P&Z approves unanimously, but arguably illegally, contentious zoning issue

I get it. Planning & Zoning Commissioner Timothy Kay is an ardent anti-growth zealot. Which is fine. He’s entitled to and should be given the latitude to express whatever his feelings on growth in Kyle that he has. And, if he wants to make a difference in Kyle’s path of growth, he should try to get himself elected to the city council where he could possibly have some effect on the formation of city policy. But he should no longer be able to advance his agenda by attempting to sabotage zoning issues that come before P&Z.

He tried it three times at last night’s meeting, possibly even succeeding twice.

The issues involved three applications for rezoning the commission considered. By state law, what an applicant plans to do with land seeking to be rezoned is completely divorced from the actual application. In fact, an applicant is not even legally required to inform a planning commission precisely what he or she plans to do with the property seeking to be rezoned.

However, in complete defiance of state law, Kay not only specifically instructed an applicant what he could locate on the property the applicant wanted rezoned, but Kay acted to restrict the applicant on how he could locate it. He not only did this once, but twice, concerning two separate but related zoning requests. On a third issue, he said he could not vote for a rezoning request without seeing the applicant’s "plans" for the property beforehand. That’s simply against the law. It could also be considered extortion, blackmail – a legislator demanding a citizen engage in an illegal activity in order to gain a favorable legislative decision. Elected officials have gone to jail for actions such as this.

But it’s a more serious problem than just Kay. It has infected the entire commission. I’m not accusing commission members of willfully engaging in illegal activities, but simply not being aware they are engaging in them. In other words, what we’re dealing with here is, to put it bluntly, ignorance, but not deviousness. And the city is not helped by having planning commissioners who are unaware of legal restrictions and the resulting liability. It’s one thing that Kay made illegal amendments to the two related rezoning requests that limited the builder to 3.2 homes per acre on the property, something that can be considered at the site-plan phase of a development, but is illegal at the zoning phase. But it’s a completely separate thing that Commission Chair Dex Ellison didn’t immediately rule the motion to be out of order, which, of course, it was. Here, again, the problem was not that Ellison was deliberately making the city liable for legal challenges to the commission’s actions; he simply didn’t know the motion was out of order. (But try that out in court: "Judge, you must excuse my actions. I had no idea cold blooded murder was illegal.") Then the four other commissioners who attended last night’s meeting, (Mike Torres was absent) became complicit in the illegal activity by voting for the zoning changes with Kay’s amendments attached to them. And, again, I’m going to give these folks the benefit of the doubt and say they voted this way simply because they didn’t know any better and not because there is some sort of deeper conspiracy at work here. I mean this folks obviously don’t know the difference between "discussion" and "debate" so I don’t want to think they are part of some fantastic underground conspiracy to stop all growth in Kyle. But, then, I also believe Oswald acted alone in assassinating President Kennedy and that Neil Armstrong actually walked on the moon. So there’s that, as well.

So what happens next? Between the end of last night’s meeting and noon today I spoke about this with five different attorneys, all of whom are licensed to practice law in Texas although none of whom have a concentration in municipal zoning. All five confirmed Kay’s actions in all three cases were illegal — that they were, indeed, decisions reserved for site plan deliberations but could not be considered in zoning decisions. Where they differed in their opinions is when I asked them what could happen next.

Most of them said legal action was not likely because essentially the applicant was not denied the zoning he requested and that only those who opposed the zoning request from the outset could seek restraint based on the illegalities in question. However, they said, the question could be what those opponents could seek in the form of relief. It would, they told me, be almost impossible to prove the commission’s actions, however illegal they were, harmed them because the amendments made the development more restrictive than it was without the amendments. But a lengthy court battle, whatever the outcome, could delay the start of the project (one of the attorneys told me) for as long as a decade, not only depriving potential home buyers of a worthwhile development, but also denying the city and the rest of its taxpaying citizens the millions of dollars in revenue from impact fees and property taxes.

Others told me the city council, when it rules on the commission’s recommendation (which I expect to happen at its next meeting on Tuesday) could simply ignore the amendments and rule on the original zoning request. And one other attorney told me he would recommend the council remand the recommendation back to the Planning Commission with the instructions "to get it right this time."

I posed the what-happens-next question to the city’s planning staff and assistant director William Atkinson told me "City staff is currently discussing the very recommendation that you're asking about. When we have an update, we'll provide an answer."

Which, at the very least, means the staff recognizes it has a serious problem on its hands. And that’s a start.

Rubsam prunes, trims, plants his landscape ordinance

You can’t blame Michael Rubsam for feeling like Rocky after climbing the steps of the Philadelphia Art Museum. The one great obstacle to his success as chair of the Planning & Zoning Commission had been removed. No longer is he Coleridge’s ancient mariner. It’s as if Camus had permitted Sisyphus to retire. Goodbye Landscape Ordinance and good luck at your next stop.

The commission finally passed Tuesday evening and sent to the city council its revised Landscape Ordinance. And when that unanimous vote (commissioners Lori Huey and Brad Growt did not attend) was recorded, a broad smile could be seen on Rubsam’s face as he raised both arms in the air.

"The landscape ordinance has been an issue for several years now," Rubsam told me after the commission’s two-hour, 24-minute meeting adjourned. "It’s been through many commissioners and we’ve had a lot of input, not only from the commissioners but also from the public. And I’m very pleased we’re going to move forward with this because I think it will streamline what we’ve been faced with granting variances in planning and zoning. It will clarify the rules for the builders in the future."

C’mon, Mike. Quit sounding like a government official. Tell us how you really feel right now.

"This is one of the best days I’ve had at the end of a P&Z meeting for a long time," he said, another broad smile lighting up his face.

The commissioners spent an hour going through the 21-page document making sure all five of them were pleased with every single word on every single page.

The most substantial discussion involved a section labeled "Exceptions" that read "In order to address atypical, site specific development/redevelopment challenges, the community development director and/or his/her designee is authorized to approve alternative compliance landscape plans when s/he determines that one or more of the following conditions are present" and then it listed four such conditions. Commissioner Timothy Kay wanted the commission to have that authority, not the "community development director and/or his/her designee."

Kay was also concerned about the next paragraph which said anyone "with standing" who didn’t like the staff’s decision to approve an alternative plan could appeal that decision to P&Z within 30 days. Kay wondered how anyone, outside the party who asked staff for the change, would even be aware a change had been made.

Although commissioner Dex Ellision said he agreed with Kay in theory he finally sided with the other three commissioners who said the driving motivation behind the revised ordinance was to keep P&Z from having to rule on all these requests. The commissioner also agreed that giving this responsibility to city staff would speed up the permitting process, something all developers everywhere clamor for (see the complaints of one such developer below). As for informing those "with standing" of a possible change, language was added so that once a change was requested, a sign reflecting that change request had to be posted on the property and the change could not be approved until at least 10 days after the posting of that sign.

That, and the word "Exceptions" was changed to "Variances."

The commissioners also recommended the council approve language amending the ordinances regarding impervious surfaces and postponed until their Oct. 11 meeting deciding the fate of two conditional use permits.

In the first conditional use permit case, the commissioners were concerned the north side of a proposed 9,000-square-foot retail center planned for the northbound frontage road of I-35, just north of the AMM Collision Center, did not contain the required masonry the city dictates must be on all buildings. The building’s owner, Dennis Artale, who said he hoped to lease a portion of the center for a restaurant and eventually construct a hotel just to the south of the center, said since all traffic would be driving north on the frontage road anyway, that side of the building wouldn’t be that visible. In addition, he said, a line of trees on the property line just beyond the building also obscured that side.

City planner William Atkinson said, however, everything Artale said was irrelevant. "The I-35 overlay standards have been in place for quite some time, prior to 2015," Atkinson told the commissioners. "To be honest it really shouldn’t be an issue that the four-side masonry on the north side needs to be in place. We go by our code and it’s a simple as that."

Needless to say, Artale was not happy with the entire process.

"This will end up raising the cost on the property in addition to the added wait time," he said. "I have never built anything in Kyle. This is my first experience and it hasn’t been a good one. I’ve built two retails in Buda off of 967 but I hadn’t built one here in Kyle yet. But it seems like the process takes a lot longer here. I don’t know if there is any way we can speed the process up because the small business person we have to get a loan to buy the land, the loan for the interim and all of that. It just adds more and more layers to the cost. Then we have to hope we can lease it out enough to make ends meet."

In the second case, involving a proposed 16,000-square foot blood bank across Kyle Parkway from Seton Medical Center, the commissioners were hesitant to act until the Board of Adjustments rules on the property owner’s request for additional parking places. That ruling is expected at the Board of Adjustments’ Oct. 3 meeting. The maximum allowable parking spaces for such a facility is 101. The blood bank, BioLife Plasma Services, is seeking 170, which their architect claimed, is the number needed to accommodate customer demand at all the other identical facilities the company has constructed around the country.

The big question on the impervious surface issue was whether a swimming pool filled with water could be considered an impervious surface. In the end, the commissioners decided it was.

Kyle to be without a Queen for “a few months”

No word yet on when the reigning Dairy Queen will abdicate be demolished or exactly when her successor will be crowned open, but the architect involved in the project to essentially turn what is estimated to be a 40-plus year old structure 90 degrees to the left guessed today Kyle will be without a Dairy Queen for "a few months."

After this evening's 20-minute P&Z meeting, during which the commissioners chose Timothy Kay as their vice chair and voted 6-0 (commissioner Lori Huey missed the meeting) to approve a conditional use permit to construct a new Diary Queen on the site occupied by the current one at the southeastern corner of I-35 and Ranch Road 150, its architect, Greg Guerin of Forney, Texas, when asked specifically how long Kyle will be without a Diary Queen, replied "I don’t do the construction. I know some of these restaurants can get complete within a few months. I know construction is going to take at least a few months."

When asked when demolition/construction would begin, Guerin said "Hopefully, we get building plans submitted next month and then maybe get a permit within a couple months, we should be able to start. The owner would like to start as soon as possible."

Put all that non-specificity together and my guess is the new facility could be open right around the beginning of 2017, if everything falls neatly into place.

Guerin said one of the reasons for replacing the building, in addition to its age, was to alleviate a drive-through traffic flow that often caused backups on the northbound I-35 service road. He said the main entrance to the new Diary Queen, which will be almost exactly the same size as the current one (about 3,000 square feet), will be on Ranch Road 150 and cars will flow from the entrance in a southerly direction to the pickup window which will be located on the south side of the building. He said parking for those wishing to eat inside the restaurant will be located on the western (I-35) side of the property and that area will contain three lanes of traffic so as not to interfere with the drive-through customers.

No one at tonight’s meeting could tell me definitively when the current Diary Queen was constructed, but Guerin said the overwhelming majority of the restaurants still standing in Texas were erected in the 1970s.

Not counting chairman Mike Rubsam, the gender division of the Planning & Zoning Commission is three men and three women. I bring that up only because all three men — Kay, Dex Ellison and Brad Growt — nominated themselves to be the commission’s vice-chair (a position that has been vacant since Mike Wilson’s term expired several months ago). Although Kay claimed to be the most senior of the three nominees, according to the city’s web site, both his and Ellison’s term commenced last Sept, 15.

P&Z Commissioner Kay should apologize or resign

On a personal level, I really like Planning & Zoning Commissioner Timothy Kay. I have enjoyed some illuminating conversations with him not only at P&Z meetings but on those occasions when I have run into him while shopping at the H-E-B. At heart, I think Kay’s a really good fella.

But near the end of last night’s Planning and Zoning Commission, Kay went on a tirade that was embarrassing at best and insulting to the city’s and the commission’s customers at worst. He needs to take the time to either publically apologize at the next P&Z meeting or tender his resignation from the commission.

Kay’s inconsiderate and uncalled for rant stemmed from the fact that P&Z’s Dec. 8 meeting was cancelled at the last possible second due to the lack of a quorum. Only three of the seven commissioners showed up.

"The fact that we did not have a quorum last meeting, we were criticized for that," Kay said from the dias at last night’s meeting. He then related a tragic story of a relative who died of cancer that, while heartbreaking, was totally irrelevant.

‘To have anyone criticize any one of us or all of us for not having a quorum just feels wrong," Kay concluded.

No, Commissioner Kay, it’s not wrong. When you agreed to serve on the Planning & Zoning Commission, you assumed the role, whether you like it or not, whether it’s convenient or not, of a Public Servant.

I’m not saying there’s never a legitimate reason for a commissioner to miss a meeting every now and then and Kay’s excuse certainly seemed more than legitimate. But one commissioner missing a meeting and not having a quorum are two different things entirely and then to say it’s wrong for people to "criticize any one of us or all of us for not having a quorum" is an insult to that public you are supposed to be serving.

Those members of that public who are requesting action from the commissioners are expecting some form of action on those requests when they appear on the agenda. For them to show up to City Hall -- and a few of them I know have driven more than 200 miles to make an appearance -- only to learn just as the meeting is supposed to take place that it has been cancelled for lack of a quorum invites criticism and you better well just accept that fact. To say that these people don’t have the right to criticize the fact that you completely wasted their time is a shameful insult.

After last night’s meeting I overheard a conversation between Planning and Community Development Director Howard J. Koontz and P&Z Commissioner Michelle Christie, both of whom apparently are major hockey buffs. Koontz was telling Christie how he had purchased upgraded Amtrak tickets to ride the train to Dallas to see an NHL game at the American Airlines Center. Imagine how he might feel if, after he had not only purchased the train tickets, but game tickets and made his hotel reservations, that he learned shortly after entering the arena that the game had been cancelled because not enough players showed up to put a complete team on the ice. You think Koontz might be critical? Of course he would. He would have every right to be critical. But not according to Commissioner Kay, who believes the needs of commissioners far outweigh those of the customers and the public the Planning & Zoning Commission is supposed to be serving and representing.

Well, maybe, he doesn’t really believe that. And if that’s the case he should apologize for saying he did. But if he does really believe it, he needs to offer his resignation immediately.