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

June 18th, 2012
San Marcos Voice agrees to drop zoning lawsuit for cash to fund another fight


by BRAD ROLLINS

The San Marcos City Council’s rezoning of 10.9 acres for an expansion of the Hillside Ranch apartment complex on North LBJ Drive will remain in effect under terms reached late last week between the city, a developer and neighborhood activists who sued over the land use change.


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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.

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14 thoughts on “San Marcos Voice agrees to drop zoning lawsuit for cash to fund another fight

  1. Just $15K was all it took to persuade the Voice to sell out the Hillside Ranch folks? I’ll bet they’re all so proud right now. A victory indeed!

  2. “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.” Consider? What exactly does this mean? Will the city actually us this money to build a parks building?

    Dano, I don’t view this as the Voice selling out. It appears to me that they were actually reasonable and worked with the developer to reach an equitable solution. I don’t think that SM Voice is totally against development- they just want responsible development. I am glad that the groups were able to come to an agreement that at least stops Hillside from expanding as well as preserving parkland. I hope that Voice is able to use the $15,000 to stop Casey project on Sessoms or at least drastically alter its course. Still concerned in general about how the city intends to handle the additional traffic with any developing that goes on in this part of town, not to mention the river.

  3. Nah, Casey will just give them another $15k and they’ll claim “victory” again. Then they’ll look for another windmill to tilt at.

  4. Dano, where has SM Voice claimed “victory?” Their attorney stated they didn’t get everything they wanted, but that all parties had made concessions to reach a final result. I don’t see them as just chasing after all development and saying its bad. Is it really unreasonable that they would like to preserve our river as well as the other issues they have brought up?

  5. What most of you don’t seem to remember is Casey had agreed to even more stringent development standards then Austin has. He did compromise, but I also seem to remember that it was sm voice members that refused to compromise or even to negotiate.

    Websters: Compromise – settlement of differences by arbitration or by consent reached by mutual concessions

  6. From the article, “San Marcos Voice issued a press release declaring victory”. Doesn’t anyone even read the articles anymore before commenting on them?

    JHorton is right about the concessions Casey offered on the other development. What he got in response was “not here, not now, not ever”.

    Of course, I guess now they can change that slogan to “not here, not now, not without some payola”.

  7. Just a note… Saying they “declared victory” is my description of what they said, not the words they used. If it appeared in quotation marks in the story, that would mean they said it.

  8. Yes, it is unreasonable for anyone to advocate that the city should own all of the most valuable land along the river. Once the city owns something it loses its tax revenue. It’s simple: The more the city owns, the less potential tax revenue, the more property taxes will need to be raised to cover the cost of maintenance? Without business, we would be Martindale. There are many places that have beautiful rivers with booming development. Come on people! Let’s have some great places to visit right here in San Marcos. The Sessoms people hide behind preserving the river, but they are against any and all development.

  9. Wow, way to paint with some very large strokes Jerry. Those of us who were concerned at the prospect of a mall and 700+ bed apartment complex being squeezed into an area already overwhelmed by traffic, ruining the surrounding neighborhood are simply against any and all development.

    Let’s play a game of follow the logic ball folks: 1. Monkeys eat bananas. 2. Keith eats bananas. 3. Therefore, Keith must be a monkey. See how that works? Nice and simple and lacking nuance. Now run along and go watch some reality television.

    Oh yeah, and while we are at it, we probably should sell the courthouse, city park, and the library since they are not bringing in any tax revenue either.

  10. Obviously, the negotiations did not take into account the extra 200 cars or so cars that will be coming up N LBJ. Also, these individuals and City Council apparently do not live across the street from this project. I do believe in private property rights, so I wonder if I can get my neighborhood lot re zoned commercial to put up a fast food place for the apartment dwellers?

  11. “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.

    I appreciate that SMV took up this cause, but saying it made a good deal of sense to those in the room is akin to Elm Hill Court residents speaking for the entire neighborhood. Sigh. Now a year or more of construction all the way up N.LBJ. I’m curious…where will they re-route all the traffic if N.LBJ is closed between Elm Hill and Holland during HRP2 constructions? Looks like a Nichols and Highland will get the short end of that stick.

  12. At Thad, did you attend any of the CC or PZ meetings or even watch them on TV or afterwards on the City’s site??? Those of us on the SMV board and those who also were against the rezoning spoke endlessly of traffic concerns ~ it was at the TOP of the list regarding reason’s that no other development, not just Hillside, should ever be considered on NLBJ.

    We fought as hard as we could to try to make a case to the city and they approved the rezoning anyway. We had hoped to stop the development, but when it was became clear that the battle could take years and Michael Curry (who has been through MANY such suits in Austin) weighed in regarding what he viewed as our chances to protect neighborhoods and the river, the mediation began to change course.

    I wasn’t actually at the mediation so I won’t speak of specifics, but yes we are happy to have received additional parkland, a $150K building to serve as a visitors Center/Educational facility, a secured public park and entrance to the Preserve, and the assurances that Hillside will not move deeper into the neighborhoods.

    We plan to seek out grant funds to help with educational initiatives at the visitors center for our schools and for our citizens, so that all will be educated about the jewels that we are stewards of in this city. It doesn’t appear from most of the comments here that this fact is appreciated by Mercury readers, but I assure you it is very appreciated by many.

    Payola?? We are a non profit Dano, our only concern is preserving neighborhoods and the river. No one is pocketing this money. The funds we received will assist us in future spot zoning cases, as I doubt we’ll ever gain enough to outright buy land that needs to preserved and pay taxes on it.

    Early bird, I’m glad you didn’t donate to SMV either, we did stand our ground for months and then finally for a 12 hour mediation session, so if that’s not good enough for you, then don’t donate in the future either please, because that’s how this kind of thing goes. How much time have you spent in trying to stop Hillside? Since I don’t know your name I don’t know if you’ve been fighting along side of us all those Looooong Tuesday nights, but I do know that you know nothing of the heartbreak of some and the severe disappointment of others that we weren’t able to save the land. We WILL save Sessom Creek though.

    If anyone is interested in joining SMV and learning more about the terms of the settlement and our plans for the park, we are having an informational meeting at Wake the Dead tonight at 7:00. Here I believe you will learn more about why this settlement will further protect the neighborhoods beyond Holland and LBJ and why this has now become a sort of boundry line between multi and single family. It was hard to achieve, but we do believe it’s been done…at least for the time being.

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