The second phase of Shoreline Park now appears to be moving forward after the Boerne Planning and Zoning Commission faced a potential legal battle with the developer. Board members received a reply from the developer’s attorney, stating the motion to deny did not comply with the law.
During the last P&Z meeting, the board voted 6-2 to deny the preliminary plat “because of deficient engineering supplied in response to the conditional approval of the master plan.” However, Rob Killen of Kaufman & Killen, the attorney for KB Home, responded by saying the denial did not meet the requirements of the Texas Local Government Code, and therefore the denial was invalid.
At the Oct. 21 meeting, P&Z board members had expressed concerns with a “deficient” engineering drainage study that was required as a condition of the master plan approval. But in a letter dated Oct. 28, Killen argued the plat denial would set a subjective standard by requesting a drainage study with “much more detail,” without revealing what exactly “much more detail” means.
Laura Talley, Boerne’s director of planning and community development, said by law the planning board would have 15 days to respond with approval or denial. However, the motion could not be amended. So, board members either have to vote to approve the preliminary plat, double down on the original motion with a second vote for denial or do nothing.
“It does meet all the requirements of the ordinance, and staff is still in favor of approval,” Talley said.
Cal Chapman stood by his initial motion to deny, stating the drainage study was deficient. He said he reviewed the videos from the meeting where he and other planning and zoning members described what they expected to see from the drainage study, and he felt those requests were laid out very clearly.
However, he said the specifics of the request were not noted in the minutes.
“We said do all that study, and that’s not what we got,” he said to Talley. “So you made the judgment, not us, of what was sufficient.”
“Based on the motion, yes, I did,” Talley said.
Other board members questioned if the condition was even legal. City Attorney Mick McKamie said prior to legislation that became law on Sept. 1 it could be argued they did have the authority to deny. However, if that same master plan was scheduled for approval today they could not. The initial master plan approval was given before Sept. 1, so, theoretically, board members did have the legal grounds for conditional approval.
Deputy City Manager and General Manager of Utilities Jeff Thompson said Talley actually didn’t make the choice on her own. Because the drainage study condition was new territory, the city hired an outside consultant to guide it through the process. The city initially wanted to hire TetraTech, the same company that employs the city’s Low Impact Development (LID) consultant, Troy Dorman.
However, KB Home hired TetraTech first to conduct the drainage study. So, the city turned to Jeff Moeller of Moeller and Associates in New Braunfels for an assessment of the study. Moeller deemed the study was adequate, and after the city staff reviewed the study it deemed it sufficient to proceed.
Moeller said the city started reviewing Phase One of the project in August after it was approved. And staff did have issues with a detention pond in that initial phase, but the developer modified the plans.
After about two months of back-and-forth requests and adjustments between city staff and the developer, the review of the Phase One final plat is almost complete and ready for P&Z consideration.
He said in Phase Two, city staff will be looking at the filtration portions of the drainage plan, and the development plans will have to comply with city ordinances before final plat approval.
During the meeting, P&Z Chairman Joe Davis asked for a motion, and he reminded the board that without one the preliminary plat would be approved by default within 15 days of the Oct. 28 response from the developer.
Board members sat silent, and no motion was made. McKamie said unless another special meeting was called and a motion was made to deny before the 15-day deadline, the second phase preliminary plat would be approved and the developers would be able to move forward toward final plat approval.