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KERR COUNTY COMMISSIONERS COURT
Workshop
Tuesday, September 18, 2007
1:00 p.m.
Commissioners' Courtroom
Kerr County Courthouse
Kerrville, Texas
PRESENT: PAT TINLEY, Kerr County Judge
H A."BUSTER" BALDWIN, Commissioner Pct. 1
WILLIAM "BILL" WILLIAMS, Commissioner Pct. 2
JONATHAN LETZ, Commissioner Pct. 3
BRUCE OEHLER, Commissioner Pct. 4
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I N D E X
September 18, 2007
PAGE
Participate in workshop with Bickerstaff, Heath,
Delgado, Acosta, Ltd. to obtain/exchange information
regarding, but not limited to, recent legislation,
water availability, subdivision rules, and other matters
subject to regulatory authority of Commissioners Court 3
Senate Bill 1867 7
Model Subdivision Rules 64
County Fire Marshal 101
Adjourned 113
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3
On Tuesday, September 18, 2007, at 1:06 p.m., a
workshop of the Kerr County Commissioners Court was held in
the Commissioners' Courtroom, Kerr County Courthouse,
Kerrville, Texas, and the following proceedings were had in
open court:
P R O C E E D I N G S
JUDGE TINLEY: Okay, let's go ahead and get
underway. Let me call to order the workshop of Kerr County
Commissioners Court posted and scheduled for this date and
time, Tuesday, September 18, '07 at 1 p.m. It is just a hair
past that time now. The item on the agenda is to participate
in a workshop with Bickerstaff, Heath, Delgado, Acosta to
obtain/exchange information regarding, but not limited to,
recent legislation, water availability, subdivision rules,
and other matters subject to regulatory authority of
Commissioners Court. I'm going to let you guys just pick it
up and run with it. If --
MR. KIMBROUGH: Thank you.
JUDGE TINLEY: Just come ahead on.
MR. KIMBROUGH: Thank you. May it please the
Court, I'm Chuck Kimbrough, and this is my partner, Claudia
Russell, and we practice law in Austin with the -- with the
Austin office of the law firm. And we were asked to come
visit to tell you about the issues that you described on the
agenda. We've got some materials to pass out. How do you
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want me to proceed, Your Honor?
JUDGE TINLEY: Any way you want to.
MR. KIMBROUGH: Okay. All right. We have several
topics; they're interrelated, in terms of the handouts. The
first one is the Senate Bill 1867 material that redefined in
a very significant way Subchapter E of Chapter 232, formerly
what we -- we called in our line of work the urban county
subdivision rules. But now we no longer call Subchapter E
the urban county rules, because they've been opened up for
all counties, if they choose -- the Commissioners Court
chooses to do so. So, we have a -- we have a handout on
Senate Bill 1867, and I'll just pass those out. And it's got
attachments to it that we can talk about as we go through it.
COMMISSIONER LETZ: Chuck, is it set up where it's
a pick and choose, Subchapter E?
MR. KIMBROUGH: I think the answer is yes on that.
COMMISSIONER BALDWIN: Thank you.
MR. KIMBROUGH: Now, the front page of that is --
we tried to boil it down to its essentials, and the first two
pages are the boil-down, the bullet point deal. Then we've
got some documents attached that are the actual bill, the
statutes, and some related stages. Okay. Now, the next
topic that I believe that y'all were interested in hearing
about from us are the model subdivision rules under Chapter
31, Sections 355.72, 364.11 through 364.18 of the
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Administrative Code, and we have a printout on that. It's in
summary, and then some documents attached to it to help you
through it. All right, that's the second printout.
M.S.R.'s, that's what we call the model subdivision rules.
Then an issue that's related -- not particularly requested,
but I don't think you knew about it. But when I talked to
Commissioner Baldwin on the front end, I mentioned this to
him, and I decided I would give you something on this as
well, some printouts and attachments regarding the county
fire marshal statute under Chapter 352 of the Local
Government Code. Again, it's a -- you know, a couple-of-page
summary with attachments, and we'll go through that. I think
that's real important to consider if you're thinking about
increased regulatory opportunities for subdivisions. And
then, finally, this is something that Commissioner Baldwin
wanted me to make sure I mentioned, something about what
happens when you have overweight vehicles riding on your
roads. And there was a recent Attorney General's opinion --
COMMISSIONER BALDWIN: And the question is, do you
shoot first and then ask questions? Or is it same-old,
same-old?
COMMISSIONER WILLIAMS: Put tanks out and blow the
MR. KIMBROUGH: Well, the A.G.'s office wrote about
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the interplay between the County's ability to issue permits
for weight issues and the state law that allows a company to
get overweight permits, and the interplay between those
statutes and the County's authority. And this opinion dated
January 30 of '07 really hurts us, but you need to know about
it. And then there's some information on the summary that
suggests that maybe the answer lies in the criminal
violations of the traffic code, as opposed to the county
regulatory authority on the civil side. But I did give
you --
(Low-voice discussion off the record.)
MR. KIMBROUGH: All right. Probably more than what
you want to hear.
COMMISSIONER OEHLER: Can't digest that all in one
~ meeting.
COMMISSIONER BALDWIN: Oh, yeah. I'm leaving in 30
minutes anyway.
JUDGE TINLEY: You can
minutes, can't you, Buster?
COMMISSIONER BALDWIN:
JUDGE TINLEY: You can
minutes, can't you, Buster?
COMMISSIONER BALDWIN:
MR. KIMBROUGH: That's
put the summary up front. The a
absorb all that in 30
Huh?
absorb all that in 30
Oh yeah.
why I wanted to be sure and
ttachments are really where
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the meat is, so that if you want to, you can read it or ask
questions about it. Okay. So, I guess what we ought to do
is start with 1867? Is that in agreement with everybody?
Okay.
MS. RUSSELL: Of course, 1867 started out --
Senator Zaffirini from the border, Laredo, had just a general
bill, and it only affected Subchapter A of 232, of the
general requirements of plats. And then this whole bill
started out as just amend -- being allowed to make amendments
to plats. It passed, and it went through the House, and on
the House floor, Representative Hilderbran tacked on two
amendments with little discussion, and that's how the
Legislature works. I mean, it will just -- something will
happen, and boom, there it is, and then you look at the bill,
and in that amendment there's a repealer, and it's stuck in
the back of the -- of the bill, and it's one little sentence
that says 232.100 is repealed. And what that is, is the
beginning part of Subchapter E that used to define urban
counties, and now that they repealed the one little section
that defined who it applied to, it opened it up to all
counties. So, I mean, this happened, boom, boom, at the
Legislature, and I'm sure still some are not even aware of
what has just happened.
MR. KIMBROUGH: We subscribe to the TV tape feed
and are able to call it up. Claudia's -- part of her
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practice is legislative affairs, and she -- well, you tell
them what you saw on the floor when it happened.
MS. RUSSELL: Sure. Sure. So, I mean, you know,
that happens and you're thinking, "Well, maybe I can get a
little history of what was said or how they introduced the
amendment." And I went back and pulled it up to the date
where Representative Hilderbran is offering the amendment,
and it's nothing. I mean, it's so fast -- it moves so fast,
it's just, "Here's an amendment; it's acceptable to all," and
boom, in it goes. So, no -- no discussion, no anything. And
that's just how fast it moves. And --
COMMISSIONER BALDWIN: That just means that they
won't trust him any more.
MS. RUSSELL: Well, I think the Legislature -- most
counties always -- you know, the Legislature moves, like we
mentioned earlier, like in small, little increments. They
just -- you know, counties have been looking for increased
regulation for a long period of time, but the Legislature
will never give it to you in a full dose. They just -- you
know, it's small increments as the Legislature moves.
COMMISSIONER LETZ: And this was also -- I probably
shouldn't even bring this up.
COMMISSIONER BALDWIN: Sure you should.
COMMISSIONER LETZ: Harvey's other part of that
amendment --
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MS. RUSSELL: Was about the road.
COMMISSIONER LETZ: -- was the Kendall County --
Kerr --
MS. RUSSELL: That's right.
MR. KIMBROUGH: Yes, sir.
COMMISSIONER LETZ: Our subdivision -- our
neighboring subdivision, that issue, to help them.
MR. KIMBROUGH: Right. And what I want you --
COMMISSIONER LETZ: That's what -- I'm kind of
interested in what that means, really.
MR. KIMBROUGH: All right. Well, let's take --
COMMISSIONER LETZ: I didn't ask the question. I
can't talk about it.
MR. KIMBROUGH: Well, take the clip out of --
COMMISSIONER LETZ: My ranch borders that property;
I have to recuse myself on everything to do with that
subdivision. That's why I say that.
MR. KIMBROUGH: -- the bullet point summary, which
is on our letterhead, which is our position. Then the next
thing you ought to see is Chapter 232, Subdivision E, as
amended. This is what the statute looks like after 1867
became effective on September the 1st of 2007. Then the next
packet is the bill itself, 1867, you know, the -- the text
copy of the bill signed by the governor. All right? It has
Senate -- S.B. No. 1867 on the top right-hand corner. All
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right?
COMMISSIONER LETZ: I don't have that.
MS. RUSSELL: It's just not tabbed. It's right
behind that --
COMMISSIONER OEHLER: Right behind that sheet.
MR. KIMBROUGH: They're independently stapled
together, so if you take your little black clip off, they'll
fall apart.
COMMISSIONER LETZ: I see, okay. All right.
MR. KIMBROUGH: Or fall as stapled.
COMMISSIONER LETZ: Okay.
MR. KIMBROUGH: Okay? Then, to give you some
reference, we xeroxed the standard or usual county
subdivision statutes, Subchapter A. It's got this "A" red
tab on it. All right? Then, because in the new version of
Subchapter E, the 1867 amendment, because the new version
piggy-backed some border county opportunities normally
allowed only to counties along the international border under
Subchapter B, we've given you the whole, big, thick stack of
Subchapter B. Now, the reason I've done this is because I
~, want to show you some things in this statute later on,
because they're important in regards to the explanation of
Subchapter E.
COMMISSIONER LETZ: Mr. -- Chuck, let me understand
what you just said. So, we have Subchapter A, which applies
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to us.
MS. RUSSELL: General.
COMMISSIONER LETZ: Now Subchapter E applies to us.
MR. KIMBROUGH: If you choose to do it.
COMMISSIONER LETZ: If you choose to. And
Subchapter E refers to Subchapter B.
MR. KIMBROUGH: Yes, sir. Now, she -- she
mentioned -- she mentioned what happened on the floor of the
House.
COMMISSIONER LETZ: Right.
MR. KIMBROUGH: This started out -- Senator
Zaffirini's bill was an innocuous bill.
MS. RUSSELL: Dealing with just Subchapter A, just
the general requirements.
MR. KIMBROUGH: How you amend a subdivision plat,
okay? You might go ahead and mention the history with
Senator Royce West out of Dallas.
MS. RUSSELL: Well, he --
MR. KIMBROUGH: His original bill.
MS. RUSSELL: He's always been a proponent of
granting more county authority, and he heads up the Senate
committee which over -- that the bill -- these bills come
through. So, that is where Harvey, I think, was getting some
support too. Some -- you know --
MR. KIMBROUGH: His bill had -- I don't remember
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the Senate Bill number. Senator Royce West proposed
legislation, but it said all counties in the state can pick
whatever they want to. If they want to go A, B, E, whatever
you want, you can pick. All right? Just you pick it. And
if you're going to pick it, then you need to have a local
election to support whatever the people want. All right?
Well, his bill got -- I don't even think it made it out of
committee, as I recall. But --
MS. RUSSELL: Didn't make it to --
MR. KIMBROUGH: -- at the end of the legislative
session, the issues surrounding the Speaker of the House were
going on, and a lot of stuff got added to a lot of bills, and
tacked onto Senator Zaffirini's innocuous plat amendment bill
were Harvey Hilderbran's amendments. And look at the
amendments; look at the actual bill, S.B. 1867. Upper
right-hand corner. It's the second thing into your packet,
all right? Look at the caption. "Relating to the filing of
an amended subdivision plat ... and to other county
regulations." Okay? Kind of an innocuous -- other -- yeah,
other regulations. So, the first two pages --
MS. RUSSELL: Bottom of Page 3.
MR. KIMBROUGH: -- talk about plat amendment.
Then, when you look at the bottom of Page 3, plat
requirements, it says, "The commissioners court, in addition
to having the authority to adopt rules under 232.101" --
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that's the broad grant of authority to do subdivision rules
regarding the health and safety and the welfare of all the
people in the county. The Court "may impose the plat
requirements prescribed by section 232.023." Now,
Commissioner Letz, that's a border county statute in
Subchapter B. Not a lot of people keep up with those
numbers. We do. It's our work. It's in our practical
experience. But that's a Subchapter B international border
rule. Keep reading. Fire Suppression System. On the last
page, 4, Section 232.109 is added to allow fire suppression
systems. We'll talk about that in a second. But then look
at Section 6, two lines from the bottom. "Section 232.100 is
repealed." That's the bracket.
MS. RUSSELL: That's what defined what an urban
county was.
MR. KIMBROUGH: The population bracket.
MS. RUSSELL: So, now that that's gone, it applies
everywhere.
MR. KIMBROUGH: So, if you want to look at the
statute now, Subchapter E, pull up that first -- that first
attachment that has -- it has "E" on the red deal. That's
how it looks today. 232.100 says it's been repealed by 1867.
There is no more bracket. It's available to every county in
'~ the state, if you choose to adopt it, with some special
promulgation requirements. There must be a notice published
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in the newspaper after a public hearing. I can go over that
with you later. But then the rest of it -- it's not very
long. The rest of it is how it looks after Senate Bill 1867
of the future for any county in the state who wants -- which
wants to attempt to provide for the orderly, safe, and
healthy development of growth in that county. It's not
mandatory that a county take advantage of this legislative
position. You don't have to do it, in other words. But if
you want to do it, your rights as a commissioners court for
this county are co-equal to the rights of the Dallas County
or the Harris County or the Midland County or the Caldwell
County or the Brazos County Commissioners Court. It applies
across the board.
COMMISSIONER LETZ: Chuck, on the notice, do you
have to give notice if you're going to amend your subdivision
rules, or do you give notice that you may use some of these?
MR. KIMBROUGH: When you look at -- and the answer
is the latter, because it is an issue-by-issue -- it's in
each one of the sections. If you'll take your red Tab E,
okay? The Subchapter E, how it looks right now after 1867
became effective, look at 232.101, that first big paragraph,
(a), "By an order adopted and entered in the minutes of a
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commissioners court, and after a notice is published in a
newspaper notice, okay? So, a county that is interested in
changing its subdivision regulations must pay particular
attention to what we call the notice or promulgation
requirements of each particular statute. And because they
are so complex, we like to recommend that if you're going to
do it, you set it up correctly and publish notice regarding
the whole show, the whole -- the whole substance of your
proposed amendment or supplement.
And there's another thing that you should -- need
to consider as well. It's the -- what we call the T.I.A.,
that's called -- I don't know if I'd get the words exactly
right, but the Texas Real Property Preservation Act -- Real
Property Rights and Preservation Act. The number of the
statute is Chapter 2007 of the Texas Government Code, and it
basically says that if a local government -- and a county is
certainly a local government under that statute -- proposes
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to pass an ordinance or a rule which may -- "may" constitute
a taking, as defined by either the Fifth Amendment to the
U.S. Constitution or Article 1, Section 17 of the Texas
Constitution, then before you do that, you must do an
analysis and vote on that analysis and publish that analysis
in the newspaper for at least 30 days before you engage in
any final ordinance action.
I can talk to you about it a lot longer than what
I'm going to talk to you now about the T.I.A. or takings
impact assessment, but it's our position that the amendment
of your subdivision regulations, if you choose to do so, will
not -- repeat, will not -- implicate a taking under either
the federal or the -- or the Texas Constitution. However, if
you do not do a T.I.A., a takings impact assessment, under
2007, you are at risk. You are at risk if somebody tries to
sue you. The whole amendment -- the whole -- the whole act
or the whole ordinance might be subject to being thrown out,
and they might be able to get attorney's fees against the
county in litigation if such a -- such a T.I.A. suit is
filed. So, now is not the best day to talk to you about the
ins and outs of 2007, but I can sum it up by saying it's
better to have it and not need it rather than need it and not
have it. And I think your County Attorney has talked to you
before about takings impact assessments and how you publish
notice in the newspaper and hold off and don't do anything
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I, final for 30 days. It's a normal, practical -- in fact, the
A.G.'s office is required by 2007 to promulgate guidelines
about how to do the assessment.
And, frankly, the -- the test is, number one, are
you a covered governmental entity where you are? Well,
you're a county, and a county's a political subdivision.
Number two, is what you're thinking about doing -- if you
were thinking about amending your subdivision regulations, is
that a covered action? In other words, is it a rule, an
ordinance, a local law that might affect -- may affect real
property or the use of real property? Well, yeah, it's -- it
is. And, number three, is it a taking? Well, what normally
is done is you rely on counsel, either inside or outside
counsel, to give you an opinion letter, and then you answer
the three questions. And if the answer is yes, covered
entity; yes, covered action; but no taking, the A.G.'s
guidelines says you do not have to do anything further. You
vote in the takings impact assessment. You post it on your
bulletin board; you get a certified copy of it -- or a copy
of it and publish it for 30 days in the newspaper, and then
take your final action and vote the subdivision regulations
in or out on it. And when I say T.I.A., Chapter 2007,
Government Code, is that a -- a new concept to you?
COMMISSIONER LETZ: Yes.
MR. KIMBROUGH: Okay. Well, I can certainly -- we
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didn't bring copies of that statute, but it is better to do
it and not need it than to need it and not have done it,
because it can bite and bite hard in terms of litigation.
Okay. Your question was, you know, can you pick and choose?
And, clearly, the argument is, at least in my opinion, yes.
So, what I want to do now --
COMMISSIONER LETZ: Before -- but going back on the
notice a little bit --
MR. KIMBROUGH: You bet.
COMMISSIONER LETZ: Say we wanted to do setbacks
and lot frontages.
MR. KIMBROUGH: Okay.
COMMISSIONER LETZ: Now, do we do a notice only on
those two, or do we go ahead -- is it better to go ahead and
do a notice that we may do thoroughfare plans and -- and
developer participation contracts also? I mean, is it better
to go ahead and just do it one time and do them all, or do
you have to wait until you decide you want the authority?
MR. KIMBROUGH: Okay. That's a good question. You
could pick and choose. However, I was told when I was coming
up as a lawyer, you know, you can do a brand-new will or you
can do a codicil, you know, an amendment to your existing
will. But my uncle always told me, "Then you got two pieces
of paper to keep up with." So, just do another will, you
know, and put the new stuff in. If you think you're to the
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decision-making point where you're pretty confident that the
changing of an important ordinance, or regulatory enforcement
ordinance like subdivision regulations, if -- if you do it
piecemeal, it really creates problems for the people trying
to keep up with you and trying to figure out which is
applicable in which -- on which piece of ground. And, so, I
would tell you that you can do it the way -- you know, the
second way you suggested, but I don't recommend it.
The idea is, as a court, where do you think you're
heading, and why? What do you want the future to hold -- to
be? Not just for your court, but for future courts. The
Legislature, at least in my opinion -- we were talking about
this before y'all showed up. Commissioner Baldwin took
office in 1988. That was just after an important case had
come down affecting the validity and how we interpret the
county subdivision regulations under Chapter 232, and from
about the late '80's until now, there's been a steady
incremental step taken by the Legislature to grant counties
more regulatory authority in the unincorporated areas. Now,
this 1867 is a little more than a -- I mean, it's a pretty
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go on the weekends in Kerr County along the Guadalupe River.
And when those people, and enough of them, begin to move out
into the unincorporated areas, for whatever reason, there are
certain things that they want, and, in fact, they demand
these days. They want good water, and plenty of it. They
want wastewater services. They want the road big enough and
good enough so that the ambulance, the fire truck, the
policeman, and the school bus can get down there in all kinds
of weather. And when they do not have those services, they
want to blame somebody.
A lot of times that makes your telephone ring, but
more often, those people register their complaints with the
elected officials in Austin, and I believe that is the reason
why we've seen the incremental effect, because the voting
power is moving into these unincorporated areas. And they
require the -- what we call, in our line of work, the
regulatory authority of the local governments to provide the
utility and transportation infrastructure for quality of life
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and safety issues. That's a fancy way of saying what the
people want, and you know more about it in your county than I
would ever presume to understand. But I think that's the
reason why, when you think about changes, it's a
forward-thinking process. Where -- where do we want to go?
Where are we headed? And what are the laws that we can look
at and think about adopting that will help us get there?
MS. RUSSELL: And to maintain and increase the
property -- the value of, you know, property.
MR. KIMBROUGH: What you own and what -- you know.
I Well --
JUDGE TINLEY: Chuck, let me ask you, if I might.
This may be a shade of the same inquiry that Jon made. When
you're -- when you're giving notice that you may adopt some
of these provisions, because each one of those sections
provides that after notice is published, the major --
MR. KIMBROUGH: A couple of them do, yes, sir.
JUDGE TINLEY: Is it necessary, in your opinion, to
specifically enumerate each of those major items if you're
not going to do a separate notice for each item? For
example, if you're going to just adopt under -- under
Subchapter E, and say in a general notice that, "I hereby
give notice that it may adopt all or any portion of the
provisions of Subchapter E" --
MR. KIMBROUGH: Yes, sir. Which is the best way to
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go? Is that your question?
JUDGE TINLEY: Well, I think I know the best way to
go. From a validation standpoint, the best way to go,
obviously, is to be cautious, and -- "including, but not
limited to," and then specify each of those.
MR. KIMBROUGH: Yes, sir.
JUDGE TINLEY: Each of those. But, lacking that,
if -- if you fail to do that, you think you're covered other
ways?
MR. KIMBROUGH: Well, sir, it would be a fact
question in a court case to void the amended -- void the act
of the Commissioners Court for failure to give proper and
sufficient notice. And most of the time, those notices used
in litigation can be the basis of waiver affirmative
defenses. But as a litigator, I would never recommend to be
anything less than super-cautious because of the risk
regarding these, at times, hotly contested local issues.
These types of things can -- can be very -- a lot of talk
about them. A lot of talk about them. And so if you don't,
in a cautious -- some would argue overly cautious -- way, lay
out with more specificity than just any and everything in
Subchapter E, it could -- you could run the risk that a trial
judge would not let you win on summary judgment, and the case
might be submitted to a jury. In other words, there might be
a fact question raised by the omnibus notice language that
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would prevent a summary judgment and require a case to be
submitted to the merits out to a judge with jury. And if
you're representing the government, a county particularly,
you never want to give up the opportunity to win on summary
judgment and get it over with quicker, rather than having to
go through the expense and the risk of contested litigation
on the merits in front of a local jury or a judge. So, I
think I cannot tell you whether the omnibus language would be
the correct way, but I would not normally recommend it.
So --
JUDGE TINLEY: Okay.
COMMISSIONER LETZ: Are you going to go through
these one by one a little bit?
MR. KIMBROUGH: Yeah -- yes, sir. The bullet point
-- let me -- when you get to the first bullet point,
everything above it's the --
COMMISSIONER LETZ: Can we go to the middle instead
of the bullets?
~! MR. KIMBROUGH: Sure.
MS. RUSSELL: Sure. The meat comes in at Page 3.
The first section that -- Section 1, 2, and 3 -- is that --
and 4? No, 1, 2, and 3 are just -- the first one is how, in
Subchapter A, you can amend generally the plats.
MR. KIMBROUGH: C's a requirement for amending
plats; that's the Zaffirini bill.
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MS. RUSSELL: Yeah. And the first three sections
are the Zaffirini bill. Section 2 is --
COMMISSIONER LETZ: But on -- okay, go to 102,
major thoroughfare plan.
MS. RUSSELL: Okay.
COMMISSIONER LETZ: We don't have -- this is the
first time the County's getting -- this county gets a major
thoroughfare plan, I mean, that's even mentioned. Correct?
I mean --
MR. KIMBROUGH: Right.
COMMISSIONER LETZ: So 102 doesn't apply to Kerr
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MR. KIMBROUGH: I don't think it does, but I will
MS. RUSSELL: That's right.
MR. KIMBROUGH: That is correct.
MS. RUSSELL: That's right.
COMMISSIONER LETZ: I read that, and I have no clue
what a major thoroughfare plan is, other than we can require
120-foot right-of-way.
MR. KIMBROUGH: It's a -- it's a deal that has to
be approved by a metropolitan planning organization, and I'm
not sure that you're in an area of the state that even has
one. Do you have an M P.O. in this --
COMMISSIONER WILLIAMS: No. San Antonio -- Bexar
County's the closest.
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tell you that Number 232.101 (a) does. And that is -- this is
what I want to visit with you about.
COMMISSIONER LETZ: 101?
MS. RUSSELL: The very first item, 232.101(a).
COMMISSIONER LETZ: Okay.
MR. KIMBROUGH: Now, we're going to read the
statute, the actual bill. But I want to tell you that before
1867 was passed, there was a debate going on among lawyers in
Texas, and commissioners and planners -- urban planners and
developers and banks and people that manufacture mobile homes
about what subdivision -- excuse me, Subchapter E meant. All
right? When it came out, it said urban rules, and had a
population bracket in it. And the population bracket got
adjusted through subsequent meetings of the Legislature
leading up to this one. Now, I want you to look at not the
act, but the statute itself, red tab E. Okay? 232.101 says,
"...the Commissioners Court may adopt rules governing plats
and subdivisions within the unincorporated area to promote
the health, safety, morals, or general welfare of the county,
and the safe, orderly, and healthful development of the
unincorporated area of the county." That's a broad, sweeping
grant of unspecified authority. Doesn't tell you what you
can do, but it seems to give you a large degree of discretion
to do something. Okay? That language is almost identical to
the municipal statute in the Local Government Code regarding
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the ability of a city to promulgate rules regarding
subdivisions within its extraterritorial jurisdiction, its
ETJ.
Then go to the very back page -- next to last page,
3 of 4. 232.107, Provisions Cumulative. Prior to Senate
Bill 1867, that's where Subdivision E stopped with .107.
That's what we call in our line of work a cumulative remedies
clause. We've looked; we can't find any other place in
Chapter 232 where a cumulative remedies clause appears. "The
authorities under this Subchapter are cumulative of and in
addition to the authorities granted under this chapter and
all other laws to counties to regulate the subdivision of
land." In school, we are trained to pay attention to
cumulative remedies clauses when the Legislature gives them.
When you take 107 and match it up with 101, what does it mean
you can do? What does it mean that you cannot do? That was
the debate. And it still exists after 1867, but it certainly
was the debate prior to 1867.
Well, now take another look at the first page,
232.101. Look at (b. (a) is the broad grant for health,
safety, and morals. (a) says, "Unless otherwise authorized
by state law, a commissioners court shall not regulate..."
one, two, three, four, five, and six. In other words, this
is the can't -- cannot do list. This is the "can't do" list.
I'm going to come back to that in a second. Beginning with
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102, the major thoroughfare plan, that is the can do list.
The "can do" list. 232.102, major thoroughfare; 103, lot
frontages; 104, setbacks; 105, developer participation
contracts; 106, utility connection; 107, cumulative remedies
clause; and then the new ones, 108 for plat requirements;
109, fire suppression systems. Okay? So that they're -- the
Legislature is telling us, okay, you can specifically do
those, but you cannot do, unless the law allows it, those
things in (b) -- 232.101(b).
COMMISSIONER LETZ: But go back to major
thoroughfare plan.
MR. KIMBROUGH: Right.
COMMISSIONER LETZ: Not that. I mean --
MR. KIMBROUGH: Right.
COMMISSIONER LETZ: Okay. You read the -- you have
to do the notice. Then on Page 2, require right-of-way on a
street or road that functions as a major thoroughfare not
more than 120 feet, or more than 120 feet under certain
situations. Does that just mean -- is that giving counties
the right now to go up to over 90 feet, to 120 feet? Is that
what all that does?
MR. KIMBROUGH: It does. If you have a major
thoroughfare plan that's approved regarding the other
provisions of state law that lets do you it, it directly
increases the Subdivision A requirements.
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COMMISSIONER LETZ: So -- but you have to do a
subdivision thoroughfare plan --
MR. KIMBROUGH: Yes, sir.
COMMISSIONER LETZ: -- first?
MR. KIMBROUGH: Major thoroughfare.
COMMISSIONER LETZ: Major thoroughfare plan.
MR. KIMBROUGH: But the question becomes, is that
all you can do? Or can you increase above the limits
designated by Subdivision A? Now, I gave you a Subdivision A
packet with a red tab on it. Look at red tab -- it'll be the
end of the document, Page 5 of 17, upper right-hand corner.
5 of 17. You see 232.003, subdivision requirements. Those
are the basic Subchapter A rules that any county in the state
can use. And you see those first two, 1 and 2 -- 232.003,
Number 1 and 2. There's your usual right-of-way
requirements.
COMMISSIONER LETZ: Between 50 and 100.
MR. KIMBROUGH: Uh-huh. And then the other one, 40
to 70.
COMMISSIONER LETZ: Right.
MR. KIMBROUGH: And then Number 3. Okay, now go
back -- I hate to make you go back and forth, but it's what
we do when we give advice on stuff like this. Go back to the
Subdivision E rules. Do you have the power, without doing
major thoroughfare, to promulgate a right-of-way width
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greater than Subchapter A? What does the health, safety, and
morals provision with a cumulative remedies clause tacked
onto it mean? Clearly, the Legislature, in my opinion --
this is Kimbrough's opinion -- clearly would not have put
health, safety, and morals -- broad, sweeping grant of
authority -- plus a cumulative remedies clause. To me, all
you can do are the four or five things listed specifically in
Subdivision E. Look at the language of 1867, the most recent
pronouncement of the Legislature. On Page 4 of the bill --
COMMISSIONER LETZ: Before you jump to there, I do
better with an example. Say we're going up -- a road's going
up a hill, new subdivision.
MR. KIMBROUGH: Okay.
COMMISSIONER LETZ: And because of the grades and
all that, it's difficult to put in the 90-foot right-of-way
or a 100-foot right-of-way; it's real hard to do it. Because
of that, those two provisions you just mentioned, we can
require them to go up to 140 feet if we need to, to get
the -- meet the other requirements?
MR. KIMBROUGH: With risk. My answer is yes, with
risk. And the reason I say that, sir, is because before 1867
was passed, there are no cases to define which side is right
on the debate. The development lobby contended that the
ultimate reach of Subdivision E, the urban rules -- formerly
the urban rules, did -- in other words, the health, safety,
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and welfare language was not as broad; did not grant the
ability of a county to act like a city in its ETJ. The
government lawyers said of course it did. Why would the
Legislature do that, tack a cumulative remedies clause on top
of that and then just list four things that you can do? It
makes no sense, to argue the other way. But there are no
cases on it, so we have to look at the most latest -- is that
correct English? -- the latest pronouncement of the
Legislature on Subdivision E. Which is what? 1867. Take a
look at 1867, Page 4. Page 4 -- I'm sorry, excuse me,
page -- Page 3 at the bottom, when it talks about the plat
requirements that the County can -- can choose to adopt under
Subdivision E, 232.108 plat requirements. (a) "The
commissioners court, in addition to having the authority to
adopt rules under 232.101 and other authority granted by this
chapter..." What does that phrase -- what do those phrases
mean right there? It specifically refers back to the broad
-- what we call the sweeping grant of authority of 101 to
make -- to adopt rules governing plats and subdivisions to
promote the health, safety, morals, or general welfare, and
the safe, orderly, and healthful development. If you've got
a road on a hill, for safety reasons, that requires a bigger
right-of-way, I like our chances in court, but I cannot tell
you, black and white, you're going to win.
COMMISSIONER LETZ: All right.
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MR. KIMBROUGH: Until the Legislature takes another
incremental step or we have case law, no lawyer can tell a
client, "You're solid; you're safe," except on certain
issues. The "can do" list in Subdivision E, the special
things that the Legislature says, "You can do this." You can
do -- and you see them listed there. There's a cannot-do
list and there's a can-do list. The can-do list begins with
102. 232.102, major thoroughfare plan; 103, lot frontages;
104, setbacks; 105, developer participation contracts; 106,
utility connection; 108, the plat requirements that we just
saw, the new bill; 109, fire suppression system.
COMMISSIONER LETZ: If --
MR. KIMBROUGH: The can do/can't do debate still
exists because of the absence of case law.
COMMISSIONER LETZ: If -- under lot frontages, this
county --
MR. KIMBROUGH: What?
COMMISSIONER LETZ: Lot frontages.
MR. KIMBROUGH: Okay.
COMMISSIONER LETZ: We assumed that, from a -- a
public safety standpoint, we had that authority already.
Bottom line, it's in our rules. And it's -- anyway, it's
there. But it was always -- and we, I think, knew that it
was a little bit on the iffy side. So, we're better off just
going ahead and publishing notice right now, now that we have
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the authority? Because if we don't -- I mean, 'cause we talk
about lot frontages, but I guess we don't have that authority
technically under some of the other areas, just, I think,
given to us without question.
MR. KIMBROUGH: You can certainly shore up your
interest.
COMMISSIONER LETZ: Mm-hmm.
MR. KIMBROUGH: A very effective way -- in fact, I
know of one county in Texas that did that. That after -- you
know, that was actually a county adjacent to a large county.
COMMISSIONER LETZ: Right.
MR. KIMBROUGH: That's one of my clients, and they
did that. They did that. We're in the middle of revising
their rules, and they were under the urban county rules even
before 1867, and they saw an opportunity and did it as a --
hold what you have and protect what we have, and then we're
going to do some more comprehensive rules later.
COMMISSIONER LETZ: All right. We may have that
authority under some of the utility rules or setbacks --
utility setbacks, I believe.
COMMISSIONER WILLIAMS: Before you leave 232.101 --
MR. KIMBROUGH: Yes, sir.
COMMISSIONER WILLIAMS: That's the cannot-do list,
right?
MR. KIMBROUGH: (b) is.
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COMMISSIONER WILLIAMS: (b) is the cannot-do list.
MS. RUSSELL: (a) is the general big sweeping
authority.
COMMISSIONER WILLIAMS: (b)(4), number of
residential lots that can be built. We cannot regulate the
number of residential lots that can be built?
MR. KIMBROUGH: In our line of work, we call that
density. We call that density. A county can't -- there are
actually some counties in the state that can zone around
lakes. This isn't one of them. But zoning and density are
generally prohibited areas of regulation by counties in
Texas.
COMMISSIONER LETZ: I know where he's going with
this, because I've talked to the Water Development Board
about this. Their model rules that they're requiring is
specifically contrary to that.
MS. RUSSELL: I tell you how this gets by, is
because of the very first clause in (b), "Unless otherwise
authorized by state law." So, therein lies the model
subdivision rules.
COMMISSIONER WILLIAMS: And the model --
MS. RUSSELL: Coming under Water Development Board
that can require one dwelling.
MR. KIMBROUGH: We have a whole packet on the
M.S.R.'s and --
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COMMISSIONER WILLIAMS: You gave it to us.
MR. KIMBROUGH: -- the requirements about that.
But jumping ahead just a bit, model subdivision rules as
required by 16.343 of the Water Code only apply in certain
situations. Subdivision, 5 acres or less, intended for
residential. Okay? Now, there is a provision that says, you
know, one single-family detached dwelling per lot in the
M.S.R. But there are many counties who have subdivision
regulations that are applicable for less than 10 acres, but
more than 5 acres, in terms of the categorical classification
ordinance scheme.
COMMISSIONER LETZ: Is that how you -- I mean,
we're looking at a grant with Water Development Board, and
they're requiring us to adopt their model rules, or
substantial compliance.
MR. KIMBROUGH: Yes, sir. I think the law requires
it if you want to get their money.
COMMISSIONER WILLIAMS: We want their money.
COMMISSIONER LETZ: So you would have to go in
there and do a -- a 5-acre and less rule, and then a 5- to
10-acre rule, and then a bigger than 10-acre rule?
MR. KIMBROUGH: There's a way to do it, and it has
to do with classifications of, you know, subdivision types.
Now, before we go too far, Commissioner Williams, when you
called me and spoke with me about the M.S.R. presentation
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today, I want to make sure that you understand -- y'all
understand that I think you've got a law firm that represents
you currently on that Water Development Board matter, if I am
correct, the firm of McCall Parkhurst?
COMMISSIONER WILLIAMS: That's for our bond
counsel. Bond counsel only.
MR. KIMBROUGH: Well, what I'm getting at is, we
can surely talk about model subdivision rules and how they
apply in terms of the subdivision regulation context or
opportunity; however, it's my understanding that a lawyer
from San Antonio represents the County on that application
before the Water Development Board.
COMMISSIONER WILLIAMS: Only as attorney -- only in
terms of -- Parkhurst is our bond counsel, working in
conjunction with our financial adviser for any bonding
requirements or financing requirements that may come
subsequent to approval of the application. We don't have a
counsel working with us to work us through this maze right
now.
MR. KIMBROUGH: Isn't the -- isn't it Mr. Spurgeon?
JUDGE TINLEY: Tom Spurgeon.
MR. KIMBROUGH: Yes, sir. He's a very fine lawyer.
COMMISSIONER WILLIAMS: Yeah. He's our bond
counsel.
MR. KIMBROUGH: The law firm that he's partnered
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with is one of the best in the state in that area. And we
don't want to, certainly --
COMMISSIONER WILLIAMS: You're not.
MR. KIMBROUGH: Okay.
COMMISSIONER WILLIAMS: You're not treading on --
JUDGE TINLEY: You're not encroaching.
COMMISSIONER WILLIAMS: -- their turf, no.
MR. KIMBROUGH: We have some rules about that.
COMMISSIONER WILLIAMS: I understand that. I
appreciate that. But you're not.
COMMISSIONER LETZ: We can check with Tom, though,
or -- I mean, and make sure that our -- or let them --
MR. KIMBROUGH: What I want to make sure of is that
y'all's county currently has no lawyer representing it before
the Water Development Board in order to get their money, in
order to negotiate, if any, the position with the M.S.R.
application.
COMMISSIONER WILLIAMS: We do not. Mr. Spurgeon is
only with respect to financial and the bonding, all that
stuff.
JUDGE TINLEY: If and when it becomes necessary for
Kerr County to issue debt, then Mr. Spurgeon would be
involved relative to our instrument of that debt.
MR. KIMBROUGH: Tom Pollan or David Mendez of our
firm are the -- the lawyers who practice in the public
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'_ finance area regarding Water Development Board issues.
' COMMISSIONER WILLIAMS: Mm-hmm.
MR. KIMBROUGH: And we have a substantial history
with that agency. Particularly Mr. Mendez is currently
involved in some matters with the board and obtaining
funding, and I'll be happy to pass along -- or we can put you
in telephone contact, again, just to talk about what the
issues may be. But I will tell you that what you have told
me today is my -- matches up with what I believe the law to
be. If you want the board's money, and it's an EDAP -- what
we call an EDAP application --
COMMISSIONER WILLIAMS: Mm-hmm.
MR. KIMBROUGH: Okay. Then I can -- we've got a
piece of paper that will give you the Administrative Code
regulation that says before they will consider your
application, you must -- the County must adopt the model
rules.
COMMISSIONER LETZ: I --
MR. KIMBROUGH: They want you to enforce the model
rules, because when they audit you -- when they give you the
money and they find out that you are not enforcing your
rules, they'll make you pay the money back, or worse.
COMMISSIONER WILLIAMS: I --
COMMISSIONER LETZ: Our rules are fairly close. I
talked to Joe Reynolds -- is that who I talked to? Do you
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_ remember, Bill?
COMMISSIONER WILLIAMS: I think that's who it was.
COMMISSIONER LETZ: Joe Reynolds, an attorney with
the Water Development Board.
MR. KIMBROUGH: Yes.
COMMISSIONER LETZ: We don't have a whole lot -- we
have probably about 10 or 15 areas that were we're not in
compliance right now. I mean, and they're most --
MS. RUSSELL: The minimum standards on the front
end, the assurances.
COMMISSIONER LETZ: And most of those are really
definition-type issues that we didn't cover things, and then
there's a little bit on the -- obviously, on the utility
side. Their rules are focused on wastewater and water, and
our rules really aren't focused on that. We try to be quiet
on that as much as we can, so that part we're silent on. We
don't have a whole lot. We were hopeful to go with the
substantial compliance language and meet with them and see if
we can work out some of this, rather than trying to adopt all
their rules.
MR. KIMBROUGH: That's what we do. But I want to
ask a follow-up question, if I may. You're getting the
money, hopefully, to do a sewer system construction project.
COMMISSIONER WILLIAMS: Yes.
MR. KIMBROUGH: Correct?
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COMMISSIONER WILLIAMS: Correct.
MR. KIMBROUGH: And then when the money is obtained
and a construction project is completed, who will own the
infrastructure that the grant --
COMMISSIONER WILLIAMS: Well, we have proposed a
model to the T.W.D.B. similar to what -- the model we
employed for Kerrville South, when we did that wastewater
project, and we're still working on that one. And that is
that the County obtains the funding -- is the lead agency; we
obtain the funding and do all the things necessary. We
construct the system. By interlocal agreement, we -- we work
with U.G.R.A., the regional water river authority, to -- in
Kerrville South, to own, operate, and so forth. They, in
turn --
MR. KIMBROUGH: What is Kerrville South? A water
supply --
COMMISSIONER LETZ: Geographic area.
MR. KIMBROUGH: Okay.
COMMISSIONER WILLIAMS: Geographical area. What
we've done is three of four phases of a wastewater project,
not using T.W.D.B. money, but using colonias money, C.D.B.G.
grant money, et cetera. Okay?
MR. KIMBROUGH: Okay.
COMMISSIONER WILLIAMS: Three phases are complete,
one phase funding, and we have a three-part model; we,
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~v
_ U.G.R.A. in the middle, and the City of Kerrville is the
' treatment provider on the tail end. We envision the same
model for the one in Center Point and eastern Kerr County;
the County being the lead agency, working with the river
authority in the middle, and working probably with Kendall
County W.C. & I.D. as the treatment provider. Now, the only
caveat or reservation is, if we have to issue any bonded
indebtedness in the middle -- I mean, to obtain all of this
and get it done, we can't convey it as we have --
MR. KIMBROUGH: No kidding. Yes, sir, that's a
prohibition.
COMMISSIONER WILLIAMS: Can't do that until the
indebtedness is paid. But we could, by interlocal agreement,
have them operate and maintain it and so forth.
MR. KIMBROUGH: The County, at the present time, is
not desirous of entering into -- becoming a retail utility
for -- okay.
COMMISSIONER WILLIAMS: Not if we can avoid it.
COMMISSIONER OEHLER: No, we don't want to.
MR. KIMBROUGH: Okay.
COMMISSIONER WILLIAMS: So that's where we are in
terms of -- of a potential model. And we've laid that model
in front of T.W.D.B., and they thought it was a very good
working model, three agencies working together to make
something happen.
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MR. KIMBROUGH: Okay.
COMMISSIONER LETZ: It doesn't make sense in our
mind to get in the sewer business when we have -- when
Kerrville is really in it, the Kendall County or Comfort
area --
MR. KIMBROUGH: Another reason --
COMMISSIONER LETZ: -- is doing it, and then the
river authority wants to be a regional provider of water and
possibly wastewater services. We have everyone -- we don't
need another supplier in that game in this county. We don't
want to be one of them.
MR. KIMBROUGH: If you don't provide the water --
because that's where the retail activity is.
COMMISSIONER LETZ: That's why U.G.R.A. is
interested in it, because they are a wholesale -- or want to
become more of a wholesale water provider.
MR. KIMBROUGH: It's challenging to monitor the
retail billing aspects of a sewer system unless you are the
entity providing the retail water service -- water utility
service.
COMMISSIONER WILLIAMS: We've met that challenge in
Kerrville South, and we recognize it as a potential here too.
MR. KIMBROUGH: Well, let's do this. I feel I'm a
little out of my area when I talk about -- or you asked me
questions about what might be the public finance issues
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associated with the Water Development Board application. I
was told this is the second application; you must have got a
grant for --
COMMISSIONER WILLIAMS: We did. We got a grant
from T.W.D.B. for a feasibility study. Okay, that's been
completed. Now we're going back to EDAP for their next
level. We thought the next level was planning, acquisition,
and design, PAD money. Now they've changed the rules, and
it's only planning money, and you go back again for
acquisition and design and construction. So, we're in front
of them now for planning funds.
MR. KIMBROUGH: And what is the actual -- the
status of that matter? You mentioned June of '07 was the
filing of the second application?
COMMISSIONER WILLIAMS: Yes. And the status is --
MR. KIMBROUGH: And there was no lawyer that signed
that application representing the county?
COMMISSIONER WILLIAMS: No.
MR. KIMBROUGH: Okay.
COMMISSIONER WILLIAMS: County signed -- the Judge
signed the application. And Tetra Tech engineering firm did
all the work for us.
MR. KIMBROUGH: Okay.
COMMISSIONER WILLIAMS: In terms of all the
preparation, all the good stuff, and they're working with us
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on a continuing basis. Now, what was your question?
MR. KIMBROUGH: Where is the status?
COMMISSIONER WILLIAMS: The status now is that the
application was received in a timely fashion, and it was
originally slated to be on the board's agenda for October.
Didn't make it, because they sent us back a whole bunch of
stuff and wanted some more information, all of which has been
forwarded back to them except the model subdivision rules.
And they know we have to work on it; they've been told, so
forth. So, we're on hold until we do that, probably until
November or December.
MR. KIMBROUGH: Okay.
COMMISSIONER LETZ: They've told us --
MS. RUSSELL: They want you to adopt the M.S.R.'s
before then?
COMMISSIONER LETZ: Either adopt them, incorporate
them, or substantial compliance.
COMMISSIONER WILLIAMS: Yeah, or modify certain --
COMMISSIONER LETZ: Before they go to their board.
But when I talked to them, they were -- there were some
issues that appeared to me to be in conflict between what
their rules say and what our rules say. I didn't know that
their rules would trump as state law. And Joe Reynolds is
going to look into some of those areas that are complex, such
as the number of dwellings on a lot.
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COMMISSIONER WILLIAMS: I've asked Jonathan to be
involved with this, even though this project basically -- or
a large part of it is in my precinct. Part of it's in his
precinct as well, and he's been doing our subdivision rules
since Hector was a pup. And so, you know, who better to do
it?
MR. KIMBROUGH: Well --
COMMISSIONER LETZ: But the Legislature's making it
harder and harder; they're getting more and more confusing,
really getting really difficult.
COMMISSIONER WILLIAMS: So, we're going to need
some guidance, is what I'm hearing you say, probably?
MR. KIMBROUGH: Well --
COMMISSIONER WILLIAMS: Sort of?
MR. KIMBROUGH: Sir, I can tell you that the
funding source for the Water Development Board -- I'm really
getting into Claudia's area. There's a constitutional
amendment provision in November that is going to -- 250; I'll
let Claudia talk about --
MS. RUSSELL: In November.
MR. KIMBROUGH: -- where the money's coming from
that EDAP.
MS. RUSSELL: Mm-hmm.
MR. KIMBROUGH: Grant applications get talked
about. You know, that's the --
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MS. RUSSELL: I think since 1989, they've doled out
almost $500 million of EDAP grants since '89, and that's
dwindling down. I think there's around $12 million left, and
that's through state and federal grants. So, on the ballot
in November, they -- I think it's Proposition 16. Voters
will be voting to -- whether to issue the Texas Water
Development Board $250 million more in general obligation
bonds to continue providing these grants. So --
MR. KIMBROUGH: And the reason that the measure is
on the ballot is because of the efforts of elected senators
and representatives in areas other than South Texas.
MS. RUSSELL: They say, "Hey, we have areas that
need assistance too." So --
MR. KIMBROUGH: The issues -- yes, that the issues
that caused the EDAP rules to be -- and funding to be put in
place originally existed in other parts of the state too.
COMMISSIONER WILLIAMS: Well, Kerr County's a very
good example of that. The community we're talking about fits
the criteria for economically distressed area of the county.
MR. KIMBROUGH: So, you end up wanting to try to
put a cause and effect on some of this stuff that you see in
the documents today, and it's because of the development and
the desire of local governments and state governments to do
something for the future.
COMMISSIONER WILLIAMS: Sure.
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MR. KIMBROUGH: You keep getting back to
comprehensive solutions that do more than just solve the day
-- the problem that's in front of you today. Okay. Now, we
can keep on going on -- on S.B. 1867, and then go to the
model rules. We've got -- we gave you a copy of the model
rules; we got a packet there. Tell me what you want to do in
terms of time. I did not know what -- the time limits you
wanted me to stop on.
COMMISSIONER LETZ: Can you just briefly go through
under Subchapter E, and talk -- I mean, major thoroughfare
plan, I think we've talked about that. Lot frontages?
Setbacks?
MR. KIMBROUGH: Okay.
COMMISSIONER LETZ: Developer participation -- I
mean, the rest of those can-do list?
MR. KIMBROUGH: Yes, sir.
COMMISSIONER LETZ: What they are, just real
quickly.
JUDGE TINLEY: Might be careful to note that two of
the can`t do's are -- the last two. Did you happen to
notice?
COMMISSIONER LETZ: Oh, yeah. The --
MR. KIMBROUGH: Those got added.
MS. RUSSELL: Yes.
MR. KIMBROUGH: Because -- and I heard the story
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about that.
JUDGE TINLEY: I don't know whether you got the
right story or not.
MR. KIMBROUGH: I heard --
COMMISSIONER OEHLER: Probably get the real story
here.
MR. KIMBROUGH: I just -- well, all I can tell you
is that these were part of Mr. Hilderbran's position -- his
amendments. And so there's -- there was a lawsuit, and we
don't need to talk about it, but --
COMMISSIONER LETZ: You can talk about it.
MR. KIMBROUGH: It has to do with, you know, having
your rules go into another county, basically.
COMMISSIONER LETZ: Harvey's comments yesterday,
when I had lunch with him, was Kendall County was a little
irritated with him on this, and -- on those two provisions,
and said that Harvey would rather that the developer not get
filed with a contempt of court charge because it didn't make
him look too good.
MR. KIMBROUGH: Well, when we --
COMMISSIONER LETZ: That's where all that is right
now.
MR. KIMBROUGH: In our office, when we were
following the bill, from the -- you know, from what we call
the -- the travel to the governor's office, you know, that
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~ __
period of time after the session ended and before June, or
whenever it was when he gets to sign the bills or not sign
them, we got to looking at that and saying, that's got to be
a -- that's got to be a --
MS. RUSSELL: Something specific.
MR. KIMBROUGH: -- you know, a problem. And then,
when we saw Commissioner Letz at the TAC conference, I asked
him about it. He gave me the rest of the story, as Paul
Harvey would say, you know? Okay. So, you want to go
through the can-do list?
COMMISSIONER LETZ: Yes, just as to what some of
those things -- I mean, like developer participation
contracts. What is that?
MR. KIMBROUGH: Yes. That -- well, it's pretty
self-explanatory, but when you look -- it'll be Page 2 of 4
in the actual statute. 232.105, Page 2 of 4. Right there at
the front, where it talks about competitive sealed bidding
procedure of Chapter 262. You know that to be the County
Purchasing Act.
COMMISSIONER LETZ: Right.
MR. KIMBROUGH: And all of your contracts for goods
or services have to be competitively bid, unless specifically
exempted by a state law. This is one of those state laws.
Where the Commissioners Court -- you can make a contract with
the sub -- the developer; I'm going to use the name
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developer -- developer to construct the public improvements
over time, basically. And when you go back through the
statute, you're going to see that the requirements of the
contract require the developer to sign on to actually build
the improvements. And we're talking about public
improvements; streets, roads, also utility infrastructure, if
that developer is planning on putting in a sewer system or
planning on putting in a public water system.
COMMISSIONER LETZ: As an example, --
MR. KIMBROUGH: But the level --
COMMISSIONER LETZ: -- if it -- say, go to Bruce's
area out to Felix Fisher Road. Say someone out there decides
to put in a subdivision. Does this say that we can go in and
negotiate with the developer that he upgrades that entire
10-mile road to that subdivision?
MR. KIMBROUGH: This is not really that. There's
another part of the law that applies to that, yes, sir. But
you cannot make road construction standards that are --
MS. RUSSELL: More stringent.
MR. KIMBROUGH: -- tougher than what you require on
your own roads.
COMMISSIONER LETZ: Right. But we can make him,
somewhere, upgrade an old, winding county road if he's going
to put in a 100-lot subdivision?
MR. KIMBROUGH: Okay --
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COMMISSIONER OEHLER: You're wishing.
MR. KIMBROUGH: It's not his road? That's not his
road?
COMMISSIONER LETZ: It's a county road.
MR. KIMBROUGH: It's a county road. Possibly.
'' Possibly.
MS. RUSSELL: Under the sweeping --
MR. KIMBROUGH: Yes, under the health, safety,
morals and development stuff.
MS. RUSSELL: General.
MR. KIMBROUGH: But look at (c) there. The
contract must establish the limit of participation by the
County at a level not to exceed 30 percent of the total
contract price.
COMMISSIONER LETZ: What would this cover? I mean,
I don't understand what it covers. Is it roads we're talking
about? I mean --
MR. KIMBROUGH: You're paying him to build a road.
COMMISSIONER LETZ: But, like, in that same
situation, the question --
MR. KIMBROUGH: Like, he's your contractor -- your
road contractor. That would be a competitive bid procedure
under 262 to build some roads in your county.
COMMISSIONER LETZ: All right.
COMMISSIONER WILLIAMS: So, the maximum --
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COMMISSIONER OEHLER: Like, under contract fees --
COMMISSIONER WILLIAMS: You can hit him with at
least -- for 70 percent or more, right?
COMMISSIONER LETZ: We can make him pay -- I mean,
this is a contract; you have to agree to it. But if they
want to build that subdivision, we can say that you've got to
fix this road, and we're going to pay 30 percent of the cost
and you're going to build it.
COMMISSIONER OEHLER: 'Cause it doesn't make sense
if they can put in a subdivision off of a one-lane county
road that has a 30-foot right-of-way.
MR. KIMBROUGH: It makes no sense to --
COMMISSIONER OEHLER: To put 200 houses in there
that's 8 miles from the nearest state highway.
MR. KIMBROUGH: The market to the developer of
housing on sale of lots sooner or later comes into play. You
know, some people may want to live there no matter what that
front -- front road will hold or won't hold. But for your
purposes, I mean, you're the ones that have to keep that road
in good shape forever. So --
COMMISSIONER LETZ: But that gives us a little bit
more authority --
MR. KIMBROUGH: It does.
COMMISSIONER LETZ: -- down in that area than we
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MR. KIMBROUGH: All right. Plat requirements --
well, you know, the fire suppression system on Page 3 of 4,
that's really self-explanatory, but it's a very important
provision that existed nowhere in the law for counties until
1867 got passed. And the limit -- the dividing line between
the storage capacity is 50, a 50-house break point,
basically. See that? It doesn't say above ground or below
ground, but to require 2,500 gallons of -- of storage for a
subdivision of fewer than 50 houses is a significant
legislative step there. I don't know. Most of your
subdivisions have -- that have been platted in the past two
or three years have less than 50 houses? Or do you have some
big ones going in? I know you mentioned --
COMMISSIONER LETZ: Both.
COMMISSIONER OEHLER: Both. You have, you know,
small ones, four or five lots. Then we have some that are --
COMMISSIONER LETZ: These are --
COMMISSIONER OEHLER: -- 50, 60 lots.
COMMISSIONER LETZ: Basically, these are dry
hydrants, a storage tank that fire trucks back up to and get
water?
MR. KIMBROUGH: The best way to look at 232.108 is
go to the bullet point summary, our letterhead bullet point
summary.
MS. RUSSELL: And this plat requirements that he's
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mentioned right here, this is where the border -- the real
stringent requirements of 232.023, that's normally --
MR. KIMBROUGH: Border rules.
MS. RUSSELL: -- border rules, that's how they're
bringing -- just through 108 is how they're bringing in the
ability -- your ability to have even more stringent, and to
have the option to require the border rules.
MR. KIMBROUGH: All right. Now, when you look at
the bullet points, go to Page 1 and you see about in the
middle of the page where we reference 232.023?
COMMISSIONER OEHLER: Mm-hmm.
MR. KIMBROUGH: Previously available only to border
counties. Okay. Those sub-bullet points going onto the
second page until the middle, until the bullet goes all the
way to the left, that's where I tried to summarize and
describe the border rule that now you can do, if that's what
you want. Now, I won't read all the bullet points, because
most of them are self-explanatory, but look at the third
bullet point down after 232.023 at Page 1, where it says,
"descriptions of the water, sewer facilities, roads, and
easements dedicated..." et cetera, et cetera, "and a
statement specifying the date by which those facilities will
be fully operable." Now, when it talks about roads and
easements, it's talking about dedicated for water and sewer
facilities, all right? The border rules, 232.023 does not
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require the developer to put in a water system or to put in a
sewer system. Well water and septic is okay. Even the model
subdivision rules, which we'll talk about in a little bit, do
not require the subdivider that, actually, you can't build
under the model rules unless you put in a water system or put
in a sewer system. Under M.S.R. model rules, septic and well
water is okay. You have to do some special things on the
front end to certify compliance with minimum state standards,
but it's okay.
Subchapter E, adopting the border plat rules, this
bullet point, well water and septic is okay, but there are
some other things where -- by the front-end requirements,
where the developer certifies and promises -- and what's the
word? -- represents that minimum state standards exist, are
in the law. They just don't require to you build them. The
next bullet point, certification by a registered engineer
that proposed water and sewer facilities are in compliance
with the M.S.R.'s under 16.343. Okay. Proposed water and
sewer facilities, again, you do not -- the developer does not
have to put in a water system, and he does not have to build
a sewer system. If he does -- if he does, there are more
stringent rules that may be applied, but if it's strictly
well water and --
MS. RUSSELL: Septic.
MR. KIMBROUGH: -- septic, there are some front-end
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plat requirements, certification requirements that you'll
see, but you don't have to make them build it. Go to the top
septic, electrical, gas -- will meet minimum state standards.
The goal under the border rules, if you adopt them, is to
make the subdivider say on the front end that road
infrastructure -- and let me back up. Water utility
infrastructure, or water wells and sewer systems or septic
systems are going to meet minimum state standards. And if
you're going to put in a sewer system, the developer is --
like, in a curb and gutter subdivision, like you normally see
with expensive homes, and a water system, that there are
extra requirements in that kind of a situation, but if a
developer does not build them, as a condition to final plat
approval, then you're going to bond them and he's going to
have to bond them adequately under the bond requirements.
Does everybody understand? I think there is some
misconception about, well, you're making the developer put in
a sewer system. No, septic is okay, provided that all of the
state septic rules, the O.S.S.F. rules are complied with, as
well as the county's regulations.
MS. RUSSELL: But you might not see that in just
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the market of today -- you know, your market of these
expensive homes. The developer may know that he might need
to put in -- I mean, that this market might want it.
MR. KIMBROUGH: Same thing with water supply. We
maybe talked about this before the group got together.
Whether -- whether it's a Subchapter E application or whether
it's the M.S.R., you are not requiring the developer to
create a public water supply system. You're not requiring
them to do that. Well water is okay. But if it's going to
be well water, you can make the developer include a statement
of a Texas licensed -- or licensed to practice engineer, or a
state licensed to practice geoscientist, that sufficient
water is available to serve that proposed plan under minimum
state water quality standards, and even make him drill a test
well if you want to. Now, the M.S.R. rules require a test
well on the front end, but these necessarily do not. We
think you have the ability to not require.
COMMISSIONER I,ETZ: You answered part of it, but
other than -- and this county had that authority anyway on
the water side of -- water availability.
MR. KIMBROUGH: Okay.
COMMISSIONER LETZ: On the sewer side, the real
difference is that if you're going to put -- I mean, not
sewer system; on a public water system, a less -- fewer than
15 connections, this can require them to do it as a standard.
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MR. KIMBROUGH: Yes, sir.
COMMISSIONER LETZ: Whereas previously we didn't
have that authority, I don't believe.
MR. KIMBROUGH: Okay. But 232.023 is now an option
for you. That's a border rule. 232.023 in the border rules
specifically refers and requires compliance with another
border rule, top of Page 2, 232.032. So, it's Subdivision E,
reach back into Subchapter B, the border rules, if you want
to go that route. Now, that's what the Subdivision E, 1867,
in effect, says you can do regarding water and wastewater.
But can you do something a little different under the broad
grant of authority under 101, Subdivision E? Health, safety,
welfare, safe, orderly development, plus a cumulative
remedies clause? There are many people that say yes, you
can. But you cannot do so when you deviate from the -- from
the strict can-do list; you run into risk issues. You run
into risk issues.
COMMISSIONER LETZ: Doesn't the -- didn't the
Legislature give counties in Priority Groundwater Management
Areas authority under the Water Code to do a lot more stuff
on --
MR. KIMBROUGH: Yeah -- yes, sir. And, again,
unless -- go back to your statute.
COMMISSIONER LETZ: Other state law.
MR. KIMBROUGH: Yeah. Yes, sir, that's it. That's
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where the Water Code provisions come into play.
COMMISSIONER LETZ: From this county's standpoint,
that gives us the most flexibility, 'cause we can develop our
own water availability requirements.
MR. KIMBROUGH: And, frankly, we didn't bring that
part of the Water Code with us. All I brought was 16.343 on
the M.S.R. But you are correct; I had forgotten that you're
in the PGMA. You're -- what's the name of the PGMA out here?
COMMISSIONER LETZ: Hill Country PGMA.
MR. KIMBROUGH: I'd forgotten --
COMMISSIONER WILLIAMS: Priority Groundwater
Management Area.
MR. KIMBROUGH: Yes, sir. And there's some --
well, there's some debate in the law going on right now as to
whether -- when the certifications are made on the plat, and
there's a certificate of a registered engineer or
geoscientist on the plat -- on the papers that go along with
an application process to get your subdivision plat approved,
~~i, whether the Commissioners Court can go behind those
representations and, as a deliberative body acting in a
legislative capacity, say, "Well, there's an engineer over
here that we know of, and we're asking him to testify and
', look at it, that disagreed with the engineer of the
developer's conclusions." I think there's a healthy debate
going on right now about that. And we are of the opinion
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that you can go behind the developer's engineer
certification. It must be, in my judgment, that way in order
to avoid water and wastewater mistakes.
COMMISSIONER LETZ: We've chosen not to require
that certification.
MR. KIMBROUGH: Well, yes, sir, I understand. But
I -- but there is -- there is some disagreement about, you
know --
COMMISSIONER LETZ: I didn't even think -- I didn't
even know there was an issue that -- I just thought it was
just common sense, to me, that if we required it, then it --
you know, and if we disagreed with their certification, we
could hire our own engineer; they could fight it out between
the two engineers. But --
MR. KIMBROUGH: Well, for instance, in Subdivision
A, since 2001 -- let's see, the handout with an A with a red
mark. Look at Page 6 of 17 in the middle of the page,
232.0032. If groundwater is going to be a water source, any
county in the state can require those certifications, okay?
Well, the lawyer for the developer may say, "Here it is; he
certified it." How can you go behind that? If you adopt
Subdivision E, health, safety, morals or welfare, safe and
orderly development, it's my opinion that you can. But,
again, the risk issue exists. Okay. That's pretty much the
end of the bullet point and the end of the 1867 rule, but I
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want to suggest one other thing, the very last bullet point
on Page 2. And the -- the actual statute, Subdivision E, the
very -- the very last bullet point says the usual statute
that defines exemption to plat. In other words, where
somebody does not have to plat it, they don't have to come to
you for plat approval, those rules still apply. And they're
long, and they're 232.0015. And you see that -- you see that
at the very last part of the Subdivision E. Those exemption
requirements are still a part of state law, even if you adopt
Subdivision E. So --
COMMISSIONER LETZ: Okay. What about then you go
with the -- one of those exemptions that you can --
MR. KIMBROUGH: 10 acres or more.
COMMISSIONER LETZ: That, but also -- but you can
have a plat is not required if it's to a -- your brother.
You sell --
MR. VOELKEL: Family partition.
COMMISSIONER LETZ: Family partition.
MR. KIMBROUGH: All right.
COMMISSIONER LETZ: Okay? But then you have --
under the model rules, you can't have more than one house on
a lot. I guess it's a partition, though; it wouldn't be a --
it would be two lots. So, I guess -- I mean, I see a
conflict. I see a conflict between those two points, but
that you can't have -- you don't -- it says do you not have
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to plat it if it's going to a brother, and yet model rules
say you can't have more than one house on a lot.
MR. KIMBROUGH: We have cases at times that --
where the issue is which version of the law trumps? You
know, which statement of the Legislature is the controlling
issue -- controls the issue? And, you know, those model
rules are agency -- they're not -- the Legislature didn't
make the model rules. The state agency did, pursuant to the
instructions of the Legislature. So, I can't tell you the
answer on every one of those questions until I see which one,
but the model rules were -- they're pretty strong. And the
people that give the money to the EDAP applicants will take
the money back and won't give you any more if their rules
aren't followed, through their audit provision that the law
says they must -- if they give you money, they're going to
come in -- I think it's an annual audit. Any quicker than
annual?
MS. RUSSELL: I don't believe so.
MR. KIMBROUGH: But --
COMMISSIONER LETZ: But how can you -- when you
have a very specific exemption --
MR. KIMBROUGH: Correct.
COMMISSIONER LETZ: -- versus a rule that agencies
made --
MR. KIMBROUGH: It's supposed to fall. The agency
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rule is supposed to fall and be subordinate to the expressed
statute by the Legislature.
COMMISSIONER LETZ: But does --
MR. KIMBROUGH: It's secondary authority.
COMMISSIONER LETZ: But does the -- how does the
audit provision -- does it follow their rules or the rules
that you have to follow -- or I guess the question would
be --
COMMISSIONER WILLIAMS: Who's on first?
COMMISSIONER LETZ: Yes. We may trump, but do we
have to pay the money back?
MR. KIMBROUGH: I would not bet against the Water
Development Board's ability to recover funds if they -- if
they have an audit that shows violations. I -- there's too
much money involved there, and there's too many -- too many
public policy issues that allowed that money to be -- there's
debt associated with it. There's general obligation bonds
associated with it, so there may be some bond rules that
apply as well. But I cannot tell you the answer on each one
of them. But you've got -- Mr. Reynolds said you raised --
the County raised some issues about apparent contradictions
between the rules and the legislative -- the statute?
COMMISSIONER LETZ: Right.
MR. KIMBROUGH: What did he say about that?
COMMISSIONER LETZ: He said that their model rules
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were put together for border counties, which, you know, was
different than the rules under Subchapter A. And that they,
internally -- I guess I was probably -- we were one of the
first -- I don't know if we're the first, but he said,
"You're asking questions that I don't know the answer to. We
need to go back and look at our model rules."
MR. KIMBROUGH: I looked for another client in the
early -- well, spring, of all the political subdivisions in
the state that had applied for EDAP money, and there was none
out of the South Texas region.
COMMISSIONER LETZ: Now there's one.
MS. RUSSELL: Yeah. Well, it's new, too. You
know, this is new also. I mean, granted, that this -- this
just came about in the 2005 Legislature, is when they
extended the EDAP money.
COMMISSIONER WILLIAMS: We're the only one that had
filed.
MR. KIMBROUGH: I don't know of any other county
that -- and we have some, you know, business all over
everywhere for counties, and we haven't heard of any other
county making an EDAP application.
COMMISSIONER WILLIAMS: We were told that there
were some thinking about it, but we were the first ones to
file.
25 ~ MR. KIMBROUGH: That was the talk. Between the
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sessions -- between the committee -- I believe there was a
charge. There was a Senate --
MS. RUSSELL: Interim charge.
MR. KIMBROUGH: The Lieutenant Governor's list of
charges. In other words, committees that were supposed to
work between the sessions included the Senate committee that
was over this type of legislative area, and one of our
lawyers gave testimony about model subdivision rules.
JUDGE TINLEY: Would this be a good place to take a
break so we can give her a rest for about 10 or 15 minutes?
MR. KIMBROUGH: Yes, sir.
(Recess taken from 2:32 p.m. to 2:54 p.m.)
JUDGE TINLEY: Okay, let's come back on the record
now and resume.
MR. KIMBROUGH: I'd like to visit now about the
model subdivision rule handout. Claudia?
MS. RUSSELL: I'll start, and let Chuck pick up
with me. But the main three things I've taken away from the
model subdivision rules --
MR. KIMBROUGH: Can I interrupt you for just one
moment? I want to make sure they know what's in the packet.
There's the summary, and we -- what we've done on the
summary, it's two pages, but we've tried to hit five or six
key points that are big. If you want to understand M.S.R.,
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these are the high points for us. And then the next -- the
big thick packet are the actual model rules. Have y'all ever
seen these?
COMMISSIONER LETZ: Mm-hmm.
MR. KIMBROUGH: Okay.
COMMISSIONER LETZ: Just recently.
MR. KIMBROUGH: Okay. Well, the model rules also
apply to cities, and the city version is in the very back.
That's what makes it a little bit thicker. But what we're
going to do when Claudia goes through the summary, we're
going to show you where in the model rules those issues
appear on the page so you can highlight them and circle them
and go back to them and read them in more detail when you
have some time. The next thing in the packet is a -- an
administrative regulation under Title 31, Section 355.72 of
the Administrative Code, which sets out the criteria for
eligibility; funding, in other words, with the Water
Development Board. And that's -- I only need to show it to
you once. It's right here. That's the thing that says that
if you want the money from the board --
MS. RUSSELL: You must adopt the rules.
MR. KIMBROUGH: -- you must have adopted the model
rules, okay? And then the next one -- the next --
COMMISSIONER LETZ: Chuck, just on that point --
MR. KIMBROUGH: Okay.
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COMMISSIONER LETZ: Most counties that adopt it, do
they just adopt them? Or try to make them mesh in their
rules? I mean, I guess --
MR. KIMBROUGH: Well, you got to do one, and you
ought to do the other. Because, as Claudia's going to show
you, M.S.R. only applies to, you know, 5 acres or less,
residential. And we know the exemptions when you get above
10 acres, and the usual exemption statute under 232,
Subchapter A -- 232.0015, I think it is.
COMMISSIONER LETZ: Mm-hmm.
MR. KIMBROUGH: You know, if you're over 10 acres,
then you do not dedicate any land for roads, streets, parks,
and you don't do any of that, you know, stuff for the benefit
of common adjoining lot owners. You're not required to plat.
So, it's -- to work into your county's regulatory scheme is
very important.
COMMISSIONER WILLIAMS: Well, Chuck, I think the
reason Jon asked that question is 'cause we have -- in their
correspondence back to us, they listed the various sections
of our model subdivision rules -- or of our subdivision rules
which they thought didn't comply or needed modification, and
they identified them. And then, when they get through with
all of that, then they -- they put a catch-all paragraph that
says, you know, "However, you can refute all this just by
adopting our model subdivision rules."
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MS. RUSSELL: I think they would prefer that. I
know, from talking with some of the folks at the Water
Development Board, just the government relations guys, they
said that through cities -- that they've just, through the
different ordinances that do exist all throughout, that it's
-- they would prefer for a county or a city just to take what
they provide and to adopt that. That's what they prefer.
MR. KIMBROUGH: But we can't do that for all
subdivisions, because -- well, I guess you could. I guess
you could say for every subdivision that's over 5 acres, but
less than 10 acres, we're making the model rules apply.
COMMISSIONER LETZ: I don't think you have -- my
question is, I don't think you have the authority. If you're
less than 5 acres, I think this applies.
MS. RUSSELL: Yes.
MR. KIMBROUGH: Absolutely.
COMMISSIONER LETZ: But if you're over that, where
are you going to get the authority to have those separate,
tougher restrictions?
MR. KIMBROUGH: Health, safety, welfare, moral
development; Subchapter E.
COMMISSIONER LETZ: At risk, right? I mean, you're
going to be --
MR.	KIMBROUGH:	Yes, sir.	Yes,	sir, I can't back
up on what I	said before	the break.	Yes,	sir.
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MS. RUSSELL: But he also did say --
MR. KIMBROUGH: But just an educated opinion, in my
judgment, looking at the -- the way the law's been
developing, I don't dislike your chances, but there is risk,
yes, sir.
COMMISSIONER LETZ: Okay.
MS. RUSSELL: Right. But you also did indicate
that you did think that that was available through A, right?
MR. KIMBROUGH: Through A?
MS. RUSSELL: Through the general safety -- the
catch-all.
MR. KIMBROUGH: I do. I do. And, you know, the
debate's been going on ever since, what, '03, when
Subchapter E hit? And I just -- we're looking for the case.
We -- maybe we'll get it one of these days, but the case law
does not exist right now. Now, Claudia's going to go through
this, and what I'm going to try to do after she's through is
to actually show you the pages in the M.S.R. where you can
circle it and go back to.
MS. RUSSELL: Circle, go back to it. Well, some of
the main points to come off of the M.S.R.'s are -- Chuck and
I talked about it yesterday. Three things that we take away
from it; in other words, the real big ones. And one is,
what's the scope? Who does it apply to? We've already
talked about that. It applies to residential acreages,
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5 acres or less.
MR. KIMBROUGH: Two or more lots.
MS. RUSSELL: Two or more lots --
MR. KIMBROUGH: But --
MS. RUSSELL: -- containing 5 acres or less. And
then there's the part that we've also talked about,
Commissioner Letz. No more than one single-family detached
dwelling may be located on any one lot. And, again, this
must appear in the final plat. So, those two things; who
does it apply to? It applies to lots containing 5 acres or
less and intended for residential purposes. And then they
went through the requirement -- with the requirement that no
more than one single-family -- detached single-family
dwelling may be located on the lot. The second thing to come
across are what we call just, like, the -- like, the minimum
standards. What are they requiring? For water services, it
depends on if there's an existing -- depends on what you plan
to do. If there -- if the developer -- if there is no retail
public water service, and he's not wanting to put in well --
you know, wells or septics, then, yes. Then they want what
we -- these minimum standards that they want on the front end
is to prove that that retail public -- whoever's going to
provide the water is able to provide the water for 30 years.
They want assurances that this water -- that these people in
the subdivision will be able to -- to get water for 30 years.
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COMMISSIONER LETZ: Quick question.
MR. KIMBROUGH: Okay.
COMMISSIONER LETZ: This is kind of an opinion. If
we went to Water Development Board -- you cannot put a water
well on less than 5 acres in Kerr County, okay? So -- but
this is 5 acres or less. Seems that if we could get Water
Development Board to say -- instead of saying 5 acres or
less, say less than 5 acres, is that minor a change something
they might accept? Because then we -- you couldn't have a
', water well, period. I mean, if they can just change that to
~I less than 5 acres, that solves the whole problem.
MR. KIMBROUGH: That's the PGMA rule?
COMMISSIONER LETZ: Well, it's our -- it's our
local rules, yes. It's our PGMA rule -- we'll probably have
to talk to you about that sometime, 'cause we have --
MR. KIMBROUGH: There is a state law that allows
you to do that?
COMMISSIONER LETZ: What we have done, we have
looked at data that comes in from the regional water planning
and Headwaters and others, and said, based on all this data,
we feel that you're less than -- you know, you're guaranteed
to get water developability if you're 5 acres or more. We
don't require studies, but we have referenced the various
documents that we looked at, talking about the consumption
and all that, and what water looks like. Currently, there's
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not enough data in Kerr County to say yes or no, definitely,
that 5 acres is the right number. But the other problem is,
we have multiple aquifers and multiple different areas of the
state that vary greatly across. So, Bill's area, you know,
it might be real tough even at 5 acres. Bruce's area, you'd
probably be good on 1 acre. But since the area -- the
science is not advanced enough that we have -- we're saying
we're going to play it safe; 5 acres. If you have -- if
you're greater than 5 acres, you can do individual water
wells.
MR. KIMBROUGH: Where in your regulations does it
say that? Subdivision regulations?
COMMISSIONER LETZ: Yes -- water availability
regulations, actually.
MR. KIMBROUGH: What does state law say about that?
COMMISSIONER LETZ: State law says that we can
develop our own water availability requirements in a PGMA.
MR. KIMBROUGH: In a PGMA?
COMMISSIONER LETZ: (Nodded.) Which we've done.
MR. KIMBROUGH: A water conservation district
exists here?
COMMISSIONER LETZ: Right.
MR. KIMBROUGH: The name of that one is?
COMMISSIONER LETZ: Headwaters. And they --
MR. KIMBROUGH: They are on board with that?
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COMMISSIONER LETZ: They've never -- not objected
to our rules.
MR. KIMBROUGH: Were they involved in the -- did
they provide help to the Court, data to help the Court make
its decision on that?
COMMISSIONER LETZ: Through regional water planning
process, definitely. I don't know -- and that board's been
divided over time. Some -- I'd say right now, there's
probably a quorum that would support it. Other times there's
been a quorum that wouldn't support our rules, and want us to
be a little bit stricter.
MR. KIMBROUGH: That is a very interesting point.
I told you that I forgot that you were a PGMA before I came
over here. I should not have, but I did. I plead guilty on
that. You've asked a question that is really interesting for
a lawyer.
COMMISSIONER LETZ: Be interesting for a county to
know if we're right to --
MR. KIMBROUGH: Can the -- under 364.11, model
subdivision rules, can a county who got money from the board,
in an audit -- or maybe even, you know, to get the money,
imposing a hypothetical, can -- can it obtain a compliance
report through the Water Development Board's review in
contradiction to the plain language of 364.11? That's been
there a long time. Only to a subdivision which creates two
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or more lots of 5 acres or less can -- can a deviation from
that, based on the PGMA authority, supported by conservation
district data, can -- can this -- can this be the subject of
a deviation -- where I'm putting my finger right there --
right there. Can that primary rule component be the subject
of a deviation, and equal substantial compliance, in order to
get the money?
COMMISSIONER LETZ: But while you were talking,
I --
MR. KIMBROUGH: That's a very interesting question.
COMMISSIONER LETZ: But I figured an easier
solution. If we can modify our subdivision rules to greater
than 5 acres. Instead of saying you can have an individual
water well on 5 acres or greater, we can just do "greater
than" 5 acres, and that way you can adopt this for less, and
there's -- basically, the only time that they'd have to
follow these rules is if it's exactly a 5-acre lot size.
MR. VOELKEL: Much easier approach.
COMMISSIONER WILLIAMS: That may be the way.
COMMISSIONER OEHLER: Yeah.
COMMISSIONER LETZ: That would solve the problem,
'cause then we can be in compliance with their rules, and we
can say greater than 5 acres. It's just a matter of where
you put the "greater than." Okay.
COMMISSIONER OEHLER: Rather than trying to get
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them to say less, you have to say more.
COMMISSIONER LETZ: Right.
MR. VOELKEL: They're not going to do it.
COMMISSIONER OEHLER: They're not going to do it.
MR. KIMBROUGH: But Priority Groundwater Management
Area rules, you know, come from another agency, Texas
Commission on Environmental Quality, and it's a very
interesting question. I -- I'd like to come back to it on
another day. But --
COMMISSIONER LETZ: Okay.
MR. KIMBROUGH: -- I don't feel comfortable taking
sides on that one.
COMMISSIONER LETZ: Okay.
MR. KIMBROUGH: At this point.
COMMISSIONER LETZ: But you gave me -- by your
comments and my question, I figured out a solution.
MR. KIMBROUGH: Well, for me --
COMMISSIONER WILLIAMS: Possible solution.
JUDGE TINLEY: Do it in a way that you have
control.
COMMISSIONER LETZ: Right, so that we don't have to
ask the question.
MR. KIMBROUGH: Very interesting. Sorry, Claudia,
I but that --
MS. RUSSELL: No, and please stop as we keep going
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along. So, again, you know, what are the minimum standards?
So -- we're talking about water now; not wastewater, but just
water. And, so, if a subdivider is going to propose to
supply drinking water and wants to connect --
COMMISSIONER WILLIAMS: Where are you in your
folder?
MS. RUSSELL: I'm at 364.32. Do you see 364.32?
MR. KIMBROUGH: If you look at the top of the page,
it will be Page --
COMMISSIONER LETZ: 1 of 4.
COMMISSIONER OEHLER: Yeah.
MR. KIMBROUGH: What page are you on in the model
rules?
COMMISSIONER OEHLER: 1 of 4.
COMMISSIONER WILLIAMS: I got it, I of 4.
MR. KIMBROUGH: I'm sorry, what's your number?
What's your number on your highlight? 364.32?
MS. RUSSELL: Uh-huh, 364.32.
MR. KIMBROUGH: That'll be Page 1 of 4.
COMMISSIONER WILLIAMS: Got you.
MS. RUSSELL: So, they're going to break it down
by -- is there an existing public water system? And if -- if
you're wanting to connect the water -- if you're wanting to
connect into an existing public -- existing public water
system, and what they want to see is a contract with you and
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the existing retail public utility saying that they can take
-- that they can supply -- that they will provide, and has
the ability for the total flow anticipated for the next 30
years. They want --
MR. KIMBROUGH: Who's the water provider out there?
COMMISSIONER WILLIAMS: There's three of them --
two of them that operate three systems. Actually, there's
three of them that operate four systems.
MR. KIMBROUGH: Water supply corporations?
COMMISSIONER WILLIAMS: Aqua Texas has two.
Another guy has one, and a big mobile home park has its own.
MR. KIMBROUGH: Okay.
MS. RUSSELL: And then you even have an Appendix
1-A that they give you a form -- a form contract to --
between the county and the retail public water supply to sign
and execute. They want to see that. That's like the minimum
standards that they're trying -- that they're requiring the
County to have. Now, if it's not -- and this is where we
think about the building it. If there is no existing retail
public water, then they're going to require the developer to
build one. And, by obtaining a CCN and everything necessary
to -- to go through the steps of providing your own -- that
might not be the option here, but just to break that down, if
-- if that developer does have to -- if this is the option he
chooses, and decides to build his own, then he's got steps to
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take. If he's going to use groundwater, then he's got to
provide some type of groundwater availability study that's
going to meet their -- their requirements. If he's going to
use surface water, then they want sufficient evidence to
prove that that surface water supplier is going to be able to
supply water for 30 years. Now --
COMMISSIONER WILLIAMS: Notwithstanding a drought
of record, huh?
MS. RUSSELL: Except for surface water, right?
I Yes .
(Discussion off the record.)
MS. RUSSELL: Now, on the (a) -- 364.32 (b) is where
we were talking about they're not requiring subdivision --
sub -- developers to build -- to obtain a CCN and build every
treatment center, 'cause they're allowing right here on (b),
where you have individual wells for non-public water systems.
So, where you have individual wells, the subdivider still has
to prepare and show that the groundwater availability is
there and is long enough to supply for 30 years. Thirty
years, you know, is what they're wanting to see. And then
the (c) part, I think, is saying that it's not acceptable
to -- to transport potable water. So, that's for the water.
The next section, 364.33, is our wastewater. And,
again, it's -- it goes along kind of the same lines. If the
subdividers have a collection and treatment center, that they
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propose to develop one, then they've got certain engineering
planning materials that have to be -- have to be approved.
If they want to dispose of the wastewater by connecting to an
existing permitted facility, then they want you to, again,
enter into a written agreement and show them that that retail
public facility has the ability to -- to treat your flow and
take care of your wastewater disposal for a minimum of 30
years. So, that's what they're wanting to see. They're
wanting to see contracts. They'll want the type of
agreement; that they'll want to see the application, under --
that's the organized. Now, (b) allows for the on-site
sewerage facilities, in 364.33. So, with the septic systems,
we know that they're only allowable if you serve 5,000 -- no
greater than 5,000 gallons a day. So, that's a general
requirement for, I guess, your O.S.S.F.'s. But, basically,
they're just saying you comply with what already the state
law is for septic systems for a developer. So, again, we're
saying that --
MR. KIMBROUGH: We didn't give you the O.S.S.F.
right?
COMMISSIONER WILLIAMS: We're authorized agent.
COMMISSIONER OEHLER: Right.
MS. RUSSELL: You're authorized agent. So, again,
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these minimum standards are -- they're wanting these up-front
assurances.
i MR. KIMBROUGH: For whose benefit?
MS. RUSSELL: For the public.
~~ MR. KIMBROUGH: The people. It's for the
uneducated person who buys the lot.
MS. RUSSELL: The lot, that --
MR. KIMBROUGH: And, you know --
MS. RUSSELL: -- thinks that there's going to be
water there.
MR. KIMBROUGH: Yes, or the unscrupulous sales
representative who promises the moon. You know, they're
trying to get at that.
MS. RUSSELL: So, those -- again, who it applies
to, and what they're wanting is those minimum standards.
They're wanting proof on the front end that it's going to be
there, and that's there for the protection of the consumers.
The third thing that Chuck and I think are the most -- is the
most important is the financial -- 364.54; is that right?
What page is that on?
COMMISSIONER LETZ: 3 what?
MS. RUSSELL: 364.54.
MR. KIMBROUGH: It's --
MS. RUSSELL: 3 of 9.
25 ~ MR. KIMBROUGH: Yeah, 3 of 9.
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MS. RUSSELL: So, this is what we've heard as a
"build it or bond it." Right? So, what they're -- before
the final plat is going to be approved -- and correct me if
I'm wrong -- they're going to require the Commissioners Court
that it be built at the time of approval, or that you issue a
bond, and it goes into detail what type of bond that the
developer must issue, as assurance that it will be built.
MR. KIMBROUGH: With two exceptions. Again,
private water wells, and private on-site septic facilities
are okay. The "build it or bond it" rule has to do with the
other type of water and sewer provisions where the
developer's going to put in a water system, and put in a
sewer system -- and/or put in a sewer system.
COMMISSIONER WILLIAMS: Well, the practical
application to our particular situation we're talking about
would be that if we obtain their money to construct the sewer
collection system and transmission system, future developers
who come along purchasing land for development that's
available, they have to be required to hook up. Would that
be a factual reality? I would hope so.
MR. KIMBROUGH: It's logical.
MS. RUSSELL: It's logical for them to --
COMMISSIONER WILLIAMS: If they put in the water,
we're going to have a requirement to hook up to the system.
MS. RUSSELL: And one thing that stands out when
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you say that, I know at T.C.E.Q., they're really trying to
push the regionalization --
COMMISSIONER WILLIAMS: Right.
MS. RUSSELL: -- issue. And that is the -- I think
the logical step of -- of planning, is to regionalize this
and hook up.
COMMISSIONER WILLIAMS: Mm-hmm, right.
MR. KIMBROUGH: The -- the scenario, Commissioner
Williams, that you've talked about is a hookup requirement to
an existing sewer system?
COMMISSIONER WILLIAMS: Mm-hmm.
COMMISSIONER LETZ: I think -- I think -- I don't
know that you can do that, to my mind. I mean, you could --
they may -- if they want to build their own transmission line
or put in their own sewage treatment facility, they have the
right to do that.
MS. RUSSELL: They have the right to try to get a
permit from T.C.E.Q. to cover that.
COMMISSIONER LETZ: Sure.
MR. KIMBROUGH: Or -- but what about -- I'm short
on the facts. You mentioned that there was an existing sewer
system.
COMMISSIONER WILLIAMS: No.
COMMISSIONER LETZ: Assuming we get the money to
~ build the system.
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MR. KIMBROUGH: Okay, hypothetically. And it
happens.
COMMISSIONER WILLIAMS: And future developers come
along under these rules. My question is -- and I guess it
applies both ways, considering what Jonathan just said. They
either have to hook up to the existing system, or they have
to put in one of --
COMMISSIONER LETZ: Their own.
COMMISSIONER WILLIAMS: -- their own.
MR. KIMBROUGH: Depends on where the land is.
COMMISSIONER LETZ: If it's --
COMMISSIONER WILLIAMS: Of course.
COMMISSIONER LETZ: Yeah. I mean, adjacent to the
system, if it can be hooked up into it.
COMMISSIONER WILLIAMS: We're talking about in the
proximity where the system's going in, talking about the
community of Center Point. Say a developer comes in, buys
land within the proposed service area.
MR. KIMBROUGH: I'm not sure about that. I have to
do -- I'm not sure about that. Because if there's anything
that jumps out at you from the model rules, it clearly
says -- look at l of 4.
COMMISSIONER WILLIAMS: Which one?
MR. KIMBROUGH: 1, 2 and 3. Pages 1, 2, and 3.
The first part of it's water facilities development, and next
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part is wastewater disposal.
COMMISSIONER LETZ: Where are you?
MS. RUSSELL: About --
MR. KIMBROUGH: Just look at the top of Page 2.
The top of Page 2.
COMMISSIONER LETZ: Okay.
MR. KIMBROUGH: The model rules. The top part is
talking about water supply, of the model rules. Yeah, page
-- it'll be the model subdivision rules, this big, thick
packet.
COMMISSIONER WILLIAMS: Yeah.
MS. RUSSELL: But not necessarily -- it's page --
it's the next section.
COMMISSIONER LETZ: What's the number?
MR. KIMBROUGH: Oh, okay.
MS. RUSSELL: Sorry.
MR. KIMBROUGH: Top right-hand corner would be Page
2 of 4.
COMMISSIONER WILLIAMS: Got you, okay.
MR. KIMBROUGH: Page 2 of 4.
COMMISSIONER WILLIAMS: Now I'm with you. Okay.
MS. RUSSELL: We're looking at 364.32.
MR. KIMBROUGH: Yeah. It's the top of the page,
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MR. KIMBROUGH: "Where individual wells or other
non-public water systems are proposed... the subdivider
shall..." Okay, those are the front-end assurances. Test
well. That's what it ultimately means, when you get back to
the end, okay? Right off the -- I mean, it's there in plain
English. You do not, if you're a developer, have to put in a
water system.
COMMISSIONER WILLIAMS: Okay.
MR. KIMBROUGH: All right? And go down to
I wastewater --
COMMISSIONER LETZ: But in our county, you can't do
it if you're -- you have to have 5-acre lots or more to be
able to put in individual water wells, and subject to these
rules.
MR. KIMBROUGH: Okay.
COMMISSIONER LETZ: So you're not going to be able
to put in individual -- in reality, you're going to be
hard-pressed to put in water wells.
MR. KIMBROUGH: Okay. That's the -- in other
words, the PGMA-authorized county regulation preempts a -- an
individual water well.
COMMISSIONER LETZ: And Headwaters, the ground --
the conservation people, won't allow it from a -- I mean,
they can only do spacing, but their spacing somewhat conforms
to our lot size.
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MS. RUSSELL: Now, I'm wondering if you --
Commissioner, your question would be with the CCN, say, for
the water services that a developer puts in. And he has
to -- and he -- there's no existing retail utility, and he's
going to construct his own, and the first thing he has to do
is go get a CCN from T.C.E.Q., and that CCN basically
operates as a monopoly within that, wherever your boundary
is. Then any new developments --
COMMISSIONER WILLIAMS: That's for water.
MS. RUSSELL: For water, yes.
I! MR. VOELKEL: How's that work for sewer?
MR. KIMBROUGH: Look at the bottom of that page,
wastewater disposal, 364.33 (b), on-site sewerage facilities,
and then go to the next page. Could this developer do
septic, even though there was an existing public sewer system
adjacent to the lots?
COMMISSIONER WILLIAMS: If I read this correctly,
it suggests it can.
MR. KIMBROUGH: Yes, sir.
COMMISSIONER LETZ: Said he can.
MR. KIMBROUGH: So I'm not sure, at least as to
sewer, that the county regulation requiring them to hook
up --
COMMISSIONER OEHLER: There were some old state
regulations at one time that said that if you were within a
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certain range, 150 feet or something, of an existing
wastewater line or something, that you must hook up.
COMMISSIONER WILLIAMS: That also, but under EDAP
-- under the EDAP rule, counties have the authority to
mandate hookups under the EDAP program.
MR. KIMBROUGH: Okay. We haven't talked about the
EDAP subdivision rules. I've given you copies of them, okay?
There's a whole different set of plat requirements that you
may choose to engage in, separate from Subchapter E. There's
-- this is Subchapter D, the EDAP rules. This is the
reason --
MS. RUSSELL: C.
MR. KIMBROUGH: Excuse me, C. I'm sorry.
MS. RUSSELL: Not to confuse anybody.
COMMISSIONER WILLIAMS: I'm already confused; don't
worry about it.
MR. KIMBROUGH: It's got a red tab on it.
COMMISSIONER LETZ: So, if you go -- so, even
though -- if we do an EDAP grant, then Subchapter C would
also apply in Kerr County? The entirety, or just within the
area of the EDAP --
MR. KIMBROUGH: Whole deal. You can -- I will show
you the --
COMMISSIONER LETZ: Is that your stack or my stack?
COMMISSIONER OEHLER: That's mine.
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COMMISSIONER LETZ: Get your own stack.
MR. KIMBROUGH: Actually, it's attached to your
model subdivision rule packet. I forgot to tell you about
it. It's the very last -- it's the very last attachment in
your M.S.R. packet.
COMMISSIONER LETZ: Okay.
MR. KIMBROUGH: Who -- "This subchapter applies...
outside the corporate limits of a municipality" -- this is
232.071 -- "and in a county in which there is located a
political subdivision that is eligible for and has applied
for financial assistance under the" -- and it gives -- that's
the EDAP sections.
COMMISSIONER LETZ: EDAP is now applicable
statewide?
MS. RUSSELL: That's right.
MR. KIMBROUGH: If you comply with 232.071, and
your county has actually applied and is eligible for the EDAP
money, okay? So, these rules apply. And they specifically
mention -- they specifically mention the model subdivision
rules. Now, I'll give you the cite on that.
MS. RUSSELL: All the different chapters are
confusing, but of the 232, A was the general -- the one that
all counties can do; B was the border one, which had the
strictest of the strict in there; C is the EDAP, which came
about -- it was effect -- became in effect after '05, after
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EDAP was expanded out to beyond border counties; and E, the
other one we've been talking about, is the one that's just
now -- the old urban county that's now opened up to all
counties.
MR. KIMBROUGH: Okay. When you look at Subdivision
E, which is this last attachment to your model subdivision
rule packet, okay? It's the statute at the bottom of the
first page, Section 232.072. And you turn -- it's called
Plat Requirements. And then you turn the page, and you see
model subdivision rules adopted under Section 16.343 of the
Water Code, very top -- at the very top of the second page.
And then, when you read that, "A plat required under this
section must" --
COMMISSIONER WILLIAMS: Oh, F. I got it, okay.
COMMISSIONER OEHLER: Where is it?
MR. VOELKEL: At the bottom -- top of the second
I Page .
COMMISSIONER OEHLER: If I had the right document
in my hand --
MR. KIMBROUGH: The reason that the Water
Development Board is suggesting to you that the County must
adopt the model rules, okay, is because Kerr County applies
under Subdivision C, EDAP subdivision regulation authority.
You also happen to apply under A. You also happen to apply
I under E .
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COMMISSIONER LETZ: So far, we now have --
MS. RUSSELL: And under E, you also have B,
remember?
MR. KIMBROUGH: Remember? 'Cause E reaches back to
B.
COMMISSIONER LETZ: Part of B, all of C, and all of
E. We just don't have D.
MR. KIMBROUGH: But the reason that E applies --
excuse me, that C -- this one applies to you is because there
is a political subdivision located in Kerr County, Texas,
that is eligible for and has applied for EDAP money. That
political subdivision happens to be the County of Kerr.
COMMISSIONER WILLIAMS: Right.
MR. KIMBROUGH: Now, the TAC rule says -- the
administrative regulation that I gave you, this one, Chapter
31, --
COMMISSIONER LETZ: Mm-hmm.
MR. KIMBROUGH: -- says that political subdivisions
must meet the appropriate requirements of this section before
the board, meaning the Water Development Board, may consider
an application for financial assistance. But what do you
have to do to get the board to consider your application?
Your county must adopt -- okay, so that's where these two
things dovetail into each other.
COMMISSIONER WILLIAMS: That's what they told us.
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MR. KIMBROUGH: Now --
MR. VOELKEL: There it is in writing.
MR. KIMBROUGH: We have connected the dots. But
your question becomes, can you make them hook up to the sewer
I~ -- to the existing sewer system?
COMMISSIONER WILLIAMS: I asked the question
originally with respect to individual property owners, and I
was told that under EDAP regs, the County has the authority
to mandate hookups under -- by accepting those funds. Okay.
So, I would assume that to apply to a developer who says,
"I'm going to put in an apartment complex or whatever" --
MR. VOELKEL: You have to define an area, that it
falls in the area?
COMMISSIONER WILLIAMS: Well, you define surface
area, sure.
MS. RUSSELL: It says -- there's CCN sewer just
like there is CCN water.
COMMISSIONER LETZ: If you're within the CCN --
MR. VOELKEL: If it's in that area, you can require
that?
MS. RUSSELL: Yes. But we can study that further,
and let us just study that further.
COMMISSIONER WILLIAMS: The answer came back from
Water Development Board.
MR. KIMBROUGH: I couldn't --
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COMMISSIONER WILLIAMS: You couldn't take their
word as gospel?
MR. KIMBROUGH: No, no, no, no. I'm not -- I'm
oing the other way, 'cause it's their money. You know, if
g
you want their money, you know, I would think that their -- I
wouldn't disagree with them, is where I'm going with it. You
know, I'm much more interested in the interplay --
"interested" is -- I'm concerned about the interplay
between -- you know, like we talked about, with the 5 acres
or less deal, whether we could obtain a substantial
compliance ruling from the board in order to get the funds,
based on the presence of a PGMA rule -- a PGMA-authorized
rule.
COMMISSIONER LETZ: That's a -- we can fix that by
just changing the "greater than."
MR. KIMBROUGH: I'm with you there. But --
COMMISSIONER LETZ: You like the legal part, and
it's an interesting question as to which rules -- and the
Water Development Board's going to have to get more and more
involved, because as they extend EDAP, they've expanded into
a whole new area of rules.
COMMISSIONER WILLIAMS: Exactly.
COMMISSIONER LETZ: I don't think they fully
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If it's unsuccessful --
MS. RUSSELL: Money's going to be running out soon
enough.
MR. KIMBROUGH: -- there may be a higher level of
scrutiny applied, but if the election is successful -- the
constitutional amendment election is successful, they still
may, you know, increase their scrutiny on substantial
compliance, because 5250 million is a lot of money, but
there's a whole lot more people that are -- more entities
that are going to be seeking the financial assistance.
COMMISSIONER WILLIAMS: Right.
MR. KIMBROUGH: Okay. I --
MS. RUSSELL: That's where we -- kind of the three
main things for the M.S.R.'s are who it applies to, what are
the minimum standards? What do they want to see on the front
end? And the build it or the bond it. If you're in a
situation where a developer does decide to create its own
water or sewer, then they have to have it built before it's
approved, or have a bond for it.
MR. KIMBROUGH: I've got my model rules marked on
the key parts that we talked about today, and I want to go
through and show you so you can mark them, and then you can
go back and read them at your leisure. But on Page 1, 364.11
and 364.15 is the basic, you know, two -- two tracts or more,
5 acres or less, intended for residential purposes. So, you
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know, put a mark here and here. And then the standards --
you know, the goal, the purpose right there in the middle of
the page about minimum state standards for adequate water and
that's the purpose of why they exist. Okay. Then Claudia
talked to you about the minimum standards beginning at Page 1
of 4, 2 of 4, 3 of 4. But at the bottom of Page 3 of 4, the
setback rules, minimum 10 feet in areas that lack a
nationally recognized fire code, and then it talks about a
Chapter 233 statute.
I'm going to talk to you about this at the end, but
a county fire code; you have to be 250,000 or more in
population, or be adjacent to a county that has at least
250,000 in population. So, you don't have the ability to
adopt a nationally recognized fire code under Chapter 233,
but your minimums should be at least 10 feet. And, certainly
the increased setback options that are available to you under
Subchapter E can help you there. Okay. Number of dwellings
per lot. Go to the next page, 4 of 4. That's where I've
marked it. No more than one single-family -- single-family
detached dwelling on each lot. And then the rule about the
plat has to say that and the deeds and the contracts for deed
that support the lot sales; that's where it says it too.
That restriction has to be on the deed of conveyance where
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people buy their lots.
COMMISSIONER LETZ: And --
MR. VOELKEL: How does the County control that?
MR. KIMBROUGH: Well --
MR. VOELKEL: Just curious.
MR. KIMBROUGH: We haven't said anything at all
about enforcement, Mr. Voelkel. But -- but that is where
crimes are committed. At the very back of this -- okay, this
Administrative Code attachment to model subdivision rules --
I know y'all are getting tired of me playing flash cards, but
back here it talks about the provisions in state law where
enforcement authority exists, okay? Now, without getting too
technical, when you talk about the Water Code provisions
there and the Local Government Code provisions in 232, two
things come up. The rules can be enforced by -- by criminal
prosecution, if the statutes allow it, by your local County
Attorney or District Attorney, and sometimes the Attorney
General's office. So, criminal violations are the law;
mostly misdemeanor offenses, okay, where the criminal
prosecutors become involved under facts that support such a
prosecution. Proof beyond a reasonable doubt. All right?
Secondly, the statutes that exist allow civil
enforcement whereby Kerr County, through the services of
either the County Attorney or the District Attorney, or
possibly outside counsel, where lawsuits are filed for
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injunctive relief, just to keep somebody from doing
something, to get a court order -- civil case court order for
normally you don't associate a county going to court and
suing somebody very often because of the litigation risk and
expense, okay? But there are lots of counties in the state
that routinely refer subdivision regulation violations to
their local prosecutor's office, and you see those.
When I was a prosecutor in my home county, we -- at
You know, I didn't -- I was D.A. in my home county for 12
years, and I didn't know where it was until back when we had
the Water Commission prior to -- you know, prior to the
current agency setup. With 60 or 70 people in the
Commissioners Court meeting that day, he leaned over and
said, "Well, your local District Attorney has criminal
prosecution jurisdiction over these alleged violations.
Don't you?" And everybody looked at me. And I said, "Well,
I guess so." You know, I didn't know where the law was. And
that was in the -- the early 90's, and it was about that time
that the criminal violations began to hit the books for
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subdivision ordinance activity.
per lot, it says this restriction shall be placed on all
deeds. Well, you know, we don't compare deeds.
MR. KIMBROUGH: No, but what -- nor do -- nor do
you ride around catching burglars, either. Okay? And so
there is an enforcement mechanism that's built into state
government, and there's an investigative mechanism too that
involves, most of the time, law enforcement. Do you have a
Code Enforcement Officer or someone in county government that
checks septic permits?
MS. RUSSELL: Environmental Department does, right?
would have training, education, and experience for those
types of people on staff to look at enforcement issues
regarding subdivision regulations and plat rules, and model
subdivision compliance. And when they see things that --
where the facts support a criminal violation of the law, a
referral is made to the prosecutor with jurisdiction, and
then the prosecutor's office must make a determination of
whether the facts are sufficient to charge a criminal
offense.
MS. RUSSELL: Chuck, a question that comes to my
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mind that they might also have is, would there be an
affirmative duty for them to look --
MR. KIMBROUGH: Well --
COMMISSIONER LETZ: -- at the contract deeds? I
~ mean --
MR. KIMBROUGH: If the law -- I will tell you that
many times, in my experience as a prosecutor, it was from the
tax appraisal district staff that we learned of things, that
the code enforcement people learned of -- of violations of --
like, for instance, subdivisions that were -- were
non-platted, but selling lots. How are you going to stop
that?
COMMISSIONER LETZ: I see.
MR. KIMBROUGH: Unless you learn from some source
outside of the courthouse that it's going on.
COMMISSIONER WILLIAMS: We set it up so that when
the application comes in for a septic permit -- we got one
right now going on; we met on it yesterday, where there's an
unrecorded plat many years ago, and suddenly this old
gentleman who owns a bunch of property out there wants to
convey some to his grandson, sell some off, have a new well
lot, and the Environmental Health picked up on it. And we
had -- we issued a court order a long time ago that when you
pick up on that, when you see it, you check for subdivision
violations and put a flag up on it. So, we've done that.
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MR. VOELKEL: It's easy to do for plats. I think
that's easy for plats, and I think Jon and I are thinking
along the same lines here. When you have all deeds, there's
no way of checking, unless you just physically read all the
deeds. A lot of contract for deeds are not even recorded.
COMMISSIONER WILLIAMS: Exactly.
MR. VOELKEL: If those -- if that restriction is
not in a contract for deed that can be found, and yet an
audit comes up and finds this, do you lose your funding
because you haven't complied? Or does it get that
nitty-gritty?
MR. KIMBROUGH: The answer is, when they ask --
when the Water Development Board audit staff comes down and
asks you a question, you need to be able to answer that you
check it occasionally. It's here in the courthouse, correct?
MR. VOELKEL: Mm-hmm, except for the contract for
deeds that may not be recorded.
MR. KIMBROUGH: Some of them might be.
MR. VOELKEL: I don't know how you handle those.
MR. KIMBROUGH: But what I'm getting at is, I don't
think that you can ignore the enforcement obligations. If
that means a retraining of existing staff to look for certain
things, particularly law enforcement, I think that goes
hand-in-hand with having regulations that mean something.
COMMISSIONER LETZ: Okay.
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COMMISSIONER WILLIAMS: I agree.
COMMISSIONER LETZ: All right.
MR. KIMBROUGH: And then, finally, the -- the last
part I want you to circle, it'll be Page 1 of 9. I think
it's plat approval, 364.51 and 52 and thereafter. That's
where the final engineering report components -- if you're
going to put in a public water system as opposed to
non-public water system, organized sewage facility as opposed
to septic. Okay?
COMMISSIONER WILLIAMS: Mm-hmm.
MR. KIMBROUGH: In order to get the plat approved,
that's what's got to be in the engineering report. Financial
guarantees for improvements, 364.54, and then some more plat
approval elements at 364.55. That's it on M.S.R., unless you
have questions. Now, what is the -- where are you with
Mr. Reynolds looking at the conflict issue? How long has it
been since he --
COMMISSIONER LETZ: About a week or so.
MR. KIMBROUGH: Okay, so it's on the front end.
COMMISSIONER LETZ: What we'll do after going
through this today -- adopting what they want is pretty
simple. We just need to change that one "greater than" to
make it sort of apply. Not much of a conflict, so -- and
except for those couple of issues, like the lots, number of
dwellings and those, they're going to have to say which rule
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applies.
MS. RUSSELL: Mm-hmm.
MR. KIMBROUGH: That's right.
COMMISSIONER LETZ: 'Cause if we -- you know, but
it's -- most of what they want to include, we've just been
silent on. And if they want to put it in, this gives us the
ability to say, "If you're going to put in some sort of a
sewage collection system, here's the rules you got to
follow." Right now we're silent; it doesn't say you have to
do anything. And the reality is, in my time as Commissioner,
we've never had one. No one's wanted to put in a sewage
collection system. We get a lot of water systems, but no one
does sewage collection systems, so it's on-site. Or -- but,
you know, down the road with the EDAP plan, there may be
some, but that's a nonissue for the County for everywhere
except right in that where it may apply. And the water
systems, we never had a good set of rules that we could force
people to follow on water systems, and now we do, so I don't
see that that is a big hindrance. Just a couple of
definition-type things that are really -- we have to work
out.
MR. VOELKEL: So this would be a supplement to the
current rules? Is that what you're saying? It wouldn't be
in place of the current rules?
COMMISSIONER LETZ: No. We'd go in there and --
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statute, the 352 statute, that's attached, but then I also
let's say, an idea as a Court to make an informed,
forward-thinking decision, after obtaining input from all
segments of -- of the county; not just the regulatory side,
but the development side, the builders, the lenders,
the water and sewer quality experts, as well as counsel. But
you're trying to make a decision about subdivision
regulations that is forward-thinking and that will last for a
long time without needing to be significantly modified or
changed. Well, everything that we've been talking about
today has to do with what we really call a planning effort,
you know, to put rules in place for planning things, but not
controlling construction, not controlling what is actually
built. The way cities regulate growth for the health and
safety of all is through building codes and fire codes,
construction codes, things like that. Counties normally
cannot do that, except under 233, county fire code, if you
have a population bracket or adjacent to a county with
250,000 in population, and you don't fit.
But there is a statute in Chapter 352 of the Local
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some regulatory power attached to the position. Now, when
you look at the middle paragraph and the bottom paragraph, it
basically says that the county fire marshal, if you create
the ordinance -- create the position, has the ability to
inspect, in the interest of safety and fire prevention, any
structure, appurtenance, or fixture, or any real property
located within 500 feet of same in the county -- across the
street, way out in the county, you know, wherever -- to
inspect for a fire or life safety hazard. Then that last
paragraph talks about, well, what is a fire or life safety
hazard? It's really anything that promotes or causes
something to burn or blow up.
COMMISSIONER BALDWIN: Could be wiring in a house,
or --
MR. KIMBROUGH: It's -- right. Presence of a
flammable substance, dilapidated or dangerous walls,
ceilings, or other structural components, improper electrical
components, presence of a dangerous chimney. But that's not
it. I mean, you know, it's an open-ended definition, in my
judgment. And the statute is 352.016. Any condition that
endangers the safety of a structure or its occupants and
promotes or causes fire or combustion, including -- meaning
the list is non-exclusive, all right? So, if the county fire
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marshal inspects a building or any property around it or
structure for one of these fire or life safety hazards, what
does he or she do when he finds something that looks to be a
what you are you judging the inspection by? What's the
standards by which the inspection is governed? If you've got
a county fire code, it's that standard. And, frankly, it's
a -- the county fire code statute talks about any recognized
state -- state-adopted code. I think the International Fire
Code of 2005 is the one, I think, that is most -- most
commonly adopted. But if you do not have a county fire code,
the statute says that it's -- I think it's any -- any
recognized code adopted by the state of Texas, okay? So,
you'd have to find out which is the current authorized code
adopted by the state of Texas. I've given you one of them
that I think works. And that's what the county fire marshal
will use to govern the inspection. Just walk in and inspect.
The law, if you pass it, allows him to do that.
COMMISSIONER LETZ: This is residential?
MR. KIMBROUGH: Any building. First page.
COMMISSIONER LETZ: Deer blinds?
JUDGE TINLEY: Yeah.
MR. KIMBROUGH: Any structure, appurtenance, or
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a fire in, in a drought situation. That might exactly be a
problem. But any structure, appurtenance, or fixture, or any
real property located within 500 feet of same. So, you go in
there and you do the inspection. There's a violation,
according to the code that the law authorizes. The fire
marshal enters an order to comply and correct. If the owner
does not -- owner or occupant fails to correct, it's a Class
B misdemeanor, with more stringent penalties that govern
repeat offenders. So --
COMMISSIONER LETZ: Is there -- if you do that, is
there any proactive requirement that you go out and find
these things?
MR. KIMBROUGH: Okay --
COMMISSIONER BALDWIN: Requirement?
MR. KIMBROUGH: If you pass --
COMMISSIONER LETZ: If you adopt the fire code.
MR. KIMBROUGH: No, you can't adopt a fire code.
COMMISSIONER LETZ: Well, if we adopt whatever --
MS. RUSSELL: You can have a marshal.
COMMISSIONER LETZ: Do a fire marshal.
MR. KIMBROUGH: If you adopt the 352 law --
COMMISSIONER LETZ: Right.
MR. KIMBROUGH: -- and create one, and you don't do
it --
COMMISSIONER LETZ: Well, say we appoint somebody
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who's not paid, 'cause we're cheap around here. And --
MR. KIMBROUGH: Happened in other counties.
COMMISSIONER LETZ: Right. And you go out there
and there's the -- something not in the city, something
that's in Center Point, the -- I don't know, some church in
Center Point has a kitchen in the back, and a fire hazard.
COMMISSIONER WILLIAMS: They all do.
COMMISSIONER LETZ: I know, and we don't do
anything. If we don't -- if we adopt the chapter, have a
fire marshal, and we don't do anything with it, we're just
doing it to get lower insurance rates -- if that applies. I
don't know if it applies or not. I mean, is there anything
that we're going to have to assume some liability by not
doing the inspections and finding things that are flagrantly
in violation?
COMMISSIONER WILLIAMS: Restaurants come to mind
real quick.
COMMISSIONER LETZ: Restaurants. Vicki's Burger
Barn is almost in flames every noon.
COMMISSIONER BALDWIN: Mr. Voelkel here says --
COMMISSIONER WILLIAMS: Smokes up real big.
COMMISSIONER BALDWIN: Mr. Voelkel says it will
wipe out Ingram.
MR. VOELKEL: Whole town.
MR. KIMBROUGH: Look at page -- it's the statute
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COMMISSIONER WILLIAMS: Which page?
MR. KIMBROUGH: 3 of 5. Section 352.016 carried
over into the top of that 3 of 5. Look at (b). In the
interest of safety and fire prevention, the fire marshal
may -- it says "may" inspect.
MS. RUSSELL: May.
MR. KIMBROUGH: Okay. Blah, blab, blab, blab,
blab, blab, blab... marshal shall inspect a structure if
called on to do so. That's the answer. Now --
COMMISSIONER LETZ: So, once you know, you have to
inspect it?
MR. KIMBROUGH: I would -- you know, the -- you
have to see the -- what I contend to be the -- the important
part of this statute is revealed when you measure it against
the statute that you cannot rely upon, 'cause you don't have
the population or geographic location, the fire code statute.
In that -- in that situation, if you had 250,000 in
population, you could adopt a county fire code, and then they
have to get a permit from you to -- the builder has to get a
permit from you in order to build the structure. And the
permit means that you are involved in reviewing plans and
making sure that a fire or life safety hazard doesn't exist,
all right? Now, you can't do that -- can't do that here, but
if you could do it, that's where the dovetailing or the
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cohesion between subdivision regulations, fire code, septic,
overlaid under the umbrella of development rules, mesh all
together, okay? To make it a comprehensive plan for the
healthy, safe development of the unincorporated area --
unincorporated areas for the benefit of all. All right?
Now, there are some places that do not want that. There are
some places that are begging for the authority. Whether it
happens or doesn't, the comprehensive cohesive effect of the
three types of power together depends on where you are and --
and the people. But when you look at the fire marshal
statute, you are able -- and I think we cover it right there
at the end of the bullet point -- or the summary. This
paragraph right here, right before we tell you where the
copies are. 352, you can't issue permits. Okay? Your fire
marshal goes and makes the inspection. Sometimes he's
required to do it; sometimes he's not. He may do it in
certain cases; he shall do it in other cases. But you can't
issue permits. All you can do is issue violation orders,
fix-it orders. And if they don't fix it, then it's a
criminal offense. But it's my opinion that if you are
interested in making sure that substandard development -- in
other words, dangerous structures -- are not built, to where
you find out about it because the fire engine showed up, this
is how to do it. You know, it boils down to whether a county
wants a cohesive effect of the regulatory powers that these
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various statutory issues gives you. I do not know at this
point, but I didn't want to leave today without mentioning it
to you.
COMMISSIONER BALDWIN: I'm glad you did.
MR. KIMBROUGH: The fact that you don't have 250 --
COMMISSIONER LETZ: I've got one more question.
MR. KIMBROUGH: Sure.
COMMISSIONER LETZ: And then I'll have another one,
but one more right now.
COMMISSIONER BALDWIN: Y'all pack up when he gets
through with this one. Run.
COMMISSIONER LETZ: Say you have a situation where
you have a 30-foot easement going to a tract of land that's
1,000 acres; they want to put a development in.
MR. KIMBROUGH: A 30-foot easement --
COMMISSIONER LETZ: Going across one or two
properties; doesn't make any difference. 30-foot easement
going into a tract of land where development's going on, but
the developer wants to put in 20 lots. What authority does
the County have to make the developer do something on the
easement, which he doesn't own? He has a right to use the
easement, but it's not his easement; he doesn't own the
property, can't do anything.
COMMISSIONER BALDWIN: Let me ask you something.
Do you already know the answer?
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COMMISSIONER LETZ: Hmm-mm, but I've got two of
them in my precinct pending right now.
JUDGE TINLEY: Corollary to that question is --
MR. VOELKEL: You had some in your precinct too --
yeah, in yours too.
JUDGE TINLEY: If it doesn't -- if the width of the
easement -- assuming you have the right to -- to require him
to improve that easement if it doesn't meet with the required
right-of-way width, can you just reject his application
for --
MR. KIMBROUGH: You may be able to do so under
Subchapter E; health, safety, welfare, morals.
COMMISSIONER LETZ: But he doesn't take --
MR. KIMBROUGH: I'm not prepared to give you an
opinion on that till I see the papers. I don't know that I
can answer it. But I will tell you that the first thing that
came to mind is there are plat exemptions under 232.0015 that
might apply. Does he have to plat it?
COMMISSIONER LETZ: Yes. Because once he gets in
there, if he has to build a road and give access --
generally, it's almost impossible to do a subdivision in this
county where you're not going to have to build a road, so
almost any division requires platting. Unless -- the only
time, really, that they're exempt -- I mean, occasionally
there's someone going to do something on a county road,
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selling off 10-acre lots, but that's pretty rare at this
point in the county, so almost everything gets platted.
MR. KIMBROUGH: Well --
COMMISSIONER LETZ: More and more of them we're
coming up with -- and, actually, there's a whole bunch out in
the Y.O. Ranchland, far west Kerr County, under this
scenario, and they were just done. I mean --
MR. VOELKEL: And does it make any difference if
it's just an easement or if it's an existing county road
that's substandard as far as width?
COMMISSIONER LETZ: Right. Yeah, it can be either
way.
JUDGE TINLEY: Yeah, that's another good question.
MR. VOELKEL: Can that also --
COMMISSIONER LETZ: These are the toughest
questions we have as to what we can do. As to -- and what
triggers it, if they're going to put in three lots or eight
lots or 100 lots, where do you draw the line that something
has to be done? The -- I'll tell you, the County Attorney's
opinion has been -- or is at the moment, just verbally, is
that, you know, if it's -- if the subdivision is at a point
that it's meeting our minimum road standards, which I think
is less than 8 lots -- 8 or 10; if it's less than that, they
can do it, but if they start getting something they're going
to need to upgrade a road beyond -- do a higher density,
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they've got to figure out a way to get more access or better
access.
MR. KIMBROUGH: Well, the -- I've gotten to where I
don't want to give up my old book. The book really did
become -- I mean, the new rules that became effective
September the 1st aren't in here, but you can see I use it a
lot, 'cause I got it dog-eared pretty good. But the --
Subchapter A talks about reasonable road construction
standards.
COMMISSIONER LETZ: But our standards are -- I
mean, it's not an issue on standards. He doesn't own the
property; he can't -- I mean, especially if it's a county
road, it's really -- it's our responsibility.
MR. VOELKEL: Off limits for him.
COMMISSIONER LETZ: What can he do? And we have a
lot of county easements that are 25-foot, one-lane little
roads.
MR. VOELKEL: Fence to fence, basically.
COMMISSIONER WILLIAMS: Yeah, we do.
MR. KIMBROUGH: The lot sizes are what?
COMMISSIONER LETZ: They'll be over 5 acres. I
mean --
MR. KIMBROUGH: But less than 10?
COMMISSIONER LETZ: Most of these are probably over
10 acres, in reality. These are large -- most of these
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probably tend to be 20- to 50-acre tracts, somewhere in that
area.
MR. KIMBROUGH: Well, the exemption specifically
speaks to issues like that, do they not?
COMMISSIONER LETZ: Not if you're putting in a
road. If they have to put in a road to get to those lots,
it's got to get platted.
MR. KIMBROUGH: Why don't we talk after we go off
the record?
COMMISSIONER BALDWIN: Sure.
MR. VOELKEL: I like the idea.
MR. KIMBROUGH: I'd say that would be the best way.
JUDGE TINLEY: I bet Kathy would like that, too.
Wouldn't you, Kathy?
COMMISSIONER BALDWIN: Want to go to the bar?
MR. KIMBROUGH: What --
COMMISSIONER LETZ: That's my last question.
JUDGE TINLEY: Good.
MR. VOELKEL: That's a big one, too.
JUDGE TINLEY: Okay. Are we done here with the
session?
COMMISSIONER BALDWIN: Yes, sir.
JUDGE TINLEY: Okay, let's fold it up.
(Commissioners Court workshop adjourned at 4:02 p.m.)
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STATE OF TEXAS I
COUNTY OF KERR
The above and foregoing is a true and complete
transcription of my stenotype notes taken in my capacity as
County Clerk of the Commissioners Court of Kerr County,
Texas, at the time and place heretofore set forth.
DATED at Kerrville, Texas, this 21st day of September,
2007.
JANNETT PIEPER, Kerr County Clerk
Kathy B ik, Deputy County Clerk
Certified Shorthand Reporter
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