Imagine downtown San Antonio with no sidewalk cafés, not even on the Riverwalk. Imagine it with no awnings to shade the sidewalks, no overhanging balconies, and no sidewalk planters. If the anti-streetcar charter amendment were adopted as it is now written, we would probably lose those amenities and more. Not only that, but the amendment would not stop streetcars. The amendment threatens a streetcar version of a train wreck. Even those opposing streetcars, as I do, should welcome a proposal to rewrite the amendment before it is submitted to voters.
Here is a condensed version of the present wording:
No streetcar, . . . easement or other transaction . . . granting the right to use any street . . . or other real property of the city, either along, across, over or under the same, shall ever be valid unless expressly approved . . . in a plebiscite . . . .
Streets are not just the paved area between the curbs. Sidewalks are part of the street right-of-way, so sidewalk uses are street uses. That’s how the amendment reaches sidewalk cafés, awnings, balconies, and sidewalk planters. Although the Riverwalk is not a street, it’s city property, and the area used by most sidewalk cafés on the Riverwalk is leased from the city. Thus, the amendment will reach them, too.
The amendment requires plebiscites, citizen votes, to determine the propriety of each amenity. But citywide plebiscites would be hugely expensive. Except in extraordinary cases, they would not happen, because the cost would be disproportionate to the benefit to the café or building owner. So the amenities would be unlawful.
Beyond downtown, the amendment would prohibit many common and appropriate uses of city property. If crossing city property is the most efficient route for a new water, sewer, or electric line, the utility will have to balance the cost and delay of a plebiscite against the cost of rerouting. Either way, ratepayers would pick up the added cost. Petroleum and other pipelines passing through the city routinely cross streets. They sometimes cross other city property. Must they conduct plebiscites? If prospective users of city property pay a fair price as the law requires, why should a plebiscite be necessary? If the city held quarterly plebiscites, what do you suppose the turn out would be? Might those who oppose everything determine the outcome?
Government by plebiscite is an attempt at direct democracy such as existed in ancient Athens. But those eligible to vote in ancient Athens were probably fewer than 50,000. What may have been workable there is not workable in a city the size of San Antonio. Plebiscites must be rare and limited in scope to be workable.
The above problems aside, some may believe the amendment would nevertheless stop streetcars. It won’t. State law permits VIA to use the public streets whether the city likes it or not. So no matter what the city charter says, state law will prevail. The city, which itself exists under state law, cannot change state law.
The amendment drafters seem to have assumed the city owns the streets. It does not. Streets typically exist by easement, and the street easement is owned by the State of Texas. That’s one reason why the state can specify permissible street uses over a city’s objection. Cities manage the streets within their corporate limits in trust for the public and for the state.
Despite VIA’s right to use the streets, a charter amendment could control city action, such as placing conditions on the city’s ability to spend money on a streetcar project. The proposed amendment doesn’t do that. City Council has withdrawn the contribution that was proposed, but council could resurrect the contribution when the political furor dies. Thus, the amendment fails to control a significant thing it could have controlled.
The proposed amendment disregards common uses of city property and the public streets. It would work immense mischief while not accomplishing its intended purpose. I share the distrust of government from which the amendment arises, but the amendment hurts rather than helps. No matter your position on streetcars, you should welcome an attempt to rewrite the amendment to make it effectively control that which the city charter can legitimately control while not wreaking unintended harm.
This may seem self-serving, but if you want to understand more about streets, you might take a look at my handbook.