Vested rights in action: bargaining with the neighborhood association 

Look out Cyndy Nemcik’s bedroom window and it’s evident just how much a plan to re-zone four empty lots beside her home will affect her and her three daughters. Through the branches of the Persimmon, elm and hackberry trees that fill her backyard and the lots, Nemcik has a view of the back of a retail strip center that houses everything from a Citgo gas station to an animal hospital to a Sprint store.

The only thing that keeps Nemcik separated from the outlet is the leafy buffer. She and a number of residents of the Hills & Dales neighborhood are concerned about what other development will expand closer to their homes once City Council votes to re-zone the 1.346-acre tract in early November. The property is located in City Council District 8, on Green Glen between Oak Grove Drive and Babcock Road.

“This is a very sensitive issue to a lot of us homeowners,” Nemcik said. “We are a very environmentally conscientious neighborhood and don’t want to lose our Hill Country aesthetics.”

Currently zoned RM-4 (Residential Single-Family) and R-6 (Residential Mixed), the four lots, which sit on top of the Edwards Aquifer Recharge Zone, have been given the go-ahead by the Zoning Commission and the San Antonio Water System to be re-zoned C-2 (Commercial).

However, in a September 20 letter addressed to H&D Neighborhood Association president Chris Beal, District 8 City Councilwoman Diane Cibrian stated that she would not support C-2 re-zoning on those lots. Instead, she was open to re-zoning the land O-1 (Office), a lower-impact zoning designation.

“Mulitifamily zoning … is not in the best interest of the neighborhood,” said Cibrian, who first met with members of the neighborhood association on August 27 to discuss options. “We must look at zoning alternatives to keep this property from being developed as rental property.”

Although it confirmed her status against C-2 zoning, Cibrian’s letter left those residents who oppose any re-zoning in a bind. Because of a plat and deed restrictions recorded in 1963 and 1964, which designated the four lots as commercial, property lot owner Tom Rohde has the option to apply for vested rights on the land. According to Rohde’s lawyer, Bill Kaufman, this means his client’s land could be sold to someone interested in building multifamily units — exactly the type of development that a majority of the H&D community is opposed to.

Led by a vocal Nemcik, a number of the most affected families in the neighborhood have held steadfast against any type of re-zoning for the lots. Nemcik also worked diligently to find other ways to prevent Council from re-zoning the property, including an independent study of the area by Margaret Perales-Graham, a geologist and client of Nemcik, who noted a “strong indication of faulting,” something the SAWS interdepartmental study did not mention when it was completed in July.

Nemcik also disputed Rohde’s potential vested rights, maintaining that without a zoning change, mulitifamily units could not be built legally, an argument Kaufman quickly quashed during a townhall meeting held September 26.

“What the law is … is that you can do multifamily in commercial,” Kaufman said. “My client is not threatening to do that and does not want to do that. But, if left with no alternative, I think he will do what he can under the current zoning.”

During the townhall meeting held at the H&D pavilion, Kaufman seemed to convert many community members who only a few weeks ago, did not see a viable resolution. It was like watching Juror No. 8 work the room in 12 Angry Men.

“If you leave the zoning as it is — because the lot is already platted — `my client` can do exactly what you don’t want,” Kaufman said. “If left with no choice, what do you expect? We’re trying to find a balance that mitigates the best we can without any discomfort.”

Call Kaufman’s move what you will: A strategic plan to find middle ground between his client and the neighborhood or an ultimatum, which backs H&D citizens into a corner.

Fielding questions on behalf of Cibrian has been District 8 zoning spokesman Michael Shakleford. Present at the townhall meeting, he does not consider Kaufman’s play unfair.

“All `Kaufman` was telling `H&D residents` about was what rights `Rohde` has as a property owner,” Shakleford said, adding that usually, in cases like this, property owners would apply for vested rights without forging a compromise with the neighborhood. “I think what his intention was was to tell them, ‘Hey, we’re doing you a huge
favor.’”

The “favor” Shakleford speaks of refers to concessions Kaufman offered the neighborhood association on behalf of Rohde if a majority of them would agree to stop opposing the O-1 zone change. These includes limiting impervious cover to 50 percent (even though city ordinances say they could legally go as high as 65 percent), limiting development to only three of the four lots, redesigning the neighborhood’s welcome sign and reimbursting the neighborhood association for their own lawyer, who could make sure their restrictive covenant wish list was in working order.

Since the townhall meeting, H&D residents have formed a committee and met once to draft their demands, which they will present to Kaufman and City Council in the coming weeks. Some of their stipulations include signage, drainage, parking, fencing, architecture of the structures, and following the 2003 Tree Ordinance, which would save understory trees and grasses and those trees with trunks 6-inches in diameter.

“We have given them an earful,” Nemcik said. “I do feel it has gotten us where we are right now, even if it’s not what we all would have truly desired.” •


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