As you may recall, a few miles from here, in the small town of Helotes, just outside San Antonio, a controversy over a planned Super Wal-Mart has been brewing for approximately a year now. Last spring, 3 Wal-Mart opponents defeated 3 incumbent Wal-Mart supporters in elections for the Helotes city council. Two of the hard fought races were won by a mere seven votes (out of approximately 1300).
Since then, a month ago, the city council voted to place a 90-day moratorium on development while they study the issue further.
From the October 19 San Antonio Express-News:
Applause and shouts of joy filled council chambers Thursday after the City Council, in a 3-2 vote, approved stopping development near Scenic Loop Road and Texas 16 for 90 days.
Council members Bill Wheeler Jr., Linda Boyer-Owens and Stuart Birnbaum voted in favor of placing interim development controls on the area that a handful of landowners asked to be annexed Sept. 12.
Councilmen Jim Caruso and Charles James voted against the measure, warning that passing it could expose the city to litigation.
The vote came after more than an hour of appeals by residents and attorneys to the council.
By placing development controls on the area, the council prevents Wal-Mart store officials and anyone else looking to develop near the intersection from filing "an application for a license, certificate, permit, approval or other form of authorization for development" pending a zoning study and annexation impact analysis of the area.
Mayor Jon Allan, who placed the item on the agenda, told the council he made the move because residents who asked for annexation want to have some control over development in the area.
"At this point, it's very cut and dry," he said. "If we put these residents' rights as wanting to be annexed in the forefront, I think this interim development control allows this to happen.
"As people pointed out, there's no rush."
Last month, a group of property owners next to the 32-acre proposed Wal-Mart site filed a petition to annex the entire area. All newly annexed property is automatically zoned residential.
If the annexation is approved, that could force Wal-Mart officials to go through the rezoning process, which would add another step for the retailer looking to build a superstore on property now owned by Balous Miller.
Now, the Wal-Mart faction is pulling their trump card out of the Texas real estate developers' bag of tricks: "vested rights." That is the idea that governments cannot control how land is developed once a real estate developer even thinks about developing a piece of land. (Ok, it's not quite that extreme, but then again, it's not quite that far off the truth, either. At least in the way the developers want the law to work.).
From the November 16 Express-News:
Attorneys for landowner Balous Miller filed a lawsuit against the city of Helotes Nov. 10, alleging that Miller and Wal-Mart, who entered into a contract for Wal-Mart to purchase 31.6 acres from Miller in 2004, have vested rights that would allow the retailer to construct a supercenter at Scenic Loop and Texas 16.
"The land-use controls that were in effect at the time that Mr. Miller and Wal-Mart proposed this development are the land-use controls that we are subject to," said Barry A. McClenahan, attorney for Miller. "If the city — through this annexation which is, whatever else they say, is really for the sole purpose of stopping Wal-Mart, which the citizens realize — attempt to impose more restrictive land-use controls that would preclude this development, they can't do that."
Mayor Jon Allan said he couldn't comment specifically about the suit because city attorneys hadn't yet received it, but he said in general the issue of vested rights disturbs him.
"Developers are using vested rights to force developments onto communities," he said. "Our charge is to protect communities. This isn't about private landowners wanting to get a decent investment return on their property. This is more about greed than anything else."
"You have to consider the fact that the neighbors that live adjacent to this type of development, what about their rights?" Allan said. "These people have poured their lives, their sweat and their blood into their homes and then see it destroyed by these large developers that are going to create all kinds of traffic problems, light pollution, air pollution, noise pollution and significant degradation, not to mention water pollution because they have wells that almost certainly will be affected."
Miller purchased the 31.6 acres of land in 1982. Most of the land sits in the city's ETJ, with the exception of a small sliver within the Helotes city limits.
Because Miller and the retailer have applied for licenses and permits and entered into contracts for services, they have established vested rights, McClenahan said.
"I think that the law is pretty clear ... We have taken the steps to ensure that these rights are vested and that the law is there for a reason," McClenahan said.
But Allan said there's another reason.
"This whole vested rights thing is, they talk about the state laws, and let's face it: These vested rights laws have been fostered by developers and written by developers," Allan said.
"I think the voters should be outraged at the fact that communities are less and less able to determine how they would like their communities to be."
Quite a new mayor they have there in Helotes! We need more politicans like him, both in Texas and all over this country.