San Marcos Mercury | Local News from San Marcos and Hays County, Texas

January 9th, 2008
Clearing up Kyle’s closing time

An ANALYSIS
By BILL PETERSON
Editor at Large

KYLE – The general state of confusion about a business curfew in Kyle made another appearance before the City Council Tuesday night, maybe not for the last time.

Councilmember Dan Ekakiadis put an item on the agenda requesting that the city delete references to business curfews from the zoning ordinance. Ekakiadis argued that businesses may be unwilling to locate in Kyle if they’re required to close at 10 p.m. and, further, that the requirement is unenforceable.

“Most cities don’t have a curfew, and this is one thing we can clean up,” Ekakiadis said.

Ekakiadis supposed the code can’t be enforced because the city’s code enforcement officer goes home at 5 p.m. and, therefore, would not be available to catch businesses staying open past 10 p.m. City Manager Tom Mattis said every code on the city books is enforceable.

Ekakiadis’ motion died for lack of a second after Mattis argued that the restriction on business hours is not a problem because it applies to very few properties. Mattis said he has never heard of a business refusing to operate in Kyle due to the restriction, citing the city’s incoming business growth as evidence of its commercial attractiveness.

“I hope it’s getting to the point in Kyle where we don’t have to prove we’re business friendly,” Mattis said.

Mattis said during Tuesday’s meeting that the restriction on operating hours only applies to business that open within 300 feet of property zoned for residential use. While Mattis’ explanation satisfied most of the council, it raised additional questions from officers with the Kyle Area Chamber of Commerce, who wondered after the meeting how the provision would affect business prospects.

While the council met in executive session Tuesday night, Mattis and The Hays Highway sat down with a copy of the zoning code (Ordinance No. 438) and a copy of the city’s zoning map, just to eyeball exactly where the requirement applies.

Almost every zoning category examined contains a paragraph stating, indeed, that businesses must close to the public at 10 p.m. if they locate within 300 feet of property already zoned for residential use. However, the zoning map also reveals that the provision affects very little of the city that’s zoned for commercial use. In fact, it only affects those 300-foot bands of commercially zoned property that abut residentially zoned property.

For example, all of the Interstate-35 frontage through Kyle that’s zoned for commercial use on either side is exempt from the 10 p.m. closing requirement, except for three locations of 300 x 300 feet, adding up to 270,000 square feet – about twice the size of Kyle’s H-E-B.

Most of the Old Hwy. 81 frontage is exempt from the 10 p.m. requirement. All but 200,000 square feet of Rebel Drive frontage between Porter Street and Silverado Drive are exempt. All but 180,000 square feet on Gregg Street between Rebel Drive and Ranger Drive are exempt.

To be less tortured and more clear about it, maybe one or two percent of the commercially zoned property in Kyle is beholden to the 10 p.m. closing requirement. Compare the zoning map and the zoning code, bearing in mind that the 10 p.m. requirement applies only to commercially zoned property located within 300 feet of residential zoning.

Central Business District-2 (CBD-2) doesn’t contain the 10 p.m. provision at all. CBD-2 runs along Center Street from the east side of Nance Street to the west side of Front Street, as well as the west side of Front Street from Austin Street almost to Moore Street. The zone also includes portions of Blanco Street, Lockhart Street, Miller Street and Moore Street approaching Front Street from the west.

With that provision lacking, businesses operating within CBD-2 aren’t required to ever close. In practice, very few existing businesses in CBD-2 are open past 9 p.m., but that is likely to change as the city grows.

Larsen Wilkes, proprietor of Bordeaux’s on Center Street, closes at 9 p.m. on most weeknights and said he doesn’t envision staying open much past 11 p.m. except for very special occasions, such as a New Year’s Eve party. Wilkes said it will make sense to extend his hours when retailers begin opening at the oncoming Seton Hospital development and the Kohl’s development on Kyle Parkway.

“You have to realize,” Wilkes said shortly after 9 p.m. Tuesday, “that right now people will be getting off work and they’ll be looking for a place to go.”

The confusion about Kyle’s restriction on business hours began last summer, when, for the first time, a business was about to open in Kyle with an interest in staying open past 10 p.m.

With the H-E-B soon to debut, members of the zoning board anticipated striking the curfew, as they believed the 10 p.m. closing time applied across the city. Rather than strike the curfew, though, the city rezoned a nearby parcel to retail/services (R/S), thereby keeping the H-E-B in compliance.

Furthering the confusion is the ordinance language discussing “property zoned for a residential use,” which is to be very carefully distinguished from property used for a residence.

In principle, a business within an R/S zone can stay open for 24 hours right next door to a residence, because residences are permitted in R/S. That is, any residence in R/S has to live by the R/S rules, which don’t require any closing time except for businesses located within 300 feet of a property zoned for residential use.

Furthermore, the ordinance states that closing time applies only if that residential zoning is in effect when the commercial use is first established. In other words, a pre-existing business doesn’t have to start closing at 10 p.m. just because the city decides to zone the lot next door for residential use.

Generally, the zoning categories are layered, starting with “Residential,” where only residential uses are allowed. Another category up, say, R/S, allows retail and service businesses, but residences also are allowed. Still another category up, say, “Construction and Manufacturing,” allows industrial uses, but retail and service businesses are allowed within that scope, as are residences.

So, when a zoning category stipulates that business doors must be closed to the public at 10 p.m. within 300 feet of residential zoning, that’s not to say the business must close at 10 p.m. if it’s within 300 feet of a residence.

Not to confuse the matter, but it’s very simple: If you open a business in Kyle and you’re not within 300 feet of residential zoning, you can stay open for as long as you like.

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