Zoning Commission Rejects Nirenberg’s ‘Downzoning’ Request

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An approximate outline of the 36 acres up for rezoning. Image via Google Maps.

An approximate outline of the 36 acres up for rezoning. Image via Google Maps.

The City’s Zoning Commission voted 8-2 against a request from Councilman Ron Nirenberg (D8) to down-zone 36 acres in San Antonio’s Northwest side on Tuesday after a conversation that highlighted deep divisions over property rights and sustainable development issues.

Zoning changes typically come from private property owners and developers, but this particular request was initiated by Nirenberg when the land was owned by the federal government in January 2016. Residents that live directly adjacent to the land have long-complained that the undeveloped land attracted vagrants and trash and don’t want to see a high-density apartment complex in its place.

The new owners, a California investment group doing business as Babcock Riverwalk LLC, purchased the land after Nirenberg filed for the zoning change. Kenneth Brown, a local attorney representing the group, said that while there are no solid plans to develop the land any time soon, the land was purchased with zoning that would allow for 33 housing units per acre. If Nirenberg’s proposal is successful, the new zoning would allow for only 11 units per acre.

“It’s not about reducing development, it’s about making sure the development is sustainable and in the best interest of the community,” Nirenberg said, citing the infrastructure strains that another high-density project would put on area streets. While he supports density in the city’s urban core and economic centers, this particular area needs low-density, mixed use.

Councilmember Ron Nirenberg (D8) smiles as he arrives at the Southwest School of Art's Coates Chapel. Photo by Scott Ball.

Councilman Ron Nirenberg (D8). Photo by Scott Ball.

“In this case, we have the authority,” he said of the timing of his proposal when the land was still owned by the federal government – after it was seized last year from other previous owners that fled the country under charges of money laundering for drug cartels. The public should always take advantage of public land to “zone it when we own it,” he said.

But he’ll need the support of at least eight of his colleagues for the zoning change to go through and hopes that his wants – and the wants of his constituents in the area neighborhood associations – will be heard.

The commission’s recommendation and the Planning Commission’s down vote in March will be considered by City Council in the next couple weeks – as will the testimony from more than a dozen business owners and residents.

“I feel good about (the proposal’s) chances at Council because every council member is charged with making decisions in the best interest of their community, and the merits of this case speak for themselves,” Nirenberg said. “It’s just a matter of how they withstand the pressure of the lobby, who are making some pretty outlandish claims. … The letters that were sent (by the opposition to the Commission and City Council) are as forceful as they are wrong.”

Speaking in opposition to the proposal both in person and in writing on Wednesday were representatives from the San Antonio Chamber of Commerce, the local commercial real estate association, Greater San Antonio Builders Association, the Real Estate Council of San Antonio, and of course representatives of the land owner. Most arguments centered around the rights of property owners and many of the commissioners agreed that the City didn’t demonstrate a significant need to override those rights.

“There’s no compelling need that’s going to benefit the citizens of that area,” said Commissioner Cecilia Garcia, adding that there should have been a greater effort on the City’s part to communicate to the new property owner that a rezoning process was underway.

“This is spot planning that we’re doing right now,” Brown said. “We’re not applying these principals evenly to all the properties in the area. We went through the planning process and we went through the zoning process in (2008) where all the stakeholders were involved and now we’re trying to do it where there is only one involved (the City).”

Ken Brown argues his clients case. Photo by Scott Ball.

Local attorney Kenneth Brown, who is representing the California-based investment group, asks the Zoning Commission to reject the downzoning proposal. Photo by Scott Ball.

Brown was referring to a land covenant that worked out between previous land owners and neighborhood associations in 2008. The agreement would have allowed for about 23 three-story apartment buildings and some single family homes on acreage adjacent to other neighborhoods. The site plan would have averaged about 20 housing units per acre.

“The problem in this situation is the process,” Brown said, claiming that the zoning case was fast-tracked in favor of the City.

“I have no sympathy for an out-of-town speculator who has lost the opportunity to profit off of a neighborhood becuase he wasn’t paying attention at an auction,” Nirenberg said of the new land owner. “And the notion that we’re somehow penalizing someone — the public is being penalized when we make poor development decisions in which the taxpayer has to foot the cost of repairing infrastructure.”

Not all of the business community was opposed to the change.

“We are unequivocally in favor of the downzoning,” said Manuel Pelaez-Prada, who spoke for the San Antonio Hispanic Chamber of Commerce. “These bidders (new land owners) are big boys and walked into this with eyes wide open.”

The zoning change, Nirenberg said, fits into the SA Tomorrow Comprehensive Plan due to come out this spring.

“Sustainable cities are good business,” Nirenberg said. The study carried out by City staff which he initiated before requesting the zoning change found “the highest and best use” would be mixed residential.

Commissioner Francine Romero, the associate dean for the College of Public Policy at UTSA who represents District 8, abstained from the vote on Wednesday but suggested that a compromise could still be reached between the City and land owner.

“I respect (Councilman Nirenberg) a great deal,” Romero said. “But he understands I have a philosophical disagreement on this. … Downzoning is a very serious step to take and it shouldn’t be taken lightly.”

Though she abstained, she made it clear she didn’t see a “substantive state interest” in the zoning change as a solution to the infrastructure problems that it may or may not cause.

“Our district is growing like crazy. This is not somehow unique (to) this particular property,” she said.

Looking between Brown and City staff, she urged that the two sides continue to meet before the Council vote that could come as early as next week, and noted that a zoning change that would allow 18 housing units per acre might be somewhere they could meet in the middle.

“I’m disappointed,” Nirenberg said of Romero’s comments and the Commission’s vote. He disagrees strongly on this point but “I appoint the people I do becuase I want them to use their own conscious to guide them.”

 

https://rivardreport.wildapricot.org

CORRECTION: An earlier version of this story had the acreage of the property in question at 33 acres. It’s 36.

Top image: An approximate outline of the 36 acres up for rezoning. Image via Google Maps.

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9 thoughts on “Zoning Commission Rejects Nirenberg’s ‘Downzoning’ Request

  1. One thing I was very curious about that this article referred to but didn’t make clear: Were the bidders on this property clearly informed, before they bought it, that the land they were purchasing was in the process of being rezoned?

    Either way, this statement from Mr. Nirenberg, “I have no sympathy for an out-of-town speculator who has lost the opportunity to profit off of a neighborhood becuase he wasn’t paying attention at an auction,” exhibits an extremely provincial, territorial, and backwards attitude, and it is very, very disappointing to read. With comments like this on the record, it’s small wonder SA has a hard time getting businesses to move here.

    And I didn’t hear Mr. Nirenberg complaining when they purchased it. Their money was a-okay back then, I’m sure, as are the taxes they’ve paid since.

    But hooray, just what this city needs–another expensive, protracted lawsuit that has zero benefit for the vast majority of the city. That’s taxpayer money well spent.

    • The zoning commission said essentially the same thing in both cases – the existing zoning is appropriate. In the hair salon case, the business opened without the proper zoning (or C of O) in place, and was trying to change the zoning just like Niremberg here. The only difference is that one wanted the zoning changed to allow more intense usage (hair salon), and the other wanted it changed to prevent intense usage (apartments).

  2. Why does Councilman Nirenberg think that just because the federal government owns the property that he has the right to reduce it’s value?….last I checked the Feds had a 20 trillion dollar deficit to fund.

    The comments about strain on infrastructure are ridiculous. New developments pay traffic impact fees set by COSA.

    The focus on the initiation of the down zoning and the specific timing of it all is not the point. The point is that government should not be able to unilaterally reduce existing property rights. It doesn’t matter who owns it. The fact is the HOA doesn’t like the deal they made in 2008 and they have a councilman that wants their 30 votes when he runs for mayor.

    Let’s look at the arguments in favor of downzoning:
    -the property is a haven for vagrants
    -developing the vacant property would eliminate this issue.
    -the property is owned by a speculator.
    -the ownership of this property has zero to do with the issue. It is an issue of the role government should be able to play in property rights.
    -the existing infrastructure will be strained.
    -the traffic impact fees are designed for this reason exactly.

    There is no validity to any of it….lastly, to the Hispanic chamber of commerce, congrats on solidifying yourself politically on Nirenbergs side. I hope that going against every pro business and pro investment value you claim to have was worth it….pathetic.

  3. The sad likelihood here is that response from the real estate community on these issues will ultimately lead towards a situation that is less conducive to development. The City will now have an incentive to keep all property zoning as low density as possible and wait for projects to be proposed and then “spot zone” each project to allow for it. This is a common way of doing business in many cities that are among the most unaffordable and difficult to develop in.

    The arguments about zoning need to be centered around planning and appropriate uses. There is a place for discussion of property rights and a way of resolving those issues but the circumstances of this case don’t appear to raise any legitimate concerns about property rights. This owner purchased the property while the zoning process was already underway. You could easily argue that they got a discount because other folks decided not to bid on the property due to the ongoing rezoning process. The simple fact, however, is that if you accept that this owner has a property rights claim against downzoning, then literally every property owner in the city would have the same claim. Accepting this logic would mean that no property could ever be dowzoned. This makes planning in any sort of flexible dynamic way impossible .

    Moreover, it needs to be clarified that there are no specific legal or constitutional protections against “downzoning.” While there are some legal doctrines and protections that may be triggered by a downzoning (i.e., vested rights or regulatory takings), there is no legal basis for the suggestion that “downzoning” itself is somehow illegitimate. It is also a mistake to assert that landowners control zoning. That is clearly not the case. This power resides solely with the City subject to some constraints under state and federal law.

  4. There is a reason the Hispanic Chamber took a decidedly anti-business stance on this issue: Ron Nirenberg’s wife, Erika Prosper Nirenberg, is Secretary of the Board of Directors for the Hispanic Chamber.

    I also find it disturbing that every individual who invests in San Antonio is considered a “speculator” in Councilman Nirenberg’s view. I guess if the City can just take away someone’s rights this easily, everyone who does invest in San Antonio will be speculating on whether they will actually be able to carry out their planned project.

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