The area in San Marcos targeted by an ordinance restricting building height.
By SEAN BATURA
Contrary to recent popular belief, there have been no building height restrictions downtown San Marcos for more than two years.
The city passed a law in July 2004 restricting building heights to 45 feet or four stories, whichever happened to be lower in a given instance. The city put an expiration clause in the ordinance, setting it to self-destruct in July 2008. But when the ordinance expired, no one seems to have noticed.
City staff and three councilmembers attempted Tuesday to reassemble the ordinance and pass it again, immediately, with a five-vote majority.
The council fell one vote short in that attempt Tuesday night. City staff said the ordinance proposed for immediate passage Tuesday contained language identical to the expired 2004 law.
Now, some fear property owners will take advantage of a three-week window to secure the right to build excessively-tall buildings along the San Marcos River and in the heart of the city’s historic downtown region. Others say there is no market for tall buildings in San Marcos, and they say the lack of height restrictions in the area before the 2004 ordinance never presented a problem for residents or the city.
The 2004 ordinance limited building heights in the city between Comanche Street, MLK Drive, CM Allen Parkway, University Street, and the San Marcos River.
San Marcos Councilmember Chris Jones said the expiration clause’s creators intended that the Planning and Zoning Commission (P&Z) would collaborate with city staff and the council to arrive at a more permanent answer to the question of ideal downtown building heights. However, after the ordinance was approved, “We forgot about it,” Jones said.
San Marcos Mayor Daniel Guerrero, Councilmembers Shane Scott, Kim Porterfield, and Jones voted for approving the new building height ordinance as an emergency measure.
“We’re just trying to fix our bad that we didn’t know was a bad, and just keep the status quo until we can implement the smart code and have different heights,” Porterfield said.
After some discussion, councilmembers voted on the ordinance again, this time as a normal measure rather than an emergency, and it passed unanimously. Because the ordinance was approved as a normal measure, it cannot become law unless the council approves it again at a later date, which will probably be at its next meeting on Jan. 4.
Councilmembers Jude Prather, Fred Terry and Ryan Thomason all of whom opposed approving the ordinance “on emergency.”
Thomason told his colleagues he would approve passing the proposed ordinance on emergency if it specified a building height maximum of 55 or 65 feet in order to achieve the goals of parking or commercial activity on lower floors and residential units on upper floors. Thomason said the proposed 45-foot limit does not facilitate that type of development, which, he said, is the type the city wants to promote.
“I think there are certain areas of downtown where we can go beyond the 45-foot rule,” Jones said. “And I 100 percent think we need to evaluate and determine what those areas are. But I see this as a measure that we’re taking in order to prevent something from happening in certain areas of downtown until we’ve identified what those areas are where we want to place those restrictions.”
Even if councilmembers finally pass the ordinance on Jan. 4, anyone who presents a development application to the city before then may still have the right to erect a building higher than 45 feet or more than four stories, if such a structure is specified in the paperwork.
“It opens it up for speculators from out of town — or from in town — to go file applications for 20-story buildings downtown and get vested and have that right to have a 20-story building anywhere within that area,” Porterfield said. “That’s a possible consequence.”
City Attorney Michael Cosentino said Chapter 245 of the Texas Local Government Code allows building projects to be governed by rules in play at the time their applications are filed with the city — even if the applications are deficient and not immediately approved.
“And so that is the reason this particular ordinance was presented as an emergency item, so that that window of opportunity doesn’t stay open too long,” Cosentino said.
San Marcos Interim Development Services Director Matthew Lewis told councilmembers his department is under the impression that all or most landowners in the area specified by the ordinance were heretofore unaware of the 2004 building height ordinance’s passing. Lewis said the emergency ordinance proposed Tuesday was intended to serve as a temporary measure until a new form-based zoning code could be approved.
Thomason said the form-based code will adequately address the issue of building height in the city, and he suggested that allowing the window of opportunity for buildings of four stories or taller may serve as painful but necessary lubricant for the city’s governmental machinery.
“Maybe this is the wrong attitude to take towards it, but some of this stuff drags out forever,” Thomason said to his colleagues. “Maybe we can get things going a little bit quicker in circumstances like this. I hate to put it like that, but seriously. We should have voted on the Smart Code six months ago, probably, plus or minus. But these things linger on forever, so maybe this is the sort of thing it will take.”
P&Z commissioners held off endorsing the form-based code throughout this year in the wake of vocal opposition from some residents. City staff began a second round of public outreach, which continues. Councilmembers and P&Z commissioners plan to hold a joint meeting on the proposed form-based code in late January or early February.
San Marcos P&Z Chair Sherwood Bishop said the form-based code would allow city staff to collaborate with residents to implement building height restrictions tailored to neighborhoods and other areas of the city. Bishop said the council’s approval of the proposed building height ordinance would not protect residents in other places, such as some areas near Guadalupe Street, from finding themselves in the shadows of 10-story buildings. Bishop said there are currently no building height restrictions in the city, though he said other laws, such as those limiting residential density, would limit building height.
Bishop said he doubts anyone will attempt to use the window between Tuesday and Jan. 4 to get tall buildings cleared for the area specified by the proposed ordinance.
“Nobody’s going to come in tomorrow and apply for a 20-story building — It’s not going to happen,” Thomason said. “If somebody’s wants to do it for kicks, I guess they could. But the market’s just not there.”
Thomason said the case of the Concho Commons mixed-use development illustrates that fears of excessively-tall buildings in San Marcos are unfounded.
“Concho Commons has permission — district court permission — to build a six-story building,” Thomason said. “They’re not doing it because we’re just not there. They came in and went back through the process for a four-story building because that’s where that market is. So, we’re just not there.”
Asked by a councilmember if there are other expired ordinances on the books, Lewis said he is not aware of any.
“Staff is constantly reviewing the code to make sure it’s implementing the community vision and it’s still meeting the community’s intent,” Lewis said. “And, every once in a while, we’ll find a situation like this that has occurred or is occurring. We have not found another clause that self-repeals yet.”Email | Print