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.
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