1 2 3 4 5 6 KERR COUNTY COMMISSIONERS COURT 7 Workshop 8 Monday, October 23, 2000 9 1:30 p.m. 10 Commissioners' Courtroom 11 Kerr County Courthouse 12 Kerrville, Texas 13 14 15 O.S.S.F. Rules and Regulations 16 17 18 19 20 21 22 23 PRESENT: FREDERICK L. HENNEKE, Kerr County Judge H. A. "BUSTER" BALDWIN, Commissioner Pct. 1 24 WILLIAM "BILL" WILLIAMS, Commissioner Pct. 2 JONATHAN LETZ, Commissioner Pct. 3 25 LARRY GRIFFIN, Commissioner Pct. 4 2 1 On Monday, October 23, 2000, a workshop of the Kerr 2 County Commissioners Court was held in the Commissioners' 3 Courtroom, Kerr County Courthouse, Kerrville, Texas, and the 4 following proceedings were had in open court: 5 P R O C E E D I N G S 6 JUDGE HENNEKE: It's 1:30 on Monday, 7 October 23rd. We'll call to order this workshop -- first of 8 all, I'd like to announce that Mr. Tucker is not going to be 9 here today. He's informed us that he is dealing with road 10 closings in Kerr County and his district and will be unable 11 to meet with us as we originally planned, so we will 12 reschedule that road construction and planning workshop for 13 another day when we can get everything lined up. The second 14 topic that was posted today was the workshop to go over and 15 discuss the proposed O.S.S.F. Rules and Regulations. 16 Commissioner Griffin? 17 COMMISSIONER GRIFFIN: Yes. Thank you, 18 Judge. And all of you should have -- should be in receipt 19 of a package that I handed out, I think, a week or so ago, 20 which is all of Chapter 285 of the Local Government Code, 21 which is -- Local Government Code? Am I right? Anyway, it 22 is the controlling document from which our -- or into which 23 T.N.R.C.C. has embodied all of the legislative direction and 24 rules that they have promulgated over the years and so on, 25 in regards to the on-site sewage facilities. 3 1 The -- the reason -- the reason that I 2 thought it was important to get copies of this into our 3 hands, and with some time to really look through it, is, as 4 we discussed earlier, it's a very complicated document. 5 Much of the logic of it is sort of interweaved from the 6 front part to the back part, back to the front part and so 7 on. And, I thought it would be good for us to really go 8 through this and understand it, so that as we develop our 9 rule, as called for by the T.N.R.C.C., that we know what we 10 are departing from, if we want to depart from it at all. 11 And, I would just point out that there are several things 12 that I found in my study of this that were very interesting. 13 For example, if you'll turn to Page 11 -- and this is under 14 Facilities Planning, and this is where the section of the 15 T.N.R.C.C. rule -- this is the section of the T.N.R.C.C. 16 rule -- Judge, if you will turn to Page 11 -- 17 JUDGE HENNEKE: Mm-hmm. 18 COMMISSIONER GRIFFIN: -- I was just starting 19 to point out a few of the more salient things that I found 20 in my study which I thought were significant. And there may 21 be others that other Commissioners and you have found, 22 Judge, but on Page 11, you'll notice in Paragraph B and 23 Paragraph C, that at the end of both of those paragraphs, 24 they say in no instance shall the area available for such 25 systems be less than two times the design area, and so that 4 1 caught my eye. And then I look, well, what are -- how are 2 those design areas determined? I know it's through 3 calculation and so on, but it's all in here. 4 If you'll look down at the bottom of Page 11, 5 it says Site Evaluation, and it refers to Paragraph 285.30, 6 which is back on Page 25. And, you'll notice that this was 7 effective in January of this year -- or last year. And, 8 notice that there is a step process that -- that takes you 9 through when talking about soil analysis, and it talks about 10 soil texture. And, notice that there are five classes of -- 11 of soils that should be classified in each case when a site 12 evaluation is done. There is a soil structure analysis. 13 Again, these are scientifically described. 14 On the next page we talk soil depth, 15 restrictive horizons, ground water evaluation, topography, 16 flood hazard, and then on determination of overall site 17 suitability. And those paragraphs, and in following the 18 paragraphs which talk about things like setback and -- and 19 separation and the criteria, refer to the figures and the 20 tables that are in the back of the document. And, if you 21 track through on that, there is a very precise way that it 22 wants you to classify the soil. If you know what the class 23 of the soil is, you know what kind of demand is put on it by 24 the structures and by the loading of the septic system from 25 what -- or on-site sewage facility, then you can find out 5 1 how much area is required for a standard system. You 2 multiply that by two. If there's not enough room there to 3 put that on the property, then you've got to go to an 4 alternative system if you're going the put an O.S.S.F. in. 5 So, this is, to me -- and I must admit, I've 6 come full circle on this, but this, to me, is very good. 7 It's complicated. And I'm not certain that -- over the 8 years -- I think what's happened is, over the years, between 9 our -- our designated representative, our county employees 10 and the courts, the previous courts, I think we've tried to 11 impose density limitations through the O.S.S.F. rule. And, 12 I'm now convinced -- and I'd be willing to be unconvinced if 13 somebody tells me why, but I'm -- I'm convinced that that's 14 not the proper way to control density. The proper way to 15 control density is through our Subdivision Rules and 16 Regulations. And we have plenty of latitude in here to do 17 that, just as we talked about this morning, based on water 18 availability, based on any consideration that we want to 19 consider. And we can -- we can impose density limitations 20 in our Subdivision Rules which are completely separate and 21 apart from the O.S.S.F. regulation, or a rule that we might 22 develop there from. 23 So, I -- before I go any farther, I'd like to 24 ask if -- are there any other really significant pieces of 25 the T.N.R.C.C. rule that anybody picked up on that we might 6 1 ought to kick around and -- and talk about why they're not 2 adequate, if they're not, or how would we -- how would we do 3 it better? Or any other thoughts you may have. It's -- and 4 I'm willing to listen, you know, at this point. 5 COMMISSIONER BALDWIN: Commissioner, I picked 6 up on the same thing you did, the soil. I think that that's 7 one of the keys. It also even goes further than what you 8 were saying there, even talks about the borings and the 9 backhoe pits and -- you know, the depth of them and how to 10 dig them and where they are and -- 11 COMMISSIONER GRIFFIN: Right. 12 COMMISSIONER BALDWIN: Really, really 13 detailed information here. 14 COMMISSIONER GRIFFIN: And if we have -- for 15 example, if our -- and I think we could direct our 16 Designated Representative to do this. That what we need is 17 a real analysis, documented, so that if we want to say to a 18 proposer that wants to put in a system, we classify -- your 19 soil is classified as soil class 2 or whatever it is, it has 20 this kind of absorptive rate, it's got this kind of 21 classification of rock and stone and all these other issues, 22 and that we, therefore -- and we've come out that you don't 23 have enough area or that the soil is unsuitable, and 24 therefore, you must have an alternate system according to 25 these rules, not any other, then that proposer has something 7 1 to come to us with to challenge, to say, well, I had an 2 independent lab run an analysis, and they say it's not Type 3 2, it's Type 1A or something. 4 So that -- because, you know, I don't 5 understand -- I don't think we tell a proposer, when we're 6 turning them down for a standard system, whatever it is they 7 want to do, I don't think we say it's because of the soil 8 classification on page such-and-such or because of the table 9 on page so-and-so; it doesn't meet the criteria for that. 10 I'd like to see a more objective treatment from our 11 Designated Representative, something that is documented, 12 that the proposer then, if he doesn't agree with it, can 13 come to this Court and we can look at it. And I know how to 14 read tables and make calculations and even add and subtract 15 and divide. So, you know, then we can say, well, is there a 16 reason that we shouldn't grant this? Or whatever. Or say, 17 hey, it's right on not suitable; you're going to have to 18 have an alternate system if you want one. 19 So, you know, there's two con -- let me just 20 go on for just a second. There are two -- a couple of 21 conceptual things that we've got to get passed if -- I 22 think, and that is -- one is is that any rule that we would 23 have has to agree -- has to agree verbatim with the 24 Subdivision Rules. I don't think it does. I think that our 25 Subdivision Rules can be more restrictive on acreage and so 8 1 on. No matter what kind of a rule we have adopted, if it's 2 just this, I think we can -- we can do that. There's other 3 places -- I think other analogies that we can raise on where 4 things are more restrictive in one document or another, and 5 you just do what's most restrictive. We advise people that 6 that's what they've got to do. 7 The other thing is -- is that this has been a 8 long and -- and very controversial process we've gone 9 through trying to get it right, and I think that's what all 10 of us here still want to do, and that's to get it right. 11 But I've come right full circle, I must admit. We'll get 12 onto that discussion, I'm sure, later on, but I'll shut up 13 for the moment. 14 COMMISSIONER WILLIAMS: Only thing I picked 15 up on here was cluster systems. We had a situation out 16 there where we had somebody before us who wanted to use the 17 cluster -- it was a two -- two on one tank situation. 18 COMMISSIONER GRIFFIN: Right. 19 COMMISSIONER WILLIAMS: But if I read this 20 correctly, that's also permissible within circumstances -- 21 included circumstances. 22 COMMISSIONER GRIFFIN: Right. And their 23 ownership requirements, I think. 24 COMMISSIONER WILLIAMS: Two or more, yes. 25 COMMISSIONER GRIFFIN: Yeah. But, you have 9 1 to jointly own the system. You can't have a deal where -- 2 or you shouldn't have a deal where somebody owns it and I'm 3 just going to let him tie into my tank and drain field, 4 because now you've got some questionable liabilities and 5 who's responsible for maintenance and so on. 6 COMMISSIONER WILLIAMS: Right. 7 COMMISSIONER GRIFFIN: And, don't 8 misunderstand what I'm saying here. I'm not -- I'm saying 9 that if we -- if you did this right by the book, I would 10 be -- I would be very reluctant to ever grant a variance of 11 any kind. It is -- I think it would -- it protects the 12 environment. I think it does what we want it to do, but 13 it's not one of the kind of things where you come in and 14 say, oh, wait a minute, I'm a tenth of an acre short and I 15 want to -- I want a variance. It would have to be just as 16 this thing says. If you can show that you can provide equal 17 to or greater than protection to the environment, public 18 health, then the Court can say that's all right. But, it's 19 got to be equal to or greater than, not just because my 20 lot's too small or my -- or my soil's not good enough. Or 21 it's none of those kinds of things. If I would -- if we 22 were to adopt this with no amendments, then I think it would 23 be very -- should be and could be very strictly enforced, 24 cause it's -- 25 COMMISSIONER WILLIAMS: I was going to ask, 10 1 are you suggesting, Larry, that the adoption of this 2 document by T.N.R.C.C. precludes the necessity for us to 3 have any other rules? 4 COMMISSIONER GRIFFIN: I'd say it's very 5 possible. I think, at this point, we don't need a Section 6 10 if we put our acreage restrictions in the Subdivision 7 Rules. And we can do that. 8 JUDGE HENNEKE: The only -- the only 9 difference I would take with that is on the issue of 10 transfer, because I don't find anywhere in the T.N.R.C.C. 11 regulations that addresses the issue of transfer of a 12 license to operate an O.S.S.F. 13 COMMISSIONER GRIFFIN: Right. 14 JUDGE HENNEKE: And that's the only -- only 15 place that I would say that we need to have something in -- 16 in Section 10. I'm not totally convinced that we shouldn't 17 have something in Section 10 which sets forth a minimum lot 18 size for O.S.S.F. 'Cause the argument that Mr. Graber and 19 Mr. Samuelson were trying to make is that anything that 20 regulates O.S.S.F. has to be in the O.S.S.F. Rules. 21 COMMISSIONER GRIFFIN: But we're not saying 22 you can't put an O.S.S.F. -- we're saying you can't have -- 23 in this document we say you can't have acreage in a 24 subdivision that's less than this amount, for numbers of 25 reasons: For traffic count, for -- for water availability, 11 1 for any -- we have made the judgment in our Subdivision 2 Rules and Regulations that a lot has to be a minimum of such 3 and such size. Now, that has nothing to do with this rule, 4 is what I'm saying; that my view that I'm taking says this 5 is -- that's not important. 6 This rule would also cover the old boy who is 7 out there who bought his acre 15 years ago to build his 8 retirement place, and he's just been paying off the land and 9 he's finally got it paid off, and now he wants to build his 10 house on it. And he says, well, wait a minute, I can -- 11 according to O.S.S.F., he doesn't have to go to this, 'cause 12 this is not in question. He's not subdividing anything; 13 he's owned this land for a long, long time. But he still 14 has to abide by this. He's still going to have to have site 15 evaluation, and if it requires it, he's going to have to 16 have an alternate system, by this very objective method, 17 which is not emotional whatsoever. And that's where I'm 18 sort of coming from. The -- the older owner of an 19 undeveloped lot still has to abide by this. Now, anybody 20 subdividing in the future is going to have to abide by this. 21 So, I like the -- I like the connection to the past as well 22 as what we do in the future. We're going to limit lots of 23 them. We can't limit the old boy that's got his acre out 24 there; we're not going to make him bust it up. We can say 25 what you got to do to get an on-site septic system. We can 12 1 do that with these rules. 2 JUDGE HENNEKE: Which is likely to result in 3 a lot more requests for variances from setbacks required 4 from lot lines and other property lines. 5 COMMISSIONER GRIFFIN: And I am not -- 6 JUDGE HENNEKE: Things like that. 7 COMMISSIONER GRIFFIN: As I say, I would not 8 be prone to want to grant variances, because there are 9 systems in here for everything down to a half acre or less, 10 I mean, so it's covered. And what I'm saying is, we can 11 make sure that this rule gets enforced, and we don't have 12 any question; we've got the T.N.R.C.C. standing behind us on 13 this. 14 JUDGE HENNEKE: If we take that as a given, 15 what about, then, the issue that I raised of transfer? 16 COMMISSIONER GRIFFIN: Here's what I -- and I 17 have not -- I was looking to see if Travis would be here. 18 There is a question that occurred to me on that -- on that 19 issue. I don't think there's any reason that we can't, but 20 there may be. That we could either have a court order or a 21 resolution or a letter to all the closers saying that buyers 22 need to be advised when the O.S.S.F. is on the property that 23 they are buying, and that to realize that if they buy as-is, 24 they're buying the problem. That's what we really want, and 25 I heard that in several of our earlier meetings on this. 13 1 What we want to do is make sure that a buyer is not buying a 2 pig in a poke -- or a pig in a tank; that he doesn't know 3 what's there and that the system has failed or is failing, 4 and therefore we end up with a failed system, and then we've 5 got lawsuits between the buyer and seller and so on. That, 6 to me, is -- is -- and that's still an open question in my 7 mind, too. How do we best do that? It's really a buyer 8 responsibility; not totally "caveat emptor," but a buyer 9 ought to be -- if I were coming to this county -- and I did. 10 When I bought the place I've got, I said, "What kind of 11 septic system does it have?" They said, "Well, it's got a 12 standard old drain field drain." And I said, "I'd like to 13 have it looked at," and so they looked at it at my expense, 14 buyer's expense, and he changed out the tank. 15 So, any prudent buyer ought to ask that 16 question, and we ought to help buyers become prudent by -- I 17 don't know whether we can do it with a court order; we 18 probably don't have the authority to do that. Maybe we can 19 do it with a resolution to all of the closers in Kerr 20 County, that says we would request that you include this 21 form in your closing package that prior to closing; the 22 buyer is advised of what sort of sewage facilities that 23 property has. Is it hooked into the city system? Is it 24 hooked into a cluster system? Is it hooked into O.S.S.F. 25 standard? Aerobic, low dosage, whatever the case may be, 14 1 that they need a description of that and as much information 2 as can be provided. 3 And -- and here's where I'm coming from on 4 that one, Judge. After our meeting with the T.N.R.C.C. 5 guys, and I caught them outside, because the question 6 occurred to me, what was their view of a license? And they 7 said -- I quote Mr. Graber on this. Once a license is 8 issued, it's issued forever to that facility. It can be 9 transferred, if you want to actually hand the piece of 10 paper -- or even if you wanted to go through changing the 11 name. But the licensing process, as far as they are 12 concerned, is forever. Now -- so, I asked him, well, how do 13 you find out if a system's failed? He says, we have to gain 14 knowledge of that through any source we can. Most often, we 15 are told by neighbors when someone's system is failing, and 16 that's how we find out about it. In checking around, that's 17 how we normally find out about them, too, in Kerr County. 18 No -- no matter how often it's been listed, how often it's 19 changed hands, we usually find out that a system has failed 20 because someone other than the owner complains about it. 21 Now, many owners, when they see a system 22 failing, take care of it on their own. But as far as anyone 23 going in, we don't have a -- we don't have a police function 24 to go in to check them anyway. And so I asked Mr. Graber, I 25 said, well, then, what's the the significance of having a 15 1 license? Probably not much, unquote. Because it's better 2 to have a licensed system, because then the person who owns 3 that knows that it was done to a certain standard that a 4 licensing authority bought off on. But once it's granted, 5 it don't mean much. Now, we're not going to have any new 6 systems put in in Kerr County, as I understand it, under our 7 current rules. We couldn't have a new system put in that 8 was not licensed, unless it's on one of the big acreage 9 where they go out and blast a hole in the ground and we 10 never know about it. But -- but, routinely, we're going to 11 have all of the new systems licensed. 12 COMMISSIONER WILLIAMS: I'm having trouble 13 with that. The buyer, in many cases, is disadvantaged, 14 because I don't see a seller who knows he has a system that 15 is failing or about to fail likely to blow the whistle on 16 himself. 17 COMMISSIONER GRIFFIN: He's not. That's the 18 reason I'm saying the buyer. 19 COMMISSIONER WILLIAMS: The purchaser is 20 disadvantaged. 21 COMMISSIONER GRIFFIN: If I were buying from 22 you, and you said -- and I said, "What kind of septic system 23 do you have?" and you said, "It's a standard gravity septic 24 system," I would say, "Okay, as part of my offer to you, I'm 25 going to give you X number of thousands of dollars, so many 16 1 down. I want termite inspection and I want a signed-off 2 inspection on the septic system." That's what -- I would 3 dicker with you on that. And probably, if you wouldn't pay 4 for it, I'd say, "Okay, put that under the buyer's costs 5 column at closing." We're just talking a couple hundred 6 bucks here. We're going to do a tank -- going to look at 7 the tank, and I want to see if there's any obvious failure 8 of the drain field. That's a couple hundred bucks. I would 9 try to get you to pay for it, but I would pay for it if -- 10 if I had any -- unless you were somebody I knew very well 11 and I trusted. I might not then, but that's what I'm 12 saying. The buyer needs to push the issue that, "I want the 13 system inspected before I buy it." And who's going to pay 14 for it? You pay half and I'll pay half, okay? That's just 15 a closing cost; that goes on the sheet with the termite 16 inspection and whatever else. 17 COMMISSIONER BALDWIN: Could be the 18 responsibility of the buyer. I mean, they have to show the 19 responsibility of showing some interest in the thing of what 20 they're -- what they're purchasing. 21 COMMISSIONER GRIFFIN: You buy a system 22 without having it inspected. That's why I'd like, if we 23 can, to come up with a way that that -- at least we give the 24 buyer every chance. We say, Look, Kerr County thinks you 25 ought to understand this about this system. You've got a 17 1 gravity failure, you've got an aerobic system. If it's 2 aerobic system, who's got the maintenance contract? Blah, 3 blah, blah. Here it is. You're going to get that at 4 closing. In fact, you may demand it before closing so that 5 you can evaluate whether you even want to fiddle with buying 6 the property. 7 COMMISSIONER LETZ: To me, the -- I agree 8 with Larry. It's no different than any other kind of house 9 inspection. I mean, whether it's foundation inspection or 10 termite or anything, it's all -- I don't know why we would 11 want to single out septic to have -- the County has to sign 12 off on, when we don't sign off on everything else regarding 13 a house. 14 JUDGE HENNEKE: It's not a sign-off. It's -- 15 COMMISSIONER LETZ: Well -- 16 COMMISSIONER GRIFFIN: It's a -- -- 17 COMMISSIONER LETZ: It's a license. It's not 18 a sign-off, but it's essentially the same thing; we're 19 certifying that the system is good. 20 COMMISSIONER GRIFFIN: Right. 21 COMMISSIONER LETZ: And -- but it's the same 22 issue. I don't know. We don't certify that for the slab or 23 foundation. 24 JUDGE HENNEKE: The only difference I would 25 throw out, just for discussion purposes, is the public 18 1 health issue. 2 COMMISSIONER LETZ: Right. 3 COMMISSIONER GRIFFIN: Right. And so it has 4 to meet the criteria. 5 JUDGE HENNEKE: I know that when I bought my 6 place out on the river, the seller didn't really know what 7 kind of a system he had, and there was no obvious signs that 8 the system was failing, so had I not been diligent, had I 9 been more concerned about the dollars and not put a 10 provision in the contract and accepted the system that she 11 transferred, I would have bought a house within 50 yards of 12 the river with a cesspool. 13 COMMISSIONER GRIFFIN: And that's -- 14 JUDGE HENNEKE: So, there are -- so, you 15 know, without any sort of a look at the system, there are 16 still a number of those out there that, on the surface, are 17 in good shape, but actually aren't. Now, the question 18 becomes, do we want to make people dig them up and look at 19 them? And I don't think so, unless there's a problem. So, 20 I'm really not sure exactly where I come down on this, to be 21 quite honest with you, because if you just do a surface 22 evaluation, which is what we talked about the last time, 23 you're going to catch the obvious problems, but you're not 24 going to catch the problems that are hidden. If you require 25 them to dig it up and inspect it, as we have in the past, 19 1 that's a tremendous cost and disruption to the whole 2 property, and a big hole; the mounds in the yard and all 3 that. So, I'm not sure where our public health hat lies in 4 this issue. 5 COMMISSIONER GRIFFIN: I think -- and I 6 agree. I -- I would just say, if we have done everything 7 that we can under the rules to -- on systems that are being 8 installed now, and that if we encourage buyers to make sure 9 that systems that they are buying are inspected to whatever 10 level they may want it to be inspected to -- like, in your 11 case, you may have been a little suspicious when -- you 12 know, when you thought maybe there was a cesspool, and so 13 you might have said, hey, dig it up, you know, and I'll pay 14 half the cost, you pay half the cost. But, I mean, I don't 15 know what the history may be; they're all different. But 16 the buyer that wants to get by with a surface inspection can 17 go out and live in the house for 30 days and pump the tank 18 dry and then fill it up with water right before the 19 inspection, and it -- you'll pull the cover and say, well, 20 it's not leaking and there's no obvious drain field failure. 21 Of course, the drain field hasn't had any water in it in 30 22 days, so you wouldn't -- you might miss it. Probably would. 23 So, you know, I'm just saying if we can't 24 police it, which would really sort of be the ideal, strictly 25 from the -- not from a citizens' rights viewpoint, but 20 1 certainly from a public health perspective, really be great 2 if you can just wander around and say, well, we're here to 3 inspect your septic system. And, well, we can't do that. 4 And if we can't police it to that level, then I'm not 5 certain that if we're not -- if we do everything we can to 6 comply with the State law, I think we've done everything we 7 can do, except that I would somehow like to come up with a 8 better way of encouraging buyers to question the status of 9 things at the time of sale, because that's who ultimately 10 ends up footing the bill. It's going to be the buyer of the 11 property. That's so even now. 12 I mean, if it passed all the inspections and 13 fails 30 days after they move in, for whatever reason, the 14 buyer's going to be responsible if the property is closed. 15 And, if -- if they've done everything they can, though, to 16 determine what the status is, and if -- they can buy as much 17 inspection as they want, but it's their responsibility. 18 And, I think if we went to our closers and if we really make 19 that a strong point, I think we can do that. And, it 20 removes the onus from them, other than to encourage the 21 buyer to make an inspection -- have an inspection, rather. 22 Again, these are ideas. But this is where 23 I've come down now. I -- and it's not strictly from our 24 last workshop. I think more of what I see is that I had a 25 real opportunity to go through this thing in detail, and 21 1 you're not going to slip cesspools by, you're not going to 2 slip standard systems by on very small acreages if you 3 follow these rules. 4 JUDGE HENNEKE: That's only on new 5 construction. 6 COMMISSIONER WILLIAMS: You do you if you 7 don't have some of those transfer requirements. 8 COMMISSIONER GRIFFIN: But if you -- if you 9 followed these rules on new stuff, right, and the system 10 would end up licensed. It still applies to old stuff. I 11 mean, doesn't make any difference whether there's a sale or 12 anything; it still applies. If it's a licensed system, then 13 it's licensed. If it's not, it's still unlicensed. And, as 14 they say, if it was done prior to 1988 -- that's not our 15 rule; that's these rules. If so, if it was prior to '88, 16 it's grandfathered in, unless it fails. That's in these 17 rules already. So I -- 18 JUDGE HENNEKE: Depends on where you come 19 down, because you go back to my own system. That system 20 that I bought -- would have bought would still be out there 21 operating today on the surface. And, within probably two 22 hours of the time that the system was engaged, whatever was 23 disposed of was in the river. I'm not sure how you address 24 that problem. 25 COMMISSIONER GRIFFIN: Well, were you 22 1 required to have an inspection? 2 JUDGE HENNEKE: No. 3 COMMISSIONER GRIFFIN: There, again, I 4 think -- that's sort of my point. You weren't required to 5 make an inspection, but you were smart enough to do that. 6 You know, some people may not be. 7 JUDGE HENNEKE: It cost me $4,500. 8 COMMISSIONER GRIFFIN: Yeah. 9 COMMISSIONER WILLIAMS: Well, this doesn't 10 require an inspection, right? Upon the sale or transfer? 11 COMMISSIONER GRIFFIN: No. 12 COMMISSIONER WILLIAMS: Okay. So, you take a 13 -- take an illustration of this subdivision in Precinct 2 on 14 Hill River Estates. Some of them have septics, some of them 15 have failing septics, some of them have porta-pottys sitting 16 by the side of the house, some of them have cesspools. 17 Absent a -- a requirement on real estate transfer that -- 18 this being silent, it is nothing more than perpetuation of 19 that situation. 20 COMMISSIONER GRIFFIN: No. Because you -- 21 COMMISSIONER WILLIAMS: How are we going to 22 correct it? 23 COMMISSIONER GRIFFIN: You were going to go 24 by it. What I'm saying is if, at closing -- if, at closing, 25 you are presented with a -- and prior to closing, actually, 23 1 prior to closing, you are presented with what sort of sewage 2 facility this property has, no matter what it is, city, 3 cesspool, whatever, you get that prior to closing. You 4 know, you're going to say, well, wait a minute. I better 5 have this system looked into, 'cause I'm not going to buy 6 this property this way. 7 JUDGE HENNEKE: I'm not sure where you get 8 the legal ability to require that information to be 9 distributed. 10 COMMISSIONER WILLIAMS: I'm not sure it 11 covers it, but take a situation like this particular one I'm 12 talking about, and the lots are sold by the owner under 13 contract of sale. People come in and pull their trailer 14 behind or whatever and park their trailer on that. He is, 15 in effect, saying to them, "Whatever you have to do to 16 provide your own sanitary system is your responsibility, not 17 mine as the seller." And so few, if any -- very few come in 18 there, purchase a lot on contract of sale, pull a trailer in 19 there and immediately contact our Designated Representative 20 to find out what the rules are. They don't do it. And so 21 you have a perpetuation of the bad situation. How do we get 22 around that? 23 COMMISSIONER GRIFFIN: On a contract of sale, 24 what would require them to do anything anyway? 25 COMMISSIONER WILLIAMS: I guess nothing, 24 1 'cause it's there. How do we -- how do we work against a 2 situation like that? 3 COMMISSIONER LETZ: I guess, as an idea -- I 4 mean, I like the State rules, the way they are regarding 5 O.S.S.F., but I agree, it doesn't address the situation that 6 we're talking about. But I don't see that we -- without 7 that, that comes under O.S.S.F., correctly. What we're 8 doing, what the Judge kind of said earlier, was the basis 9 for that is on public safety. Couldn't we do a different -- 10 a court order on public safety alone regarding septic 11 inspections? 12 JUDGE HENNEKE: I'm not aware of any legal 13 authority to do that. 14 COMMISSIONER LETZ: But we don't have legal 15 authority here, either. 16 JUDGE HENNEKE: Well, that's questionable, 17 whether we do or not. 18 COMMISSIONER GRIFFIN: 'Cause -- 19 JUDGE HENNEKE: Because of the -- because of 20 the PGMA -- the Priority Groundwater Management Area status, 21 we probably could hang our hat on that and require some sort 22 of inspection in order to prevent pollution and denigration 23 of the ground water. That's -- that's the peg you hang your 24 hat on in our situation to require -- 25 COMMISSIONER GRIFFIN: Is there a possibility 25 1 that, under the PGMA, we could have a court order -- I mean, 2 is there -- I know we don't know that at this point. Is 3 there a possibility we could have a separate court order 4 under the guise of the PGMA to require that? 5 JUDGE HENNEKE: Not that I'm aware of. See, 6 you know, PGMA gives you certain additional authority, but 7 it's really with regard to ground water. 8 COMMISSIONER GRIFFIN: Mm-hmm. 9 JUDGE HENNEKE: And I think that because of 10 the PGMA situation, we have the ability to add onto the 11 State model rules some further requirements regarding the 12 ground water, which is how you would get to this. 13 COMMISSIONER GRIFFIN: If -- 14 JUDGE HENNEKE: I don't know of any legal 15 authority outside of the O.S.S.F. regulation in order to do 16 the same thing. 17 COMMISSIONER GRIFFIN: We may -- we may have 18 that authority under the O.S.S.F. rule, but T.N.R.C.C. says 19 we don't. 20 JUDGE HENNEKE: Well, no, I heard them say 21 that -- 22 COMMISSIONER GRIFFIN: 'Cause I asked them. 23 I said, well, what about us being PGMA? They said that's a 24 different statute, has nothing to do -- that's what he told 25 me standing right there. 26 1 JUDGE HENNEKE: That's different than what I 2 heard him say, because I heard him say that because of the 3 soil condition and the water situation, you could add on 4 additional requirements so long as you tie them to that 5 situation. 6 COMMISSIONER GRIFFIN: I didn't -- I didn't 7 hear that. 8 JUDGE HENNEKE: Yeah. 9 COMMISSIONER GRIFFIN: I understood him to 10 say when I asked him -- I asked him directly; I said the 11 PGMA. He said because that's -- doesn't have anything to do 12 with it, different statute. He says PGMA was created under 13 a totally different statute. I don't know what he was 14 talking about. Probably on water, I would think. 15 JUDGE HENNEKE: Well, if we don't have the 16 ability to do it under Priority Groundwater Management 17 status, then I don't see how anybody would have any 18 authority to add anything onto the model State order, which 19 is clearly what the bureaucrats in Austin wanted anyway. 20 COMMISSIONER GRIFFIN: What if we bounced off 21 -- what if we bounced off of T.N.R.C.C.? Could we, in 22 Section 10, have one paragraph that says buyers -- buyer 23 must be notified prior to sale of the -- of the type and 24 status of the O.S.S.F.? We base that on whatever we come up 25 with, PGMA or whatever else. Maybe that's -- I like the 27 1 idea that the buyer gets a lot of flags waved -- flags 2 coming up, but I'm -- if there's a way to do that in a 3 separate order or something, or even just a resolution, and 4 send it out to all the closers in this county, it just seems 5 to me that if we don't -- if we were to really enforce this, 6 I think we've got a pretty good system for protecting public 7 health. 8 JUDGE HENNEKE: Going forward. 9 COMMISSIONER GRIFFIN: Going forward and 10 going aft, you know, to some degree, because -- because no 11 matter whose property we're talking about and whether it 12 ever changes hands, these rules still apply. 13 JUDGE HENNEKE: But they only apply going 14 back if someone identifies a problem and is willing to spend 15 the money and time to bring it up to standards. 16 COMMISSIONER GRIFFIN: I -- I think we may 17 not have enough authority or -- what should I say? -- 18 enforceability to make the inspection idea at sale really 19 work, because the inspection thing is so cursory, unless we 20 want to dig up the system. And -- and if I'm a seller, I 21 can guarantee you, I can cover up if I want to. I can cover 22 up a failing or failed system well enough that, at the time 23 of closing when I call for my, quote, inspection, it will 24 pass. 25 COMMISSIONER LETZ: I would be -- I mean, I 28 1 like the idea a lot more of trying to be on the positive 2 side and say -- you know, encourage the inspection. You 3 know, and with no ramifications to the County. That's -- 4 COMMISSIONER GRIFFIN: Right. Just do it. 5 COMMISSIONER LETZ: Encourage -- just, "You 6 need to get an inspection done." And if -- even if we could 7 figure out a way to get our Designated Representative to go 8 out and do the inspection, certainly a cursory look at it. 9 COMMISSIONER GRIFFIN: And maybe the 10 cursory -- 11 COMMISSIONER LETZ: And charge a fee for it. 12 COMMISSIONER GRIFFIN: Yeah, charge a small 13 fee and offer that as a service, and let the -- 14 COMMISSIONER LETZ: You know, and hope that 15 if it's failing, they'll know it and they can enforce the 16 current rules. If it's not failing -- 17 COMMISSIONER GRIFFIN: If the buyer doesn't 18 want to do that, fine, let him buy a failed system, and they 19 can pay $4,500 to fix it. 20 JUDGE HENNEKE: Well -- 21 COMMISSIONER LETZ: The problem is -- 22 JUDGE HENNEKE: -- I'm not sure we can get to 23 this issue, because it doesn't fit anywhere conveniently. 24 The problem I -- that really concerns me is the situation 25 where the system is not performing adequately, but there's 29 1 no indication of that. 2 COMMISSIONER WILLIAMS: Or no system at all. 3 JUDGE HENNEKE: Both of which were my 4 situation. But if you -- as someone who's not familiar with 5 septic systems moves into this area and buys a property with 6 a system on it that's either not working, or where there's 7 no system, but there's no apparent problem, the situation is 8 going to perpetuate itself ad infinitum. But I'm not sure 9 how we get to that problem. 10 COMMISSIONER GRIFFIN: Right. That's a 11 little -- the same logic pattern I went through. If we -- 12 and if we can't adequately enforce that, then I don't think 13 we need to supplement these already good rules with 14 something that is sort of not enforceable anyway. That's 15 where I came down, is that -- is that, wait a minute, if 16 somebody wants -- if we're just going to do cursory 17 inspections and somebody wants to hide that, then they can. 18 Then why would we say do a cursory inspection? We'd have to 19 say do a very extensive inspection. In an ideal world, from 20 a health and safety standpoint, we can do that, but that's 21 the same reason -- that's the same reason we go -- some 22 people say we ought to have more gun laws for the same 23 reason, 'cause we can make everybody safer. You say, well, 24 no, we can't really enforce that. So, let's don't have any 25 more rules; let's have -- let's go enforce the rules we've 30 1 got. 2 JUDGE HENNEKE: I guess what we could do is 3 we can encourage the U.G.R.A., as the entity with whom we 4 contract to administer the system, with Charlie Wiedenfeld 5 as the Designated Representative, for them to adopt a set of 6 rules for voluntary inspection of systems, and they could 7 adopt rules where someone came for a fee. They could go to 8 a tiered level of inspections, and if someone wanted to 9 transfer a license, then they could require whatever level 10 of inspection they deemed necessary. And surface inspection 11 if it was in -- within so many years, or underground 12 inspection if it was over. That puts it on the buyer. If 13 you -- if you want -- or the the seller. If you want the 14 license to be transferred -- 15 COMMISSIONER GRIFFIN: Right. 16 JUDGE HENNEKE: -- to your name or out of 17 your name, then -- 18 COMMISSIONER GRIFFIN: That can be a 19 procedural thing. That wouldn't have to be in our court 20 order. That's a procedure, because already the T.N.R.C.C. 21 says the license is good. If you want to transfer it to 22 somebody else's name, you can just do that. I mean, you can 23 go through whatever the process we set up to do that. And 24 we could require for transfer -- and we don't have to do 25 this in a court order; we could just tell our Designated 31 1 Representative, if you're going to transfer a license, we 2 want it inspected as part of the fee. 3 COMMISSIONER WILLIAMS: I've heard U.G.R.A. 4 complain from time to time about the fact their problems are 5 not so prominent in the situations where a sale takes place 6 when buyer to seller through a real estate representative, 7 broker, so forth, and the closing is at a title company and 8 so forth. Those things are pretty routine, and they're 9 notified and so forth. The problems occur in a one-on-one 10 sale. I buy a piece of property from you. You say, "Yeah, 11 I don't have any problems," and we close and we make our 12 deal, and -- 13 COMMISSIONER GRIFFIN: Or we even do a 14 contract for deed. 15 COMMISSIONER WILLIAMS: Yeah, and away we go. 16 They don't know about it. Absolutely don't know about it, 17 and there's nobody to tell them. We had a case here 18 recently, not too long ago, a young man that works for us in 19 the Road and Bridge Department. Same thing happened to him. 20 He bought one-on-one. Seller says, "Oh, yeah, great system, 21 everything's okay." He's in the house about three weeks 22 later doing a sniff test. Right, he's got a problem. 23 COMMISSIONER GRIFFIN: And they can -- again, 24 one of the things that I'm talking about, where I'm coming 25 from, is we could write rules and fill this room, and we 32 1 still couldn't preclude that from happening. We don't have 2 enough staff. With a Designated Representative and his 3 staff support, we don't have enough staff to cover this. We 4 don't have any way of finding out. We don't have a way of 5 going to police it. What I'm saying, we enforce the heck 6 out of the rules that the State has laid out for us. We 7 encourage buyers to be careful and to ask for inspections, 8 and let it be done. And, no -- or few variances. 9 COMMISSIONER LETZ: What we could do -- and 10 this is kind of along the education thing. We could put 11 together a county pamphlet, basically, and give it to the 12 Chamber. I mean, 'cause most people coming into -- a high 13 percentage of them go through the Chamber, and -- 14 COMMISSIONER GRIFFIN: Those that don't know 15 septic systems. 16 COMMISSIONER LETZ: Put it throughout, and 17 say a couple things about water, you know, septic, and just 18 give them a notice. Say, here's some things, you know. 19 COMMISSIONER GRIFFIN: Garbage pick-up, I've 20 had people ask me, living in west Kerr County, you know, 21 where B.F.I. and nobody else goes. They say, "How do I get 22 them to come by to pick up my garbage?" I say, "You got a 23 pickup truck?". 24 COMMISSIONER BALDWIN: Go back to Houston. 25 COMMISSIONER GRIFFIN: Yeah, go back to 33 1 Houston. 2 COMMISSIONER WILLIAMS: The R.C.& D. is 3 planning to publish a booklet written by Susan Sanders that 4 deals with a lot of issues newcomers to the Hill Country 5 might wish to know about; water, septic, to just -- but 6 whether that ever gets published or not remains to be seen. 7 COMMISSIONER LETZ: If the County can do 8 something -- an informational thing that -- something that, 9 you know, they're -- something that's needed from education, 10 probably, more than anything else, to the public. 'Cause I 11 hear frequently, Commissioner, that -- oil and some other 12 occupations, that -- you know, things that people just 13 aren't aware of. And I don't know -- you know, you can only 14 so much try to educate them, but a lot of people go back by 15 the Chamber and pick up information, and they tell me -- 16 they said they were never -- like the water situation this 17 summer, I had several people say they never knew there was a 18 problem in Kerr County. They said they've read everything 19 they could about it. So, you know, that might be a way to 20 educate the public. 21 COMMISSIONER GRIFFIN: Sure. 22 COMMISSIONER LETZ: Let them them do it. 23 But, I mean, I'm inclined with Larry to go along with these 24 for the O.S.S.F. Rules, and deal with water separately 25 through water availability and subdivision -- you know, 34 1 they're all tied together. They have to work together, but 2 they're separate issues, really. 3 COMMISSIONER BALDWIN: I still like it. I 4 agree with everything you said. I still like the idea and 5 I'm hung up on it, of these people that do the closings, to 6 have some kind of document in there, even if it's nothing 7 more than a -- an encouragement. You know, all those 8 documents -- I remember signing 500, 600 sheets of stuff, 9 and it would be one of those documents -- not necessarily a 10 legal document or a court order or anything. Just, "Here's 11 a friendly reminder to watch out for your septic tank 12 system." And we might want to -- you know, the Bible says 13 there's safety in many counselors. We might want to go out 14 and ask those closing people, you know, what -- what do you 15 suggest? How do you suggest we go about handling this 16 thing? 17 COMMISSIONER GRIFFIN: Somebody told me -- 18 I've forgotten whether it was in here or some other forum -- 19 that the -- oh, it was whoever was with Ken Graber. The 20 other T.N.R.C.C. fellow told me afterwards that the Texas 21 Board of Realtors is working on a form that would be a 22 required part of closing that would really help solve this 23 problem, in that it's a required document at closing. 24 Doesn't have anything to do with the County; it'll be 25 statewide, that talks about does this property have a -- an 35 1 on-site sewage facility? If you check yes, then forget the 2 rest of it. If it -- or if you say no, it doesn't have, 3 then you forget the rest of the form. And the other thing 4 says, if it says yes, then you've got to provide the kind of 5 information that we were talking about earlier, and that 6 would be a big -- that's the ultimate solution, would be to 7 have a State-mandated form at closing that covers that. 8 COMMISSIONER WILLIAMS: That would be a part 9 of the documentation filed with the County Clerk for record? 10 COMMISSIONER GRIFFIN: Right. 11 COMMISSIONER WILLIAMS: That might be a part 12 of the solution. As long as it has to accompany all the 13 other documents for record. 14 COMMISSIONER GRIFFIN: Part of the closing 15 documents. 16 COMMISSIONER WILLIAMS: That would take care 17 of the one-on-one sales that didn't go through a broker or a 18 title company. 19 COMMISSIONER GRIFFIN: Right. 20 COMMISSIONER WILLIAMS: If it's required to 21 be filed in the Clerk's office, that ought to handle it. 22 (Discussion off the record.) 23 MR. JOHNSTON: Systems that are in proximity 24 of the river, is there any way you could take a closer look 25 at those, simply from the fact that you're encouraging water 36 1 systems to take water out of the river for drinking water? 2 Would that be a criteria you can use public health as a -- 3 to do a more detailed inspection? 4 COMMISSIONER GRIFFIN: Supposedly, those 5 kinds of factors -- and, again, that's going to depend on 6 how a system is installed, but the -- the T.N.R.C.C. rule 7 takes that into -- 8 MR. JOHNSTON: Takes that into account. 9 COMMISSIONER GRIFFIN: But, how often does it 10 do a good job? I don't know. We'd probably have to know 11 what the -- what the bacteria count is and all along those 12 spaces where those septic systems are close to the river and 13 so on. That's a scientific study. But T.N.R.C.C. says, 14 yes, that's accurately covered in the rule. 15 COMMISSIONER LETZ: It says -- you know, when 16 I was glancing through all this, that if it's in a 17 floodplain, you can't have an O.S.S.F. Or maybe some -- 18 COMMISSIONER GRIFFIN: You can have. You 19 have to seal it and -- seal the tank, hold it down so it 20 doesn't float, and -- 21 COMMISSIONER LETZ: Well, by having that in 22 here, and since U.G.R.A.'s also the floodplain 23 administrator, wouldn't they have -- if there's a plat that 24 comes in and it's in the floodplain, they can -- to me, that 25 means that they can go out there and inspect that system a 37 1 little bit -- as a different rule, because this is a 2 requirement under FEMA. 3 COMMISSIONER GRIFFIN: Yeah. And I don't 4 know what the -- I don't know what the floodplain rules are, 5 if they're different, but if they are, if they went ahead 6 from the floodplain side, they might be able to do a -- 7 COMMISSIONER LETZ: It's a higher standard in 8 floodplain. 9 COMMISSIONER WILLIAMS: Are they different, 10 Mark? 11 MR. ? (MARK): Could y'all -- could you 12 repeat the question? 13 COMMISSIONER WILLIAMS: Are the standards of 14 inspection different for -- when you go out to inspect a 15 septic in the floodplain, as opposed to regular? 16 MR. ? (MARK): As far as new construction, 17 yes, there's certain criteria that has to be met. But, the 18 soils, et cetera, are basically the same, and it primarily, 19 concentrates on tank flotation and contamination. And, you 20 stop the -- you know, is the system sealed appropriately, 21 due to a flood scenario, to prevent pollution and 22 contamination, and will the tanks keep from floating? Have 23 they been anchored, either through concrete or bracing 24 pedals? 25 COMMISSIONER GRIFFIN: We just had one of 38 1 those recently, didn't we? 2 COMMISSIONER WILLIAMS: Yeah, Wharton Road. 3 Going to have another one, too. 4 COMMISSIONER GRIFFIN: Yeah, I think we had 5 one we looked at. We said that they had done an adequate 6 job of sealing the tank and -- or whatever has to be done, 7 and the flotation/antiflotation. 8 COMMISSIONER WILLIAMS: Another one on the 9 way. 10 COMMISSIONER GRIFFIN: Got another one 11 coming? 12 COMMISSIONER BALDWIN: Same area? 13 COMMISSIONER WILLIAMS: (Nodded.) Just down 14 the road. 15 COMMISSIONER GRIFFIN: Well, this was for 16 kicking around, and hope to get the juices flowing. That's 17 what I want to do. And, if there's something that I have 18 missed here, well, holler at me later or now or whatever. 19 JUDGE HENNEKE: What's your timetable from 20 here? Are you going to basically do the order? 21 COMMISSIONER GRIFFIN: From the Court and 22 from -- and from U.G.R.A., of course. 23 COMMISSIONER WILLIAMS: Mark had his hand up. 24 MR. ? (MARK): May I -- I just got one 25 comment on what y'all were speaking of. What do you do 39 1 about pre-existing scenarios, such as Judge Henneke's, to 2 where he had a cesspool? Would it be something that you 3 could state in Chapter 10, that upon sale or transfer, all 4 systems have to be exposed enough or there has to be enough 5 known about them to disclose that they are not a cesspool? 6 COMMISSIONER GRIFFIN: I don't -- 7 COMMISSIONER LETZ: What if they -- you can't 8 do it. What can you do if it -- you know, Mark, cesspools 9 are illegal; you cannot have a cesspool. 10 COMMISSIONER GRIFFIN: They are specifically 11 illegal, but I think -- again, we -- we know they're 12 illegal, and we won't know that they're even there until the 13 property might sell. And, if we had encouraged the buyer -- 14 and particularly if we have certification in the closing 15 documents, which I hope we can get to at some point, that 16 says this is the type of system we have -- I know we can't 17 do that now. 18 MR. ? (MARK): Right, but I don't think the 19 buyers and sellers -- our experience has been that they 20 don't care. If it's going to cost them money, they don't -- 21 they don't want to -- they don't want to know. The buyer 22 would accept a cesspool in some instances, because it 23 wouldn't -- he doesn't want to have to rebuild it. So, if 24 it' a cesspool, that's fine, 'cause I don't want to have to 25 spend any money on it. 40 1 COMMISSIONER GRIFFIN: And they will even go 2 to the length of contracts for deed and that kind of thing 3 to -- 4 MR. ? (MARK): Yes, sir. 5 COMMISSIONER GRIFFIN: -- see to it. And if 6 they do, we have no way of tracking that, 'cause we have no 7 notification the sale ever occurred, other than the 8 transfer -- before occupancy even occurred. So, it -- and I 9 grant you that I'm as -- I'm as concerned about that lack of 10 not knowing, but I'm not sure that the O.S.S.F. rule that we 11 can write a rule that would make that okay, that's legal. I 12 just don't think we can solve it with a -- with an O.S.S.F. 13 rule. 14 COMMISSIONER LETZ: We can't require -- can 15 we require an inspection, do you think? Just require an 16 inspection, period? 17 COMMISSIONER GRIFFIN: I don't think we can. 18 We don't have any authority to do that. 19 COMMISSIONER LETZ: Mark thinks we can. 20 MR. ? (MARK): Yeah. Ken indicated the other 21 day that there are currently counties who have real estate 22 inspections. I spoke with him this morning briefly. He's 23 supposed to give us a list of counties that currently have 24 had that placed in their order since 1997. He did indicate 25 that there is not many counties that are willing to do it 41 1 any more, but that it is a possibility, depending upon how 2 y'all choose to word it. 3 COMMISSIONER LETZ: I think what Ken said in 4 court was you can't block the real estate transaction based 5 on inspection. 6 COMMISSIONER GRIFFIN: Right, that we can't 7 do that. 8 COMMISSIONER BALDWIN: Mark, we shouldn't be 9 interested in what other counties are doing; we should be 10 interested in what Ken Graber says we can do. You know, if 11 he says that we can not use that tool as an inspection, but 12 he says that other counties can, where in the hell is he 13 coming from? I mean, either you can or you can't, and we 14 need the rule from the State. 15 MR. ? (MARK): Well, I guess -- 16 COMMISSIONER BALDWIN: Do you think other -- 17 some counties, because of their size or location or 18 something, are granted extra -- or special rules or special 19 authorities? 20 MR. ? (MARK): Well, they -- under Chapter 10 21 currently, yes. That's what Chapter 10 is for, is to allow 22 a county to be more stringent if they choose to be with 23 appropriate justification. 24 COMMISSIONER BALDWIN: I understand that. 25 And some counties, then, are -- are given the authority to 42 1 require an inspection at time of transfer of property. 2 MR. ? (MARK): Yes, sir. 3 COMMISSIONER BALDWIN: Some counties do. 4 MR. ? (MARK): Yes, sir. 5 COMMISSIONER BALDWIN: Why would that county, 6 and we're not able to? 7 MR. ? (MARK): I think we are able to, 8 depending on if it's worded appropriately. We currently -- 9 COMMISSIONER BALDWIN: You just stood right 10 there and said we couldn't. He said it's against the law. 11 MR. ? (MARK): No, he said you could not use 12 the word "authorization" to sell a property. You can't hold 13 up a sale of a property. You can require an inspection at 14 the time of transfer of a property. Either before or after, 15 I guess, depending upon how you chose to word it, but you 16 can't deny someone the right to sell their property due to 17 an O.S.S.F. rule. That's what I heard. 18 COMMISSIONER BALDWIN: You sure could be 19 right. 20 COMMISSIONER WILLIAMS: But you could impede 21 the sale -- or the timing of the sale unless an inspection 22 is made? 23 COMMISSIONER LETZ: You can just require the 24 inspection. There's really no penalty. No penalty. 25 COMMISSIONER GRIFFIN: So, what happened -- 43 1 but, see, the -- the imperfection of that -- that's what I 2 heard, too. That's what I heard. That's what I heard, too. 3 And -- but the imperfection in that seems to me to be that 4 who ends up holding the bag when the sale goes ahead and 5 takes place? The buyer. The buyer ends up holding the bag 6 if inspection hasn't taken place yet. The buyer's still got 7 it, so who are we protecting? We're trying to protect the 8 environment first, but we're also trying to protect that 9 buyer, because if we can't say that the inspection has to be 10 done before the sale takes place -- 11 COMMISSIONER WILLIAMS: There's no sale. 12 COMMISSIONER GRIFFIN: -- then all we've done 13 is put the onus back on the buyer again. 14 COMMISSIONER WILLIAMS: Yeah. Has no value. 15 COMMISSIONER GRIFFIN: So -- 16 COMMISSIONER LETZ: I'm not concerned about 17 protecting the buyer as much as am getting it inspected. I 18 don't know how you would force -- I mean, how you make them 19 inspect it. I mean, you could have a rule, but if there's 20 no enforcement, there's no point in -- 21 JUDGE HENNEKE: If you had enough education, 22 you could force -- you could force sellers to get them 23 inspected. 24 COMMISSIONER GRIFFIN: That's right, 'cause 25 the buyer's -- 44 1 JUDGE HENNEKE: If there is a licensed system 2 and the license is not transferred, then the seller remains 3 responsible for that system, because the license is issued 4 in the name of whoever owns the property. Correct, Mark? 5 MR. ? (MARK): Yes, sir. The license -- 6 JUDGE HENNEKE: The license is issued to me 7 as the owner of the property. 8 MR. ? (MARK): Are you being the seller or 9 are you being -- 10 JUDGE HENNEKE: If I have a system installed 11 and I get a license, the license is mine, correct? 12 MR. ? (MARK): That's correct. But if you're 13 doing it as a transfer, what mainly happens is the owner 14 applies for it and has the process done, and then, instead 15 of us doing two licenses, we will issue that license into 16 the buyer's name. 17 JUDGE HENNEKE: Well, let's say that I own -- 18 I bought a piece of property, I had a septic system 19 installed, and I went and got a license for it. 20 MR. ? (MARK): Yes, sir. 21 JUDGE HENNEKE: Then I subsequently desired 22 to sell it to John Jones. 23 MR. ? (MARK): Yes, sir. 24 JUDGE HENNEKE: If I don't have the license 25 transferred into John Jones' name, where does the license 45 1 still lie? 2 MR. ? (MARK): It stays in your name. 3 JUDGE HENNEKE: Stays in my name? 4 MR. ? (MARK): Yes. 5 JUDGE HENNEKE: So, subsequently, if you, as 6 the Designated Representative, find a problem with that 7 system, then I'm still responsible for the system because 8 the license is in my name? 9 COMMISSIONER GRIFFIN: License -- according 10 to T.N.R.C.C., the license stays with the system. 11 MR. ? (MARK): It stays with the property. 12 COMMISSIONER GRIFFIN: And even though it's 13 in your name, in that case. 14 MR. ? (MARK): If you were not the legal 15 owner of the property, then no, we wouldn't try to enforce 16 that on you. We would go to the legal owners and occupants 17 of the property, and go to them to have the system 18 corrected. 19 COMMISSIONER WILLIAMS: Regardless of whether 20 it had been transferred or not? 21 MR. ? (MARK): That's correct. 22 JUDGE HENNEKE: So, what's the value of a 23 transfer? 24 COMMISSIONER GRIFFIN: Almost none. That's 25 what Graber told me. He said you can do -- it sort of keeps 46 1 the books straight, you know, but the owner has got this 2 system and has got this license, and it's sort of nice and 3 tidy, but legally it means nothing. 4 MS. SOVIL: My house is not in my name; it's 5 in the subdivision's name. In 1984, they issued licenses -- 6 U.G.R.A. issued licenses to whole subdivisions, and the 7 whole subdivision got individual licenses. 8 COMMISSIONER WILLIAMS: Who put the septics 9 into each individual lot? 10 MS. SOVIL: I have no idea; it's not on the 11 deed. It's not on the papers, it's not on anything. Don't 12 know. 13 COMMISSIONER BALDWIN: So, you have to admit, 14 we've come a long way, baby. 15 MS. SOVIL: It was a U.G.R.A. system. 16 (Discussion off the record.). 17 COMMISSIONER GRIFFIN: We're sort of going 18 through the same path I ended up coming back to if we can't 19 enforce it, why are we going the to have a rule we can't 20 enforce? What we need to do, perhaps, is get everybody 21 educated that this is the Hill Country and we have a lot of 22 septic systems, and be careful when you buy because that -- 23 you could end up buying a system that's failed, doesn't 24 exist. 25 COMMISSIONER LETZ: If you have the 47 1 inspection rule, the people that are going to try to get 2 around it that need the -- you know, the people you're 3 trying to catch are going to get around it -- you know, not 4 going to follow the inspection -- the enforcement. So -- 5 COMMISSIONER GRIFFIN: We can -- if we can 6 get buyers to force the sellers -- 'cause, ultimately, 7 that's what -- that's what happened in the termite world. 8 You know, for years you didn't have to have a termite 9 inspection. Now there's hardly a jurisdiction in the world 10 that doesn't require a termite inspection. 11 JUDGE HENNEKE: Jurisdictions don't. Lenders 12 do. 13 COMMISSIONER GRIFFIN: Yeah, lenders also. 14 And that's for a different reason, 'cause it's the 15 structural integrity of the -- maybe. 16 COMMISSIONER WILLIAMS: Maybe that's the 17 angle we should go on this, so the lender controls it. 18 JUDGE HENNEKE: That's not something we can 19 require. 20 COMMISSIONER BALDWIN: Well, I want to ask 21 Mark a question, change horses here just a little bit. 22 Mark, the soil texture analysis. 23 MR. ? (MARK): Yes, sir? 24 COMMISSIONER BALDWIN: Is this directly 25 related to the Carlisle study? 48 1 MR. ? (MARK): It's very, very similar to the 2 Carlisle study. 3 COMMISSIONER BALDWIN: Very similar, but the 4 State didn't take the Carlisle study that we did and apply 5 it to their rules. 6 MR. ? (MARK): Not verbatim. 7 COMMISSIONER BALDWIN: But it's pretty 8 doggone -- 9 MR. ? (MARK): Pretty close. 10 COMMISSIONER BALDWIN: Thank you. 11 COMMISSIONER GRIFFIN: Have we had enough of 12 this? 13 COMMISSIONER LETZ: So, we're putting -- 14 going to put it back on the agenda? 15 COMMISSIONER GRIFFIN: Yes. And I would 16 like -- I would ask for everybody to think on this, and I'd 17 like to get comments from you, Mark, and Charlie or anybody, 18 the County Engineer, anybody. If you got an input, let's 19 see if we can help us think through this. We want to do the 20 right thing. We're trying to get it right, and I don't mind 21 admitting that I've changed my mind. I've -- from where I 22 started, at least, I've come sort of full circle. And -- 23 and -- but there is -- it's a complicated issue. I'd like 24 to get as many inputs as we can, and we'll get it back on 25 the agenda with a draft that the Court thinks is worth 49 1 looking at, and we'll do it. 2 COMMISSIONER BALDWIN: I agree. It's a very 3 strong document, and I think it's all we need. 4 JUDGE HENNEKE: Mr. Siemers? 5 MR. SIEMERS: I'm -- my memory may be failing 6 me on this, but when I read that, if I recall, there was an 7 exception which went -- which had to do with -- about lot 8 size, and we had a big discussion about that last time 9 around, I thought. If I remember correctly, I didn't think 10 greater than 10 acres was exempt from these tests. 11 COMMISSIONER GRIFFIN: No, we -- 12 JUDGE HENNEKE: No. 13 COMMISSIONER GRIFFIN: -- we removed that. 14 JUDGE HENNEKE: There's nothing -- 15 COMMISSIONER GRIFFIN: Nothing exempt any 16 more. 17 MR. SIEMERS: I was trying to remember that. 18 I was -- that's why I brought it up. I'm sorry. 19 MR. ? (MARK): If you're choosing to make 20 everything be licensed, that will have to be under Chapter 21 10, because it is different than State regulations. That 22 document that's from the State allows anything over 10 acres 23 to have an exemption. 24 MR. SIEMERS: That's what I was referring to. 25 COMMISSIONER BALDWIN: I always heard it did. 50 1 I -- 2 JUDGE HENNEKE: I can't find it, either. 3 Where is it? 4 MR. LUCAS: 285.20. 5 COMMISSIONER WILLIAMS: What? 6 MR. LUCAS: I think it's 285.20. 7 COMMISSIONER BALDWIN: Right in the front. 8 COMMISSIONER LETZ: 285 -- 9 COMMISSIONER BALDWIN: Under Definitions. 10 MR. LUCAS: 285.20. 11 COMMISSIONER BALDWIN: Oh, .20. 12 COMMISSIONER GRIFFIN: Any O.S.S.F. for 13 single residence that's 10 acres or larger in which the 14 sewage line is exposed as not closer than 100 feet of 15 property line is not required to submit an application for 16 authorization. That is in there. 17 COMMISSIONER BALDWIN: All right, hold on. 18 COMMISSIONER WILLIAMS: Which section? 19 JUDGE HENNEKE: Under (1) -- last sentence 20 under (1), 285.20(1). 21 COMMISSIONER WILLIAMS: That's what it says. 22 JUDGE HENNEKE: Of course, this -- yeah, this 23 is in -- this is T.N.R.C.C. administration of the O.S.S.F. 24 program where no local administration exists. 25 COMMISSIONER WILLIAMS: So we have to have 51 1 Section 10 if we want to change it. 2 JUDGE HENNEKE: No. 3 COMMISSIONER LETZ: This doesn't apply to us. 4 JUDGE HENNEKE: Doesn't apply to us. 5 COMMISSIONER BALDWIN: We have a local -- 6 COMMISSIONER LETZ: Subchapter C doesn't 7 apply to us. 8 JUDGE HENNEKE: Right, Subchapter C doesn't 9 apply to us at all. 10 MR. SIEMERS: Okay. 11 COMMISSIONER GRIFFIN: That's right. 12 COMMISSIONER BALDWIN: Do y'all see it that 13 way? 14 COMMISSIONER GRIFFIN: Would you look at it 15 again for us? 16 MR. ? (MARK): Yes, sir, I'll have to reread 17 it. 18 COMMISSIONER GRIFFIN: Subchapter C says 19 Commission Administration. T.N.R.C.C. administration of 20 O.S.S.F. -- of the O.S.S.F. program in areas where no local 21 administration exists. 22 MR. ? (MARK): Okay. 23 COMMISSIONER GRIFFIN: they're saying if they 24 administer it, they will -- they have a 10-acre exemption. 25 MR. LUCAS: Yeah, that's right. 52 1 COMMISSIONER GRIFFIN: But we have a local 2 administration. 3 MR. ? (MARK): Right, but if you adopt those 4 rules, I think it's determined that you would be adopting 5 that 10-acre regulation. 6 COMMISSIONER BALDWIN: I don't see it that 7 way. 8 COMMISSIONER GRIFFIN: I don't either, but 9 I'll tell you what. We need to find that one out, and I 10 will -- I'll call Graber myself and ask, 'cause we'll want 11 to -- 12 COMMISSIONER BALDWIN: I find it interesting 13 that it's okay for the State to do and -- 14 COMMISSIONER LETZ: It's not okay for us. 15 COMMISSIONER BALDWIN: -- not okay for us. 16 COMMISSIONER GRIFFIN: Well, in fact, this -- 17 see, that makes some sense, 'cause they told me -- he -- 18 Graber told me, you could put in your rule if you want to a 19 10-acre exemption. We don't have any problem with it. See, 20 that -- in other words, we would buy their exemption. They 21 don't want to fiddle with them if they're so large, is what 22 they're saying, because they've probably got enough small 23 ones to worry about. And -- but, anyway, I'll call on that. 24 COMMISSIONER BALDWIN: That is so 25 interesting. You guys are good. I love y'all. Well, I got 53 1 carried away that time, but -- 2 (Laughter.) 3 COMMISSIONER BALDWIN: Stretch it out a 4 little bit too far. 5 COMMISSIONER WILLIAMS: Back to the drawing 6 board. 7 JUDGE HENNEKE: Anything else on the O.S.S.F. 8 rules? Okay. Let's turn to the draft Subdivision Rules and 9 Regulations. Jonathan, do you have anything you want to 10 point out to us in particular? 11 COMMISSIONER LETZ: No. 12 (Laughter.) 13 JUDGE HENNEKE: Okay. 14 COMMISSIONER GRIFFIN: We can do this one a 15 lot faster than we did the last one. 16 COMMISSIONER LETZ: What I did on this last 17 draft is, one, I've taken water availability out and mobile 18 homes out, which shortened it by about 15 pages. The -- for 19 the most part, I can't guarantee I caught all of them, but 20 things that are underlined are different from last year -- 21 or last year's -- last -- than the current version. And 22 most of those are substantially different. 23 I guess I'll start to quickly go through it. 24 There's a few areas that I have some things we need to 25 discuss, but most of it's really fairly simple. Page 4, 54 1 under General Provisions, this is almost verbatim out of the 2 law. That's why it got so long, is because it had a lot of 3 exemptions, but it is basically straight out of Section 232 4 regarding what is a subdivision, who is required to do 5 platting, and has all of the -- the provisions that were set 6 out under Senator Wentworth's bill regarding Elgin Bank, or 7 the flag lot rule, which is in here. 8 On Page 5, I added the provision about we are 9 designated as a Priority Groundswater Management Area, 10 citing the authority for water availability primarily, but 11 there may be some other authority that we get out of that, 12 but I cited that for reference. 13 COMMISSIONER WILLIAMS: Typo on (e). 14 COMMISSIONER BALDWIN: Is that a typo or is 15 that some kind of state language? 16 COMMISSIONER WILLIAMS: "Has be designated." 17 COMMISSIONER LETZ: Be? Has be. Kerr County 18 has be designated. 19 JUDGE HENNEKE: Ebonics. 20 COMMISSIONER WILLIAMS: State Ebonics. 21 (Discussion off the record.) 22 COMMISSIONER GRIFFIN: Nitpicky. 23 COMMISSIONER LETZ: Well, I will say most of 24 these were done on my computer. My computer has a mind of 25 its own about where it indents. They kind of vary 55 1 throughout, for some reason I have never figured out. I 2 trust Thea to be able to figure it out when she does the 3 final version. 4 Under the Definition section, I've underlined 5 a couple of things. I've added -- or modified one; I 6 thought it would be useful to add in county road, private 7 road, and public road. But I'm not sure I used -- the 8 definition I use is a very simple one. County road is a 9 road under county control and -- maintenance and control of 10 the County. On Page 9 you get private road, a road that is 11 not under control and maintenance of Kerr County. And then 12 public road, a road open to the public that may or may not 13 be under the control or may not be maintained by Kerr 14 County. I'm not sure those are legal definitions. We might 15 ask Travis to look at those to see if there's a problem with 16 what I was trying to do. We have so many questions about 17 public and private and county roads and trying to make it as 18 simple as possible. 19 COMMISSIONER GRIFFIN: Yeah. 20 COMMISSIONER BALDWIN: Isn't a public road 21 under the control of the government, but not maintained? 22 COMMISSIONER GRIFFIN: I would think that's 23 so, too. But there may be a more -- 24 COMMISSIONER LETZ: I'm not sure -- I mean, 25 if you look at a subdivision, like a public -- Saddlewood, 56 1 they can close the gates if they want, but it's a public 2 road. Not under -- 3 COMMISSIONER GRIFFIN: They can't limit 4 access, though. 5 MR. JOHNSTON: No, those are private roads. 6 COMMISSIONER LETZ: That's private? 7 COMMISSIONER BALDWIN: If it's a public road, 8 that means that we have access to it, but we don't 9 necessarily maintain it. 10 COMMISSIONER GRIFFIN: Could be a public road 11 that we don't choose to maintain. 12 COMMISSIONER BALDWIN: It may or may not. 13 COMMISSIONER LETZ: Road open to the public 14 that may or may not be under the control and maintenance. 15 COMMISSIONER WILLIAMS: Well, there wouldn't 16 be any situation where you had a public road that was not 17 under the control. 18 COMMISSIONER LETZ: Okay. 19 COMMISSIONER BALDWIN: I agree. 20 COMMISSIONER GRIFFIN: But it may or may not 21 be maintained. That's the -- the thing. 22 COMMISSIONER LETZ: Open to the public, may 23 or may not be maintained. 24 COMMISSIONER WILLIAMS: That is under the 25 control. 57 1 MR. JOHNSTON: Roads that are maintained are 2 only done so by order of Commissioners Court. 3 COMMISSIONER LETZ: Okay. I don't think we 4 really changed much else under the Definitions. Page 12, 5 Section 3, very few changes there. No changes to Variances. 6 Subdivision Standards. Page 14 -- 7 JUDGE HENNEKE: I like the first version 8 better. 9 COMMISSIONER LETZ: The main one on 14 is 10 5.01.E. This goes back to -- there's two pages -- these are 11 both Page 14. The first one basically says we have 5-acre 12 limits if they're individual water wells. Beyond that, you 13 can do what you want, you know. And we're not limiting 14 based on O.S.S.F. at all, or -- but what that also means is 15 that you can go to quarter-acre lots or smaller. You can do 16 anything you want. And I don't know if we -- you know, if 17 we want that. And -- 18 COMMISSIONER WILLIAMS: So long as they're 19 under -- 20 COMMISSIONER LETZ: Community system. 21 JUDGE HENNEKE: So long as they're under 22 deed, which is you can't have more than -- total number of 23 lots than the total acreage divided by five. 24 COMMISSIONER LETZ: Unless you have surface 25 water. 58 1 JUDGE HENNEKE: That should be a principal -- 2 as the principal. 3 COMMISSIONER LETZ: Yeah, that's right. I 4 mean, it makes sense to me to go with this one. It's 5 just -- it was pointed out there's few -- a few -- in which 6 case, you could probably -- it may be beneficial to leave it 7 the way it's worded on the first Page 14, clearly so that 8 there's no acreage limitation for -- regarding O.S.S.F. or 9 community sewage systems. Or to delete the "and." If -- 10 instead of 5-acre lots where individual water well is 11 planned. We can do it either way. My preference is 12 probably leave it the way it is worded right now on 14. 13 JUDGE HENNEKE: I think -- 14 COMMISSIONER LETZ: Since we've changed this 15 quite a bit from before. On Page 15, correction. Franklin, 16 is the height of the sign 7 feet or 9 feet? 17 MR. JOHNSTON: Seven. 18 COMMISSIONER LETZ: Seven, okay. 19 MR. JOHNSTON: I think. 20 COMMISSIONER LETZ: And then that's on Page 8 21 -- Page 16, bottom of Page 16 -- top of Page 16, we need to 22 add in the red with reflective -- or red -- green sign with 23 red tape, under A. 24 COMMISSIONER GRIFFIN: Mm-hmm. 25 COMMISSIONER LETZ: Right, that same 59 1 language. Page 16 also, under Waste Disposal, basically 2 looking for in your -- under O.S.S.F., you're under the 3 O.S.S.F. rules, and refer to those. And then under B, there 4 is some language added based on the request from U.G.R.A. 5 That is -- it's the last sentence. If a wastewater 6 collection treatment service is to be provided by utility 7 service provider entity other than a community collection 8 system, that entity shall review the system and facility 9 plan, and developer -- and developer shall provide a letter 10 from such entity approving such system. And, basically, 11 these rules never contemplated earlier that there would be 12 some -- such as the City of Kerrville agreeing to take on 13 sewage outside the city limits. 14 COMMISSIONER WILLIAMS: I think it 15 contemplates U.G.R.A. being a -- putting in collection 16 systems and tying into the city sewer system. 17 COMMISSIONER LETZ: Right. But in the past, 18 that was never even thought about, so this is to try to 19 allow U.G.R.A. or somebody else or the City to tie to their 20 system, that they have to approve basically the junction to 21 the city system. Page 17 -- I'm just going through where I 22 made changes. If anyone else has any questions or comments 23 on E... Under drainage, B, there's some additional language 24 that Frank asked us to include regarding construction -- 25 post and preconstruction runoff rates. And this is an area 60 1 that we have strengthened -- this is a little bit, I guess, 2 stronger language under drainage than our current rules, but 3 they're still -- I'm not sure they're -- we don't address 4 siltation at all, having to do with anything in that regard. 5 I don't know if you want to get into that when we get into 6 some of these -- 7 MR. JOHNSTON: That that might be under 8 U.G.R.A., 'cause they're the Designated Representative 9 for -- for EPA, right? Siltation comes under the Clean 10 Water Act. That's an EPA rule. 11 COMMISSIONER LETZ: But they really don't -- 12 I don't -- to my knowledge, they don't really -- 13 MR. JOHNSTON: They don't check it. 14 COMMISSIONER LETZ: -- do much with that. 15 And I don't know if we need to -- it's not just siltation. 16 There's erosion and that whole drainage issue. We kind of 17 are talking more and more about it. And, it's obviously -- 18 the implication is that we want to limit erosion and 19 drainage problems and putting water on other people's 20 property and things of that nature, and I just want to make 21 sure that, you know, we're happy with this language. 22 COMMISSIONER BALDWIN: As an example, the 23 concern I had this morning about Northwest Hills and the 24 slope of the hill and the drainage and the wash-off and all 25 those things that are -- does that need to be in here 61 1 somewhere? 2 MR. JOHNSTON: I think that's covered. I 3 think, under our rules, we can request a drainage study for 4 replatting, just to make sure there's not any local flooding 5 or siltation would come into effect if they stripped all of 6 the vegetation off the hills. How do you handle that and 7 keep everything from washing down to the river? 8 COMMISSIONER BALDWIN: Well, that's exactly 9 what I'm talking about. 10 (Judge Stacy entered the courtroom.) 11 COMMISSIONER BALDWIN: Whoa, my gosh. 12 MR. STACY: Let there be light. 13 (Laughter.) 14 COMMISSIONER WILLIAMS: Did you say "light" 15 or "life"? 16 COMMISSIONER BALDWIN: Really. 17 COMMISSIONER LETZ: It might be something 18 that -- everyone read through this again carefully, 'cause I 19 think it's a very important issue on drainage that 20 we're changing some. Also, going up to early -- further up 21 on Page 17, to 5, another typo. 5.04.C, Franklin, are we 22 happy with that 3-foot as the depth we want the utility 23 lines buried at? I think -- I've had some developers say 24 they think that's too deep. 25 MR. JOHNSTON: I'm happy with it. They say 62 1 in some cases they -- you know, they have trouble digging 2 that deep, but they just don't provide the right size 3 machine, I think, for rock. That's the only issue. 4 COMMISSIONER LETZ: Okay. 5 COMMISSIONER BALDWIN: I don't know how many 6 we've had, but we've granted, I think, two variances for 7 that in the past. 8 MR. JOHNSTON: Yeah, we've granted variances 9 for them, but in some cases we granted variances where the 10 rock was only just a few inches thick and there was just 11 caliche under that. They could have dug deeper, but since 12 they had the variance, they didn't. 13 JUDGE HENNEKE: Okay. 14 COMMISSIONER LETZ: Section 6, Platting 15 Procedure, begins on Page 19. Really, there's virtually no 16 changes here. Forget I underlined 6.02.E.1, Page 21. I may 17 have done that regarding -- I think I underlined that 18 because of the routing slip. That is -- this is an area 19 that I hear complaints about a lot, about how that's done. 20 I don't know what the better -- we put the total burden on 21 the developer to get those through, and some of the 22 developers have a hard time getting them through because -- 23 I mean, depends on where your subdivision is. You do the -- 24 maybe deal with several people, utility companies and other 25 people, that somehow are different. Like -- for example, 63 1 like at Central Texas, if their signer is on vacation, the 2 person who has to approve it, nothing happens up there. So, 3 it just -- you know, they complain that, you know, why they 4 have to -- why we have to require all these different 5 sign-offs on the routing slip. 6 COMMISSIONER BALDWIN: The way I understand 7 it is that when the utility company receives it and they 8 sign off on it, that doesn't mean that they approve 9 everything; that just simply means that they have received 10 the document. Is it not? 11 COMMISSIONER LETZ: Well, it's supposed to. 12 MR. JOHNSTON: Preliminary. 13 COMMISSIONER LETZ: But some of them refuse 14 to sign it. As an example -- 15 COMMISSIONER BALDWIN: I know, because they 16 think that they're approving something. 17 COMMISSIONER LETZ: Right. Like T., in the 18 past, has refused to sign for 911 because he hasn't had time 19 to look at it and he doesn't -- you know, he's not going to 20 sign it until he has a chance to approve it. So, it's 21 probably out -- I hear more complaints from developers, and 22 I'm sure Road and Bridge probably hears them as well, about 23 this part of the process, that it's cumbersome and takes too 24 long, and that there's not an issue of them -- the number of 25 copies they have to make and getting to these people, but 64 1 trying to get the signatures has been difficult. And I 2 don't know how to solve that, other than to bring it up that 3 it is a -- 4 MR. JOHNSTON: I think, since we're going to 5 that 30 days, which has always been on there, but in the 6 past they tried to compress that, but when we stick to the 7 30-day rule, they have plenty of time to get those in now. 8 We also accept faxes from utilities. They don't have to 9 actually sign that one form; they can just send a fax saying 10 that they received the drawings and we attach them all 11 together. So -- 12 COMMISSIONER LETZ: So, most of the problems 13 are because they can't read. The developers are taking too 14 long to start the process. 15 COMMISSIONER GRIFFIN: They want signatures 16 on Friday afternoon before Monday court. 17 COMMISSIONER BALDWIN: Yeah. 18 COMMISSIONER GRIFFIN: That's the problem. 19 COMMISSIONER LETZ: All right. We changed -- 20 on Page 22, we changed a little bit of the underline on 21 6.03.C.2. We changed the dimensions of the mylars to -- at 22 the request of the County Clerk, to get them so they all fit 23 in the same cabinet. The other one, on 6.03.C.3, Frank, do 24 you remember how many copies? We have 10 copies here. I 25 thought we were going to go to 6. Do you remember? Or are 65 1 we going to leave it at 10, the number of copies? 2 MR. JOHNSTON: We turn in 10. We request, I 3 think, 12, 'cause we have -- we have a couple office copies. 4 COMMISSIONER LETZ: This is just to -- you 5 know, does the Court want -- does the Court want to continue 6 to get a plat for each subdivision, or preliminary plat and 7 final plat? 8 COMMISSIONER GRIFFIN: For each member of the 9 Court. 10 COMMISSIONER LETZ: Each member of the Court. 11 My answer, for me, is yes. I mean, I look at them whether 12 they're in my precinct or not. 13 COMMISSIONER WILLIAMS: Yeah. 14 COMMISSIONER LETZ: Okay. The next real area 15 of change is on Page 25, 6.04, Revision of Plat of Existing 16 Subdivision. This is one that has gone round and round, and 17 I think we finally have a recent Attorney General opinion 18 which has set this to -- hopefully, to bed. And, this is 19 basically -- well, I think it is verbatim out of Section 232 20 on how you revise a plat. I guess, in a nutshell, a court 21 or a judge ruled probably improperly several years back and 22 got this whole thing confused as to what it applied or 23 didn't apply to, but there is now an Attorney General 24 opinion that says this does apply to Kerr County and 25 counties like this. The problem is, it puts a lot of burden 66 1 on the Court. If someone's going to revise a plat, the 2 Court shall provide notice three times and we shall notify 3 every member of the subdivision by certified mail. Number 4 C. 5 JUDGE HENNEKE: Can we check the expenses of 6 that from the developer? 7 COMMISSIONER LETZ: I don't know the answer 8 to that. 9 JUDGE HENNEKE: Currently, the Court has 10 to -- the Court can't -- we can't require the 11 developer/applicant to -- 12 COMMISSIONER LETZ: The section in the 13 Government Code is silent on fees. Doesn't say we can do 14 it. 15 MR. JOHNSTON: In the past, we've -- the 16 developer always paid $4.50 a name or something like that to 17 notify people. If -- 18 MS. BARBEE: Jannett would end up taking it 19 out of her -- 20 MR. JOHNSTON: When Pat Dye was here, they 21 charged the developer so much, $4.50 per name, each 22 landowner. 23 MS. BARBEE: Only if they can produce an 24 address that went with it. If we had to do the research to 25 get the name, the address, and everything totally, then they 67 1 were permitted -- from what I understand, to charge. But, 2 if there was no research and they were just given the names 3 and everything was supplied, I didn't understand that there 4 was a fee. 5 MR. JOHNSTON: Certified mail costs, what, 6 $2, $3? 7 COMMISSIONER LETZ: The problem -- I mean, 8 and it's -- I'll defer to Travis on this, but it's very 9 clear within the language that Commissioners Court shall do 10 it. And, it doesn't say we may collect reimbursement, and 11 so I don't know -- I just know what Section 232 says. 12 MR. LUCAS: You're right, it says -- this is 13 232.009 -- "The Court shall publish a notice." And it goes 14 on to talk about, of course, these being a in general 15 circulation newspaper. You know, obviously, state the time, 16 the place, and that it must be published at least three 17 times during the period that begins the 30th day and ends on 18 the 7th day before the date of the meeting. That's all that 19 it speaks to. It's a 1999 statute. 20 COMMISSIONER LETZ: That final sentence says 21 if part of the subdivided tract has been sold to 22 nondeveloped owners, the Court shall also give notice to 23 each of the owners by certified or registered mail, return 24 receipt. So, you know, it's just -- we don't have a choice, 25 really; it's the law. But, it's just a -- to point out. 68 1 And this is very different than the current rules that we 2 are using for revision of plat; much more onerous, much more 3 time-consuming. But, based on the most recent or -- and I 4 think the -- the Attorney General's opinion was in July of 5 this year, I believe. Very recently. 6 MR. LUCAS: Yeah, July of 2000. 7 MR. JOHNSTON: The way we used to do it in 8 the old '84 rules. 9 COMMISSIONER LETZ: This was in our old 10 rules; we had modified it. 11 MR. JOHNSTON: Changed it a couple years ago. 12 COMMISSIONER LETZ: Anyway, on the next on 13 Page 26, on Cancellation of Subdivision, again, Section 232 14 is very clear on how you cancel a subdivision. And then the 15 following page, on Page 27, goes on to Cancellation of 16 Subdivision if Land Remains Undeveloped. And, again, those 17 are all straight out of the Local Government Code, except 18 they're also a little more onerous. Under Road 19 Design/Classification, we didn't make very many changes 20 here. One area that I'd like to, I guess, talk about a 21 little bit on is on Page 29. And this goes -- top of the 22 page. It's minimum lot frontage. Since we're changing to 23 5 acres as the minimum lot size for the most part -- or are 24 we going to no lot size? That -- how do we want to address 25 this? 69 1 And I might add that, I guess, two years ago 2 we had an opinion from Tom Pollard which questioned our 3 authority to do the -- this whole issue, basically. We did 4 this on the basis of public safety. Did not want too many 5 driveway entrances too close together on a road, was our 6 justification, but the reason behind it was also to prevent 7 flag lots. His -- and Tom's line of thinking, basically, 8 was we're on real shaky ground. So, I think if you're -- 9 you know, to me, it makes sense to have some requirement on 10 minimum lot frontage. I'm not sure that's the best number. 11 On a cul-de-sac that works pretty good, and that's pretty 12 reasonable. It's when you get up to the 200-foot that -- 13 and this is the area that we get probably more variance 14 requests than anything else, so we need some, I guess, 15 guidance as to what numbers we finally do here and what are 16 we going to do if people go with a -- with cluster 17 developments. You clearly can't -- well, if you go down, 18 like, quarter-acre or zero lot lines, you can't have any 19 kind of a restriction. 20 COMMISSIONER GRIFFIN: How does the State law 21 address that? How -- 22 COMMISSIONER LETZ: I don't think -- well, 23 the -- 24 COMMISSIONER GRIFFIN: It doesn't? 25 COMMISSIONER LETZ: The Local Government Code 70 1 doesn't really address this at all. I think we do have some 2 basis on public safety, having driveways too close, but 3 we're probably -- 4 MR. JOHNSTON: This came out when -- back 5 during the Elgin Bank lawsuit and all that. At that time, 6 we had some document from Austin that said the counties had 7 the authority to set a minimum frontage. That's why we did 8 it. I'll have to research that, what they based as the 9 reason for that lawsuit. 10 JUDGE HENNEKE: My feeling is leave it as it 11 is in addressing the request for variances. 12 COMMISSIONER BALDWIN: I agree. 13 COMMISSIONER LETZ: Do we -- since we don't 14 have this on the earlier language, if they're less than 15 5 acres, we really don't have any acreage requirement. 16 Should we delete the frontage requirement, as well? Just 17 have minimum lot frontage on -- or minimum lot frontage 18 200 feet, or -- 19 JUDGE HENNEKE: No, I'd leave it like it is, 20 because that gives us the ability, if someone wants to do a 21 cluster, to look at where their driveway is, to perhaps 22 require them to indicate on the lot configuration where 23 their driveways would be and let them take a look at it in 24 order to get a variance. So, I -- my suggestion would be 25 leave it as it is. 71 1 COMMISSIONER LETZ: Just say minimum lot 2 frontage on 5 acres or more than minimum lot frontage for 3 less than 5 acres? 4 JUDGE HENNEKE: Mm-hmm. 5 COMMISSIONER LETZ: Okay. 6 COMMISSIONER LETZ: I think that's just about 7 the -- that's the last of the changes, really, I guess. We 8 have -- 9 MR. JOHNSTON: When you have a cluster, is 10 that still, overall acreage, 1 acre average lot size? 11 COMMISSIONER LETZ: Yes. 12 MR. JOHNSTON: So that's almost a city lot. 13 COMMISSIONER LETZ: Unless it's using surface 14 water. Then they can go under higher density. 15 JUDGE HENNEKE: Are you going to delete 8 16 and 9, which is the water availability and -- is that what 17 you -- 18 COMMISSIONER LETZ: I don't know. I put them 19 in here so I wouldn't forget them. 20 COMMISSIONER GRIFFIN: How about -- 21 COMMISSIONER LETZ: I'd really like to have 22 them in this document as sections, and just say -- but just 23 have it verbatim. Maybe have it as an appendix. It may be 24 better as an appendix. 25 JUDGE HENNEKE: My inclination would be, if 72 1 you're going to put them in here, is to have a reference to 2 the order and then attach the order as an exhibit or 3 appendix. That way you don't get any possibility of -- 4 COMMISSIONER LETZ: Changing one. 5 JUDGE HENNEKE: -- changing wordage, like we 6 had -- we had to change the 8's to 1's. If you miss that 7 coming back again, then you create an ambiguity. So, I 8 think it's a good idea to have it in there, but just a short 9 paragraph that says that -- you know, let's do it under 10 General Provisions in the front. 11 JUDGE HENNEKE: Or back at 8, 9 where you 12 want to, but just a little blurb that says, you know, 13 approval of plats under these rules are subject to the 14 satisfaction of the Water Availability Requirements, as 15 adopted by the Court in Court Order number such-and-such, 16 dated so-and-so, a copy of which is attached hereto as 17 Appendix whatever. 18 COMMISSIONER LETZ: All right. 19 JUDGE HENNEKE: That way you don't get caught 20 in the back and forth language restructure. 21 COMMISSIONER LETZ: I think, to me, it should 22 be put it up front in Section -- 23 JUDGE HENNEKE: Wherever. 24 COMMISSIONER LETZ: General Provisions, both 25 of them, and attach it as an appendix or exhibit. 73 1 JUDGE HENNEKE: Mm-hmm. 2 COMMISSIONER BALDWIN: Commissioner Letz, 3 what about, under your definitions, add the word "cluster"? 4 Is that -- do you think that that is necessary? 5 COMMISSIONER LETZ: Do we use the word 6 "cluster" in here? 7 COMMISSIONER BALDWIN: It's been used 8 numerous times around the table. 9 COMMISSIONER LETZ: But isn't it in the 10 document? 11 COMMISSIONER BALDWIN: I didn't see it, but 12 we were talking about frontage -- road frontage, number of 13 feet from road frontage, which just -- just brought up that 14 point dealing with clusters. 15 JUDGE HENNEKE: Unless it's a term that's 16 used in the document, I would suggest we don't make a 17 definition. 18 COMMISSIONER LETZ: I was looking back under 19 -- I mean, I think it -- we strongly imply, when we get into 20 the Subdivision Standards on the acreage requirements, we 21 kind of all of a sudden say, you can do less than 5 acres if 22 you're on surface water water source -- principal water 23 source. So, to me, someone else may call it something other 24 than cluster. Maybe a zero lot line or something. 25 COMMISSIONER BALDWIN: Okay, cool. 74 1 COMMISSIONER LETZ: Boy, that was pretty 2 painless. 3 JUDGE HENNEKE: A lot of hard work. 4 COMMISSIONER GRIFFIN: Do we have a public 5 hearing set on this one. 6 COMMISSIONER LETZ: No. 7 JUDGE HENNEKE: No, we have haven't approved 8 anything. 9 COMMISSIONER LETZ: With those few changes, 10 it could easily be brought back for next Court and then set 11 the public hearing on this for two weeks after the other two 12 so they can all be incorporated. Or -- 13 JUDGE HENNEKE: First meeting in December. 14 COMMISSIONER LETZ: Right. But if we do it 15 that way, if we make a change to either of the other two, do 16 we have to redo this public hearing, too? I guess not. 17 JUDGE HENNEKE: Not if you do it by 18 reference. 19 COMMISSIONER LETZ: Right, okay. All right. 20 JUDGE HENNEKE: Okay. Anything else? Any 21 other comments? 22 COMMISSIONER LETZ: Travis, are we on strong 23 legal ground on all this stuff? 24 MR. LUCAS: Everything you and I have looked 25 at, yeah, I've been sweating it. Yeah, you bet. 75 1 JUDGE HENNEKE: All right. If there's 2 nothing else to come before us, we stand adjourned. 3 (Workshop concluded at 3:05 p.m.) 4 - - - - - - - - - - 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25