A tug-of-war that began last November over plans for an apartment complex in the 1000 block of Windy Hill Road finally came to a conclusion last night with the revelation that a truce has been signed, albeit a truce that is going to make some folks a tad miffed. To me, the winner in this semi-epic battle is Asifali Karowalia and the losers are all those, including residents of the nearby Amberwood subdivision as well as the mayor and others on the City Council who fought so hard to prevent Karowalia from developing this property he owns on Windy Hill Road into an apartment complex as well as a small retail center. But let me lay out the history and the details of this six-month dispute and you can judge for yourself.
Before his property was annexed into the city, Karowalia signed an agreement with Hays County that guaranteed him the right to construct his apartment complex. Knowing this, the city’s Planning & Zoning Commission approved Karowalia’s request for a specific apartment-type zoning designated as R-3-3 even though the city was recommending a slightly less dense designation known as R-3-2. R-3-3 zoning allows for a maximum of 28 units per acre plus no apartment can be smaller than 500 square feet and 75 percent of them must be at more than 750 square feet. R-3-2 zoning sets the minimum square feet at 400 with the mandate that 75 percent of the total must be larger than 500 square feet. R-3-2 also limits the number of units per acre to 21.
The plans Karowalia outlined for the property — to build 120 apartment units — could be achieved with the R-3-2 zoning, but the Planning & Zoning Commission (truth in advertising: I am a member of this commission) in a split vote decided to recommend R-3-3 zoning to the council because of that agreement with Hays County and the possibility that Karowalia could take legal action if he didn’t get the exact zoning he wanted. And he said he wanted R-3-3 even though 120 apartment units could also be constructed with R-3-2, which is an important factor in deciding the eventual winner of this skirmish.
The matter went to the City Council on Dec. 5 which passed it on first reading 6-1 after then 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.
A little less than a month later, during the council’s first meeting of this year, Garza announced he was reversing his opinion, even though he admitted there was no case law to support this reversal. Armed with that information, the council unanimously voted to deny Karowalia’s zoning even though the zoning Karowalia sought was recommended the city’s Comprehensive Plan. Garza, I believe, was pressured by a few Amberwood residents opposing the complex who apparently convinced him, incorrectly it seems, that Karowalia failed to meet a requirement that requires ""a completed application for the initial authorization with the governmental entity before the date the annexation proceedings were instituted." At issue here, obviously, was what exactly constituted the institution of annexation proceedings. The Amberwood residents convinced Garza who then convinced the council it was one thing while Karowalia and his legal representatives argued it was something else. Council members, who believed Windy Hill Road could not handle the additional traffic that would result if the complex was built, were more than happy to deny the zoning. Mayor Travis Mitchell said during the debate on the request "I think R-3-2 is too dense for that area."
But apparently R-3-2 is exactly what Karowalia is going to get. It’s not the R-3-3 he originally applied for — so there’s that — but, like I said earlier, it’s still a zoning classification that will permit him to build exactly the development he has conceived from the beginning.
On Jan. 6, four days after the council’s denial of Karowalia’s zoning request, his agent, Afzaal Khan, told me he had recommended the property owner initiate legal action against the city, telling me Karowalia’s request met all the requirements of the Texas Local Government Code.
The subject had been listed as a item to be discussed in just about every council Executive Session since that date. I also think it’s no coincidence whatsoever that during this time the council voted to replace Garza as city attorney with Page Saenz of Austin’s Knight Law Firm LP. A couple of weeks ago the council supported a development agreement with Karowalia and directed the staff to bring it to the property owner. Last night City Manager Scott Sellers told me the deal was done. Finished, Settled.
"The applicant has agreed to develop to all of today’s development standards in exchange for the multi-family zoning with the ability to develop 120 units which is what they requested, and the .9 acres of retail services at the front," Sellers told me last night. "That agreement will now go to P&Z for review."
Review what, exactly, since it appeared an agreement on all this had been reached? To get the answer to that question I had to go to Saenz.
"The agreement is complete," she told me. "It recognizes some legal rights to develop the property pursuant to the development agreement, but the development agreement also provides for the land to go through zoning process initiated by the city just so zoning can match the uses in the development agreement. You can’t bind the council to make certain zoning decisions so that whole process is subject to the legislative process. P&Z just needs to go through the process, make the recommendation it will make and then council will take that recommendation and review the zoning case and make their decision."
"This was all solved without conceding any sort of legal opinion on either side," Sellers added, "It’s just a settlement agreement to allow development that’s up to the current city standards."
While I had Sellers’ attention last night, I also asked him about the proposal outlined during the council meeting for a regional wastewater treatment plant to be located along Hemphill Creek southeast of Martindale. The location was chosen because the slope of the land would allow gravity to control the flow of the wastewater to the plant, eliminating the need for electrically driven pumps and lift stations.
Sellers said discussions about this began when the city first started talking about the possibility of potable water reuse at the city’s Plum Creek wastewater plant. "We started talking to the Alliance Regional Water Authority (which is the city’s water provider) about utilizing the same concept as a water provider," Sellers said. "They began exploring being a wastewater provider so they could turn around and use it as part of their portfolio for water.
"Because of the growth demands in the region, the partners of ARWA needed to have some sort of larger regional treatment capacity at some point in the future but everyone’s development pattern was happening at different velocities," Sellers added. "It just so happened that we felt like Kyle’s velocity was faster based upon our annexations. However, the timing of the development agreements ultimately matched up with some of the larger developments in these other communities. So, looking ahead, we feel that the regional wastewater treatment solution as studied by ARWA makes sense for the region because multiple entities can use it and it can be located in a centralized location that makes sense for the growth in the region as a whole. Once that conversation started we just followed it as the preferred option for wastewater treatment in the Blanco Basin."
But I also wondered whether he suffered from the same sticker shock that struck me when ARWA’s Graham Moore told the council last night that the cost to the city of Kyle would be around $39 million by 2025 with the final cost being in the neighborhood of $83,16 million by Phase 3, which is scheduled for 2038. And those numbers are in today’s dollars which most likely means, with inflation, the cost will be significantly higher by the time of Phase 3, which will elevate the plant to a 30-million-gallon-per-day facility (as compared to the city’s current 2.3 MGD capacity).
"I really don’t know how the city will finance this because there are a variety of options," Sellers told me. "We will look at whether the Blanco Basin development needs to be somewhat in its own district. There are impact fees through the system. There are other development fees that can contribute to the development paying its own way. If a bond is needed, which it will be most likely, we would put that on rate payers who are using that plant."
Sellers also said, however, there are current wastewater lines south of Center Street (seven million gallons a day at capacity) and the potential for 10,000 LUE’s in the Waterstone (formerly Lasalle) development that are pumping back to the Plum Creek plant. With the regional plant, this wastewater would be gravity-fed.
"So trying to find an equitable cost is something we’re really going to have to look at," the city manager said. "And one of the advantages of a regional plant is that there are more state and federal sources of revenue because it impacts a broader area then if we were just to do it locally. I’m not sure of the timing of the funding, but those are conversations we will have down the road. But it’s good to have this on the radar now."
Sellers also said no one should be concerned about discharges from the plant that will eventually wind up in the San Marcos River.
"That water will be cleaner than the water currently in the San Marcos River," he promised. "Any discharged effluent must meet TCEQ (Texas Commission on Environmental Quality) requirements. They may see additional flow in the river that could cause channel erosion and it could affect some habitats. We understand that. The great thing about how flows are regulated and permitted in Texas is the permitting process takes all those things into account. We cannot exceed those discharge limits that TCEQ has established."
Although I am not as positive as some when it comes to the environmental stewardship of the TCEQ, I am heartened by the fact that rapidly developing technology will mean much, if not all, of the effluent will be treated for reuse as part of the region’s water supply. That would obviously eliminate the need for any water to be discharged into Hemphill Creek, which eventually flows into the San Marcos River. I was struck by the coincidence of a story buried at the bottom of page B5 in today’s Austin American-Statesman that began "Travis County will use recycled wastewater to cool the chillers that provide air conditioning to four county buildings, saving 10 million gallons of water a year … the equivalent of taking 15,000 homes off city water permanently."
"The technology exists," Sellers said. "There are cities in Texas that already have their drinking water from effluent water."
In other council matters last night, the developer who was seeking a waiver for the location of a road in an about-to-be-developed subdivision on Sledge Street told the council he will simply come up with a new preliminary plan that would eliminate the need for such a waiver and bring it back to council; the council approved an ordinance amendment that prohibits construction in a 100-year floodplain as well as an amendment to another ordinance that would require the base on any new construction in Kyle to be at least two feet in elevation above that 100-year-floodplain level (essentially out of a 500-year floodplain); and approved a land swap of ETJ territory with Uhland so that the ETJs of both cities correspond to already existing parcel boundaries.
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