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."