Contractor gets green light from Council to continue work on apartments
(Posted: 11 a.m. July 28, 2010)
Construction crews at San Gabriel Crossing, 155 Hillcrest Lane. (RFLH Photo)
The construction contractor for the San Gabriel Crossing apartment complex got the green light Wednesday from the Liberty Hill City Council to continue its work at 155 Hillcrest Lane without paying any additional permitting fees.
City Building Inspector Pete McKinney issued a Stop Work Order on July 21 informing the contractor that construction could not continue until building and site plans were resubmitted and approved and applicable fees were paid. If city ordinances were followed as adopted, he estimated those fees could have topped $84,000.
The San Gabriel Crossing complex, a $9 million project, will serve low to moderate income residents. The site will include both one-story and two-story buildings with furnished apartments, a swimming pool and cabana, playground, fitness room and a community resource center.
After a lengthy discussion Wednesday morning with McKinney, City Planner Mel Yantis, project developers Nash Builders, Ltd. and Texas Housing Foundation, Inc., the Council voted 4-1 to suspend McKinney's Stop Work Order and waive all fees that might have been owed to the City. Council member Wendell McLeod cast the no vote.
"I don't think they ought to get away with it," said McLeod after the meeting. He told Radio Free Liberty Hill that he was "tired of giving stuff away" and believed the company should at minimum have been required to pay the $750 fee to review plans that the contractor said had changed since they were first submitted in 2008.
However, when Councilman Jack Harkrider made a motion that would have required the $750 fee, his motion died for lack of a second. McLeod said later that he agreed with the motion and should have offered a second, even though it would not have earned enough votes to pass. Mayor Michele "Mike" Murphy, who cannot vote except in the case of a tie, said she would have supported the fee requirement.
The process followed by the City and the developers to construct a 76-unit apartment complex has come under scrutiny in recent weeks after the Council was informed by McKinney that he was directed to waive $42,000 in fees that should have been paid when revised site plans were submitted in 2009. At the request of the Mayor, McKinney compiled documents backing his claim that developers had not complied with city ordinances that define various requirements and the associated fees, as well as a timetable for meeting those. While the City Council has the authority to waive fees, documents showed the company had missed deadlines and revised site plans had not been approved. (Read the Story
Contractors on Wednesday levied the blame on city staff and third-party companies hired by the City to review plans. Contractors maintained that they had done their part, paid their fees and shouldn't be penalized for any confusion or miscommunication that occurred at City Hall.
"We came to Liberty Hill, we paid for our building permit, and in our mind we did start building within six months," said Steve Nash of Nash Builders, Ltd. "We submitted everything, asked for our permit and got it. We were given the permit, then much later this comes up. The problems Council has in communicating with third party reviewers -- we can't do anything about that. I don't think we should be penalized."
Yantis, who works part-time for the City, agreed there had been some confusion at City Hall that he attributed primarily to changes in personnel that resulted in some confusion over assignment of duties.
He said in this case, he didn't agree with McKinney's strict interpretation of the Unified Development Code, a document "brought in from other areas." He said the Code was intended to edited and developed to fit Liberty Hill's needs over time. Because the San Gabriel Crossing project was subsidized by public funds, the developer wasn't able to follow the City's requirements in the sequence defined by the UDC, he said.
"My recollection of Council action was that this development was to move forward for an indefinite period of time, so renewing a conditional use permit after 12 months wasn't critical," Yantis said.
However, Yantis said he did agree with McKinney that new site plans should be submitted if things have changed. Generally, he said the City was looking to see if the contractor had added impervious cover, whether the setbacks were violated, or whether a drainage plan was modified. He recommended the Council require the developer to pay the $750 plan review fee for the revised submission.
Contractors said the changes that are occurring are happening on site as they adjust the location of apartment buildings to protect trees or deal with water lines. They described the adjustments as "minor," and said the addition of a playground that was requested by Council in 2008 was reflected in the first revision to the site plan that was submitted in September 2008.
McKinney said no action was ever taken on those plans, but they expired in September 2009. He said the developer should have been required to submit new plans and pay the complete resubmission fee ($42,000). But instead, he was instructed to issue the building permit in December 2009 without assessing additional fees. McKinney said according to ordinance, the building permit expired 180 days later because construction did not begin. Although the contractor said crews began surveying and doing dirt work in April, McKinney said that according to International Building Code that was adopted by the City, construction is defined as the beginnings of a permanent structure. Therefore, he said the permit expired again on June 8, requiring an additional $42,000 resubmission fee.
McKinney said he issued the Stop Work Order last week because of the outstanding fees and the ordinance compliance issues. But Yantis responded in an email to City Council members and the City's Attorney that his recommendation would be to suspend that Order until Wednesday's scheduled special meeting of the Council. Developers said they understood Yantis' email as undoing McKinney's Order because their previous dealings with Yantis were in his role as City Administrator. (Read the Story
Harkrider said his primary concern was that the City should be following the procedures it put in place because he thought making exceptions exposed the City to possible legal action.
"I think we have an obligation to go by the UDC. So, I would ask that part of the consensus be that if we don't require them to pay the additional fees that we make it clear that this was an exception so as not to set a precedent. We expect others to follow the UDC," Harkrider said.
"I think this is part of the growing pains of Liberty Hill until we become more efficient and organized," said Mayor Murphy. "Unfortunately, you (the project contractors) are the test case and we have to establish these things now."
"I think there has been a lot of miscommunication that was not intentional, and a lot of information put out there that was not accurate," said Mark Mayfield, chief executive officer of Texas Housing Foundation. "I appreciate the tenacity of the Council to deal with this. You will be proud of it (the apartment complex) when it's all said and done and we have a track record to back that up."
While Council members pointed out that his concerns did not impact the issue before the Council, McLeod said issues still remain regarding the development's water plan. McLeod, who also serves as General Manager of the Liberty Hill Water Supply Corp. and serves on its Board of Directors, said the City's engineering contractor rejected the original plan submitted by developers, but Nash said the plan had been modified and had since been approved. He read an email from his engineer, which he said confirmed Stegar Bizzell's approval, and added that he would pay the required $48,000 water tap fee that day.
McKinney brought the issue of the San Gabriel Crossing permit fees forward in response to a request by Mayor Pro Tem Charles Canady in May that he produce a list of revenue he had brought into the City compared to his salary and expenses. When the expenditures were higher than the revenue, McKinney noted that revenue would have been higher had he not been instructed to waive the fees. (Read the Story