Random observations after Tuesday night’s City Council meeting

First random observation: The council hosted a presentation on the progress of relocating the railroad siding that way-too-often forces trains to come to a dead stop that blocks all traffic at the Center Street crossing. Three years ago, funds were identified to pay Union Pacific what it would cost to relocate that siding to a place beginning just north of the Burleson Road crossing to just north of where Kohlers Crossing crosses the track. Not only that, additional funds are being sought to build a Kohlers Crossing overpass so that the trains will not block that roadway once the siding relocation is complete. During the presentation and ensuing council question-and-answer session we learned (1) construction on the project is set to begin in 2023; (2) that many residents in the Creekside Village subdivision between Burleson and Plum Creek whose homes abut the tracks are upset because the siding relocation will necessitate the temporary removal of backyard fences (a Union Pacific spokesperson promised the railroad would replace those fences with better ones once construction is complete); and (3) that the siding’s relocation is dependent on money being available to construct the Kohlers Crossing overpass.

But the one question I wanted answered — and, I firmly believe, the question on the minds of most residents, especially those who drive through downtown Kyle — was “when will trains no longer block Center Street?” Personally, I don’t expect it to happen in my lifetime, but, still, it would be nice to have a target date on when traffic flow might normalize in that heavily trafficked section of the city. And no one on the council asked this question. I wonder if any of them even thought to ask this most important question on this subject.

Second random observation: “I don’t know much about art, but I know what I like.” That statement has been the caption of a famous New Yorker cartoon. It has been the title of a book written by someone I know little about, Marjorie Bull. It has been repeated ad nauseam by visitors to art galleries and exhibitions. And it was what was running through my mind the entire time the council was talking about the idea of forming an Arts Commission.

Each and every council member has a completely different idea about what a municipal Arts Commission is all about. And the answer is really simple. All it takes is a couple of different steps. The first is to identify a constant municipal funding source to underwrite the arts — in whatever shape it might take — in the city. One suggestion: Permanently dedicate .2 percent of the city’s annual CIP budget each fiscal year to arts funding (since art, especially the installation of art in public places, is intrinsically tied to infrastructure projects). Another suggestion: Pass an ordinance that sets aside 1 to 2 percent of the city’s Hotel Occupancy Taxes collected each year for arts expenditures.

Once this preliminary funding is identified, then and only then should the city create an Arts Commission whose tasks will be to (1) identify and solicit public and private grants/contributions to subsidize and enhance the city’s contribution to arts funding (i.e., grants from the National Endowment for the Arts or the National Endowment for the Humanities); (2) determine if a particular project is eligible for a state tax credit for historic renovation; (3) create a 501(c)(3) to administer the public art program, so that donated monies could be used tax-free and would represent taxable deductions for donors; (4) hold public meetings during which arts patrons seeking money from the city for art projects for Kyle can argue for their projects to receive public funding; (5) debate and vote on which of these projects should receive city funds; and ultimately (6) make formal recommendations to the council on at least a quarterly basis on how the money in the “arts fund” should be spent. 

Tuesday night’s discussion was focused almost exclusively on buying statues or sculptures to place at various sites around the city. Sure. Fine, Whatever. But you don’t need an Arts Commission for that. All you need is an arts consultant. The reason you need an Arts Commission is for that time when a group of Lehman High School graduates who went away to, say, ballet school, and then returned to Kyle, got together and came up with the idea of trying to establish a ballet company in Kyle. Is that something the city should invest in? Kyle having its own ballet company could conceivably attract visitors to the city if done correctly and it would be up to the Arts Commission to determine if it would be done correctly. Personally, I would love to see the day when a group of citizens got together to form a community theater here in Kyle. Such an endeavor should not be financed solely through the funds recommended by the Arts Commission, but the commission could recommend a proper amount for the city to invest to get the project up and running as well as possible additional funding annually. 

The Arts Commission should also be tasked to working in tandem with Economic Development to develop incentives for developers to commission works of art for their projects. The commission can show how such public/private partnerships can benefit developers by (1) improving employee and tenant working environments; (2) creating a unique look or landmark feature for the project; (3) demonstrating a larger civic commitment; and (4) translating into higher rents and a more desirable office location. And then the commission could also offer recommendations for specific installations.

Another discussion involved whether members of the Arts Commission should be restricted to residents of the city and its ETJ. I would vehemently argue against this. I should think selection process for commission members should give extra weight to local residents, but, when it comes to something like “expertise in the arts,” why limit yourself? Why restrict the ability to have expertise solely on geographical grounds? If there’s another Charles Umlauf anywhere in Central Texas and that person would like to serve on Kyle’s Art Commission, I would definitely welcome that expertise, regardless of where that person called home.

Third random observation: I’m not totally convinced everyone on the City Council completely understands the municipal budgeting process. This thought struck me during the council’s debate on finding the money in the budget for two additional police officers. 

Let me backtrack here for a second. During the last budget workshop, on July 31, Chief of Police Jeff Barnett told the council the city could hire two more police officers and they could be hired without taking money from any other expenditure proposed by the city manager. For instance, he said, during the height of the 2020 COVID pandemic, the state placed a moratorium on requiring motorists to have their vehicles pass an annual inspection. As a result, the city could no longer ticket motorists for expired inspection stickers. That moratorium has expired, so the city can commence writing those tickets again, potentially increasing the amount of fines from those tickets that flow into the city’s coffers over what was collected this fiscal year. Additionally, Barnett told the council that more motorists are on the roads again and more motorists translates into more traffic violations which, again, translates into potentially more fines. All in all, Barnett said, the amount of money the city will see in increased revenue from fines during the upcoming fiscal year as compared to the amount collected this year will more than pay for the new officers. Council member Dex Ellisson didn’t like this one bit, saying “This is anticipated revenue, not actual revenue.” What??? The entire city budget – the entire budget of any municipality in Texas that must adopt balanced budgets — is based on anticipated revenue. The budget is 100 percent dependent on expert prognostications of “How much money do we anticipate we will collect this fiscal year in ad valorem taxes, how much do we expect to collect in sales taxes, how much in fines, fees, franchises, etc.” It’s never about how much money does the city currently have in the bank, but how much do we anticipate coming in during the 365 days commencing Oct. 1. A significant inflationary spiral hitting the country could slash local sales tax revenues by as much as a double-digit percentage. Admittedly, I have not heard of any economists predicting a period of widespread inflation in the coming years such as the one that hit us early this century, but, then two years ago I had not heard any medical experts predicting a worldwide pandemic either.

A second thing that seems to be outside the grasp of city council members is when they are talking about budget expenditures, that discussion is not — NOT — about actually spending money. It’s only about setting aside money to be spent sometime in the future. Council members were debating as those budgeting $200,000 for additional police officers actually meant the city was going to spend $200,000 for additional police officers during the upcoming fiscal year. The only way that could conceivably happen is if the additional police officers managed to have somehow graduated from the police academy, be hired by the city, and be on the job by Oct. 1 and, folks, that isn’t possible. So while philosophical discussions about quotas and what’s wrong with quotas might be enlightening and worthwhile (and those arguments were certainly featured and constantly reiterated during Tuesday night’s debate), they have absolutely no bearing or relevance in a budget discussion. Whether the money comes from property taxes, fines, franchise fees, overdue library books, sales taxes — whatever — it all goes into big a stewpot called the General Fund and what the council decided Tuesday night is beginning this fiscal year and continuing until some future council says otherwise, the city is going to set aside the money required each year to pay for four more patrolmen for the Kyle Police Department along with the patrol car and whatever other equipment they may need. And, as long as the patrolmen are currently making what is specified in the current civil service contract, the city anticipates that amount is going to be approximately $200,000 a year. Now, it’s also possible that in upcoming years, when much of their equipment will already be paid for, the cost of those four officers will be somewhat less. That doesn’t mean an adjustment in the $200,000 is required or even necessary; it could simply mean more money will be available in the city’s cash reserves. But that’s probably way more information than anyone needs to know, except, of course, for our representatives on the council. I really wish they knew this.

Council to debate time vs. money

Which is the more valuable commodity: time or money? Is it a higher moral imperative for a municipal government to keep a promise it made to its citizen even if it means keeping that promise may not be the most judicious use of taxpayers’ dollars?

These are some of the questions the City Council must grapple with Tuesday night when it considers whether to apply for federal funds to help with various capital improvement projects because, like most, if not all, such requests, strings are definitely attached.

The item in question is one to consider and possibly take action "to approve a request for the CAMPO 2019-2022 Project Call." Specifically, the council will debate whether it wants to seek federal funding for the following projects:

• Center Street rail siding relocation ($14.9 million)
• Burleson ($8.79 million)
• Lehman ($8.01 million)
• Kyle Crossing ($1.28 million)
• Post Road ($2.5 million)

If the CAMPO requests are granted, the feds would pay 80 percent of the aforementioned price tag for each project and the city would be required to pay the other 20 percent.

Three of the above-mentioned items appear to be simple and easy decisions. If the city can receive $11.92 million toward the relocation of the railroad siding that removes the stalled trains that block traffic on center street, when combined with other pledges from the county and elsewhere, the city’s cost for that project would only be $710,000. That sounds like a bargain. As far as the money for Kyle Crossing and Post Road, I’ve been told that federal funds to defray the costs on those projects are probably a long shot.

That leaves Burleson and Lehman and that’s where the moral debate comes in because, Mayor Travis Mitchell said today, if those moneys are approved by CAMPO, it would mean delaying work on those projects for at least a year beyond what voters were promised when they approved the sale of bonds to finance those road projects, and others, more than four years ago. On the other hand, the federal moneys mean the city could apply the bond revenue to other projects directly related to those roads, such as additional sidewalks for Lehman, additional lighting for Burleson, xeriscaping medians and Mitchell said he is a major advocate of xeriscaping. The leftover funds could even be used to help pay down the debt incurred by sale of the bonds, thus increasing the capacity for future capital improvement projects that could be funded by General Obligation bonds without triggering a property tax increase.

Mitchell even said one more option is available: the city could take a proposal back to the voters seeking permission to use those suddenly available funds on other projects unrelated to the ones approved for in the original bond sale — perhaps the Post Road or the Kyle Crossing projects, which are already part of the city’s five-year Capital Improvement Plan. The political gamble of that however is whether voters would be agreeable to renegotiating the use of that bond money after the city decided not to keep its promise on when to complete the Lehman and Burleson projects. It all comes down to trust.

The reasons why the Burleson and Lehman projects would need to be delayed if the city seeks CAMPO money to complete the projects is twofold: First and foremost, the money won’t be available until sometime in 2019 — most likely around the middle of that year — and, second, because federal dollars are involved, more extensive environmental impact studies will have to be conducted on both projects. Mitchell estimated the delay on starting the Lehman Road project could be between five and six months and the additional EPA studies could delay it for another18 months. Construction on Burleson probably would not begin until May 2019, he said.

CAMPO will announce next May which projects are being funded, according to Mitchell.

Citizens may weigh in on the matter — whether the city should get the feds to defray the costs of these two road projects or simply forget outside funds and get these two road projects completed when originally promised — during the Citizen Comments period at the beginning of Tuesday’s council session.

Incidentally, the item that follows the CAMPO request is directly related. That item would be considering whether to update the city’s Transportation Master Plan to include relocating the Center Street Railroad siding. Mitchell said this is strictly a formality because all projects approved for CAMPO funding must be a part of a Transportation Master Plan. The mayor also said that even though the map that accompanies this item suggests the relocated siding could cause stopped trains to block Kohlers Crossing, the siding is sufficient to accommodate the longest possible freight train to ever use that line without blocking traffic on Kohlers. In fact, he suggested, that map may not be 100 percent accurate.

Other items on Tuesday’s agenda include:

• The appointments from the new council members for the city’s Ethics Commission.
• The appointment of engineer Paul Scheibmeir to fill the Planning & Zoning Commission vacancy created when P&Z Chair Dex Ellison was elected to the City Council.
• A resolution to suspend for 90 days a proposed 11.9% rate increase sought by Centerpoint Gas, which, according to city officials, provides natural gas to approximately 8,000 residential customers in Kyle, 318 "small volume" commercial customers, and one "large commercial customer."
• A proposal to spend $216,188.68 to buy one of these for the Stormwater Utility.
• A recommendation on zoning for a multi-family/retail services development on Windy Hill Road that was delayed during the last council meeting in order to obtain a legal opinion on whether the project was already allowed because of a previous agreement the property’s owner signed with Hays County prior to its annexation into the city. Several council members expressed concern at that last meeting about the impact the development would have on Windy Hill Road traffic.

　

City Council shatters dreams, breaks a promise and ignores rules

It was not one of the Kyle City Council’s better nights.

During the course of a three-hour, 39-minute meeting Tuesday night that included a 57-minute executive session nominally for the purpose of discussing the federal lawsuit former police sergeant Jesse Espinoza filed against the city (I find it difficult believe the council spent that much time talking about that one subject, but so be it), the council, while not outright killing a plan to remove all those stalled trains blocking Center Street, at least left it on life support; reneged on a vow to pay for the newly created stormwater utility strictly from the stormwater fees it plans to charge; and, for the sake of political expediency, patently ignored its own electronic billboard ordinance, creating a potentially ugly precedent, as well as state regulations governing the composition of an advisory board.

The discussion on the train issue was especially troubling because it involved witnessing council debate the completely irrelevant subject of the Hays County bond proposals, that supporters of which, it must be said, are distributing false and misleading information themselves. The subject of the discussion was whether the council should approve spending $270,000 for preliminary engineering services that would be required as an initial step to relocating the Union Pacific Railroad siding, the current location of which is the cause of all those trains stopping in places that block traffic on Center Street. Those engineering services are required to pinpoint more accurately the actual cost of such an undertaking.

A majority of the council wanted to postpone discussion of the item until after next week’s election that will decide the fate of the bond proposals because one provision of Proposition 2 in the Hays County bond package calls for the county to contribute $1.5 million toward the cost of relocating the siding. Here’s the problem with that kind of thinking. The total cost of moving the siding is estimated to be around $15 million. Hays County is not going to toss its $1.5 million into the pot until all the rest of the financing is, at least, pledged. And those moneys are not going to be pledged without those preliminary engineering services. Not only that, the $1.5 million Hays plans to contribute to the project is contingent on Kyle contributing an equal amount..

Here’s another reason why the postponement puts the entire process in dire straits. After the joint matching contribution from the county and the city, where is the rest of the estimated $12 million cost coming from? The plan is to ask the state for some and Washington for the rest. The Texas Legislature convenes in about 60 days and various legislators are already preparing and putting into the hopper their preferred spending bills. By the time the council gets around to approving these preliminary engineering services (in the unlikely event the item even appears on a future council agenda) it will possibly be too late to have any impact in Austin. The other problem is it’s highly unlikely the legislature or Congress would approve spending that amount of money when the city council of the town where the siding is located is on record as being so sharply divided on allocating the comparatively meager funds needed to complete the necessary engineering services. They could be thinking the entire project is simply one city council election from being scuttled on the local level so why should they commit their resources and their reputations on such a flighty project?

There’s that point in Texas Hold ‘em when the player who is convinced he has the best hand declares "I’m all in." That’s what the Legislature and Congress wants to hear from a local community before they open their respective checkbooks. They want to be shown that the community is "all in." Balking at approving funds for preliminary engineering services does exactly the opposite of declaring you’re "all in."

In fact, to give another example of how this council is not "all in" on this project, council member Becky Selberra informed her colleagues she has lived in Kyle for a long time now, that she has gotten used to the trains blocking Center Street, and that it really is not that big a deal as far as she is concerned.

So there you have it. A nail in coffin.

But this is not the first time the city has employed a wrongheaded approach to projects such as this. When the city was contemplating a decision in 2013 on asking voters to approve the sale of bonds for a series of major road projects, the council inexplicably decided not to spend the money on advance engineering studies but instead to pay for those studies from the bond revenues. As a result, the city was forced to scale back on some of its, perhaps overly grandiose, plans for these roads.

What is lacking here is political conviction and this, unfortunately, is creeping into many other places besides Kyle. Political "leaders" are more concerned about what actions they need to take to get themselves re-elected than what actions are in the best interests of the community they serve. The signal the council sent to the rest of the world was simply this: "We are not firm in our belief that moving this siding is in the best interests of our city. Our support of this project is completely conditional, based on the whims of the voters of Hays County." Of the six persons present at Tuesday’s meeting (council member Daphne Tenorio, as I understand it, missed the meeting to deal with a vitally important personal issue), only Mayor Todd Webster advocated for acting in what he believed were in the best interests of the city and not in a way that was simply politically expedient. And long-time readers of this journal know I have not always had the kindest of words for our mayor. But this time around he seemed to be the only person on the council to realize that if you want and need money from those higher up on the governmental food chain you must (1) be firm in your conviction that this is absolutely needed for your community and (2) not wait until those higher ups have already pledged all their available funds to other projects. The majority of the council decided to do neither.

As a result, as it stands right now, don’t expect any relief from stopped trains blocking Center Street and other rail crossings in the city, at least at any time during this half of the century because the council voted to delay indefinitely consideration of performing these engineering studies. It’s possible the council could reconsider this in two weeks but those two weeks comprise about 25 percent of the time between now and when the legislature convenes.

During the public discussions on this year’s budget, which contained the language creating what is effectively a new department within the city officially known as the Storm Drainage and Flood Risk Mitigation Utility, but which I will refer to as the Stormwater Utility or Stormwater Department, the council said the costs of operating the new department will not come from property and sales taxes that flow into the General Fund, but strictly from the dedicated stormwater fees to be paid to the city by its single family residential and commercial customers. And the discussion surrounding the first reading of the ordinance to actually create the department and the means for funding it followed that script, even after City Engineer Leon Barba said he wanted a drainage Master Plan to serve as a guide for moving forward.

"There are two components to the stormwater utility," City Manager Scott Sellers to the council. "One is maintenance and one is construction for the CIP projects. (Capital Improvement or CIP projects are generally considered those with at least a 20-year shelf life.) The first year we will dealing fairly predominantly with the maintenance aspect of that. We have a very good idea of what areas need to be maintained obviously. Year one we will acquire additional equipment and additional staff to maintain. We’ll put the plan together to know where to move forward in the future on the capital side. I hope to have something available by next budget year, by next fiscal year. But just through our own maintenance we should have a pretty clear picture of the low-hanging fruit capital projects. What we hope to attain with this drainage master plan is a long-term flood mitigation proposal for the council."

Mayor Webster responded that there is some action needed sooner than that and inquired whether Parks Department employees could be used for that before the new department has its own employees and the funds to pay the salaries of those employees.

Still, Public Works Director Harper Wilder stuck to the accepted script in responding to the mayor. "The money’s gonna come in around January so we’ll be acquiring staff and equipment. It’ll take a little bit of time in acquiring that equipment and people."

Council member Travis Mitchell pointed out "From a financial aspect, there’s really no chance that we can get anything done until summer or later. If we’re talking about $100,000 to $200,000 for a master plan and equipment, the revenues (from the stormwater fees) are going to be coming in somewhere in the neighborhood of $100,000 per month, hopefully, It’s just going to take some time. I would not want people to think that when that first bill comes on they’re going to start seeing anything for several months."

When Wilder said he thought they were projects that could be tackled immediately, Mitchell pressed even further, asking Wilder whether these projects would be financed through a loan from the General Fund. Wilder, apparently realizing he was getting boxed in a corner, hemmed and hawed and never really answered Mitchell’s question and instead talked about areas of the city that needed to be addressed instead of where the funds would come from to pay for dealing with these issues.

That’s when Sellers stepped in to announce, effectively, the promise had been broken.

"We are already as a city maintaining certain areas of right-of-way," the city manager said. "We have two Parks positions that will be moving into this Stormwater Utility once the funds are there. In the interim, those positions are being funded from the General Fund for stormwater maintenance."

The council unanimously approved the ordinance on first reading. The second reading, as well as a public hearing on the proposal, is scheduled for the council’s Nov. 15 meeting.

Speaking of promises broken, the city council approved back in August of last year an amendment to the city’s LED billboard ordinance that required the removal of four traditional billboard facings for every digital billboard erected. At Tuesday’s meeting the council signaled it was okay with the idea of allowing the owner of the property on which the Kyle Speedway is located to not only erect a digital billboard with no conditions attached but to allow that billboard to have a video component. This not only sets a dangerous precedent but it announces to one an all that while Kyle may have ordinances, they don’t need to be followed — a way can always be found to get around them, once again for the sake of political expediency. What’s to prevent every single owner along I-35 in Kyle to realize "I can get additional revenue by erecting one of these electronic gizmos, too"?

Another rule the council chose to ignore, selecting the path of political expediency at the cost of choosing to accomplish a task legally and correctly, was Chapter 395 of the Texas Local Government Code that regulates the composition of a Water and Wastewater Impact Fee Committee. That chapter requires one member of that committee to be a representative of the "real estate, development or building industry." And, if the impact fees the committee discusses, are to be applied in the city’s ETJ, the committee must also contain a representative from the ETJ. The council voted last month to name the members of the Planning & Zoning Commission to the committee and last night it unanimously approved the appointment of Freddie E. Dippel Jr., to fill the ETJ requirement. As far as the requirement for one member to be a representative of the "real estate, development or building industry," the council expressed confidence that one P&Z commissioner, Lori Huey, just might possibly fulfill that requirement, ignoring two salient facts: (1) Even if she was such a representative, her term has expired and she is no longer on the commission and (2) even when she was a member, she attended none of the meetings at which impact fees and what this committee must rule on were outlined and discussed.

But, it seems, the feeling of this council once again is: "Rules? We don’t need to follow no stinking rules."

In other action Tuesday night, the council

• Heard from Barba about the microsurfacing projects on roads in Kyle, all of which, except for Waterleaf Boulevard, should be completed by the time you read this and the Waterleaf project, according to Barba, should be done by Saturday. The only thing left to do on these projects, he said, is the striping which should take place "in a week or two."
• Approved the appointments of Mike Torres and Rick Koch and the reappointment of Allison Wilson to the Planning & Zoning Commission. Torres and Koch replace Huey and chair Mike Rubsam. Wilson was originally appointed to complete the term of Michelle Christie who resigned from the P&Z earlier this year, and this reappointment was for her own full term.
• Held the second and final public hearing regarding the annexation of 5½ acres southwest of FM 2770 and FM 1626 and, just as was the case at the first public hearing, no one cared enough one way or the other to take the time to come and speak to the council about it.
• Voted 4-2 (council members Mitchell and Shane Arabie dissenting) to rezone five acres at 245 Lehman from agricultural uses to retail services with a special provision that allows the property to contain a structure nominally reserved for areas zoned for warehouse use. The majority of the council felt that retail services are not coming to this stretch of Lehman anytime soon, so why not put something on there that will produce additional revenue for the city.
• Approved on first reading on ordinance exercising the city’s right of eminent domain on private property the city claims it needs to acquire to complete the Burleson Road project approved as part of the 2013 bond package.
• Unanimously approved a policy that effectively takes politics out of the decisions on where to locate stop signs in the city by removing the city council from the decision making process on unwarranted stop signs.
• Unanimously approved a three-way warranted stop sign at the intersection where Lockhart dead ends into Front Street.
• Unlike in the decision concerning the rail sliding, approved with no debate the spending of $203,625 for engineering services regarding the upgrading of a wastewater line from 12 inches to 18 or 21 inches as part of the Center Street Village Wastewater Improvements project.
• Approved 5-0 (the mayor temporarily left the chamber when this item was being considered) without any discussion, what Economic Development Director Diane Torres said were "just some technical amendments" to the previously approved RSI grant/loan agreement "just to clarify language and to clarify responsibilities within the agreement," and followed that by also approving 5-0 a $480,000 loan to RSI, called for in the agreement.
• Was told by Sellers the city is still awaiting word from the county and TxDOT about whether those two entities are willing to share in the cost of installing the four additional culverts required to fix a flooding problem on FM 2770 near the Precinct 2 headquarters. "If we do not receive (their commitments) we’re not sure how to proceed," Sellers said. "This is something that is holding up building in a phase at Plum Creek. The total cost, engineering included, is around the $410-415,000 range. So there is going to have to be some sort of understanding between the city and Plum Creek about funding moving forward." Sellers said he hoped to have a better update in time for the Nov. 15 meeting.