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Losing Ground; S.A., developers finding middle ground

by John Tedesco
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There was a time when the request to cut down more trees on Tom Vickers’ property would have sailed through City Hall.

Vickers wanted to sell his land to a construction firm, which in turn wanted to build a 200-unit apartment complex on a site crammed with mesquites, elms, hackberries and oaks.

The firm didn’t want to follow a city ordinance written in 2003 to save trees, which it felt was too onerous. So Vickers turned in paperwork last year arguing the apartments should be grandfathered from the tree rules.

In the past, city officials might have signed off on Vickers’ request.

Instead, they rejected it. If bulldozers start leveling ground on the 9-acre property in December as planned, construction crews will be required to follow current city codes and preserve up to 280 trees, records show.

Is this a story of a city finding its backbone? Or a case of overzealous city officials hampering progress?

Those are the kind of questions Mayor Phil Hardberger and City Council members face as they examine a Texas “vested-rights” law that has dramatically affected San Antonio’s growth.

The statute protects property owners who’ve filed a plat or other type of planning document that signals the start of a project. From that point on, they’re immune from any changes in city development codes they don’t like.

The law encourages legitimate projects. But it also allows developers to dig up paperwork filed decades ago, claim those plans as their own and avoid ordinances meant to protect San Antonio’s beauty and water quality.

In a rapidly growing city, the statute means that developers — not residents or city officials — often are the final arbiters of how many trees survive at a construction site, or how much fragile land in the Edwards Aquifer watershed remains unpaved.

City officials are under constant pressure to accept grandfathering claims from developers — or at least to compromise.

The City Council is considering a policy that would make it easier for the real estate industry to avoid the troublesome 2003 tree ordinance.

And some developers who lose the vested rights game are making deals with the city attorney’s office to win exemptions.

The “consent agreements” are binding contracts that stipulate what rules a developer must follow, and they almost always offer a way around the 2003 tree rules.

Hardberger said he and his fellow council members, several of whom recently were elected, are getting a crash course on the law’s tricky intricacies.

The new mayor acknowledged the statute favors developers and often handcuffs the city from demanding minimal development standards.

But Hardberger said the council can set a policy that determines, among other things, how much detail is required in a land permit to trigger exemptions from city codes.

“Those are really city decisions,” he said.

“They can be fine-tuned.”

New kid in town

The effects of that fine-tuning can be seen at Vickers’ wooded property on Southeast Military Drive.

Vickers, a former Bexar County judge, said his property is under contract to be sold to White Conlee Builders Ltd., which plans to build apartments on the site.

Vickers said he didn’t know much about the vested rights law. The company’s engineers prepared the paperwork that requested an exemption to recent city ordinances, and he signed it.

The application included a copy of a 1958 plat, a type of planning document that mapped the property. The developers argued the plat was the first permit filed to develop the property, so under state law, the apartment complex should have to comply only with city codes in effect as of 1958.

Since the city’s revamped tree ordinance was approved in 2003, Vickers — and the potential buyer of the property — would have been grandfathered from those provisions.

Plats can be finely detailed, showing the proposed locations of streets, alleys, and residential lots. Or they might be a blank slate showing only the boundaries of a tract.

The plat of Vickers’ property was a blank slate.

In the past, the application probably would have passed muster. Between 1997 and 2001, city officials shot down less than 1 percent of 500 requests for exemptions.

But last year, city staff members denied Vickers’ application, saying they couldn’t find any sign of an apartment complex in the 1958 plat.

The city’s decision: no project, no exemptions.

Vickers fell under current city rules, and the development company turned in a preservation plan that calls for saving 280 trees.

“Those trees could have been lost,” city arborist Debbie Reid said. “I mean, who knows?”

In recent years, city officials started demanding more details from developers about their projects.

The flag-bearer of the city’s new approach to handling grandfathering claims was Andrew Martin, who served as San Antonio’s city attorney from March 2002 through April 2005.

Martin was no stranger to the Texas vested rights law.

Hired from Austin’s city government, Martin was a veteran of the grandfathering wars that had been raging between officials and developers since the 1980s.

When Martin arrived in San Antonio, about 20 percent of the 110 vesting applications developers filed were being rejected by the city staff.

By 2004, the annual pace of denials had doubled to 40 percent out of nearly 200 applications.

“Clearly under (Martin’s) tenure, the city has taken a different view of vested rights,” said lobbyist Bill Kaufman, who represents developers.

White Conlee Builders Ltd. didn’t return messages for this article. Its lobbyist, Ken Brown, acknowledged the 1958 plat showed little information. But what other kind of project would be built on a major thoroughfare?

“Common sense will tell you what it is,” Brown said.

Martin said the city’s legal department wasn’t trying to stonewall legitimate projects.

“I think everyone agrees that a real developer in the middle of a real project should not be required to go back to the drawing board and start over,” Martin said.

“The debate is about whether this is a real project and are you really being harmed by following new standards?”

Project confusion

Martin’s approach created an ugly rift with the San Antonio development community, which is one reason then-Mayor Ed Garza formed a vested rights task force in September 2004 to come up with a fair policy.

In December, Garza’s task force met in a snug boardroom while developers and lobbyists sat nearby, observing.

When Martin brought up the idea that vague plans fall short of describing a project and shouldn’t trigger exemptions, developer John Roy shook his head and laughed in disbelief.

“A project is not required,” Roy interjected. The whole property should be exempt from future city codes once a plat — any kind of plat — is filed, he said.

“Why do you think we (file) all this stuff?” Roy asked.

Other segments of the development industry appear to accept Martin’s approach to the law, but point out it leads to problems.

“There is much controversy over what the clear definition of ‘project’ is and what modifications change a project,” builders John Friesenhahn and Ed Barron wrote in a July 2004 industry newsletter.

For example, if you switch from a commercial development to an apartment complex, clearly that’s a change, the builders wrote, and any exemptions should be lost.

But what happens if you reduce lot sizes in a new neighborhood, boosting the number of homes?

“Is that a new project or just a modification?” they asked. “The gray area leaves a lot of interpretation to be made by the city.”

Conflicting goals

For property owners, lots of money hangs on those decisions. Yet it was often left to city staff to navigate the gray areas without a rudder — the last time the City Council focused on the law was 1997.

“There’s been a number of attorneys I’ve dealt with on these (grandfathering decisions), and no one attorney has had exactly the same view,” said Scott Halty, a manager at the San Antonio Water System.

SAWS enforces a 1995 water quality ordinance that limits development over the environmentally sensitive recharge zone of the Edwards Aquifer, the city’s primary drinking supply.

Officials fear if too much land on the recharge zone is developed, polluted stormwater runoff will taint the crystal-clear aquifer.

“You try to work as best you can interpreting the law,” Halty said. “But you’re going to get some differences.”

The city’s Development Services office handles exemptions for ordinances such as tree preservation rules. Officials there acknowledge they wear different hats — their job is to promote economic development, while at the same time protecting the city’s natural resources.

Sometimes those goals clash.

“I’m well aware that I work in a field that’s a double-edged sword,” said Michael Herrera, who handles grandfathering claims in the department.

“I want to protect the community we live in. I also have to make sure we provide growth and business opportunities,” Herrera said. “It’s a juggling act.”

Halty, when asked about any conflicting roles he and his employees face, said they simply do the best job they can. A top city official, who asked to remain anonymous to speak candidly about the agency, said SAWS isn’t immune from those conflicts.

“What’s really schizophrenic for them over there is that at the same time they’re in the business of selling water, they’ve also been tasked to provide water-quality protection,” the official said. “So in some respects those are conflicting goals.”

At SAWS, four out of five grandfathering requests have been approved since 1995. Denials have increased in recent years, but not at the same pace as Development Services.

Hardberger said SAWS’ denial rates offer two lessons.

“One is that a lot of these grandfathering rights under the Texas law are probably bulletproof,” he said. The law favors landowners, and in most cases, “that’s the end of the matter.”

What about vesting cases that could go either way?

“Perhaps SAWS is not monitoring as closely as they could be, or maybe they’re the improper agency to do it,” Hardberger said.

Future policy

What is the City Council going to do next?

Garza’s vested rights task force has endorsed Martin’s approach and called for more details from developers before the city signs off on vesting applications.

But on the same December day when Martin and Roy argued, the committee struggled with the vague plans that were causing so much friction between the real estate industry and City Hall.

Susan Wright, the chairwoman of the committee and a development consultant, suggested a compromise.

If a developer had an old plan and didn’t want to butt heads with City Hall, what if he filed an affidavit with the city, describing the project?

And in a sign of good faith, what if the city then considered that project “vested” to 1997?

That’s a key year — developers would be spared the expense of the 2003 tree ordinance, but would still comply with more lenient tree rules approved in 1997.

“You get some tree protection,” Wright said.

That suggestion is the centerpiece of the recommendations making their way to the City Council.

It has proved controversial. One member of the committee, Mitch Meyer, later complained the task force was “giving away the farm” to developers.

His fellow committee members acknowledged that in making the compromise, they might be granting a haven for developers who bear no legitimate claim for any exemptions.

While the older 1997 tree ordinance is something the industry can live with, others complain it lacks teeth.

“The 2003 ordinance is a result of a public outcry,” said former Mayor Garza, who felt the old rules hadn’t gone far enough to protect trees. “The city usually comes in because it’s trying to fix a big problem.”

The city attorney’s office already has negotiated such compromises. Since November 2004, the city has signed a half-dozen agreements with developers whose vesting claims had been turned down.

In the agreements, both sides acknowledge the vesting claim is disputed, and in the interest of avoiding litigation, they agree that some ordinances can be safely ignored by the developer.

At the Melograno Apartments, an upscale project being built on the Northwest Side, the city had rejected a grandfathering claim.

But lobbyist Brown worked out an agreement with the city allowing his client to follow the 1997 tree ordinance, not the more stringent version of 2003.

This could be the future of vested rights in San Antonio: the search for a middle ground, often negotiated by high-powered lobbyists who spent the past decade harnessing the law that governs their industry.

On the other side of the table is a fresh batch of city politicians playing catch-up.

“In the industry, it’s always the same players,” Garza said. “The policymakers are always new. They don’t know the history. There’s just no memory on the policy-making side that can balance that out.

“That should raise some concern.”

jtedesco @ express-news.net

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