T r p(i Y COMMISSIONERS' COURT AGENDA REQUEST PLEASE FURNISH ONE ORIGINAL AND TEN (10) COPIES OF THIS REQUEST AND DOCUMENTS TO BE REVIEWED BY THE ChrTUT MADE BY: Judge Tinley MEETING DATE: January 14, 2008 TIME PREFERRED: SUBJECT: Consider, discuss and take appropriate action on motion to reconsider appeal of development permit granted to Martin Marietta Materials, Inc. EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON) NAME OF PERSON ADDRESSING THE COURT: Judge Tinley ESTIMATED LENGTH OF PRESENTATION: IF PERSONNEL MATTER -NAME OF EMPLOYEE: Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter 551 and 552, Government Code, is as follows: Meeting scheduled for Mondays: THIS REQUEST RECEIVED BY: THIS RQUEST RECEIVED ON: OFFICE: County Judgf 5:00 PM previous Tuesday @ .M. All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be appreciated and contribute towards your request being addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners' Court. IN THE COMMISSIONER'S COURT OF KERR COUNTY TEXAS In Re: Appeal of Flood Plain Development Permit Issued to Martin Marietta Materials December 7, 2007 Southwest, Ltd., J. Nelson Happy, Appellant MOTION TO RECONSIDER APPEAL OF DEVELOPMENT PERMIT GRANTED TO MARTIN MARIETTA MATERIALS, INC. Appellant J. Nelson Happy hereby moves the Commissioner's Court for an order reconsidering Appellant's Appeal filed herein and vacating the Floodplain Development Permit granted to Martin Marietta Materials Southwest, Inc. ("MM"): 1. Appellant J. Nelson Happy hereby moves the Commissioner's Court for a hearing to reconsider vacating the Floodplain Development Permit granted to Martin Marietta Materials Southwest, Inc. 2. MM does not have the permits required for it to develop a haul road for mining on its leased property as required by this Court's Floodplain Prevention Order. a. The City of Kerrville has not granted any permits for Martin Marietta to perform construction in its ETJ. Please see attached letter from Paul Hoffmann, Kerrville City Manager. b. The U. S. Army Corps of Engineers has not granted MM a required permit necessary to construct a haul road. MM has refused to return phone calls place by the US Army Corps of Engineers. See attached email from USACE. 3. This Court's Floodplain Prevention Order requires that all permits be in place before the Floodplain Administrator grants a Floodplain Development Permit. Therefore, the permit granted to MM should be vacated until it holds the necessary permits required by the City of Kerrville and the U.S. Army Corps of Engineers. WHEREFORE, Appellant respectfully requests that the Kerr County Commissioner's Court vacate the Floodplain Development Permit issued to MM. Respectfully submitted this 7`~' day of December, 2007. .~~ 'ate ~•.~ J. elson Happy A ellant Box 464 Center Point, TX 78010' 830 285 2626 CITY OF KERRVILLE OFFICE OF THE CITY MANAGER 800 Junction Highway Kerrville, Texas 78028 830-257-80001 www.kerrvilletx.gov December 6, 2007 Mr. J. Nelson Happy PO Box 464 Center Point, Texas 78010 Dear Mr. Happy, Thank you for bringing to our attention the possible expansion of Martin Marietta's mining operation. I have reviewed these issues with Bruce McKenzie, Interim Airport Manager, and Gordon Browning, Senior Planner, and directed them to continue to review the situation. We will be requesting a master operations plan for their property. Once we know what their plans are for their current operation and the proposed development of any undeveloped property in their control, we will then be able to review those plans with regard to existing ordinances that may apply and identify any violations that have occurred. As you are well aware, the property in question is within the City's ETJ. The question of City authority and/or jurisdiction is difficult to address at this point without knowing the full extent of Martin Marietta's proposed use of their property. Once again, thank you for bring this to our attention; we will continue to monitor the situation and keep you informed of any decision. Sincerely, Pouf A. Hofmann (/ City Manager PH/gb R]J: status Page 1 of 2 From: Gomez, Lisa G SWF To: jnhapp@aol.com; matthewshistpres@aol.com Subject: RE: status Date: Thu, 6 Dec 2007 1:54 pm I will be out of the office Friday. I have not heard back from Martin Marietta yet. If I do hear something today, I will let you know. If not, I will take the matter up again on Monday. Skipper Scott is back in the office and can assist me with any SHPO issues. Thank you, Lisa Gomez From: jnh~~~a?aol.com_ [malto;~nha~p~aol com] Sent: Tuesday, December 04, 2007 4:56 PM To: Gomez, Lisa G SWF; matthewshistpresCa~aol.com Subject: Re: status I also want to mention that the prior application did not take into account the existence of the H. M. Naylor Ranch, so the reviewer was unaware of the provisions of the Rule that require reference to the SHPO and ACHP. J.Nelson Happy ----Original Message---- From: Gomez, Lisa G SWF To: matthewshistpres~a aol com Cc: jnhapp[~aol..com Sent: Tue, 4 Dec 2007 4:42 pm Subject: status I have reviewed all of the information you forwarded and discussed the site with Skipper Scott via telephone. Thank you for all of the detailed maps and information- it really helps to get a case so well documented. The things I have determined so far: The Corps received apost-construction notification in December 2005 for this plant expansion. Specifically, the project was described as lowering the land elevation surrounding Nollin Hollow to the elevation of the drainage base. The Corps Project Manager reviewed the file and determined that the project met the terms and conditions of a general permit not requiring pre-notification. However, the notification did not include a proposal for building a haul road. The next step is for me to contact Martin Marietta, which I will do tomorrow. Then I will be back in contact with you. We appreciate your patience and will follow up as soon as possible. -----Original Message----- From: matthewshistpresCg~aol.com [mailto:matthewshistpresCa~aol.com] Sent: Tuesday, December 04, 2007 11:37 AM To: Gomez, Lisa G SWF Cc: inhapp~a aol.com Subject: RE: MM, Naylor, end of maps Thank you, Ms. Gomez. Mary -----Original Message----- From: Gomez, Lisa G SWF To: matthewshistpres aol.com Cc: Scott, Skipper SWF Sent: Tue, 4 Dec 2007 9:58 am Subject: RE: MM, Naylor, end of maps I have received http://webmail.aol.com/33060/aol/en-us/Mail/PrintMessage.aspx 12/7/2007 PERMIT APPLICATION Kerrville Municipal-Louis Schreiner Field Airport Hazard Zoning Ordinance APPLICANT: MARTIN MARIETTA MATERIALS SOUTHWEST, INC. PERMITTED USE: Excavation of sand and gravel, including the removal, handling and storage of topsoil and other overburden, the removal, handling and storage of sand and gravel, the transportation of sand and gravel from the property to other locations for processing and distribution, the reclamation of the property following the removal of sand and gravel, and other miscellaneous activities related to the foregoing which commonly occur in connection with the mining of sand and gravel deposits. PROPERTY: 104 acres, more or less, described in attached Exhibit "A" Applicant has leased the Property for the Permitted Use. Pursuant to the Kerrville Municipal-Louis Schreiner Field Airport Hazard Zoning Ordinance dated July 16, 1992 (the "Ordinance"), Applicant requests a Permit for the Permitted Use on the Property. The Permitted Use does not include the erection or establishment of any buildings on the Property for which a permit is required under the Ordinance. The Permitted Use does not include the planting of any trees on the Property. In conformity with Section 5 (Use Restrictions) of the Ordinance, the Permitted Use will not create electrical interference with navigational signals or radio communication between the airport and aircraft, make it difficult for pilots to distinguish between the airport lights and others, result in glare in the eyes of pilots using the airport, impair visibility in the vicinity of the airport, create bird-strike hazards, or otherwise in any way endanger or interfere with the landing, taking off, or maneuvering of aircraft intending to use the airport. Attached to this Application as Exhibit B is a "DETERMINATION OF NO HAZARD TO AIR NAVIGATION" issued August 23, 2007, by the Federal Aviation Administration ("FAA Determination"). The Applicant will comply with the condition(s) set forth in the FAA Determination. MARTIN MARIETTA MATERIALS SOUTHWEST, INC. By: ~_ Name: David Hagerm n Title: Vice-President; eneral Manager-San Antonio District Date: December 18, 2007 GRANTING OF PERMIT The Permit is hereby granted for the Permitted Use on the Property described above. 3-,.,~ ~~ Dated Dmber ~ , 200~C~ CITY OF KERRVILLE ~` By: _ aul H ffma ', Ci Manager EXHIBIT A PROPERTY DESCRIPTION Tract 1: All that certain tract or parcel of land, lying and being situated in the County of Kerr, State of Texas, comprising 103.4 acres, more or less, out of original Survey No. 43, John Matchett, Abstract No. 243, being out of the east part of that 535.784 acre tract which was conveyed from Texas Hill Country Orchards, Ltd., to Farm Credit Bank of Texas, by deed of record in Volume 734, page 495, of the Real Property Records of Kerr County, Texas and, subject tract being more particularly described by metes and bounds, as follows, to wit: BEGINNING at a fence corner post found, the most northerly northeast corner of said 535.784 acre tract, the northeast corner of subject tract, in the southwest right of way line of State Highway No. 27; THENCE with the southwest right of way line of said State Highway No. 27, a the northeast line of said 535.784 acre tract, the northeast line of subject tract, N.46°43'45"W. for a distance of 813.9 feet to a 1/2" iron stake set marking the most northerly northwest corner of subject tract, located 83.02 feet S.46°43'45"E. from a chain link fence corner post, a northwest corner of said 535.784 acre tract, being the northeast corner of G. L. & Myrl Rowsey property; THENCE with division line, parallel to and 60 feet east from a cyclone fence line a line of said 535.784 acre tract, a line of said Rowsey property, S.0°27'E. for a distance of 389.2 feet to a 1/2" iron stake set for corner; THENCE continuing with division line, being parallel to and 60 feet east from a line of said 535.784 acre tract, a line of said Rowsey property, S.2°47'W. for a distance of 146.5 feet to a 1/2" iron stake set for a re-entrant corner of subject tract; THENCE continuing with division line, being parallel to and 60 feet south from a line of said 535.784 acre tract, a line of said Rowsey property, N.77°46'W. for a distance of 441.5 feet to a 1/2" iron stake set, and continuing N.85.°07'W. for a distance of 100.2 feet to a 1/2" iron stake set marking the most westerly northwest corner of subject tract; THENCE continuing with division line, being parallel to the east line of said 535.784 acre tract, S.0°19'56"E., for a distance of 281.19 feet to a 1/2" iron stake in fence line set marking a re-entrant corner of subject tract, on the south side of an apparent 40 foot wide road easement for Turtle Creek - Comfort Road; THENCE continuing with division line, being on the south side of said Turtle Creek -Comfort Road, N.68°50'W., along fence, for a distance of 247.0 feet a fence corner, continuing N.65°38'W., not along fence, for a distance of 215.4 feet a fence corner, continuing N.87°58'W., along fence, for a distance of 39.3 feet a fence corner, continuing 5.85°35'W., along fence, for a distance of 30.0 feet a fence corner, continuing 5.78°24'W., along fence, at 520 feet a fence corner, continuing, not along fence, for a total distance of 652 feet to the northeast bank of the Guadalupe River, the southwest line of said 535.784 acre tract, the most westerly corner of subject tract; THENCE with the meanders of the northeast bank of the Guadalupe River, the southwest line of said 535.784 acre tract, approximately S.1°32'E. for a distance of 139.23 feet, continuing 5.17°48'E. for a distance of 121.87 feet, continuing 5.46°12'E. for a distance of 91.42 feet, continuing N.86°40'E. for a distance of 138.80 feet, continuing S.81°24'E. for a distance of 221..27 feet, continuing S.63°10'E. for a distance of 212.18 feet, continuing S.55°39'E. for a distance of 335.90 feet, continuing S.73°52'E. for a distance of 163.63 feet, continuing N.66°41'E. for a distance of 63.00 feet, continuing N.52°22'E. for a distance of 108.69 feet, continuing N.71°12'E. for a distance of 192.91 feet, continuing N.59°45'E. for a distance of 90.92 feet, continuing 5.75°28'E. for a distance of 137.82 feet, continuing 5.47°43'E. for a distance of 175.80 feet, continuing 5.61 ° 18'E. for a distance of 157.68 feet, continuing S.51 °40'E. for a distance of 251.48 feet, continuing 5.52° 11'E. for a distance of 151.59 feet, and continuing S.56°52'E. for a distance of 66.55 feet to the southeast corner of said 535.784 acre tract; THENCE with the east line of said 535.784 acre tract, N.0° 19'56"W., at 468.24 feet a fence corner post found on the south side of said Turtle Creek -Comfort Road, at 567.47 feet a 1/2" iron stake set near a fence corner post on the north side of said Turtle Creek -Comfort Road, continuing for a total distance of 3637.51 feet to the place of beginning. and Tract 2 1.43 acres of land, more or less, Los Premiados Ranch, situated in Kerr County, Texas, and being more particularly described as follows: All that certain tract or parcel of land, lying and being situated in the County of Kerr, State of Texas, compromising 1.43 acres, more or less, bout of original Survey No. 43, John Matchett, Abstract No. 243, being out of the east part of that 535.784 acre tract which was conveyed from Texas Hill Country Orchards, Ltd., to Farm Credit Bank of Texas, by deed of record in Volume 734, page 495, of the Real Property Records of Kerr County, Texas, and subject tract being more particularly described by metes and bounds, as follows, to wit: BEGINNING at a chain link fence corner post, a northwest corner of said 535.784 acre tract, being the northeast corner of G. L. & Myrl Rowley property, the most northerly northwest corner of subject tract, being in the southwest right of way line of State Highway No. 27; THENCE with a cyclone fence line, a line of said 535.784 acre tract, an east line of said Rowsey property, the west line of subject tract, a direction of S.0°27'00"E. for a distance of 444.93 feet to a steel fence post, the end of said cyclone fence; THENCE continuing with a line of said 535.784 acre tract, an east line of said Rowsey property, the west line of subject tract, with wire fence, a direction of S.2°47'00"W. for a distance of 73.96 feet to a fence corner post, a corner of field; THENCE with fence, a line of said 535.784 acre tract, a south line of said Rowley property, the north line of subject tract, a direction of N.77°45'34"W. for a distance of 374.59 feet to a fence corner, continuing a direction of N.85°06'54"W. for a distance of 109.5 feet to the most westerly northwest corner of subject tract; THENCE with a division line of said 535.784 acre tract, a direction of S. 0°19'56"E. for a distance of 60.2 feet to a 1/2" iron stake set marking the most westerly northwest corner of a separate 103.4 acre tract, out of said 535.784 acre tract; THENCE with a north line of said 103.4 acre tract, being parallel to and 60 feet south from a line of said 535.784 acre tract, a line of said Rowsey property, a direction of S.85°07'E. for a distance of 100.2 feet to a 1 /2" iron stake set, and continuing a direction of S.77°46'E. for a distance of 441.5 feet to a 1/2" iron stake set, for a re-entrant corner of said 103.4 acre tract; THENCE with a west line of said 103.4 acre tract, being parallel to and 60 feet east from a line of said 535.784 acre tract, a line of said Rowsey property, a direction of N.2°47'E. for a distance of 146.47 feet to a 1 /2" iron stake set for corner; THENCE with a west line of said 103.4 acre tract, parallel to and 60 feet east from a cyclone fence line a line of said 535.784 acre tract, a line of said Rowsey property, a direction of N.02°27'W. for a distance of 389.2 to a 172" iron stake set marking the most northerly northwest corner of said 103.4 acre tract, in the southwest right of way line of said State Highway No. 27; THENCE with the southwest right of way line of said State Highway No. 27, a the northeast line of said 535.784 acre tract, the northeast line of subject tract, a direction of N.46°43'45"W. for a distance of 83.02 feet to the place of beginning. Federal Aviation Administration Air Traffic Airspace Branch, ASW-520 2601 Meacham Blvd. Fort Worth, TX 76137-0520 Issued Date: 08/23/2007 RODRIDGO FIGUEROA MARTIN MARIETTA MATERLALS 112 E PECAN STE 1800 SAN ANTONIO, TX 78205 ~~~~~ Aeronautical Study No. 2007-ASW-6764-OE ** DETERMINATION OF NO HAZARD TO AIR NAVIGATION ** The Federal Aviation Administration has conducted an aeronautical study under the provisions of 49 U.S.C., Section 44718 and if applicable Title 14 of the Code of Federal Regulations, part 77, concerning: Structure: EXCAVATOR Location: KERRVILLE, TX Latitude: 29-57-26.44 N NAD 83 Longitude: 99-4-21.89 W Heights: 36 feet above ground level (AGL) 1569 feet above mean sea level (AMSL) This aeronautical study revealed that the structure does not exceed obstruction standards and would not be a hazard to air navigation provided the following condition(s), if any, is(are) met: To coordinate frequency activation and verify that no interference is caused to FAA facilities, prior to beginning any transmission from the site you must contact Greg Bush at 281-876-5640. Based on this evaluation, marking and lighting are not necessary for aviation safety. However, if marking and/or lighting are accomplished on a voluntary basis, we recommend it be installed and maintained in accordance with FAA Advisory circular 7017460-1 K Change 2. While the structure does not constitute a hazard to air navigation, it would be located within or near a military training area and/or route. This determination expires on 02/23/2009 unless: (a) extended, revised or terminated by the issuing office. (b) the construction is subject to the licensing authority of the Federal Communications Commission (FCC) and an application for a construction permit has been filed, as required by the FCG, within 6 months of the date of this determination. In such case, the determination expires on the date prescribed by the FCC for completion of construction, or the date the FCC denies the application. NOTE: REQUEST FOR EXTENSION OF THE EFFECTIVE PERIOD OF THIS DETERMINATION MUST BE POSTMARKED OR DELIVERED TO THIS OFFICE AT LEAST IS DAYS PRIOR TO THE EXPIRATION DATE. Page 1 of 3 This determination is based, in part, on the foregoing description which includes specific coordinates, heights, frequency(ies) and power. Any changes in coordinates, heights, and frequencies or use of greater power will void this determination. Any future construction or alteration, including increase to heights, power, or the addition of other transmitters, requires separate notice to the FAA. This determination does include temporary construction equipment such as cranes, derricks, etc., which may be used during actual construction of the structure. However, this equipment shall not exceed the overall heights as indicated above. Equipment which has a height greater than the studied structure requires separate notice to the FAA. This determination concerns the effect of this structure on the safe and efficient use of navigable airspace by aircraft and does not relieve the sponsor of compliance responsibilities relating to any law, ordinance, or regulation of any Federal, State, or local government body. A copy of this determination will be forwarded to the Federal Communications Commission if the structure is subject to their licensing authority. If we can be of further assistance, please contact our office at (817) 838-1994.On any future correspondence concerning this matter, please refer to Aeronautical Study Number 2007-ASW-6764-OE. Signature Control No: 530359-100610492 Linda Steele Technician Attachment(s) Frequency Data (DNE) Page 2 of 3 Frequency Data for ASN 2007-ASW-6764-OE LOW HIGH FREQUENCY FREQUENCY FREQUENCY UNIT ERP ERP UNTI' 152.97 NaN MHz 40 W Page 3 of 3 PUB~~~C PARTICIPATION FORM' ,,~ FOR ~-a `~.~- , ~ °~ ~ KERR COUNTY COMMISSIONERS' COURT 1 ' ~ .F INSTRUCTIONS: Fill out all appropriate blanks. Please print or write legibly. Present to the COUNTY CLERK prior to the time that the Agenda Item (or Items) you wish to address are discussed. If you are handing out any material or documents to the Court, please make sure you have one extra copy for the Clerk to ensure that one is put into the record. Name: ~~~~~ ~'i1i4~~~ Address: r 22 Sty Telephone: ~~-~ - ,3 ~~ Place of Employment: l'~~- Employment Telephone: ~"~--- Do you represent any particular group or organization? Yes 1/ No If you represent a group or organization, please state the name, address and telephone number of such group or organization: Which Agenda Item (or Items) do you wish to address: ~~ ~~ In general, are you for or against such Agenda Item (or Items)? For Against ~~- Signature NOTE: This Public Participation Form must be presented to the County Clerk prior to the time the agenda item(s) are discussed. Once you reach the podium, please state your name and who/what you represent clearly for the court reporter to accurately record who you are S~+rV ~'uro ` l 3c .7 ~ ~~~U PUB~~IC PARTICIPATION FORM (/ b FOR ~,,~ ~- KERR COUNTY COMMISSIONERS' COURT ~ ~~ ~-~` INSTRUCTIONS: Fill out all appropriate blanks. Please print or write legibly. Present to the COUNTY CLERK riot to the time that the Agenda Item (or Items) you wish to address are discussed. If you are handing out any material or documents to the Court, please make sure you have one extra copy for the Clerk to ensure that one is put into the record. Name: I~ ~ ~, ~~ ~; ~„nr-,,,~ Address: I ~ z c:v~~- ~~--~~,.~ S., i k !s ~~ ~ ~~,-- ~~ w. o,?x ~.~Z 3~ Telephone: ~z~o~ s-s~-s~-o~ Place of Employment: ~K Sri,~,~,., r-r,,.~/~, S Employment Telephone: s~_e Do you represent any particular group or organization? Yes No If you represent a group or organization, please state the name, address and telephone number of such group or organization: ' M~~;~ M~9~ ~~ Which Agenda Item (or Items) do you wish to address: /. Zo In general, are you for or against such Agenda Item (or Items)? For .!/N- Against ,v ~ Signature NOTE: This Public Participation Form must be presented to the County Clerk prior to the time the agenda item(s) are discussed. Once you reach the podium please state your name and who/what you represent clearly for the court reporter to accuratelYrecord who you are