Some 13 years ago, in 2003, Kyle adopted zoning ordinances that established minimum standards for the construction of single family homes in the city. Those standards included (1) the homes had to be a minimum of 1,600 square feet, (2) lot sizes had to be greater than 8,190 square feet, (3) garages could be no smaller than 480 square feet and (4) 100 percent of the exterior of every home had to be constructed of some form of masonry.
On Nov. 22, 2005, the national NAACP, the Texas State Conference of the NAACP, the Austin branch of the NAACP, the National Association of Homebuilders and Homebuilders Association of Greater Austin joined together to file a housing discrimination lawsuit against the city in federal district court claiming the revised zoning ordinance violated the Federal Fair Housing Act aimed at prohibiting discrimination in housing. U.S. District Judge Lee Yeakel heard the case in February 2008 and handed down his ruling in favor of the city on March 30, 2009. Judge Yeakel stated in his decision that "the Austin HBA and NAACP failed to conduct a proper statistical analysis" to support their claim that the city was trying to price minorities out of the housing market in Kyle. While the FHA prohibits municipalities from using their zoning powers in a discriminatory manner, Judge Yeakel ruled, "a dollar impact on home construction costs alone" does not establish a prima facie case of discriminatory effect.
Then City Manager Tom Mattis called Judge Yeakel’s decision "a clear and decisive victory, not only for the City of Kyle, but for all cities everywhere. We believe that is was a thinly veiled attempt by the Home Builders Association to thwart a city’s right to decide how to best plan and direct growth." Mike Gonzalez, Kyle’s mayor at the time, said "Had the HBA prevailed in this suit, every city would have been in jeopardy of losing their ability to make decisions on how to best plan and direct growth based on the special needs and circumstances of the city."
On April 29, 2009, the NAACP, the NAHB and the HBA of Greater Austin appealed Judge Yeakel’s ruling to the Fifth Circuit Court of Appeals.
The city argued before the appellate judges it had a legitimate, non-discriminatory purpose in enacting the ordinances, and that plaintiffs failed to show that a less discriminatory alternative would equally serve that purpose. According to documents filed with the Fifth Circuit supporting the city’s position, "Congress enacted the FHA to prevent discrimination in housing practices and policies, not to prevent cities from exercising legitimate legislative judgments through zoning and building regulation. Plaintiffs’ arguments could undermine their governmental authority, placing them in a position of serious uncertainty. To hold that Plaintiffs’ possibilities-and-contingencies statistics carried their prima facie burden could require cities to anticipate, predict, and quantify the unpredictable and unquantifiable. Cities would first need to determine whether a municipal action might have an economically discriminatory impact and consider every variable that may affect such potential discriminatory impact into the future. This would place cities at the mercy of every group that has a vision of growth, development, or developmental controls different from the cities’ lawful and legitimate regulations."
On Nov, 11, 2011, almost six years to the day from when the original lawsuit was filed, a three-judge panel of the Fifth Circuit ruled the plaintiffs did not have standing to file its lawsuit, ruling "there is no evidence in the record showing that a specific member of the NAACP has been unable to purchase a residence in Kyle as a result of the revised ordinances that went into effect in 2003. There is also no evidence showing when and how the revised ordinances may deprive a NAACP member of the opportunity to acquire a new residence in Kyle. Instead, Plaintiffs have pointed only to evidence suggesting, in the abstract, that some minority members may be less able to afford such residences due to the revised ordinances. This is insufficient for associational standing because the alleged injury is neither concrete nor imminent."
That ruling should have ended the discussion. However, and (to give them the benefit of the doubt) perhaps unwittingly, Planning Director Howard Koontz and the Planning & Zoning Commission not only re-opened that nasty, festering wound at its workshop last night, but actually considered the notion that perhaps the plaintiffs in this suit were correct, that these ordinances should never have been passed and perhaps now is the time to change them. In effect, Koontz and the commissioners are taking a position in opposition to one the city spent time, energy and a whole lot of money defending. Whether it’s the ethically correct thing to do, I’ll leave to the philosophers. I do know it’s certainly not the politically correct thing to do and I do not believe relaxing the building code is in the best interests of this city’s future. I began this blog with one thought in mind: I want Kyle, the city I have to chosen to call my home for the rest of my life, to be the best city it can be and in order to be the best, it must impose and enforce certain standards. Over a decade ago, municipal leaders decided what those minimum standards for single family residences should be and then were forced to fight a lengthy court battle which resulted in the city’s right to set those standards. But now Koontz and the P&Z commissioners are saying, in effect, "Naw, let’s forget about those standards, Let’s admit we were wrong in going to the barricades to defend our right to set those standards and let’s change those standards to accommodate every type of home possible in Kyle." I am convinced this type of thinking on the part of Koontz and the commissioners borders on suicidal. I predict it will get, at best, an icy reception from those further on up the chain of command, if for no other reason, simply because of the battle history I just described above.
‘Costs are really on the rise and it is driving out affordability," John Zinsmeyer, vice president of planning and development for KB Home’s Austin division, told the Planning & Zoning Commissioners last night. KB Home is currently concentrating in the Brooks Crossing subdivision. "When I started 20 years ago here, we were selling houses for what we are now having to pay for the lot. So the affordability has really, really been challenged here."
Specifically, Zinsmeyer wanted the P&Z to approve changes to the ordinances that would permit 5-foot side setbacks for single family detached residents built in areas zoned R-1-A, not zero lot lines. "Who wants to have a neighbor walk up the side of your house and look in your window?" he asked, obviously rhetorically.
He also said he was concerned that the "minimum (square) footage in R-1-2 is 1,200, but in R-1-A, you can have a 45-foot lot and the minimum footage of the home is 1,000. So there’s a big disparity in the size product allowed on one zoning category versus the other but the lot sizes are quite a bit different. There might be room in the middle there for a different zoning category."
The issue as I see it, however, is not whether there is a disparity but whether the city has a right to create such a disparity. And I am convinced the city does and if the citizens don’t agree then they have the right to come to the polls and elect leaders who believe otherwise.
Another one of the topics that come up was a Kyle standard created so that garages did not appear to be the dominant feature of a residence. The requirement states that a garage cannot be more than 50 percent of the front facing of any single family residence in Kyle.
Zinsmeyer also made, what came across to me as a form of a threat, when he told the commissioners he hoped they would consider changes to these ordinances "because we would like to continue working here."
"Would the idea of that was put forward about allowing variances to the 50-50 percentage rule of the homes built be a benefit to you in making a decision to build here?" P&Z chair Michael Rubsam asked Zinsmeyer.
"I think it would," Zinsmeyer replied.
Then the builder phrased the fundamental argument at the heart of this entire discussion: "Do you reduce your rules to allow builders come in and do what they want to do or do you apply rules that you would like to have in your city and have them comply with those?" I am on the side of the latter and I know the city fought a long, costly legal battle in defense of the latter option. I don’t perceive that the city, regardless of what Koontz is suggesting and the commissioners appear to be leaning toward, have any notion of abandoning that stance. But what Zinsmeyer seems to be professing now is "We went along and played by the city’s rules for a long time, but changing economics argues we shouldn’t have to do that any more." In fact, what he actually said was:
"We complied with those rules a couple of years ago. We came in and partnered with you and made it work. We had a successful business — a very successful business, We’ve sold out in less than two years from the time we put the first lot on the ground. So, are there some things in there that are a little difficult and perhaps put Howard and his staff into a position where they have to be the judge over whether this architecture is satisfactory or not? Yes. Is it a time-consuming task for your staff? There are other builders besides just us and there’s a lot of people out there trying to get property to develop. That’s a lot of time for your staff to have to review individual plans and make individual judgments on those plans."
And perhaps it does take a lot of time, but if that’s what it takes "to make Kyle the best city it can be," then it’s time well spent.
Rubsam endorsed the idea of changing the guidelines by asking Koontz "Do you need any more input from us to go back and rework some of these numbers?"
The issue just may be exactly what "numbers" Koontz and the commissioners are actually talking about. Are they referring to lot widths, which did not seem to be a part of the original 2005 lawsuit? Or are they talking about the minimum size of garages, which were?
"Would you want to do something like a certain percentage of either a phase or a total project would be required to have a certain percentage on one side and a certain percentage on the other?" Koontz asked. "You want to say some of them can be less than 480 square foot garages? You want to say some of them can be more than 50 percent of the overall front façade?"
Rubsam answered "I was thinking more of the 50 percent of the front façade, but that didn’t seem to be one of the main issues with our gentleman from KB Home."
"It hasn’t been an issue with KB from what I can tell," Koontz responded, "because they’re building such a wider product. As lot sizes become more and more narrow, forcing home sizes to become more and more narrow, the percentages become greater in terms of actual feet. My expectation is from what I’ve thought about this is clearly (the city of Kyle) doesn’t want to see the narrow lot, narrow home product as prolific as it has been. I’m administering a code here that clearly discourages narrow lots, especially a house that’s any narrower than 35 feet." A functional garage, Koontz maintained, must be at least 19 feet wide; therefore a house that narrow must have a garage that consumes more than 50 percent of the front facing of the house. As a result, he said, "You have to make sure builders have something in their portfolio that’s at or exceeds 38 feet just to get over that 50 percent requirement.
"What keeps me up at night," Koontz said, "is I don’t want to chase anyone away who might have a quality product. I like the style of administrative code that says ‘Here is the minimum standard. Meet it.’ On the other side, however, when everyone who comes through the door says we need to relax our standards, I’ve got to wonder whether a new standard needs to be developed."
This entire discussion only served to illustrate an even greater problem which seems to be the reality that a critical disconnect exists between the City Council and the Planning & Zoning Commission. The first time I spotted this was when the P&Z commissioners failed to carry out its assignment for a midterm update of the Comprehensive Plan. Then, in discussions I had with several P&Z members after last night's workshop, they believe they will only have to convene one time as an Impact Fee Advisory Committee and that's in a couple of weeks to set the overall maximum rates. It was also evident on last night’s agenda concerning amendments to the food truck ordinance. The City Council quite clearly and quite specifically said the ordinance first advanced to it by the P&Z was too complex, that it had to be separated into at least two ordinances, one regulating self-propelled mobile food trucks and a second regulating those that have to be hitched to another vehicle in order to move from place to place. However, what the commissioners were told last night was that the City Council did not like the idea of more permanent presence of food trucks in the city, which the ordinance was designed to promote, and that’s why they rejected it. Not only that, last night’s discussion evolved into whether the ordinance should include provisions for a food truck park, similar to an RV park, which contained a permanent infrastructure that allowed food trucks to just plug into. All the while, I’m thinking to myself "That sounds like a nifty idea if it’s done correctly. But I’m betting the City Council would want that to be a third separate ordinance, not something incorporated into one they already believe is too convoluted."
But, then, what the hell do I know? I’m merely that barnacle on Kyle’s ship of state who likes to take out his frustrations by writing this blog.
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