I find it difficult not to think in culinary terms when pondering Tuesday’s City Council agenda with the appetizer being those imaginary phantom trails that are supposed to connect Kyle to neighboring cities but really don’t, the main courses offering annexations and short-term rental studies with a desert being what appears to be another look at a controversial zoning decision but we won’t know for sure because that dish will be served in private.
To add a little more intrigue, there have been some additions and deletions since the agenda was first posted at the end of business Thursday.
In April 2016, the City Council approved annexing close to 10,000 acres located along what was then the southern and western edges of the city limits. However, in somewhat of a convoluted deal, the owners of 15 properties included in the annexed area signed development agreements that exempted them from having to pay city taxes (and also kept them off voter rolls for city elections) as long as those properties were not altered in any fashion. Their moral argument was that they had purchased these properties so they could enjoy "the idyllic rustic, rural lifestyle far from the madding crowds of urbanization" and didn’t want any politicians forcing them to do otherwise. Of course, there was also the benefit of receiving all those city services without having to pay for them. Throughout all of this, however, was the lure of financial windfalls trumping the moral arguments.
Whether that lure is what convinced one of those 15 property owners, Tom and Mary Ayers, to sell their 17.19 acres located at 1001 South Sledge Street is unknown. What is known is that they did, in fact, sell that land to Thunder Horse Development LLC, which, according to its website, is "a real estate development company in the Austin, Texas Hill Country Area with a focus on developing residential lots to sell to home builders." In a letter to the city, C. Michael Bowen, Jr., the president of Thunder Horse, said the company purchased the property with the intention to develop single-family residential lots on those 17.19 acres. "The plan is to build a subdivision that offers lots such that a homebuilder can build homes in the $250-350K price range," Bowen wrote.
Since a collection of single-family residential lots is, of course, an alteration to "the idyllic rustic, rural lifestyle far from the madding crowds of urbanization," it triggers an automatic voluntary annexation which is the reason Item 14 is on Tuesday’s agenda and also the reason why it shouldn’t provoke any substantial discussion, even though a public hearing is attached to the item (which probably means a few diehards from the old guard will speak out against it). Actually, a public hearing on this annexation is not required, according to the Development Agreement and the Texas Local Government Code, but, as Planning and Community Development Director Howard J. Koontz wrote "the City of Kyle has found that it is in the best interest to exceed minimum requirements to allow the public an opportunity to voice any concerns or support relating to the annexation."
So while it is known that the sale of this land is what prompted Item 14, the reasons behind Item 18, "consider and possible action to direct (the) Planning and Zoning Commission to gather public input and conduct (a) short term rental study," are somewhat murkier. I reached out to Mayor Travis Mitchell, who placed the item on the agenda, and he said he would prefer to have the opportunity to discuss this with fellow council members before making his motivations public. However, Mitchell did direct me to a recent article in the Hays Free Press that surveyed what actions other cities in Hays County were taking to regulate short-term rentals. That story said Mayor Mitchell "after receiving a few resident complaints a few months ago regarding a neighbor’s short-term rental, the city started an information campaign alerting residents via their utility bills that they cannot operate short-term rentals within the city limits. Mitchell said the city crafts residential ordinances around residential living and that a conversation regarding regulating short-term rentals has not happened yet because city officials have not seen a demand for it yet. ‘It’s not explicitly prohibited but I personally think it’s a gray area,’ Mitchell said," according to the article. I’m guessing now Mitchell considers the idea has shifted through one or more of the 50 shades of gray.
Personally, I never thought of Kyle as that much of a tourist destination, but I was surprised to the level of being somewhat shocked yesterday when I went on Airbnb’s website and found far more listings for short-term rentals in Kyle than I anticipated. So it would appear that some form of study on this subject is warranted and P&Z seems as capable of conducting it and making some recommendations to council as anyone. (Full disclosure: for those who are unaware of this fact, I am a member of the Planning & Zoning Commission.)
What is labeled as 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" was supposed to take place last month, but a winter storm forced its postponement. The key word in the above description is "proposed" because right now this is nothing more than pipe dream conceived by some well-meaning environmentalists and executed by geography students from Texas State much to the shock and surprise of property owners who had absolutely no clue that these folks planned to possibly put a trail through their land until they saw the maps. And, if you look at the maps, it’s easy to see immediately that the proposed trail routes do seem to connect Austin to San Marcos. But they are all located significantly north and west of Kyle. For the life of me, I can’t see any reason why the city would want to devote much energy, let alone financial assistance, to this endeavor when there is a dire need for a heavy investment in a hike/bike trail infrastructure right here in the city.
All this reminds me of a plan that was afoot when I first relocated here nearly four years ago and that was this foolish idea, I think it was called Lone Star Rail, to develop a commuter heavy rail mass transit system on the Southern Pacific rail line, compelling SP to shift its line to the eastern side of I-35. Fortunately, that plan died. However, a far less expensive and far more useful proposition would be to create a regional group that could purchase that rail line between San Antonio and a point north of Austin and convert it into a hike/bike trail that could serve as a spine for municipal hike/bike trails in local communities along the trail. Now, that would be something.
But I digress. Two — count ‘em, two — executive sessions are planned for Tuesday’s meeting. The first, scheduled to take place immediately after the opening citizen comments period, could actually produce the revelation of what law firm could be representing the city’s legal matters. The traditional executive session — the one near the end of the meeting — includes the tantalizing mention of "pending or contemplated litigation or to seek the advice of the city attorney" on the subject of "Windy Hill Zoning." Of course, anything to do with executive sessions are, by definition, hush-hush but I can’t help but speculate this involves that controversial decision the council made to deny a multi-family zoning request on Windy Hill. When it first came up for discussion last Dec. 5, it appeared the council was set to oppose it until City Attorney Frank Garza held a special executive session with council members after which they voted 6-1 to approve it. Then, during the council’s Jan. 3 meeting, Garza reversed his opinion on whether the council had the legal liberty to oppose the zoning and the council voted unanimously to deny the request. Garza admitted to me at the time, however, no case law existed to support his argument. So I can’t help but wonder whether some new information has come to light that might have caused another interpretation of the Texas Local Government Code on the matter, hence the item included in Tuesday’s second executive session.
What’s missing from either executive session is any mention of the "Jesse Espinoza Lawsuit" that was supposed to be part of the council’s Jan. 11 executive session. However, Garza told me that item wasn’t discussed at that time because the city had not received a copy of the lawsuit in which Espinoza claims his indefinite suspension from the Kyle Police Department was the result of racial discrimination. I can’t help but wonder whether the fact that no mention of this lawsuit is made on this agenda means the city still hasn’t received notice of the legal action or possibly whether it’s because the lawsuit has been withdrawn or dismissed. I’m not an attorney. I haven’t even played one on television. But it was an interim police chief who dismissed Espinoza, the only dismissal from the Kyle police force handed down by this person and I can’t see how a pattern of discrimination can be determined by just one action. But, like I said, I’m no attorney.
The late addition to this week’s agenda involves an item that would allow a fifth ex-officio (i.e., non-voting) member on the city’s Economic Development Board, a position that would be reserved for a representative from the Hays school district. The deletion was a portion of the city manager’s report dealing with an update on the provisions of a loan agreement the council approved to RSI, Inc., in September 2016, "We neglected to go over the information we received with Hays County (as they are part of the agreement) and would like to do this prior to any public updates," City Manager Scott Sellers graciously volunteered to me yesterday. I have been looking forward to this update because the agreement included the expectations that RSI would hire seven new employees in 2017 and it would be interesting to learn if those expectations had been met or possibly even exceeded.
The Kyle Report
Showing posts with label City Attorney Frank Garza. Show all posts
Showing posts with label City Attorney Frank Garza. Show all posts
Saturday, February 3, 2018
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.)
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.
Friday, March 3, 2017
City attorney refutes Tenorio, says Mitchell innocent of ethics violations
Kyle City Attorney Frank Garza issued an opinion that says City Council member Travis Mitchell has committed no ethics violations in connection with this company’s financial transactions with the City, contradicting what appears to be a retaliatory claim lodged by his colleague on the council, Daphne Tenorio.
When Tenorio learned last month Mitchell, supported by a majority of the council, was prepared to file criminal charges against her based on allegations she profited from information she learned about during council closed executive sessions, her attorney, E. Chevo Pastrano Jr. filed a counter-complaint claiming that the city’s purchases of items from a company owned by Mitchell’s family as well as paying his company for equipment repairs constituted violation of criminal law by Mitchell.
Garza said not only were these claims groundless, but he also told the council member "Mitchell Motorsports may continue to do business with the City as long as you (Council Member Mitchell) have no involvement in any capacity with the City in such transactions."
"Mitchell Motorsports … is the only place in Kyle to have products needed by the City," Garza wrote. "Mitchell Motorsports is the only STIHL dealer and the only Ferris dealer in town. The City uses this type of equipment for their landscaping equipment."
To the non-legal layman, Tenorio’s attorney’s claim that Mitchell committed a criminal act seemed groundless because of the simple fact that "commit" is a transitive verb; i.e. it suggests some form of action on the part of the subject. If any entity took action, it was the City, which made the purchases or ordered the repairs, which, incidentally, averaged only $49.16 per transaction last year and $13.87 per transaction so far In 2017, the years Mitchell has been a member of the City Council.
Garza called these minor purchases, adding "City management has confirmed that because of the minimal cost of these purchases, they are not required to go through the city’s procurement process nor do the purchases require City Council approval."
Pastrano claimed Mitchell committed a criminal/ethics violation by voting to approve the City’s budget for the current fiscal year. Garza, however, seemed to refute that specific allegation as well, writing that Section 2-180 (f) of the City Charter "does not prohibit the contract or transaction from taking place as long as the official does not participate in any manner with the (specific) contract or transaction."
The only purchase from Mitchell Motorsports requiring City Council approval since October 2014 took place before Mitchell was elected to the council.
Finally, Garza wrote Chapter 171 of the Local Government Code "still allows for city officials to have contracts or conduct transactions with an official’s business as long as the official discloses, recuses and does not participate in the decision. The City’s ethics code was patterned after this state law."
Mitchell said tonight in an email that Garza’s opinion "is the written version of what I was told verbally as I prepared to take office."
When Tenorio learned last month Mitchell, supported by a majority of the council, was prepared to file criminal charges against her based on allegations she profited from information she learned about during council closed executive sessions, her attorney, E. Chevo Pastrano Jr. filed a counter-complaint claiming that the city’s purchases of items from a company owned by Mitchell’s family as well as paying his company for equipment repairs constituted violation of criminal law by Mitchell.
Garza said not only were these claims groundless, but he also told the council member "Mitchell Motorsports may continue to do business with the City as long as you (Council Member Mitchell) have no involvement in any capacity with the City in such transactions."
"Mitchell Motorsports … is the only place in Kyle to have products needed by the City," Garza wrote. "Mitchell Motorsports is the only STIHL dealer and the only Ferris dealer in town. The City uses this type of equipment for their landscaping equipment."
To the non-legal layman, Tenorio’s attorney’s claim that Mitchell committed a criminal act seemed groundless because of the simple fact that "commit" is a transitive verb; i.e. it suggests some form of action on the part of the subject. If any entity took action, it was the City, which made the purchases or ordered the repairs, which, incidentally, averaged only $49.16 per transaction last year and $13.87 per transaction so far In 2017, the years Mitchell has been a member of the City Council.
Garza called these minor purchases, adding "City management has confirmed that because of the minimal cost of these purchases, they are not required to go through the city’s procurement process nor do the purchases require City Council approval."
Pastrano claimed Mitchell committed a criminal/ethics violation by voting to approve the City’s budget for the current fiscal year. Garza, however, seemed to refute that specific allegation as well, writing that Section 2-180 (f) of the City Charter "does not prohibit the contract or transaction from taking place as long as the official does not participate in any manner with the (specific) contract or transaction."
The only purchase from Mitchell Motorsports requiring City Council approval since October 2014 took place before Mitchell was elected to the council.
Finally, Garza wrote Chapter 171 of the Local Government Code "still allows for city officials to have contracts or conduct transactions with an official’s business as long as the official discloses, recuses and does not participate in the decision. The City’s ethics code was patterned after this state law."
Mitchell said tonight in an email that Garza’s opinion "is the written version of what I was told verbally as I prepared to take office."
Thursday, December 17, 2015
I am not a doctor, but I’ve seen actors play them on TV
For personal reasons I chose not to attend Tuesday’s final City Council meeting of the year, but I spent much of today going over the proceedings courtesy of the city’s Granicus system and several items jumped out at me.
ZERO ON ZERO
Rick Fraumann, director of sales for Texas Disposal System, briefed the council on the current state of the city’s contract with TDS, one of the few highly respected private waste haulers operating these days. I was struck by the fact that not one single council member had any concerns about what’s going to happen in the future and, even more important, the city’s role in determining that future.
Fraumann told the council the TDS landfill, which is located just north of the 45 Toll Road on the corner of Carl Road and Highway 1327, has approximately 25 years of life remaining. I guess the seven members of the Council figure they won’t be in any positions of authority a quarter of a century from now. Either that or they’re thinking that’s just too far in the future for them to think about. But it’s that type of thought processes that trouble me about where this city is heading. We are only dealing with the present or, at most, five years out, and are paying absolutely no regard to our long-term future. I was stunned by the fact that no one asked Fraumann whether TDS officials were planning for life after the closing of its landfill. No one asked if TDS was considering installing a bioreactor to possibly extend the life of the landfill,
But most shocking of all, no one on the council even mentioned the idea of the city instituting a zero waste diversion plan, a plan that would divert virtually all materials from landfills and incinerators. I’m not sure complete waste diversion is feasible — Austin’s plan calls for an 80 percent diversion rate by the year 2040, interestingly enough the year the TDS landfill is set for closing. But European cities are way ahead of us on this. Capannori, Italy, for instance, has earned enough from selling its former "garbage" to recycling plants that its zero waste scheme (now at more than 80 percent diversion) is self-sufficient, and even saved the local city council more than $2.7 million in 2009. The city has plowed that savings back into further waste-reduction efforts. Capannori is likely to achieve zero waste by 2020, which is an overall European Union goal.
So others believe it can be done. The largest landfill in the state of Texas is the McCommas Bluff Landfill, operated by the City of Dallas and, in addition to installing a bioreactor at the landfill in 2008, the city is taking additional steps to convert the landfill into a recycling center, thus achieving close to a 100 percent diversion rate, hopefully, according to the city’s timetable, around 2030, which is 10 years before the expiration date of the TDS landfill.
So there are cities, even here in Texas, even here in Central Texas, that are concerned about the future, particularly the environmental future. I’m disappointed that Kyle doesn’t seem to be one of them. Instead the concerns here seemed to be:
Can we have recycling pickup three times a month and compost pickup only once? (Council member Damon Fogley)
Can we institute a "pay as you throw" system, which at least has a short-term diversion component but is strictly voluntary. (Council member Daphne Tenorio) Such a billing system encourages recycling and composting by charging customers according to the amount of garbage collected from their homes.
Instead of waiting for once-a-year bulk pickup, why can’t customers haul their own bulky items to the landfill? (Mayor Todd Webster). I was somewhat shocked that Fraumann didn’t address this more directly. According to TDS’s website, there is a "Citizens Convenience Center" designed just for that purpose at the landfill, a fact Fraumann never mentioned.
SHOP LOCAL
From what I gather by my frequent visits to Facebook, there is a real effort here to encourage Kyle consumers to spend their money (and the sales taxes that go along with it) in stores and with businesses located right here within the city limits. Many of these Facebook postings are made by City Council members.
I thought about that when the Council approved an item to pay Sewer Services of Texas, an outfit out of Conroe, Texas, $21,000 to clean debris, gravel and grit clogging digestors at the city’s wastewater treatment plant. And my thought was this: "Why isn’t there a company closer to home that can provide this kind of service?" Sure, Conroe (2012 population estimated at 61,533) is a little bigger than Kyle, but it seems to me that’s the kind of business that could operate successfully in Kyle and I’m wondering what our business development folks are doing to encourage those kind of start-ups here. I am also wondering how much additional weight the city gives to local businesses when it comes to awarding contracts. I’m hoping it’s considerable. I have asked those types of questions of the city and in return I received a copy of the city’s Purchasing Manual. Truth be told: I haven’t had the opportunity to go through it yet.
RETURN WITH US NOW TO THOSE GOLDEN DAYS OF YESTERYEAR...
City Manager Scott Sellers briefed the council on the effects Open Carry laws will have on operations within Kyle City Hall. He said the city is awaiting an opinion from the Attorney General (I’m assuming he means the AG’s office since the Attorney General hisownself is currently dealing with criminal charges filed against him) on whether, because City Hall also acts as a municipal court, the city is allowed to protect itself from the increasing number of deranged madmen conducting mass shooting sprees, and prohibit people packing heat from entering the building. The law specifically says when meetings that fall under the jurisdiction of the Texas Open Meetings Act or Municipal Court sessions are taking place, no gun-toting individuals will be allowed entry into the building as long as "No guns allowed" signs are posted. The law also says guns are prohibited in buildings in which staff members that support the court are employed. In larger cities, which have their own municipal court buildings, this is not an issue — guns are simply verboten in those. But the issue is multi-use buildings like we have here. According to City Attorney Frank Garza, Gov. Greg Abbott says "yes" as long as a court is not in session. But Garza added "the governor was reminded he is no longer the attorney general and could not interpret the law." He said the Texas Municipal League has informed him the attorney general’s opinion on the matter is expected next month.
It appears Sellers expects the AG to rule the way the NRA wants him to, so he asked the council to amend "our personnel policy to allow the city staff to carry in this facility." I mean, city staff needs to protect themselves against upset pistol-packing citizens, right? Why do I think this can only end badly?
In other action, the council:
ZERO ON ZERO
Rick Fraumann, director of sales for Texas Disposal System, briefed the council on the current state of the city’s contract with TDS, one of the few highly respected private waste haulers operating these days. I was struck by the fact that not one single council member had any concerns about what’s going to happen in the future and, even more important, the city’s role in determining that future.
Fraumann told the council the TDS landfill, which is located just north of the 45 Toll Road on the corner of Carl Road and Highway 1327, has approximately 25 years of life remaining. I guess the seven members of the Council figure they won’t be in any positions of authority a quarter of a century from now. Either that or they’re thinking that’s just too far in the future for them to think about. But it’s that type of thought processes that trouble me about where this city is heading. We are only dealing with the present or, at most, five years out, and are paying absolutely no regard to our long-term future. I was stunned by the fact that no one asked Fraumann whether TDS officials were planning for life after the closing of its landfill. No one asked if TDS was considering installing a bioreactor to possibly extend the life of the landfill,
But most shocking of all, no one on the council even mentioned the idea of the city instituting a zero waste diversion plan, a plan that would divert virtually all materials from landfills and incinerators. I’m not sure complete waste diversion is feasible — Austin’s plan calls for an 80 percent diversion rate by the year 2040, interestingly enough the year the TDS landfill is set for closing. But European cities are way ahead of us on this. Capannori, Italy, for instance, has earned enough from selling its former "garbage" to recycling plants that its zero waste scheme (now at more than 80 percent diversion) is self-sufficient, and even saved the local city council more than $2.7 million in 2009. The city has plowed that savings back into further waste-reduction efforts. Capannori is likely to achieve zero waste by 2020, which is an overall European Union goal.
So others believe it can be done. The largest landfill in the state of Texas is the McCommas Bluff Landfill, operated by the City of Dallas and, in addition to installing a bioreactor at the landfill in 2008, the city is taking additional steps to convert the landfill into a recycling center, thus achieving close to a 100 percent diversion rate, hopefully, according to the city’s timetable, around 2030, which is 10 years before the expiration date of the TDS landfill.
So there are cities, even here in Texas, even here in Central Texas, that are concerned about the future, particularly the environmental future. I’m disappointed that Kyle doesn’t seem to be one of them. Instead the concerns here seemed to be:
Can we have recycling pickup three times a month and compost pickup only once? (Council member Damon Fogley)
Can we institute a "pay as you throw" system, which at least has a short-term diversion component but is strictly voluntary. (Council member Daphne Tenorio) Such a billing system encourages recycling and composting by charging customers according to the amount of garbage collected from their homes.
Instead of waiting for once-a-year bulk pickup, why can’t customers haul their own bulky items to the landfill? (Mayor Todd Webster). I was somewhat shocked that Fraumann didn’t address this more directly. According to TDS’s website, there is a "Citizens Convenience Center" designed just for that purpose at the landfill, a fact Fraumann never mentioned.
SHOP LOCAL
From what I gather by my frequent visits to Facebook, there is a real effort here to encourage Kyle consumers to spend their money (and the sales taxes that go along with it) in stores and with businesses located right here within the city limits. Many of these Facebook postings are made by City Council members.
I thought about that when the Council approved an item to pay Sewer Services of Texas, an outfit out of Conroe, Texas, $21,000 to clean debris, gravel and grit clogging digestors at the city’s wastewater treatment plant. And my thought was this: "Why isn’t there a company closer to home that can provide this kind of service?" Sure, Conroe (2012 population estimated at 61,533) is a little bigger than Kyle, but it seems to me that’s the kind of business that could operate successfully in Kyle and I’m wondering what our business development folks are doing to encourage those kind of start-ups here. I am also wondering how much additional weight the city gives to local businesses when it comes to awarding contracts. I’m hoping it’s considerable. I have asked those types of questions of the city and in return I received a copy of the city’s Purchasing Manual. Truth be told: I haven’t had the opportunity to go through it yet.
RETURN WITH US NOW TO THOSE GOLDEN DAYS OF YESTERYEAR...
City Manager Scott Sellers briefed the council on the effects Open Carry laws will have on operations within Kyle City Hall. He said the city is awaiting an opinion from the Attorney General (I’m assuming he means the AG’s office since the Attorney General hisownself is currently dealing with criminal charges filed against him) on whether, because City Hall also acts as a municipal court, the city is allowed to protect itself from the increasing number of deranged madmen conducting mass shooting sprees, and prohibit people packing heat from entering the building. The law specifically says when meetings that fall under the jurisdiction of the Texas Open Meetings Act or Municipal Court sessions are taking place, no gun-toting individuals will be allowed entry into the building as long as "No guns allowed" signs are posted. The law also says guns are prohibited in buildings in which staff members that support the court are employed. In larger cities, which have their own municipal court buildings, this is not an issue — guns are simply verboten in those. But the issue is multi-use buildings like we have here. According to City Attorney Frank Garza, Gov. Greg Abbott says "yes" as long as a court is not in session. But Garza added "the governor was reminded he is no longer the attorney general and could not interpret the law." He said the Texas Municipal League has informed him the attorney general’s opinion on the matter is expected next month.
It appears Sellers expects the AG to rule the way the NRA wants him to, so he asked the council to amend "our personnel policy to allow the city staff to carry in this facility." I mean, city staff needs to protect themselves against upset pistol-packing citizens, right? Why do I think this can only end badly?
In other action, the council:
- Approved the nominations of Meghan Murphy, Luke Jackson, Dalton Tristan, Destinee Cabrera and Nate McHale to the Kyle Area Youth Advisory Council. No additional information was provided about the nominees, like where they attend school, their respective ages, but I’m sure they are all fine young adults.
- Gave final approval to a zoning change along I-35 between Kohler’s Crossing and Kyle Parkway that would permit the construction of an adult book store or a strip club at the location, although the developer swears he only wants to erect a far-less-profitable self storage facility there.
- At the suggestion of council member Tenorio, discussed the notion of hiring another person to help with billing in the Water Utility Department. Council member Shane Arabie argued the addition could almost pay for itself in increasing the collection of accounts receivable but City Manager Scott Sellers asked the council to wait and measure efficiencies the city was about to put into place and then determine during the fiscal year 2016-17 budget discussions whether such an addition was warranted.
- Gave significant relief to homeowners who are part of the Bunton Creek Public Improvement District, approving an ordinance that reduces their PID assessment from $2,995 payable over a 30-year period (about $190 a year, including interest) to $1,850 over 20-years ($148.45 annually), Those who already paid the entire higher assessment will be given a refund. In addition, all the penalties assessed homeowners for non-payment under the old rules have been expunged. Like the song says, "It’s just like starting over."
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