— The recent city-proposed zoning changes, particularly within the historic neighborhoods, has generated intense interest as verified by the turnout at the last Planning and Zoning Commission meeting.

The “SmartCode” is a nickname for a new type of zoning, known as Form-based coding that focuses on building appearance or form rather than use of the building. In form-based coding, consistency of external appearance is the primary goal. What the building is used for is a secondary concern. The purpose of this concept of the SmartCode is to stimulate development of decaying or underdeveloped urban or downtown areas. This is done to encourage areas to have a mixture of commercial and residential buildings together. This is supposed to keep the downtown from becoming a “ghost town” at night and brings us full circle to a time when downtowns were actually neighborhoods where people would want to walk. Examples of this would be condominiums in a downtown area next to fashionable restaurants and shops, all having the same external look with lots of people on sidewalks instead of cars.

The incentives for developers are consistency of look and less restrictions on other things such as parking and building use. Form-based coding is a tool for urban re-development. However, it is often not appropriate for established residential neighborhoods. For one, most residential areas are not abandoned at night and are already vibrant communities. Second, people purchase homes in residential areas because they don’t want to live next to a restaurant, a bar that’s open until 2 a.m., or a bank with lots of traffic on Saturday mornings.

Many San Marcos residents have stated they don’t want mixed use (or they would have brought a home next to a business), and they would rather move away than live next to a dumpster behind a restaurant. So, in fact, form-based coding can cause residential property values to go down as people choose to leave. In order to recoup their investments, owners then sell their property for commercial use and move to a more remote suburb.

In order for form-based coding to work (at least in theory), someone has to be in charge of controlling building appearance or form. In the SmartCode, this task is done by the Development Review Committee or DRC (Section 1.4.3). The DRC will be appointed, not elected, and will operate under it’s own rules and regulations. If the DRC determines that a project has the proper appearance, the permit is then processed administratively, that is without public hearing or even notice to the adjacent property owners (Section 1.4.4). In short, property owners lose their right to notice and the right to challenge by public hearing before a zoning commission, any inappropriate change in building use or design.

Without a need for public forum or input, the DRC functions with excessive power. It is a fundamental part of the SmartCode and ultimately, is the decision-making authority of the Code. The Code reads “The provisions of this Code, when in conflict, shall take precedence over those of other codes, ordinances, regulations and standards (Section 1.2.2). This effectively strips much of the power from the already established neighborhood organizations, and City Commissions, such as our Planning and Zoning Commission and the Historic Preservation Commission. Even more disturbing is that the DRC can over ride even the standards of appearance within it’s own SmartCode. The DRC, in private, may decide that although a project does not meet the appearance standards, approval can be justified because the builder has the “proper intentions”. In this case, the DRC may authorize a Warrant to allow a project, again without public notice or public hearing (Section 1.5.2). Other avenues of public forum are also shut down by the DRC. Although the owner of a property may appeal a decision of the DRC to the Board of Zoning Adjustment and from there to District Court, the voices of  the surrounding property owners and neighborhood organizations are in essence, silenced.

The recent decision of our Planning and Zoning Commission to postpone the inclusion of the SmartCode to the Historic neighborhood, although a step in the right direction, simply is not adequate. A delay of one month is not enough time considering the complexities of this form based Code, for the community to be given sufficient disclosure or to have their concerns and recommendations addressed. The DRC alone is a huge factor to consider in passing this SmartCode.

Any time the voice of the people is being controlled would seem to step on our Constitutional First Amendment rights.

The city may not want to hear or be bothered by those in disagreement, but as our city elections approach, they would best be served to listen to the people.



Thea Dake is a resident of San Marcos.