by BRAD ROLLINS
Residents opposed to allowing new student housing in single-family neighborhoods formed a nonprofit group named San Marcos Voice and filed suit in April against the city of San Marcos and Chicago-based GEM Realty Capital Inc. The lawsuit alleged that a planned development district for the apartment expansion amounted to illegal “spot zoning” in which planned land use for a piece of property is changed to the detriment of its neighbors soley to benefit its owner or prospective owner.
The settlements yield nothing on the legality of the rezoning and require San Marcos Voice to withdraw its litigation, according to sources familiar with the terms. In that regard, the agreement appears to be an unqualified victory for City Hall over the suing residents.
However, GEM did agree to donate roughly an additional acre of parkland to widen public access to the city’s adjoining 251-acre Spring Lake Preserve and to gift $150,000 to the city for construction of a park building at the preserve’s entrance, according to characterizations of the agreement made to the San Marcos Mercury. In addition, GEM agreed not to seek rezoning of any other property within 200 feet of the tract which would rule out any future, contiguous expansions of the Hillside Ranch development.
Despite failing to achieve the lawsuit’s stated aim — to void the Hillside rezoning and stop construction of the apartment expansion — San Marcos Voice issued a press release declaring victory and saying the accord “wrung significant concessions from both the city and GEM.”
Perhaps most significantly for the future of San Marcos’ ongoing battles over development, GEM agreed to donate $15,000 to San Marcos Voice. The group’s attorney, David Sergi, did not waste time saying that the donation might be needed to fund a lawsuit against the city over another controversial project, Darren Casey’s planned luxury retail and residential complex on Sessom Drive.
“You don’t always get everything that you want but, strategically, we got as much as we possibly could have. It gives us the resources to continue to watch the city on these issues,” said Sergi.
Sergi said the court-appointed mediator in the case, Austin environmental lawyer Michael Curry, told him that San Marcos Voice would have had a stronger legal case with the Sessom property, which the city council has already declined to rezone once but which has been re-proposed in scaled-down form.
“While we had a good case with GEM, we have a great case with Casey. Considering the terms of the settlement we were offered, it made a great deal of sense to those who were in the room to settle with the assurances that we had a good argument against future spot zoning cases,” Sergi said.
If a second lawsuit is unnecessary, Sergi said, San Marcos Voice officials have discussed the possibility of hiring an executive director to professionalize its operations. 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, all of whom have worked against development of the Hillside and Sessom properties as apartments.
City Attorney Michael Cosentino cautioned that the suit won’t be settled until “other parties perform and do their thing” but acknowledged that “a roadmap for settlement” was reached during more than 12 hours of mediation on Thursday.
The San Marcos City Council does not need to vote to accept the settlement because, as far as the city is involved, the lawsuit is simply being dropped, Cosentino said. The city council discussed a rough outline of proposed settlement terms during an executive session preceding their June 5 meeting during which a majority of members expressed interest in settling. No public vote was taken, however.
“There is basically nothing for the city to do at this point except for the parks board to consider the additional parkland and the city to accept the $150,000″ from the developer, Cosentino said.
He declined to comment on GEM’s agreement to pay $15,000 to San Marcos Voice. The city attorney said, “The city is not party to any such agreement. There are things that are strictly between [the developer and the residents' group] that the city is not part of. ”
Jared Schenk, GEM Realty Capital’s operating partner, declined to comment immediately to the San Marcos Mercury but said he might talk later.