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February 23rd, 2009
Freethought San Marcos: City council majority gets zoning decision right

Freethought San Marcos: A column
by LAMAR HANKINS

They may not have done so for all the right reasons, but a majority of the San Marcos City Council made a correct decision this past week in denying a change in zoning to a parcel near the intersection of Hopkins and Wonder World.

One of my greatest frustrations as city attorney twenty years ago was trying to teach zoning commissioners (we had separate zoning and planning commissions then) what issues were appropriate to consider and which were irrelevant or wrong to consider based on Texas law. In the 1980s, the city attorney’s office provided training to zoning commissioners and an assistant city attorney attended their meetings, giving legal advice when needed, and reminding the commissioners which issues had legal significance and which did not.

Of course, the proponents of zoning amendments are frequently guilty of trying to persuade commissioners to make a zoning change based on the specific development project they claim to be contemplating, often providing many details of a project, including drawings of how it would look, arguing that it would be an aesthetic boon to the community, etc. None of these matters are relevant to a zoning amendment. Zoning merely establishes the parameters for the use of the property, not what a project will look like.

If someone wants to change a parcel’s zoning from commercial to multi-family residential, there are two important inquiries. The first is to look at the present zoning and Master Plan designation for the property and ask whether a mistake had been made or circumstances had changed that necessitated a zoning re-designation.

The second criterion is to determine whether there is a shortage of the requested zoning designation in the community. This inquiry can be extended further, if necessary, by looking at the area where the zoning change is requested to determine if there have been changes in land use in that area of the city that make the requested change essential to the welfare of the community (not the welfare of the developer). In the instant case, the relevant question is, “is there a shortage of multi-family zoning in the city or in the south part of town?”

In this case, the land has been zoned General Commercial (or something similar) for about 25 years. It is part of a business park that includes offices, retail businesses, service businesses that sell retail and wholesale parts, two branch banks; it will eventually be home to the Hays County administrative and courts complex. This land has had this designation through at least two comprehensive planning cycles. For 25 years, the citizens of this community and its planners decided that this large tract of land was most suited for commercial development, as requested by its developer, W. C. Carson. The land is isolated by two major thoroughfares, two railroad tracks, and Purgatory Creek. There is no residential neighborhood near the land in question. The entire area is commercial.

The proponents argued that the tract is within walking distance of certain businesses and amenities that new residents of an apartment complex might use. However, those facilities all were built with the knowledge that the only residential area nearby is to the south, on Stagecoach Trail. All of those residences are apartments. One is a senior apartment development, whose residents seldom walk outside of their apartment area. One of the two restaurants mentioned is a Subway. The other is as much a sports bar as it is a food service business. None of this has anything to do with whether the long-standing zoning for this area should be changed to multi-family residential from commercial.

Equally bad arguments in favor of a change concerned the exact nature of the project proposed by the developers. The size of the apartments the developers said they wanted to build is irrelevant. The reduction in impervious cover is irrelevant (at least to the zoning decision). The developers claimed that there is a demand for residences that are not single-family in the neighborhood. This is nonsense because there are no single-family residences in the neighborhood, now that the house that was just across Hopkins from the parcel in question has been torn down to build the Wonder World extension. There are about six residences north of the land and north of Purgatory Creek before the VFW hall. In no reasonable sense does this area comprise the neighborhood of the business park.

Whatever specific project the developer now wants to build is irrelevant because he can change his mind as soon as the zoning request is granted. The zoning is not tied to a specific apartment project. The parcel could be sold to another developer who could build whatever kind of apartment project satisfies the requirements of the MF-18 zoning he had requested. Zoning is not tied to a particular proposal or project–it concerns only what use the land can be put to and what restrictions must be honored.

It also doesn’t matter what the Planning and Zoning Commission recommended, no matter how much we might respect their work. Sometimes they can be wrong. But whether P & Z is right or wrong, the city council has a duty to make its own decision about all matters that come before it. Being a rubber stamp for a city commission is not the council’s duty.

Opponents of the proposal suggested that granting the change from commercial to multi-family residential would demonstrate a lack of “plan discipline” (referring to the land use plan of the city’s Master Plan). This argument is accurate. The Master Plan should be changed only when the change is warranted by the standards found in the Master Plan and when an area of the city has not developed as expected, warranting a change. Neither of these factors is involved in this situation. The business park has slowly developed for the last 25 years and includes only commercial projects suitable to its zoning designation.

In this case, no one presented evidence that there is a shortage of land either in San Marcos or in the south part of town that can be used for multi-family development. No one presented evidence that 25 years of planning should be undone because a developer believes that he can make money putting apartments at the intersection of Hopkins and Wonder World, no matter how beautiful those apartments might be. A majority of the city council made the right decision. They should be congratulated for doing their duty and following the plan developed by and for the people of San Marcos.

© Freethought San Marcos, Lamar W. Hankins

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2 thoughts on “Freethought San Marcos: City council majority gets zoning decision right

  1. The rezoning request was part of a Planned Development District (PDD) request and the two would be tied together – that is, one would not be granted without the other; therefore the major premise of your article is flat out wrong. If it were part of a PDD then the concerns in paragraph 3 & 9 of your story WOULD be addressed – the city would have control over aesthetics. The PDD is like a contract with terms agreed upon before a building permit is issued. If the project is not being constructed in compliance with the PDD the city can pull the permits and issue a stop-work order.

    In this case the impervious cover on the site would have been lower that allowed under the current zoning. Guaranteed by the PDD. The developers had agreed to restrict occupancy in every apartment to no more than 2 people unrelated by blood (this is a major stroke – ensuring this would not be a typical college-type complex). This project would have put in place a portion of the Purgatory Creek greenbelt (including construction of a hike & bike trail) not guaranteed if the land develops as commercial.

    Using measures accepted nationally by traffic engineers the traffic counts for this project would have been lower than those at max build out under the existing zoning.

    In paragraph 4 you talk about needing to look at present zoning and “Master Plan” designation. Actually you would be amending zoning and “Future Land Use Map” designation. In that sentence you talk about changing zoning if a mistake has been made or if “circumstances had changed”. I would argue that with the construction of the overpass and WW extension, circumstances have certainly changed.

    Also, Lamar, you mention the county facility as part of this tract but the request was only for the portion bounded by Dutton, Wonder World, Hunter and Purgatory Creek; hundreds of yards from the county complex.

    Lamar, I notice you don’t mention the PDD process at all in your article, but then they didn’t have that back in the 80’s. At the beginning of my 3 years on P&Z I completely rejected the PDD process but over time came to see it as a very powerful tool for entering negotiations with developers. It would be unfortunate to throw that process out after so much tweaking.

    So yes, congratulations city council for killing a great project and further cementing San Marcos’ reputation as a place where it’s impossible to do business. Thanks to the Mayor though for doing her best to convince the council to thoughtfully consider a contentious project.

  2. The news reports I saw mentioned nothing about a PDD process. It talked about changing the zoning from commercial to MF-18, not PDD zoning. Everything I said about zoning changes is accurate. There was a PDD process in 1980s. I worked on some of those projects. They do allow greater flexibility in a development, with tradeoffs between development standards.

    I did not argue that there is anything wrong with the proposed project, just that the proposed project is irrelevant to the legal parameters that should be followed in making the zoning change requested. Based on news reports, the requested zoning change was not, as you suggest to change from commercial to Planned Development District. If that had been the case, different considerations would have been involved.

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