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Unfair Zoning

Four members of city council rarely deny a commercial rezoning request. In addition to having the ability to determine all final zoning decisions, this group’s majority position allows them to select all seven members of the Planning and Zoning Commission, and these now have a similar voting record. Commercial interests are heavily funding two candidates for the City Council in the current election.

While the bias in voting is concerning, the greater issue is that these votes were often made in the face of Land Use and Neighborhood plans that were developed by city staff and professional planners, and agreed to by the neighborhoods.

The city has processes for evaluating rezoning requested by developers to ensure decisions respect the rights of both residential property owners and developers. The Unified Development Ordinance (UDO) contains specific definitions of the uses allowed in a given zone. The Land Use Plan provides recommended future changes to specific properties which were arrived at with input from residents, developers, professional urban designers, and city staff. And finally, in some areas the city has worked with residents to develop more detailed Neighborhood Plans. These plans protect residents, rental property owners, and developers alike. The impact on developers is particularly important as they provide assurance a use that’s consistent with the long-term plan is likely to be approved if they should choose to invest in a property. Open, above board planning ensures development of any property is competitive and that its use will yield the greatest value to the city. Taken together, the process through which these plans are developed helps to ensure the city makes wise decisions.

In the last year members of both the P&Z and City Council have claimed extraordinary “flexibility” in changing zoning in order to pursue personal philosophies of development, without the agreement of residents and without enabling other potential investors an equal opportunity to purchase and utilize the property at the new zoning. No one is opposed to development. The members of the council and commission all believe themselves to be acting in the best interest of the city. But the reason we have processes in place is to ensure that decisions are vetted thorough more than just our own personal philosophy or professional bias. Process is essential to good governance, and it exists to save us from ourselves.

Zoning has been changed to allow construction of General Commercial businesses immediately adjacent to homes without regard for the city’s obligation to “buffer and protect” residents from “incompatible uses”. A fence or a few more feet of grass has been judged to be adequate to protect the value of the homes and the rights of individuals who live in them.

General Commercial businesses have been zoned as a Planned Development Districts (PDDs) to bypass specific requirements of General Commercial zoning. These do not meet the simple reading of the definition of a PDD. For example, individual businesses are now approved as PDDs, despite specific wording in the UDO stating that a PDD cannot be a single specific business.

The Land Use Plan, which was developed with citizen oversight, has been ignored to allow a General Commercial business to expand into residential zoning, with no justification other than to make an investor’s business economically viable.

Neighborhood Plans developed with community input have been ignored in order to allow General Commercial uses where only Neighborhood Commercial was allowed. This despite inadequate access for the larger volume of traffic associated with General Commercial and the fact that this traffic would flow through the neighborhood.

When plans are not followed, other potential investors who trust that the Land Use or Neighborhood Plans will be followed are put at a commercial disadvantage. Why would a competitor be able to purchase a property with one zoning and achieve instant gain by rezoning to a classification that was inconsistent with city plans? The advantage given in this manner to a single investor may invite inappropriate influence, and at a minimum it is unfair to the rest of the investment community.

The city has rezoned property to uses that are not allowed by the neighborhood’s deed restrictions. The city’s position that this is a judicial matter and not a concern for the legislative branch. This position is comparable to someone unlocking your front door and saying they aren’t responsible if you’re robbed. The cost for the neighborhood to defend its deed restrictions may be prohibitive.

The process the city staff uses to evaluate a developer’s rezoning application is highly biased in favor of approval. The land owner appears to be assumed to have a right to rezoning, which is not the case under law. An owner’s right to the “highest and best” use is limited to the uses allowed in the zoning they purchased. And yet the adjacent residents are treated as if they must provide reasons why the city should not rezone, even when the use is clearly incompatible and damaging to the adjacent residents. The philosophies of some city leadership regarding the rights of an individual to do whatever they want with a property ignore the rights of others to not have that use next door. It is a distorted view of city ordinances and Texas State law.

We believe the city should engage an independent consultant to conduct a general internal assessment of its zoning evaluation and approval processes. Our experience has been that city staff is competent and does an excellent job of working with concerned citizens.  But we feel they are constrained by flawed processes and workflow that does not yield the best result. The question is not necessarily whether someone is incompetent or wrong, but simply what limits our city zoning and neighborhood development processes from being better.

While they may be well-intended, we believe city leadership has made poor decisions that could have been avoided if they had placed process and community input before their own personal opinions. A typical neighborhood plan requires twelve months to develop, including community meetings, traffic analysis, input by professional consultants, and coordination by competent city planning professionals. These types of processes are not intended to stop growth or damage investors. Their purpose is to save decisions-makers from their own bias or lack of knowledge. It is essential they be unbiased and that the outcomes are respected.

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