In an article posted today on his web site, Mayor Travis Mitchell criticized Gov. Greg Abbott’s recently announced property tax proposal, calling it "political maneuvering" that "will actually raise local taxes" and jeopardize Kyle’s "long-term economic prosperity."
Earlier this month Abbott announced one of his top priorities for the 2019 legislative session would be to force cities to limit their annual property tax revenues to 2.5 percent above what they collected the previous year unless two thirds of their voters approved a higher amount. His plan would also prohibit a municipality or a school district from issuing bonds unless two-thirds of the voters approved the debt issuance in an election that attracted at least a third of the jurisdiction’s registered voters.
For the record, never in its history has Kyle had a municipal election in which a third of its registered voters cast ballots.
"Abbott’s plan is wrong for Texas," Mitchell wrote. "I only hope that voters see through the political gamesmanship coming from our state capitol.
"Unfortunately, Abbott’s plan is more about political maneuvering than sound fiscal policy," the mayor said. "Hidden beneath multiple layers of state budgetary complexity is a disturbing truth. Abbott’s ‘solution’ will actually raise local taxes, not lower them. And it will do so in a way that dramatically reduces both transparency and quality of service."
Mitchell cited examples showing how Abbott’s plans could cripple the operations of both city government and the Hays Consolidated School District.
Later this year, according to the mayor, the city will begin work on the expansion of its wastewater treatment plant, the design and construction of which has been mandated by the Texas Commission on Environmental Quality. "If we are not able to complete the project to their specifications and within the proper schedule, TCEQ will either fine the city or, perhaps, take over our plant," Mitchell wrote. He said the expansion costs will be financed with cash on hand combined with developer contributions. But, he added, the city will still have to borrow money, through the issuance of Certificate of Obligation bonds, to bridge the gap between the actual construction and the time the city receives those developer contributions. The contributions would be used to offset the loans.
Currently, the only requirement for issuing CO bonds is for a majority of the city council to approve a measure to do so. However, according to Mitchell, if the governor has his way, the city would have to conduct an election in which one third of the registered voters cast ballots and 67 percent of them approved the bond proposal. By comparison, in modern-day politics, a "landslide" win is one in which one side in a two-sided election attracts 58 percent of the vote.
Should either benchmark — the two-thirds approval or the 33 percent voter turnout — not materialize, the proposal would fail. In that almost certain outcome, Mitchell wrote, "The city would default on its obligation to serve entitled future developments, would enter into a growth moratorium, and Kyle’s prospects at long-term economic prosperity would immediately be in jeopardy."
Mitchell also pointed out, had Abbott’s plan been in effect last year, the Hays CSD bond proposal for a third high school and two elementary schools would have failed because it received 65 percent voter approval, 2 percent below Abbott’s recommended minimum, and only 4 percent of the registered voters cast ballots, 29 percent less than what the governor’s plan would require.
You can read Mitchell’s entire article here.
The Kyle Report
Tuesday, January 30, 2018
Monday, January 22, 2018
Sales tax collections: What a difference a year makes
January’s sales tax collections continued to exceed budget forecasts for January, but that reflects less on Kyle’s economy — although it seems to be growing (see variance from last year in the chart below) — and more on the more conservative forecasts for this fiscal year.
January’s figures reflected the fourth (out of a possible four) consecutive month this fiscal year that sales taxes have surpassed the budget’s forecast. At this time last year, receipts had dipped below forecasts for two of the four months and overall the city was $36,307.20 below forecasts for the fiscal year. This year it is $171,614.06 on the plus side. That’s quite a turnaround.
However, that’s because the estimated sales tax growth between January FY 2016 and 2017 was 11.3 percent. The estimated growth for this fiscal year, on the other hand, was a far more modest and realistic 3.6 percent. There you have it.
(Updated at 3 p.m.) "I’m very proud of the 13 percent increase in sales tax revenue collected so far this year," Mayor Travis Mitchell said today. "It represents something very important to our city — economic diversity. Only through economic diversity can we begin to increase our quality of life without a corresponding increase in property taxes. We are laser-focused on keeping this trend going. The next big push is to land a large employment center. I’m confident we’ll get it done soon.
"As to the forecasts being low, I think we learned an important lesson through last year’s deficit," Mitchell said. "To me, you should never budget for best case scenario. And in this case, our more conservative approach has provided us the opportunity to record a surplus in the sales tax budget. That’s a good thing and those monies will be put to good use." (End updated material)
Here’s a quick glance at January’s numbers:
You can read the entire report here.
January’s figures reflected the fourth (out of a possible four) consecutive month this fiscal year that sales taxes have surpassed the budget’s forecast. At this time last year, receipts had dipped below forecasts for two of the four months and overall the city was $36,307.20 below forecasts for the fiscal year. This year it is $171,614.06 on the plus side. That’s quite a turnaround.
However, that’s because the estimated sales tax growth between January FY 2016 and 2017 was 11.3 percent. The estimated growth for this fiscal year, on the other hand, was a far more modest and realistic 3.6 percent. There you have it.
(Updated at 3 p.m.) "I’m very proud of the 13 percent increase in sales tax revenue collected so far this year," Mayor Travis Mitchell said today. "It represents something very important to our city — economic diversity. Only through economic diversity can we begin to increase our quality of life without a corresponding increase in property taxes. We are laser-focused on keeping this trend going. The next big push is to land a large employment center. I’m confident we’ll get it done soon.
"As to the forecasts being low, I think we learned an important lesson through last year’s deficit," Mitchell said. "To me, you should never budget for best case scenario. And in this case, our more conservative approach has provided us the opportunity to record a surplus in the sales tax budget. That’s a good thing and those monies will be put to good use." (End updated material)
Here’s a quick glance at January’s numbers:
|
Sales tax collected
|
Budget
surplus
|
Percent
Surplus
|
FY percent Surplus
|
Jan. 2017
Collections
|
Variance from
last year
|
|
$618,416.40
|
$62,581.40
|
11.26%
|
7.41%
|
$536,291.12
|
15.31%
|
You can read the entire report here.
Wednesday, January 17, 2018
Council cites Tenorio’s record, demeanor as reasons for replacing her on water board
The City Council said Tuesday night council member Daphne Tenorio’s record of consistently opposing actions taken by the board of the Alliance Regional Water Authority coupled with what they described as a lack of decorum on her part during council meetings were reasons to remove her from the ARWA board.
"Your dissent, your voting record shows that you should not be a part of this — the single most important board that keeps our city moving forward," Mayor Pro Tem Shane Arabie told Tenorio during the meeting.
"Council member Tenorio proved, through her actions in the past and tonight, that she was not qualified for that position," Mayor Travis Mitchell said following the meeting.
By a vote of 6-1 (with Tenorio, or course, being in the minority) the council first voted to reconsider the decision it made just two weeks ago to install her as one of Kyle’s representatives on the board that oversees the area’s water supply and, second, to replace her on the board with Mitchell.
"I wanted to bring this item back for two reasons," Mitchell told his colleagues. "First, upon additional reflection and consideration, I wanted to make some additional statements and register a different opinion and, second, council member Arabie currently serves on the ARWA board and he wasn’t present at the last meeting. I think his perspective will be very valuable for us to consider as we move forward with making a board appointment from this body."
Tenorio charged that Mitchell was bringing the item back because he has a personal vendetta against her and rather than subject herself to more personal attacks, she said she would rather simply resign.
""This is nothing more than a personal issue between the mayor and myself," she maintained, "and that should have been left at the door. When a person is elected by the council, that decision should stand."
Arabie told Tenorio her "personal attacks are inappropriate. The fact that you like to attack everybody on the dais is unprofessional and the record could show the personal attacks you pushed towards other people is out there and are very easily seen.
"Now, this is the most important board our city has," Arabie continued. "Its purpose is to provide water for our citizens and our growth and our future for the next 50 years. Water is one of the most important resources that we have. The record will show that the dissent that council woman Tenorio has registered time and time again against this board is the reason why she shouldn’t be a part of it. You’re right. Let the record stand. You’re absolutely correct – your dissent, your voting record shows that you should not be a part of this — the single most important board that keeps our city moving forward. The majority of the council does not believe in your view so, you’re correct, you should not be a part of this board. The fact that you essentially resigned before this discussion — not fighting for your seat — shows that you should absolutely not be part of it. Because, when it comes right down to it, the city needs someone who will fight for them. Your resignation attempt proves you will not do that."
"I’m saddened by the incredibly unprofessional display of temper from council member Tenorio tonight," Mitchell said after the council finally adjourned its meeting 45 minutes after midnight this morning. "It was embarrassing for the council, those present and for the city. We have to be better than that as a council and we need to be better."
Several times during the discussion, Tenorio attempted to interrupt the council member speaking, prompting Mitchell to caution her at one point: "Council member Tenorio, you have not been recognized. You may ask to be recognized by holding up your hand."
"I hold my hand up all the time," she said, as she ratcheted up the volume of the conversation several decibels. "I thought this was a different mayor, but apparently it’s the same mayor with a different name.
"One of the reasons I chose to run for this position was because of the lack of diversity in this organization," Tenorio said. "There is only one woman on the water board. There is only one Hispanic on the water board and there is only one African-American on the water board. Therefore, there is not a majority of diversity of representation of our community. If a new person needs to be nominated, I recommend that the person who is nominated be of a different color and provide some diversity to that board, either it be a different race or it be a different gender."
Which left Tenorio an opening to do just that — nominate someone of a different race and/or gender — but she didn’t. Instead, she tried to interrupt Mitchell again by calling for a vote on the motion even though, according to Roberts Rules of Order, a speaker cannot be interrupted by someone calling the question.
Following the meeting, the mayor said Tenorio’s statements about race and gender disturbed him.
"They really bothered me, deeply," he said. "I am extremely committed to making sure that the city has the best representation regardless of what you look like or what your sex is. That’s just a fact. But, in this case, the qualifications are what win the day. Council member Tenorio proved, through her actions in the past and tonight, that she was not qualified for that position and I believe we made the best decision for the city."
"One of the reasons I wanted to bring this back," Mitchell said during the council meeting, "is because I felt that while a lot of considerations were discussed at the last meeting, that the ultimate decision we have to make is who we feel like is best going to represent this body with a collaborative mind set, who is going to sit on the board and advocate for the water positions so that we can get the most water possible and also who will represent the city’s best long-term interests. In this case, I feel the original consideration we made was not in that best long-term interest."
Tenorio tried to interrupt again, prompting Mitchell to tell her "You may raise your hand if you wish to speak."
Ellison did raise his hand, but Tenorio interrupted and Ellison chose to defer. After Mitchell then recognized Tenorio, she mocked the mayor saying "I’m so glad you shared your qualifications of being here a whole five years and having such a care for our great city over some of us who have dedicated decades of service to this community and to our families and making sure that this city is going the way it needs to go. But I’m some grateful that we have you to lead us because obviously nobody else could do it. So thank you."
Ellison, who was the only council member who wanted Mitchell to be the city’s appointee during the meeting two weeks, said he agreed with the mayor’s statements on qualifications.
"Tonight has proven to me why I did not vote for council member Tenorio for the ARWA board," Ellison said. "We can disagree and that’s fine, but let’s do it respectfully and let’s not interrupt each other and let’s do our best to represent the citizenry of Kyle. We see it throughout all levels of government — things that are really ticking people off with the way government is run — and we don’t have to follow suit with that. Let’s be respectful. Let’s do what’s best for the city. And, in my opinion, what’s best for the city is having the mayor representing us."
After saying Arabie shouldn’t be on the board because he is putting his house on the market in a few months (a claim Arabie said "was news to me"), Tenorio countered by saying, as a newly elected council member, Ellison had not witnessed the personal attacks she has been subjected to during her tenure.
In other action last night, the council:
"Your dissent, your voting record shows that you should not be a part of this — the single most important board that keeps our city moving forward," Mayor Pro Tem Shane Arabie told Tenorio during the meeting.
"Council member Tenorio proved, through her actions in the past and tonight, that she was not qualified for that position," Mayor Travis Mitchell said following the meeting.
By a vote of 6-1 (with Tenorio, or course, being in the minority) the council first voted to reconsider the decision it made just two weeks ago to install her as one of Kyle’s representatives on the board that oversees the area’s water supply and, second, to replace her on the board with Mitchell.
"I wanted to bring this item back for two reasons," Mitchell told his colleagues. "First, upon additional reflection and consideration, I wanted to make some additional statements and register a different opinion and, second, council member Arabie currently serves on the ARWA board and he wasn’t present at the last meeting. I think his perspective will be very valuable for us to consider as we move forward with making a board appointment from this body."
Tenorio charged that Mitchell was bringing the item back because he has a personal vendetta against her and rather than subject herself to more personal attacks, she said she would rather simply resign.
""This is nothing more than a personal issue between the mayor and myself," she maintained, "and that should have been left at the door. When a person is elected by the council, that decision should stand."
Arabie told Tenorio her "personal attacks are inappropriate. The fact that you like to attack everybody on the dais is unprofessional and the record could show the personal attacks you pushed towards other people is out there and are very easily seen.
"Now, this is the most important board our city has," Arabie continued. "Its purpose is to provide water for our citizens and our growth and our future for the next 50 years. Water is one of the most important resources that we have. The record will show that the dissent that council woman Tenorio has registered time and time again against this board is the reason why she shouldn’t be a part of it. You’re right. Let the record stand. You’re absolutely correct – your dissent, your voting record shows that you should not be a part of this — the single most important board that keeps our city moving forward. The majority of the council does not believe in your view so, you’re correct, you should not be a part of this board. The fact that you essentially resigned before this discussion — not fighting for your seat — shows that you should absolutely not be part of it. Because, when it comes right down to it, the city needs someone who will fight for them. Your resignation attempt proves you will not do that."
"I’m saddened by the incredibly unprofessional display of temper from council member Tenorio tonight," Mitchell said after the council finally adjourned its meeting 45 minutes after midnight this morning. "It was embarrassing for the council, those present and for the city. We have to be better than that as a council and we need to be better."
Several times during the discussion, Tenorio attempted to interrupt the council member speaking, prompting Mitchell to caution her at one point: "Council member Tenorio, you have not been recognized. You may ask to be recognized by holding up your hand."
"I hold my hand up all the time," she said, as she ratcheted up the volume of the conversation several decibels. "I thought this was a different mayor, but apparently it’s the same mayor with a different name.
"One of the reasons I chose to run for this position was because of the lack of diversity in this organization," Tenorio said. "There is only one woman on the water board. There is only one Hispanic on the water board and there is only one African-American on the water board. Therefore, there is not a majority of diversity of representation of our community. If a new person needs to be nominated, I recommend that the person who is nominated be of a different color and provide some diversity to that board, either it be a different race or it be a different gender."
Which left Tenorio an opening to do just that — nominate someone of a different race and/or gender — but she didn’t. Instead, she tried to interrupt Mitchell again by calling for a vote on the motion even though, according to Roberts Rules of Order, a speaker cannot be interrupted by someone calling the question.
Following the meeting, the mayor said Tenorio’s statements about race and gender disturbed him.
"They really bothered me, deeply," he said. "I am extremely committed to making sure that the city has the best representation regardless of what you look like or what your sex is. That’s just a fact. But, in this case, the qualifications are what win the day. Council member Tenorio proved, through her actions in the past and tonight, that she was not qualified for that position and I believe we made the best decision for the city."
"One of the reasons I wanted to bring this back," Mitchell said during the council meeting, "is because I felt that while a lot of considerations were discussed at the last meeting, that the ultimate decision we have to make is who we feel like is best going to represent this body with a collaborative mind set, who is going to sit on the board and advocate for the water positions so that we can get the most water possible and also who will represent the city’s best long-term interests. In this case, I feel the original consideration we made was not in that best long-term interest."
Tenorio tried to interrupt again, prompting Mitchell to tell her "You may raise your hand if you wish to speak."
Ellison did raise his hand, but Tenorio interrupted and Ellison chose to defer. After Mitchell then recognized Tenorio, she mocked the mayor saying "I’m so glad you shared your qualifications of being here a whole five years and having such a care for our great city over some of us who have dedicated decades of service to this community and to our families and making sure that this city is going the way it needs to go. But I’m some grateful that we have you to lead us because obviously nobody else could do it. So thank you."
Ellison, who was the only council member who wanted Mitchell to be the city’s appointee during the meeting two weeks, said he agreed with the mayor’s statements on qualifications.
"Tonight has proven to me why I did not vote for council member Tenorio for the ARWA board," Ellison said. "We can disagree and that’s fine, but let’s do it respectfully and let’s not interrupt each other and let’s do our best to represent the citizenry of Kyle. We see it throughout all levels of government — things that are really ticking people off with the way government is run — and we don’t have to follow suit with that. Let’s be respectful. Let’s do what’s best for the city. And, in my opinion, what’s best for the city is having the mayor representing us."
After saying Arabie shouldn’t be on the board because he is putting his house on the market in a few months (a claim Arabie said "was news to me"), Tenorio countered by saying, as a newly elected council member, Ellison had not witnessed the personal attacks she has been subjected to during her tenure.
In other action last night, the council:
- Voted 6-1 (Tenorio objecting) to add the provisions contained in the recently enacted Residential Neighborhood Style Guide to the city’s subdivision regulations;
- Voted unanimously to award a $49,895 contract for the first phase of a three-phase dog park to be located in Steeplechase Park and to adopt rules governing appropriate behavior in the park;
- After spending a little more than 40 minutes discussing exactly what the implications of them might be, voted 6-1 to pass on first reading amendments to the city’s ordinances regulating neighborhood fences that Planning Director Howard J. Koontz described as "evolutionary not revolutionary";
- Learned from City Manager Scott Sellers that the probable dates for the council’s two budget retreats this year would be March 24 and July 28; and
- Held an executive session lasting four hours and 10 minutes, most of which was spent interviewing and discussing possible representatives to serve as either city attorney or the legal counsel for the Ethics Commission, Because of the inclement weather, the council offered the candidates the opportunity to appear either during last night’s meeting or in an Executive Session on Feb. 6. All the candidates chose to come to last night’s meeting. That’s not to say the council won’t have a second round of interviews at its next session. (Although the Executive Session’s list of discussion items included "Jesse Espinoza Lawsuit," City Attorney Frank Garza said Espinoza just filed the discrimination lawsuit Friday and the City, possibly because of the Martin Luther King holiday Monday coupled with the inclement weather Tuesday, had yet to be served with the legal papers. Thus, he said, a discussion on the subject did not take place.)
Tuesday, January 16, 2018
Neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds
The weather may chill — it may even dampen — tonight’s City Council meeting, but it won’t cancel it.
Mayor Travis Mitchell formally announced the meeting will go on almost as scheduled. By almost, that means the scheduled presentation on the Emerald Crown Trail will most likely be postponed and the candidates that were scheduled to be interviewed as part of the Executive Session dedicated to finding new attorneys have the option of attending tonight or during the Feb. 6 meeting.
Otherwise, it’s all on.
Mayor Travis Mitchell formally announced the meeting will go on almost as scheduled. By almost, that means the scheduled presentation on the Emerald Crown Trail will most likely be postponed and the candidates that were scheduled to be interviewed as part of the Executive Session dedicated to finding new attorneys have the option of attending tonight or during the Feb. 6 meeting.
Otherwise, it’s all on.
Saturday, January 13, 2018
Mayor seeks to reconsider Tenorio’s appointment to water board
During a meeting Tuesday in which the council is prepared to spend close to $10,000 on a pair of presumably doggie-friendly drinking fountains, see a presentation on a trail network that is supposed to connect Kyle to Austin and San Marcos but seems to be located a good distance west of Kyle, perhaps the most intriguing item is one proposed by Mayor Travis Mitchell to reconsider a vote the council took just two weeks ago to appoint council member Daphne Tenorio to the Alliance Regional Water Authority Board.
The mayor is maintaining silence about the reasons behind this movie ("We will not comment on item 4 at this time," he told me when I asked why it was appearing on Tuesday’s meeting agenda), but, of course, that’s not going to stop me from engaging in speculation based strictly on my own hunches and instincts.
I wondered why the council approved Tenorio on the board based on her past public criticisms of ARWA, but mainly because of her response to council member Tracy Scheel who asked her during the Jan. 9 council meeting why she wanted to be a member of the board.
"I met with a water person about big bills coming from this area," Tenorio said at the time. "I want to understand the processes of why these bills are so high. These bills that are coming from this board are affecting all of our families directly, Most people don’t realize how high their water bills are about to go."
From that response, it’s difficult to determine exactly what "bills" she is talking about, but I presume she is referring to the monthly bills Kyle residents receive to pay for the water they use. And if that’s the case, here’s the concern: ARWA has nothing whatsoever to do with these bills. Yes, it is true that ARWA has secured the rights to water in the Carrizo Springs Aquifer and will be constructing a system to ship that water to its members, one of which is Kyle. And, yes, it is true that there is a cost for that water and that system and Kyle is responsible for paying its share of that cost. But that share has already been determined and agreed upon by all parties so that does not appear to be a debatable issue. And, yes, the city has talked about paying for its share through a water bill rate hike. But that’s a decision for the Kyle City Council to make. It’s not up to ARWA to decide how Kyle will finance its share of the project costs. For example, the city’s FinancialMagician Wizard Director Perwez Moheet could find a way because of the rapidly increasing property values, new business ventures coming to down (especially those north of Kohler’s Crossing), and the paying down of the road bonds, to finance Kyle’s share of the project with General Obligations bonds that don’t increase the property tax rate. It’s possible. But that’s a decision the city will make and the city council will approve. ARWA doesn’t have a voice in that.
So my concern at the time Tenorio was approved was whether she understood exactly what the function and the jurisdiction of the ARWA board was and what the responsibilities would be of Kyle’s representative on that board. In my mind, the main responsibility is to make sure Kyle gets its fair share of the water coming from Carrizo Springs. But nowhere in her response to Scheel’s question did I hear Tenorio say anything like "I want to represent and protect the best interests and the future water needs of our city" or that "I want to work with other board members to see how we can keep costs under control."
(Updated Sunday 12:07 p.m.) Tenorio told me moments ago the bills she was referring to are those the city will have to pay for its share of the project.
Council member Shane Arabie, who is Kyle’s other representative on the ARWA board, missed the Jan. 9 meeting because his work these days has him spending a lot of time on the western fringes of Houston. Hopefully, he will be able to make this Tuesday’s meeting because I, for one, would love to hear his views on the Tenorio appointment. He is someone who could either calm or further stoke my fears concerning this appointment. And perhaps the only reason Mitchell wants to reconsider the appointment is because Arabie has already assured the mayor he will be attending Tuesday and Mitchell is seeking Arabie’s public input as well. However, I actually think Mitchell’s motivation has more to do with the fact that he really wants to serve on the ARWA board and he feels the council pulled the chair out from under him just as he was about to sit in it. That is also just a hunch — I have no evidence, anecdotal or otherwise — to support that notion, but it’s still a persistent part of my thought processes as I think about what’s going on here. I guess we’ll all learn more about this Tuesday.
But back to those fountains and those trails.
Item 9 on Tuesday’s agenda is to spend $49,895 for the first phase of what Parks and Rec Director Kerry Urbanowicz says will ultimate be a $150,000 facility consisting of essentially two fenced-in dog parks — one for regular dogs and a second for smaller ones — to be built in Steeplechase Park. The $150,000, Urbanowicz says, will pay for a dog park that features "shade-covered benches and benches throughout the park, pervious walking trails within the park, trees and plants, dog washing station, trash cans, pet waste stations and pervious-paved parking." He said the first $50,000 is part of this fiscal year’s budget and that it will pay for "the fences, water fountains and transition zones (presumably the connection between the two dog areas); that he is hoping next year’s budget will include another $50,000 for the park; and that the final $50,000 "will come from donations, grants and partnerships from the public."
The first year costs include $28,972 for fencing, $2,344 for the gates to each of the two parks, another $2,954 for the fencing and gates at entrance to both parks and $9,970 for a pair of drinking fountains. I’m presuming it’s a drinking fountain along the lines of the one pictured here, although I have no way of knowing that. The $9,970 price tag seemed a tad high at first glance, but upon further research I guess, if you include the required concrete pad you see in this picture, it might be in the ballpark.
But what had me more excited than the water fountains, which would not spur me to drive clear across town to take my loyal canine companion to this particular facility, was the second slide in the presentation that Urbanowicz will probably show the council — the slide that, at first glance, seemed to indicate the dog park might be on the shores of a lake of some sort. My dog loves the water, She loves to plunge in and swim. That’s why she loves the beach and really enjoys the trails around the pond at Plum Creek. But every time I have taken her to a dog park — and I have taken her to more than a dozen different ones — and removed her leash, she doesn’t move, doesn’t run around, doesn’t want to engage with any of the other humans or canines there. The only exception was a dog park the City of Dallas located on the shores of White Rock Lake, She loved it there because she could jump in the lake and swim to her heart’s content. But when I inquired about that second slide in Urbanowicz’s presentation I learned from city spokesperson Kim Hilsenbeck that it "reflects the 100-year flood zone line and how we made efforts to be out of the zone as much as possible." So, maybe after a good rain, like we’ve had too many of lately …?
Item 3 on Tuesday’s agenda is captioned a "presentation by the Emerald Crown Trail Work Group on a proposed trail connecting Buda, Kyle and San Marcos to the Violet Crown Trail in Austin to the Purgatory Trail in southern Hays County." This is completely speculative. This is an idea being promoted by an organization calling itself the San Marcos Greenbelt Alliance, a 19-year-old all-volunteer non-profit group, although it goes out of its way in the presentation to say the proposed regional trail is not a SMGA project, that it is only serving as a "catalyst" for the trail’s partners (one of whom is the City of Kyle) and its stakeholders.
According to Community Impact newspaper, SMGA President Mark Taylor told Hays County commissioners Tuesday that transportation was the primary purpose of the proposed trail. "This trail will be to get people from one place to another," the newspaper quoted Taylor as telling the commissioners. "I think we will ultimately find — if we’re able to put this project together — that our communities (will be) connected more closely. That includes not just the three cities but the rural areas."
The newspaper also said that SMGA recruited geography students at Texas State University to map several proposed trails that would connect natural areas in San Marcos to the Violet Crown in South Austin. Judging from the presentation the council is expected to see Tuesday, as far as Kyle is concerned, it’s the "rural areas" and not the city itself that will be connected. All six of the proposed routes appear to be located far west of the Kyle city limits.
All this, it must be added, is nowhere close to reality. The alliance must still develop a concept/master plan, determine funding sources and talk to the landowners/developers who might be directly impacted by the trail.
For what it’s worth, the Violet Crown website states "In 2006, planning of the Violet Crown Trail began. Its purpose is to create the first regional trail system in Central Texas. After years of strategic land acquisition and planning, the first six-mile segment opened. With continued construction, the VCT is on its way to becoming the longest trail of its kind in Central Texas. Once complete the 30-mile trail will provide a unique recreational experience as it passes through the urban wildlands of the Barton Creek Wilderness Park, the City of Sunset Valley, and eventually into Hays County. Along its route the trail will connect scenic natural areas to neighborhoods, shopping centers, a library, and public parks. Passing near the Lady Bird Johnson Wildflower Center, the Violet Crown Trail will head south, winding through the rolling countryside of the City of Austin’s Water Quality Protection Lands in a uniquely natural setting."
The mayor is maintaining silence about the reasons behind this movie ("We will not comment on item 4 at this time," he told me when I asked why it was appearing on Tuesday’s meeting agenda), but, of course, that’s not going to stop me from engaging in speculation based strictly on my own hunches and instincts.
I wondered why the council approved Tenorio on the board based on her past public criticisms of ARWA, but mainly because of her response to council member Tracy Scheel who asked her during the Jan. 9 council meeting why she wanted to be a member of the board.
"I met with a water person about big bills coming from this area," Tenorio said at the time. "I want to understand the processes of why these bills are so high. These bills that are coming from this board are affecting all of our families directly, Most people don’t realize how high their water bills are about to go."
From that response, it’s difficult to determine exactly what "bills" she is talking about, but I presume she is referring to the monthly bills Kyle residents receive to pay for the water they use. And if that’s the case, here’s the concern: ARWA has nothing whatsoever to do with these bills. Yes, it is true that ARWA has secured the rights to water in the Carrizo Springs Aquifer and will be constructing a system to ship that water to its members, one of which is Kyle. And, yes, it is true that there is a cost for that water and that system and Kyle is responsible for paying its share of that cost. But that share has already been determined and agreed upon by all parties so that does not appear to be a debatable issue. And, yes, the city has talked about paying for its share through a water bill rate hike. But that’s a decision for the Kyle City Council to make. It’s not up to ARWA to decide how Kyle will finance its share of the project costs. For example, the city’s Financial
So my concern at the time Tenorio was approved was whether she understood exactly what the function and the jurisdiction of the ARWA board was and what the responsibilities would be of Kyle’s representative on that board. In my mind, the main responsibility is to make sure Kyle gets its fair share of the water coming from Carrizo Springs. But nowhere in her response to Scheel’s question did I hear Tenorio say anything like "I want to represent and protect the best interests and the future water needs of our city" or that "I want to work with other board members to see how we can keep costs under control."
(Updated Sunday 12:07 p.m.) Tenorio told me moments ago the bills she was referring to are those the city will have to pay for its share of the project.
Council member Shane Arabie, who is Kyle’s other representative on the ARWA board, missed the Jan. 9 meeting because his work these days has him spending a lot of time on the western fringes of Houston. Hopefully, he will be able to make this Tuesday’s meeting because I, for one, would love to hear his views on the Tenorio appointment. He is someone who could either calm or further stoke my fears concerning this appointment. And perhaps the only reason Mitchell wants to reconsider the appointment is because Arabie has already assured the mayor he will be attending Tuesday and Mitchell is seeking Arabie’s public input as well. However, I actually think Mitchell’s motivation has more to do with the fact that he really wants to serve on the ARWA board and he feels the council pulled the chair out from under him just as he was about to sit in it. That is also just a hunch — I have no evidence, anecdotal or otherwise — to support that notion, but it’s still a persistent part of my thought processes as I think about what’s going on here. I guess we’ll all learn more about this Tuesday.
But back to those fountains and those trails.
Item 9 on Tuesday’s agenda is to spend $49,895 for the first phase of what Parks and Rec Director Kerry Urbanowicz says will ultimate be a $150,000 facility consisting of essentially two fenced-in dog parks — one for regular dogs and a second for smaller ones — to be built in Steeplechase Park. The $150,000, Urbanowicz says, will pay for a dog park that features "shade-covered benches and benches throughout the park, pervious walking trails within the park, trees and plants, dog washing station, trash cans, pet waste stations and pervious-paved parking." He said the first $50,000 is part of this fiscal year’s budget and that it will pay for "the fences, water fountains and transition zones (presumably the connection between the two dog areas); that he is hoping next year’s budget will include another $50,000 for the park; and that the final $50,000 "will come from donations, grants and partnerships from the public."
The first year costs include $28,972 for fencing, $2,344 for the gates to each of the two parks, another $2,954 for the fencing and gates at entrance to both parks and $9,970 for a pair of drinking fountains. I’m presuming it’s a drinking fountain along the lines of the one pictured here, although I have no way of knowing that. The $9,970 price tag seemed a tad high at first glance, but upon further research I guess, if you include the required concrete pad you see in this picture, it might be in the ballpark.
But what had me more excited than the water fountains, which would not spur me to drive clear across town to take my loyal canine companion to this particular facility, was the second slide in the presentation that Urbanowicz will probably show the council — the slide that, at first glance, seemed to indicate the dog park might be on the shores of a lake of some sort. My dog loves the water, She loves to plunge in and swim. That’s why she loves the beach and really enjoys the trails around the pond at Plum Creek. But every time I have taken her to a dog park — and I have taken her to more than a dozen different ones — and removed her leash, she doesn’t move, doesn’t run around, doesn’t want to engage with any of the other humans or canines there. The only exception was a dog park the City of Dallas located on the shores of White Rock Lake, She loved it there because she could jump in the lake and swim to her heart’s content. But when I inquired about that second slide in Urbanowicz’s presentation I learned from city spokesperson Kim Hilsenbeck that it "reflects the 100-year flood zone line and how we made efforts to be out of the zone as much as possible." So, maybe after a good rain, like we’ve had too many of lately …?
Item 3 on Tuesday’s agenda is captioned a "presentation by the Emerald Crown Trail Work Group on a proposed trail connecting Buda, Kyle and San Marcos to the Violet Crown Trail in Austin to the Purgatory Trail in southern Hays County." This is completely speculative. This is an idea being promoted by an organization calling itself the San Marcos Greenbelt Alliance, a 19-year-old all-volunteer non-profit group, although it goes out of its way in the presentation to say the proposed regional trail is not a SMGA project, that it is only serving as a "catalyst" for the trail’s partners (one of whom is the City of Kyle) and its stakeholders.
According to Community Impact newspaper, SMGA President Mark Taylor told Hays County commissioners Tuesday that transportation was the primary purpose of the proposed trail. "This trail will be to get people from one place to another," the newspaper quoted Taylor as telling the commissioners. "I think we will ultimately find — if we’re able to put this project together — that our communities (will be) connected more closely. That includes not just the three cities but the rural areas."
The newspaper also said that SMGA recruited geography students at Texas State University to map several proposed trails that would connect natural areas in San Marcos to the Violet Crown in South Austin. Judging from the presentation the council is expected to see Tuesday, as far as Kyle is concerned, it’s the "rural areas" and not the city itself that will be connected. All six of the proposed routes appear to be located far west of the Kyle city limits.
All this, it must be added, is nowhere close to reality. The alliance must still develop a concept/master plan, determine funding sources and talk to the landowners/developers who might be directly impacted by the trail.
For what it’s worth, the Violet Crown website states "In 2006, planning of the Violet Crown Trail began. Its purpose is to create the first regional trail system in Central Texas. After years of strategic land acquisition and planning, the first six-mile segment opened. With continued construction, the VCT is on its way to becoming the longest trail of its kind in Central Texas. Once complete the 30-mile trail will provide a unique recreational experience as it passes through the urban wildlands of the Barton Creek Wilderness Park, the City of Sunset Valley, and eventually into Hays County. Along its route the trail will connect scenic natural areas to neighborhoods, shopping centers, a library, and public parks. Passing near the Lady Bird Johnson Wildflower Center, the Violet Crown Trail will head south, winding through the rolling countryside of the City of Austin’s Water Quality Protection Lands in a uniquely natural setting."
Saturday, January 6, 2018
Agent says zoning lawsuit against city likely
The agent who represents the owner of the property on Windy Hill Road that was denied a zoning request at last Tuesday’s council meeting said today he is advising the owner "to take strong legal action" in the wake of the council’s decision.
In an email The Kyle Report received from the agent today, Afzaal Khan maintained the property owner, Asifali Karowalia, met all the requirements of the Texas Local Government Code that would allow him to have the property on the 1000 block of Windy Hill Road rezoned for multi-family use. Although the Comprehensive Plan recommends that use for the property, the council denied Karowalia’s request to rezone the property Tuesday.
Prior to his property being annexed by Kyle, Karowalia signed an agreement with Hays County guaranteeing him the right to construct an apartment complex on the property. The Local Government Code states "A municipality may not, after annexing an area, prohibit a person from (1) continuing to use land in the area in the manner in which the land was being used on the date the annexation proceedings were instituted if the land use was legal at that time; or (2) beginning to use land in the area in the manner that was planned for the land before the 90th day before the effective date of the annexation if: (A) one or more licenses, certificates, permits, approvals, or other forms of authorization by a governmental entity were required by law for the planned land use; and (B) a completed application for the initial authorization was filed with the governmental entity before the date the annexation proceedings were instituted."
During its Dec. 5 meeting, the council approved the request on first reading by a 6-1 vote after City Attorney Frank Garza told the council it was legally bound to approve it because Karowalia’s prior commitment from Hays County met the requirements of the Local Government Code.
However, at Tuesday’s meeting Garza reversed his opinion, arguing that "the effective date of the annexation" is Oct. 22, 2013, the date the council, according to Garza, "re-instituted the annexation process" and that Karowalia had not met the 90-day requirement of Section (B) at that time. After the council heard that, it voted 6-0 to deny the zoning change.
Khan, on the other hand, maintained today the effective date of the annexation is actually Dec. 18, 2013, which is the date the council passed the final reading of the annexation ordinance. And, Khan added, Karowalia was issued his multi-family and wastewater permits on Aug. 29, 2013, and thus complies with the 90-day requirement.
"The city planner stated that (the) annexation process was started before 8/29/2013, and he said that he got the dates from historical minutes of meeting on file," Khan wrote. "We don’t care about their in-house meeting dates," only the "official public dates for (the) annexation process "
He listed the official dates as Nov. 21, 2013: the first public hearing on the annexation proposal; Nov. 26, 2013: the second public hearing; Dec. 17, 2013: the first reading of the annexation ordinance; and Dec. 18, 2013: the second and final reading of the ordinance.
"I am advising (the) owners to take strong legal action against (the) council decision," Khan wrote, "and I think that’s the route they will be taking after meeting with (the) city manager."
When asked immediately upon adjournment of Tuesday’s council meeting if the property owners could sue the city, Garza said "There is no case or opinion interpreting this specific provision (of the Local Government Code). None. So, yes they could."
In an email The Kyle Report received from the agent today, Afzaal Khan maintained the property owner, Asifali Karowalia, met all the requirements of the Texas Local Government Code that would allow him to have the property on the 1000 block of Windy Hill Road rezoned for multi-family use. Although the Comprehensive Plan recommends that use for the property, the council denied Karowalia’s request to rezone the property Tuesday.
Prior to his property being annexed by Kyle, Karowalia signed an agreement with Hays County guaranteeing him the right to construct an apartment complex on the property. The Local Government Code states "A municipality may not, after annexing an area, prohibit a person from (1) continuing to use land in the area in the manner in which the land was being used on the date the annexation proceedings were instituted if the land use was legal at that time; or (2) beginning to use land in the area in the manner that was planned for the land before the 90th day before the effective date of the annexation if: (A) one or more licenses, certificates, permits, approvals, or other forms of authorization by a governmental entity were required by law for the planned land use; and (B) a completed application for the initial authorization was filed with the governmental entity before the date the annexation proceedings were instituted."
During its Dec. 5 meeting, the council approved the request on first reading by a 6-1 vote after City Attorney Frank Garza told the council it was legally bound to approve it because Karowalia’s prior commitment from Hays County met the requirements of the Local Government Code.
However, at Tuesday’s meeting Garza reversed his opinion, arguing that "the effective date of the annexation" is Oct. 22, 2013, the date the council, according to Garza, "re-instituted the annexation process" and that Karowalia had not met the 90-day requirement of Section (B) at that time. After the council heard that, it voted 6-0 to deny the zoning change.
Khan, on the other hand, maintained today the effective date of the annexation is actually Dec. 18, 2013, which is the date the council passed the final reading of the annexation ordinance. And, Khan added, Karowalia was issued his multi-family and wastewater permits on Aug. 29, 2013, and thus complies with the 90-day requirement.
"The city planner stated that (the) annexation process was started before 8/29/2013, and he said that he got the dates from historical minutes of meeting on file," Khan wrote. "We don’t care about their in-house meeting dates," only the "official public dates for (the) annexation process "
He listed the official dates as Nov. 21, 2013: the first public hearing on the annexation proposal; Nov. 26, 2013: the second public hearing; Dec. 17, 2013: the first reading of the annexation ordinance; and Dec. 18, 2013: the second and final reading of the ordinance.
"I am advising (the) owners to take strong legal action against (the) council decision," Khan wrote, "and I think that’s the route they will be taking after meeting with (the) city manager."
When asked immediately upon adjournment of Tuesday’s council meeting if the property owners could sue the city, Garza said "There is no case or opinion interpreting this specific provision (of the Local Government Code). None. So, yes they could."
Wednesday, January 3, 2018
Attorney changes course on zoning request allowing council to deny it
While acknowledging no case law exists to support his revised thesis, City Attorney Frank Garza reversed his opinion on whether the council had the legal liberty to oppose a zoning request at Tuesday night’s City Council meeting and the council embraced his new interpretation of the Texas Local Government Code, voting unanimously to deny a multi-family zoning request on Windy Hill Road.
At its meeting Dec. 5, Garza apparently told council members in executive session that a document the land owner signed with Hays County, before the property was annexed by the City of Kyle, that guaranteed him the right to build a multi-family project on the property, effectively tied the hands of council members who wanted to kill the project. Section 43.0029(a)(2)(A) of the Code states "a municipality may not, after annexing an area, prohibit a person from beginning to use land in the area in the manner that was planned for the land before the 90th day before the effective date of the annexation if one or more … forms of authorization by a governmental entity were required by law for the planned land use." Garza originally argued that the agreement with Hays County constituted such an "authorization by a governmental entity."
What apparently caused him to change his mind is that the Code also said an additional requirement must be met — one that calls for, in the language of the Code, "a completed application for the initial authorization with the governmental entity before the date the annexation proceedings were instituted."
What is not clear and what Garza acknowledged does not exist in case law is what exactly defines the institution of annexation proceedings.
"As you recall at our last City Council meeting during the first reading I basically communicated to the council because of the vested rights and the permit applications that had been submitted by the property owner the council had limited authority to not grant the zoning because of the permitting process," Garza told council Tuesday. "As a result of additional information that was provided, this property had actually been notified in August of 2013 of annexation. The city put a halt to that annexation process in the first meeting in October and did not proceed with the annexation. But the city directed staff to immediately direct and communicate to the property owners that the annexation would again begin. On October 22nd, council adopted a resolution authorizing the notifications and starting the annexation process again. On October 23rd, the property owner was notified of the annexation. In their arguments as to why they should be granted the zoning and have vested rights they point to Chapter 43.002 of the Local Government Code which is the annexation statute and the annexation statute basically says the city may not deny the land use if beginning to use the land in the area in the manner that was planned for before the 90th day before the effective date of the annexation. And that’s what they are arguing. They received a permit in August from the city for wastewater and therefore since the annexation was not completed until December that they met that 90-day requirement."
However, Garza pointed out, it’s that second provision that required the completed application before the date the annexation proceedings were instituted that allowed council to deny the zoning request. "Not completed," he emphasized, but "were instituted."
"The city re-instituted their annexation process on October 22, 2013," Garza told the council. "The property owner submitted an application to the county for the multi-family and commercial in November, after the city had already instituted the annexation process. So they don’t meet the second element. So I want to clarify for the council your decision is not tied by the law, but it’s really your discretion to whether the zoning is appropriate for the property and not because it is required by vested rights."
Now it could be argued, with some degree of logic, the council already decided this zoning is appropriate for the property when it approved a revised Comprehensive Plan that recommended this particular type of multi-family zoning for this area. However, council member Daphne Tenorio moved and colleague Damon Fogley seconded her motion to deny the zoning on the grounds that Windy Hill couldn’t handle the additional traffic that would result from the addition of an apartment complex on the road.
That argument was countered, in absentia, by Mayor Pro Tem Shane Arabie, who didn’t attend Tuesday’s meeting because of a work conflict, but, according to Mayor Travis Mitchell, had an extended telephone conversation with Mitchell earlier in the day about the proposal.
"He (Arabie) had three main arguments on why he thought the zoning was appropriate, all of which I thought were very valid," Mitchell said. One was the fact the zoning was recommended in the Comp Plan. "Second, the Dacy Lane-Windy Hill intersection is a burgeoning regional node because the county has already authorized us spending $10 million to vastly improve that road to handle additional traffic. He also maintained a lot of the traffic out in that area actually exits east and north using Dacy Lane and 2001 and that the regional plan for transportation for that area includes connecting all those roads so that people who live out that far will have exit points north, south, east and west and won’t necessarily have to come straight west to the intersection.
"Additionally, and what I found to be his most compelling argument was the fact he says if you continually deny development deciding you don’t have the financial ability to improve the roads you will never have the financial ability to improve the roads and we’re taking, ultimately, the position that you’re abandoning that area. The only way to get it to the CIP level of discussion and the investment into that portion of our community is to pay for it through property taxes generated from the homes and businesses that use that road. To deny homes and to deny businesses along Windy Hill how are we ever going to see improvements that are needed for the existing homeowners that are out there. I find those arguments compelling because I look at Windy Hill Road and I wonder how we are ever going to improve it. If we deny development, how are we ever going to get tax revenue so that we’re not taking it from existing homeowners far away but actually being able to justify the improvements along Windy Hill and Dacy that are needed by the homeowners that are out there."
However, as compelling as Mitchell found Arabie’s arguments, the mayor had his own reasons for denying the zoning request and they had nothing to do with Windy Hill Road.
"I think R-3-2 is too dense for that area," Mitchell said. "There are other zoning I would be open to. Windy Hill, as it exists today, doesn’t rise to the level of justifying maybe a $10, $15, $20 million investment to increase that road from a two-lane to a four-lane road. I don’t think the traffic on Windy Hill Road at this point is to the threshold of saying no development needs to happen. It does get busy during peak hours, but every road including the feeder road on I35 gets very busy during peak hours. Right now, it’s not that bad, but future development is going to continue to have an impact and I think that smart city planning says highly dense zoning categories such as R-3-3 and R-3-2 really need to be around urban cores and regional nodes and this really satisfies neither."
Here’s the basic fallacy in Mitchell’s "urban core" argument, however. Anyone who is paying attention realizes apartment complexes are springing up all along Kohler’s near the Performing Arts Center, which is the exact same distance from City Hall as 1049 Windy Hill Road, which, according to the agenda item, is the address for this proposed development. Thus, Mitchell must be saying, four miles north northwest of City Hall is part of the urban core, but four miles north northeast is not. I’m not sure I follow that logic, but so be it.
Immediately after the meeting I asked Garza whether the property owner could file a lawsuit against the city alleging it’s up to the courts to decide once and for all what specific actions constitute the institution of annexation proceedings.
"With regard to that, yes," Garza said. "There is no case or opinion interpreting this specific provision. None. So, yes they could. They would also probably add additional allegations such as takings and so forth, but it’s clear under zoning law no property owner is guaranteed the highest and best use. They are just guaranteed a use."
(Updated material begins here) ‘I am out of the country until this Saturday and have not spoken to the applicant in quite some time," Terry Irion, the attorney representing the property owner, Asifali Karowalia, told me today in an e-mail.. "I have not seen the City Attorney’s argument, but it may well hinge on when annexation was initiated. If initiated in 2013 and then abandoned , the process would again need to be initiated in accordance with the annexation procedures laid out in Chapter 43 of the Local Government Code." (End of updated material)
Garza maintained the date that should be considered as the deadline date is when the city commenced the annexation process. I pointed out to him that many times last year, Congress "commenced" to repeal Obamacare, but never actually got it done so that’s why it might still be up to the courts to specify what is the valid date.
For the record, "takings" that Garza referred to occur when a zoning action causes a property to lose all monetary value. Article I, Section 17, of the Texas Constitution provides that, "[n]o person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made …" The United States Constitution contains a similar provision, and when Texas courts analyze whether an ordinance or other regulation constitutes a takings, they often turn to federal law to make that determination. Downzoning (rezoning land to a more restrictive use) may be called into question as a regulatory taking, according to the Texas Municipal League.
At its meeting Dec. 5, Garza apparently told council members in executive session that a document the land owner signed with Hays County, before the property was annexed by the City of Kyle, that guaranteed him the right to build a multi-family project on the property, effectively tied the hands of council members who wanted to kill the project. Section 43.0029(a)(2)(A) of the Code states "a municipality may not, after annexing an area, prohibit a person from beginning to use land in the area in the manner that was planned for the land before the 90th day before the effective date of the annexation if one or more … forms of authorization by a governmental entity were required by law for the planned land use." Garza originally argued that the agreement with Hays County constituted such an "authorization by a governmental entity."
What apparently caused him to change his mind is that the Code also said an additional requirement must be met — one that calls for, in the language of the Code, "a completed application for the initial authorization with the governmental entity before the date the annexation proceedings were instituted."
What is not clear and what Garza acknowledged does not exist in case law is what exactly defines the institution of annexation proceedings.
"As you recall at our last City Council meeting during the first reading I basically communicated to the council because of the vested rights and the permit applications that had been submitted by the property owner the council had limited authority to not grant the zoning because of the permitting process," Garza told council Tuesday. "As a result of additional information that was provided, this property had actually been notified in August of 2013 of annexation. The city put a halt to that annexation process in the first meeting in October and did not proceed with the annexation. But the city directed staff to immediately direct and communicate to the property owners that the annexation would again begin. On October 22nd, council adopted a resolution authorizing the notifications and starting the annexation process again. On October 23rd, the property owner was notified of the annexation. In their arguments as to why they should be granted the zoning and have vested rights they point to Chapter 43.002 of the Local Government Code which is the annexation statute and the annexation statute basically says the city may not deny the land use if beginning to use the land in the area in the manner that was planned for before the 90th day before the effective date of the annexation. And that’s what they are arguing. They received a permit in August from the city for wastewater and therefore since the annexation was not completed until December that they met that 90-day requirement."
However, Garza pointed out, it’s that second provision that required the completed application before the date the annexation proceedings were instituted that allowed council to deny the zoning request. "Not completed," he emphasized, but "were instituted."
"The city re-instituted their annexation process on October 22, 2013," Garza told the council. "The property owner submitted an application to the county for the multi-family and commercial in November, after the city had already instituted the annexation process. So they don’t meet the second element. So I want to clarify for the council your decision is not tied by the law, but it’s really your discretion to whether the zoning is appropriate for the property and not because it is required by vested rights."
Now it could be argued, with some degree of logic, the council already decided this zoning is appropriate for the property when it approved a revised Comprehensive Plan that recommended this particular type of multi-family zoning for this area. However, council member Daphne Tenorio moved and colleague Damon Fogley seconded her motion to deny the zoning on the grounds that Windy Hill couldn’t handle the additional traffic that would result from the addition of an apartment complex on the road.
That argument was countered, in absentia, by Mayor Pro Tem Shane Arabie, who didn’t attend Tuesday’s meeting because of a work conflict, but, according to Mayor Travis Mitchell, had an extended telephone conversation with Mitchell earlier in the day about the proposal.
"He (Arabie) had three main arguments on why he thought the zoning was appropriate, all of which I thought were very valid," Mitchell said. One was the fact the zoning was recommended in the Comp Plan. "Second, the Dacy Lane-Windy Hill intersection is a burgeoning regional node because the county has already authorized us spending $10 million to vastly improve that road to handle additional traffic. He also maintained a lot of the traffic out in that area actually exits east and north using Dacy Lane and 2001 and that the regional plan for transportation for that area includes connecting all those roads so that people who live out that far will have exit points north, south, east and west and won’t necessarily have to come straight west to the intersection.
"Additionally, and what I found to be his most compelling argument was the fact he says if you continually deny development deciding you don’t have the financial ability to improve the roads you will never have the financial ability to improve the roads and we’re taking, ultimately, the position that you’re abandoning that area. The only way to get it to the CIP level of discussion and the investment into that portion of our community is to pay for it through property taxes generated from the homes and businesses that use that road. To deny homes and to deny businesses along Windy Hill how are we ever going to see improvements that are needed for the existing homeowners that are out there. I find those arguments compelling because I look at Windy Hill Road and I wonder how we are ever going to improve it. If we deny development, how are we ever going to get tax revenue so that we’re not taking it from existing homeowners far away but actually being able to justify the improvements along Windy Hill and Dacy that are needed by the homeowners that are out there."
However, as compelling as Mitchell found Arabie’s arguments, the mayor had his own reasons for denying the zoning request and they had nothing to do with Windy Hill Road.
"I think R-3-2 is too dense for that area," Mitchell said. "There are other zoning I would be open to. Windy Hill, as it exists today, doesn’t rise to the level of justifying maybe a $10, $15, $20 million investment to increase that road from a two-lane to a four-lane road. I don’t think the traffic on Windy Hill Road at this point is to the threshold of saying no development needs to happen. It does get busy during peak hours, but every road including the feeder road on I35 gets very busy during peak hours. Right now, it’s not that bad, but future development is going to continue to have an impact and I think that smart city planning says highly dense zoning categories such as R-3-3 and R-3-2 really need to be around urban cores and regional nodes and this really satisfies neither."
Here’s the basic fallacy in Mitchell’s "urban core" argument, however. Anyone who is paying attention realizes apartment complexes are springing up all along Kohler’s near the Performing Arts Center, which is the exact same distance from City Hall as 1049 Windy Hill Road, which, according to the agenda item, is the address for this proposed development. Thus, Mitchell must be saying, four miles north northwest of City Hall is part of the urban core, but four miles north northeast is not. I’m not sure I follow that logic, but so be it.
Immediately after the meeting I asked Garza whether the property owner could file a lawsuit against the city alleging it’s up to the courts to decide once and for all what specific actions constitute the institution of annexation proceedings.
"With regard to that, yes," Garza said. "There is no case or opinion interpreting this specific provision. None. So, yes they could. They would also probably add additional allegations such as takings and so forth, but it’s clear under zoning law no property owner is guaranteed the highest and best use. They are just guaranteed a use."
(Updated material begins here) ‘I am out of the country until this Saturday and have not spoken to the applicant in quite some time," Terry Irion, the attorney representing the property owner, Asifali Karowalia, told me today in an e-mail.. "I have not seen the City Attorney’s argument, but it may well hinge on when annexation was initiated. If initiated in 2013 and then abandoned , the process would again need to be initiated in accordance with the annexation procedures laid out in Chapter 43 of the Local Government Code." (End of updated material)
Garza maintained the date that should be considered as the deadline date is when the city commenced the annexation process. I pointed out to him that many times last year, Congress "commenced" to repeal Obamacare, but never actually got it done so that’s why it might still be up to the courts to specify what is the valid date.
For the record, "takings" that Garza referred to occur when a zoning action causes a property to lose all monetary value. Article I, Section 17, of the Texas Constitution provides that, "[n]o person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made …" The United States Constitution contains a similar provision, and when Texas courts analyze whether an ordinance or other regulation constitutes a takings, they often turn to federal law to make that determination. Downzoning (rezoning land to a more restrictive use) may be called into question as a regulatory taking, according to the Texas Municipal League.
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