I get it. Planning & Zoning Commissioner Timothy Kay is an ardent anti-growth zealot. Which is fine. He’s entitled to and should be given the latitude to express whatever his feelings on growth in Kyle that he has. And, if he wants to make a difference in Kyle’s path of growth, he should try to get himself elected to the city council where he could possibly have some effect on the formation of city policy. But he should no longer be able to advance his agenda by attempting to sabotage zoning issues that come before P&Z.
He tried it three times at last night’s meeting, possibly even succeeding twice.
The issues involved three applications for rezoning the commission considered. By state law, what an applicant plans to do with land seeking to be rezoned is completely divorced from the actual application. In fact, an applicant is not even legally required to inform a planning commission precisely what he or she plans to do with the property seeking to be rezoned.
However, in complete defiance of state law, Kay not only specifically instructed an applicant what he could locate on the property the applicant wanted rezoned, but Kay acted to restrict the applicant on how he could locate it. He not only did this once, but twice, concerning two separate but related zoning requests. On a third issue, he said he could not vote for a rezoning request without seeing the applicant’s "plans" for the property beforehand. That’s simply against the law. It could also be considered extortion, blackmail – a legislator demanding a citizen engage in an illegal activity in order to gain a favorable legislative decision. Elected officials have gone to jail for actions such as this.
But it’s a more serious problem than just Kay. It has infected the entire commission. I’m not accusing commission members of willfully engaging in illegal activities, but simply not being aware they are engaging in them. In other words, what we’re dealing with here is, to put it bluntly, ignorance, but not deviousness. And the city is not helped by having planning commissioners who are unaware of legal restrictions and the resulting liability. It’s one thing that Kay made illegal amendments to the two related rezoning requests that limited the builder to 3.2 homes per acre on the property, something that can be considered at the site-plan phase of a development, but is illegal at the zoning phase. But it’s a completely separate thing that Commission Chair Dex Ellison didn’t immediately rule the motion to be out of order, which, of course, it was. Here, again, the problem was not that Ellison was deliberately making the city liable for legal challenges to the commission’s actions; he simply didn’t know the motion was out of order. (But try that out in court: "Judge, you must excuse my actions. I had no idea cold blooded murder was illegal.") Then the four other commissioners who attended last night’s meeting, (Mike Torres was absent) became complicit in the illegal activity by voting for the zoning changes with Kay’s amendments attached to them. And, again, I’m going to give these folks the benefit of the doubt and say they voted this way simply because they didn’t know any better and not because there is some sort of deeper conspiracy at work here. I mean this folks obviously don’t know the difference between "discussion" and "debate" so I don’t want to think they are part of some fantastic underground conspiracy to stop all growth in Kyle. But, then, I also believe Oswald acted alone in assassinating President Kennedy and that Neil Armstrong actually walked on the moon. So there’s that, as well.
So what happens next? Between the end of last night’s meeting and noon today I spoke about this with five different attorneys, all of whom are licensed to practice law in Texas although none of whom have a concentration in municipal zoning. All five confirmed Kay’s actions in all three cases were illegal — that they were, indeed, decisions reserved for site plan deliberations but could not be considered in zoning decisions. Where they differed in their opinions is when I asked them what could happen next.
Most of them said legal action was not likely because essentially the applicant was not denied the zoning he requested and that only those who opposed the zoning request from the outset could seek restraint based on the illegalities in question. However, they said, the question could be what those opponents could seek in the form of relief. It would, they told me, be almost impossible to prove the commission’s actions, however illegal they were, harmed them because the amendments made the development more restrictive than it was without the amendments. But a lengthy court battle, whatever the outcome, could delay the start of the project (one of the attorneys told me) for as long as a decade, not only depriving potential home buyers of a worthwhile development, but also denying the city and the rest of its taxpaying citizens the millions of dollars in revenue from impact fees and property taxes.
Others told me the city council, when it rules on the commission’s recommendation (which I expect to happen at its next meeting on Tuesday) could simply ignore the amendments and rule on the original zoning request. And one other attorney told me he would recommend the council remand the recommendation back to the Planning Commission with the instructions "to get it right this time."
I posed the what-happens-next question to the city’s planning staff and assistant director William Atkinson told me "City staff is currently discussing the very recommendation that you're asking about. When we have an update, we'll provide an answer."
Which, at the very least, means the staff recognizes it has a serious problem on its hands. And that’s a start.
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