P&Z completes part of its land use assignment

Back on Jan. 24, the City Council met in a joint workshop session with the Planning & Zoning Commission to complete what is nominally being called the mid-term update of the city’s Comprehensive Plan, but probably should more accurately be dubbed the "three-quarters-term update." The workshop adjourned with some work still to be done by the commission as well as the City Planning Department, but with explicit instructions from council members on what was expected of them. Specifically, the Planning Department was charged with drafting proposed ordinances that would create mixed-use and office zoning designations. The Planning and Zoning Commission was assigned the task of coming up with new designations for the two landuse districts which are both currently called "New Settlement Community" and to make all zoning within those districts conditional. It will also told to eliminate the so-called Employment District which is currently located in the far northeast section of Kyle where absolutely no one in their right mind would locate a place of employment.

Last night, the Planning & Zoning Commission conducted a workshop attended by only three of its members (since this meeting was only a "workshop," a quorum was not required) — Chairman Dex Ellison, along with Timothy Kay and Rick Koch — and kinda, sorta, but not really followed the instructions they received at the January joint workshop.

As far as the new zoning ordinances are concerned, Planning Commissioner Howard J. Koontz told the three commissioners they will be forthcoming upon council’s approval of the update.

"Two new zoning categories were effectively enabled through the discussions on the 24^th," Koontz said. "One would be for office-institutional. The reason for that is to create an employment category that doesn’t necessarily bring along with it the undesirable ideas of everything else that goes on in warehouse."

He said this new designation would be referred to as O&I, "a category that bridged the more commercial-industrial uses and retail services which really doesn’t encompass commerce that’s not point-of-sale."

"But that will not come until after the Comp Plan is done," he continued. "We don’t make new zoning districts as a function of the Comprehensive Plan. We don’t really enable any zoning through the Comprehensive Plan."

This new zoning designation also has the effect of eliminating the so-called "employment district" by reducing a district into a zoning category that could be assigned to various landuse districts throughout the city.

Koontz said he has "some ideas, but nothing in the can," concerning the proposed mixed-used designation which he said will be dubbed MXD.

Now as far was what happened with the two new Settlement areas … well, after I got home and referred to my copies of the current Landuse Districts map, I’m not sure exactly what happened, but I think the net effect is the New Settlement Community District located entirely on the east side of I-35, between the Plum Creek greenbelt and Beebee/High Road will, if the City Council approves P&Z’s recommendation, be referred to as the East New Settlement Community. The one that straddles both sides of I-35 on the southern edge of town will still have the same New Settlement Community designation.

And instead of making all zoning uses conditional, as instructed, the three commissioners decided to suggest for the East New Settlement Community that zoning uses Single Family Residential, Duplexes and Urban Estate be listed as recommended zoning uses; Manufacture Home, Manufactured Home Subdivision, Manufactured Home Park, Condominium, the recently created single family residential R-1-A category, Transportation Utility, Neighborhood Commercial and Community Commercial be designated conditional uses; and everything else be thrown into the not-recommended wastebasket.

For the landuse district that will still be called New Settlement Community at the city’s southern tip, the commissioners recommended all residential zoning from R-1-1 through R-2, along with Entertainment, Transportation Utility. Urban Estate, Neighborhood Commercial and Community Commercial be conditional and everything else not be recommended.

There was one other caveat to all of this. The commissioners also recommended the expansion of the regional nodes at the southern and northern tips of I-35. In these regional nodes, zoning uses condos, apartments and other multi-family projects, all commercial including retail services, mixed use developments and, presumably, office/industrial uses would be recommended under the updated plan’s provisions and Central Business District, entertainment and hospital services would be conditional. The commissioners proposed extending the southern most regional node a third of a mile on either side of I-35 from its current location until it joins another regional node just south of Center Street. The one at the northern edge of I-35 would similarly be extended along a path a third of a mile on either side of I-35 to the area that is now designated a Super Regional Node.

P&Z plans Comp Plan workshop

The Planning & Zoning Commission has scheduled a workshop for 6:30 p.m. Tuesday to discuss the mid-term amendments to the 2010 Comprehensive Plan.

The two most important words in that previous paragraph are "workshop" and "discuss." The reasons those words are so important is because they officially designate this meeting as one where no actions will be taken to change, approve or disapprove any these mid-term amendments. This will be, as the agenda plainly states, simply a "workshop" designed to facilitate "a discussion" on them.

So, you may be asking, after all this time, after all these meetings, what’s left to discuss? I can only guess because the on-line agenda was not accompanied by any amplifying information. But here’s my guess, for what it’s worth (and my guess along with a little more than $2 will buy you a gallon of 87-octane gas at just about any gas station in town). During the recent joint City Council-P&Z workshop on this matter, the staff was asked to prepare a couple of zoning ordinances to create some new zoning districts; for example, a zoning category that would allow for mixed-use developments and another that could be specifically applied for office buildings. The language of those ordinances has not seen the light of day anywhere that I am aware of and need to be outlined and discussed before any future action can be taken on them. What better opportunity than a workshop such as this to discuss those proposed ordinances?

Again, that’s just a guess.

Now it’s your turn. You’re free to have your own guesses as well. And, if you would like to wait until Tuesday’s workshop to make your guesses or to say anything else about Comp Plan amendments, there will be the regular Citizens Comments opportunity prior to any discussion among the commissioners.

Planning director blames himself for illegal zoning amendments, reveals two P&Z vacancies

There is debate over what constitutes "conditional zoning" and what’s "contract zoning."

In a paper presented last April to the 20^th annual Land Use Conference at the University of Texas, Terrence S. Welch, an attorney who represents and advises local governments on land use issues and other regulatory matters, wrote "Conditional zoning is the granting of a zoning change by a governing body which is subject to agreed upon specific conditions which limit permitted uses in a zoning district," while "Contract zoning is an unlawful activity whereby a property owner or developer agrees to develop or use property in a certain way in exchange for receiving a particular zoning classification from a city." According to the book Texas Municipal Zoning Law by James L. Dougherty and Brenda N. McDonald, contract zoning is illegal in Texas, but "Conditional zoning, on the other hand, is a lawful rezoning that unilaterally requires the owner to subject land to certain restrictions without a contractual commitment to do so."

I’ll leave it up to others to decide whether Planning & Zoning Commission’s attachment of an amendment two weeks ago to a proposed zoning change requiring less density than was specified in the city’s ordinances was an example of conditional or contract zoning. My interpretation of the law would be this: The developer said before his zoning change that he would agree to limit the number of houses he built on the property to 3.2 per acre (the zoning allows 5.5) Passing the zoning change based on that statement makes it a "conditional zoning," which, according to the above cited sources, is legal. However, what the Planning Commission did was attach an amendment to the zoning change recommendation requiring the 3.2 density. At that point, in my opinion, it crossed over to the Contract Zoning category, which these same sources say is illegal.

Be that as it may, after telling what’s left of the Planning & Zoning Commission during an education workshop last night that conditional zoning is illegal in Texas, Planning Director Howard J. Koontz said he should have blocked the conditional amendments attached to this zoning change request the commission forwarded to the City Council two weeks ago.

Koontz, however, may have actually been referring to contract zoning when he discussed conditional zoning because he specifically said a contract could not be entered into.

"Although philosophically I don’t like it and I don’t agree with it, there’s no such thing as conditional zoning here," Koontz told the five commissioners attending the workshop. "Where I came from, when somebody wanted to zone something, the very first paper they had to bring us was a site plan, which is what it was going to look like when they were done. In Texas, under no circumstances is there any way you can enter into that contract — and it’s considered a verbal and later on a written contract — between the municipality’s regulatory authority and the applicant.

"So when you consider zoning here, you don’t consider any use," he continued. "You consider every use because someone can come in and say "I am going to build a nice new shiny hotel that will be the greatest thing the city has ever seen" and after he gets his approval he walks across the street and sells the land to somebody whose going to put a coin laundry there, and there’s nothing you can do to prevent that because they’re both allowable uses."

Later in the meeting, Koontz, speaking more specifically about the zoning change with the controversial amendments passed two weeks ago, mused "Did the Planning Commission agree to that zoning because it was conditioned to 3.2 or would they have agreed to it conditionally or unconditionally. Because the condition in Texas wasn’t lawful.

"At the time, the first thing I thought to myself was ‘That’s OK. He (commissioner Timothy Kay, who added the amendment) can put that condition on there because it’s not going to be adhered to anyway.’ Later on I had regrets that I didn’t stand up and same something and say ‘no! You can't conditionally approve anything in Texas.’ We have to either approve it or not approve it. In retrospect I should have stood up and said ‘It needs to be either recommended for approval or recommended for denial unconditionally.’ It was after the fact that I thought of that."

Koontz also separated the term "conditional use" from "conditional zoning."

"The number one way you see conditional uses is usually in some form of overlay," he said. "It’s not generally a request for a use, per se, although we call it ‘conditional uses.’ It’s almost always aesthetic. It’s building materials, how far the building is from the street, how tall it is, how many square feet it has. It’s the number of parking spaces, It’s landscaping. It’s signage. You have a little more latitude to look at those applications with a critical eye. How much is spelled out in the code. If you want their parking to orient north and south instead of east and west, so be it. You can make that decision. You are the arbiter for conditional uses. They don’t go on to the mayor and council."

Incidentally, conditional use permits are issued for to allow for uses withing a zoning district that would otherwise not be allowed under the existing zoning ordinances.

Although it’s no surprise the city is seeking a replacement on the commission for Irene Melendez, whose term is expiring this year (although I hear she wants to leave even earlier than the Sept, 30 date her term expires), it came as somewhat of a surprise to learn last night that Mike Torres, one of the two most recent appointees to the board, has been forced to resign because, according to Koontz, he is relocating. Torres has been on the commission for only four months.

Truth in advertising and advance warning: Today I submitted an application to serve on the commission, although if one of the requirements of service would be to end The Kyle Report during that term of service, I would have to graciously decline such an appointment.

So there’s that.