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Summary of the work of the Comprehensive Plan Subcommittee of the Korr County Guadalupe
River Corridor Committee
lar. Tom Wells, Professor of Exercise Science, Schreiner College
Ms. Kathleen S. Walker, Director of Academic Support, Schreiner College
Purpose - to consider impact of the Kerrville Comprehensive plan and ordinances being enacted
to implement the Plan ou the river and riverfront property
Research during the months of September and October 1996 included (I) conversations with
officials of the City of Kerrville, realtors, and city councilmen, (2) reviews of maps and
documents indicating (a) Zoning changes proposed by the Comprehensive Plan and (b) changes
in designations of flaodway and floodplain mandated by FEMA and (3) visual surveys of
properties along the riverfront.
Major points of information gathered:
• The Comprehensive Plan is intended to include zoning principles developed by first
analyzing the land, roads, and current uses. 'This information will bo used to develop a
"neighborhood" based on homogeneity. Proposed land uses are then developed using that
neighborhood determination. Key rxommendations relating to the river:
• City-wide zoning principles are intended to address the river corridor by calling for
(1) elimination of incompatible uses, (2) control of pollution and erosion, (3)
development of standards for appearance, and (4) identification and protection of
flood plain and floodway.
• Recommended are suggestions that development on the south side of the river be
residential and/or recreational; the fooling is that strip wmmcrcial development
along the north side of the river has had a negative impact on the river corridor, so
that kind of development should be avoided on the south side,
• Memorial Blvd. should bo retuned to be compatible with ...the river.
• A park trail system should be considered to connect the State Park to Louise Hays
Park along the river.
• A key proposed subdivision principle relating to the river
• a proposal to require each developer to control the storm-runoff that is
greater than the property produced in its condition prior to development;
• The City's i~and Use Strategy includes the following paraphrased elements relating
to the river;
• the total plan will focus on revisions to the city's land development
ordinances as pertains to zoning, subdivisions, and site and building plans;
• policies used in preparation of ordinances shall provide for a safe and
healthy environment;
• since the headwaters of the Guadalupe River and the surrounding hills are a
primary reason for the desirability of this community as a place in which to
live and work, the water quality of the river shall be improved and
maintained in accordance with high standards;
• the city will ensure quality development along ridgelines and hill tops that
prevents hillside erosion and ensures aesthetic qualities;
• land uses, site planning and building appearance standards within the
Guadalupe River Corridor shall be established and maintained to protect and
enhance (l) the water quality of the Guadalupe River and {2) the appearance
of this area of the community;
• The Clty'a Land Uie Objectives contain the following paraphrased principle relating
w t1u river:
• develop standards for impervious coverage limits, erosion control, and
appearance for the building and site development process that preserves and
improves the water quality of the Guadalupe River.
• The city's Vision Statement includes several references to the importance of the river
• The city is committed to ...blending economic progress with the preservation,
protection, and enhancement of ...the aesthetic value and water quality of the
headwaters of the Quadalupe River;
• It shall be IGerrvilie's commitment to preserve and enhance those resources,
particularly as it pertains to the water quality of, the aesthetic value of, a»d access to
the Guadalupe River.
Current iuues area areas of concern for members of the Guadalupe River Corridor Committee:
~_ _ ;
• Today, five years after a protracted struggle to prevent further degradation to riverfront
property clearly illustrated Kerrvitle's need for a Comprehensive Plan and ordinances to
prevent such degradation. Kerrville still does not have a means by which property owners
and the community at large can bo protected from incremental destruction of this
community's primary resource, the Guadalupe River and its environs.
• The need for such a plan remains critical, especially in light of (1) most recent conswction
on or Hoar riverfront property that could not be prevented under current subdivision
ordinances and (2) the vast acres of riverfront property that have been placed on the market
in recent months.
• Unless they actively seek current and future zoning information and floodplain boundaries,
some persona who intend to purchase riverfront property wil i not be aware of (1) the plans to
adjust zoning along the riverfront or (2) the recent changes to the F$MA floodway and
floodplain boundaries; therefore, when they, as new owners, apply for building permits, they
may be unhappily informed of an Imminent zoning change or a FEMA boundary that negates
for them the value of that piece of ptoperiy.
• Proposed subdivision ordinances and permitted uses remain exceedingly liberal and allow
for unacceptable permitted uus along the riverfront and withing the floodway
Currant status of various elements of the river protection issue:
• The first part of implementing the proposed Comprehensive Plan is the subdivision
ordinances; those have been developed and currontly await legal review prior to public
hearings which were expected to be itt October, then in November, and may even now be
delayed until after the first of the year.
• Tho review is a complicated process that involves such details as eliminating
~ ~ redundancies in the zoning ordinances and the Gomprehensivc Plan, assuring the
+~~~~ final product isuser-friendly, that it adheres in substance and in spirit to the
C document as approved by Planning and Zoning Commission, and that it is in proper
city coda format.
	• The city attorney's work load is such that the work on the Comprehensive Plan alld
	the subdivision ordinances, while a high. priority, often takes a back seat to the daily
	responsibilities of a very busy office despite Council's approval of firing a private
	attomcy to handle municipal court responsibilities
	• The floodway and 1loodplain boundaries finalized by FEMA wi[1 also need to be
_ ,~y,,
'_	incorporatul in the city's subdivision ordinances relating to the river, requiring even
~f	more effort in an already slow and tedious process.
	• The Tcxas Municipal League agrees that Kerrville is attempting a complicated and
~ ~	unusual process of gridding, zoning, and determining comparable uses; if it is
~	successful, Kerrvilla's Comprehensive Plan and its accompanying ordinances will
~~	serve as a model.
C	• No plan of this complexity can be undertaken without a groat deal of thought and
	attention to detail; oven when it is complete, it will require constant interpretation
	and revisio».
	• Commitment to the new Comprehensive Plan and the ordinances is a given;
	however, its credibility in the community is directly connected to the processes and
	to the carp and the attention W detail used in its development.
	Conclusion and rccommondation:
The Guadalupe River Corridor Committee of Kerr County is at work determining which issues
relating to the rivcr arc critical to its preservation, inquiring as to progress on eliminating
activities which are detrimental to the river and thus to Kerr County, and educating caring
citizens as to ways they can assist in efforts to preserve Kerr County's environmental health by ,
protecting the Guadalupe River. ,The proposed Comprehensive Plan and its subdivision
ordinances arc an integral part of such preservation. However, immediate action is rcquircd if
the City of Kerrville and Kerr County are to prevent further visual and chemical dcstructio~~ of
the riverfrant. The members of the Guadalupe River Corridor Committee .~~~
-~apesty to meet with city and county officials on a regulaz basis in order to establish a meads ~ -
for assisting in bringing the proposed subdivision ordinances before City Council pursuant to
their final approval.
i4
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Guadalupe River Corridor Committee
Sub committee on riverfront property owners
A round table discussion is planned for February 25th with riverfront property
owners, realtors and committee members to discuss the situation regarding care
for property along the river, river flooding, drought problems and management
practices they have found helpful.
The attached papers will be used as a springboard for discussion.
~-
What rights do private property
owners have?
Private property is a social and legal
institution set forth in common law and
property codes that assign control of
resources including land, buildings and
personal items.
Private property laws provide owners
with the following rights: to possess, to
enjoy, to exclude nonowners, to sell, to
transfer, to will to heirs, and to receive
profits and/or rents for any legal use of
property. This allows owners to benefit
from wise resource use.
Property rights limit interference from
government and individuals regarding
an owner's use of his or her resources.
Since there ane'many private property
owners, each possessing the same rights,
the rights of an individual property owner
end where the rights of others begin.
Why does the public have some rights
over private property, and whit are
they?
Since the beginning of U.S. history, most
property originally owned and controlled
by the federal government has been
transferred to individuals or groups.
However, certain sovereign rights were
reserved for the public. Private property
rights are restricted by these public rights.
Hence, legal title to real property does
not grant the owner absolute power
over the property. The property owner
must recognize the rights held by the
public.
Public rights, exercised by government,
include four categories:
• Police power - the right to regulate
private property use for protecting the
public interest.
• Eminent domain -the right to take
private property for the public interest
upon payment of just compensation.
•Taxation -the right to tax private
property to support public needs
according to constitutional and statutory
law.
• Escheat -the right of the state to acquire
title to private property if a property
owner dies without a will and heirs.
These public rights both protect and
limit the property rights of private
owners.
When government enforces an
environmenta! regulation, which of
these rights is it using?
The controversy about environmental
regulations may be alternatively
characterized either as government's
exercise of its police power or its power
of eminent domain.
Proponents of environmental regulation
view these actions as applications of
police power designed to prevent uses
of resources that are harmful to public
interests. Proponents of this view believe
that regulations are rational measures,
much like zoning, protecting society
from harm. From this perspective, it is
believed, environmental regulations
simply prohibit those activities that have
been judged to be injurious to the public.
Property rights proponents view
regulations as governmental confiscation
of their property. Because an owner's
use of resources may be limited or even
lost due to a regulation, proponents of
this view believe that property has been
taken even though title to the property
may not have been transferred. This
taking, it is believed, is an exercise of
the power of eminent domain and
owners should be compensated for any
resulting declines in the value of their
property.
Which view is correct?
Each of the points of view concerning
government action in environmental
regulations has a basis in the law.
Moreover, each has ample precedent
in previous court rulings.
Eminent domain cases are common and
frequent. Condemnation and taking of
The Agriculture Program, The Texas A&M University System
private property, with compensation,
for such public projects as building roads,
highways, reservoirs, transmission
lines and others occur daily throughout
the country. In the event that the
property owner and govemment cannot
agree upon the amount of
compensation, the matter is settled
through condemnation hearings or the
court.
In cases of government regulatory
actions, the courts traditionally have
held that all or substantially all of the
value or use of real property must be
destroyed before property owners are
entitled to compensation. In other words,
the taking must be complete before
compensation is awarded. In most cases
involving governmental regulations (that
merely reduced property values), the
courts have interpreted the actions as
being applications of police power.
In recent years, a few cases have
occurred in which the courts have
favored compensation to the property
owner even though only a part of the
property was taken either ph sically or
in terms of value. Presently, the law is
less than clear concerning the conditions
under which loss of use or value caused
by regulations should be considered a
taking of property.
Important questions are at stake for
society in this issue. For example, should
the public have the right through
regulation to destroy an individual's
property value without compensation,
thus loading the cost of the public goal
upon the owner of the affected
property Conversely, if every action by
government that diminishes property
values, however minimally and for
whatever reason, requires compensation,
then is not the public's right of police
power forfeited For example, should
private land owners be allowed to
irreversibly eliminate a species regarded
by the public to be a valuable resourced
Where do we draw the line to distinguish
police power from eminent domain
taking;' Generally applicable answers to
these questions are yet to be found.
What are my responsibilities as a
property owner?
Property ownership implies the
responsibility to comply with existing
property laws, including environmental
statutes. Owners should take steps to
find out about the laws governing
propert use. Even when an owner
doesn't know about a regulation, failure
to comply can be expensive.
While people must abide by the existing
law, they have the right to work
collectively to than a the law. Hence,
any citizen who feels that his or her
rights are being infringed, or is otherwise
unhappy with a law, may bring any legal
.power to bear toward changing that law.
A fundamental right and responsibility
of any citizen in a democracy is that of
participating in the political
process of making and changing laws.
Many people choose to express their
views to elected representatives in state
and federal legislatures with letters,
phone calls or other means of
communication. People also may
provide personal and financial support
for political organizations, join political
action groups and work with the
media.
Most important of all is making the effort
to understand both rights and
responsibilities of property ownership.
Dr. Lonnie L. Jones
Professor, Agricultural Economics
409-845-2336
Iljones~tamu.edu
Dr. Chuck Gilliland
Associate Research Economist
Real Estate Research Center
409-845-2080
c-gilliland~tamu.edu
rr
he practice of conservation must
spring from a conviction of what is
ethically and aesthetically right, as well
as what is economically expedient. A
thing is right only when it tends to
preserve the integrity, stability, and
beauty of the community, and the
community includes the soil, waters,
fauna, and flora, as well as people." -
Aldo Leopold (1947)
Most Texas landowners take great pride
in the land they own. They recognize
that their tenure on a particular piece
of property will be relatively short, and
they strive to leave their land in better
condition than when they acquired it.
As Texas becomes more urbanized,
fewer people have a direct tie to the
land. However, as consumers and users
of our natural resources, these urban
Texans have a keen interest in how these
resources are managed. Landowners
and consumers alike should appreciate
the ecological principles that promote
good stewardship.
What is stewardship?
Stewardship is often interpreted as
"leaving the land in better condition for
future generations." Perhaps no one was
more eloquent in describing the abstract
concepts of stewardship and
conservation ethics than Aldo Leopold,
the "father" of wildlife management.
Leopold, like many Texas landowners,
survived the drought of the 1930s and
witnessed firsthand the consequences
of unwise natural resource management
The concept of stewardship has been
around since biblical times. While open
to individual interpretation, most
landowners recognize that stewardship
applies to all of our natural resources,
including soil, water, plants, wildlife and
domestic livestock.
Natural resource conservation
traditionally has focused on those species
and situations which had measurable
economic value, such as game
management. More recently, however,
a greater appreciation of such concepts
as biodiversity and
"nonconsumptive uses" (such as nature
study) have heightened attention to the
need for stewardship.
How does one recognize "good" Hersus
"bad"stewardship?
Obviously this difference is a relative
one, depending on one's perspective.
Land conditions like severe erosion,
chronic overgrazing, pronounced
browse lines and similar features suggest
overuse. "Good" stewardship might be
characterized by stable soil conditions,
clear streams, and diverse plant
communities.
Motives for Stewardship
The primary motive for being a good
steward is usually rooted in a landowners
love and respect for the land and its
natural resources more than it is
promulgated by law. However, certain
laws, such as the Endangered Species
Act, do mandate what land management
mayor may not be done. The intent of
these laws is to maintain biological
diversity on a particular site.
Other environmental policies regarding
such things as clean air and water are
usually directed at industry more than
private landowners. However, "nonpoint
source pollution" (waste runoff from
dairies and soil erosion, for example) is
coming under closer scrutiny.
Texans also have an economic incentive
to practice good land stewardship. Well-
managed properties that provide good
wildlife habitat tend to have greater net
economic worth than estates with less
wildlife diversity. Land management
decisions such as brush control can be
planned to maintain or enhance wildlife
habitat. In areas such as the Edwards
Plateau, recreational value is the
economic force buoying real estate
value. As one rural land appraiser notes
"pretty outsells production every time."
"Pretty" in this instance means attention
The Agriculture Program, The Texas A&M University System
to the property's aesthetic appeal, which
is usually a function of the landscape
and its attendant wildlife.
Aspects of Stewardship
Soil -Soil conservation is the basic
foundation of good stewardship.
Conservation practices like terracing,
minimum tillage, and filter strips have
become the norm for farmers. Ranchers
can incorporate good grazing
management and other practices to
minimize soil erosion.
Water -Water conservation is a major
issue in Texas as both urban and rural
uses intensify competition for this
precious natural resource. Both the
quantity and quality of water from
private lands are assuming greafer
importance. Water conservation
begins with a good cover of vegetation
that slows runoff and filters nonpoint
source pollutants before they can enter
streams, rivers and recharge zones.
Riparian areas, the plant communities
associated with streams and rivers, are
extremely important wildlife habitats in
most areas and should be mans ed
wisely to maintain the integrity of these
important habitats.
Plants - A native range site may contain
more than 100 species of plants; some
are important for livestock grazing, some
are important for wildlife habitat, and
others are important for protecting the
soil. Generally speaking, however, the
greater the diversity of plants, the more
kinds of animals the range can
accommodate.
"Range condition" is a measure of the
diversity of plants found on a particular
site at the present time, compared to
the diversity that would be present in a
pristine condition. Range management
practices such as controlled grazing,
prescribed burns and brush management
can be used to improve range condition.
Animals -Stewardship relative to animals
involves not only good animal husbandry
but also an understanding of the
relationships between plants and
animals. Land management has a direct
effect on the kinds and numbers of
wildlife that reside on a particular tract
of land. Some animals -most threatened
or endangered species -have very
narrow habitat tolerances while others
- deer, quail - - tolerate a variety of
habitat conditions.
Where Can l Cef More /nformationi!
State and federal agencies such as the
Texas Agricultural Extension Service,
U.S. Department of Agriculture-Natural
Resources Conservation Service, and
Texas Parks and Wildlife Department
provide free technical assistance and
educational materials on various aspects
of land stewardship. Often cost-sharing
is available for applying various
conservation practices, developing or
preserving wetlands or other special
habitats, and for developing
"conservation easements."
Nonprofit organizations such as the
Society for Range Management, The
Wildlife Society and The Nature
Conservancy are clearinghouses for
information pertaining to stewardship.
Dr. Dale Rollins
Associate Professor and Extension
Wildlife Specialist
Texas Agricultural Extension Service
San Angelo
915-653-4576
Dr. Doug Slack
Professor
Department of Wildlife and Fisheries
Sciences
409-845-5 777
Government policies cause property
values to change. When policy enhances
property values (sometimes called a
giving), owners benefit. If property values
decrease, landowners' entitlement to
compensation depends on the type of
action involved and the severity of the
devaluation. Condemnation and
regulation represent the two types of
government actions in question.
When the government needs private
property to further a public purpose,
the land may be taken through a legal
procedure known as condemnation.
The process insures the landowner due
process-the right to be heard and
present a claim. It also insures that due
compensation will be paid for the
property.
These rights are guaranteed by both the
federal and state constitutions. The Fifth
Amendment to the U.S. Constitution
pprovides, "...nor shall private property
be taken for public use, without just
compensation "Article 1, Section 17 of
the Texas Constitution states, "No
person's property shall be taken ...for
...public use without adequate
compensation."
Governmental regulations may also
impact property values. As long as the
regulation springs from the government's
police power to promote public health,
safety, morals or welfare, it will be
upheld. Zoning is a prime example of
a legitimate regulation on the local level.
The Endangered Species Act is an
example on the federal level.
Condemnation and regulation parallel
and contrast each other. Both require
an enhancement of a public purpose or
the promotion of a public good. Both
involve, directly or indirectly, some type
of land use.
However, with condemnation, the
landowner is deprived of ownership.
Title to the land is taken by the
condemnor. With a regulation, the
landowner is deprived of one or more
uses. The landowner retains title to the
land, however.
With condemnation, the landowner is
assured of due process and due
compensation. With a regulation, a
public hearing ma be held but only in
rare instances will the landowner receive
compensation. These rare instances are
known as regulatory takings or inverse
condemnation. The U.S. Supreme Court
has struggled to determine when a
regulatory taking occurs.
The court recognized regulatory takings
more than 73 years ago. Justice Holmes
explained in Pennsylvania Coal Co. v.
Mahon that "while property may be
regulated to a certain extent, if
regulation goes too far, it will be
recognized as a taking" Justice Holmes
also observed that regulations are
necessary in the modern world.
Government could not operate if it had
to pay for every incidental diminution
in property value caused by its
actions.
In 1987, guidelines were expressed in
three cases. In the first case, the court
held a regulation that abates a public
nuisance (an illegal or injurious use) is
not compensable. In the second, a
temporary loss of the use of land (a
temporary taking) is compensable. And
finally, gland-use restriction does not
effect a taking if it substantial)y advances
legitimate state interests and does not
deny an owner economically viable use
of land.
In 1992, some of the strongest guidelines
addressing compensation were
announced in Lucas v. South Carolina
Coastal Council. Lucas, a real estate
developer, purchased two unimproved
lots along the coast to build two houses.
Before construction, the state passed a
law barring permanent structures on the
sites. Lucas sued, alleging a regulatory
taking. The South Carolina Supreme
Court denied compensation because,
in its opinion, the regulation prevented
a serious public harm-in other words,
The Agriculture Program, The Texas A&M University System
abated a public nuisance.
The U.S. Supreme Court disagreed. A
regulation that causes a physical invasion
or prohibits all economically beneficial
use of property is compensabie
regardless of the public interest being
advanced. No compensation is due,
though, if the landowner was never
entitled to use the land in the manner
restricted by the regulation.
Based on the Lucas decision, landowners
are not entitled to compensation from
governmental regulation, unless and
until it deprives them of "all economically
beneficial use of the property "This is
the current judicial definition of a
regulatory taking. A total loss requires
compensation; a 95 percent loss
generates nothing.
In 1994, the U.S. Supreme Court ruled
on the issue. In Dolan v. City of Tigard,
the court held that a taking occurs
when: (1) no essential connection exists
between the state interest being
promoted and the land use being
imposed on the landowner, and (2) no
reasons justify the specific type of
exaction being placed on the landowner.
Finally, the court placed the burden of
justifying the land-use restriction on the
government.
In 1995, the U.S. Supreme Court again
ruled. In Sweet Home Chapter of
Communities for a Great Oregon v.
Babbitt, the court held that the
protection afforded endangered and
threatened species under the
Endangered Species Act included the
species' habitat, even if the habitat is on
private property.
To offset the judicial definition, state and
federal legislation has been proposed.
On the state level, Senate Bill
14, effective Sept. 1, 1995, was passed
by the 74th Texas Legislators.
Landowners experiencing at least a 25
percent reduction in market value may
sue the $overnmental entity issuing
the regulation. All governmental
immunity is waived in such instances
by the act, better known as "Private Real
Property Rights Preservation Act." It is
located in Chapter 27 of the Texas
Government Code.
Other parts of the bill provide:
Lawsuits must be filed within 180 days
after the landowner knew or should
have known of the effect of the
regulation on land use. This issue of
whether a taking occurs is a question
of fact for the jury, not a question of
law for the judge.
A prevailing landowner may recover
reasonable and necessary attorney's fees
and court costs. The governmental entity
losing a lawsuit has 30 days to
ppay the judgment or the regulation will
be rescinded. Landowners shall be
compensated from funds appropriated
to the agency. The prevailing landowner
may not execute against property of the
state or a governmental entity. After
Sept. 1, 1996, public notices must be
posted at least 30 days in advance of
any proposed regulation affecting
property values. On the federal level,
measures have been introduced that
entitle landowners to compensation for
partial reductions in property values.
The measures are limited to takings to
protect wetlands, endangered species
and federal water rights.
)udon Fambrough
The Real Estate Center
409-845-2007
Item 2. 16 Hear^ r^eport fr^om the G~_-adal~_-pe River^ Cor^r^idor^
Committee and consider setting date for the Kerr Co-.-nty
leadership workshop on water^ iss~_-es. (Cv~_-nty Judge)
A report from Donald Henderson, F'E of the Guadal~_-pe
River Corridor Committee. The Committee was formed by the
Commissioners' Co~_-rt for the p~mpase of providing the Co~_-rt
with data on the water^ iss~_~es of Ker^r^ Ca~_-nty. The committee
has three s~_-bcommittees working on the ar^eas of water supply,
management and control as well as discussing with the city the
plans and or^dinances that deal with the river. The subcommitte
is tr^ying tv find a~_-t who is in char^ge of the water^ r^esa~_-r^ces
that ar^e located in the co~_-nty. They found out that no one is
in total charge. The J~_-dge added that the County has little
a~_-thority on the water^ in the Co~_-nty. The dates for a ~'.err^
Co~_-nty leadership workshop on the water iss~_-es, they want to
have a ro~_-nd table discussion on Febr~_-ary :.5, 1997 with
proper^ty owners, business people, Realtor^s, camps on the car^e
of their property along the river^. Then in March of 1997, they
would like the Court to call for a meeting to be a County
meeting with the vario~_-s par^ties in the County, the City,
UGRA, with the Co~_~nt, to be the key player^ in {'.err Cv~_inty
leadership meeting. The Judge added that the committee is
getting accomplish the goals that he had in mind for the
committee. The main goal is to get the p~_-blic attention on the
water^ 15su@.
6,1 `~~ `j~'~rt
Item 2.lprt from theidor Committee
Hear Rer River Corr
Guadalupe attin9 date for
and y0nsidor s~ Leadership
the Kerr County i,sue .
on Water C s
workshop
November 25' 1gg6
Vol. U pq 82~
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