Changing sections of Northwest Master Plan from smart code could spur lawsuit against City of El Paso

The City of El Paso could open itself to a lawsuit if it rezones sections of the Northwest Master Plan that are currently zoned smart code.

“It will probably cause a lawsuit and it would cost a lot,” said City Rep. Ann Morgan Lilly, who represents the area encompassed by the Northwest Master Plan.

Last week, City Council voted to identify smaller parcels of land within the plan – less than 100 acres – to sell to developers and potentially rezone.

The discussion came after Ray Adauto, the Executive Director of the El Paso Association of Home Builders told City Representatives developers were not buying land because of “the smart code overlays.”

City Rep. Emma Acosta also said developers had asked her why the City only sold land in larger parcels. She said smaller parcels would be more feasible for developers to purchase.

The 1,800 acre plan, zoned in 2011, is a result of dozens of community meetings, charettes, a $207,000 study and a legal agreement with a group of petitioners.

The petitioners, led by environmental activist Jim Tolbert, successfully petitioned the City to allow voters to decide if the 1,800 acres should be preserved for open space, instead of developed.

The petition stemmed from opposition to the construction by the Texas Department of Transportation’s new Transmountain highway.

“We were aware that there were other people who had other views about that so I was the one who suggested that we’d be glad to talk about it,” said Tolbert.

Concerned voters would pass the ballot initiative proposed by the petitioners, the City and Public Service Board negotiated an agreement with the group, said Matt McElroy, the City’s Director of Development.

The legal agreement stipulated 1,000 acres of the 1,800 acres be preserved for open space and transferred to the Franklin Mountains State Park, while the 800 acres set for development be zoned smart code. The agreement also requires the City to preserve the arroyos within the plan and protect the scenic views of the Franklin Mountains.

“That whole plan was based on the fact that we would not only preserve the land but we would develop it in a very intelligent way,” said Tolbert.

Smart code zoning requires more walkable neighborhoods, with more options for pedestrians and cyclists. It also generally includes some mixed use development, and is supposed to allow people to live, work and play within the same vicinity.

The City also invested in the compromise. It hired planning firm Dover, Kohl & Partners, a Miami-based design firm to mediate an agreement between the City, the PSB, the petitioners and developers. Dover’s study cost the City about $207,000 and the process took about six months, said McElroy.

“I would be completely opposed to any rezoning that would change the plan or smart growth in that area. The petitioners counted on us. They took our word, the City’s word and I feel that we need to honor that. I’m sorry this came up because I thought we had it settled,” said Lilly.

Lilly voted to identify the smaller sections of land for sale but said she only did it to allow the City to “look at it” but not rezone it.

Smart code is highly customizable, meaning the City can personalize the smaller parcels to be less dense or have more commercial properties and still keep the current zoning.

“It can be like Kern Place, where you have just a little bit of commercial or it can be like Oregon street where you have commercial and residential at a higher density all together,” explained McElroy.

Tolbert is concerned City Council’s decision to sell smaller parcels opens the door to the City breaking the agreement with petitioners.

“We believe it is a prelude to that. It appears that they don’t want to keep their end of the bargain,” Tolbert said.

City Manager Joyce Wilson said rezoning or removing smart code from the Northwest Master Plan wouldn’t be appropriate because of all the public vetting that went into planning the area.

When asked about Adauto’s comments regarding developers who don’t buy land because of smart code, she said “I don’t believe that’s the case at all.”

Wilson said a lagging economy has prevented the sale and purchase of land but developers are again showing interest.