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by BRAD ROLLINS

A group of residents calling itself the San Marcos Voice has filed a lawsuit against the city that argues rezoning last month of a tract of land on North LBJ Drive constitutes illegal “spot zoning.”


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The San Marcos City Council last month granted a request by Chicago developer Jared Schenk to rezone 10.95 acres from single-family to multi-family use to facilitate an expansion of his adjoining Hillside Ranch apartment complex. The rezoning request initially stalled 3-3 when first considered by the council on March 6 but, at the next meeting two weeks later, it passed 4-3 when council member Shane Scott cast the deciding vote in favor.

Most of the neighbors who live nearest the expansion on Elm Hill Court supported the Hillside Ranch planned development district but others in the general area seized on the rezoning as the latest example of apartment complexes crowding out formerly single-family neighborhoods.

The lawsuit filed on Tuesday asks 274th District Court Judge Gary Steel to declare the rezoning invalid and arbitrary and to order the city to pay the group’s legal fees. Made up of many of the same members formerly organized as Protect San Marcos, the San Marcos Voice group is led by San Marcos residents Nancy Moore, Ollie Giles, Jay Hiebert and Melissa Derrick.

“We hope that by filing this suit we will bring some clarity and focus to the issue of apartments in San Marcos. All we ask is that the masterplan that is in place, that had plenty of acreage zoned for apartments, be followed. Give the current masterplanning process time to work,” attorney David Sergi said.

Texas case law on spot zoning descends from a 1980 lawsuit filed by residents of the city of Pharr who opposed an apartment complex planned for a neighboring property.

In 1981, the Texas Supreme Court described spot zoning as “an unacceptable amendatory ordinance that singles out a small tract for treatment that differs from that accorded similar surrounding land without proof of changes in conditions….Spot zoning is regarded as a preferential treatment which defeats a pre-established comprehensive plan…. It is piecemeal zoning, the antithesis of planned zoning.”

To guard against spot zoning, planners apply a test to rezoning requests including determining whether the change is primarily intended benefit the landowner and whether the nature and condition of a neighborhood has changed significantly since the city’s masterplan was adopted in the mid-1990s. In the case of Hillside Ranch, they pointed to the rapidly expanding Texas State University less than a mile away and market pressures for more rental properties.

The spot zoning lawsuit is here:

Spot Zoning Lawsuit

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18 thoughts on “Lawsuit asks judge to undo Hillside Ranch rezoning

  1. Interesting.

    Thanks for the balanced portrayal of the issue.

  2. This is the main reason why I moved from San Marcos. The existing neighborhoods were being heavily impacted by the encroachment of multi-family units, resulting in lowered property values and severe negative changes in the neighborhood, i.e., increased traffic, noise, etc. We were there first and paid our property taxes for many years, to have our issues ignored by the city!

  3. Blarg. I guess it’s billable hours for the attorney either way though. Yay attorneys!

  4. I’m so glad that this suit has been filed. Perhaps it will help put an end to the city’s lack of concern for its permanent residents and apparent collusion between the real estate developers and those who claim to represent the citizens of San Marcos. City representatives, developers, and university officials have run roughshod over the rights, concerns, and needs of the residents of this beautiful town; instead city ‘leaders’ primarily serve the increasingly avaricious desire for property of a university which has gone unchecked for two decades.

    Kudos to Nancy Moore, Ollie Giles, Jay Hiebert and Melissa Derrick and all of the other residents who are standing up to the corrupt practices of the City of San Marcos.

  5. And…just to add to the misery in town, Mr Casey has applied *again* for a HIGH DENSITY project on the Sessom Creek property.

    Any chance we could add that to the lawsuit if it passes??

    Here’s the link (a copy of the email from Matthew Lewis of the Planning Department), and a timeline of meetings. Note that the majority will take place in the middle of the summer – when we are all distracted by kids home from school, or away on vacations.

    http://www.protectsmtx.org/2012/04/25/new-pdd-from-casey-interests/

  6. This should be a pretty interesting suit although I must admit that I think the city and developer will prevail. I quite simply don’t view the zoning change as unconstitutional spot zoning because it my opinion it fails even the most basic element of being arbitrary in nature. The last update I have seen of the Horizons Plan is from 2007. Is there one from a a later date?

    Since 2007 there has been a huge change in the city and university in my opinion. Certainly there are more students and thus the need for more housing in close proximity to the university. Indicative of this transition are the city’s own transportation plans which have included widening roads and adding sidewalks to the immediate area on the edge of the property nearest LBJ for at least four years.

    Furthermore, The property and its amended zoning do not create a new “island” of special treatment. It is indeed attached to an already established high density residential area. I know that it is a considerable difference in terms traffic, but I do not feel it is an unjustifiable difference. The fact is that N. LBJ needs a lot of work and if the city were to complete it, the street might be able to flow quite well.

    I am not here to say who should win. I am just exploring the legal arguments which might be presented.

  7. the only argument that can be reasonable (if at all) is the environmental aspect. these people worried about their homes being encroached upon by multi-family should have considered this before they bought a home within a mile of a major university. That being said, at least a single developer can beheld to certain environmental standards and we know that if something goes wrong there is someone to blame – the worst case scenario would be that this gets rejected and they squeeze as many single family homes as they can on this property and a single individual or company can not be held accountable.

  8. So Shane Scott casts the deciding vote. Add that name to my list of people I’ve previously did not vote for and will continue not to do so.

  9. Steve, everything within a mile? Really? A quick check on Google Earth makes that look like everything west of 35, other than Willow Creek.

    If the city, as Jamar points out, is somehow unable to anticipate the growth of the university, five years out, how is a homeowner supposed to anticipate it 10, 20, 30 years out, or more?

    Welcome to San Marcos, a great place for people who don’t “know better.”

    If that’s what we’re content to settle for, neither the city, nor the university, will ever reach their full potentials, and that is a shame.

  10. If homeowners can’t rely on the master plan to tell them what to expect, what can they rely on? If the whole city is a crap shoot, is it any wonder people aren’t buying homes here?

  11. The revised masterplan needs to anticipate the target max number of students (50,000?) forecast by TxState living as close to the campus as possible. There’s a quantifiable number of units required. Then show that land as MF on the masterplan. The rambling Frost Bank complex, for example, as well as the old post office and all the property between The Sanctuary Lofts and the giant hole in the ground.

  12. I would like to thank David Sergi for only charging his overhead for this suit, without that we would not have been able to do it. You will see fund raisers very soon to cover David’s overhead amongst other things. I hope those of you in favor of some change in San Marcos will attend when you hear about them. First one is May 23rd at TMT.

    You can also join the Voice of San Marcos at sanmarcosvoice.org. It’s a very new website, so you will have to type in the address, as search engines haven’t picked up on it yet. The regristration page should be up and going at the lastest on Friday, but there’s a lot of good information on the site.

  13. Interesting that one of our city council members who evidently believes that some citizens are attempting to “segregate” and “ostricize” people who can’t afford to buy a home or who prefer to live in multifamily developments by asking that apartment complexes not be built in their neighborhoods actually lives in a restricted neighborhood themself. Hmmmmm. Who woulda thunk?

  14. Hi Tree huggin Hippie,

    I also find it interesting that we keep talking “Multi family” as if any family with kids is going to want to live in the middle of a sea of 20-something year old college students. Nothing against college students! But the hours and schedules of families and students often clash. Ms. Porterfield was the council member I heard voice this idea that folks were ostracizing people who preferred “multi family” – and yet, the proposals she has recently been asked to vote on (Sessom, Hillside Ranch II) have NOTHING to offer the demographic of families or non college students. They are in word and in fact designed to serve the needs of the University.

  15. I am not commenting on the lawsuit; rather I am commenting on my friend Kim Porterfield’s comments about the feelings about the towns feelings about apartment dwellers that she mnade last night. As I write this its changed from a comment a letter to my friend Kim Porterfield.

    Dear Kim:

    First of all the issue of a moratorium is not about a perception that apartment dwellers are somehow lesser souls; rather than most all of the folks that live in student housing and the housing that has been proposed for the area around the University are for students. Students lead different lives than families do. Kim, when we were students we did…enough said. Some may feel like that most do not.

    When one is a student it’s a time to explore, grow, spread your wings, make mistakes and test boundaries. Most families don’t choose to live in that sort of environment. This cuts across all social economic boundaries and lines. If you look at the petition that was signed by over 2300 San Marcos residents what is interesting is that it was in fact signed by apartment dwellers, students, families, elderly, young singles in shortly it was signed by a cross section of every demographic. Simply put this is not elitism nor racial. If it were then you would not see every sector and race having signed this petition; you would not see the spontaneous outpouring over Capes Camp.

    It seems to me what Kim needs to see is that her reasoning is left over from the last century and simply does not match the times. This movement has a broad ten that includes Occupy to Tea Party and all stripes in between.

    Kim, I like and respect you. I urge to really take a close look at what you said last night and who sighed this petition and what this community really feels. I’ll even buy you lunch if that’s ethical land legally allowed to discuss this amongst friends

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