Will Stack and Pack Development Really Preserve Arroyos?

The image is from El Paso Development News which reports, "The site plan for a new residential development in Northeast El Paso shows streets winding around arroyos and open space. (City of El Paso)

The City Plan Commission (CPC) approved a land study for 175.45 acres above Magnetic and just to the south of Hondo Pass. The planned development is being called Sierra del Puente. This is an area that some on the Open Space Advisory Board had asked on several occasions to be considered for acquisition. 

El Paso Development News has the story.

The land owned by Daniel Knapp and Palo Verde Properties plans to build 319 residential units on 70 acres while preserving 88 acres of arroyos and open space. One land expert commented: "This is a stack and pack in order to squeeze all the units on there – which is what they have to do to get their money out of it.  I sure hope the surrounding neighborhoods object to it.  I hate to see that happen to the mountain."

Maybe but, if they use green infrastructure/low impact development and preserve (not concrete) the arroyos, it may be a worthwhile (albeit expensive) enterprise. I've hiked with Dan Knapp and know that he loves our mountains.

When the CPC reviewed the land study, commissioners asked whether anyone from the public had comments. There were none. One wonders how well the neighborhood was informed about the project.

One also wonders whether years of Charlie Wakeem's mentioning the area at OSAB resulted in any attempts to contact the owners about selling the land. OSAB members often waste their breaths at City Planning.

By the way, El Paso Development News is great. Get on their email list.

Arguments Against Impact Fees Are Fallacious

The issue of impact fees is again before City Council and the citizens of El Paso as well as the ratepayers of the water utility. Please mark March 4th on your calendars. That is the day that City Council will decide about increasing the impact fees. This post is just the first in what will be several on this subject.

I begin by sharing with you an email that I received from Charlie Wakeem on the subject. Most of you know Charlie as the recent past chairman of the Open Space Advisory Board. However, Charlie has served the City as a member of many other committees including the Capital Improvement Advisory Committee (CIAC) which advises the CPC (City Plan Commission) and City Council on issues such as impact fees.

Before sending me the email, Charlie told me that the impact fee issue has nothing to do with economic growth or sprawl. It has everything to do with basic fairness. If you use something, you pay for it. If you don't use something, you don't. I'll be exploring that theme in the next few posts on impact fees. Today, here is the opener from Mr. Wakeem:


Hi Guys,

On March 4 as many citizens as possible should go to City Council (CC) and speak in support of a major issue: Impact Fees.  This is important for all of El Paso because the developers are not only trying to stop justified increases of those fees but they are also arguing for the roll back of those fees, the sale of city owned land held by the PSB and the end of Smart Growth and SmartCode. In short, they want more destructive sprawl.  

Before I continue, I suggest you watch the video stream of the February 18th CC meeting starting from 39:20 into the video.  This is the link: http://home.elpasotexas.gov/video.php.  With the exception of Lisa Turner, no one else spoke on behalf of the rate payers. 

I've been on the city's Capital Improvement Advisory Committee (CIAC) from the start, which was set up by City Council six years ago and makes recommendations to the CPC and CC.  I was term limited at the end of 2013, but I still follow them.  At the beginning CC appointed 5 developers and 4 non-developers to CIAC.  I was the last original non-developer.  There are now 7 developers and 2 non-developers on the committee.  The 2 non-developers are relatively new and are still learning.  Originally, the Impact Fees approved in 2009 were 75% of approximately $2,000 per new home built, or about $1,500. The developers persuaded CC to make the rate payers pay the other 25%. Due to needed new capital improvements, mainly to the Bustamante Water Treatment Plant, which serves the East and NE service areas, the impact fee would double if approved.  The NW service area would have no significant increase.

So much for the background.  At the January, 2013 CIAC meeting, the vote was unanimous not to recommend the increase.  Later, the CPC voted 6-0-1 to recommend the increase (which I repeat is justified).  Ray Adauto (who I might add has also been term limited but is currently serving as CIAC chair) is the Executive Director of the El Paso Association of Builders. He spoke on behalf of the developers at CC this past Tuesday - Feb. 18.  Greater El Paso Chamber of Commerce Director Richard Dayoub did the same.

Here are the arguments they made and my rebuttals [in bold red]:

1.  Impact Fees raise the prices of homes and more people will be priced out of the market.

Answer:  This is a bad arguement.  Impact fees are part of the cost of doing business.  If a buyer can't afford an additional $3,000 or $16.00 per month for a home [loan amortized at 5% over 30 years], they have no business buying one.  They are getting the benefit of the Water/Waste Water CIPs (Capital Improvement Projects), not the current rate payers.

2.  Impact Fees encourage sprawl.  Developers don't have to develop in the city, setting up bedroom communities.  They can go outside the city and not pay the impact fees and the home buyers will still use city services.

Answer:  This true, but the home buyers outside of the city pay higher water utility rates than city residents. Socorro is an example.  Horizon City has its own MUDD.  Nevertheless, what do the developers care what they're customer's utility bills are?  They already made their money without  having to pay the fees outside of the city.

3. Another source of income in lieu of impact fees is the city's sale of its land held by the PSB to developers. It will generate income from the sale of the land and will generate more income with the new home buyers on that land paying property taxes.  Developers aren't buying the land, because the city has placed too many restrictions on its development, such as Smart Growth and SmartCode.

Answer:  WOW!!  Speak of sprawl!!  There are several parts to this answer. First, City Development Director Matthew McElroy, told me that the City owned PSB land is only 2% of the total land acreage.  The PSB generates little income from land sales and would not be useful in defraying CIP costs.  

Second, the land won't be sold for many years, since growth won't occur in those areas for a long time.  Declaring the land inexpedient now would bring pennies on the dollar.  Also, most of the PSB land is being held for its water storage and recharge, and not for its commercial use. That was the original intent of setting up the PSB in the 1950s.  

Third, it's a proven fact that no matter how many new homes are built, the property taxes from them never pay for all of the city services and infrastructure needed.  That's why our property taxes NEVER go down. 

Fourth and finally, the city has worked for years to improve the quality of development through Smart Growth.  It's a major part of the Comprehensive Plan that was fully vetted 2 years ago.  If the developers don't want to buy city land with Smart Code, they don't have to.

4.  The water utilities replaces old infrastructure in the city, such as replacing pipes on Country Club Road.  There are no impact fees imposed on that. Yet the home buyers in new growth areas are billed for those improvements.

Answer: Water and Waste Water CIPs are built to last at least 50 years. Some have lasted for nearly a century.  Old infrastructure wearing out is normal and should be a cost shared by everyone.

That's all for now.

Charlie  
             

Development Community Continues to Halt Passage of Drainage Design Manual

Last Thursday the City Plan Commission (CPC) once again postponed action on the new Drainage Design Manual. City Planning Engineer Kareem Dallo asked for a two week extension and hinted at delay until January. CPC Chair Larry Nance was hoping for at least the implementation of the DDM on a voluntary basis.

The fact is that the development community of El Paso is in the driver's seat and they do not want the DDM passed. Never mind dealing with water scarcity and conservation. Never mind making sure that there is enough water for their grandchildren's grandchildren or even their grandchildren. What's important are those big profit margins and bank accounts. They have got to afford those mega homes which are more space than anyone will ever need and more space gouged out of the mountainsides and arroyos. Why should El Paso enter the twenty-first century when good old-fashioned Conquistador colonialism is good enough for a few builders. (I always think of the evil villains in J.R.R. Tolkien and C.S. Lewis novels who are often described by their lust to destroy the environment and reduce the earth to concrete and steel. Both by the way were real Christians who used fiction to talk about Christianity.)

The complaint remains the same: the DDM is unfair because there are no soil tests of El Paso and a comprehensive survey will cost in the excess of $100,000. Try getting their bought and paid for sycophants on City Council to come up with that pittance. 

But the fact is that there already is a comprehensive soil survey of El Paso County. It was done by the USDA in 1971. You can see the report online. The Texas A&M Ag Research Center of El Paso published a guide in September 2000: "Soil Resources of El Paso" which contains a map of the soils of El Paso. You can get a copy of that guide from our County Extension Agent. As I said in an earlier post: the soils in El Paso have not changed in all of this time in spite of the excuses and protests of those in City Planning who are politically motivated to go along with the developers. (Read Carlos Gallinar.) The soil survey exists in spite of the misinformation put out by the voice of development, Richard Williams.

There is no need to spend money on a new survey. The survey has already been done.

There is no need for further delay of the Drainage Design Manual. If some want to make it voluntary - fine. But make those who choose to use water wasting methods pay an impact fee - a huge one. 

Dr. Noe Likes Walmart but not People NOT in His District

At the NW corner of Montana and Chelsea with Trowbridge defining the northern boundary sits some land that now has a Vet clinic and a Chico's and once a Baptist church now torn down.  Adjacent to this land is a quiet neighborhood. On the other side of Montana is old Chelmont Center and an Albertson's.  Walmart is hell bent on obtaining the land.  The neighbors do not want the added traffic congestion which will surely come with semis delivering products to the store and thousands of customers forced to go around the block - i.e., through the residential areas. 

It was a concern during the recent campaign in which I was a candidate.  Early on I opposed the project - the rezoning for the benefit of Walmart.  My opponent, Larry Romero who was subsequently elected, favored Walmart until he realized that his position could cost him one or more precincts.  Flip-flopping he changed his position and came out against the Walmart. (At the City Plan Commission meeting he sat silently as people spoke out against Walmart.  He sat opposite of the neighbors in the chambers of Council.  He did send his surrogate from the Hispanic Chamber of Commerce to speak in favor of Walmart.  That was two weeks before the election and days before he had his convenient conversion.)

Besides knowing that it would be a huge stress on the neighborhood, I opposed the project because I was aware that the Parks and Recreation Department at one time looked at the land as a place to move the now-closed Chelsea Street pool.  There is money in the quality of life bonds just for purchasing new land for that pool.  Somewhere along the way, that plan got moth balled in favor of supporting Walmart.  Obviously, some in the City hierarchy were persuaded by Walmart to let them go after the land. Many neighbors favor the idea of a park and pool.  Fred Borrego has a very special vision of what that park and pool should look like.

There were close to 70 neighbors - maybe more - at City Council today.  The plot to rezone the land had been turned down by the CPC earlier largely because of neighborhood opposition.  Walmart appealed to the City Council and today the matter was to have been heard.

Homeowners within 300 feet of the proposed site had signed a petition in opposition to the Walmart.  There were enough of them who signed to force what is called a 211 - in order to pass Council there needs to be a super majority.  5-3 for does not work.  It must be 6-2.  Dear Dr. Noe questioned the validity of the petition and asked for a two week postponement.  This in spite of the fact that 70 people (maybe more) were there in opposition - 35 of us had signed up to speak against it.  This also in spite of the fact that Sylvia Firth issued an opinion that the petitions gathered constituted the 211. Citizens had already tolerated nearly two hours of special accolades and recognitions before Council even got to the regular agenda.

Courtney (whatever business wants business gets) Niland seconded the motion.  It passed with the help of Lilly and Acosta who had promised to vote against the Walmart.

Why was Noe so eager to postpone when the proposed Walmart is not even in his District but in outgoing Rep. Byrd's district?  Here's the scoop so pay attention: Joe Lopez, Noe's campaign operative, does the local advertising for Walmart.  Need I say more?  Noe and Walmart are betting on the new City Council to support the retail Leviathan.  The matter will be heard again in two weeks - July 2nd.  We will see if Romero is true to his word or will find a reason to flip flop again.

The vote may also be an early sign of just how reactionary and bourgeois this new Mayor and City Council will be.

CPC Says "No" to NOS Zoning

At its long awaited meeting this afternoon and after a long period of staff, PSB and public comment, the City Plan Commission passed a motion that recommends not designating land in the Transmountain Scenic Corridor as Natural Open Space and, instead, to recommend development of the land using Smart Codes. It would seem that City Planner Matt McElroy had the most influence on the CPC as he argued that more land would be preserved as open space under smart code development rather than rezoning the corridor as NOS. Furthermore, McElroy argued that preserving the corridor with NOS zoning would cause leapfrog sprawling (north and south of the corridor) which is something Council and the City wants to prevent. (Nothing was said that the corridor could be preserved and that smart code would then be applied to development north and south of it and that such development - rather than be leapfrogging - would be joined by adjacent developments west of the area.)

Also, in spite of proposed changes to the NOS ordinance itself, CPC members were persuaded that zoning the land as NOS might jeopardize the $80 million non-public approved TxDOT plan (which includes the illegal Plexxar intersection) and needed water utility infrastructure could not be built. Neither McElroy nor EPWU spokesman, Nick Costanza, attempted to clear up these misrepresentations.

The suggestion was also made by McElroy and Costanza that some "deal" had been struck between City Manager, Joyce Wilson, and EPWU CEO, Ed Archuleta, regarding smart growth plans. Of course, the public is never privy to such behind-closed-door deals that should be out in the open.

The Westside Master Plan has huge problems according to URS, the consulting firm that gave the City as stormwater master plan. TxDOT proposes to build a freeway/highway that includes an illegal intersection - Plexxar. Finally preserving the Scenic Transmountain Corridor does not mean leapfrogging - but that argument was not countered certainly because advocates of open natural space did not expect the knife in the back from Matt McElroy. Et tu, Matt? Twist it a bit more the next time, will you?

What's next? The matter goes to City Council probably in early January after a final survey is done. Assuming that there are not sufficient votes to override a veto from John Cook, then many have already begun talking about forcing TxDOT to get an Environmental Impact Statement (certainly a lose/lose proposition) and going to a special election by which the people of El Paso can finally be heard. This one is far from over.

Desert Springs: A Land Study That Should Never Have Been Approved

At its August 27, 2009 meeting the City Plan Commission of the City of El Paso approved the Desert Springs Land Study. The question is: Should it have been approved?

Desert Springs encompasses an area of 189.83 acres just about a mile to the west of the line where the Franklin Mountains State Park begins. Its westernmost boundary is roughly Northwestern Drive if Northwestern were currently extended north of Trans Mountain Road. The land is being developed by Mr. Randy O'Leary.

Click on image to enlarge

Running through Desert Springs is Arroyo Corridor 42B, the only remaining corridor that connects the State Park with the Rio Grande. The City Council approved Open Space Master Plan ("Towards a Bright Future: A Green Infrastructure Plan for El Paso, Texas") says of this corridor: "This area of El Paso is on the verge of becoming the next sector for development, and as such, the preservation of this arroyo system should be considered an extremely high priority."

Several of us walked through this arroyo on Tuesday from the gas pipeline road to I-10. On the way we also saw where City of El Paso engineers insist that a 15 acre concrete pond be constructed - a pond necessitated by their plan to reduce a 1200 foot wide arroyo to just 120 feet in violation of the comprehensive plan which specified a 300 foot wide natural corridor in this arroyo - not 120 feet! The City Plan Commission has the authority to accept, modify, or deny a land study if that study doesn't follow the comprehensive plan.

Violation of the comprehensive plan is just the beginning. The Land Study lacks the due diligence called for in 19.02.040 since the opinions of the Open Space Advisory Board expressed prior to the City Plan Commission were not included. Municiple code 19.02.040 clearly states that a criteria for the approval of a plan requires assessment of open space - the purview of the Open Space Advisory Board!

City Engineer, Kareem Dallo, reportedly told a member of the OSAB that a CLOMR (Conditional Letter of Map Revision - needed to build in a floodpath) had been filed with the City Flood Plain manager. However, a Freedom of Information Act request by citizen Charlie Wakeem yielded no such document.

Click on image to enlarge

City staff could not have made a health, safety and welfare decision necessary under code 19.16.050 to modify the arroyo without FEMA input. Mr. O'Leary's proposal is vested under 19.16.050 which simply states: "Arroyos shall be preserved in their natural state, except that improvemnts or modifications may be made in accordance with designs approved by the deputy director of building services when such improvements or modifications are necessary to protect the public health, safety or welfare."

Since staff did not have the information needed to make a decision about the health, safety and welfare of the public, and since the Open Space Board's opinion was not included for the CPC members to consider, and since the comprehensive plan was violated, how could the City Planning Commission approve the land study? Unfortunately, they were advised by City Attorney Lupe Cuellar that they didn't have any choice but to approve and not a single member of the CPC raised an objection!

Ms. Cuellar warned the CPC: "If the plan meets the codes, and staff says it does, then legally you have to approve the plan." Staff has full and final authority? Citizens on City boards and commissions have no cognitive abilities other than to respond to a staff stimulus with rubber stamp approval? There were plenty of good reasons not to approve the plan as discussed above.

Ms. Cuellar's advice to CPC is similar to her advice to the members of the Open Space Advisory Board as to how to advise Council which is their duty by ordinance. Ms. Cuellar suggested that the Board tell Ms. Shamori Whitt, the Parks and Recreation staff person who has been appointed as the department liaison with the Board; Ms. Whitt tells the Parks and Recreation Director, Nanette Smejkal, who runs it by the City Attorney's office. If legal okays it, then Ms. Smejkal will give it to the City Council. Again, who is empowered by ordinance to advise Council - the Board or a lenghty chain of bureaucracy? Isn't it more in keeping with ordinance for city staff and attorneys to present to the OSAB (or any other board or commission) which then makes a decision and reports directly to the City Council of the City of El Paso? Does ordinance give de facto veto or amendment power to city staff and attorneys?

Someone might want to raise the issue of the tail wagging the dog. Citizen elected councils advised by citizen boards and commissions set the policies of the City with support of the staff and then implementation by the staff. City staff members are Senate pages, so to speak, not the Senators.

One can also wonder why some city staff members are allowed to continue in their positions when they clearly do not care to implement the policies, vision and values set by the people of El Paso through their elected representatives and as manifested by an open space master plan, a parks and recreation master plan, a stormwater plan, now a sustainability plan and much more - all documents that assert the values of care for the environment and ecosystems and open space. In fact, one wonders why some staff choose to thwart these values at all.

Sadly, as some real estate and landscape experts have shown, there are ways to develop with conservation in mind: ways that will increase a land developer's bottom line.

One such expert said:

"The Open Space Board should become involved in future development by approaching developers before they begin development plans. If the Board could show developers that they could make the same profits or greater by introducing green and sustainable development, then it would be an advantage to all parties."

The approval of the Desert Springs Land Study just represents the tip of the iceberg. There's much more underwater that will rip deep holes in a ship of state and send it to the bottom of the sea. The question really is who captains the ship. We've got a lot of crew acting as skippers and one wonders why.

Desert Springs Land Study Seems to Skirt Open Space Requirements

If a developer wants to get away with not complying with the City of El Paso's open space requirements, he will have a hard time sneaking past Dr. Rick Bonart, the newly-elected Chairman of the Open Space Advisory Board. Dr. Bonart called an emergency meeting of that Board this past Monday - in fact the first meeting of the newly appointed Board. The issue: the Desert Springs Land Study scheduled to go before the City Plan Commission this Thursday.

It would seem that the developers of Desert Springs just north of Trans Mountain Road and not too far south of the Franklin Mountains State Park have taken a bit of the land set aside for open space by the previous Enchanted Hills Land Study. The proposal for this residential and commercial area seems to slice and dice an arroyo. City Engineers are proposing to take an 1100 foot arroyo to an "undisturbed" area of just 30 feet - less than 3% of the original width. 3%! Remember: an arroyo is defined from rim to rim and not from the width of the bottom channel.

Open Space Committee member (and newly-elected Vice Chairman) Charlie Wakeem expressed concern that the Desert Springs Land Study might get approval without being vetted properly. Member Lois Balin said that there must be a re-design in order that the approved definition of arroyo is met. A motion made by Jim Tolbert asks that the City Plan Commission delay a decision on the land study until the Open Space Board has had plenty of time to review it. The motion passed unanimously.

There are two other disturbing features to the plan:

Concrete will line the sides of an arroyo unlike a TXDOT solution for the same arroyo on the other side of Canutillo. Do City Engineers want a hodgepodge of flood control devices from start to finish? It seems that they do in order to control flooding with their mammoth ponds and unnatural concrete.

There is no requirement that native plants be used for flood and erosion control. It seems that the City will be happy to use any plant - native or not.

The City Plan Commission meeting will meet this Thursday, July 16, at 1:30 p.m. in the 10th Floor Large Conference Room at City Hall. The meeting is open to the public.

Neighbors Do Have Options To Stop Crazy Crazy Cat Development

Contrary to what the El Paso Times reported, neighbors opposing the Crazy Cat Mountain development known as Kern View Estates No. 2 do have options to stop the development. Finally reporting on the matter 5 days after the meeting, the EP Times would have us believe that there is nothing in a strong property rights state such as Texas that can be done to prevent development of any private property. (One wonders about the slant of their story - but that is another posting for sure.)

Among those invited to attend was Charlie Wakeem whose expertise on development and open space has been built on many years of involvement with open space, stormwater and open space master plans, and arroyo and zoning issues.

According to Mr. Wakeem there are four ways to preserve open space on privately held land: regulation, acquisition, incentives and conservation.

There is a fine line between a City's right to regulate development for purposes of public health, safety and welfare and illegally taking land. Nevertheless, the City can restrict growth through ordinances regulating grading, sub-division and zoning. In the instance of Kern View, the steep slope of the land may be a critical issue of safety.

Land can be acquired through an outright purchase as in the case of Resler Canyon; or it can be swapped. Also, a Public Improvement District can be created if homeowners agree to pay an additional fee over a period of time. Thunder Canyon at the end of Mesa Hills was preserved by the creation of a PID. Neighbors agreed to pay several thousand dollars more each amortized over 15 years.

Incentives can be used to prevent development on privately held land. These may be density transfers and park land credits (granting 50% park credits for leaving arroyos natural for example).

Finally and probably the least likely option to prevent further decimation of Crazy Cat Mountain, the land owner could put a conservation easement on the land in return for tax credits. The federal government gives large credits to do just that.

Of the four ways, Mr. Wakeem recommended that the Kern Place and Mission Hills Associations take a look at regulation first. The steep slope of the area is definitely problematic. A PID would be the last resort.

Wakeem advised that the group select a spokesperson who will be Bob Halter with the help of others. Neighbors were told that numbers of people involved is very important especially regarding the media. Pictures, Power Point presentations - all help build the case. Elpasonaturally will certainly help post any visual materials for the Associations.

Already some have asked whether the new Open Space Board can't make the proposed Kern View Estates No. 2 an agenda item.

The City's Plan Commission will hold a public hearing on Kern View Estates this Thursday, July 16, at 1:30 p.m. in the 10th Floor Large Conference Room at the City Hall Building. You can view the City Plan Commission Staff Report here. The hearing is item #8 on the agenda.