City sees savings in Grand Prairie partnership

Microsurfacing is seen as "the answer" for places like Kyle, communities with road maintenance needs but not that great of a road maintenance budget.

Developed in Germany in the 1960s, microsurfacing, a road maintenance tool that involves laying a mixture of dense-graded aggregate, asphalt emulsion, water, polymer additive and mineral fillers to correct or prevent certain deficiencies in pavement conditions, is not only a cost saver, but also gets very high marks for sustainability. One of the most versatile tools in the road maintenance arsenal, microsurfacing is a polymer-modified, cold mix paving system that can remedy a broad range of problems on Kyle’s streets.

"Government agencies are saving millions each year and preserving hundreds of extra lane miles by choosing pavement preservation over traditional pavement reactive maintenance and repair methods, " according to Carter Dabney, a director of the International Slurry Sealing Association in Annapolis, Md. "Using the right pavement preservation application, on the right road, at the right time can mean a savings of up to $400,000 to $500,000 per mile of two-lane road over a 50-year period. Considering today’s shrinking budgets and the number of miles in road networks, it is clear that municipalities cannot afford to ignore the value of microsurfacing for pavement preservation."

Dabney added that while some traditional pavement maintenance methods alone will accomplish the same goal as pavement preservation in extending the pavement’s life, his association’s analysis found that the life-cycle cost over a 40-year period is 25 percent higher using preservation methods. "By consistently devoting money to pavement preservation each year, a town is able to preserve four to five times the amount of lane miles than if it only repaired its worst roads first."

The major benefits of microsurfacing are:

• Seals small cracks and surface imperfections, waterproofs the surface, and protects the pavement structure of both asphalt and concrete.
• Improves skid resistance.
• Provides attractive, smooth black surfaces that aid in lane delineation.
• Its thin surface is ideal where curbs and overhead clearances (i.e., under bridges) need to be preserved.
• The quick-setting microsurfacing emulsion reduces user delay by allowing traffic in about an hour after re-surfacing and makes it suitable for night application on heavy-traffic streets.
• Fills depressions, small cracks and ruts, and provides some surface leveling.

Still, it doesn’t come cheap. On the average, microsurfacing costs $2.75 a square yard — and that doesn’t include the application costs or a guarantee that you’ll always be purchasing exactly the right mix of ingredients. When all the costs are combined, Kyle pays $3.35 a square yard to have its streets microsurfaced.

Which is why, City Manager Scott Sellers has led me to believe, that the City of Kyle wants to enter into an agreement with the City of Grand Prairie that will allow the cities "to partner … for better pricing for purchasing equipment, supplies and services." Thus, item 7 on Tuesday’s City Council agenda asks the council to "approve a resolution of the City of Kyle, Texas, authorizing the city manager to execute a master interlocal agreement with the City of Grand Prairie, Texas."

In an e-mail Friday, Sellers said this agreement "is a piggybacking agreement where we (Kyle and Grand Prairie) can both share in each other's competitive bidding if and when it makes sense. In this instance they have a great per unit price on microsurfacing material that we were not able to obtain locally. I believe San Marcos may also be joining this arrangement as well."

The agenda’s backup material was even more specific on the savings this agreement could mean for Kyle taxpayers.

"Last year, Kyle contracted with Viking Construction for all the microsurfacing projects at a rate of $3.35 per square yard," according to this material. "However, Grand Prairie has a microsurfacing contract with Viking Construction at a rate of $2.89 per square yard. Having this agreement will allow Kyle to use Grand Prairie’s rate of $2.89. Without this agreement, a microsurfacing project consisting of 69,198 square yards based on Kyle’s last year’s rate with Viking would cost $231,813.30; whereas having this agreement, Kyle would get Grand Prairie’s rate making the cost $199,982.22, a savings of $31,831.08 for this one microsurfacing project."

Microsurfacing, of course, is not the be-all and end-all of road repairs. It is seen as more of a way of preserving a road’s integrity, by preventing water seepage that, in fact, can cause more structural damage to road pavements than traffic, and making a few minor repairs. It does not replace road reconstruction, such as those being undertaken as a part of the city’s road bond projects. Think of it more like a road’s version of a flu shot.

But that’s why this item should sail through the council Tuesday without much, if any, dissent.

Which might not be the case with the two items that immediately follow this one. The first of these is the second reading of the already much discussed and debated Sledge Street residential zoning change request which was narrowly approved 4-2 at the March 6 council meeting while almost being killed in a pair of tie votes at the Feb. 20 council meeting. The second is the request for the council to approve a development agreement "related to the design and construction of a single family housing project on approximately 83 acres located near the southwest intersection of Windy Hill Road and FM 2001."

It will be interesting to see if the same band of no-growthers who have been trying to kill the Sledge Street project since its inception will show up again Tuesday to beat this dead horse one more time. It will also be interesting to see if anyone protests the following item, which appears, at least to me, to be far more egregious than the Sledge Street issue.

The subject to be addressed on both items is density, particularly where it is appropriate and where it isn’t. Personally, I am a firm adherent of what is called the "Smart Growth" approach to city planning. Here is a quote from The Smart Growth Manual: "The transect us a concept drawn from ecology, It is a progression through a sequence of habitats, such as from wetland to upland to foothill. Ecologists use the transect to describe how each habitat supports symbiotic sets of mineral conditions, microclimate, flora, and fauna. The rural-to-urban transect extends this classification system to include a sequence of human habitats of increasing density and complexity, from the rural hinterland to the urban core. Design at every scale should correspond to the logic of transition from the natural edge to the man-made center."

Item 8 on Tuesday’s agenda, the Sledge Street zoning, is in Kyle’s "man-made center," thus making the proposed R-1-3 the logical zoning designation for the proposed subdivision to be located at 1001 S. Sledge Street, even though that density is the subject of the opposition. However, the southwest intersection of Windy Hill Road and FM 2001 is very much as Kyle’s "natural edge." Although there’s no mention of zoning in this item, a proposed master plan that accompanies it calls for, by my count, 273 single-family residential lots jammed together. What’s more, this development could be just another in a series of high-density single-family residential subdivisions being crammed into this northeast corner and no one seems to be protesting that loudly about it. Off course, the reason for this is that no one "who matters" lives in this northeast section.

But, still, I find it baffling and somewhat distressing.

(Begin updated information) However, I have learned it could have been somewhat worse. Mayor Travis Mitchell informed me today this development agreement originally came before council Feb. 6 as a waiver request. "At the time, I was not comfortable with the request because development in Kyle's ETJ is not easily regulated by the city (Editor's note: A situation that's remedied somewhat by Item 4 on this week's agenda). The waiver would allow them to build with little city oversight and without complying with Kyle's Residential Style Guide. After relaying my concerns to the developers, they agreed to have their request postponed."

That postponement led to the item on this week's agenda -- the council's consideration of the aforementioned development agreement "requiring several binding concessions, chief of which is the project must commit to build according to their proposed master plan," the mayor said, adding "The developers agreed to increase the lot sizes and add a considerable amount of alley-loaded homes."

The mayor called the agreement "a win for the city," but, to me, it is still too dense a development for our "natural edge." This is the development folks should be speaking out against, the one that should cause additional debate among city council members, not the one on Sledge Street. (End updated information)

You can read the entire council agenda here.

Another one bites the dust

I must admit I’m a tad conflicted right now.

A couple of weeks ago I took Kyle’s 2018 Community Survey and, as I recall, question No. 7 asked "What specific stores and restaurants would you like to see in Kyle?" I don’t remember my exact answer to this question. Last year I replied to a similar question that I would love to have a Container Store here in Kyle. The Container Store located closest to us is across US 183 from the Arboretum in North Austin. That’s 32 miles away — 37-minute drive time if there’s no traffic. Not insurmountable, by any stretch of the imagination, but not exactly convenient either.

But when I think about it, I realize that just about anything I want from the Container Store I can purchase on-line without ever having to leave my home, without having to deal with the traffic. Then I recall what I wrote about Kyle’s Christmas period sales tax receipts taking a severe hit and attributing it to the likelihood that more and more Kyle shoppers are purchasing goods on-line. I mean, you can even get home delivery of your groceries.

Then, in today’s Austin American-Statesman I read where Toys "R" Us is making preparations to close all their stores, at least all their U.S. stores.

And this got me to wondering whether Kyle is seeking 20^th Century solutions to 21^st Century problems. Are brick and mortal retail outlets what Kyle should be working toward or what local shoppers really want?

The same is true when it comes to transportation. There are those in Kyle who are demanding mass transportation options when our neighbors to the north, who, in Cap Metro, have a well-evolved mass transportation infrastructure in place, but one that is steadily losing ridership. Here we are, entering an era when most transportation experts are predicting driverless cars will dominate our roadways, and there are those still wondering why we don’t have bus or rail service.

Council members were briefed, during the executive session at the most recent City Council meeting, on the progress of negotiations involving four economic development opportunities, dubbed "Project Maria," "Project Electric Light," Project Last Mile," and "Project Purple Mountain." Three different sources, all of whom obviously wish to remain anonymous, have told me one of those has the potential to be "a real game changer" for the city. The first three of those projects have appeared on a number of recent agendas ("Project Purple Mountain" recently replaced one with the codename "Project Caribbean Dream.")

With Toys "R" Us being the latest in a long line of retail/restaurant outlets to bite the dust, here’s hoping this "real game changer" is not a brick-and-mortar store or restaurant like one the city asked about in its survey, but a significant employment center, something that could go a long way toward solving those transportation concerns as well as generating a major new source of municipal revenue.

Yep. The more I think about, the more I realize that the last thing we need here is a Container Store — that question No. 7 is not the one the City should be asking.

March sales tax revenues: back in black

My suspicions that the city’s financial experts grossly over estimated the amount of money local Christmas shoppers would spend in retail outlets located within the city limits seemed to be re-inforced — if not necessarily confirmed — by this month’s sales tax reports showing revenues greater than forecast.

This month’s figures, which, for all practical purposes, reflect January spending, were $15,559.07 higher than what the fiscal year budget projected. It’s worth noting, however, that the $532,405 projected for the month was a significant $287,312 less than what the city predicted it would haul in the previous month.

This marks the halfway point in the current fiscal year and for those first six months the total amount of sales tax revenues collected is $151,143.58 above what was forecast and for five of those six months, receipts exceeded projections. The only exception was last month — the one that reflected the Christmas shopping season. At this same point last year, the city’s sales tax receipts fell below expectations three of those first six months.

Here’s this month’s table:

Sales tax collected	Budget surplus	Percent surplus	FY percent Surplus	Feb. 2017 Collections	Variance from last year
$547,964.07	$15,559.07	2.92%	4.12%	$510,619.20	7.31%

You can read the entire report here.

Upon further review, the dense zoning is appropriate for this area

Yes, dear friends, the short answer is that the City Council, by a 4-2 vote, approved last night the most dense single-family detached residential zoning it has on its books for a 17-acre tract of line on Sledge Street, a controversial decision that twice ended in a draw at the last meeting and one that had aroused significant vocal opposition, both on and off the council dais. But the sheer beauty of the decision was, of course, not the decision itself, but the ironic twists that surrounded and practically engulfed it — twists that achieved levels of pure poetry in their irony. It was bone chilling.

First was the fact that, for the second consecutive meeting, only six council members attended. This time Damon Fogley was absent because of conflicting business matters. Of course, I immediately envisioned the possibility of a repeat from two weeks ago — the scenario of another 3-3 vote that would kill any and all motions made on the subject. The same three — Tracy Scheel, Alex Villalabos and Daphne Tenorio — who opposed the denser zoning request were still there and based on the voting history and common sense of Mayor Pro Tem Shane Arabie, it seemed logical that he would join Mayor Travis Mitchell and Dex Ellison on the other side.

That brings me to the second of the three great ironic moments that occurred, but I do want to take them in order because taking them out of order simply renders them ironic. It’s putting them in the right sequence that allows them to achieve a poetic stature.

It’s important to note here that the same folks who came before City Council two weeks ago — most of them residents of a subdivision called Bradford Meadows that’s located right across Sledge Street from the one being considered for the zoning change — to complain about the development showed up again. Except this time they didn’t get to speak as long as they did at the last meeting because a temporary digital clock was mounted on the dais to remind them when their speaking time limit had expired. As a result, the speaker who went three minutes over her allotted time at the last meeting, only went over by a minute this time and Lila Knight, bless her heart, actually stopped in mid-sentence when she saw her three minutes were up. Then there’s poor Tim Miller, the owner of a certified organic farm on Opal Lane who is like the lad on the beach holding his palm out to sea as if that gesture can keep the tidal wave away from the shore. I don’t sympathize with Miller, exactly, but I do empathize. He is about to become another victim of urbanization and he shows up at council every now and then to protest and fight that realization but, the truth is, holding your palm out to sea doesn’t stop the tsunami. When North Dallas High School was built in 1922 its location was undoubtedly considered to be North Dallas. It is exactly 3.1 miles from the center of downtown Dallas. When I first moved to Austin in 1960, all city development to the northwest ended at Balcones Drive and FM2222. Plugerville was considered to be located way out in the country. The fact remains that time and progress do march on and no matter how fervently you pray and no matter how vociferously many citizens and even some council members want to stop it, it is inevitable.

But, regardless, they will keep on trying and they will keep on being disappointed. I’m a big movie fan and am especially a fan of the film-noir genre from the 1940s through the mid-1950s. Black and white films. And the dreamer in me often wishes I could return to that era — to what I considered simpler times, when no one used words like "paradigm" and I won’t bore you with all the ways I hate the word "paradigm." But the realist in me knows that’s impossible. The realist in me knows that the time is rapidly coming when everything between Georgetown and San Antonio will be completely urbanized, much the same way everything has become between Dallas and Fort Worth or, even more ominously, between Boston and Washington, D.C.

But it’s also a truism that the only time people speak up about something is when they feel injured in one way or another. We have no reservations whatsoever about speaking our minds in a restaurant when we don’t like the service or even carving out time to write a nasty complaint letter once we get home. Or, as Mayor Mitchell said last night, "Whenever I look at zoning requests I don’t look at them as how far away they are from a subdivision nearby because if I made my decisions for how to plan a city (based on their desires) I would never be able to pass a zoning request. We get people coming out opposed to almost every single zoning request."

So all these folks from Bradford Meadows who, if you dug deep into their hearts, didn’t want anything built across the street from their subdivision (it’s basic human nature to fight change — it’s ingrained in our DNA), disguised their true intentions by arguing the proposed zoning was just too dang dense — the developer was proposing to put all these teeny tiny lots directly across from their more spacious estates.

Which brings me to the first ironic moment of the meeting, when the city produced and displayed for all to see a pictorial rendering it had either not yet developed or had kept under wraps until this precise moment. It was an aerial view of Bradford Meadows with the proposed layout of the subdivision planned for the other side of Sledge Street overlaid on the property where it is planned. And it was like one was almost the mirror image of the other. I glanced at the folks from Bradford Meadows when this slide flashed on the screens for all to see and I could tell even they were taken aback by what they were seeing. The wind that was propelling their vocalized sailing crafts was gone and those crafts were dead still. No propulsion at all.

But now I can return to that second ironic moment — the moment that wiped out any chance of another 3-3 tie vote. Scheel — the council member who had motioned for a less dense zoning for the planned subdivision at the last meeting and who voted against the motion for the denser zoning later during that session — that very same Tracy Scheel, in a dramatic moment last night, announced she was changing her mind.

"I’ve been personally debating this issue over the last three weeks since it came before Planning and Zoning," she said. "Tonight, listening in more detail to what the infrastructure that we have put in place or are putting in place or planned to be put in place and also listening to the developer and understanding he only plans to build on 15 acres (two acres are in a flood plain and will be reserved for park land and a detention pond) and he is planning on some bigger lots I’m going to go ahead and vote for this motion."

With that, passage was ensured, even before the official vote was taken. But the final ironic twist — the one that elevated the sense of irony to the level of sublime poetic verse, the coup de grace, if you will, or, if you’re more athletically inclined, the overhead smash for match point — was delivered by Mayor Mitchell when he reminded everyone that the current property owner had purchased it from the Ayers Family, which had possessed it for a number of years.

"The people who live in Bradford Meadows are in a community across from the Ayers who weren’t happy about that," Mitchell said. "They weren’t happy that Bradford Meadows was being built."

"And the seasons they go round and round
And the painted ponies go up and down
We're captive on the carousel of time
We can't return we can only look behind
From where we came
And go round and round and round
In the circle game"
—Joni Mitchell

Caught between a rock and re-election

Tuesday’s city council agenda item to reconsider the vote on a zoning issue is just one more example of why it’s foolhardy to the point of being disastrous for cities the size of Kyle to have single member city council districts.

Talk to most good government experts and they’ll agree. Single member city council districts work efficiently only in cities with a population of at least 100,000 (cities as large as Seattle elect all council members at large) and the Sledge Street zoning folly is a perfect example of why this is so. The reason for this has to do with voter turnout. Too often in municipal elections the percentage of registered voters who come to the polls are in the single digits. Kyle is no exception. Historically, voter turnout hovers around 8 percent. That means only a small handful of people decide who runs the government and when cities with smaller populations carve those cities into individual voting districts, that pool of voters who decide the outcome is minuscule.

That’s the reason many of those citizens of Kyle who were the major influentials of Kyle’s elections in the past are solidly opposed to Kyle’s growth today. If growth results in the pool of voters growing larger — even if the small percentages remain unchanged — their influence diminishes proportionately (not to mention rapidly).

Which brings me back to "The Nightmare on Sledge Street." This property was owned for years by Tom and Mary Ayers who, like many of their neighboring property owners, secured development agreements with the city that kept them from having their property annexed into the city limits during annexation proceedings that occurred during the last couple of years. One of the caveats of the agreement, however, was the property could not be changed in any significant way. But the Ayers Family recently sold their 17-acre lot to a Cedar Park, Texas, development company called Thunder Horse Development, which hopes to subdivide the property. That subdivision, obviously, constituted a significant change and triggered annexation proceedings, an annexation that was completed by the passage of a second reading of the annexation ordinance at the last council meeting. It’s important to note at this point that all land within the city limits of Kyle must bear some kind of zoning designation. Therefore, whenever Kyle annexes unzoned property it arbitrarily applies the designation of Agriculture (or "AG") zoning to that property. Thunder Horse Development is asking the city to rezone the property from AG into a residential designation known as R-1-3, the most dense single family residential zoning Kyle has to offer. This request makes perfect sense considering (1) the relatively small size of the property and (2) its proximity to the city center. (Smart Growth teaches cities should place their highest density zoning at the center of the city and make that zoning less dense in concentric circles further away from the city center.) The no-growth element, of course, wants to kill the project entirely although a few of them mask their intentions by pleading for different types of less-dense development on the property.

Council member Tracy Scheel, whose single-member district includes the property in question, is caught in the political crossfire of this mess. That no-growth contingent that is fighting this plan comprise many of the influentials of that district and there’s a good chance they could determine the outcome of the next city council election for that district seat. She must ask herself, if she crosses this very small group of influentials who could possibly sway the outcome of a single-member district election but never an at-large one, could her re-election wishes be squashed before they’re even started? She must decide whether to act in the best interests of the city as a whole or in the best interests of her political future.

And the real villain here is not Scheel, nor the influentials, or the Ayers Family or even Thunder Horse Development. No, the real villain here is the system that allowed for the single-member districts that can be politically manipulated so easily. It’s single-member districts in a city the size of Kyle that force Scheel into dilemmas and unfair decision making situations like the one I just outlined.

What happened at the last council meeting, in a nutshell, when this item first came up for consideration was that all the no-growth influentials came out to speak against it. It’s an interesting phenomenon, but an accurate one all the same, that only those opposed to something usually show up at City Hall to talk on the subject. This is true not just in Kyle, but everywhere I’ve ever been. Those who support it usually don’t think it’s important enough to take time out of their schedule to make the effort and then there’s the overwhelming majority — those who could care less one way or the other — and you know what they’re going to do.

So Scheel, in a move towards single-member district-driven political expediency, made a motion for a less-dense zoning (known as R-1-2) than Thunder Horse applied for. That motion failed on a 3-3 tie vote (Mayor Pro Tem Shane Arabie did not attend this last meeting). Voting against it were Smart Growth proponents Mayor Travis Mitchell and Damon Fogley along with Daphne Tenorio who is the most avid no-growth proponent on the city council — she will vote against any new zoning for this property. Then Mitchell offered a motion to apply the R-1-3 zoning requested by Thunder Horse, but that, too, failed on a 3-3 vote with Scheel, possibly seeing the demise of her political future flashing before her eyes, joining Tenorio and Alex Villalobos, who is also displaying no-growth voting tendencies, in voting against it.

That accomplished exactly what the no-growthers wanted. It killed the subdivision. At least for two weeks.

Which brings me around to the subject of "regulatory taking." I mentioned earlier that whenever Kyle annexes unzoned property into the city it "arbitrarily" applies the AG zoning designation to it. It doesn’t matter at all what’s on the property. Kyle has annexed land that contained nothing but warehouses, but still that property was zoned AG and those warehouses became non-conforming uses. One definition of regulatory taking, is "a situation in which a government regulation limits the uses of private property to such a degree that the regulation effectively deprives the property owners of economically reasonable use or value of their property to such an extent that it deprives them of utility or value of that property, even though the regulation does not formally divest them of title to it." Here’s the deal here: No one — not the Ayers Family, not Thunder Horse Development, no one — asked for that AG zoning for that property. And that’s OK. But the courts have ruled many times that a city doesn’t have to re-zone property exactly the way the property owner desires, but it must rezone it in some way. Failure to do so results in an illegal regulatory taking. And, as it stands right now, Kyle is guilty of such an illegal activity.

Now if the decision was left to the no-growthers, they would rather have taxpayer dollars spent on fighting legal action involving illegal regulatory taking and even having to make a substantial financial settlement in such a matter than have the Sledge Street subdivision. But is that in the best interests of the city as a whole? And the fact that this question even has to be asked illustrates why single member districts in a city the size of Kyle are not in the best interests of the city as a whole.

Agenda Item 10 on Tuesday’s City Council agenda seeks reconsideration and possible further action on the zoning request from Thunder Horse Development. Scheel’s name is attached to item as the person who requested it be placed on the agenda. I have reached out to her to ask her why she is seeking this reconsideration but to be perfectly truthful I reached out to her late in the day and have not really given her enough time to respond properly. If she does, I will insert her comments here.

But her name being attached the item also brings up another interesting point. Only someone on the prevailing side of a vote can ask for that vote to be reconsidered. Technically, Scheel was on the prevailing side of only the vote on the more dense of the two zoning motions. Shouldn’t that mean that only that R-1-3 zoning request should be reconsidered and that a motion to reconsider R-1-2 would be out of order?

And, of course, there’s the obvious question: Will the council avoid the possibility of yet another tie vote by having all city council members present?

Other than that, there’s nothing else really dramatic on the council agenda, although a couple of items do raise questions.

Question No. 1: Why wasn’t Item 12 — amending ordinances having to do with subdivisions — vetted through the Planning & Zoning Commission (it bears repeating I am a member of that commission, but that’s not why I am asking) before it came to the City Council? Planning Director Howard J. Koontz, in a memo to the council, wrote that the purpose of this request is "so that Kyle’s land use and development controls can accommodate quality development practices and serve to protect all those properties, even outside of the city’s corporate limits," whatever that means. I have posed the above question directly to Koontz, but, like my query to Scheel, this one came late in the day and am hoping for a timely response even if I’m not realistically expecting one. (Updated Monday 1:25 p.m.) Koontz informed me early Monday the reason this item is going directly to council, bypassing P&Z, has to do with timing ("to get the language in place before the middle of next month," he said) as well as the obvious: "that's the process for text amendments to Chapter 41 of the City Code." So there's that. (End of update)

Question No. 2:Does the inclusion of something called "Windy Hill Zoning" as part of the executive session agenda mean that the controversial zoning case involving the desire of a property owner to locate an apartment complex on Windy Hill Road, a desire the property owner argues was guaranteed him by Hays County even though it was rejected by the city, mean that a lawsuit has been filed or his pending against the city in this matter? Or does it have to do with an entirely different subject involving "Windy Hill Zoning"? Since this is an executive session matter, there’s no one who will go on the record with information about this, at least not right now. But that’s not going to stop me from raising the question.

I must also admit to a certain curiosity about an economic development prospect to be discussed in executive session that has been dubbed "The Last Mile." The mind reels at the possibilities. Is the prison on the southeast edge of town thinking about installing a death row? Nahh!! That can’t be it. That’s not a maximum security facility. When it was on the last council agenda, I thought it might have had something to with the purchase of the property that will allow the city to extend Marketplace Boulevard from the Burleson Road roundabout to the I-35 frontage road. But I thought that was all settled now. It probably has something to do with property owner negotiations in connection with one of the road bond projects, but, still, that "last mile" moniker conjures up all kinds of possibilities.

Hearing examiner upholds Espinoza suspension

In a ruling in which she "sustained" almost every charge the city brought against former Kyle Police Sgt. Jesse Espinoza, hearing examiner Paula Ann Hughes, in a ruling released late today, upheld Espinoza’s suspension from the force, writing "Espinoza violated numerous rules, orders, codes and policies" of the city and reinstating him would negatively "impact the morale and efficiency of the (police) department."

Espinoza has 10 days to appeal the ruling, which is unequivocal in its condemnation of Espinoza’s actions and the reasons for his dismissal.

Jesse Espinoza

The judge sustained the charges against Espinoza of insubordination, untruthfulness, violating the city’s Code of Ethics, conduct prejudicial to good order, conduct bringing discredit to the department or profession and many others.

"The City has proved by a preponderance of the evidence that Espinoza violated numerous rules, orders, codes and policies of the City of Kyle," Hughes wrote. "There is no mitigating circumstance that causes this to be an exception to proper police procedures and behavior. Having Espinoza reinstated to the department would impact the morale and efficiency of the department in a negative manner. The indefinite suspension is upheld."

Hughes’ ruling came in a case in which Espinoza appealed his May 15, 2015 indefinite suspension by acting Kyle Police Chief Charles Edge. Espinoza was seeking reinstatement to the Police Department along with back pay and benefits.

Kyle city spokesperson Kim Hilsenbeck, the person who made Hughes’ ruling public today, said "the city will not be making any comments/statements about the ruling at this time."

The ruling claimed Espinoza essentially conspired with Louisiana anesthesiologist Dr. Glen Hurlston to have Police Chief Jeff Barnett fired. According to the examiner’s report, Hurlston was angered because Barnett fathered a child Hurlston originally believed was his and Espinoza was hoping his long-time friend, Joe Munoz, would be named chief in May 2011 when Barnett was named to that position..

De. Glen Hurlston

"Caught in a web of Hurlston’s anger and desire to bring down Barnett, Espinoza made some poor choices and decisions," Hughes wrote. "For some reason Espinoza felt he had rights and privileges he did not have."

"Espinoza stated he was the third most important person in Kyle and he acted like the rules, procedures and processes did not apply to him," Hughes wrote. "The City Council runs the city, not one policeman."

On the charge of ethics violations, the judge wrote: "By spreading rumors with a private citizen while on duty, damaging Barnett in a public way about a private matter that occurred in another city, aligning with Hurlston who was suing the city, all constitute violations of the Code of Ethics.

Espinoza tried to claim that he should be reinstated because many of the charges against him occurred beyond Civil Service’s 180-day statute of limitations. The hearing examiner did not buy that argument. "The questions asked by Chief Edge (that led to Edge’s suspension of Espinoza) were to be answered truthfully," Hughes maintained. "He was not being suspended because of events prior to the 180-day rule but he was being suspended because he did not answer questions completely and truthfully in the investigation."

A not-so-green Christmas

It has been my experience in writing about various municipal governments in Texas that February sales tax collections usually reflect activity immediately preceding Christmas. In other words, consumer spending is usually higher during this period. In fact, according to statistics compiled by various sources, 30 percent of annual retail sales occur during the month of December. To reflect this, municipal governments normally anticipate higher sales collections in February — the month that reflects those December sales — than any other month.

Kyle is no exception. Last year, for instance, Kyle forecast it would receive close to 11 percent of its annual sales tax revenues in the month of February. For the first four months of the current fiscal year, city planners forecast Kyle would receive an average of $579,178.75 per month in sales tax revenues and the city exceeded the forecast amounts each month. For February, however, in anticipation (I’m guessing) of robust Christmas spending, the city forecast collecting $819,717, a whopping 41.5 percent above this year’s monthly average.

And, for the first time this fiscal year, Kyle’s collections fell below projections — by $36,029.55 — compared to average monthly surpluses of $42,903.54 for the first four months of FY 2017-18.

The obvious question is how did this happen, especially when most national retailers reported increased Christmas season sales in 2017 from 2016. I posed that question to Kyle Finance Direction Perwez Moheet who appeared to be baffled by the numbers. "I do not have any theories as to why the sales tax amount remitted by the Office of the Texas Comptroller of Public Accounts in February 2018 for the City of Kyle city is below budget projections," Moheet told me today.

That, however, won’t stop me from speculating. I can see two possible reasons for this. The first, and most likely one, is that more Kyle Christmas shoppers used on-line platforms rather than brick-and-mortar outlets to fulfill their Christmas shopping needs. I will admit I accomplished 100 percent of my holiday shopping on-line. And the great majority of these platforms don’t remit sales taxes back to the states where orders originated. The second explanation is that many of those who actually went to retail outlets to purchase Christmas gifts went to stores outside the city limits. I saw, for instance, where Best Buy reported a significant increase in December 2017 receipts over the prior year. In this leisure electronic age, Best Buy is a popular destination for Christmas shoppers and, of course, there is no Best Buy in Kyle, but convenient locations are in San Marcos and Southpark Meadows.

I’m not saying Kyle economic development gurus should drop everything in pursuit of a local Best Buy outlet. With those two aforementioned stores so conveniently located, I seriously doubt Best Buy would have any interest at all in a Kyle location. What I am suggesting, however, is, based on last year’s February receipts being 7.05 percent below forecasts and this year’s missing the projections by 4.4 percent, that perhaps city financial wizards not be quite so optimistic about Christmas shopping within the Kyle city limits.

Sales tax collected	Budget deficit	Percent deficit	FY percent Surplus	Feb. 2017 Collections	Variance from last year
$783,687.45	$36,029.55	4.40%	4.32%	$746,924.33	4.92%

You can read the entire report here.