Smoke on the water
San Antonio (TX) Current, 10/14/04

Developers wonder if the City is abusing its regulatory power

By Elaine Wolff

A bird's-eye view of Northside San Antonio would reveal the extent to which the clusters of shiny new neighborhoods have been developed around two geographic features: natural waterways that are brush-filled and dry a good portion of the year, and stone quarries. As the Salado and Panther Spring creekbeds wind their way toward the center of town, they are punctuated by a series of earthen dams that almost disappear into the landscape. Ranging from 4 to 33 years old, the dams are a first line of defense during heavy rains such as the '98 and 2000 downpours that overwhelmed the city's flood control measures.

As the Northside is transformed from ranch land to tract homes and big box stores, additional impervious cover has increased the burden on those measures - what we have learned to think of as a 100-year flood may become a 50, or even 10-year occurrence. How the City chooses to work with area developers over the next decade will have a measurable impact on the City's ability to survive heavy rainfall without a natural disaster. Two of the tools at the City's disposal are eminent domain and zoning, but some local developers feel the City is abusing those powers while doing a disservice to its citizens.

When the Supreme Court announced in September that it would hear Kelo v. City of New London, it sent ripples through state and local governments everywhere. At issue in the Connecticut case is whether the city can exercise its right of eminent domain - the constitutionally based power to take private land for "public use" in exchange for "just compensation" - not for historical purposes such as a highway or flood control, but to bring in more tax revenue through private development.

The Court has decided a handful of related cases throughout its history, but it has always expressed doubts that a judicial rule-of-thumb can be applied to a process that is grounded in so many local variables, including a community's economic needs and real estate prices. Its position has essentially been that the local governing entities are in the best position to decide those questions.

Despite its remove from direct electoral politics, the Court is not insensitive to the winds of change, and its willingness to take on Kelo v. City of New London reflects two trends: perceived abuse by governmental entities that have used the power to take private land for private development, and a conservative campaign to roll back eminent domain to the bare minimum by making the purchase costs too burdensome for local governments.

Opponents to the use of eminent domain for environmental preservation and other types of public improvement have been savvy in linking the common complaints of developers and homeowners in an anti-government agenda. While large landowners have long been mobilized against eminent domain, homeowners and small businesspeople have been drawn to the cause by the governmental move to expand the definition of "public use." Institute for Justice, an anti-eminent domain clearinghouse, documented 4,000 condemnation cases filed nationwide between 1998 and 2002 to benefit private parties. The appellants in Kelo v. City of New London are mostly single-family homeowners, many of whom have neighborhood roots going back 100 years. Sympathy for the anti-eminent domain cause has arguably been stoked by governmental abuse.

Zoning is another way in which cities can exercise a virtual taking of property by restricting its uses, sometimes resulting in a radical devaluation of the land. In San Antonio, the issue was most recently raised by the City's effort to restrict development on the parcel of land owned by the Bill Miller family adjacent to the forthcoming Toyota property by re-zoning it as farm and ranch land (prompting one local developer to ask whether the Millers now de facto qualify for the Ag Exemption on their property taxes).

Dan Parman and his son Brad are two of the developers behind much of the Stone Oak area in north San Antonio. Among the tracts of open land in which they have an ownership interest are two large lots on the Rhapsody cul de sac off of West Avenue. The lots are adjacent to City-owned parkland and just south of Panther Spring Creek. Brad Parman says that a few years back they talked with the City about selling it the lots for around three dollars a square foot. "They said, 'We don't need it,'" recalls Parman. "We said, 'Oh, no, we think you do.'"

This year, the Parks & Recreation department is back, but now they want both parcels for a mere $3,000, he says. The difference? In 2002, the flood plain was redrawn for the area and the lots are now considered to be in the 100-year flood plain, considerably reducing their commercial value. Flood plains were originally set by the Federal Emergency Management System in the '50s, and have been updated by a patchwork of private developers, and local and state government studies. The City, however, makes its own flood plain determinations for zoning and development purposes, which estimate the amount surface run-off would increase if the entire Northside were fully developed under the existing Unified Development Code.

Parman says the City has told them that, in another deluge like '98, when 30 hours of solid rain threatened to top the Olmos dam, or even the 2000 downpour, the Rhapsody properties will be under water because earthen dams upstream are likely to breach. Monica Ramos, public information officer for San Antonio's public works department, says the land is being bought by Parks & Rec and if successful, it will remain undeveloped. Parks & Rec could not be reached for comment.

"It's hard to tell what the City's goal is," says Ofelia "Ofie" Garza, president of Consolidated Office Systems, whose business sits across the street from the Parmans' lots. "Neither of those floods ever impacted us here ... some of us believe they really want that land." The City hasn't offered to buy her property, but Garza has been hit with increased flood insurance rates, although it took her almost two years to realize a commensurate reduction in property taxes.

Developer Don Kuyrkendall's signs can be seen poking above the brush on eight undeveloped acres on north Blanco road by Camp Bullis - lots for which he can't get commercial or residential zoning even after SAWS requested a flood plain study and the City asked for a dam breach analysis of two nearby dams that constitute part of San Antonio's flood water retention system. The San Antonio River Authority operates some 13 earthen dams in the Salado Creek and Panther Springs Creek watersheds. During the '98 flood, those dams were full, but they held. Now, say Parman and Kuyrkendall, the City is playing politics, holding up zoning applications and devaluing land, telling developers that those dams will breach during another 100-year flood. SARA's Stephen Graham, however, says all of their dams are safe and sound, and the Texas Commission for Environmental Quality, which oversees the Dam Safety Program, could not confirm any relevant studies on the SARA dams by press time. On October 7, Bexar Regional Watershed Management announced a county-wide initiative to update the entire county's flood insurance rate maps based on current development, but the project is not scheduled to be completed until 2006.

"The scenario is that nobody downtown is telling anybody the truth, the whole truth, and nothing but the truth," Kuyrkendall angrily charges. "They're not gonna condemn our property. They're not gonna grant us our zoning ... the answer you always get downtown is 'Give us six months.'" In the meantime, he says, he is sitting on a potential $30 million tax base. But the real money question for the City, if it doesn't come to a resolution with the developers, is what "just compensation" may be. Kuyrkendall says he intends to pursue legal measures if he can't reach an acceptable agreement with the City.

In addition to his frustration as a land owner, Parman says that cases like Ofelia Garza's demonstrate the City's irresponsibility when it comes to exercising its power over development and private land. "You can't just casually say things like [the dams may breach]," says Parman. "If Ofie has to buy flood insurance, you couldn't buy enough insurance for downtown San Antonio."

San Antonio Current: www.zwire.com/site/news.asp?brd=2318