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

December 15th, 2010
City council tries to pass building height ordinance


The area in San Marcos targeted by an ordinance restricting building height.

News Reporter

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.”

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0 thoughts on “City council tries to pass building height ordinance

  1. Well outside of downtown…we have the Embassy Suites hotel (10). Then on campus we have the J.C. Kellum Building (11), Jackson Hall (12) and The Tower (9), so I’d say our firefighters have some experience with a 12-story building.

  2. That a ten or twenty story building exists does not mean SMFD has the equipment to deal with it, nor does it mean they have the training or experience to do same.

  3. I’m glad that we have citizens that can evaluate many aspects of an issue, especially those that are profound but easily overlooked. It is important to ask if we even posses the capability to keep potential tall building safe. Our fire department does have training sessions in Jackson Hall, our city’s tallest building, even hosting a Resident Advisor Fire Academy there to help educate students. Leadership in the city fire department has attended seminars such as the High-Rise Life and Fire Safety Seminar in Chicago, home to some of the world’s tallest skyscrapers. Is the fire department completely prepared and equipped? I THINK EVEN THEY WOULD SAY THEY ARE NEVER SATISFIED. We do have single story structures burn down. And too, the finest, largest, most capable fire departments face circumstances that they can not resolve. FDNY as great as it is can’t put out every fire, and save every person even though those firefighter will try. If its a matter of my safety, I would expect the best, and our city should move forward with the highest safety standards in mind. Regardless, the fire department itself has been proactive in training and planning for high rise rescues, you can’t fault those men and women who risk their lives for our safety!

  4. This is an issue where urban planning, 4 or 5 story, or taller buildings, with retail, parking & residential use (perfectly good planing) can collide with public safety, can the fire department even begin to protect those residents. That SMFD is preparing for a high rise fire is most commendable. Similar issue to placing high density housing down a narrow road.

  5. My issues with the ordinance are that it is unreasonably low and encompasses too large of an area. The property where the farmers market is held would make good transit oriented development if and when commuter rail comes in and we ought not limit the potential for some density there. All the lower elevation property (lower than the courthouse) could be built out with taller buildings and still not be taller than the tops of the buildings on the square. The ordinance should be based on some height relative to some existing building, likely the courthouse. In any event it should be considered through the entire process that this limits the value of all the property within the boundary and thus is a form of taking.

  6. Too late! I am working on a 27-story building, to be put on Spring Lake this very weekend! It will contain a golf course, 16,328 apartments, a shooting range, and an Alamo Drafthouse! And I got a significant development incentive from the City to do it…..chew on THAT, San Marcos!

  7. No, that’s in a different building….I’m thinking of using the old courthouse once the County offices move out Hunter…..if there is one thing our downtown area needs, it’s more adult-oriented entertainment. To heck with those families who want something to do with their kids – we need MORE BARS!

  8. If the idea is a more walkable downtown, where people can live, work and play, then what exactly is the aversion to taller buildings downtown (assuming anyone even wanted to build them)? We’re effectively putting a limit on the density that we can have downtown. That feels like small-town no-growth to me, unless we are going to allow the high-rises in the neighborhoods, which would not surprise me in the least. The growth will be here eventually. It either goes up, or it goes out.

  9. There has been a desire to keep a small town feel to downtown, and this is not a no growth sentement. I have no problem with multi-story buildings, along the interstate. We all know that San Marcos is no longer a small town, and will only get bigger. It would be nice to preserve downtown and the historic neighborhoods so they have the look and feel of what they were like when San Marcos was a small town.

  10. Protecting the “square” is one thing, but there are areas a few block off the sqaure that could be greatly served with 4-5 story buildings. This is needed to actually help the square survuve. A walkable, livable, shoppable downtown area. If you can’t build up outside the near vicintiy of the square, it will make investing and improving desolate property almost undoable.(on a 1 or 2 story property).

    I think maintaining the square is great, but go a block or 2 down Hopkins…or down Guadalupe, and there are some pretty ugly buildings that could make great live/work spaces.

    Difficult to attract young professionals to live and create here without a ‘cool’ product to live in.

  11. Well Gman, a couple of blocks west on Hopkins and there are some darn fine homes. Now east on LBJ or Guadalupe, that’s a different situation; and I agree

  12. True, Winchester, I was referring to prior to Shipley’s. (old abandoned Gas Stations for example). I am a HUGE fan of our historic homes.

  13. Myself as well. Grew up in one of them. The “downtown” area set to be regulated could use some fine tuning IMHO.

  14. Pingback: QUOTE CORNER - San Marcos Local News

  15. What’s wrong with small town no growth? People seem to say growth is good like zombies without an ounce of thought!! I for one grew up in South Austin down to Buda and I have seen what growth both up and out looks like and it is terrible Kyle and Buda are hell holes and Austin as cool as it isn’t what it ever used to be! Here is an idea going back to simple economics, supply and demand. If we don’t make any supply and demand (guarenteed growth) comes to town then guess what the values go up and people will reuse what we already have, get creative like the apartment buildings on LBJ that gutted and revamped them. Go check out the foreclosure signs in southern Florida’s small towns that gave way to unwarranted growth and let people build everything and anything wanted…..We are in a position to dictate our future, we are one of the few cities that still hold the keys to our future and we are not missing out on anything. People can come and play by our rules or they can not come. The way San Antonio and Austin are converging pretty soon they won’t have a choice and we are sitting ontop of a pot of gold!!! Don’t ruin it like Kyle and Buda did.

  16. Wold – You have revealed the master plan of the Carol Barrett/CONA regime. Don’t make any supply. The demand (barring the vagaries of the market) will be there regardless. Growth in the corridor is unstoppable. By raising the impact fees and water rates to the highest in the state the message was sent – KB Go Home. We will not be the trailer park colonia of Austin and San Antonio. Not a bad philosophy really but painful to those in the low-priced home business. When the demand for a charming little University town gets high enough people will pay the price of admission. We’re just not there yet. We just need to understand the plan, keep working the plan, and don’t back down.

  17. Bob, please explain “The Plan” we shouldn’t be backing down from? Also, your rhetoric of Carol Barret/CONA regime is not helpful to any conversation. One could use the same inflammatory characterization for the Gilmore- Narvaiz /Board of Realtors regime. This is not helpful. It should be replaced with trying to find common some ground and moving forward together as a community.

  18. I started to post a reply, but had too much going on. I am a CONA representative and that’s not part of my master plan. I’m in favor of Paso Robles (sans any incentives or poorly crafted TIRZ). I’m in favor of apartments on the old Rivendell lot. I am in favor of a northwest counterpart to the Wonder World extension. I’m in favor of taller buildings. Etc… I can think of at least two CONA reps who are even more pro-development than I, and many who share a lot of my views. I just don’t think apartments and retail are growth. They are more of the same, so they might be expansion, or bloat, but *growth* means more than that, to me. Growth means advancement.

    Yes, I believe there are some anti-development folks in CONA, but CONA has no master plan that I am aware of, re: stopping all development. One need only attend a couple of meetings to figure out all the ways that statement is inaccurate.

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