Fogley fumbles recusal attempt

It is a given that the Kyle City Council does not follow Robert’s Rules of Order or any other accepted parliamentary procedures, but there are certain ethical guidelines that are so tantamount to good government, they must be obeyed. Every single person who serves on a city council or a city board/commission/committee in Kyle should know how to recuse themselves so as to avoid any hint of conflict of interest.

Now different municipalities have different procedures for initiating the recusal process. For the sake of example, let’s use a member of a city council as our subject here because the situation I’m talking about involved a neophyte city council member, Damon Fogley, at last Tuesday’s city council meeting. Normally what happens in situations like this is council members will prepare somewhat before they come to council meetings. They will have at least carefully read the council’s agenda and, thus, will be aware of any item which may pose a conflict of interest before the meeting even starts. I don’t know the exact procedure here in Kyle, but in the civilized world of municipal government, a council person wishing to be recused because a particular agenda item may pose a potential conflict will file a signed affidavit noting that possible conflict with the city secretary, who will then notify the council’s presiding officer just prior to the commencement of that meeting.

The key here is "preparation," a council member actually studying the agenda somewhat a day or two, or even an hour or two, prior to the start of the council meeting. I am not sure that every member of the Kyle City Council takes any time preparing for these meetings.

However it’s handled, there are certain rules that apply in all situations of recusal. The presiding officer must know of a council person’s recusal intent before the agenda item comes up for discussion. And the council member who has been recused must physically leave the chamber where the item is being discussed and voted upon. Fogley did neither Tuesday.

The item in question was a rezoning issue to allow a convenience store/gas station type use on a 1.75 acres that was zoned single family residential. at 2050 E. RR 150. Instead of saying anything ahead of time, Fogley sat through the entire discussion of the item and, just as the vote was about to be taken, asked to be recused. But then, instead of getting up and leaving the chamber as is required in any recusal motion, even one as illegal as Fogley’s was, he just sat there like the Say-No-Evil monkey and simply didn’t cast a vote. Not voting or abstaining from voting on an item is not the same thing as a recusal. The item passed 5-0.

Now I’m not going to put the entire blame for this foolishness on Fogley. Just as much responsibility for this inexcusable behavior needs to be shared with city staff. And there is a very simple way to guard against having our city leaders acting like idiots in the future. Between the time a person is elected for the first time to the city council and that person is sworn in, the staff, led the city attorney, must conduct some form of orientation program for these individuals so that they are aware of the basic rules of Robert’s as well as the reasons to recuse oneself and the proper procedure for a recusal. Staff should conduct the same program for all new members to city boards and commissions as well. If handled correctly, such an orientation class could be held in under an hour.

In other action Tuesday night, the council:

• Seemed receptive the idea presented by an organization called Appa Aguilas to form a soccer program in Kyle, especially if that meant Appa Aguilas was going to relieve the city of the responsibility of maintaining Waterleaf Park.
• Reappointed Mike Wilson, Irene Melendez and Timothy Kay to the Planning & Zoning Commission and appointed former city council candidate Dex Ellison to the commission to replace retiring commissioner Dan Ryan.
• Denied a request to permit overhead electrical service along Bebee Road.
• Approved 5-1 (CM Diane Hervol cast the lone dissenting vote and CM Daphne Tenorio had an excused absence due to illness) a zoning request that will allow the construction of a pair of warehouses on Lehman Road near RR 150.
• Unanimously approved a zoning request to permit the construction 82 rental duplexes directly behind these warehouses.
• In one of the quickest annexation moves on record, the council voted 5-0 (CM Becky Selbera left the meeting without announcing why just prior to discussing this item) to annex the 135.78 acres where David Weekley Homes and Scott Felder Homes are planning a subdivision immediately west of Hometown Kyle. The entire discussion on this issue and the vote consumed less than two minutes of the council’s time. Moments later, the council allowed 2.681 acres of this property to be rezoned so it could be used for retail services right at the intersection of North Old Stagecoach and Cypress roads.
• Discussed the possibility of installing up to three stop signs in the Waterleaf subdivision in an attempt to slow drivers who are apparently racing through the streets of this area at speeds close to 40 miles an hour.
• Heard that, although construction has begun on the Marketplace-to-Burleson road project, the official groundbreaking ceremonies will take place Wednesday, Oct. 7, at 9:30 a.m.
• Was reminded that the council’s first meeting in October will be on the first Wednesday of the month, not the usual first Tuesday, because that Tuesday is National Night Out in Texas and Florida.
• Was informed by City Manager Scott Sellers that Stage 2 water restrictions were returning because (1) water consumption in Kyle was 33 percent greater this year than last and (2) the Barton Springs Pool of the Edwards Aquifer is "steadily dropping" and the San Antonio Pool of the Edwards is in Stage 2.

Council stifles democratic process while passing unnecessary tax hike; P&Z OKs rental duplexes/warehouse project

The Kyle City Council, a body not willing to even hear a dissenting voice, made sure the democratic process was denied last night and then went on to pass a 20 percent unnecessary tax hike.

Let me give you a glimpse of how petty and how corrupt this council has become. A week ago, a pair of council members, Diane Hervol and Daphne Tenorio, attempted to reduce the tax burden on Kyle homeowners by eliminating from the budget a $1.5 million fund the city manager wanted to use as seed money for unnamed future purchases. The effect of this action would have been a 7½ cent reduction in the proposed tax rate. But Hervol and Tenorio are not members of the corrupt council cartel comprised of Mayor Todd Webster and his puppet cronies, David Wilson, Shane Arabie, Becky Selbera and Damon Fogley. So the five of them voted against the motion. Then the mayor proposed to do exactly the same thing—strips this $1.5 million item from the budget—and this time the Corrupt Cowardly Five (I explain the "Cowardly" tag below) voted lock-step in favor of exactly the same thing that only seconds before they voted against.

Now, if they had left it at that, the tax rate would have remained just about where it is now, at .$538 cents per $100 valuation. But, of course, Da Mayor, with his cronies nodding their acceptance every step of the way, tacked on a million or more in additional expenditures to the budget to bring the tax rate back up to the $.5848 rate the council approved last night 5-1 with Tenorio casting the one nay vote.

Now the Corrupt Cowardly Five will still try to blame the increase on the road bonds. Don’t believe it. If Da Mayor had not tacked on his million or so more in additional expenditures the tax rate would have remained where it is today and it would have covered those loan payments.

I’m not going to argue that everything Da Mayor asked for isn’t needed. I will argue, however, that it isn’t needed now. All of those expenditures could have been delayed for another year when they could have been paid for with increased property valuations and additional sale tax revenues without raising the tax rate then either. If they were so important that they should be have been included in this year’s budget, I am confident that City Manager Scott Sellers, whose job it is to monitor these things, would have proposed them and pushed for their passage. But he did neither and that should tell you something. Running this city is not a part-time job for Sellers as it for the Corrupt Cowardly Five.

Then in an absolutely embarrassing and shameful manner, the Corrupt Cowardly Five completely squashed the democratic process. Council member Tenorio made a motion for a budget amendment and the rest of the council (an emergency prevented Hervol from attending last night) earned its "Cowardly" label when not one single member of the Corrupt Cowardly Five seconded the motion. What are these people afraid of? I’ll answer that for you. They are afraid someone will offer a dissenting opinion that actually makes sense and may resonate among the populace. They are afraid of new ideas. They are afraid of opening their minds. They are afraid of ah honest, open debate on any subject Da Mayor doesn’t want them to hear. Out of common courtesy, a motion should be seconded. Seconding a motion doesn’t imply agreement. It implies only that you are willing to open the subject for public discussion and debate. But the Corrupt Cowardly Five are deathly afraid of public discussion and debate on any topic they are already instructed to oppose, so democracy is left outside the front door at Kyle City Hall.

Prior to this shameful display, the Planning & Zoning Commission (minus commissioners Timothy Kay and Lori Huey) occupied the council chambers for about an hour during which commissioners:

• Approved unanimously a request ro rezone an area recently annexed by the city located where Center Street branches off to North Old Stagecoach and Cypress roads to single family residential. Scott Felder homes plans to build on the property. Scott Felder homes generally range anywhere between the mid-$300,000 to the mid-$600,000 range, although I did run across this five-bedroom, four-bath home the developer built in Lakeway that is listed for $786,990. I doubt, however, if anything that grandiose is planned for our neck of the woods;
• Approved a pair of requests by Charles D. Nash Sr. to rezone property located behind Garcia’s Mexican Restaurant and a pawn shop at the corner of Lehman Road and RR 150 to allow for a pair of warehouses and 41 rental duplexes to be constructed there. The warehouses would front Lehman and the duplexes would be located between the warehouses and the Four Seasons subdivision to the southeast. Robert W. McDonald, the actual developer of the project, said the warehouses, one about 10,000 square feet and the other around 9,000, would be subdivided inside to allow spaces for small manufacturing-type businesses to locate and incubate. In a packet of materials provided prior to the meeting, the city staff wrote ""it would be a significant act of faith on the part of the planning commission to expect that the project would be developed into a neighborhood amenity that increases the region’s quality of life and benefits the city as a whole." However, by the time the hearing was held last night, the city staff had done a complete 180 on the idea. "We’ve had conversations with Mr. McDonald," city Planning Director Howard J. Koontz told the commissioners. "He brought the project to us and told us what he wanted to do. It is a great opportunity, actually, for the city of Kyle. This is why staff is considering this seriously in the first place. This area of the city is in its infancy for high-intensity commercial type development. Honestly, it could go either way. The closer you get to the Interstate I expect you’ll get more and more commercial retail — less service, more retail uses to capture the motoring public and the folks who come through Kyle. Warehouse will benefit from the proximity of the labor pool. I’m sure a number of people in Kyle will be very happy to have jobs here and not have to get on 35 and fight their way to more populous areas. They’d love to work here." Then, after a pause, he added "The inverse is not necessarily true, though. The residential may or may not benefit from the institution of a warehouse use here. My expectation is it will be beneficial. It will be a good use and that’s why I’m cautiously optimistic that I actually recommended approval for this." McDonald told the commissioners the original plan was to build 232 apartment units on the site "and just decided because of the lake that is on the property that it was better suited for a lower density," hence the decision to build "some higher-end paired homes" (the new politically correct term for rental duplexes). He also said the term "warehouse" does "not represent what we’re trying to build. What we’re looking to build there is two buildings — one of them is 10,200 (square) feet and one of them is 9,600 (square) feet. We’re actually getting ready to build the same buildings just south of Chuck Nash Chevrolet in San Marcos. It’s a small-business incubator-type project for electricians, cabinet makers, air conditioning people, plumbers. They are not big spaces so they are not going to be high volume or high traffic businesses." McDonald said the average size of the individual spaces within the warehouses will be 1,200 to 1,400 square feet. "They are not like big industrial or production type operations," he promised. Both requests were approved with commissioner Michelle Christie casting the lone vote against the warehouse request.

It could get crowded in there

I ran into Planning and Zoning Commissioner Timothy Kay at the H-E-B last week and we had a nice little chat. I asked him what he thought of the city council pre-empting P&Z’s normal second Tuesday meeting slot this week. He smiled and told me he was going to enjoy the week off.

Turns out he’s not getting a week off which presents an interesting logistics quandary. P&Z, with four scheduled public hearings on its agenda, has been scheduled to meet in the council chambers at 6:30 p.m. Tuesday. And a the city council is scheduled for a quickie at 7 p.m. for the mandatory second reading on the the upcoming fiscal year budget and tax rate.

Now there’s a chance — albeit a very small one — P&Z can get through their business in 30 minutes. One of the zoning issues is a request by Scott Felder Homes to rezone those 130 acres the city recently annexed at the northwest corner of North Old Stagecoach Road, Center Street and Cypress road from agricultural to single family residential (the developer also wants to rezone about 2½ acres of the property facing North Old Stagecoach to retail services) so 339 single family homes can be built there. (Scott Felder Homes are featured on the front page of the Austin American-Statesman's Home section, which admittedly is an advertising puff piece.) At least one person has been outspoken in his opposition to the development of that property so that pubic hearing has the potential of taking up almost all of the 30 minutes.

A second request pending Tuesday before P&Z would rezone almost two acres of land along RR150 between Newbridge Drive and Waterleaf Boulevard from single family to retail service. There may be some pushback on this request to limit the change to the slightly more restrictive Community Commercial. Discussion of the distinctions between those two zoning classifications could also take P&Z’s meeting past 7 p.m.

A third request, which could also cause some controversy, involves a little more than 16½ acres located on Lehman Road near the intersection of RR 150, behind Garcia’s Mexican restaurant. The site was originally scheduled to be the location of an apartment complex but now an applicant wants to have a little more than three acres of that tract rezoned from multi-family residential to warehouse. It appears city officials are not going to recommend that zoning change because the land in question "is located in a border area between the ‘Regional Node’ and ‘Mid-Town Community’ character areas" and "In the Regional Node, it is not recommended that ‘Warehouse’ be approved as a zoning district." The staff concluded "it would be a significant act of faith on the part of the planning commission to expect that the project would be developed into a neighborhood amenity that increases the region’s quality of life and benefits the city as a whole" if the commission granted the warehouse zoning.

The fourth request would allow the remainder of that 16½ acres to be rezoned from multi-family to duplex zoning. There doesn’t appear to be too much opposition to this idea. In fact, the city staff’s recommendation for approval says the new zoning "serves as a land use buffer between the existing low-density residential to the east and the proposed activity center to the west."

Still, that’s a lot to cram into 30 minutes, even if no one shows up to talk during the open comments session at the beginning of the meeting or if nothing is pulled from the two-item consent agenda. Of course, the council could ask the P&Z commissioners at 7 "Mind if we interrupt your meeting for a few seconds to enact a budget and a tax rate?" Hey, it could happen.

P&Z moves one step closer to recommending developer-friendly landscape ordinance

The reason, I have been told by a number of city officials, why the city wants to lessen its landscape standards is because of developers’ complaints. "Adhering to these requirements is just too damn expensive," the developers whine and, as a result, the city is besieged by requests for variances from the regulations by developers. So, the argument goes, if we reduce the requirements, we reduce the number of complaints.

In a city where the officials bend over and grabs their knees whenever a developer asks them to, one could argue making life easier for those who actually dictate municipal policy — these developers — makes perfectly good sense. Personally, I think it stinks. Who should the city be beholden to — those who actually live and work here or those that develop the joint and then move on to screw up the next town? I argue it should be the former, but I seem I am in the minority here.

My point is simply this: The developer rarely, if ever, inhabits the project being developed. I will argue landscaping ordinances should be designed to satisfy those who will actually occupy the property in question, not to make it cheaper for that property to be developed. But our elected public officials simply don’t agree with this notion; in fact, they believe the exact opposite is true.

As mentioned in my profile, I used to be a partner in a media/crisis consulting firm. It was a comparatively small company, never employing more than seven persons at any one time. Our building needs were somewhat unique, but not overwhelming: we needed individual offices for each of the employees, a reception area, a conference/teaching room that could comfortably accommodate up to 15 persons and a room that could be used as a television studio. We were never going to construct our own building to satisfy those needs; we always looked for spaces we could alter somewhat to fit our specifications in existing office buildings.

At the same time we wanted to be located in a facility that presented the best possible face. Our clients included the heads of major corporations, owners of professional sports teams, and political leaders (including one client who subsequently became President of the United States). When you host individuals of this stature you want them on a campus that looks nice. Not only that, but we always wanted to come to work each day in a facility we could be proud to say we worked in.

But, as I said, it’s Kyle’s operating philosophy that the wants and needs of those who will live and work in a structure are not as important as those developing that structure and, hence, the need to scale back on the city’s landscape ordinance.

Having said this, however, I must tip my hat to Community Development Director Howard Koontz who has stepped into this fray since the last proposed revision of the ordinance and who did try to add some teeth to it during last night’s Planning and Zoning Commission workshop. For example, the commissioners created a landscaping requirement table that reduced the amount of landscaping required particularly in commercial developments. Koontz simply wanted to substitute that table with language that said all areas of the development not being used for the actual building footprint should be landscaped. But the commissioners were too dang proud of that table to give it up.

Koontz did manage to get language inserted that requires landscaping plans be submitted with the original development request and that those plans must be prepared by a licensed landscaping professional such as a registered landscape architect, a certified arborist,.or a registered forester. He also convinced the commissioners to change a requirement that all protected trees located where a street was to be constructed did not have to be replaced. Now that section reads those trees "that are located within areas designated for the construction of public underground utilities such as water or wastewater lines shall not be required to be replaced," but developers will be required to "submit a tree removal plan with the submittal of public improvement construction plans."

"We’re talking about the private development of a public improvement," Koontz said.

Commissioner Lori Huey argued that making these kinds of demands on developers would increase developers’ complaints that "It’s too hard to build in Kyle." Koontz countered: "When they come in crying it’s too hard to do work here, it’s not too hard to do work here. It’s harder to do quality work here. Any drunken third grader can go out there and moonscape a lot and put a building up in the middle of it. It takes talent and intelligence and quality individuals to put together something that’s visually dynamic and interesting."

My thoughts exactly and now I’m praying that his ideas about quality and developments that are "visually dynamic and interesting" will be reflected throughout the final landscape ordinance.

Why I won't be attending Tuesday's transportation plan meeting

There's some kind of grandiose Transportation Plan meeting taking place here Tuesday evening at the same time the Planning and Zoning Commission is hashing out its final recommendations for the city's landscaping ordinance. I will opt to attend the latter because what happens in the P&Z workshop will have a more direct and immediate impact on the city while the transportation plan will, without doubt, concern itself only with how we can get more cars on more roads creating more bad air and will have no sensible recommendations such as these "Road Diets," and, of course, will contain absolutely no information about how to make Kyle more walkable. (You really owe it to yourself to watch this 16-minute video.)

P&Z changes its meeting format

The Planning & Zoning Commission, at the request of Director of Planning and Community Development Howard J. Koontz, decided last night to alter the format of its meetings, at least through the end of this year, so that action items are decided on the second Tuesday of each month and the fourth Tuesday is reserved for workshops and discussions.

Koontz recommended the change primarily because the task of updating the city’s Comprehensive Plan will be undertaken by the seven P&Z commissioners this year. The plan is updated every five years and usually a consultant has been hired to perform this duty, but, according to Koontz, the city has not been happy with the consultant’s performance.

"So why throw good money after bad?" Koontz rhetorically asked.

He said there may be some instances when an individual will need a zoning case accelerated and if that happens an action item could make the fourth Tuesday agenda.

The change takes effect immediately. P&Z will spend the majority of its Aug. 25 meeting time fine-tuning a revised landscape ordinance it will recommend to the City Council and the fourth Tuesday meetings for the remainder of the year will deal with the Comprehensive Plan.

In other action last night, the commissioners:

• Voted unanimously to change the zoning on residential property located at 713 and 715 Old Highway 81 from Residential to Retail Service. According to Alberto Saucedo Sr., who appeared before the commission on behalf of the owner, his mother Ypolita Cruz Saucedo, the family has absolutely no plans to do anything with the property but realized they could get a higher price when they decided to sell it if it was zoned for retail. Koontz reminded the commissioners that a Mexican restaurant bordered the property on the north and he expects all the property fronting I-35 to be developed for commercial uses..
• Voted unanimously to recommend the City Council approve the city manager’s draft five-year Capital Improvements Plan. In addition to the road bonds, most of the funds proposed between now and 2019 involve improving the city’s water and wastewater infrastructure.
• Voted to ease the landscape requirements at Miscellaneous Steel Industries, which is expanding its facilities at the corner of Bunton Creek Road and Goforth. Normally I don’t favor action of this type because I’m all about having as attractive a city as possible, but in this case the action makes sense. Because of the Goforth Road improvement project, the city has to relocate the path of its underground utilities and that path will be directly beneath where MSI would normally be required to install the required landscaping features.

City takes first steps for second Sonic

The Planning and Zoning Commission approved a request last night to change the zoning of five acres located on RR150 between the Valero station and the PAWS animal shelter east of I35 from agricultural to retail services so that it could become the location for, among other things, the city’s second Sonic drive-in restaurant.

The other Sonic is also located along RR150, near the intersection of Wetzel in the Plum Creek area.

John Patton, director of development for Austin Sonic, Inc., told the P&Z commissioners, the newer drive-in will be slightly larger than the original. The development must still receive additional approvals from P&Z as well as the City Council so Patton did not offer a construction timetable. He did say, however, the Sonic would be located at the PAWS end of the property and that Walgreen’s was looking to locate a store between the drive-in and the Valero.

Patton also predicted that entire plot of land between Hill Street and the correctional center would be developed, primarily by restaurants, sooner than commissioners might have anticipated. He did mention the possibility of multi-family units going into that section of land as well, but the City Council has been hesitant about placing multi-family units that close to I35 unless they are truly mixed-use, i.e. retail on the ground floor with apartments or condos on the second and third stories.

Robert’s Rules revisited and other dictatorial policies

Yesterday I wrote about the Kyle City Council badly misinterpreting Robert’s Rules of Order and I realize now there is some clarification needed, particularly to distinguish between the terms "discuss" and "debate." Contrary to the council’s actions in adopting its new rules of procedures, there is nothing in Robert’s that pertains to the discussion of any issue. Robert’s concerns itself with debate only.

Let me give you an example. Item 11 on Tuesday night’s agenda read, in part, "Consider and possible action regarding approval of a contract between the City of Kyle, Texas and Aqua Operations, Inc., relating to the purchase of an existing wastewater treatment plant …" All it takes for "discussion" to commence on that item is for someone to read the agenda item into the record. In most councils I’ve covered that someone has always been the city secretary. The mayor (or acting chair, in the mayor’s absence) will say "next item" and the city secretary will read it into the record right from the agenda. But it’s OK if the mayor wants to handle that chore here. No problem.

Once it’s read into the record of the meeting, discussion can begin. And by discussion, I mean the council, as happened on this item Tuesday, could ask the city manager to come to the podium to talk about the issue. Council members could ask the manager questions about it. They could even summon other staff members to the podium to answer questions they may have. Council members are even free to discuss those questions and those answers among themselves. What they can’t do, however, is to begin discussions specifically on the merits of the issue, because Robert’s says, in effect, discussions of this sort should not be about ideas, or concepts, or theories, or even agenda items, because discussions of those sorts are more properly defined as "debate" and a debate must revolve around a specific action item. Therefore, debate or discussions on the pros and cons of an item can only commence after a council member makes a motion to take that specific action, whether it be pass it, reject it, table it, whatever.

In short, a motion is not required to discuss an item, but a motion is required to debate the item and that motion must be take a specific action.

One of the reasons this distinction is so important is because it focuses the debate. Many is the time I’ve seen a council member (not in Kyle, that I remember) begin pontificating to the point where he or she begins to travel a good distance from the motion that is on the table. Restricting "debate" to the specific motion allows the chair to gavel that pontificator out of order and request that he or she return to the matter being debated. During the "discussion" period, there is nothing to restrict a member from talking about anything he wants to; i.e., in the example I used above, the annual cost of chemicals needed to treat wastewater.

Now, like I said, if the council wants to waste time by deciding it doesn’t even want to open discussion on an item without a motion and a vote of the council, it has every right to do so. Just don’t try to justify it by saying it’s required by Robert’s Rules of Order, which, to repeat myself, deals only with "debate" on an issue, not "discussion" of that issue.

But while I’m on this general subject, there is something far more troubling that occurs each and every week at both City Council meetings and Planning & Zoning Commission hearings. And that’s the dictatorial process that’s used here to open and a close a public hearing. I’m not talking about the Citizen Comment period that precedes each of these sessions; I am specifically referring to the Public Hearings that accompany certain agenda items.

No one single person has the right or the authority to open or close a public hearing. But that’s what’s happening in Kyle and that is dictatorship, not democracy. Kyle City Council members and Planning & Zoning commissioners have allowed the mayor or the P&Z chair to decide when to open and when to close a public hearing. That flies in the face of everything the democratic form of government is supposed to represent.

A public hearing is opened simply by its appearance on the agenda. If an item has a public hearing attached to it, the chair may say "Let’s begin the public hearing" or "Let’s start taking public comments on this agenda item," but he shouldn’t be allowed to say "I’ll now open the public hearing" because the public hearing is already open.

And he certainly doesn’t have the right, on his own, to arbitrarily close the public hearing, and I can’t imagine any legislative body surrendering that right to just one person. A public hearing can only be closed by a motion to do so, a second and a vote to approve that motion by that legislative body. And the motion usually accompanies the motion to take specific action on that item; i.e. "I move to close the public hearing and approve the ordinance amending ...." The chair then repeats the motion, asks for second and once it is seconded, the chair asks if there is any discussion on the issue before a final vote is taken. If the motion is approved, then and only then is the public hearing closed.

This is vitally important not only for the sake of democracy but also for the sake of expediency. Let’s say, for example, the chair arbitrarily and dictatorially closes the public hearing on a specific rezoning request, but then one council member realizes he has another question to pose to the applicant. Once the public hearing is closed, all contact between members of the legislative body and the public must cease, so that question can’t legally be posed. However, if a final vote to close the public hearing accompanies the motion on the actual item, public discourse may continue.

There may also be times when it would be unwise to close the public hearing. One specific example would be if the legislative body wanted to hold off action on a particular item until a later date. So then the motion might state "I move we keep the public hearing open and delay action on this item until such and such a date." Once you have closed the public hearing, it is closed, forever.

Just something to consider instead of allowing certain individuals to run roughshod over the public’s right to speak.

City plans to spend $3 million to buy wastewater plant

A couple of things caught my eye on tonight’s City Council agenda.

The first was the city’s intentions to shell out $3 million to purchase the wastewater treatment facility (WWTP) located in the city from Aqua Operations, effective Oct. 15. The agenda item does not mention the purchase price (you have to plow through the accompanying materials to find it). The agenda item says only "Consider and possible action regarding approval of a contract between the City of Kyle, Texas, and Aqua Operations, Inc., relating to the purchase of an existing wastewater treatment plant and related permit, equipment and other rights."

For the sake of absolute transparency, council agendas should not only contain the price of such purchases but also the funding source for said purchases. I assume the source of funds for this purchase is Water Utility Funds and I wonder if there will be any discussion this evening about whether a water rate hike will be required to pay for this.

From what I gather, the deal does not settle the lawsuits between the parties involving moneys owed or overcharges (depending on which side of the suit you're on).

According to the deal "Kyle may want to initiate planning and design of an expansion of the WWTP prior to the Closing Date." This could be especially true if Kyle assumes control of the proposed Anthem development on the western border of Mountain City. If that doesn’t happen, Anthem would have to build its own wastewater treatment plant and Mayor Todd Webster has stated quite clearly he would prefer expanding the city’s current facility rather than having a new WWTP "located upstream from us."

The other thing that caught my eye was the fact that Julieta Montes has withdrawn her request to have her property located at 503 Burleson rezoned from single family residential to neighborhood commercial. I wrote about this after the Planning and Zoning Commission voted unanimously to deny her rezoning request. Actually the item on tonight’s agenda reads "(First Reading) An ordinance amending Chapter 53 (Zoning) of the City of Kyle, Texas, for the purpose of rezoning approximately 0.534 acres of land from Single Family Residential 1 'R-1' to Neighborhood Commercial 'NC', on property located 503 N. Burleson Street (Lots 15, 16 and 17), in Hays County, Texas. (Julieta Montes, Z-15-003)." However, Ms. Montes has withdrawn her application for this rezoning so the council should take no action on the agenda item.

I reached out to both Ms. Montes and the city to find out why she had withdrawn her request. I specifically wondered whether some kind of deal had been struck that would have allowed her to operate her daycare facility without going through a zoning change. I never heard back from Ms. Montes, but the city’s Director of Community Development Howard J. Koontz told me:

"No arrangement has been made between Ms. Montes and the city, but her withdrawal is related to an expected future development agreement.

"Basically, she is not a developer and not well-versed in the development process," Koontz said "For that reason she has been a little overwhelmed by the process, and specifically the objections to her proposal as presented thus far. In light of the fact that her Public Hearing is on Tuesday night, she didn't have enough time to revise and amend her application as much as she and staff felt was necessary.

"So before her right to re-apply is suspended for 12 months, she has chosen to rescind her current application," the director continued. "Once the time constraint of the approval process has been suspended, she'll meet with us here in City Hall to discuss the potential for a development agreement to better tailor her request to the property in question. I expect she'll re-apply with a more comprehensive application sometime in later July or August would be my guess, but I have no actual knowledge of her schedule going forward."

A public "thank-you" to Koontz for his prompt and candid response.

P&Z: To hell with tomorrow, let’s only think about today

Julieta Montes wants to establish a day care center in the house pictured here where she can, among other things, teach Spanish to children between the ages of 2 and 5. The home and a smaller mother-in-law-type structure in back of the main house sits on a half-acre of property at 503 Burleson between West Schlemmer and North streets. To realize her dream, which she says will allow her to spend more time at home with her toddler daughter, she apparently needs to have her property rezoned from Single Family Residential to Neighborhood Commercial.

So, after two citizens spoke at the Public Hearing against the idea, Ms. Montes appeared before six of the seven members (Irene Melendez was a no-show) of the Kyle Panning and Zoning Commission Tuesday to plead her case. Her idea was met … generally … favorably by the commissioners. They actually liked it … up to a point, that point being that sometime in the future some dastardly person would swoop in and turn her day care center into this, or even worse, this.

"I am a school teacher and I want to spend more time with my daughter, so I would like to provide Spanish lessons for kids," Ms. Montes told the commissioners. "But I would like to offer a safe environment for them so I think the best thing to do is comply with commercial requirements so that the kids have all the doors, the extinguishers and all the things that they need to be safe. I do not think this will highly impact the traffic. I do not ever intend to put a restaurant there. I just would like to have a small business that will allow me to spend more time with my daughter."

"Are you suggesting you wouldn’t be able to teach classes in your home?" commission chair Michael Rubsam asked.

"No," Ms. Montes replied. "What I’m suggesting is that I do not intend to have such a thing as a restaurant or something like that. I just intend to teach Spanish classes to kids. But I think if I have all the requirements of a commercial property it will be safer for the kids that I have on my property. I’m not planning on tearing down the current building. I’m just trying to bring it up to code to make it safe for kids to be there. I do not believe the current building has a big capacity. Not many kids would be able to be there. But I’m planning on keeping the current building as much as possible."

Commissioner Mike Wilson asked her if she planned to remodel the house.

"Just whatever is necessary to make it safer, like more doors and wider entrances but not completely rebuilding it," she said.

Wilson then wondered whether she had asked the city if she could do teach her classes without having the property rezoned.

"I did,:": she said "but I was told it needed to be rezoned to Neighborhood Commercial."

Commissioner Dan Ryan wondered how many students she anticipated at any one time.

"I do not anticipate there would be many," Ms. Montes said. "The city has its own rules about that and also the state. They require about 30 square feet for each kid, but that’s only in places where there’s no furniture, no restrooms, no kitchen. So the space that is allotted for kids is really not that much. So I’m not anticipating it would be over probably 20 something. I’m intending to leave the house looking like a home as much as possible. I’m just trying to make the place safer for kids and I don’t think this would make a lot of traffic because people don’t have to come and go all the time. They drop their kids off and then they leave."

Commissioner Michele Christie, who I guess drowsed through that exchange, then asked Ms. Montes "Ballpark figure, off the top of your head, how many students do you think you’ll have coming to you and is this going to be just for Spanish classes where students would come, say, after school or do you plan on running a full school curriculum or are you just going to teach Spanish?"

"I would like to do similar to school hours, 8 to 3, something like that," Ms. Montes said. "It would be Spanish immersion only for kids."

"What age ranges would you have?" Ms. Christie asked.

"2 to 5," Ms. Montes answered.

Christie: "How many?"

Montes: "Like I said, that’s up to the city and the state but I estimate about 28. I don’t think I’ll have the capacity for even 30.":

Christie: "Is this your home?"

Montes: "Right now it’s my home, but I cannot live there and provide the service at the same time, And if I do there are many security issues with the building as it is right now."

Christie: "So you would convert it to a school?"

Montes: "Yes. But just doing the minimum things necessary to make it safer. And, like I said, I would really like to keep it home-looking."

Moments later Rubsam told the other commissioners "This is a rezoning so you can’t control what goes there in the future. So it’s not appropriate to just look at this as a possibility for a school. There is a possible long list of things that could go at this location."

"My problem is that it doesn’t conform to what we have right there," Ryan echoed.

Rubsam, of course, agreed: "It doesn’t seem to lend itself well to what’s in the area. I don’t really consider this to be a compelling argument for rezoning a residential neighborhood."

"It doesn’t meet the qualifications for commercial and looking at what could be there gives me pause," Ms. Christie said. "I don’t see Neighborhood Commercial on that corner."

But Wilson countered "I think the use she wants is Neighborhood Commercial. It is a child care center. She wants to have younger-than-school-age children at a day care for Spanish immersion. So I think what she wants to do matches the zoning she’s asking for. But my thought is I’m less concerned with what she currently wants to do but what could be done in the future if she starts the day care and is unable to sustain it and then sells the property. Then it could become who knows what. I love the idea of having a day care option. I just don’t think day care in that location is the most viable kind."

Around then, another citizen wanted to speak in favor of the project and instead of extending him the courtesy of reopening the public hearing as just about any deliberative body I’ve ever encountered would do in such a situation, Rubsam asked community development director Howard Koontz to take the fellow outside and find out what his issues were. Turns out, his issues were the same as mine, but I’ll get to those in a minute. Interestingly, a few minutes later the commissioner had absolutely no problem letting another person from the audience get up and make a comment. Your guess to this inconsistency is as good as mine.

"I am not in favor of a rezoning but I would like to see if she could get a special use permit," Ryan finally said,

"But this is a zoning issue," Rubsam countered.

"OK," Ryan said, "if it’s a zoning issue then we’re going to have to turn down the zoning."

"We spoke to the former director of planning and she told us a special use permit was not possible for this kind of situation," Ms. Montes told the commissioners. "She told me rezoning was the only option which is why we initiated this process."

With that, commissioner Timothy Kay moved to deny her request, Ryan seconded and the commissioners voted unanimously against Ms. Montes.

Earlier in the process, during the public hearing, Mark Jones, speaking against the rezoning request, told the commissioners the area in question "has always been residential. We don’t see any reason for it to change,. It’s been residential longer than I’ve been alive."

And that’s true, but here’s the problem with that argument and with the commissioners denial of Ms. Montes’s request. Burleson Road is about to undergo one big honking’ change. Not only is it going to be widened, it’s eventually going to connect with Marketplace there at the Kohl’s/Target/H-E-B shopping compound., Burleson is already a fairly well traveled road when compared to most of the streets in Kyle, but when this particular road bond project is complete, Burleson is going to go through a complete transformation. And as much as Jones, the P&Z commissioners and others may want to object, it is soon going to be lined with restaurants and convenience stores and perhaps even a bank, a fitness center and a barber/beauty center. And wouldn’t it be absolutely, positively wonderful if someone wanted to locate an art gallery along Burleson? Burleson is about to become a commercial corridor and all the commissioners are doing right now is sticking their collective fingers in the dike. It’s just a shame that Ms. Montes’ dream of doing something productive for the community while at the same time giving her the opportunity to spend more time with her daughter has to be sacrificed when there are these changes that are definitely on the horizon.

Kyle: We just give you the lines, whether you ever have water is not our problem

Back on May 26 I wrote about the Planning and Zoning Commission’s consideration of the final plat for two planned subdivisions, the Meadows of Kyle phases five and six, a total of 90 single family lots on more than 22 acres on Windy Hill Road in northeast Kyle. The city was going to supply a lot of the infrastructure for the area, of course, but the subdivision had contracted with Goforth Water Supply to provide its water. Trouble is Goforth Water Supply is one of three entities that is seeking to obtain water from wells that a Houston company planned to drill near Wimberley until the Texas Legislature moved to quash those plans. (The well-killing bill passed by the legislature is awaiting the signature of Gov. Greg Abbott, but I have learned from capitol observers that he will likely allow it to become law without his signature.)

So the question was raised at its last meeting as to whether Planning and Zoning commissioners should approve the final plat of a subdivision that may have some concerns about getting any water. Turns out, that’s none of Kyle’s business. As Community Development Director Howard Koontz told commissioners Tuesday:

"These items were tabled until this evening so we could do a little bit more research on community development and City of Kyle procedure on approval of these plats. The question specifically was ‘Do we examine projects for adequate public facilities if the city is not the provider of the infrastructure or some of the utilities.’ I spoke with the city engineer, I spoke with the public works director and the answer to that is ‘no’. We do not check to find out whether or not the utilities themselves are adequate. We look from the standpoint of residential code or commercial code, depending on the type of project that it is, and make sure that the infrastructure is installed properly. So you make sure they have the correct size water lines or the correct size gas line and that there’s back flows and meters and whatnot. But as far as the idea of them receiving the actual commodity through that infrastructure at this point is a civil agreement with whoever the utility provider is."

With that, the commissioners unanimously approved the final plat.

The city needs to provide more information on zoning changes

Perhaps the Planning and Zoning Commission receives more information than those of us the city may intentionally want to keep in the dark. As everyone knows all too well, a little bit of information can be terribly dangerous and there’s some governments that want to be as transparent as Saran Wrap and others, like Kyle, that try to be more like Reynolds Wax Paper.

The reason I mention this is that there are two applicants coming before the Planning & Zoning Commission Tuesday, hoping to persuade the commissioners to change the zoning on two, admittedly relatively small, parcels of land. In the first case, a Julieta Montes wants to get about a half acre of land located on the northwest corner of Burleson and North Street or the southwest corner of Burleson and Schlemmer Street, depending on your point of view, changed from single family zoning to neighborhood commercial. In the second, a Larry Hufford Jr., desires to get 2.6 acres of land on Goforth Road near Dacy changed from agricultural to construction manufacturing.

Both of the changes seem to me, at least, somewhat significant.

In the accompanying materials we humble citizens are permitted to see, there’s included a form called "Application & Check List – Zoning Change." The applicant has to complete this form and it includes a list of "required items for submittal package" and the applicant is supposed to check each one off to make sure his/her package is complete. One of the items to be checked and, obviously, must be included in the submittal package is an item called a "Letter explaining the reason for the request."

It sure would be nice to see this letter, but the city doesn’t include that in the materials it provides us. Maybe P&Z gets to see the letter. But I think the public should be able to see it as well. That way were not sitting around the campfire thinking of all the possible nefarious reasons the applicants might have to request the zoning change. We can actually see THE nefarious reason.

Why, you may be asking, should the city go to all this trouble just to satiate what some might consider my personal curiosity? It’s because each of these proposed zoning changes is accompanied on P&Z’s agenda by a Public Hearing and you’re going to have a far more knowledgeable public to speak at that hearing if they could see for themselves why the applicants want to change the zoning. Duh!

Of course, the truth may be the city is possibly purposely trying to keep citizens uninformed about what’s going on around them. Naw, the city wouldn’t do that. Would they?

The Kyle Knight Rises

The first two words in a recent Austin Chronicle story about Electro Purification and its attempt to pump water in Hays County were "Lila Knight." The Kyle resident has been working tirelessly to protect the county’s water supply and to bring a reasonable solution to a controversy that I am not going to detail right now.

For reasons not necessary to explain and are too painful to discuss even if they were necessary, I could not attend tonight’s Planning & Zoning Commission (or the Charter Review Commission that followed it). But I have attended enough P&Z meetings to know how they operate and tonight’s gathering promised to be a real "wham-bam" affair. The entire meeting, if it had gone as the city had planned, would have ended in less time than it will take me to describe how short the meeting should have been.

The first three items on the agenda are always the same: Call to order, roll call of the seven commission members, and citizen comments. When it comes to that third item, chair Michael Rubsam usually gazes for a second at all the empty chairs in the city council chambers and closes the public comments section the meeting five seconds after he opens it. Then if the staff has taken the time to prepare minutes of past meetings, they are routinely approved. Then comes the consent agenda.

For the uninitiated, the consent agenda can be a tricky deal. Theoretically, it is supposed to contain only those items that need not be debated or discussed. They are supposed to be routine, non-controversial items, not requiring individual consideration. By grouping them all together they can be passed by one motion, one second and one vote. There’s no limit to the number of items that can be placed on the consent agenda. I have attended city council meetings (not in Kyle, by the way) where it is routine to have as many as 85 or more items grouped into the consent agenda.

At tonight’s P&Z meeting, the consent agenda consisted of just three items, two of them consisting of approving the final plat of a new 22-acre subdivision located on the northern side of Windy Hill road, about a mile off I-35 in northeast Kyle. Now it did not say so on the agenda itself, but in the materials accompanying the agenda it said the city of Kyle would provide wastewater service for the subdivision but that its water would be "provided by Goforth Water Supply."

Ding! Ding! Ding!

Goforth is one of the three entities – the other two being the City of Buda and the Anthem subdivision located in Mountain City – to contract with Electro Purification for water. But because of the efforts of the aforementioned Lila Knight, a grassroots organization called Save Our Wells, state Rep. Jason Isaac and other watchdogs, that effort seems to have been nipped in the bud. Thus, the Goforth Special Utility District, which was contracted to receive three million gallons of water per day (more than the other two entities combined) from Electro Purification may indeed need to be scrounging elsewhere for its water supply.

But even if EP gets to pump water to Goforth, it is estimated that it will take about a year and a half to construct the pipeline from the wells near Wimberley. Now the way I understand it, there can be absolutely no doubt of the existence of a water supply for the final plat of a subdivision to be approved.

That’s why, at tonight’s P&Z meeting, the opening of the citizens comments section of the agenda was not met with stone cold silence. Ms. Knight stood up, strode to the podium and quite gently and politely, I’m sure, let the commissioners know there might be some question about the availability of water to this subdivision. And it was absolutely certain said water supply could in no way be "certified."

Thus, when it came to the consent agenda, these two items were pulled for individual consideration during which commissioners tried to question staff about whether any of this about :certified water" was true.

The flummoxed staff, however, couldn’t summon up an adequate answer, so the commissioners tabled the items. Which means they will rear their ugly heads at least one more time at a future P&Z meeting.

Watch this space.

P&Z OKs new 24-hour medical facility

The Planning and Zoning Commission recommended unanimously last night the construction of a 14,500-square-foot 24-hour emergency medical facility in the Kyle Marketplace Center at the corner of City Lights Drive and the southbound I-35 frontage road.

The facility, about the size of a typical Trader Joe’s specialty grocery store, will not be accessible from the frontage road.

The commissioners were also introduced during their 20-minute session to Howard J. Koontz, the city’s new planning director, who joined the city’s staff Monday, leaving a similar position in an Atlanta suburb with a population just over 12,000.

Another reason to switch to single member council districts

If only to remove the geographical imbalance and bias on the Planning & Zoning Commission, the Charter Review Commission needs to change the makeup of the Kyle City Council so that all six council members are elected from single member districts.

I’ll get to the problems with P&Z momentarily, but I’m not sure the city’s current system of three single- member districts, three at-large districts could withstand a court challenge. According to the most recent demographic data, the city has a population that’s more than 50 percent Hispanic, yet only one council member, 14 percent, has an Hispanic surname. It would be a much better idea and far less divisive if the city decided to change the council makeup instead of having the federal courts do it.

Once the council is comprised of six persons elected from individual districts with the mayor elected at large, the boards and commission appointment process needs to be changed so that each council person has the opportunity to appoint someone living in their district to each board/commission with the mayor electing the chair of that board/commission.

Which brings me back to the Planning & Zoning Commission which contains a geographical imbalance that staggers the imagination. Here’s the breakdown: Five of the seven P&Z commissioners live in two subdivisions within the city. Three of them – Michael Wilson, Mike Rubsam and Michele Christie – all live in Plum Creek. Two others– Dan Ryan and Lori Huey – live in Kensington Trails. Only one of the commissioners – Timothy Kay – lives in the downtown area.

I’m not making any accusations of geographical bias against the commissioners. But anyone can see at a glance that the entire city is not adequately represented on what is, next to the City Council itself, the most influential body in municipal government.

It stinks. And if the Charter Review Commission doesn’t change the council makeup, then the council should, on its own, change the composition of P&Z by dividing the city into six districts of equal population and then making sure only one P&Z commissioner represents each district, with the chair named at-large.

At least then P&Z could pass the smell test.

P&Z tries its best to muzzle discussion

If developers have their way, this property will contain apartments next year

A funny thing happened on the road to freedom of speech and open government last night. The Planning and Zoning Commission tried to kill them.

Here’s what happened: The regularly scheduled P&Z meeting was moved from its normal Tuesday time slot to last night, apparently to give the developers of a proposed apartment complex to be located behind the 7-Eleven at I-35 and Ranch Road 150 more time to get their stuff together. The issue before the commission was whether to rezone the property in question, the address of which is listed as 22557 I-35 for reasons which make no sense to any rational human being, from a Retail Service District to a Multi-Family Residential-3 zoning so these gentlemen can erect what, judging from the pretty drawings the developers brought to the commission, appear to be some nice looking apartments on that property.

Now all this is usually pro-forma. P&Z commissioners bend over and grab their knees whenever a developer makes a request. And it appeared they were going to do that again last night until it became evident that one commissioner, Timothy Kay, had actually spent some time at the location like I did this afternoon.

P&Z Commissioner Kay saw potential problems with this
intersection which is the way out of the apartment complex
 to southbound 35
 

Here’s the problem: Unless you’re driving east on Ranch Road 150 it’s going to be a royal pain in the hind section to get in or out of that place. It’s a royal pain now and no one is living there yet. Imagine what it’s going to be like when people start filling up those apartments.

Kay, apparently, did imagine that so he tried to add an amendment or a substitute motion to the item on the agenda to rezone the property Multi-Family Residential-2 (fewer apartments) and to include a traffic study as part of the project.

Now put aside, for the moment, the merits of Kay’s proposal. The other three commissioners on the board tried their best to muzzle Kay so he couldn’t even discuss it. Not only that, if the proper procedures had been followed, they would have silenced him.

Their first tactic, led by Commissioner Michele Christie who made the original motion to approve the agenda item, was to argue that since she made her motion first, arguments and voting on it should proceed first, which is not only blatantly untrue but completely illogical. It’s illogical because if board members vote on the original motion, the substitute one becomes irrelevant (which might have been her intention all along) and it’s untrue because parliamentary procedure requires action on any amendments or substitute motions before the original one is discussed.

The only ones occupying the property now

The commissioners reluctantly allowed Kay to make his motion, but here’s where things got ugly. No one seconded his motion. Kay, obviously seeing that his colleagues wanted to shut him up, forcefully claimed a second isn’t required (he was wrong) and plowed ahead with his points, all of which were valid, like I said, to anyone who had actually walked around the area.

Although, as I mentioned earlier, the address of the property is insanely listed on being on I-35 it’s actually at the intersection of two unnamed (at least for now) roads, one of which goes east off of RR 150 and the other which parallels I-35 and finally dead ends at Goforth. (The picture of the property at the head of this page was taken from the road going east and you can make out the road going north on the left edge of the picture, The second picture depicts the intersection of the two unnamed roads as they "flow" into RR 150). If you’re trying to get to the property from off I-35 you have to go down RR 150 halfway to the

Public Works Complex, before you would need to make a U-turn back to the apartments. Imagine what a mess that might wind up to be. Because there is already a significant amount of vehicular traffic on the unnamed north-south road, it’s going to be equally tricky getting out of the complex, especially if you want to go south on I-35, which was Kay’s major point. The only real alternative is go north on the unnamed road to get to the I-35 frontage road, drive all the way to the already jammed Kyle Parkway intersection and make a U-turn there. It really makes no sense.

But the other three commissioners, acting like the hear, see, speak-no-evil monkeys, didn’t want to hear it and if correct parliamentary procedure had been followed Kay, free expression, and open government would have been muzzled.

Here’s a message to anyone serving on a city council, commission, board, or committee: You don’t have to agree with a motion to second it. All you’re doing by seconding a motion is allowing a different, perhaps dissenting, voice to be heard. And what’s wrong with that? The people have the right to hear those different points of view. What are you afraid of? Are you so close-minded that you don’t want your narrow thinking obfuscated by additional facts? If someone makes a motion, out of common courtesy, out of common decency, out of the notion of governmental transparency, second that motion. You still retain the right to vote against it, but without that second there can be no discussion, no exchange of ideas. And that’s not the way government should work.

Kay also wondered if the developers had thought about making the complex a mixed-used project, with retail on the ground floor of the units and apartments on the next two levels. In an answer that almost made me laugh out load, project manager Tim Marroquin said he already considered the project as it as mixed-use development because it was within walking distance of so many other places. Hate to tell you this, buddy, but close only counts with grenades, horseshoes and Kyle street addresses.

Marroquin also told me he hoped to begin construction on the project – traffic study or no traffic study – by the end of the summer or in the fall and plans for it to be completed in 12 months.

P&Z calls for stricter rules regarding digital billboards

Think a billboard like this might prove a distraction to motorists driving 70 miles an hour?
 Our Planning and Zoning  folks are not all that concerned about the possibility.

Largely ignoring the suggestion of safety concerns caused by digital billboards, the city’s Planning and Zoning Commission recommended tonight the city council pass an ordinance allowing for more of these types of signs along I-35 in Kyle, albeit with stricter limitations than those recommended by the city’s staff.

The ordinance recommended by the commission would require that those wishing to erect a digital billboard would have to remove four square feet of existing billboard facings for every square foot of digital they wish to install. City staff’s recommendation called for a 2-to-1 ratio. The commission also voted to require that the minimum distance between the digital signs be at least 3,000 feet. The city wished to cut that distance in half.

During discussion on the ordinance, commissioner Mike Rubsam, who temporarily relinquished his chairmanship of the commission to fellow commissioner Mike Wilson because Rubsam was suffering from a mild virus, suggested that digital billboards would make Kyle "more attractive to businesses." That marked the first time I ever heard anyone suggest billboards make a community more attractive to anyone or anything. In fact, I’m old enough to remember when then First Lady Lady Bird Johnson made ridding highways of billboards a major part of her Beautify America campaign.

Now it’s time for some truth in advertising here. The safety concerns were raised by yours truly. In fact, during the public hearing that preceded the commission’s discussion of the ordinance, I made the following presentation:

"I want to take this opportunity to request that you table this item until such time that the city staff can prepare and present to you a thorough study on the effects of driver distraction in general and specifically driver distraction caused by digital billboards on interstate highways with speed limits of 70 miles an hour. Previous studies exist than can be used as starting points such as a Virginia Tech University study commissioned by the National Highway Safely Administration on the effects of driver distraction, a study by the Wisconsin Department of Transportation that revealed a significant increase in traffic accidents in a three year period after digital billboards were erected, and, perhaps most important of all, a study by the Swedish National Road and Transportation Administration called Effects of Electronic Billboards on Driver Distraction that resulted in the Swedish government ordering the removal of all digital billboards.

It doesn’t make any sense that, during a time when governments are taking steps to ban texting and other uses of mobile devices while driving, while a "click it or ticket" campaign has been started to promote safety and while increased efforts are underway to get drunk drivers off our highways, that Kyle may be taking steps in the opposite direction to make that stretch of I-35 through our city – a stretch that we all know is going to become increasingly more congested – far less safe. I would hate to see our legacy become that the stretch of I-35 between Buda and San Marcos became known as Kyle’s Killer Corridor.

However, if you are absolutely determined to take steps that all available evidence shows would make our city less safe, I would encourage you to strengthen the proposed ordinance in the following ways:

First: Require that for every square foot of digital billboard sign face, a minimum of three square feet of traditional sight face must be removed. This is far from being unprecedented. Dallas, where I just relocated from, and Cheyenne, Wyoming have a three-to-one ratio. So do our neighbors to the south, San Antonio, with the exception that if the planned digital sign is to be smaller in area than the billboard it will be replacing, only two square feet of traditional sign space needs to be removed. Orlando, Florida has a four-to-one ratio, in Gulfport, Mississippi, it’s six-to-one and the ordinance in Tampa, Florida mandates the removal of 10 square feet of traditional billboard space for every one square foot of digital space proposed. (Editor’s Note: As stated above, P&Z exceeded even my recommendation, approving a 4-to-1 ratio.)

Second: A requirement that digital signs may not have a height that is greater than the signs it is replacing.

Third: No digital billboard may be located within 300 feet of any property that is zoned in such a manner to allow residences – either single family or multi-family – to be located on that property.

Fourth: No digital billboard may be located within 500 feet from a historic district or a city park or lake.

Fifth: Messages on digital billboards must be static, with no moving or flashing images.

And sixth: All digital billboards must be equipped with light sensors, which dim the billboards based on ambient light conditions. It makes absolutely no sense to have these billboards shine at the same intensity during the nighttime hours as they do in the daytime."

Following my presentation, commissioner Timothy Kay actually made a motion to table discussion of the ordinance until the commission could receive a study identical to the one I recommended. His motion died for lack of a second. Kay, incidentally, was the only commissioner who voted against sending the amended ordinance to the full city council for additional debate and possible passage.

And maybe this is a word of caution, maybe not, but I plan on making a very similar presentation to the City Council on this subject. I believe if I’m going to write about these actions after the fact, I ought to have the courage of my beliefs to make those beliefs public before the fact..

No lions or tigers or bears Oh My

The Planning and Zoning Commission took the first step Tuesday evening to bring a circus under the old-fashioned "big top" to town in mid-May.

Commissioners voted 6-0 (commissioner Lori Huey missed the meeting) to approve a Conditional Use Permit for Circus Aguilar to stage a one-ring circus May 14-18 on grounds located immediately south of the Central Texas Speedway track. The general manager of the speedway said, in spite of what the circus’s posters illustrate, there will be no lions and tigers at the circus, but (and don’t breathe a word of this to those PETA zealots who recently boasted they got the critters banned from Ringling Bros. shows) there will be elephants. In fact, the posters advertise that people can take a ride on the elephant prior to show times. Along with the pachyderms, the circus will feature "for the first time in the US Wolf Man live," along with such other typical attractions as trapeze artists, jugglers and, of course, clowns.

The performance schedule is:

• Thursday, May 14: 8 p.m.
• Friday, May 15, and Monday, May 18: 5 and 8 p.m.
• Saturday, May 16, and Sunday, May 17: 1:30, 5 and 8 p.m.

The price of admission was not listed in the advance information, but the circus posters do advertise that children 14 and under don’t have to pay to see the show.

Commissioner Mike Wilson wondered whether the circus had an adequate plan to deal with and dispose of the elephant poop and really didn’t get his inquiry answered except that the general manager assured Wilson the circus plans to work closely with Kyle animal control during the event.

P&Z: Mid-rise? Yes. High-rise? Let’s wait and see

Kyle’s Planning and Zoning Commission voted 6-0 (commissioner Irene Melendez was a no-show) tonight to recommend the City Council amend Chapter 53 of the Code of Ordinances to allow the construction of nine-story buildings in areas zoned RS (Retail Service Districts) on a case-by-case basis.

I would guess the proposed change will appear for a first reading on next Tuesday’s council agenda and will pass without much debate. The only discussion might come from those who, along with P&Z Commissioner Dan Ryan, believe restricting building heights to nine stories will hamper transit-oriented projects, to site one example. Ryan said he wanted to lift zoning restrictions to allow for high rise residential construction near the proposed Kyle/Buda rail station that’s being floated by the Lone Star Regional Rail Product.

"I love developments like that," Ryan said. "They require only one water line, one sewer line."

Commissioner Mike Wilson argued that current residential zoning does not allow for that type of density and that new residential zoning would have to be created before those height requirements could be addressed.

In the meantime, those developers that want to construct buildings up to nine-stories tall in areas zoned RS can so but on a conditional use basis. In other words, each such project plan would have to be submitted to and approved by the Planning & Zoning Commission and then the City Council. But this does mean some interesting mixed-use developments combining first-story retail, topped with three-to-four-story office space and possible four-story residential on top could be in the works for Kyle, possibly along Kohlers Crossing. Imagine that — living, working and shopping all in one spot. It sure could put the city at a competitive advantage.

City takes first steps toward “skyscrapers”

Webster’s II New College Dictionary defines skyscraper as "an exceptionally tall building." So I guess what someone would call a "skyscraper" totally depends on your definition of the word "exceptionally." Except for Plum Creek and the Hospital District, Kyle, city ordinances restrict a building’s height in Kyle to just about four stories. Under those guidelines, a building 3½ times that tall, or 15 stories, could, by Kyle’s standards, be called "exceptionally tall" and thus a "skyscraper."

Assistant city manager James Earp appeared before the city’s Planning and Zoning Commission this evening seeking their input on whether the city’s staff should pursue ways to relax that four-story height limitation and possibly getting rid of height restrictions completely for certain commercially zoned areas of the city.

Earp quite deftly maneuvered the commissioners to think along these lines by saying it was unfair to have one set of rules for Plum Creek (whose seven-story limitation allowed the Kyle ACC campus to be located there), another (nine stories) for the hospital district, and the 4-story restriction for the rest of the city. Especially when, he teased, a major development could be in the city’s future, but only if these height restrictions are eased.

Then after seeing them nod in agreement to his idea of making the seven-story limitation citywide, he threw out the idea of eliminating height limitations completely.

The reason Kyle instituted the four-story height restriction really isn’t germane any longer, Earp said.

"Historically, the height restrictions were set because of the ability to address fire issues," Earp told the commissioners. "Forty-five feet was essentially the maximum height fires could be safely fought at with or without a ladder truck. Since that time, the city has adopted fire codes that force buildings over that height to be sprinkled and have fire suppression systems anyway." (Fire chief Kyle Taylor subsequently confirmed that when it comes to fires in buildings, the height of the building is largely irrelevant.)

"The other reason for having a height restriction in a commercial area is if you had a natural vista or view you wanted to protect and we don’t have that either," Earp said.

He said areas zoned neighborhood commercial or community commercial would not be exempt from the height restrictions. He also said multi-family structures would still be under the height limitation requirements, so I’m guessing that means we shouldn’t be expecting high-rise apartment buildings or condominium complexes, even if they are located on or relatively near the interstate.

But, he said, "Would some place along the interstate be an appropriate place for a 15-story office building? That’s just the type of thing we haven’t thought about for Kyle until recently.

"If there is a desire to see the height restrictions changed in some form or fashion, we’d like to gauge that rather quickly because that, in turn, determines the path we take with the economic development prospect," Earp told the commissioners. "Maybe we’re to the point in our town’s growth where it makes sense for us to take that (height) requirement away and start thinking bigger.

At first, Commissioner Mike Wilson expressed concern about tall buildings in retail areas, but when commissioner Dan Ryan correctly pointed out that just about any 30-, 40-story office building is probably going to have some kind of retail on the ground floor, even if it’s just a coffee shop, Wilson’s concern seemed to recede. Ryan also said he doubted anyone would want to build a 25-story warehouse.

"I have been to a meeting at the intersection of the tollway and 35 where they were talking about building tall, tall buildings right there," Ryan said. "And I think we should open up and be part of that. And I don’t know whether we need to limit that."

Earp said the city staff did not have "a preconceived notion on how we wanted to approach this. We wanted to receive feedback from you guys to get the collective thoughts because that gets a better product in the end.

"Look we can craft an overlay and say if you’re in this specific area you can go to certain heights. We can make it so all the retail can only go to 75 (feet [seven stories]) unless you get a special designation. We can create a true mixed-use zoning that would allow retail and office space to exist in the same footprint.

"There are all different ways we can slice the cake," he said. "It’s just a matter of whether or not there’s a desire to cut the cake.

"And since we have sensed there is a very real economic development prospect waiting in the wings, this is something that will be very real and very quick because these guys need to decide whether they’re coming to Kyle or not. And it all depends on whether they get the height restriction changed.

"It sounds to me what I’m hearing is that generally speaking there is a desire and support for this idea and how we implement it is still to be decided. But it sounds like I’m hearing you guys are saying we support the idea — at least support for unrestricted height in designated areas and not across the entire city."

Commissioner Michele Christie said she would rather any proposed ordinance avoid overlay districts because "overlays make my head hurt. We have so many, one on top of another."

Wilson also insisted that any ordinance removing heigh restrictions also take into account parking so that the building’s are required to construct an accompanying multi-story parking facility with an "architectural facade."

"I don‘t want a 10-story building with surface parking everywhere," Wilson said. "I want a design element that improves the quality of the lot. It doesn’t have to be a plain old parking garage. That parking garage should be an architectural feature."

Earp concluded the discussion by telling the commissioners "Hopefully we can get something prepared and back before you pretty quickly so we can take the first stab at this proposal."

I’m guessing the commissioners could have something on their agenda within a month.