A five-year process to rezone six acres of land off of Windy Hill Road came to a close Jan. 2 after Kyle city leaders chose to deny the motion on second reading.
The decision, made via a 6-0 vote by the Kyle City Council, ended a saga that featured complicated legal language discrepancies between Hays County and the city. Council member Shane Arabie was absent and didn’t vote on the measure.
“It’s very rare that a zoning request fails on second reading when it passes on first reading,” Mayor Travis Mitchell said.
The legal issue was whether the landowner Asifali Karowalia would be able to develop with continuing land use protections under county regulations.
“The law is very black and white and it essentially says, if the annexation proceedings were instituted prior to the permit request, then the continuing land use prohibitions do not apply ... The council is then free to make a decision on the zoning request based on a myriad of factors that we take up every time someone requests to change zoning.” Travis Mitchell, Kyle mayor
In October 2013, the owner of the land was notified the property would be annexed into the city limits.
The landowner applied for and received a development permit from the county in November 2013 and the city’s annexation of the area was completed by December of that year.
The owner of the property was looking to rezone two parcels of his property, zoned agricultural, to two new zoning districts that would allow uses of multifamily and retail/services.
On first reading of the zoning ordinance on Dec. 5, 2017, it was originally thought that since a development permit was applied to the county prior to the completion of the city’s annexation, Hays County laws would take precedence.
Kyle City Attorney Frank Garza said that while there is no zoning in the county, “the project would have been allowed, and therefore, it limits the city’s ability to deny the zoning because they (the landowners) have the right to proceed with this project.”
It was concluded that the council had limited authority to deny the request and they therefore voted to approve the ordinance 6-1 on first reading.
On Jan. 2, it was found the permit would have needed to be filed prior to the city notifying the landowner of annexation in October 2013.
City council had the ultimate decision on what zoning is appropriate for the property, according to officials.
“The law is very black and white and it essentially says, if the annexation proceedings were instituted prior to the permit request, then the continuing land use prohibitions do not apply,” Mitchell said. “The council is then free to make a decision on the zoning request based on a myriad of factors that we take up every time someone requests to change zoning.”
Residents in the area voiced concerns at a public hearing Dec. 5, while Council Members Damon Fogley and Daphne Tenorio voiced traffic congestion worries.
“I can’t imagine putting in another apartment complex back there. I just can’t see that road sustaining it,” Tenorio said.
Mitchell believed that the ordinance shouldn’t be denied based on traffic, but he believed that the multi-family zoning was too dense to be built in the area.
“If we were to grow this area right now, we would have to address CIP (Capital Improvement Projects) in that area, which we simply can’t afford right now,” Fogley said Jan. 2.
However, Council Member Shane Arabie sent a message to Mitchell saying that he thought funds could be “generated from property taxes of the homes and businesses in that area” to fund the needed improvements.
The owner still has the opportunity to reapply for a zoning ordinance after 12 months.
Council members who voted against the ordinance have the ability to bring it back for further discussion.
