. Not only that, these changes are merely recommendations. They then must go through the city’s legal counsel and then the city council which, conceivably, could change everything the commission has recommended.

The commission was deadlocked on Section 3.01 which says three council members and the mayor will be elected at large and the other three council members will be elected from single member districts. Many on the council favored reducing the number of at-large districts, but the question that was never resolved was by how many. A motion to make all the council districts single member with only the mayor elected at large failed on a 3-3 vote. However, because one commissioner, who could break the deadlock, could not attend last night’s meeting, the idea was eventually tabled until the next meeting.

The commission voted to change Section 3.05 which basically says any council member convicted of a felony or other "dastardly" deeds enumerated by the section could be remove from office. The commissioners felt those "dastardly" deeds were not specific enough so it substituted them for conviction of certain misdemeanors. They kept the idea that it would take six votes to remove a council member for such an offense, which translates into a unanimous vote when you consider the subject of the debate undoubtably would not be allowed to vote on the removal resolution.

It’s the change to Section 3.09 the commission recommended that may cause a negative reaction in voters, if the recommendation makes it that far. That section governs how much money the mayor and council members are paid to serve and my experience is that council pay is one of the most volatile issues in the minds of voters. Basically Section 3.09 says council members receive $100 per month plus necessary expenses. The commission recommended striking the amount and allowing the council to establish its own salary via ordinance without placing any limit on what that salary might be. I’m simply not sure how voters are going to feel about allowing the council to set its own salary and then to be able to give themselves a raise anytime they decide to revisit the ordinance.

Section 4.06 (c) of the charter says "Except for an emergency ordinance, an ordinance making an emergency appropriation, an ordinance authorizing bonds or any other indebtedness, or an ordinance approved by seven (7) affirmative votes, no ordinance shall be finally adopted until it has been read and approved by a majority vote of the city council at two meetings, one of which is a regular meeting." The commissioners voted to eliminate the third and fourth reasons for not needing a second reading so, as proposed, that section would now say "Except for an emergency ordinance or an ordinance making an emergency appropriation, no ordinance shall be finally adopted until it has been read and approved by a majority vote of the city council at two meetings, one of which is a regular meeting."

Section 5.11 dealing with runoff elections now says "Such runoff election shall be held in accordance with State election laws on the third Saturday following the election." The commission recommended (and I don’t understand why – the discussion on this item was held at a meeting I could not attend) eliminating the words "on the third Saturday following the election."

One of the changes I had a lot of trouble with is the commission’s recommendation concerning Section 7.10 which currently begins: "There shall be a city attorney who shall be appointed and may be removed by the council." The commission voted to add the words "and who reports to the city manager" at the end of that sentence. Making the city attorney a position that is reportable to the city manager sets a dangerous precedent, one I do not believe exists in any other city charter. However, I am not too concerned about it because I believe the city attorney will see the illegality in this idea and strike it before it even reaches the city council, which I hope would strike it even if the city attorney felt it was a conflict to do so himself.

The commission also recommended adding a section, 13.10, which requires that any council meeting, whether regular, special or workshop and any meeting by any council appointed board, commission or committee be open to the public and include a public comment period. This is in direct conflict with rules adopted last week by the council in which it said it would not include public comment sessions during a council workshop. This last-minute addition – it was not discussed before last evening – apparently was a direct response by commission members to the adoption of those rules. The commission members seemed appalled by the idea that the council could gather in any type of session without allowing input from the public.

Tuesday, June 23, 2015

Mountain City votes to continue haggling over “sale” price

Update and correction: I have updated and corrected this item to reflect the fact that Mountain City Mayor Curnutt did not say the $500-per-lot payment from Anthem to Mountain City should be part of the ILA. She did say, as she pointed out in an e-mail to me, that this would be a part of a separate agreement between Mountain City and Anthem Development. I stand corrected on that point.
A developer wants to place a comparatively high-end subdivision on land that’s part of Mountain City’s Extraterritorial Jurisdiction (ETJ). Problem is the subdivision has no guaranteed source for water. So the City of Kyle stepped in and said it will extend its water and wastewater lines north to the subdivision, sell the residents its water and carry its wastewater south to Kyle’s wastewater treatment plant. It also threw in a few other goodies. In return, Kyle would take control of Mountain City’s ETJ and eventually annex it into Kyle so the property taxes of those in the subdivision can help pay for the infrastructure extensions. To sweeten the deal for Mountain City, Hays County jumped in and said it would pay to build new roads for Mountain City if Mountain City paid for the materials needed to build them. A document was prepared reflecting all this and that document is called an Interlocal Agreement (ILA).

That’s a simplified synopsis of the deal, but it hits the important parts.

The residents of Mountain City, however, don’t like the deal. Not one bit. And, as evidenced by a town hall meeting held a week ago last night, these residents are divided into two camps: One that doesn’t want to give up the ETJ under any conditions and a second that is willing to give it up, but not under the provisions as outlined in the current ILA. It was that second group that showed up last night at Mountain City’s City Council meeting that ended with the council unanimously approving a motion to continue negotiating with Kyle and Hays County for what it feels is a better deal, although neither Mountain City Mayor Tiffany Curnutt nor Mayor Pro Tem Phillip Taylor wanted to express confidence that an agreement will ever be reached.

The residents who attended last night’s council meeting do not view the action Mountain City might take as trading its ETJ. They call it "selling" the land in question and they are after a better sale price. In fact, Mayor Curnutt said she and Taylor met with Kyle City Manager Scott Sellers, Hays County Commissioner Will Conley, Anthem developer Clark Wilson and others for "about an hour" yesterday to discuss with them "If we were going to sell – I think that’s a good term – the ETJ what would make it worth our while."

To that end, she said, an attorney representing Mountain City will, in Mayor Curnutt’s words, "take first stab" at drafting an entirely new ILA which will be presented to Kyle and Hays County officials. She did not refer to this pending new document as a take-it-or-leave-it proposal, however, just the next step in the negotiating process.

Now I’m not an impartial observer in this discussion. Because I am a resident of Kyle, I want what’s best for the city in which I live and my observations on last night’s discussion are going to be filtered through that lens.

For example, I’m going to mention one of the last ideas broached last night first and that is the ILA should state if, for any reason, the subdivision, presently known as Anthem, doesn’t come to fruition, the ETJ would be returned to Mountain City. On the surface, that might sound reasonable, but there’s a chicken-egg question going on here. I will argue that once Kyle begins constructing the water and wastewater lines extensions, the ETJ remains in Kyle’s possession regardless of the fate of Anthem. Besides, the owner of the property says development is going to take place on that land, whether it’s called Anthem or Antler or Antares or Antebellum or Antediluvian or Antepenultimate or even Anticlimax. Something’s going to be constructed on that land and soon and, whatever it is, it will need water. Now, if Anthem becomes a no-go before construction begins, I see no reason Mountain City can’t reclaim its ETJ, although I would hope Kyle leaders become reluctant to enter into any further ILAs over it. Let Mountain City deal with it.

Another provision Mountain City wants as part of a revised ILA is that only that part of the ETJ that will be occupied by Anthem would be part of the deal. That would mean, as someone explained it to me last night, that instead of a 10-foot wide swath of land separating the city limits of Mountain City and Kyle, there would be a 50-foot separation, a separation Mountain City said it would like to use for a hike and bike trail. That one sounds rather reasonable to me.

"We may have to incorporate some language to the effect if signs or other structures are built they would have to fall within Kyle’s requirements as well," Curnutt said. "For example they don’t allow the pillar signs. So they don’t want any 70-foot pillar signs. So we would have to mutually agree on whatever signs are placed there."

Then she mentioned something that I had a problem with and that’s the development agreement that currently exists between Anthem and Mountain City.

"If Kyle were to adopt the development agreement as it stands or perhaps make it more stringent – whatever that means – but if they’re going to do that, it has to be outlined," the mayor said. "It may be better for them but we don’t consider it better." For example, she cited, Kyle Mayor Todd Webster "had mentioned all the homes in Plum Creek … are not our standards of masonry. Hardy plank, in our own minds, is not considered masonry. So that was one thing we talked about. Hardy plank is not going to work for us."

She also said the "timing was really weird" on when the property would be annexed. She said, according to the terms of the ILA as it is presently written "Basically, the minute we sign the ILA then the development agreement goes away and Kyle can write whatever it wants. So we want some language that says they are going to adhere to these rules when they write their development agreement. We would like to see a draft of that."

Here’s my problem with all that. No city should be allowed to dictate to another city how it should construct homes or the contents of any development districts or anything else about the way that city operates. You can dictate the rules for your own municipality but I have grave concerns when one municipality thinks it

has the right to dictate the rules for another municipality.

She also said she wanted to see maps of where the water and wastewater lines would be located before she would agree to any ILA..

In addition, she said, she wants "clarification" on Mountain City’s ability to "tie in" to Kyle’s water lines. She said she wondered if that allowed Mountain City residents, on an individual basis, to decide whether they would prefer to pay to have access to Kyle water. "That’s pretty much not the case," she told the council and the audience. "It would be pretty much all or none. We would have a main tie-in and the city of Mountain City would be responsible for paying the City of Kyle whether it’s in-city or out-of-city rates. That’s negotiable. Their out-of-city rates are 130 percent of what they currently charge their city residents, which is high to begin with. But just for clarification, it would be one main tie in. It could be used as an alternate source or for something if we ever decided to stop providing water. That’s not at all in the plans, but the City of Kyle would have the ability if we gave them the authorization to start providing water."

Curnutt said Mountain City would have to address what she referred to as extremely expensive infrastructure improvements before it could connect to Kyle’s water supply and will probably have to make those improvements sometime in the future anyway because of aging. "Our water costs are going to go up regardless," she said. "It’s a very old system."

To help defray the costs of these improvements, Curnutt wants an agreement with Anthem that stipulates Wilson will pay Mountain City $500 for every lot sold in Anthem, which, of course, is strictly between Anthem and Mountain City. 

Mountain City, for some reason known only to it (perhaps it has to do with the possible increase in traffic on its streets), wants all entrances and exits to Anthem be located on RR 150, with another one possibly located on the northeast edge of the project, away from Mountain City, and that there be absolutely no street connection whatsoever between Anthem and Mountain City. According to current plans, there is only one way in or out of the subdivision but, from what I’m hearing, the project is big enough that state law requires at least two, because, if one was blocked for any reason, there would need to be a way for emergency vehicles to access the area. The problem is, however, the area of the project that fronts 150 is relatively small, meaning the two access points would have to be so close to each other to result in major traffic problems along that stretch of 150, particularly when you consider that stretch of highway is scheduled for major renovation, i.e. widening, as part of the area’s transportation plan.

To give you another idea, of how clueless elected officials around here are when it comes to PIDs, Mayor Curnutt said Wilson is, of course, working on a PID to present to the Kyle officials. When someone asked her what a PID was, she replied it was a "Public Infrastructure District." Yipes!

There also seems to be some disagreement about what Plum Creek plans to do with the land it owns north of Kohler’s Crossing and east of 2770, basically across the street from Mountain City. According to a Plum Creek web site, this area, known as Uptown, will eventually contain "mixed-use multifamily development, restaurants, retail and office uses, the central administration offices of the local school district, a new City of Kyle library, and urban civic space in the form of plazas and an amphitheatre." Taylor, however, swore to the audience last night Uptown is not zoned for multi-family.

That’s the highlights of the discussion on the one item that was on Mountain City’s council agenda last night. Fortunately, I got to hear it when I did because, knowing that Kyle officials don’t believe in open, transparent government as much as Mountain City seems to, I’m willing to bet all mention of Monday’s meeting from Kyle’s point of view will be discussed in executive session.

After the meeting I asked both Curnutt and Taylor whether they were confident that an ILA would ever been signed. "As long as it was agreeable to all parties concerned," Taylor said. I basically repeated my question by asking, on a scale from one to 10, how confident they were a document could be written that "was agreeable to all parties concerned." They both replied, in unison, "I don’t want to go there." That, to me, did not exude a whole lot of confidence on their part a deal would ever get done.

So there’s that.

“You can’t handle the truth”

Perhaps it was because I came to the defense of a city council candidate who was unfairly and unjustifiably being vilified by the mayor and his merry men (the overwhelming majority of the City Council who march in lock-step to whatever he commands). Or maybe it was because I exposed his DDD scam for what it was, an attack on Kyle homeowners and an immoral attempt to line the pockets of greedy developers and his fellow lawyers. Whatever the reason, it has come to my attention that Mayor Todd Webster has "blocked me" on Facebook.

That is not the act of a leader. It certainly isn’t the act of a statesman. It is the act of a petty politician who only wants to hear one side – his side – of any issue. I used to have a lot of respect for Webster. But the more I witness his ineptness at things like trying to interpret Robert’s Rules of Order or his tyrannical employment of executive sessions during City Council meetings, the more that respect wanes.

But it is what it is. He "blocked me" on Facebook. So be it. I’m really not going to lose a wink of sleep over it. If he wants to act like a 5-year-old throwing a temper tantrum, that’s his prerogative. I’m just not sure that’s the temperament we should have in a mayor.

But that’s the way it is.

Monday, June 22, 2015

Mountain City, at least, knows Robert's

I will have more on this tomorrow, but the Mountain City City Council tonight unanimously approved continuing to discuss terms of a proposed Interlocal Agreement among Mountain City, the City of Kyle and Hays County concerning a subdivision planned for a water-starved area of Mountain City's ETJ. But what I found extremely interesting after attending my first Mountain City council meeting is that, unlike Kyle, its council knows exactly how to follow Robert's Rules of Order when discussing and voting on an agenda item. Perhaps Mountain City's mayor Tiffany Curnett can let Kyle Mayor Todd Webster know how it's supposed to be done during their ILA discussions. That would help keep the Kyle City Council from looking so goofy.

Thursday, June 18, 2015

Robert’s Rules revisited and other dictatorial policies

Yesterday I wrote about the Kyle City Council badly misinterpreting Robert’s Rules of Order and I realize now there is some clarification needed, particularly to distinguish between the terms "discuss" and "debate." Contrary to the council’s actions in adopting its new rules of procedures, there is nothing in Robert’s that pertains to the discussion of any issue. Robert’s concerns itself with debate only.

Let me give you an example. Item 11 on Tuesday night’s agenda read, in part, "Consider and possible action regarding approval of a contract between the City of Kyle, Texas and Aqua Operations, Inc., relating to the purchase of an existing wastewater treatment plant …" All it takes for "discussion" to commence on that item is for someone to read the agenda item into the record. In most councils I’ve covered that someone has always been the city secretary. The mayor (or acting chair, in the mayor’s absence) will say "next item" and the city secretary will read it into the record right from the agenda. But it’s OK if the mayor wants to handle that chore here. No problem.

Once it’s read into the record of the meeting, discussion can begin. And by discussion, I mean the council, as happened on this item Tuesday, could ask the city manager to come to the podium to talk about the issue. Council members could ask the manager questions about it. They could even summon other staff members to the podium to answer questions they may have. Council members are even free to discuss those questions and those answers among themselves. What they can’t do, however, is to begin discussions specifically on the merits of the issue, because Robert’s says, in effect, discussions of this sort should not be about ideas, or concepts, or theories, or even agenda items, because discussions of those sorts are more properly defined as "debate" and a debate must revolve around a specific action item. Therefore, debate or discussions on the pros and cons of an item can only commence after a council member makes a motion to take that specific action, whether it be pass it, reject it, table it, whatever.

In short, a motion is not required to discuss an item, but a motion is required to debate the item and that motion must be take a specific action.

One of the reasons this distinction is so important is because it focuses the debate. Many is the time I’ve seen a council member (not in Kyle, that I remember) begin pontificating to the point where he or she begins to travel a good distance from the motion that is on the table. Restricting "debate" to the specific motion allows the chair to gavel that pontificator out of order and request that he or she return to the matter being debated. During the "discussion" period, there is nothing to restrict a member from talking about anything he wants to; i.e., in the example I used above, the annual cost of chemicals needed to treat wastewater.

Now, like I said, if the council wants to waste time by deciding it doesn’t even want to open discussion on an item without a motion and a vote of the council, it has every right to do so. Just don’t try to justify it by saying it’s required by Robert’s Rules of Order, which, to repeat myself, deals only with "debate" on an issue, not "discussion" of that issue.

But while I’m on this general subject, there is something far more troubling that occurs each and every week at both City Council meetings and Planning & Zoning Commission hearings. And that’s the dictatorial process that’s used here to open and a close a public hearing. I’m not talking about the Citizen Comment period that precedes each of these sessions; I am specifically referring to the Public Hearings that accompany certain agenda items.

No one single person has the right or the authority to open or close a public hearing. But that’s what’s happening in Kyle and that is dictatorship, not democracy. Kyle City Council members and Planning & Zoning commissioners have allowed the mayor or the P&Z chair to decide when to open and when to close a public hearing. That flies in the face of everything the democratic form of government is supposed to represent.

A public hearing is opened simply by its appearance on the agenda. If an item has a public hearing attached to it, the chair may say "Let’s begin the public hearing" or "Let’s start taking public comments on this agenda item," but he shouldn’t be allowed to say "I’ll now open the public hearing" because the public hearing is already open.

And he certainly doesn’t have the right, on his own, to arbitrarily close the public hearing, and I can’t imagine any legislative body surrendering that right to just one person. A public hearing can only be closed by a motion to do so, a second and a vote to approve that motion by that legislative body. And the motion usually accompanies the motion to take specific action on that item; i.e. "I move to close the public hearing and approve the ordinance amending ...." The chair then repeats the motion, asks for second and once it is seconded, the chair asks if there is any discussion on the issue before a final vote is taken. If the motion is approved, then and only then is the public hearing closed.

This is vitally important not only for the sake of democracy but also for the sake of expediency. Let’s say, for example, the chair arbitrarily and dictatorially closes the public hearing on a specific rezoning request, but then one council member realizes he has another question to pose to the applicant. Once the public hearing is closed, all contact between members of the legislative body and the public must cease, so that question can’t legally be posed. However, if a final vote to close the public hearing accompanies the motion on the actual item, public discourse may continue.

There may also be times when it would be unwise to close the public hearing. One specific example would be if the legislative body wanted to hold off action on a particular item until a later date. So then the motion might state "I move we keep the public hearing open and delay action on this item until such and such a date." Once you have closed the public hearing, it is closed, forever.

Just something to consider instead of allowing certain individuals to run roughshod over the public’s right to speak.

Wednesday, June 17, 2015

Completely irresponsible

I know Mayor Todd Webster is an attorney and a lobbyist. Because they were just involved in an election campaign I am also aware that Damon Fogley is an EMS paramedic and that Daphne Tenorio is a homemaker. Other than that, I must admit I do not know the professions of the other Kyle City Council members. One thing I do know, however: I hope they aren’t managing anyone’s retirement funds because when it comes to managing someone else’s money, these folks don’t have a clue.

The bad news here is they are in charge of managing someone else’s money, the money entrusted in their care by the people who pay taxes in Kyle.

Last night, the Kyle City Council approved a contract to purchase from Aqua Operations, Inc., a Wastewater Treatment plant for $3 million even though City Manager Scott Sellers stood before them and admitted he had absolutely no idea where the money would be coming from to pay for the purchase.

Sad to say, I’m not making this up. Sellers stood before the council last night and said the agreement’s closing date of Oct. 1 "allows the city council through this budget season to plan for the acquisition and budget for coming out of that FY 2016 budget. So as of Oct. 1, when we roll the budget into the next fiscal year, we will go to closing at that point with a financing mechanism in place, whether that’s straight out of the utility fund, as part of a cash flow, whether that’s through some sort of a cash advance through development, or whether that’s through some sort of certificate of occupancy (EDITOR’S NOTE: I really think he meant "certificate of obligation" because a "certificate of occupancy" is something a tenant must obtain from a city’s building department in order to take over the occupancy of an existing building or any part of that building) or other kind of bond mechanism, that is to be determined through this bond process."

But wait. That’s not all.

"This is our first attempt at operating our own wastewater treatment plant," Sellers told the council. "Fortunately we have some great models to follow after as we craft the budget which also includes our personnel. There are a lot of unknowns at this point (emphasis mine) but we’re figuring them out. But in the next few days you will see some activity for hiring personnel and trying to get some things in place in anticipation of the city becoming the full operator Oct. 1."

But wait. I know it’s hard to believe but there are even more unanswered questions.

"In speaking to our third party engineer who will be inspecting the facility we feel like if we have full access to the facility between now and closing we will have a much better idea of how to budget for operations and maintenance of the plant moving forward as well as we will have a better understanding of the capacity of the plant and operations as we look toward expansion," Sellers said.

The key word in that sentence is "if." Think about that. The city will be able to budget for the first year’s O&M costs and how to run the dang thing only if they gain full access to the facility sometime between now and Oct 1., the day the budget in which those O&M costs must be included goes into effect.

But wait yet again. There’s even more unknowns.

"Our permits right now allow us to operate up to 4.5 million gallons per day and so through our sewer model, which we are currently undergoing, and through forecasting population growth, development in the area, we just don’t know right now (again emphasis mine) what to anticipate as this point," Sellers said. "We really don’t have a good idea of the existing assets within the facility."

And finally, this. Sellers asked the council to alter the part of the agreement calling for two separate inspections period and instead "have from this point forward until closing an inspection period. I spoke with legal counsel. We feel that’s a concession Aqua should be fine making."

But no one knows for sure if that’s a concession Aqua should be fine making.

Look, I have no problems with the city purchasing the Wastewater Treatment Plant. It certainly makes far more sense than paying Aqua $200,000 a month to operate it.

But I find it totally irresponsible that the council could vote – unanimously — to approve this contract when there are so many outstanding questions, concerns, doubts. I find it even more irresponsible that not one single council member – not one – asked Sellers when he might be able to come back with answers to some of these unknowns. Not all of them, mind you, although that might be nice, but at least one or two of them.

But then, what the hell do they care? They probably feel it’s not their money at risk here.

Council misinterprets Robert’s Rules of Order

The City Council last night adopted new rules for how it conducts its various meetings and in the process completely mangled Robert’s Rules of Order.

It’s really no big deal and, to be honest, I actually found it somewhat amusing and, in a way, quaint the way the council has been handling its business. For example, at a normal council agenda meeting, an item will come up on the agenda, the council will discuss it, then someone will make a motion on whether to approve or reject it. That process violates Robert’s Rules of Order’s section called "What Precedes Debate." That section states:

"Before any subject is open to debate it is necessary, first, that a motion be made by a member who has obtained the floor; second, that it be seconded (with certain exceptions); and third, that it be stated by the chair, that is, by the presiding officer. The fact that a motion has been made and seconded does not put it before the assembly, as the chair alone can do that. He must either rule it out of order, or state the question on it so that the assembly may know what is before it for consideration and action, that is, what is the immediately pending question. If several questions are pending, as a resolution and an amendment and a motion to postpone, the last one stated by the chair is the immediately pending question."

That may all sound like a load of gibberish but let me explain it using an example from last night’s agenda. Say, item 10, which was a zoning ordinance change. What the above citation from Robert’s Rules of Order means is that before any discussion could be had on the subject, someone on the council had to make a motion to approve or deny approval of the ordinance in question and then the chair has to declare that the motion has been made.

However, the way the council decided to do it is to open debate once a motion is made and approved to open debate. Like I said, that’s wrong, but it’s not serious and in its own, homegrown way, kind of cute.

Council nukes notion of open, honest government

During last night’s City Council meeting, Mayor Todd Webster was informing the council and others in attendance what transpired at a meeting held Monday to discuss the Interlocal Agreement among Kyle, Mountain City and Hayes County created, at least in part, to make sure a planned residential development had an adequate water supply. And, truth be told, Mayor Webster acquitted himself extremely well at this meeting and Kyle residents can rest assured he represented their best interests at the session. And to be even more honest, he handled himself far better than I might have hjad I been in his place. After enduring close to two hours of constant abuse from the residents of Mountain City, I would have been tempted to simply say "Hey, if you hate this deal so much, fine. I’m going to convince out City Council to rescind the offer and let you solve these issues all by yourself." Yep, Mayor Webster displayed much more patience and far better discipline than a lesser mind might have in that same situation.

However, he finally lost that patience land that discipline last night and at the most inopportune time. He was relating what was being said at this open meeting when suddenly the city attorney popped up and said they had to take this discussion into executive session.

Whaaat??? The subject being discussed was an open, public meeting. The subject of that meeting is a public document — so public the city posted it as part of its supplemental material to last night’s agenda. How in heaven’s name could anyone possibly conceive a discussion on this subject had to be held in secret, that it was not for public consumption?

I posed that exact question to Mayor Webster and he snapped back at me "Because I decided to do so." Not because it was the right thing to do, because it so obviously wasn’t. Not because it was legal, because it doesn’t come close to meeting the restrictions of the Texas Open Meetings Act. The reason was just "Because I decided to do so."

And the rest of the council meekly acquiesced to this totalitarianism. Like lambs to the slaughter.

I could attribute the mayor’s action to a delayed reaction to the events that transpired the night before. I could, but I won’t, because that would mean excusing the wrong-headed actions of any political leader simply because he or she didn’t get a good sleep the night before. He didn’t just snap at me, he snapped at everyone who lives here.

Anyone who has followed my rumblings and rants for any length of time knows that I’m a relative newcomer to Kyle and the first thing I noticed when I got here was the complete lack of involvement in municipal affairs by residents of the city and the ridiculously low voter turnout numbers in municipal elections, compared to other places I have lived and worked. Others even asked me to try to explain the citizens’ laissez faire attitude and I couldn’t.

But now I’m beginning to understand. The citizens realize the fix is in, the system is rigged, it has become corrupted. They have come to know that they are going to be excluded not only from the process of government, but from the discussion of that process. That this is a government designed only to protect and further the interests of developers at the expense of individual citizens. That this is a government that operates under the simple rule that it takes action, not because it’s in the public interest, but because the mayor, by his own admission, "decided to do so."

Tuesday, June 16, 2015

City plans to spend $3 million to buy wastewater plant

A couple of things caught my eye on tonight’s City Council agenda.

The first was the city’s intentions to shell out $3 million to purchase the wastewater treatment facility (WWTP) located in the city from Aqua Operations, effective Oct. 15. The agenda item does not mention the purchase price (you have to plow through the accompanying materials to find it). The agenda item says only "Consider and possible action regarding approval of a contract between the City of Kyle, Texas, and Aqua Operations, Inc., relating to the purchase of an existing wastewater treatment plant and related permit, equipment and other rights."

For the sake of absolute transparency, council agendas should not only contain the price of such purchases but also the funding source for said purchases. I assume the source of funds for this purchase is Water Utility Funds and I wonder if there will be any discussion this evening about whether a water rate hike will be required to pay for this.

From what I gather, the deal does not settle the lawsuits between the parties involving moneys owed or overcharges (depending on which side of the suit you're on).

According to the deal "Kyle may want to initiate planning and design of an expansion of the WWTP prior to the Closing Date." This could be especially true if Kyle assumes control of the proposed Anthem development on the western border of Mountain City. If that doesn’t happen, Anthem would have to build its own wastewater treatment plant and Mayor Todd Webster has stated quite clearly he would prefer expanding the city’s current facility rather than having a new WWTP "located upstream from us."

The other thing that caught my eye was the fact that Julieta Montes has withdrawn her request to have her property located at 503 Burleson rezoned from single family residential to neighborhood commercial. I wrote about this after the Planning and Zoning Commission voted unanimously to deny her rezoning request. Actually the item on tonight’s agenda reads "(First Reading) An ordinance amending Chapter 53 (Zoning) of the City of Kyle, Texas, for the purpose of rezoning approximately 0.534 acres of land from Single Family Residential 1 'R-1' to Neighborhood Commercial 'NC', on property located 503 N. Burleson Street (Lots 15, 16 and 17), in Hays County, Texas. (Julieta Montes, Z-15-003)." However, Ms. Montes has withdrawn her application for this rezoning so the council should take no action on the agenda item.

I reached out to both Ms. Montes and the city to find out why she had withdrawn her request. I specifically wondered whether some kind of deal had been struck that would have allowed her to operate her daycare facility without going through a zoning change. I never heard back from Ms. Montes, but the city’s Director of Community Development Howard J. Koontz told me:

"No arrangement has been made between Ms. Montes and the city, but her withdrawal is related to an expected future development agreement.

"Basically, she is not a developer and not well-versed in the development process," Koontz said "For that reason she has been a little overwhelmed by the process, and specifically the objections to her proposal as presented thus far. In light of the fact that her Public Hearing is on Tuesday night, she didn't have enough time to revise and amend her application as much as she and staff felt was necessary.

"So before her right to re-apply is suspended for 12 months, she has chosen to rescind her current application," the director continued. "Once the time constraint of the approval process has been suspended, she'll meet with us here in City Hall to discuss the potential for a development agreement to better tailor her request to the property in question. I expect she'll re-apply with a more comprehensive application sometime in later July or August would be my guess, but I have no actual knowledge of her schedule going forward."

A public "thank-you" to Koontz for his prompt and candid response.

It’s all about the buffer, ‘bout the buffer, not the water

There’s a rather large subdivision called Anthem planned for an area along RR 150 northwest of Kyle and directly west from Mountain City. It will contain homes ranging from 6,000 to 13,000 square feet. Looking at these plans makes me think Anthem will make Plum Creek seem like a dwarf. The average size of a house in Plum Creek is 2,184 square feet. Anthem is not located within the municipal limits of any city, but is in Mountain City’s extraterritorial jurisdiction (ETJ).

Originally, Anthem planned to get water from Electro Purification, which proposed to pump five million gallons of water per day from an unregulated portion of the Trinity Aquifer. Most of that five million gallons was contracted to a water reseller, Goforth Special Utility District. The city of Buda also contracted to get some of the water from the EP wells.

However, the Texas Legislature passed a bill that would expand the boundaries of the Barton Springs-Edwards Aquifer Conservation District to cover that portion of western Hays County where the EP wells are planned, thus reducing the amount of water EP could pump on a daily basis to a level where it could possibly provide only the amount contracted by the Goforth SUD.

So various entities went to work to solve the problem of how to replace that water EP was supposed to provide to Buda and Anthem. Buda proved not to be a problem, but the plan for Anthem has run into steep opposition from the residents of Mountain City.

Acting as a third-party mediator, Hays County got together with the city leaders of Kyle and Mountain City and negotiated the framework for a deal, called an Interlocal Agreement (ILA), in which, among other things, Kyle would agree to provide water and wastewater services to Anthem. However, those "other things" has the citizenry of Mountain City in an uproar.

According to the deal, Kyle would provide the water and wastewater services only if Mountain City surrendered jurisdiction to the territory where Anthem would be located to Kyle. There are other provisions. One, Hays County would provide the labor to rebuild roads in Mountain City (Mountain City would have to pay for the materials). Kyle would also provide water and wastewater services to a section of Mountain City it wants to convert into a commercial corridor. Such a corridor would provide Mountain City with sales tax revenues. However, at the present, that area is served by wells and septic tanks and thus can’t be developed commercially. In addition, Kyle would "make available water and wastewater master meters to Mountain City, billable at the out-of-city rates as defined in Kyle’s Code of Ordinances, which will allow Mountain City to develop its own water and/or wastewater utilities to service its citizenry." Kyle, of course, would make Anthem part of its ETJ (and perhaps even officially annex the area) and receive the resulting property tax revenues. (Mountain City would not receive property tax revenues from Anthem if it kept the ETJ; those moneys would go to the Municipal Utility District created for the subdivision.)

Last night I attended a meeting at the Plum Creek Golf Course building hosted by Mountain City to discuss the proposed ILA. Also present were Kyle Mayor Todd Webster; Hays County Commissioners Will Conley, whose district covers the proposed EP wells, and Mark Jones, whose district incorporates Kyle and Mountain City; and about 40 or so residents of Mountain City, which may not seem like that many but is actually the equivalent of about 1,800 Kyle residents coming to a city council meeting and we all know that’s not likely to happen in the history of this planet. The feeling I got was that all 40 of those residents were against the ILA because they did not, for one reason or another. want to give up the city’s ETJ. Some of those folks didn’t want to give up the ETJ under the terms proposed in the ILA – they felt Mountain City should be able to negotiate "a better deal" – but the most prominent reason given for this recalcitrance was they wanted to maintain the ETJ as a "buffer."

I got to thinking about that following the meeting, even consulting my trusted Webster’s II for a definition of "buffer" other than "a device used for shining or polishing." The definitions that apply are 1. "One that protects by intercepting or moderating adverse pressures or influences" and/or 2. "Something that separates the entities, as a neutral area between two conflicting powers."

I thought about that a lot and the more I thought about it, the more I kicked myself for not asking one of those citizens exactly what they wanted this buffer to protect them from. It certainly can’t be from encroaching development because Anthem is going to be developed adjacent to Mountain City regardless of whose ETJ it is located in. So what is it that these folks felt the need to have Anthem serve as a buffer for them? What did they fear?

I plan on attending Mountain City’s next City Council meeting, which is scheduled for Monday, June 22, to see if I can learn the answers to these questions. I would also like to ask those who say they want "a better deal," exactly what, in their estimation, would provide "a better deal." In fact, I was somewhat surprised no one running the meeting posed that question last night.

But, between now and then, I can let my imagine run wild. Back in the late 1950s, when I was still in my mid-teenage years, my family moved from Houston to Hamilton, Ontario, Canada. And although I was always told things were quite friendly between the United States and Canada, I quickly learned Canadians, in general, hated Americans. I searched for the answer as to why and learned that it stemmed to the post World War II era. A significant portion of Canada’s economy back then (this was before they discovered oil in the tar sands out west) depended on its sale and exporting of wheat. As part of the Marshall and other plans instituted after World War II, America gave away wheat to countries needing it. Canada had a tough time selling its wheat while America was giving it away and, as a result, its economy suffered. Canadians never forgave America for this.

That got me to thinking if there could be a similar type of grudge between Mountain City and Kyle and what the folks really wanted was a buffer that protected them from "those evil Kyle land-grabbers." There was a time when Mountain City was the most vibrant municipality in this part of Texas. It was the principle transportation hub of its day, meaning it was on the primary stagecoach line. All that changed in the 1940s when the railroad came to the area. Mountain City felt the train should run though its town and that a depot should be located there; however, state Senator Fergus Kyle used his political connections to get the tracks laid further east, completely bypassing Mountain City. That, in effect, ended Mountain City’s days as a regional center of commerce. So, I’m wondering, is Mountain City still bitter about that all these years later? I don’t know, but I hope to find out next week.

I did have the opportunity to ask Mayor Pro Tem Diane Hervol, who also attended last night’s meeting, what she thought about it all.

"There’s a lot to be determined," she said. "I think we’re farther apart and perhaps some more negotiations, more discussion is needed between the two cities."

She said she was optimistic some kind of an agreement will be worked out and she was "hopeful" it would involve the ETJ coming under Kyle’s control. "I just need to understand what the terms for those cities will be."

Incidentally, there’s a standing item on tonight’s Kyle City Council agenda to "Consider and take possible action to amend, extend or rescind the ILA with Mountain City and Hays County."

Michael Rubsam, chairman of Kyle’s Planning and Zoning Commission, also attended the meeting and said afterwards "I think the Interlocal Agreement can be in the best interests of the people of Mountain City once they work out the details. I believe there’s quite a few people in there that don’t understand about the MUD." He said he was disappointed that those points weren’t clarified for the Mountain City residents who attended the meeting.

Friday, June 12, 2015

So long, farewell, auch wiedersehen, goodbye

Wednesday’s specially called city council meeting to canvass the results of the May 30 runoff election and discuss a few other matters that council member Samantha Bellows placed on the agenda was the last meeting for Bellows and her colleague Tammy Swaton. Bellows chose not to run for re-election and Swaton’s re-election bid was unsuccessful. Both had the opportunity to say some final words at the close of the meeting.

"It’s been interesting serving with all of you and I say "interesting" in a good way," Bellows told her council colleagues. "We can’t always see eye to eye. That’s not why we’re here. We should not constantly vote as a massive bloc. We should challenge each other and support each other and argue and debate and all those other funs things that go along with it. I have thoroughly enjoyed debating and discussing and finding the best paths for Kyle.

"I thought about people I should thank and the list went on way too long and I know you all don’t want to sit through that. So this is more or less a blanket ‘thank you.’ There are people in the community who have supported me since day one and people that have come around to seeing me as a good representative and people who have come around to the idea that I was a horrible representative. But either way I want to thank you all for engaging me, for talking to me, for challenging me.

"This was the most humbling experience I’ve ever had in my life. Specifically when I was mayor pro tem and something would go wrong and I would suddenly be forced into this spotlight of ‘You have to make a decision with us.’ And I’m like ‘Excuse me?’ So it was the scariest thing to realize that we make decisions that affect 30,000 people on a regular basis. And I want you to know how much I appreciate it even if you disagreed with me even if you hated me, even if you loved me.

"I want you to know that I appreciate every single interaction I had with every single citizen and I hope you can continue to interact with the council members because we are begging for information. Get involved. Be pro-active and talk to your representatives. We want to know. And I want to thank you in advance for doing that.

"I also wanted to thank staff because I know you had to put up with so much from me. And every single question I ever had and every single meeting I had to have right now because I have a lunch break in five minutes and it can fit into my schedule and can you rearrange your entire lives for me. And I want you to know that I did recognize that and I do appreciate it."

Bellows specifically singled out City Secretary Amelia Sanchez.

"Amelia, I’m sorry and I do love you and you’re fabulous and you have put up with so much from me and I love you and you’re fabulous and stay that way.

"So again thank you, council," she concluded. "It was amazing and I really hope the newest council members give you as hard a time as I did."

In her farewell remarks, Swaton said she intended to stay involved in city affairs and she indicated he would be specifically interested in activities that encourage increased citizen participation in the municipal government process.

"Community means everything to me and that’s the reason I got into this," she said. "I came from a strong community before I moved to Kyle and that was one of the first things I said to another member of council when I first moved here in 2004 is how important community is to me. I think everyone needs to give back to the community and when I was out campaigning, talking to people, that was huge and it just showed me how much I want to be involved still and I plan on doing so.

"Our citizens are great," she said. "They are wonderful to talk to. They have great ideas. My hope is to get them more involved with things.

"As for staff, I am a staff member at the University of Texas so ‘Go staff!’ I’m all for that. So I appreciate all your help, everything you’ve done, very much so.

"As for the council, everyone has been great," she concluded. "It’s been wonderful working with you all. Not that I agreed with you all the time, but it’s been great. Thank you"

Bellows’ ‘last stand’: Charge for using cop cars

I have found two things that are generally true when it comes to municipal police officers. They jump at the opportunity to take off-duty jobs, especially if it involves security work, and they rarely live in the same municipality in which they are employed. And I have no problem with either of these situations.

I used to wonder about police residency requirements until I sat down and had a number of conversations with officers and now I completely understand why they chose to live where they do. And I have no reservations about them taking off-duty jobs. I do have a problem, however, if they use their marked vehicles on those jobs and their part-time employer is not reimbursing the city for the gasoline that’s used and the general wear-and-tear on the vehicle caused by taking that car off to, say, block an exit on I-35 or some such. No reimbursing is tantamount to stealing taxpayers money.

I didn’t know the city did not charge for the use of these vehicles until it was brought to my attention by a concerned citizen during a recent visit to a resident’s home. After I was told about this, I double-checked with city spokesperson Jerry Hendrix who sent me a copy of a Kyle Police Department General Order issued Feb. 1, 2013 concerning the department’s "take home vehicle program." The last item of that order says "The vehicle may be used to travel to and from an off duty assignment that is within the police department’s jurisdiction. Approval for an assignment outside the jurisdiction may be made on a case by case basis by the Chief of Police or his designee. If an officer is summoned on duty they must leave the secondary employment and travel straight to the police department in their take home vehicle."

That’s it. Nothing about reimbursing the taxpayers for the vehicle and Wednesday night, in her last meeting as a member of the Kyle City Council, Samantha Bellows felt the need to bring this to the attention of her fellow council members.

Police Chief Jeff Barnett told the council the department surveyed 13 other Central Texas jurisdictions and learned five did not charge and eight did. He told the council there are two distinct ways cars may be used by officers employed in off-duty security-type situations.

"One is the non-active use versus the active use of a police vehicle," the chief explained. "Sometimes people ask the police to bring a vehicle and merely park it at the front gate or park it near the front door of the business and the presence of the vehicle is a deterrent to criminal activity and the motor is not running and the lights are not in use. It really just drove from the police station to the location and then back to the station.

"Alternatively there is the active use of a police vehicle. And that means when the motor is running and/or when the lights are turned on and we are actually using the equipment throughout the security event.

"The non-active use locations might be a venue that’s going to host a concert or something and the activity is really on the inside. The police vehicle is there merely as a presence. The active use more closely relates to the Interstate 35 construction zones where our officers are helping to block Interstate 35. They bring out and lower the big cross beams across the interstate and we have to shut the interstate entirely down. We reroute traffic. And at other times on the service roads, on both access roads we may have to close a bridge at one end or the other while they’re doing their work. Generally those cars are active in use with the motor running and lights flashing and what-not."

He said only two of the eight entities he surveyed that charged for the use of police vehicles charged for "non-active" uses: Hayes County charged a flat fee of $15 "for the mere presence of a vehicle regardless of whether it’s there for one hour or 12 hours." Rollingwood charged $20.

"Several of the others charged an hourly rate if that vehicle is running and the lights are flashing and maybe you’re using fuel," Barnett told the council. "The prices range anywhere from $10 to $20 per hour and that’s charged to that customer and is paid directly tp the governmental entity. So it is paid directly to the city of Kyle and not the police officer."

That is, of course, if Kyle charged for this service which Barnett admitted the city currently doesn’t. He did say however he is including some mention of this in a fee schedule he is proposing as part of the department’s budget request to the city manager.

Mayor Todd Webster thanked council member Bellows for bringing the matter to the attention of the council, but said there wasn’t much that could be done about it until it came time to debate the city manager’s proposed budget.

""This is more that this is my last stand," Bellows responded. "I figured I should state it now instead of when budget comes around. So I want to put it on the radar now and say ‘Hey, we are missing out on this. We’re losing money because of it.’"

Thursday, June 11, 2015

Council votes to waste time explaining its DDD policy to those it won’t affect

The City Council voted last night to direct staff to schedule an open house to explain its Developer Development District (DDD) policy to what could be an empty room since those who will be affected by the policy do not even live here yet.

Now the city calls it a PID policy, but that’s not what it is. The "I" in PID stands for "improvement" and as council member David Wilson made abundantly clear last night this policy has absolutely nothing to do with improvement and everything to do with development. He also reinforced my opinion that city residents really believe the only function of this city government in general and specifically this policy is to screw the average citizen. Read for yourself what Wilson had to say:

"You have people saying ‘Oh my goodness you are going to put a PID on my neighborhood.’ (There’s that screw-the-citizen sentiment). "Every time that’s come up I felt the need to communicate clearly that’s not what we’re talking about. We’re talking about new development in the future."

See, I’m not saying it. A member of the city council is saying this has absolutely nothing to do with "improvement" and everything to do with new development. It's not about screwing the citizens who are already here, but screwing the citizens moving here and buying homes in the future. And since it’s all about new development, there is no "public" that’s going to be involved in the decision making process so, to be accurate, you have to remove the word "public" from the description of the policy. This is strictly going to be a deal between the city and developers — with all the details of the deal to be worked out between the city and the developers, not the public — to force future occupants of the development to pay additional fees on top of their mortgage payments, property taxes and possible homeowners dues for infrastructure residents who moved here earlier never had to pay. That’s why the proper name for this policy is Developer Development District and not a Public Improvement District, in which the public of a particular district initiates on its own a plan to improve the district where they already live, work and/or play.

And since there is no "public" to be affected, who does the city expect will want to attend this open house? Now I’m sure Ms. Bellows meant well, but no one is thinking all this through to its logical conclusions.

But there is one other thing council member Wilson said that I hope someone reminds him of very soon. He said "I don’t want this to be an issue that people are afraid they are not going to be able to live in a community because they have a flat income stream and maybe are afraid that this is going to be added on top of them. I just want to assure people that is not the case."

I absolutely agree with him on that and now is the time to see if councilman Wilson is truly a man who not only believes what he says but has the courage to back up what he says with actions. If he does want to display that type of leadership he will have absolutely no qualms about introducing an amendment to the city’s proposed policy that would exempt all homeowners over the age of 65 from any and all assessments that may come from this policy.

I sincerely hope councilman Wilson stands behind his words and introduces that amendment. In a mess of wrong things being done, it is the one right thing to do.

Incidentally, he won't have the opportunity to introduce this amendment until July 7 because the council pushed back the first reading of its DDD policy, originally scheduled for next Tuesday, until its first meeting in July to give the staff the opportunity to stage its open (probably empty) house on the subject.

P&Z: To hell with tomorrow, let’s only think about today

Julieta Montes wants to establish a day care center in the house pictured here where she can, among other things, teach Spanish to children between the ages of 2 and 5. The home and a smaller mother-in-law-type structure in back of the main house sits on a half-acre of property at 503 Burleson between West Schlemmer and North streets. To realize her dream, which she says will allow her to spend more time at home with her toddler daughter, she apparently needs to have her property rezoned from Single Family Residential to Neighborhood Commercial.

So, after two citizens spoke at the Public Hearing against the idea, Ms. Montes appeared before six of the seven members (Irene Melendez was a no-show) of the Kyle Panning and Zoning Commission Tuesday to plead her case. Her idea was met … generally … favorably by the commissioners. They actually liked it … up to a point, that point being that sometime in the future some dastardly person would swoop in and turn her day care center into this, or even worse, this.

"I am a school teacher and I want to spend more time with my daughter, so I would like to provide Spanish lessons for kids," Ms. Montes told the commissioners. "But I would like to offer a safe environment for them so I think the best thing to do is comply with commercial requirements so that the kids have all the doors, the extinguishers and all the things that they need to be safe. I do not think this will highly impact the traffic. I do not ever intend to put a restaurant there. I just would like to have a small business that will allow me to spend more time with my daughter."

"Are you suggesting you wouldn’t be able to teach classes in your home?" commission chair Michael Rubsam asked.

"No," Ms. Montes replied. "What I’m suggesting is that I do not intend to have such a thing as a restaurant or something like that. I just intend to teach Spanish classes to kids. But I think if I have all the requirements of a commercial property it will be safer for the kids that I have on my property. I’m not planning on tearing down the current building. I’m just trying to bring it up to code to make it safe for kids to be there. I do not believe the current building has a big capacity. Not many kids would be able to be there. But I’m planning on keeping the current building as much as possible."

Commissioner Mike Wilson asked her if she planned to remodel the house.

"Just whatever is necessary to make it safer, like more doors and wider entrances but not completely rebuilding it," she said.

Wilson then wondered whether she had asked the city if she could do teach her classes without having the property rezoned.

"I did,:": she said "but I was told it needed to be rezoned to Neighborhood Commercial."

Commissioner Dan Ryan wondered how many students she anticipated at any one time.

"I do not anticipate there would be many," Ms. Montes said. "The city has its own rules about that and also the state. They require about 30 square feet for each kid, but that’s only in places where there’s no furniture, no restrooms, no kitchen. So the space that is allotted for kids is really not that much. So I’m not anticipating it would be over probably 20 something. I’m intending to leave the house looking like a home as much as possible. I’m just trying to make the place safer for kids and I don’t think this would make a lot of traffic because people don’t have to come and go all the time. They drop their kids off and then they leave."

Commissioner Michele Christie, who I guess drowsed through that exchange, then asked Ms. Montes "Ballpark figure, off the top of your head, how many students do you think you’ll have coming to you and is this going to be just for Spanish classes where students would come, say, after school or do you plan on running a full school curriculum or are you just going to teach Spanish?"

"I would like to do similar to school hours, 8 to 3, something like that," Ms. Montes said. "It would be Spanish immersion only for kids."

"What age ranges would you have?" Ms. Christie asked.

"2 to 5," Ms. Montes answered.

Christie: "How many?"

Montes: "Like I said, that’s up to the city and the state but I estimate about 28. I don’t think I’ll have the capacity for even 30.":

Christie: "Is this your home?"

Montes: "Right now it’s my home, but I cannot live there and provide the service at the same time, And if I do there are many security issues with the building as it is right now."

Christie: "So you would convert it to a school?"

Montes: "Yes. But just doing the minimum things necessary to make it safer. And, like I said, I would really like to keep it home-looking."

Moments later Rubsam told the other commissioners "This is a rezoning so you can’t control what goes there in the future. So it’s not appropriate to just look at this as a possibility for a school. There is a possible long list of things that could go at this location."

"My problem is that it doesn’t conform to what we have right there," Ryan echoed.

Rubsam, of course, agreed: "It doesn’t seem to lend itself well to what’s in the area. I don’t really consider this to be a compelling argument for rezoning a residential neighborhood."

"It doesn’t meet the qualifications for commercial and looking at what could be there gives me pause," Ms. Christie said. "I don’t see Neighborhood Commercial on that corner."

But Wilson countered "I think the use she wants is Neighborhood Commercial. It is a child care center. She wants to have younger-than-school-age children at a day care for Spanish immersion. So I think what she wants to do matches the zoning she’s asking for. But my thought is I’m less concerned with what she currently wants to do but what could be done in the future if she starts the day care and is unable to sustain it and then sells the property. Then it could become who knows what. I love the idea of having a day care option. I just don’t think day care in that location is the most viable kind."

Around then, another citizen wanted to speak in favor of the project and instead of extending him the courtesy of reopening the public hearing as just about any deliberative body I’ve ever encountered would do in such a situation, Rubsam asked community development director Howard Koontz to take the fellow outside and find out what his issues were. Turns out, his issues were the same as mine, but I’ll get to those in a minute. Interestingly, a few minutes later the commissioner had absolutely no problem letting another person from the audience get up and make a comment. Your guess to this inconsistency is as good as mine.

"I am not in favor of a rezoning but I would like to see if she could get a special use permit," Ryan finally said,

"But this is a zoning issue," Rubsam countered.

"OK," Ryan said, "if it’s a zoning issue then we’re going to have to turn down the zoning."

"We spoke to the former director of planning and she told us a special use permit was not possible for this kind of situation," Ms. Montes told the commissioners. "She told me rezoning was the only option which is why we initiated this process."

With that, commissioner Timothy Kay moved to deny her request, Ryan seconded and the commissioners voted unanimously against Ms. Montes.

Earlier in the process, during the public hearing, Mark Jones, speaking against the rezoning request, told the commissioners the area in question "has always been residential. We don’t see any reason for it to change,. It’s been residential longer than I’ve been alive."

And that’s true, but here’s the problem with that argument and with the commissioners denial of Ms. Montes’s request. Burleson Road is about to undergo one big honking’ change. Not only is it going to be widened, it’s eventually going to connect with Marketplace there at the Kohl’s/Target/H-E-B shopping compound., Burleson is already a fairly well traveled road when compared to most of the streets in Kyle, but when this particular road bond project is complete, Burleson is going to go through a complete transformation. And as much as Jones, the P&Z commissioners and others may want to object, it is soon going to be lined with restaurants and convenience stores and perhaps even a bank, a fitness center and a barber/beauty center. And wouldn’t it be absolutely, positively wonderful if someone wanted to locate an art gallery along Burleson? Burleson is about to become a commercial corridor and all the commissioners are doing right now is sticking their collective fingers in the dike. It’s just a shame that Ms. Montes’ dream of doing something productive for the community while at the same time giving her the opportunity to spend more time with her daughter has to be sacrificed when there are these changes that are definitely on the horizon.

Kyle: We just give you the lines, whether you ever have water is not our problem

Back on May 26 I wrote about the Planning and Zoning Commission’s consideration of the final plat for two planned subdivisions, the Meadows of Kyle phases five and six, a total of 90 single family lots on more than 22 acres on Windy Hill Road in northeast Kyle. The city was going to supply a lot of the infrastructure for the area, of course, but the subdivision had contracted with Goforth Water Supply to provide its water. Trouble is Goforth Water Supply is one of three entities that is seeking to obtain water from wells that a Houston company planned to drill near Wimberley until the Texas Legislature moved to quash those plans. (The well-killing bill passed by the legislature is awaiting the signature of Gov. Greg Abbott, but I have learned from capitol observers that he will likely allow it to become law without his signature.)

So the question was raised at its last meeting as to whether Planning and Zoning commissioners should approve the final plat of a subdivision that may have some concerns about getting any water. Turns out, that’s none of Kyle’s business. As Community Development Director Howard Koontz told commissioners Tuesday:

"These items were tabled until this evening so we could do a little bit more research on community development and City of Kyle procedure on approval of these plats. The question specifically was ‘Do we examine projects for adequate public facilities if the city is not the provider of the infrastructure or some of the utilities.’ I spoke with the city engineer, I spoke with the public works director and the answer to that is ‘no’. We do not check to find out whether or not the utilities themselves are adequate. We look from the standpoint of residential code or commercial code, depending on the type of project that it is, and make sure that the infrastructure is installed properly. So you make sure they have the correct size water lines or the correct size gas line and that there’s back flows and meters and whatnot. But as far as the idea of them receiving the actual commodity through that infrastructure at this point is a civil agreement with whoever the utility provider is."

With that, the commissioners unanimously approved the final plat.

Friday, June 5, 2015

The city needs to provide more information on zoning changes

Perhaps the Planning and Zoning Commission receives more information than those of us the city may intentionally want to keep in the dark. As everyone knows all too well, a little bit of information can be terribly dangerous and there’s some governments that want to be as transparent as Saran Wrap and others, like Kyle, that try to be more like Reynolds Wax Paper.

The reason I mention this is that there are two applicants coming before the Planning & Zoning Commission Tuesday, hoping to persuade the commissioners to change the zoning on two, admittedly relatively small, parcels of land. In the first case, a Julieta Montes wants to get about a half acre of land located on the northwest corner of Burleson and North Street or the southwest corner of Burleson and Schlemmer Street, depending on your point of view, changed from single family zoning to neighborhood commercial. In the second, a Larry Hufford Jr., desires to get 2.6 acres of land on Goforth Road near Dacy changed from agricultural to construction manufacturing.

Both of the changes seem to me, at least, somewhat significant.

In the accompanying materials we humble citizens are permitted to see, there’s included a form called "Application & Check List – Zoning Change." The applicant has to complete this form and it includes a list of "required items for submittal package" and the applicant is supposed to check each one off to make sure his/her package is complete. One of the items to be checked and, obviously, must be included in the submittal package is an item called a "Letter explaining the reason for the request."

It sure would be nice to see this letter, but the city doesn’t include that in the materials it provides us. Maybe P&Z gets to see the letter. But I think the public should be able to see it as well. That way were not sitting around the campfire thinking of all the possible nefarious reasons the applicants might have to request the zoning change. We can actually see THE nefarious reason.

Why, you may be asking, should the city go to all this trouble just to satiate what some might consider my personal curiosity? It’s because each of these proposed zoning changes is accompanied on P&Z’s agenda by a Public Hearing and you’re going to have a far more knowledgeable public to speak at that hearing if they could see for themselves why the applicants want to change the zoning. Duh!

Of course, the truth may be the city is possibly purposely trying to keep citizens uninformed about what’s going on around them. Naw, the city wouldn’t do that. Would they?

Bunton Creek Road temporary fix work begins Monday

Kyle’s Street Department crews are set to begin temporary repairs to Bunton Creek Road Monday. This is not the total makeover that’s part of the 2013 bond program. This project consists of the repair of several areas in the road that present what the city believes are the biggest problems for motorists — west of Dacy Lane and prior to Fire Station #2.

The repairs are scheduled to take approximately three weeks to complete. Motorists are also advised to expect traffic delays during this time and to be alert to the presence of construction workers while the repairs are being completed.

The complete reconstruction of Bunton Creek Road as approved by voters as part of the $36 million road bond is scheduled to begin as early as October, city officials maintain, and will include the addition of a two way left turn lane, the placement of a three-way stop at Goforth and Dacy Lane, and improved drainage.

More information on all the 2013 Road Bond Projects is available at

Wednesday, June 3, 2015

That damn $1,000-a-month-assessment scenario

I’ve been spending the last hour or so trying to get to sleep. You see I have to drive to Austin early in the morning to spend the day with my granddaughter. Not that I don’t want to drive to Austin early in the morning to spend the day with my granddaughter. Truth be told, I’m really looking forward to doing just that. I just wish I could get to sleep so I’ll have a more alert day with my granddaughter.

What’s keeping me awake is visions of a lawyer. Not any lawyer, mind you, but that scoundrel Steven C. Metcalfe and specifically these words he spoke before the Kyle City Council last night:

"Once a homeowner has bought his house and that homestead is in place, the assessment is set. It never changes. If it’s $1,000 per month, it’s going to be $1,000 a month going forward."

Let that sink in and roll around your cranium a little bit. Then consider this: Suppose some homeowner-gouging developer comes in wishing to plunk a 200-home subdivision somewhere in Kyle and gets a Kyle-type PID for the subdivision. And let’s say its one of those Metcalfe-type $1,000-a-month-assessment boondoggles. Figure it up, 200 homes, $1,000 a month, over the 30-year-life of the PID.

That’s $72 million into the pockets of the developer. That’s right $72 million, minus the interest on the bonds. There is no one on this climate-changing planet that can tell me that’s a fair deal. It’s not. Certainly, it’s a lucrative deal for the developer, but fair it isn’t. No way. No how.

For the sake of the argument, let’s just say it’s half that. It’s still a $36 million windfall for the developer. You really think he’s going to put in $36 million worth of additional "improvements" into this subdivision? Give me a break.

Just something to keep me awake at night.

One depressing city council meeting

It’s really saddening to see just how shamelessly the Kyle City Council acted and reacted tonight when it came to discussing its proposed policy on Public Improvement Districts in the city. I don’t know which is the more depressing thought – that our council is nothing more than pawns to be moved around a chess board at the whim of developers or that they just sat there and allowed an attorney to lie to their faces without a single person on that council challenging his blatant falsehoods.

Here’s the bottom line: Following a public comment session in which the only persons who spoke in favor of the city’s proposed PID policy were a pair of developers and a bond attorney, all of whom stand to make a lot of money off this policy at the expense of Kyle homeowners, the council approved the policy 6-1 (Mayor Pro Tem Diane Hervol cast the one sane vote).

Now, to be fair, I can see the council’s point of view here. They’re up on that dias thinking "Why should I care about those homeowners? They never come to any of our council meetings and object to how we’re sticking it to them. They don’t even take the time to vote. These poor sheep need people like us to tell them how fortunate they are to fall victim to robber barons. In fact, they’re lucky to have us. Without us they’d be wasting their money on frivolities, like their children’s education, family vacations and the like."

But it gets worse. It was revealed during the course of the public comments that the city enlisted these fat-cat money-gouging developers to help draft the propose policy. That’s like asking a pedophile to help write your child protection ordinances. The fix was in from the get-go.

I got the business cards from the three individuals who spoke in favor of the policy just to prove I’m not making any of this up. The three were Adam Moore, planning and development manager for Walton Development and Management; Tony Spano, project manager for Plum Creek Development Partners, Ltd. (who spilled the beans about being one of the developers who helped draft the proposal); and Steven C. Metcalfe, an attorney (and possibly a partner) with Metcalfe Wolff Stuart & Williams, LLP, who proved once again that there is truth in the adage: "How do you know when a lawyer is lying? His lips are moving."

This man had the unmitigated gall to stand before the council and say "Let me point out something related to an earlier statement that PIDs made more sense to fund improvements in an existing neighborhood. Well, I tell ya, practically that doesn’t make sense because I don’t know of one that’s ever been done that way ... technically, it’s not even possible." Hate to tell you, Metcalfe, but not only are they done that way, not only is it possible, as anyone can see from reading this presentation to the Dallas City Council, that’s the ONLY way PIDs are allowed in the City of Dallas. And to stand there and tell the council otherwise is unpardonable. But, then, I guess you have to expect that from someone who is going to rake in some pretty nice billable hours as well as hefty commissions from gouging Kyle homeowners.

But this is the same guy who told the council: "Once a homeowner has bought his house and that homestead is in place, the assessment is set. It never changes. If it’s $1,000 per month, it’s going to be $1,000 a month going forward."

$1,000 a month??? What planet did this guy drop in from? That’s possibly a sum greater than the actual monthly mortgage payment for most Kyle homeowners. And he just throws that sum out there like "Why, every homeowner should just be tickled pink to buy a home in a subdivision where he or she has to pay an extra $1,000 a month for something they probably didn’t want and have no intention of ever using."

But I’m not sure the council members were even listening at that point. It’s obvious they have been purchased by and must react to the demands of the development community. Those are the folks with the money and we all know that money, not principles, is what drives politics these days.

I also learned why the new proposed ordinances governing boards, commissions and committees require committee members to be registered voters, but do not have that requirement for members of boards and commissions. I first posed the question to Mayor Todd Webster who just decided the best way to handle the inquiry was to ignore it. Not a good response for a mayor. So I asked the city attorney, thinking he might have actually drafted the ordinance. Foolish me. So then I asked City Manager Scott Sellers and it turns out the reason is there are certain individuals who are currently serving as members of city boards and commissions who are not registered voters and the city didn’t want to throw them off those boards/commissions by requiring them to do their civic duty. So there’s that.

Tuesday, June 2, 2015

Council set to officially change its commissions/boards/committee policy

As promised, the city is preparing to completely revamp its board/commission/committee policy through a series of ordinances that will have their first readings at tonight’s city council meeting. And they are going to do it without soliciting public input on the matter, at least not public input specific to these particular ordinances.

In brief, the ordinances will accomplish the following:

  • Abolish the Strategic Planning and Finance Committee; the Community Relations Committee; the Public Works and Service Committee; the Mobility Committee; the Parks and Recreation Committee; the Safety and Emergency Services Committee; the Economic Development and Tourism Committee; the Long Range Planning Committee; the Council Advisory Committee; and the Development Services Committee.
  • Permit the city to establish boards that may or may not assume the functions of the abolished committees. Members of these boards will be appointed by individual council members, but must be approved by a majority of council members. A board member serves a two-year term and cannot serve more than two terms. A prospective board member must have lived in the city for at least a year and not owe any money to the city.
  • Create an Economic Development and Tourism Board.
  • Create a Parks and Recreation Board. This board will be responsible for providing "advisory oversight of public playgrounds, athletic fields, recreation centers and other facilities and activities on property owned or controlled by the city and designated as a public park, or on other properties with the consent of the owners and authorities thereof. It shall have the responsibility to recommend any form of recreation activity that will employ the leisure time of the people in a constructive and wholesome manner."
  • Allow the council to establish ad hoc committees as needed. These committees will be narrowly focused, have a specific assignment and have a life span of one year or until their assignment is completed. A committee member must be a "qualified voter of the city." I have absolutely no idea why a member of an ad-hoc committee must be a qualified voter and a member of a board does not.
  • Redefines the Board of Adjustments to mean "a board appointed by the council to consider appeals from certain administrative actions pursuant to V.T.C.A., Local Government Code § 211.008, and that is given the authority set forth in this chapter and in V.T.C.A., Local Government Code § 211.009."
Not to worry, policy wonks will understand that last bullet point.

WARNING: If you have anything you want to tell the council about these proposed actions, don’t wait until the item comes up on the agenda because it will be too late. The council did not include a public hearing as part of this proposed ordinance change. So if you want to voice your opinion one way or the other, you’re going to have to speak up at the beginning of the council session, during the open Public Comment period.

Monday, June 1, 2015

City’s flawed proposed PID policy desperately needs additional safeguards for homeowners

The Kyle City Council is preparing to discuss a hand-over-the-keys-to-the-treasury-to-developers-and-screw-the-homeowners PID policy. You can check it out for yourselves. Go to Page 147 of Tuesday’s city council agenda and read it for yourself.

Now perhaps council members will try to say my description of this policy is incorrect. And I’m willing to give them the benefit of the doubt. Perhaps I am wrong. But I’m going to place the burden of proof on them to show me I’m wrong. There are a couple of very easy steps the council can take to show me the error of my ways.

First and foremost, postpone the discussion of this policy until such time as the two newly elected council members, Damon Fogley and Daphne Tenorio, assume their respective positions. Right now the council consists of two lame duck members whom voters can’t hold responsible for their actions. That is not transparent government. In fact, is undemocratic. Citizens must retain the right to hold those they elect responsible for actions those elected officials take that affect them, especially affect them monetarily. So just put off discussing this until the new members are seated.

Second the PID policy must include language similar, if not identical, to this:

"The City of Kyle will allow the use of Public Improvement Districts for single-family districts (defined as areas with a minimum of 30 percent of land area dedicated to detached single-family housing) in established areas (defined as at least 80 percent of all single-family lots being developed) for the purpose of funding screening wall improvements, park improvements and maintenance, landscaping, other public improvement and additional security if less than 50 percent of the total PID budget. The PID Policy will NOT support the creation of PID Districts in undeveloped subdivisions."

If council members are indeed interested in protecting the rights of homeowners, they should have no qualms about inserting the above language into its PID policy. If they refuse, you know the council is siding with developers at the expense of homeowners. What the council intends to do is not to grant PIDs to neighborhoods, as it should, but to developers who will use the money as they see fit and than assess the homeowners who purchase individual parcels of land within the PID after the fact. That, dear friends, is a textbook example of taxation without representation and rumor has it revolutions have erupted over such tyrannical actions.

PID stands for "Public Improvement District." It’s a mechanism used to improve an area, not to develop it. The city can use much fairer methods, such as tax increment financing, for development purposes.

The third item under the General category in Kyle’s proposed policy says: "PID petition signatures should reflect that a reasonable attempt was made to obtain the full support of the PID by the majority of the property owners located within the proposed PID."

That’s simply not strong enough. If you are going to force the property owners of a neighborhood to pay an assessment to finance improvements to their neighborhood, you need the buy-in of more than "a reasonable attempt" at securing majority approval. If the council really wants to protect property owners it will substitute that third item with this language:

"In new or renewing Single-Family PIDs, the City will require that Owners representing at least 66.7 percent of the value and 66.7 percent of all record Owners or 66.7 percent of land area support the creation of a new PID.

"In new and renewing commercial or mixed use district PIDs, the City will require that Owners representing at least 60 percent of the value and 60 percent of all record Owners or 60 percent of land area support the creation of a new or renewing PID."

Under the section labeled "Financing Criteria," the following language should be inserted:

"PID assessments will be based on a set rate based on total property value. The maximum PID assessment in Kyle shall be $0.15 per $100 valuation."

"Administrative expenses in these districts shall not exceed 10 percent of the total budget in any year."

Under the section labeled "Project Criteria," the following language should be inserted:

"A PID application for creating or renewing a PID shall include a section that clearly identifies the benefit of the PID to the affected property owners and to the city as a whole and also evidence of insurance."

"Any management firm for a PID shall be required to submit quarterly reports of all activities and expenditures; an annual independent audit of all PID expenditures; and shall hold an annual meeting open to all property owners and held in a public meeting space with written notice to all property owners in the PID at least two weeks prior to this meeting to provide an opportunity for property owner questions, comments and input to be considered during the PID Budget and Service Plan approval process."

With these safeguards in place, property owners will be protected and PIDs can be used as they were intended.

And if these "clarifications" are included in Kyle’s PID policy I will issue a formal apology to council members for calling them evil devils beholden only to developers at the expense of property owners.