Tuesday’s city council agenda item to reconsider the vote on a zoning issue is just one more example of why it’s foolhardy to the point of being disastrous for cities the size of Kyle to have single member city council districts.
Talk to most good government experts and they’ll agree. Single member city council districts work efficiently only in cities with a population of at least 100,000 (cities as large as Seattle elect all council members at large) and the Sledge Street zoning folly is a perfect example of why this is so. The reason for this has to do with voter turnout. Too often in municipal elections the percentage of registered voters who come to the polls are in the single digits. Kyle is no exception. Historically, voter turnout hovers around 8 percent. That means only a small handful of people decide who runs the government and when cities with smaller populations carve those cities into individual voting districts, that pool of voters who decide the outcome is minuscule.
That’s the reason many of those citizens of Kyle who were the major influentials of Kyle’s elections in the past are solidly opposed to Kyle’s growth today. If growth results in the pool of voters growing larger — even if the small percentages remain unchanged — their influence diminishes proportionately (not to mention rapidly).
Which brings me back to "The Nightmare on Sledge Street." This property was owned for years by Tom and Mary Ayers who, like many of their neighboring property owners, secured development agreements with the city that kept them from having their property annexed into the city limits during annexation proceedings that occurred during the last couple of years. One of the caveats of the agreement, however, was the property could not be changed in any significant way. But the Ayers Family recently sold their 17-acre lot to a Cedar Park, Texas, development company called Thunder Horse Development, which hopes to subdivide the property. That subdivision, obviously, constituted a significant change and triggered annexation proceedings, an annexation that was completed by the passage of a second reading of the annexation ordinance at the last council meeting. It’s important to note at this point that all land within the city limits of Kyle must bear some kind of zoning designation. Therefore, whenever Kyle annexes unzoned property it arbitrarily applies the designation of Agriculture (or "AG") zoning to that property. Thunder Horse Development is asking the city to rezone the property from AG into a residential designation known as R-1-3, the most dense single family residential zoning Kyle has to offer. This request makes perfect sense considering (1) the relatively small size of the property and (2) its proximity to the city center. (Smart Growth teaches cities should place their highest density zoning at the center of the city and make that zoning less dense in concentric circles further away from the city center.) The no-growth element, of course, wants to kill the project entirely although a few of them mask their intentions by pleading for different types of less-dense development on the property.
Council member Tracy Scheel, whose single-member district includes the property in question, is caught in the political crossfire of this mess. That no-growth contingent that is fighting this plan comprise many of the influentials of that district and there’s a good chance they could determine the outcome of the next city council election for that district seat. She must ask herself, if she crosses this very small group of influentials who could possibly sway the outcome of a single-member district election but never an at-large one, could her re-election wishes be squashed before they’re even started? She must decide whether to act in the best interests of the city as a whole or in the best interests of her political future.
And the real villain here is not Scheel, nor the influentials, or the Ayers Family or even Thunder Horse Development. No, the real villain here is the system that allowed for the single-member districts that can be politically manipulated so easily. It’s single-member districts in a city the size of Kyle that force Scheel into dilemmas and unfair decision making situations like the one I just outlined.
What happened at the last council meeting, in a nutshell, when this item first came up for consideration was that all the no-growth influentials came out to speak against it. It’s an interesting phenomenon, but an accurate one all the same, that only those opposed to something usually show up at City Hall to talk on the subject. This is true not just in Kyle, but everywhere I’ve ever been. Those who support it usually don’t think it’s important enough to take time out of their schedule to make the effort and then there’s the overwhelming majority — those who could care less one way or the other — and you know what they’re going to do.
So Scheel, in a move towards single-member district-driven political expediency, made a motion for a less-dense zoning (known as R-1-2) than Thunder Horse applied for. That motion failed on a 3-3 tie vote (Mayor Pro Tem Shane Arabie did not attend this last meeting). Voting against it were Smart Growth proponents Mayor Travis Mitchell and Damon Fogley along with Daphne Tenorio who is the most avid no-growth proponent on the city council — she will vote against any new zoning for this property. Then Mitchell offered a motion to apply the R-1-3 zoning requested by Thunder Horse, but that, too, failed on a 3-3 vote with Scheel, possibly seeing the demise of her political future flashing before her eyes, joining Tenorio and Alex Villalobos, who is also displaying no-growth voting tendencies, in voting against it.
That accomplished exactly what the no-growthers wanted. It killed the subdivision. At least for two weeks.
Which brings me around to the subject of "regulatory taking." I mentioned earlier that whenever Kyle annexes unzoned property into the city it "arbitrarily" applies the AG zoning designation to it. It doesn’t matter at all what’s on the property. Kyle has annexed land that contained nothing but warehouses, but still that property was zoned AG and those warehouses became non-conforming uses. One definition of regulatory taking, is "a situation in which a government regulation limits the uses of private property to such a degree that the regulation effectively deprives the property owners of economically reasonable use or value of their property to such an extent that it deprives them of utility or value of that property, even though the regulation does not formally divest them of title to it." Here’s the deal here: No one — not the Ayers Family, not Thunder Horse Development, no one — asked for that AG zoning for that property. And that’s OK. But the courts have ruled many times that a city doesn’t have to re-zone property exactly the way the property owner desires, but it must rezone it in some way. Failure to do so results in an illegal regulatory taking. And, as it stands right now, Kyle is guilty of such an illegal activity.
Now if the decision was left to the no-growthers, they would rather have taxpayer dollars spent on fighting legal action involving illegal regulatory taking and even having to make a substantial financial settlement in such a matter than have the Sledge Street subdivision. But is that in the best interests of the city as a whole? And the fact that this question even has to be asked illustrates why single member districts in a city the size of Kyle are not in the best interests of the city as a whole.
Agenda Item 10 on Tuesday’s City Council agenda seeks reconsideration and possible further action on the zoning request from Thunder Horse Development. Scheel’s name is attached to item as the person who requested it be placed on the agenda. I have reached out to her to ask her why she is seeking this reconsideration but to be perfectly truthful I reached out to her late in the day and have not really given her enough time to respond properly. If she does, I will insert her comments here.
But her name being attached the item also brings up another interesting point. Only someone on the prevailing side of a vote can ask for that vote to be reconsidered. Technically, Scheel was on the prevailing side of only the vote on the more dense of the two zoning motions. Shouldn’t that mean that only that R-1-3 zoning request should be reconsidered and that a motion to reconsider R-1-2 would be out of order?
And, of course, there’s the obvious question: Will the council avoid the possibility of yet another tie vote by having all city council members present?
Other than that, there’s nothing else really dramatic on the council agenda, although a couple of items do raise questions.
Question No. 1: Why wasn’t Item 12 — amending ordinances having to do with subdivisions — vetted through the Planning & Zoning Commission (it bears repeating I am a member of that commission, but that’s not why I am asking) before it came to the City Council? Planning Director Howard J. Koontz, in a memo to the council, wrote that the purpose of this request is "so that Kyle’s land use and development controls can accommodate quality development practices and serve to protect all those properties, even outside of the city’s corporate limits," whatever that means. I have posed the above question directly to Koontz, but, like my query to Scheel, this one came late in the day and am hoping for a timely response even if I’m not realistically expecting one. (Updated Monday 1:25 p.m.) Koontz informed me early Monday the reason this item is going directly to council, bypassing P&Z, has to do with timing ("to get the language in place before the middle of next month," he said) as well as the obvious: "that's the process for text amendments to Chapter 41 of the City Code." So there's that. (End of update)
Question No. 2:Does the inclusion of something called "Windy Hill Zoning" as part of the executive session agenda mean that the controversial zoning case involving the desire of a property owner to locate an apartment complex on Windy Hill Road, a desire the property owner argues was guaranteed him by Hays County even though it was rejected by the city, mean that a lawsuit has been filed or his pending against the city in this matter? Or does it have to do with an entirely different subject involving "Windy Hill Zoning"? Since this is an executive session matter, there’s no one who will go on the record with information about this, at least not right now. But that’s not going to stop me from raising the question.
I must also admit to a certain curiosity about an economic development prospect to be discussed in executive session that has been dubbed "The Last Mile." The mind reels at the possibilities. Is the prison on the southeast edge of town thinking about installing a death row? Nahh!! That can’t be it. That’s not a maximum security facility. When it was on the last council agenda, I thought it might have had something to with the purchase of the property that will allow the city to extend Marketplace Boulevard from the Burleson Road roundabout to the I-35 frontage road. But I thought that was all settled now. It probably has something to do with property owner negotiations in connection with one of the road bond projects, but, still, that "last mile" moniker conjures up all kinds of possibilities.
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