(Photo credit: Snapshot of the June 9, 2020 DSTRF meeting. Pictured: Gar Treharne.)

06.08.2020

[NOTE]
This story is a continuation of the chain of events from our previous stories, “A Short History on SPI’s Form-Based Codes” and “You’re Not Going to Let Them Do That to Your City Are You?”

Introduction to House Bill 2439:
The two main themes of the 2019 legislative session were school finance and the war on cities. The Republican leadership of the state went to great lengths to curb any authority of local (predominately Democrat) large city mayors, city councils, and county judges. South Padre Island and many other small towns in Texas were caught in the crossfire when the legislature passed HB 2439, restricting local municipalities from regulating their City’s building materials used for construction. This law passed June 14, 2019 and went into effect on September 1, 2019.

March 4, 2020:
At the end of the City Council meeting on March 4, 2020, there was a motion to go into a CLOSED EXECUTIVE SESSION on, "Attorney consultation pursuant to Section 551.071(2), Texas Gov't Code, to receive legal advice regarding the relation between Sec. 3000 of the Texas Gov't Code and certain provisions of city ordinances as they relate to building products, materials, and design and related matters." Mayor McNulty announced that he and Councilman Joe Ricco were abstaining, and neither attended this executive session. "I'm abstaining. Ricco's abstaining."

After the 23-minute closed executive session, the City Council passed a motion to “Immediately cease enforcement of the prohibition of any building products and materials currently prohibited within the Form-based code. It's necessary in consideration of the requirements of the government Texas government code and instruct staff to prepare the proper ordinance amending FBC so that it does not conflict with state law.”

This law required retraining South Padre Island's staff and boards. City Attorney Ed Cyganiewicz presented to the City’s local boards, including the Board of Adjustments and Appeals, the Development and Standard Review Task Force, as well as City Council.

Board of Adjustments and Appeals - June 2, 2020:
Cyganiewicz introduced a briefing of (House Bill 2439) and how it will change South Padre Island's city codes.

House Bill 2439 took effect last year on September 1, 2019. The purpose explained by Cyganiewicz was to stop the spread of monopolies in construction. "There were concerns raised about eliminating builder choice and construction through overly restrictive municipal codes, and architecture zoning ordinances. That created monopolies and increased the cost of construction.” For example, the material could be too specific and sold only by one or two vendors, which restrains construction consumer choice.

House Bill 2439 prohibits any city from restricting the use of certain materials. "The City basically cannot limit directly or indirectly or prohibit the use of materials, products for building, or the aesthetic method... It doesn’t just apply to just construction, the language says: renovations, alterations, or maintenance," said Cyganiewicz. "There's going to be a lot of questions about what, but it's almost everything."

When asked if the Island would continue deferring to Windstorm (Texas Windstorm Insurance Association), Cyganiewicz said, “Yes.”

Cyganiewicz also agreed, "There's a number of coastal cities that require that, but that's one of the exceptions where if the windstorm requirements require a certain method or a certain material under this law. We'll go through a list of these exceptions. Ultimately none of them apply.”

While going over the exceptions to House Bill 2439, the Texas Windstorm Insurance Association (TWIA) was second on the list. After mentioning FBC, Cyganiewicz defended House Bill 2439 by stating, "It (FBC) really talks about how the city should look and how it should be planned for the future, the city (SPI) never designated that section as, 'This is architecturally important and architecturally significant' like a historical zone or a museum zone."

Cyganiewicz stated the general rule of the bill for the City of South Padre Island is the "FBC cannot be more stringent than the national model code." He also mentioned that he cares about how the City looks because he's a resident. "It's important to me the way our community looks."

The Board of Adjustments Board Chair Paul Fedigan stated that South Padre Island's FBC has done an excellent service to the Island regarding the storms weathered here versus other towns. "We have the strongest building codes on the planet, and when you go and look at any other city and they have a bunch of wooden homes ripped up…We're so strong here."

Cyganiewicz replied, "It may not affect us as much as other cities, but if somebody wants to put a different roof pitch, color, or different windows and sizes that are different or more stringent than the model code, they're going to be able to do that."

When Board Member Cain Mahan asked if TWIA looked at roof pitches specifically, Cyganiewicz said he was not sure. "They may. I have not really looked at all the windstorm, but I'm not sure about the actual pitch."

The Island still has a lot to learn about House Bill 2439 and what it means for a first-tier coastal community that is vulnerable to hurricanes.

Cyganiewicz mentioned that in the past two months, "We've lost our Planning Director (Aaron Hanley) and (Building Official) Mr. (David) Travis. Staff is doing the best they can and doing a great job regarding this issue and trying to accommodate people."

Paul Fedigan responded to the loss of the Planning Director and Building Inspector, "Man, the way the city's going, God Bless you, brother."

Click here to view the meeting video.

DSTRF - June 9, 2020
In the presentation to the DSRTF (that would go through a more significant change than the Board of Adjustments and Appeals), the members had many questions and comments. Discussion included the scope of their authority as a board for the future after House Bill 2439.

"The City is going to be in the process of going through their code and modifying what needs to be modified. This legislation is in effect now, and some people are saying it may go away or may not go away. It could be changed, but as of now, House Bill 2439 takes away some of the regulatory powers and authority of a municipality, and again we're not the only City facing this," said Cyganiewicz.

Board Member Gary Johnson simplified his understanding of the presentation by concluding that anyone can do anything they want. "The way I understand it, based the what I read and how I read it and how you described it, it's like anybody can do anything they want to do now."

Cyganiewicz concurred. "It's more wide-open than it had been… If it's in compliance with the model code, it should be allowed."

Board Chair Gar Treharne asked, "The entertainment district does not qualify under all those descriptions? Historical and all of that? In other words, they can do anything they want?"

"If they're in compliance with the model code, it should not be prohibited," said Cyganiewicz.

Since, according to myspi.org, the DSTRF is, "responsible for the review of site plans and exterior design of buildings and signs along Padre Boulevard, developing and enforcing a Form-Based Code and the beautification and revitalization of Padre Boulevard.” Board Member Gabriel Vanounou asked about art in public places. "On art in public places, is it regulated according to our ordinances?"

Cyganiewicz answered, "You cannot really control or enforce the aesthetic way it looks, if the model code allows it, not just the FBC, then I don’t think the city should be allowed to prohibit it."

Vanounou gave a shark example (if many competitors all wanted shark art outside their place of business) and stated the dangers of competition in public art that can take place if there is no regulation balance. "The reason these items come to us is because we try to make it to where there is some kind of a balance. A balance between the shop owners."

Treharne gave a merchant's argument concerning the Island's responsibility in protecting and making ourselves (the Island) unique to our competition, such as Galveston, Corpus Christ, and other coastal destinations. "The point that I was going to make is I was a merchant for 40 years. It's all I know. A merchant's responsibility to himself and his shareholders is to make himself different than the next guy he's in competition with.”

Board Member Gary Johnson agreed and responded, "I'm going to be blunt…I agree with both of you all (Treharne and Vanounou). I just don’t think this leaves a good impression. I've talked to people that come on this Island that see these kinds of things and say, 'It cheapens the look of the island.' That's not what we're trying to be for us (residents) and the tourist we're trying to attract."

Treharne commented after the presentation speaking for himself, saying, "I'm disappointed at the way this was ruled out. It caused a lot of rumors and conversation that wasn’t productive. I understand we don’t have a city planner. Aaron’s gone. (The position of city planner was eliminated, along with the entire planning department.) I want to be on record saying that I am really disappointed at the way this happened, and I wish it would have been different."

Johnson concurred with Treharne. "I was disappointed. I was very mad after I found out all of this. My time was wasted on a decision that was made five months before."

"You get to be my age, your time is your most valuable asset, and I wasted my time" said Treharne.

Click here to view the meeting video.

Island Matters went to Mayor McNulty for comment. His responses will appear in an upcoming issue of Island Matters

The 3 Choices
During the DSTRF meeting, Cyganiewicz mentioned the possibility of self-management citizens would take upon themselves voluntarily. “Maybe I'm more naïve than I should be, but hopefully, businesspeople and property owners will have a responsibility of making/wanting this community to look nice. You can’t always count on that.”

When Island Matters went to the Mayor for comment, he attached a link to a TML opinion from Scott Houston on HB 2439. In this link, carefully examined and given to the press, there were other options to be explored. See excerpt below.

7. Does a city have any option at all with regard to controlling building materials or construction methods?

That’s debatable, but the obvious method is by agreement. A city can enter into an agreement wherein a person voluntarily agrees to abide by certain standards. For commercial construction, the incentivizing tool would be a Local Government Code “Chapter 380 agreement.” For residential and commercial, it would be a “neighborhood empowerment zone” under Chapter 378 of the Local Government Code. Property and/or sales tax abatements could be other options.

In our previous story, “You’re Not Going to Let Them Do That to Your City Are You?” In the linked videos, you will see the Mayor treating his appointees and constituents less than courteously, but he had three difficult choices in front of him. He could lead; he could negotiate; or he could regress.

Leading would be the difficult choice. The Mayor and his client would have to take a small financial loss, but they would build to the highest aspirations of the Island. They would lead by example. They could build to the Form-based Codes, even though now the state law not did not require them to do so.

Negotiating could have been an effective choice. The Mayor could have offered to comply with the Form-based codes and asked for a small tax abatement to allow his client to stay financially whole. The City could win, and his client could win, however, the Mayor chose a different path.

When it came time to choose, the Mayor chose to regress. He chose to build with the lowest cost materials that state code would allow and ignore the long-term community vision for the Entertainment District.

It takes 20-40 years for Form-based Codes to change a neighborhood. New buildings must be built to code. Old buildings get torn down or renovated to code. It takes much less time for a neighborhood to degenerate.

Rather than leading or negotiating, the Mayor and his client chose to build to the cheapest standard that state law would allow. The frustration among the board members was palpable.