1 2 3 4 5 6 7 8 KERR COUNTY COMMISSIONERS COURT 9 Workshop 10 Tuesday, September 18, 2007 11 1:00 p.m. 12 Commissioners' Courtroom 13 Kerr County Courthouse 14 Kerrville, Texas 15 16 17 18 19 20 21 22 23 PRESENT: PAT TINLEY, Kerr County Judge H. A. "BUSTER" BALDWIN, Commissioner Pct. 1 24 WILLIAM "BILL" WILLIAMS, Commissioner Pct. 2 JONATHAN LETZ, Commissioner Pct. 3 25 BRUCE OEHLER, Commissioner Pct. 4 2 1 I N D E X September 18, 2007 2 PAGE Participate in workshop with Bickerstaff, Heath, 3 Delgado, Acosta, Ltd. to obtain/exchange information regarding, but not limited to, recent legislation, 4 water availability, subdivision rules, and other matters subject to regulatory authority of Commissioners Court 3 5 Senate Bill 1867 7 6 Model Subdivision Rules 64 County Fire Marshal 101 7 Adjourned 113 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 On Tuesday, September 18, 2007, at 1:06 p.m., a 2 workshop of the Kerr County Commissioners Court was held in 3 the Commissioners' Courtroom, Kerr County Courthouse, 4 Kerrville, Texas, and the following proceedings were had in 5 open court: 6 P R O C E E D I N G S 7 JUDGE TINLEY: Okay, let's go ahead and get 8 underway. Let me call to order the workshop of Kerr County 9 Commissioners Court posted and scheduled for this date and 10 time, Tuesday, September 18, '07 at 1 p.m. It is just a hair 11 past that time now. The item on the agenda is to participate 12 in a workshop with Bickerstaff, Heath, Delgado, Acosta to 13 obtain/exchange information regarding, but not limited to, 14 recent legislation, water availability, subdivision rules, 15 and other matters subject to regulatory authority of 16 Commissioners Court. I'm going to let you guys just pick it 17 up and run with it. If -- 18 MR. KIMBROUGH: Thank you. 19 JUDGE TINLEY: Just come ahead on. 20 MR. KIMBROUGH: Thank you. May it please the 21 Court, I'm Chuck Kimbrough, and this is my partner, Claudia 22 Russell, and we practice law in Austin with the -- with the 23 Austin office of the law firm. And we were asked to come 24 visit to tell you about the issues that you described on the 25 agenda. We've got some materials to pass out. How do you 9-18-07 wk 4 1 want me to proceed, Your Honor? 2 JUDGE TINLEY: Any way you want to. 3 MR. KIMBROUGH: Okay. All right. We have several 4 topics; they're interrelated, in terms of the handouts. The 5 first one is the Senate Bill 1867 material that redefined in 6 a very significant way Subchapter E of Chapter 232, formerly 7 what we -- we called in our line of work the urban county 8 subdivision rules. But now we no longer call Subchapter E 9 the urban county rules, because they've been opened up for 10 all counties, if they choose -- the Commissioners Court 11 chooses to do so. So, we have a -- we have a handout on 12 Senate Bill 1867, and I'll just pass those out. And it's got 13 attachments to it that we can talk about as we go through it. 14 COMMISSIONER LETZ: Chuck, is it set up where it's 15 a pick and choose, Subchapter E? 16 MR. KIMBROUGH: I think the answer is yes on that. 17 COMMISSIONER BALDWIN: Thank you. 18 MR. KIMBROUGH: Now, the front page of that is -- 19 we tried to boil it down to its essentials, and the first two 20 pages are the boil-down, the bullet point deal. Then we've 21 got some documents attached that are the actual bill, the 22 statutes, and some related stages. Okay. Now, the next 23 topic that I believe that y'all were interested in hearing 24 about from us are the model subdivision rules under Chapter 25 31, Sections 355.72, 364.11 through 364.18 of the 9-18-07 wk 5 1 Administrative Code, and we have a printout on that. It's in 2 kind of the same format, a little over a page in terms of a 3 summary, and then some documents attached to it to help you 4 through it. All right, that's the second printout. 5 M.S.R.'s, that's what we call the model subdivision rules. 6 Then an issue that's related -- not particularly requested, 7 but I don't think you knew about it. But when I talked to 8 Commissioner Baldwin on the front end, I mentioned this to 9 him, and I decided I would give you something on this as 10 well, some printouts and attachments regarding the county 11 fire marshal statute under Chapter 352 of the Local 12 Government Code. Again, it's a -- you know, a couple-of-page 13 summary with attachments, and we'll go through that. I think 14 that's real important to consider if you're thinking about 15 increased regulatory opportunities for subdivisions. And 16 then, finally, this is something that Commissioner Baldwin 17 wanted me to make sure I mentioned, something about what 18 happens when you have overweight vehicles riding on your 19 roads. And there was a recent Attorney General's opinion -- 20 COMMISSIONER BALDWIN: And the question is, do you 21 shoot first and then ask questions? Or is it same-old, 22 same-old? 23 COMMISSIONER WILLIAMS: Put tanks out and blow the 24 tires out? 25 MR. KIMBROUGH: Well, the A.G.'s office wrote about 9-18-07 wk 6 1 the interplay between the County's ability to issue permits 2 for weight issues and the state law that allows a company to 3 get overweight permits, and the interplay between those 4 statutes and the County's authority. And this opinion dated 5 January 30 of '07 really hurts us, but you need to know about 6 it. And then there's some information on the summary that 7 suggests that maybe the answer lies in the criminal 8 violations of the traffic code, as opposed to the county 9 regulatory authority on the civil side. But I did give 10 you -- 11 (Low-voice discussion off the record.) 12 MR. KIMBROUGH: All right. Probably more than what 13 you want to hear. 14 COMMISSIONER OEHLER: Can't digest that all in one 15 meeting. 16 COMMISSIONER BALDWIN: Oh, yeah. I'm leaving in 30 17 minutes anyway. 18 JUDGE TINLEY: You can absorb all that in 30 19 minutes, can't you, Buster? 20 COMMISSIONER BALDWIN: Huh? 21 JUDGE TINLEY: You can absorb all that in 30 22 minutes, can't you, Buster? 23 COMMISSIONER BALDWIN: Oh yeah. 24 MR. KIMBROUGH: That's why I wanted to be sure and 25 put the summary up front. The attachments are really where 9-18-07 wk 7 1 the meat is, so that if you want to, you can read it or ask 2 questions about it. Okay. So, I guess what we ought to do 3 is start with 1867? Is that in agreement with everybody? 4 Okay. 5 MS. RUSSELL: Of course, 1867 started out -- 6 Senator Zaffirini from the border, Laredo, had just a general 7 bill, and it only affected Subchapter A of 232, of the 8 general requirements of plats. And then this whole bill 9 started out as just amend -- being allowed to make amendments 10 to plats. It passed, and it went through the House, and on 11 the House floor, Representative Hilderbran tacked on two 12 amendments with little discussion, and that's how the 13 Legislature works. I mean, it will just -- something will 14 happen, and boom, there it is, and then you look at the bill, 15 and in that amendment there's a repealer, and it's stuck in 16 the back of the -- of the bill, and it's one little sentence 17 that says 232.100 is repealed. And what that is, is the 18 beginning part of Subchapter E that used to define urban 19 counties, and now that they repealed the one little section 20 that defined who it applied to, it opened it up to all 21 counties. So, I mean, this happened, boom, boom, at the 22 Legislature, and I'm sure still some are not even aware of 23 what has just happened. 24 MR. KIMBROUGH: We subscribe to the TV tape feed 25 and are able to call it up. Claudia's -- part of her 9-18-07 wk 8 1 practice is legislative affairs, and she -- well, you tell 2 them what you saw on the floor when it happened. 3 MS. RUSSELL: Sure. Sure. So, I mean, you know, 4 that happens and you're thinking, "Well, maybe I can get a 5 little history of what was said or how they introduced the 6 amendment." And I went back and pulled it up to the date 7 where Representative Hilderbran is offering the amendment, 8 and it's nothing. I mean, it's so fast -- it moves so fast, 9 it's just, "Here's an amendment; it's acceptable to all," and 10 boom, in it goes. So, no -- no discussion, no anything. And 11 that's just how fast it moves. And -- 12 COMMISSIONER BALDWIN: That just means that they 13 won't trust him any more. 14 MS. RUSSELL: Well, I think the Legislature -- most 15 counties always -- you know, the Legislature moves, like we 16 mentioned earlier, like in small, little increments. They 17 just -- you know, counties have been looking for increased 18 regulation for a long period of time, but the Legislature 19 will never give it to you in a full dose. They just -- you 20 know, it's small increments as the Legislature moves. 21 COMMISSIONER LETZ: And this was also -- I probably 22 shouldn't even bring this up. 23 COMMISSIONER BALDWIN: Sure you should. 24 COMMISSIONER LETZ: Harvey's other part of that 25 amendment -- 9-18-07 wk 9 1 MS. RUSSELL: Was about the road. 2 COMMISSIONER LETZ: -- was the Kendall County -- 3 Kerr -- 4 MS. RUSSELL: That's right. 5 MR. KIMBROUGH: Yes, sir. 6 COMMISSIONER LETZ: Our subdivision -- our 7 neighboring subdivision, that issue, to help them. 8 MR. KIMBROUGH: Right. And what I want you -- 9 COMMISSIONER LETZ: That's what -- I'm kind of 10 interested in what that means, really. 11 MR. KIMBROUGH: All right. Well, let's take -- 12 COMMISSIONER LETZ: I didn't ask the question. I 13 can't talk about it. 14 MR. KIMBROUGH: Well, take the clip out of -- 15 COMMISSIONER LETZ: My ranch borders that property; 16 I have to recuse myself on everything to do with that 17 subdivision. That's why I say that. 18 MR. KIMBROUGH: -- the bullet point summary, which 19 is on our letterhead, which is our position. Then the next 20 thing you ought to see is Chapter 232, Subdivision E, as 21 amended. This is what the statute looks like after 1867 22 became effective on September the 1st of 2007. Then the next 23 packet is the bill itself, 1867, you know, the -- the text 24 copy of the bill signed by the governor. All right? It has 25 Senate -- S.B. No. 1867 on the top right-hand corner. All 9-18-07 wk 10 1 right? 2 COMMISSIONER LETZ: I don't have that. 3 MS. RUSSELL: It's just not tabbed. It's right 4 behind that -- 5 COMMISSIONER OEHLER: Right behind that sheet. 6 MR. KIMBROUGH: They're independently stapled 7 together, so if you take your little black clip off, they'll 8 fall apart. 9 COMMISSIONER LETZ: I see, okay. All right. 10 MR. KIMBROUGH: Or fall as stapled. 11 COMMISSIONER LETZ: Okay. 12 MR. KIMBROUGH: Okay? Then, to give you some 13 reference, we xeroxed the standard or usual county 14 subdivision statutes, Subchapter A. It's got this "A" red 15 tab on it. All right? Then, because in the new version of 16 Subchapter E, the 1867 amendment, because the new version 17 piggy-backed some border county opportunities normally 18 allowed only to counties along the international border under 19 Subchapter B, we've given you the whole, big, thick stack of 20 Subchapter B. Now, the reason I've done this is because I 21 want to show you some things in this statute later on, 22 because they're important in regards to the explanation of 23 Subchapter E. 24 COMMISSIONER LETZ: Mr. -- Chuck, let me understand 25 what you just said. So, we have Subchapter A, which applies 9-18-07 wk 11 1 to us. 2 MS. RUSSELL: General. 3 COMMISSIONER LETZ: Now Subchapter E applies to us. 4 MR. KIMBROUGH: If you choose to do it. 5 COMMISSIONER LETZ: If you choose to. And 6 Subchapter E refers to Subchapter B. 7 MR. KIMBROUGH: Yes, sir. Now, she -- she 8 mentioned -- she mentioned what happened on the floor of the 9 House. 10 COMMISSIONER LETZ: Right. 11 MR. KIMBROUGH: This started out -- Senator 12 Zaffirini's bill was an innocuous bill. 13 MS. RUSSELL: Dealing with just Subchapter A, just 14 the general requirements. 15 MR. KIMBROUGH: How you amend a subdivision plat, 16 okay? You might go ahead and mention the history with 17 Senator Royce West out of Dallas. 18 MS. RUSSELL: Well, he -- 19 MR. KIMBROUGH: His original bill. 20 MS. RUSSELL: He's always been a proponent of 21 granting more county authority, and he heads up the Senate 22 committee which over -- that the bill -- these bills come 23 through. So, that is where Harvey, I think, was getting some 24 support too. Some -- you know -- 25 MR. KIMBROUGH: His bill had -- I don't remember 9-18-07 wk 12 1 the Senate Bill number. Senator Royce West proposed 2 legislation, but it said all counties in the state can pick 3 whatever they want to. If they want to go A, B, E, whatever 4 you want, you can pick. All right? Just you pick it. And 5 if you're going to pick it, then you need to have a local 6 election to support whatever the people want. All right? 7 Well, his bill got -- I don't even think it made it out of 8 committee, as I recall. But -- 9 MS. RUSSELL: Didn't make it to -- 10 MR. KIMBROUGH: -- at the end of the legislative 11 session, the issues surrounding the Speaker of the House were 12 going on, and a lot of stuff got added to a lot of bills, and 13 tacked onto Senator Zaffirini's innocuous plat amendment bill 14 were Harvey Hilderbran's amendments. And look at the 15 amendments; look at the actual bill, S.B. 1867. Upper 16 right-hand corner. It's the second thing into your packet, 17 all right? Look at the caption. "Relating to the filing of 18 an amended subdivision plat ... and to other county 19 regulations." Okay? Kind of an innocuous -- other -- yeah, 20 other regulations. So, the first two pages -- 21 MS. RUSSELL: Bottom of Page 3. 22 MR. KIMBROUGH: -- talk about plat amendment. 23 Then, when you look at the bottom of Page 3, plat 24 requirements, it says, "The commissioners court, in addition 25 to having the authority to adopt rules under 232.101" -- 9-18-07 wk 13 1 that's the broad grant of authority to do subdivision rules 2 regarding the health and safety and the welfare of all the 3 people in the county. The Court "may impose the plat 4 requirements prescribed by section 232.023." Now, 5 Commissioner Letz, that's a border county statute in 6 Subchapter B. Not a lot of people keep up with those 7 numbers. We do. It's our work. It's in our practical 8 experience. But that's a Subchapter B international border 9 rule. Keep reading. Fire Suppression System. On the last 10 page, 4, Section 232.109 is added to allow fire suppression 11 systems. We'll talk about that in a second. But then look 12 at Section 6, two lines from the bottom. "Section 232.100 is 13 repealed." That's the bracket. 14 MS. RUSSELL: That's what defined what an urban 15 county was. 16 MR. KIMBROUGH: The population bracket. 17 MS. RUSSELL: So, now that that's gone, it applies 18 everywhere. 19 MR. KIMBROUGH: So, if you want to look at the 20 statute now, Subchapter E, pull up that first -- that first 21 attachment that has -- it has "E" on the red deal. That's 22 how it looks today. 232.100 says it's been repealed by 1867. 23 There is no more bracket. It's available to every county in 24 the state, if you choose to adopt it, with some special 25 promulgation requirements. There must be a notice published 9-18-07 wk 14 1 in the newspaper after a public hearing. I can go over that 2 with you later. But then the rest of it -- it's not very 3 long. The rest of it is how it looks after Senate Bill 1867 4 became effective. So, the amendments to the statute were 5 slight in terms of the number of words that were used, but 6 far-reaching in terms of their effect, far-reaching in terms 7 of the future for any county in the state who wants -- which 8 wants to attempt to provide for the orderly, safe, and 9 healthy development of growth in that county. It's not 10 mandatory that a county take advantage of this legislative 11 position. You don't have to do it, in other words. But if 12 you want to do it, your rights as a commissioners court for 13 this county are co-equal to the rights of the Dallas County 14 or the Harris County or the Midland County or the Caldwell 15 County or the Brazos County Commissioners Court. It applies 16 across the board. 17 COMMISSIONER LETZ: Chuck, on the notice, do you 18 have to give notice if you're going to amend your subdivision 19 rules, or do you give notice that you may use some of these? 20 MR. KIMBROUGH: When you look at -- and the answer 21 is the latter, because it is an issue-by-issue -- it's in 22 each one of the sections. If you'll take your red Tab E, 23 okay? The Subchapter E, how it looks right now after 1867 24 became effective, look at 232.101, that first big paragraph, 25 (a), "By an order adopted and entered in the minutes of a 9-18-07 wk 15 1 commissioners court, and after a notice is published in a 2 newspaper of general circulation in the county," et cetera, 3 et cetera, et cetera. Look at 232.102 down at the bottom of 4 the first page. "By an order adopted, entered in the 5 minutes... and after a notice is published in a newspaper..." 6 blah, blah, blah. Many times in Chapter 232, when you amend 7 your subdivision regulations, you do not have to publish 8 newspaper notice, okay? So, a county that is interested in 9 changing its subdivision regulations must pay particular 10 attention to what we call the notice or promulgation 11 requirements of each particular statute. And because they 12 are so complex, we like to recommend that if you're going to 13 do it, you set it up correctly and publish notice regarding 14 the whole show, the whole -- the whole substance of your 15 proposed amendment or supplement. 16 And there's another thing that you should -- need 17 to consider as well. It's the -- what we call the T.I.A., 18 the takings impact assessment under Chapter 2007 of the 19 Government Code. We have a statute on the books that -- 20 that's called -- I don't know if I'd get the words exactly 21 right, but the Texas Real Property Preservation Act -- Real 22 Property Rights and Preservation Act. The number of the 23 statute is Chapter 2007 of the Texas Government Code, and it 24 basically says that if a local government -- and a county is 25 certainly a local government under that statute -- proposes 9-18-07 wk 16 1 to pass an ordinance or a rule which may -- "may" constitute 2 a taking, as defined by either the Fifth Amendment to the 3 U.S. Constitution or Article 1, Section 17 of the Texas 4 Constitution, then before you do that, you must do an 5 analysis and vote on that analysis and publish that analysis 6 in the newspaper for at least 30 days before you engage in 7 any final ordinance action. 8 I can talk to you about it a lot longer than what 9 I'm going to talk to you now about the T.I.A. or takings 10 impact assessment, but it's our position that the amendment 11 of your subdivision regulations, if you choose to do so, will 12 not -- repeat, will not -- implicate a taking under either 13 the federal or the -- or the Texas Constitution. However, if 14 you do not do a T.I.A., a takings impact assessment, under 15 2007, you are at risk. You are at risk if somebody tries to 16 sue you. The whole amendment -- the whole -- the whole act 17 or the whole ordinance might be subject to being thrown out, 18 and they might be able to get attorney's fees against the 19 county in litigation if such a -- such a T.I.A. suit is 20 filed. So, now is not the best day to talk to you about the 21 ins and outs of 2007, but I can sum it up by saying it's 22 better to have it and not need it rather than need it and not 23 have it. And I think your County Attorney has talked to you 24 before about takings impact assessments and how you publish 25 notice in the newspaper and hold off and don't do anything 9-18-07 wk 17 1 final for 30 days. It's a normal, practical -- in fact, the 2 A.G.'s office is required by 2007 to promulgate guidelines 3 about how to do the assessment. 4 And, frankly, the -- the test is, number one, are 5 you a covered governmental entity where you are? Well, 6 you're a county, and a county's a political subdivision. 7 Number two, is what you're thinking about doing -- if you 8 were thinking about amending your subdivision regulations, is 9 that a covered action? In other words, is it a rule, an 10 ordinance, a local law that might affect -- may affect real 11 property or the use of real property? Well, yeah, it's -- it 12 is. And, number three, is it a taking? Well, what normally 13 is done is you rely on counsel, either inside or outside 14 counsel, to give you an opinion letter, and then you answer 15 the three questions. And if the answer is yes, covered 16 entity; yes, covered action; but no taking, the A.G.'s 17 guidelines says you do not have to do anything further. You 18 vote in the takings impact assessment. You post it on your 19 bulletin board; you get a certified copy of it -- or a copy 20 of it and publish it for 30 days in the newspaper, and then 21 take your final action and vote the subdivision regulations 22 in or out on it. And when I say T.I.A., Chapter 2007, 23 Government Code, is that a -- a new concept to you? 24 COMMISSIONER LETZ: Yes. 25 MR. KIMBROUGH: Okay. Well, I can certainly -- we 9-18-07 wk 18 1 didn't bring copies of that statute, but it is better to do 2 it and not need it than to need it and not have done it, 3 because it can bite and bite hard in terms of litigation. 4 Okay. Your question was, you know, can you pick and choose? 5 And, clearly, the argument is, at least in my opinion, yes. 6 So, what I want to do now -- 7 COMMISSIONER LETZ: Before -- but going back on the 8 notice a little bit -- 9 MR. KIMBROUGH: You bet. 10 COMMISSIONER LETZ: Say we wanted to do setbacks 11 and lot frontages. 12 MR. KIMBROUGH: Okay. 13 COMMISSIONER LETZ: Now, do we do a notice only on 14 those two, or do we go ahead -- is it better to go ahead and 15 do a notice that we may do thoroughfare plans and -- and 16 developer participation contracts also? I mean, is it better 17 to go ahead and just do it one time and do them all, or do 18 you have to wait until you decide you want the authority? 19 MR. KIMBROUGH: Okay. That's a good question. You 20 could pick and choose. However, I was told when I was coming 21 up as a lawyer, you know, you can do a brand-new will or you 22 can do a codicil, you know, an amendment to your existing 23 will. But my uncle always told me, "Then you got two pieces 24 of paper to keep up with." So, just do another will, you 25 know, and put the new stuff in. If you think you're to the 9-18-07 wk 19 1 decision-making point where you're pretty confident that the 2 changes to your subdivision regs are going to be -- not be 3 very many -- not be very many, and you don't anticipate in 4 the near term having a wholesale revision of those 5 regulations, then, clearly, you wouldn't have to put 6 everything down on paper the first time. But the piecemeal 7 changing of an important ordinance, or regulatory enforcement 8 ordinance like subdivision regulations, if -- if you do it 9 piecemeal, it really creates problems for the people trying 10 to keep up with you and trying to figure out which is 11 applicable in which -- on which piece of ground. And, so, I 12 would tell you that you can do it the way -- you know, the 13 second way you suggested, but I don't recommend it. 14 The idea is, as a court, where do you think you're 15 heading, and why? What do you want the future to hold -- to 16 be? Not just for your court, but for future courts. The 17 Legislature, at least in my opinion -- we were talking about 18 this before y'all showed up. Commissioner Baldwin took 19 office in 1988. That was just after an important case had 20 come down affecting the validity and how we interpret the 21 county subdivision regulations under Chapter 232, and from 22 about the late '80's until now, there's been a steady 23 incremental step taken by the Legislature to grant counties 24 more regulatory authority in the unincorporated areas. Now, 25 this 1867 is a little more than a -- I mean, it's a pretty 9-18-07 wk 20 1 big step. It's not just crawling; it's actually walking. 2 Why is that? Why has the Legislature begun to 3 change since the days that -- that you took office? It's 4 because of the demographic, the growth issues that we are 5 seeing. There are many people like me who want to live in 6 rural Caldwell County and drive into Austin every day to 7 work, or live in San Antonio, but have a real nice place to 8 go on the weekends in Kerr County along the Guadalupe River. 9 And when those people, and enough of them, begin to move out 10 into the unincorporated areas, for whatever reason, there are 11 certain things that they want, and, in fact, they demand 12 these days. They want good water, and plenty of it. They 13 want wastewater services. They want the road big enough and 14 good enough so that the ambulance, the fire truck, the 15 policeman, and the school bus can get down there in all kinds 16 of weather. And when they do not have those services, they 17 want to blame somebody. 18 A lot of times that makes your telephone ring, but 19 more often, those people register their complaints with the 20 elected officials in Austin, and I believe that is the reason 21 why we've seen the incremental effect, because the voting 22 power is moving into these unincorporated areas. And they 23 require the -- what we call, in our line of work, the 24 regulatory authority of the local governments to provide the 25 utility and transportation infrastructure for quality of life 9-18-07 wk 21 1 and safety issues. That's a fancy way of saying what the 2 people want, and you know more about it in your county than I 3 would ever presume to understand. But I think that's the 4 reason why, when you think about changes, it's a 5 forward-thinking process. Where -- where do we want to go? 6 Where are we headed? And what are the laws that we can look 7 at and think about adopting that will help us get there? 8 MS. RUSSELL: And to maintain and increase the 9 property -- the value of, you know, property. 10 MR. KIMBROUGH: What you own and what -- you know. 11 Well -- 12 JUDGE TINLEY: Chuck, let me ask you, if I might. 13 This may be a shade of the same inquiry that Jon made. When 14 you're -- when you're giving notice that you may adopt some 15 of these provisions, because each one of those sections 16 provides that after notice is published, the major -- 17 MR. KIMBROUGH: A couple of them do, yes, sir. 18 JUDGE TINLEY: Is it necessary, in your opinion, to 19 specifically enumerate each of those major items if you're 20 not going to do a separate notice for each item? For 21 example, if you're going to just adopt under -- under 22 Subchapter E, and say in a general notice that, "I hereby 23 give notice that it may adopt all or any portion of the 24 provisions of Subchapter E" -- 25 MR. KIMBROUGH: Yes, sir. Which is the best way to 9-18-07 wk 22 1 go? Is that your question? 2 JUDGE TINLEY: Well, I think I know the best way to 3 go. From a validation standpoint, the best way to go, 4 obviously, is to be cautious, and -- "including, but not 5 limited to," and then specify each of those. 6 MR. KIMBROUGH: Yes, sir. 7 JUDGE TINLEY: Each of those. But, lacking that, 8 if -- if you fail to do that, you think you're covered other 9 ways? 10 MR. KIMBROUGH: Well, sir, it would be a fact 11 question in a court case to void the amended -- void the act 12 of the Commissioners Court for failure to give proper and 13 sufficient notice. And most of the time, those notices used 14 in litigation can be the basis of waiver affirmative 15 defenses. But as a litigator, I would never recommend to be 16 anything less than super-cautious because of the risk 17 regarding these, at times, hotly contested local issues. 18 These types of things can -- can be very -- a lot of talk 19 about them. A lot of talk about them. And so if you don't, 20 in a cautious -- some would argue overly cautious -- way, lay 21 out with more specificity than just any and everything in 22 Subchapter E, it could -- you could run the risk that a trial 23 judge would not let you win on summary judgment, and the case 24 might be submitted to a jury. In other words, there might be 25 a fact question raised by the omnibus notice language that 9-18-07 wk 23 1 would prevent a summary judgment and require a case to be 2 submitted to the merits out to a judge with jury. And if 3 you're representing the government, a county particularly, 4 you never want to give up the opportunity to win on summary 5 judgment and get it over with quicker, rather than having to 6 go through the expense and the risk of contested litigation 7 on the merits in front of a local jury or a judge. So, I 8 think I cannot tell you whether the omnibus language would be 9 the correct way, but I would not normally recommend it. 10 So -- 11 JUDGE TINLEY: Okay. 12 COMMISSIONER LETZ: Are you going to go through 13 these one by one a little bit? 14 MR. KIMBROUGH: Yeah -- yes, sir. The bullet point 15 -- let me -- when you get to the first bullet point, 16 everything above it's the -- 17 COMMISSIONER LETZ: Can we go to the middle instead 18 of the bullets? 19 MR. KIMBROUGH: Sure. 20 MS. RUSSELL: Sure. The meat comes in at Page 3. 21 The first section that -- Section 1, 2, and 3 -- is that -- 22 and 4? No, 1, 2, and 3 are just -- the first one is how, in 23 Subchapter A, you can amend generally the plats. 24 MR. KIMBROUGH: C's a requirement for amending 25 plats; that's the Zaffirini bill. 9-18-07 wk 24 1 MS. RUSSELL: Yeah. And the first three sections 2 are the Zaffirini bill. Section 2 is -- 3 COMMISSIONER LETZ: But on -- okay, go to 102, 4 major thoroughfare plan. 5 MS. RUSSELL: Okay. 6 COMMISSIONER LETZ: We don't have -- this is the 7 first time the County's getting -- this county gets a major 8 thoroughfare plan, I mean, that's even mentioned. Correct? 9 I mean -- 10 MS. RUSSELL: That's right. 11 MR. KIMBROUGH: That is correct. 12 MS. RUSSELL: That's right. 13 COMMISSIONER LETZ: I read that, and I have no clue 14 what a major thoroughfare plan is, other than we can require 15 120-foot right-of-way. 16 MR. KIMBROUGH: It's a -- it's a deal that has to 17 be approved by a metropolitan planning organization, and I'm 18 not sure that you're in an area of the state that even has 19 one. Do you have an M P.O. in this -- 20 COMMISSIONER WILLIAMS: No. San Antonio -- Bexar 21 County's the closest. 22 MR. KIMBROUGH: Right. 23 COMMISSIONER LETZ: So 102 doesn't apply to Kerr 24 County? 25 MR. KIMBROUGH: I don't think it does, but I will 9-18-07 wk 25 1 tell you that Number 232.101(a) does. And that is -- this is 2 what I want to visit with you about. 3 COMMISSIONER LETZ: 101? 4 MS. RUSSELL: The very first item, 232.101(a). 5 COMMISSIONER LETZ: Okay. 6 MR. KIMBROUGH: Now, we're going to read the 7 statute, the actual bill. But I want to tell you that before 8 1867 was passed, there was a debate going on among lawyers in 9 Texas, and commissioners and planners -- urban planners and 10 developers and banks and people that manufacture mobile homes 11 about what subdivision -- excuse me, Subchapter E meant. All 12 right? When it came out, it said urban rules, and had a 13 population bracket in it. And the population bracket got 14 adjusted through subsequent meetings of the Legislature 15 leading up to this one. Now, I want you to look at not the 16 act, but the statute itself, red tab E. Okay? 232.101 says, 17 "...the Commissioners Court may adopt rules governing plats 18 and subdivisions within the unincorporated area to promote 19 the health, safety, morals, or general welfare of the county, 20 and the safe, orderly, and healthful development of the 21 unincorporated area of the county." That's a broad, sweeping 22 grant of unspecified authority. Doesn't tell you what you 23 can do, but it seems to give you a large degree of discretion 24 to do something. Okay? That language is almost identical to 25 the municipal statute in the Local Government Code regarding 9-18-07 wk 26 1 the ability of a city to promulgate rules regarding 2 subdivisions within its extraterritorial jurisdiction, its 3 ETJ. 4 Then go to the very back page -- next to last page, 5 3 of 4. 232.107, Provisions Cumulative. Prior to Senate 6 Bill 1867, that's where Subdivision E stopped with .107. 7 That's what we call in our line of work a cumulative remedies 8 clause. We've looked; we can't find any other place in 9 Chapter 232 where a cumulative remedies clause appears. "The 10 authorities under this Subchapter are cumulative of and in 11 addition to the authorities granted under this chapter and 12 all other laws to counties to regulate the subdivision of 13 land." In school, we are trained to pay attention to 14 cumulative remedies clauses when the Legislature gives them. 15 When you take 107 and match it up with 101, what does it mean 16 you can do? What does it mean that you cannot do? That was 17 the debate. And it still exists after 1867, but it certainly 18 was the debate prior to 1867. 19 Well, now take another look at the first page, 20 232.101. Look at (b. (a) is the broad grant for health, 21 safety, and morals. (a) says, "Unless otherwise authorized 22 by state law, a commissioners court shall not regulate..." 23 one, two, three, four, five, and six. In other words, this 24 is the can't -- cannot do list. This is the "can't do" list. 25 I'm going to come back to that in a second. Beginning with 9-18-07 wk 27 1 102, the major thoroughfare plan, that is the can do list. 2 The "can do" list. 232.102, major thoroughfare; 103, lot 3 frontages; 104, setbacks; 105, developer participation 4 contracts; 106, utility connection; 107, cumulative remedies 5 clause; and then the new ones, 108 for plat requirements; 6 109, fire suppression systems. Okay? So that they're -- the 7 Legislature is telling us, okay, you can specifically do 8 those, but you cannot do, unless the law allows it, those 9 things in (b) -- 232.101(b). 10 COMMISSIONER LETZ: But go back to major 11 thoroughfare plan. 12 MR. KIMBROUGH: Right. 13 COMMISSIONER LETZ: Not that. I mean -- 14 MR. KIMBROUGH: Right. 15 COMMISSIONER LETZ: Okay. You read the -- you have 16 to do the notice. Then on Page 2, require right-of-way on a 17 street or road that functions as a major thoroughfare not 18 more than 120 feet, or more than 120 feet under certain 19 situations. Does that just mean -- is that giving counties 20 the right now to go up to over 90 feet, to 120 feet? Is that 21 what all that does? 22 MR. KIMBROUGH: It does. If you have a major 23 thoroughfare plan that's approved regarding the other 24 provisions of state law that lets do you it, it directly 25 increases the Subdivision A requirements. 9-18-07 wk 28 1 COMMISSIONER LETZ: So -- but you have to do a 2 subdivision thoroughfare plan -- 3 MR. KIMBROUGH: Yes, sir. 4 COMMISSIONER LETZ: -- first? 5 MR. KIMBROUGH: Major thoroughfare. 6 COMMISSIONER LETZ: Major thoroughfare plan. 7 MR. KIMBROUGH: But the question becomes, is that 8 all you can do? Or can you increase above the limits 9 designated by Subdivision A? Now, I gave you a Subdivision A 10 packet with a red tab on it. Look at red tab -- it'll be the 11 end of the document, Page 5 of 17, upper right-hand corner. 12 5 of 17. You see 232.003, subdivision requirements. Those 13 are the basic Subchapter A rules that any county in the state 14 can use. And you see those first two, 1 and 2 -- 232.003, 15 Number 1 and 2. There's your usual right-of-way 16 requirements. 17 COMMISSIONER LETZ: Between 50 and 100. 18 MR. KIMBROUGH: Uh-huh. And then the other one, 40 19 to 70. 20 COMMISSIONER LETZ: Right. 21 MR. KIMBROUGH: And then Number 3. Okay, now go 22 back -- I hate to make you go back and forth, but it's what 23 we do when we give advice on stuff like this. Go back to the 24 Subdivision E rules. Do you have the power, without doing 25 major thoroughfare, to promulgate a right-of-way width 9-18-07 wk 29 1 greater than Subchapter A? What does the health, safety, and 2 morals provision with a cumulative remedies clause tacked 3 onto it mean? Clearly, the Legislature, in my opinion -- 4 this is Kimbrough's opinion -- clearly would not have put 5 health, safety, and morals -- broad, sweeping grant of 6 authority -- plus a cumulative remedies clause. To me, all 7 you can do are the four or five things listed specifically in 8 Subdivision E. Look at the language of 1867, the most recent 9 pronouncement of the Legislature. On Page 4 of the bill -- 10 COMMISSIONER LETZ: Before you jump to there, I do 11 better with an example. Say we're going up -- a road's going 12 up a hill, new subdivision. 13 MR. KIMBROUGH: Okay. 14 COMMISSIONER LETZ: And because of the grades and 15 all that, it's difficult to put in the 90-foot right-of-way 16 or a 100-foot right-of-way; it's real hard to do it. Because 17 of that, those two provisions you just mentioned, we can 18 require them to go up to 140 feet if we need to, to get 19 the -- meet the other requirements? 20 MR. KIMBROUGH: With risk. My answer is yes, with 21 risk. And the reason I say that, sir, is because before 1867 22 was passed, there are no cases to define which side is right 23 on the debate. The development lobby contended that the 24 ultimate reach of Subdivision E, the urban rules -- formerly 25 the urban rules, did -- in other words, the health, safety, 9-18-07 wk 30 1 and welfare language was not as broad; did not grant the 2 ability of a county to act like a city in its ETJ. The 3 government lawyers said of course it did. Why would the 4 Legislature do that, tack a cumulative remedies clause on top 5 of that and then just list four things that you can do? It 6 makes no sense, to argue the other way. But there are no 7 cases on it, so we have to look at the most latest -- is that 8 correct English? -- the latest pronouncement of the 9 Legislature on Subdivision E. Which is what? 1867. Take a 10 look at 1867, Page 4. Page 4 -- I'm sorry, excuse me, 11 page -- Page 3 at the bottom, when it talks about the plat 12 requirements that the County can -- can choose to adopt under 13 Subdivision E, 232.108 plat requirements. (a) "The 14 commissioners court, in addition to having the authority to 15 adopt rules under 232.101 and other authority granted by this 16 chapter..." What does that phrase -- what do those phrases 17 mean right there? It specifically refers back to the broad 18 -- what we call the sweeping grant of authority of 101 to 19 make -- to adopt rules governing plats and subdivisions to 20 promote the health, safety, morals, or general welfare, and 21 the safe, orderly, and healthful development. If you've got 22 a road on a hill, for safety reasons, that requires a bigger 23 right-of-way, I like our chances in court, but I cannot tell 24 you, black and white, you're going to win. 25 COMMISSIONER LETZ: All right. 9-18-07 wk 31 1 MR. KIMBROUGH: Until the Legislature takes another 2 incremental step or we have case law, no lawyer can tell a 3 client, "You're solid; you're safe," except on certain 4 issues. The "can do" list in Subdivision E, the special 5 things that the Legislature says, "You can do this." You can 6 do -- and you see them listed there. There's a cannot-do 7 list and there's a can-do list. The can-do list begins with 8 102. 232.102, major thoroughfare plan; 103, lot frontages; 9 104, setbacks; 105, developer participation contracts; 106, 10 utility connection; 108, the plat requirements that we just 11 saw, the new bill; 109, fire suppression system. 12 COMMISSIONER LETZ: If -- 13 MR. KIMBROUGH: The can do/can't do debate still 14 exists because of the absence of case law. 15 COMMISSIONER LETZ: If -- under lot frontages, this 16 county -- 17 MR. KIMBROUGH: What? 18 COMMISSIONER LETZ: Lot frontages. 19 MR. KIMBROUGH: Okay. 20 COMMISSIONER LETZ: We assumed that, from a -- a 21 public safety standpoint, we had that authority already. 22 Bottom line, it's in our rules. And it's -- anyway, it's 23 there. But it was always -- and we, I think, knew that it 24 was a little bit on the iffy side. So, we're better off just 25 going ahead and publishing notice right now, now that we have 9-18-07 wk 32 1 the authority? Because if we don't -- I mean, 'cause we talk 2 about lot frontages, but I guess we don't have that authority 3 technically under some of the other areas, just, I think, 4 given to us without question. 5 MR. KIMBROUGH: You can certainly shore up your 6 interest. 7 COMMISSIONER LETZ: Mm-hmm. 8 MR. KIMBROUGH: A very effective way -- in fact, I 9 know of one county in Texas that did that. That after -- you 10 know, that was actually a county adjacent to a large county. 11 COMMISSIONER LETZ: Right. 12 MR. KIMBROUGH: That's one of my clients, and they 13 did that. They did that. We're in the middle of revising 14 their rules, and they were under the urban county rules even 15 before 1867, and they saw an opportunity and did it as a -- 16 hold what you have and protect what we have, and then we're 17 going to do some more comprehensive rules later. 18 COMMISSIONER LETZ: All right. We may have that 19 authority under some of the utility rules or setbacks -- 20 utility setbacks, I believe. 21 COMMISSIONER WILLIAMS: Before you leave 232.101 -- 22 MR. KIMBROUGH: Yes, sir. 23 COMMISSIONER WILLIAMS: That's the cannot-do list, 24 right? 25 MR. KIMBROUGH: (b) is. 9-18-07 wk 33 1 COMMISSIONER WILLIAMS: (b) is the cannot-do list. 2 MS. RUSSELL: (a) is the general big sweeping 3 authority. 4 COMMISSIONER WILLIAMS: (b)(4), number of 5 residential lots that can be built. We cannot regulate the 6 number of residential lots that can be built? 7 MR. KIMBROUGH: In our line of work, we call that 8 density. We call that density. A county can't -- there are 9 actually some counties in the state that can zone around 10 lakes. This isn't one of them. But zoning and density are 11 generally prohibited areas of regulation by counties in 12 Texas. 13 COMMISSIONER LETZ: I know where he's going with 14 this, because I've talked to the Water Development Board 15 about this. Their model rules that they're requiring is 16 specifically contrary to that. 17 MS. RUSSELL: I tell you how this gets by, is 18 because of the very first clause in (b), "Unless otherwise 19 authorized by state law." So, therein lies the model 20 subdivision rules. 21 COMMISSIONER WILLIAMS: And the model -- 22 MS. RUSSELL: Coming under Water Development Board 23 that can require one dwelling. 24 MR. KIMBROUGH: We have a whole packet on the 25 M.S.R.'s and -- 9-18-07 wk 34 1 COMMISSIONER WILLIAMS: You gave it to us. 2 MR. KIMBROUGH: -- the requirements about that. 3 But jumping ahead just a bit, model subdivision rules as 4 required by 16.343 of the Water Code only apply in certain 5 situations. Subdivision, 5 acres or less, intended for 6 residential. Okay? Now, there is a provision that says, you 7 know, one single-family detached dwelling per lot in the 8 M.S.R. But there are many counties who have subdivision 9 regulations that are applicable for less than 10 acres, but 10 more than 5 acres, in terms of the categorical classification 11 ordinance scheme. 12 COMMISSIONER LETZ: Is that how you -- I mean, 13 we're looking at a grant with Water Development Board, and 14 they're requiring us to adopt their model rules, or 15 substantial compliance. 16 MR. KIMBROUGH: Yes, sir. I think the law requires 17 it if you want to get their money. 18 COMMISSIONER WILLIAMS: We want their money. 19 COMMISSIONER LETZ: So you would have to go in 20 there and do a -- a 5-acre and less rule, and then a 5- to 21 10-acre rule, and then a bigger than 10-acre rule? 22 MR. KIMBROUGH: There's a way to do it, and it has 23 to do with classifications of, you know, subdivision types. 24 Now, before we go too far, Commissioner Williams, when you 25 called me and spoke with me about the M.S.R. presentation 9-18-07 wk 35 1 today, I want to make sure that you understand -- y'all 2 understand that I think you've got a law firm that represents 3 you currently on that Water Development Board matter, if I am 4 correct, the firm of McCall Parkhurst? 5 COMMISSIONER WILLIAMS: That's for our bond 6 counsel. Bond counsel only. 7 MR. KIMBROUGH: Well, what I'm getting at is, we 8 can surely talk about model subdivision rules and how they 9 apply in terms of the subdivision regulation context or 10 opportunity; however, it's my understanding that a lawyer 11 from San Antonio represents the County on that application 12 before the Water Development Board. 13 COMMISSIONER WILLIAMS: Only as attorney -- only in 14 terms of -- Parkhurst is our bond counsel, working in 15 conjunction with our financial adviser for any bonding 16 requirements or financing requirements that may come 17 subsequent to approval of the application. We don't have a 18 counsel working with us to work us through this maze right 19 now. 20 MR. KIMBROUGH: Isn't the -- isn't it Mr. Spurgeon? 21 JUDGE TINLEY: Tom Spurgeon. 22 MR. KIMBROUGH: Yes, sir. He's a very fine lawyer. 23 COMMISSIONER WILLIAMS: Yeah. He's our bond 24 counsel. 25 MR. KIMBROUGH: The law firm that he's partnered 9-18-07 wk 36 1 with is one of the best in the state in that area. And we 2 don't want to, certainly -- 3 COMMISSIONER WILLIAMS: You're not. 4 MR. KIMBROUGH: Okay. 5 COMMISSIONER WILLIAMS: You're not treading on -- 6 JUDGE TINLEY: You're not encroaching. 7 COMMISSIONER WILLIAMS: -- their turf, no. 8 MR. KIMBROUGH: We have some rules about that. 9 COMMISSIONER WILLIAMS: I understand that. I 10 appreciate that. But you're not. 11 COMMISSIONER LETZ: We can check with Tom, though, 12 or -- I mean, and make sure that our -- or let them -- 13 MR. KIMBROUGH: What I want to make sure of is that 14 y'all's county currently has no lawyer representing it before 15 the Water Development Board in order to get their money, in 16 order to negotiate, if any, the position with the M.S.R. 17 application. 18 COMMISSIONER WILLIAMS: We do not. Mr. Spurgeon is 19 only with respect to financial and the bonding, all that 20 stuff. 21 JUDGE TINLEY: If and when it becomes necessary for 22 Kerr County to issue debt, then Mr. Spurgeon would be 23 involved relative to our instrument of that debt. 24 MR. KIMBROUGH: Tom Pollan or David Mendez of our 25 firm are the -- the lawyers who practice in the public 9-18-07 wk 37 1 finance area regarding Water Development Board issues. 2 COMMISSIONER WILLIAMS: Mm-hmm. 3 MR. KIMBROUGH: And we have a substantial history 4 with that agency. Particularly Mr. Mendez is currently 5 involved in some matters with the board and obtaining 6 funding, and I'll be happy to pass along -- or we can put you 7 in telephone contact, again, just to talk about what the 8 issues may be. But I will tell you that what you have told 9 me today is my -- matches up with what I believe the law to 10 be. If you want the board's money, and it's an EDAP -- what 11 we call an EDAP application -- 12 COMMISSIONER WILLIAMS: Mm-hmm. 13 MR. KIMBROUGH: Okay. Then I can -- we've got a 14 piece of paper that will give you the Administrative Code 15 regulation that says before they will consider your 16 application, you must -- the County must adopt the model 17 rules. 18 COMMISSIONER LETZ: I -- 19 MR. KIMBROUGH: They want you to enforce the model 20 rules, because when they audit you -- when they give you the 21 money and they find out that you are not enforcing your 22 rules, they'll make you pay the money back, or worse. 23 COMMISSIONER WILLIAMS: I -- 24 COMMISSIONER LETZ: Our rules are fairly close. I 25 talked to Joe Reynolds -- is that who I talked to? Do you 9-18-07 wk 38 1 remember, Bill? 2 COMMISSIONER WILLIAMS: I think that's who it was. 3 COMMISSIONER LETZ: Joe Reynolds, an attorney with 4 the Water Development Board. 5 MR. KIMBROUGH: Yes. 6 COMMISSIONER LETZ: We don't have a whole lot -- we 7 have probably about 10 or 15 areas that were we're not in 8 compliance right now. I mean, and they're most -- 9 MS. RUSSELL: The minimum standards on the front 10 end, the assurances. 11 COMMISSIONER LETZ: And most of those are really 12 definition-type issues that we didn't cover things, and then 13 there's a little bit on the -- obviously, on the utility 14 side. Their rules are focused on wastewater and water, and 15 our rules really aren't focused on that. We try to be quiet 16 on that as much as we can, so that part we're silent on. We 17 don't have a whole lot. We were hopeful to go with the 18 substantial compliance language and meet with them and see if 19 we can work out some of this, rather than trying to adopt all 20 their rules. 21 MR. KIMBROUGH: That's what we do. But I want to 22 ask a follow-up question, if I may. You're getting the 23 money, hopefully, to do a sewer system construction project. 24 COMMISSIONER WILLIAMS: Yes. 25 MR. KIMBROUGH: Correct? 9-18-07 wk 39 1 COMMISSIONER WILLIAMS: Correct. 2 MR. KIMBROUGH: And then when the money is obtained 3 and a construction project is completed, who will own the 4 infrastructure that the grant -- 5 COMMISSIONER WILLIAMS: Well, we have proposed a 6 model to the T.W.D.B. similar to what -- the model we 7 employed for Kerrville South, when we did that wastewater 8 project, and we're still working on that one. And that is 9 that the County obtains the funding -- is the lead agency; we 10 obtain the funding and do all the things necessary. We 11 construct the system. By interlocal agreement, we -- we work 12 with U.G.R.A., the regional water river authority, to -- in 13 Kerrville South, to own, operate, and so forth. They, in 14 turn -- 15 MR. KIMBROUGH: What is Kerrville South? A water 16 supply -- 17 COMMISSIONER LETZ: Geographic area. 18 MR. KIMBROUGH: Okay. 19 COMMISSIONER WILLIAMS: Geographical area. What 20 we've done is three of four phases of a wastewater project, 21 not using T.W.D.B. money, but using colonias money, C.D.B.G. 22 grant money, et cetera. Okay? 23 MR. KIMBROUGH: Okay. 24 COMMISSIONER WILLIAMS: Three phases are complete, 25 one phase funding, and we have a three-part model; we, 9-18-07 wk 40 1 U.G.R.A. in the middle, and the City of Kerrville is the 2 treatment provider on the tail end. We envision the same 3 model for the one in Center Point and eastern Kerr County; 4 the County being the lead agency, working with the river 5 authority in the middle, and working probably with Kendall 6 County W.C. & I.D. as the treatment provider. Now, the only 7 caveat or reservation is, if we have to issue any bonded 8 indebtedness in the middle -- I mean, to obtain all of this 9 and get it done, we can't convey it as we have -- 10 MR. KIMBROUGH: No kidding. Yes, sir, that's a 11 prohibition. 12 COMMISSIONER WILLIAMS: Can't do that until the 13 indebtedness is paid. But we could, by interlocal agreement, 14 have them operate and maintain it and so forth. 15 MR. KIMBROUGH: The County, at the present time, is 16 not desirous of entering into -- becoming a retail utility 17 for -- okay. 18 COMMISSIONER WILLIAMS: Not if we can avoid it. 19 COMMISSIONER OEHLER: No, we don't want to. 20 MR. KIMBROUGH: Okay. 21 COMMISSIONER WILLIAMS: So that's where we are in 22 terms of -- of a potential model. And we've laid that model 23 in front of T.W.D.B., and they thought it was a very good 24 working model, three agencies working together to make 25 something happen. 9-18-07 wk 41 1 MR. KIMBROUGH: Okay. 2 COMMISSIONER LETZ: It doesn't make sense in our 3 mind to get in the sewer business when we have -- when 4 Kerrville is really in it, the Kendall County or Comfort 5 area -- 6 MR. KIMBROUGH: Another reason -- 7 COMMISSIONER LETZ: -- is doing it, and then the 8 river authority wants to be a regional provider of water and 9 possibly wastewater services. We have everyone -- we don't 10 need another supplier in that game in this county. We don't 11 want to be one of them. 12 MR. KIMBROUGH: If you don't provide the water -- 13 because that's where the retail activity is. 14 COMMISSIONER LETZ: That's why U.G.R.A. is 15 interested in it, because they are a wholesale -- or want to 16 become more of a wholesale water provider. 17 MR. KIMBROUGH: It's challenging to monitor the 18 retail billing aspects of a sewer system unless you are the 19 entity providing the retail water service -- water utility 20 service. 21 COMMISSIONER WILLIAMS: We've met that challenge in 22 Kerrville South, and we recognize it as a potential here too. 23 MR. KIMBROUGH: Well, let's do this. I feel I'm a 24 little out of my area when I talk about -- or you asked me 25 questions about what might be the public finance issues 9-18-07 wk 42 1 associated with the Water Development Board application. I 2 was told this is the second application; you must have got a 3 grant for -- 4 COMMISSIONER WILLIAMS: We did. We got a grant 5 from T.W.D.B. for a feasibility study. Okay, that's been 6 completed. Now we're going back to EDAP for their next 7 level. We thought the next level was planning, acquisition, 8 and design, PAD money. Now they've changed the rules, and 9 it's only planning money, and you go back again for 10 acquisition and design and construction. So, we're in front 11 of them now for planning funds. 12 MR. KIMBROUGH: And what is the actual -- the 13 status of that matter? You mentioned June of '07 was the 14 filing of the second application? 15 COMMISSIONER WILLIAMS: Yes. And the status is -- 16 MR. KIMBROUGH: And there was no lawyer that signed 17 that application representing the county? 18 COMMISSIONER WILLIAMS: No. 19 MR. KIMBROUGH: Okay. 20 COMMISSIONER WILLIAMS: County signed -- the Judge 21 signed the application. And Tetra Tech engineering firm did 22 all the work for us. 23 MR. KIMBROUGH: Okay. 24 COMMISSIONER WILLIAMS: In terms of all the 25 preparation, all the good stuff, and they're working with us 9-18-07 wk 43 1 on a continuing basis. Now, what was your question? 2 MR. KIMBROUGH: Where is the status? 3 COMMISSIONER WILLIAMS: The status now is that the 4 application was received in a timely fashion, and it was 5 originally slated to be on the board's agenda for October. 6 Didn't make it, because they sent us back a whole bunch of 7 stuff and wanted some more information, all of which has been 8 forwarded back to them except the model subdivision rules. 9 And they know we have to work on it; they've been told, so 10 forth. So, we're on hold until we do that, probably until 11 November or December. 12 MR. KIMBROUGH: Okay. 13 COMMISSIONER LETZ: They've told us -- 14 MS. RUSSELL: They want you to adopt the M.S.R.'s 15 before then? 16 COMMISSIONER LETZ: Either adopt them, incorporate 17 them, or substantial compliance. 18 COMMISSIONER WILLIAMS: Yeah, or modify certain -- 19 COMMISSIONER LETZ: Before they go to their board. 20 But when I talked to them, they were -- there were some 21 issues that appeared to me to be in conflict between what 22 their rules say and what our rules say. I didn't know that 23 their rules would trump as state law. And Joe Reynolds is 24 going to look into some of those areas that are complex, such 25 as the number of dwellings on a lot. 9-18-07 wk 44 1 COMMISSIONER WILLIAMS: I've asked Jonathan to be 2 involved with this, even though this project basically -- or 3 a large part of it is in my precinct. Part of it's in his 4 precinct as well, and he's been doing our subdivision rules 5 since Hector was a pup. And so, you know, who better to do 6 it? 7 MR. KIMBROUGH: Well -- 8 COMMISSIONER LETZ: But the Legislature's making it 9 harder and harder; they're getting more and more confusing, 10 really getting really difficult. 11 COMMISSIONER WILLIAMS: So, we're going to need 12 some guidance, is what I'm hearing you say, probably? 13 MR. KIMBROUGH: Well -- 14 COMMISSIONER WILLIAMS: Sort of? 15 MR. KIMBROUGH: Sir, I can tell you that the 16 funding source for the Water Development Board -- I'm really 17 getting into Claudia's area. There's a constitutional 18 amendment provision in November that is going to -- 250; I'll 19 let Claudia talk about -- 20 MS. RUSSELL: In November. 21 MR. KIMBROUGH: -- where the money's coming from 22 that EDAP. 23 MS. RUSSELL: Mm-hmm. 24 MR. KIMBROUGH: Grant applications get talked 25 about. You know, that's the -- 9-18-07 wk 45 1 MS. RUSSELL: I think since 1989, they've doled out 2 almost $500 million of EDAP grants since '89, and that's 3 dwindling down. I think there's around $12 million left, and 4 that's through state and federal grants. So, on the ballot 5 in November, they -- I think it's Proposition 16. Voters 6 will be voting to -- whether to issue the Texas Water 7 Development Board $250 million more in general obligation 8 bonds to continue providing these grants. So -- 9 MR. KIMBROUGH: And the reason that the measure is 10 on the ballot is because of the efforts of elected senators 11 and representatives in areas other than South Texas. 12 MS. RUSSELL: They say, "Hey, we have areas that 13 need assistance too." So -- 14 MR. KIMBROUGH: The issues -- yes, that the issues 15 that caused the EDAP rules to be -- and funding to be put in 16 place originally existed in other parts of the state too. 17 COMMISSIONER WILLIAMS: Well, Kerr County's a very 18 good example of that. The community we're talking about fits 19 the criteria for economically distressed area of the county. 20 MR. KIMBROUGH: So, you end up wanting to try to 21 put a cause and effect on some of this stuff that you see in 22 the documents today, and it's because of the development and 23 the desire of local governments and state governments to do 24 something for the future. 25 COMMISSIONER WILLIAMS: Sure. 9-18-07 wk 46 1 MR. KIMBROUGH: You keep getting back to 2 comprehensive solutions that do more than just solve the day 3 -- the problem that's in front of you today. Okay. Now, we 4 can keep on going on -- on S.B. 1867, and then go to the 5 model rules. We've got -- we gave you a copy of the model 6 rules; we got a packet there. Tell me what you want to do in 7 terms of time. I did not know what -- the time limits you 8 wanted me to stop on. 9 COMMISSIONER LETZ: Can you just briefly go through 10 under Subchapter E, and talk -- I mean, major thoroughfare 11 plan, I think we've talked about that. Lot frontages? 12 Setbacks? 13 MR. KIMBROUGH: Okay. 14 COMMISSIONER LETZ: Developer participation -- I 15 mean, the rest of those can-do list? 16 MR. KIMBROUGH: Yes, sir. 17 COMMISSIONER LETZ: What they are, just real 18 quickly. 19 JUDGE TINLEY: Might be careful to note that two of 20 the can't do's are -- the last two. Did you happen to 21 notice? 22 COMMISSIONER LETZ: Oh, yeah. The -- 23 MR. KIMBROUGH: Those got added. 24 MS. RUSSELL: Yes. 25 MR. KIMBROUGH: Because -- and I heard the story 9-18-07 wk 47 1 about that. 2 JUDGE TINLEY: I don't know whether you got the 3 right story or not. 4 MR. KIMBROUGH: I heard -- 5 COMMISSIONER OEHLER: Probably get the real story 6 here. 7 MR. KIMBROUGH: I just -- well, all I can tell you 8 is that these were part of Mr. Hilderbran's position -- his 9 amendments. And so there's -- there was a lawsuit, and we 10 don't need to talk about it, but -- 11 COMMISSIONER LETZ: You can talk about it. 12 MR. KIMBROUGH: It has to do with, you know, having 13 your rules go into another county, basically. 14 COMMISSIONER LETZ: Harvey's comments yesterday, 15 when I had lunch with him, was Kendall County was a little 16 irritated with him on this, and -- on those two provisions, 17 and said that Harvey would rather that the developer not get 18 filed with a contempt of court charge because it didn't make 19 him look too good. 20 MR. KIMBROUGH: Well, when we -- 21 COMMISSIONER LETZ: That's where all that is right 22 now. 23 MR. KIMBROUGH: In our office, when we were 24 following the bill, from the -- you know, from what we call 25 the -- the travel to the governor's office, you know, that 9-18-07 wk 48 1 period of time after the session ended and before June, or 2 whenever it was when he gets to sign the bills or not sign 3 them, we got to looking at that and saying, that's got to be 4 a -- that's got to be a -- 5 MS. RUSSELL: Something specific. 6 MR. KIMBROUGH: -- you know, a problem. And then, 7 when we saw Commissioner Letz at the TAC conference, I asked 8 him about it. He gave me the rest of the story, as Paul 9 Harvey would say, you know? Okay. So, you want to go 10 through the can-do list? 11 COMMISSIONER LETZ: Yes, just as to what some of 12 those things -- I mean, like developer participation 13 contracts. What is that? 14 MR. KIMBROUGH: Yes. That -- well, it's pretty 15 self-explanatory, but when you look -- it'll be Page 2 of 4 16 in the actual statute. 232.105, Page 2 of 4. Right there at 17 the front, where it talks about competitive sealed bidding 18 procedure of Chapter 262. You know that to be the County 19 Purchasing Act. 20 COMMISSIONER LETZ: Right. 21 MR. KIMBROUGH: And all of your contracts for goods 22 or services have to be competitively bid, unless specifically 23 exempted by a state law. This is one of those state laws. 24 Where the Commissioners Court -- you can make a contract with 25 the sub -- the developer; I'm going to use the name 9-18-07 wk 49 1 developer -- developer to construct the public improvements 2 over time, basically. And when you go back through the 3 statute, you're going to see that the requirements of the 4 contract require the developer to sign on to actually build 5 the improvements. And we're talking about public 6 improvements; streets, roads, also utility infrastructure, if 7 that developer is planning on putting in a sewer system or 8 planning on putting in a public water system. 9 COMMISSIONER LETZ: As an example, -- 10 MR. KIMBROUGH: But the level -- 11 COMMISSIONER LETZ: -- if it -- say, go to Bruce's 12 area out to Felix Fisher Road. Say someone out there decides 13 to put in a subdivision. Does this say that we can go in and 14 negotiate with the developer that he upgrades that entire 15 10-mile road to that subdivision? 16 MR. KIMBROUGH: This is not really that. There's 17 another part of the law that applies to that, yes, sir. But 18 you cannot make road construction standards that are -- 19 MS. RUSSELL: More stringent. 20 MR. KIMBROUGH: -- tougher than what you require on 21 your own roads. 22 COMMISSIONER LETZ: Right. But we can make him, 23 somewhere, upgrade an old, winding county road if he's going 24 to put in a 100-lot subdivision? 25 MR. KIMBROUGH: Okay -- 9-18-07 wk 50 1 COMMISSIONER OEHLER: You're wishing. 2 MR. KIMBROUGH: It's not his road? That's not his 3 road? 4 COMMISSIONER LETZ: It's a county road. 5 MR. KIMBROUGH: It's a county road. Possibly. 6 Possibly. 7 MS. RUSSELL: Under the sweeping -- 8 MR. KIMBROUGH: Yes, under the health, safety, 9 morals and development stuff. 10 MS. RUSSELL: General. 11 MR. KIMBROUGH: But look at (c) there. The 12 contract must establish the limit of participation by the 13 County at a level not to exceed 30 percent of the total 14 contract price. 15 COMMISSIONER LETZ: What would this cover? I mean, 16 I don't understand what it covers. Is it roads we're talking 17 about? I mean -- 18 MR. KIMBROUGH: You're paying him to build a road. 19 COMMISSIONER LETZ: But, like, in that same 20 situation, the question -- 21 MR. KIMBROUGH: Like, he's your contractor -- your 22 road contractor. That would be a competitive bid procedure 23 under 262 to build some roads in your county. 24 COMMISSIONER LETZ: All right. 25 COMMISSIONER WILLIAMS: So, the maximum -- 9-18-07 wk 51 1 COMMISSIONER OEHLER: Like, under contract fees -- 2 COMMISSIONER WILLIAMS: You can hit him with at 3 least -- for 70 percent or more, right? 4 COMMISSIONER LETZ: We can make him pay -- I mean, 5 this is a contract; you have to agree to it. But if they 6 want to build that subdivision, we can say that you've got to 7 fix this road, and we're going to pay 30 percent of the cost 8 and you're going to build it. 9 COMMISSIONER OEHLER: 'Cause it doesn't make sense 10 if they can put in a subdivision off of a one-lane county 11 road that has a 30-foot right-of-way. 12 MR. KIMBROUGH: It makes no sense to -- 13 COMMISSIONER OEHLER: To put 200 houses in there 14 that's 8 miles from the nearest state highway. 15 MR. KIMBROUGH: The market to the developer of 16 housing on sale of lots sooner or later comes into play. You 17 know, some people may want to live there no matter what that 18 front -- front road will hold or won't hold. But for your 19 purposes, I mean, you're the ones that have to keep that road 20 in good shape forever. So -- 21 COMMISSIONER LETZ: But that gives us a little bit 22 more authority -- 23 MR. KIMBROUGH: It does. 24 COMMISSIONER LETZ: -- down in that area than we 25 had before. 9-18-07 wk 52 1 MR. KIMBROUGH: All right. Plat requirements -- 2 well, you know, the fire suppression system on Page 3 of 4, 3 that's really self-explanatory, but it's a very important 4 provision that existed nowhere in the law for counties until 5 1867 got passed. And the limit -- the dividing line between 6 the storage capacity is 50, a 50-house break point, 7 basically. See that? It doesn't say above ground or below 8 ground, but to require 2,500 gallons of -- of storage for a 9 subdivision of fewer than 50 houses is a significant 10 legislative step there. I don't know. Most of your 11 subdivisions have -- that have been platted in the past two 12 or three years have less than 50 houses? Or do you have some 13 big ones going in? I know you mentioned -- 14 COMMISSIONER LETZ: Both. 15 COMMISSIONER OEHLER: Both. You have, you know, 16 small ones, four or five lots. Then we have some that are -- 17 COMMISSIONER LETZ: These are -- 18 COMMISSIONER OEHLER: -- 50, 60 lots. 19 COMMISSIONER LETZ: Basically, these are dry 20 hydrants, a storage tank that fire trucks back up to and get 21 water? 22 MR. KIMBROUGH: The best way to look at 232.108 is 23 go to the bullet point summary, our letterhead bullet point 24 summary. 25 MS. RUSSELL: And this plat requirements that he's 9-18-07 wk 53 1 mentioned right here, this is where the border -- the real 2 stringent requirements of 232.023, that's normally -- 3 MR. KIMBROUGH: Border rules. 4 MS. RUSSELL: -- border rules, that's how they're 5 bringing -- just through 108 is how they're bringing in the 6 ability -- your ability to have even more stringent, and to 7 have the option to require the border rules. 8 MR. KIMBROUGH: All right. Now, when you look at 9 the bullet points, go to Page 1 and you see about in the 10 middle of the page where we reference 232.023? 11 COMMISSIONER OEHLER: Mm-hmm. 12 MR. KIMBROUGH: Previously available only to border 13 counties. Okay. Those sub-bullet points going onto the 14 second page until the middle, until the bullet goes all the 15 way to the left, that's where I tried to summarize and 16 describe the border rule that now you can do, if that's what 17 you want. Now, I won't read all the bullet points, because 18 most of them are self-explanatory, but look at the third 19 bullet point down after 232.023 at Page 1, where it says, 20 "descriptions of the water, sewer facilities, roads, and 21 easements dedicated..." et cetera, et cetera, "and a 22 statement specifying the date by which those facilities will 23 be fully operable." Now, when it talks about roads and 24 easements, it's talking about dedicated for water and sewer 25 facilities, all right? The border rules, 232.023 does not 9-18-07 wk 54 1 require the developer to put in a water system or to put in a 2 sewer system. Well water and septic is okay. Even the model 3 subdivision rules, which we'll talk about in a little bit, do 4 not require the subdivider that, actually, you can't build 5 under the model rules unless you put in a water system or put 6 in a sewer system. Under M.S.R. model rules, septic and well 7 water is okay. You have to do some special things on the 8 front end to certify compliance with minimum state standards, 9 but it's okay. 10 Subchapter E, adopting the border plat rules, this 11 bullet point, well water and septic is okay, but there are 12 some other things where -- by the front-end requirements, 13 where the developer certifies and promises -- and what's the 14 word? -- represents that minimum state standards exist, are 15 in the law. They just don't require to you build them. The 16 next bullet point, certification by a registered engineer 17 that proposed water and sewer facilities are in compliance 18 with the M.S.R.'s under 16.343. Okay. Proposed water and 19 sewer facilities, again, you do not -- the developer does not 20 have to put in a water system, and he does not have to build 21 a sewer system. If he does -- if he does, there are more 22 stringent rules that may be applied, but if it's strictly 23 well water and -- 24 MS. RUSSELL: Septic. 25 MR. KIMBROUGH: -- septic, there are some front-end 9-18-07 wk 55 1 plat requirements, certification requirements that you'll 2 see, but you don't have to make them build it. Go to the top 3 of the second page. Certification that the subdivider has 4 complied with another border rule, 232.032. And that -- 5 "and," that's not "or" -- and that water quality and 6 connections -- that means water connections, sewer and 7 septic, electrical, gas -- will meet minimum state standards. 8 The goal under the border rules, if you adopt them, is to 9 make the subdivider say on the front end that road 10 infrastructure -- and let me back up. Water utility 11 infrastructure, or water wells and sewer systems or septic 12 systems are going to meet minimum state standards. And if 13 you're going to put in a sewer system, the developer is -- 14 like, in a curb and gutter subdivision, like you normally see 15 with expensive homes, and a water system, that there are 16 extra requirements in that kind of a situation, but if a 17 developer does not build them, as a condition to final plat 18 approval, then you're going to bond them and he's going to 19 have to bond them adequately under the bond requirements. 20 Does everybody understand? I think there is some 21 misconception about, well, you're making the developer put in 22 a sewer system. No, septic is okay, provided that all of the 23 state septic rules, the O.S.S.F. rules are complied with, as 24 well as the county's regulations. 25 MS. RUSSELL: But you might not see that in just 9-18-07 wk 56 1 the market of today -- you know, your market of these 2 expensive homes. The developer may know that he might need 3 to put in -- I mean, that this market might want it. 4 MR. KIMBROUGH: Same thing with water supply. We 5 maybe talked about this before the group got together. 6 Whether -- whether it's a Subchapter E application or whether 7 it's the M.S.R., you are not requiring the developer to 8 create a public water supply system. You're not requiring 9 them to do that. Well water is okay. But if it's going to 10 be well water, you can make the developer include a statement 11 of a Texas licensed -- or licensed to practice engineer, or a 12 state licensed to practice geoscientist, that sufficient 13 water is available to serve that proposed plan under minimum 14 state water quality standards, and even make him drill a test 15 well if you want to. Now, the M.S.R. rules require a test 16 well on the front end, but these necessarily do not. We 17 think you have the ability to not require. 18 COMMISSIONER LETZ: You answered part of it, but 19 other than -- and this county had that authority anyway on 20 the water side of -- water availability. 21 MR. KIMBROUGH: Okay. 22 COMMISSIONER LETZ: On the sewer side, the real 23 difference is that if you're going to put -- I mean, not 24 sewer system; on a public water system, a less -- fewer than 25 15 connections, this can require them to do it as a standard. 9-18-07 wk 57 1 MR. KIMBROUGH: Yes, sir. 2 COMMISSIONER LETZ: Whereas previously we didn't 3 have that authority, I don't believe. 4 MR. KIMBROUGH: Okay. But 232.023 is now an option 5 for you. That's a border rule. 232.023 in the border rules 6 specifically refers and requires compliance with another 7 border rule, top of Page 2, 232.032. So, it's Subdivision E, 8 reach back into Subchapter B, the border rules, if you want 9 to go that route. Now, that's what the Subdivision E, 1867, 10 in effect, says you can do regarding water and wastewater. 11 But can you do something a little different under the broad 12 grant of authority under 101, Subdivision E? Health, safety, 13 welfare, safe, orderly development, plus a cumulative 14 remedies clause? There are many people that say yes, you 15 can. But you cannot do so when you deviate from the -- from 16 the strict can-do list; you run into risk issues. You run 17 into risk issues. 18 COMMISSIONER LETZ: Doesn't the -- didn't the 19 Legislature give counties in Priority Groundwater Management 20 Areas authority under the Water Code to do a lot more stuff 21 on -- 22 MR. KIMBROUGH: Yeah -- yes, sir. And, again, 23 unless -- go back to your statute. 24 COMMISSIONER LETZ: Other state law. 25 MR. KIMBROUGH: Yeah. Yes, sir, that's it. That's 9-18-07 wk 58 1 where the Water Code provisions come into play. 2 COMMISSIONER LETZ: From this county's standpoint, 3 that gives us the most flexibility, 'cause we can develop our 4 own water availability requirements. 5 MR. KIMBROUGH: And, frankly, we didn't bring that 6 part of the Water Code with us. All I brought was 16.343 on 7 the M.S.R. But you are correct; I had forgotten that you're 8 in the PGMA. You're -- what's the name of the PGMA out here? 9 COMMISSIONER LETZ: Hill Country PGMA. 10 MR. KIMBROUGH: I'd forgotten -- 11 COMMISSIONER WILLIAMS: Priority Groundwater 12 Management Area. 13 MR. KIMBROUGH: Yes, sir. And there's some -- 14 well, there's some debate in the law going on right now as to 15 whether -- when the certifications are made on the plat, and 16 there's a certificate of a registered engineer or 17 geoscientist on the plat -- on the papers that go along with 18 an application process to get your subdivision plat approved, 19 whether the Commissioners Court can go behind those 20 representations and, as a deliberative body acting in a 21 legislative capacity, say, "Well, there's an engineer over 22 here that we know of, and we're asking him to testify and 23 look at it, that disagreed with the engineer of the 24 developer's conclusions." I think there's a healthy debate 25 going on right now about that. And we are of the opinion 9-18-07 wk 59 1 that you can go behind the developer's engineer 2 certification. It must be, in my judgment, that way in order 3 to avoid water and wastewater mistakes. 4 COMMISSIONER LETZ: We've chosen not to require 5 that certification. 6 MR. KIMBROUGH: Well, yes, sir, I understand. But 7 I -- but there is -- there is some disagreement about, you 8 know -- 9 COMMISSIONER LETZ: I didn't even think -- I didn't 10 even know there was an issue that -- I just thought it was 11 just common sense, to me, that if we required it, then it -- 12 you know, and if we disagreed with their certification, we 13 could hire our own engineer; they could fight it out between 14 the two engineers. But -- 15 MR. KIMBROUGH: Well, for instance, in Subdivision 16 A, since 2001 -- let's see, the handout with an A with a red 17 mark. Look at Page 6 of 17 in the middle of the page, 18 232.0032. If groundwater is going to be a water source, any 19 county in the state can require those certifications, okay? 20 Well, the lawyer for the developer may say, "Here it is; he 21 certified it." How can you go behind that? If you adopt 22 Subdivision E, health, safety, morals or welfare, safe and 23 orderly development, it's my opinion that you can. But, 24 again, the risk issue exists. Okay. That's pretty much the 25 end of the bullet point and the end of the 1867 rule, but I 9-18-07 wk 60 1 want to suggest one other thing, the very last bullet point 2 on Page 2. And the -- the actual statute, Subdivision E, the 3 very -- the very last bullet point says the usual statute 4 that defines exemption to plat. In other words, where 5 somebody does not have to plat it, they don't have to come to 6 you for plat approval, those rules still apply. And they're 7 long, and they're 232.0015. And you see that -- you see that 8 at the very last part of the Subdivision E. Those exemption 9 requirements are still a part of state law, even if you adopt 10 Subdivision E. So -- 11 COMMISSIONER LETZ: Okay. What about then you go 12 with the -- one of those exemptions that you can -- 13 MR. KIMBROUGH: 10 acres or more. 14 COMMISSIONER LETZ: That, but also -- but you can 15 have a plat is not required if it's to a -- your brother. 16 You sell -- 17 MR. VOELKEL: Family partition. 18 COMMISSIONER LETZ: Family partition. 19 MR. KIMBROUGH: All right. 20 COMMISSIONER LETZ: Okay? But then you have -- 21 under the model rules, you can't have more than one house on 22 a lot. I guess it's a partition, though; it wouldn't be a -- 23 it would be two lots. So, I guess -- I mean, I see a 24 conflict. I see a conflict between those two points, but 25 that you can't have -- you don't -- it says do you not have 9-18-07 wk 61 1 to plat it if it's going to a brother, and yet model rules 2 say you can't have more than one house on a lot. 3 MR. KIMBROUGH: We have cases at times that -- 4 where the issue is which version of the law trumps? You 5 know, which statement of the Legislature is the controlling 6 issue -- controls the issue? And, you know, those model 7 rules are agency -- they're not -- the Legislature didn't 8 make the model rules. The state agency did, pursuant to the 9 instructions of the Legislature. So, I can't tell you the 10 answer on every one of those questions until I see which one, 11 but the model rules were -- they're pretty strong. And the 12 people that give the money to the EDAP applicants will take 13 the money back and won't give you any more if their rules 14 aren't followed, through their audit provision that the law 15 says they must -- if they give you money, they're going to 16 come in -- I think it's an annual audit. Any quicker than 17 annual? 18 MS. RUSSELL: I don't believe so. 19 MR. KIMBROUGH: But -- 20 COMMISSIONER LETZ: But how can you -- when you 21 have a very specific exemption -- 22 MR. KIMBROUGH: Correct. 23 COMMISSIONER LETZ: -- versus a rule that agencies 24 made -- 25 MR. KIMBROUGH: It's supposed to fall. The agency 9-18-07 wk 62 1 rule is supposed to fall and be subordinate to the expressed 2 statute by the Legislature. 3 COMMISSIONER LETZ: But does -- 4 MR. KIMBROUGH: It's secondary authority. 5 COMMISSIONER LETZ: But does the -- how does the 6 audit provision -- does it follow their rules or the rules 7 that you have to follow -- or I guess the question would 8 be -- 9 COMMISSIONER WILLIAMS: Who's on first? 10 COMMISSIONER LETZ: Yes. We may trump, but do we 11 have to pay the money back? 12 MR. KIMBROUGH: I would not bet against the Water 13 Development Board's ability to recover funds if they -- if 14 they have an audit that shows violations. I -- there's too 15 much money involved there, and there's too many -- too many 16 public policy issues that allowed that money to be -- there's 17 debt associated with it. There's general obligation bonds 18 associated with it, so there may be some bond rules that 19 apply as well. But I cannot tell you the answer on each one 20 of them. But you've got -- Mr. Reynolds said you raised -- 21 the County raised some issues about apparent contradictions 22 between the rules and the legislative -- the statute? 23 COMMISSIONER LETZ: Right. 24 MR. KIMBROUGH: What did he say about that? 25 COMMISSIONER LETZ: He said that their model rules 9-18-07 wk 63 1 were put together for border counties, which, you know, was 2 different than the rules under Subchapter A. And that they, 3 internally -- I guess I was probably -- we were one of the 4 first -- I don't know if we're the first, but he said, 5 "You're asking questions that I don't know the answer to. We 6 need to go back and look at our model rules." 7 MR. KIMBROUGH: I looked for another client in the 8 early -- well, spring, of all the political subdivisions in 9 the state that had applied for EDAP money, and there was none 10 out of the South Texas region. 11 COMMISSIONER LETZ: Now there's one. 12 MS. RUSSELL: Yeah. Well, it's new, too. You 13 know, this is new also. I mean, granted, that this -- this 14 just came about in the 2005 Legislature, is when they 15 extended the EDAP money. 16 COMMISSIONER WILLIAMS: We're the only one that had 17 filed. 18 MR. KIMBROUGH: I don't know of any other county 19 that -- and we have some, you know, business all over 20 everywhere for counties, and we haven't heard of any other 21 county making an EDAP application. 22 COMMISSIONER WILLIAMS: We were told that there 23 were some thinking about it, but we were the first ones to 24 file. 25 MR. KIMBROUGH: That was the talk. Between the 9-18-07 wk 64 1 sessions -- between the committee -- I believe there was a 2 charge. There was a Senate -- 3 MS. RUSSELL: Interim charge. 4 MR. KIMBROUGH: The Lieutenant Governor's list of 5 charges. In other words, committees that were supposed to 6 work between the sessions included the Senate committee that 7 was over this type of legislative area, and one of our 8 lawyers gave testimony about model subdivision rules. 9 JUDGE TINLEY: Would this be a good place to take a 10 break so we can give her a rest for about 10 or 15 minutes? 11 MR. KIMBROUGH: Yes, sir. 12 (Recess taken from 2:32 p.m. to 2:54 p.m.) 13 - - - - - - - - - - 14 JUDGE TINLEY: Okay, let's come back on the record 15 now and resume. 16 MR. KIMBROUGH: I'd like to visit now about the 17 model subdivision rule handout. Claudia? 18 MS. RUSSELL: I'll start, and let Chuck pick up 19 with me. But the main three things I've taken away from the 20 model subdivision rules -- 21 MR. KIMBROUGH: Can I interrupt you for just one 22 moment? I want to make sure they know what's in the packet. 23 There's the summary, and we -- what we've done on the 24 summary, it's two pages, but we've tried to hit five or six 25 key points that are big. If you want to understand M.S.R., 9-18-07 wk 65 1 these are the high points for us. And then the next -- the 2 big thick packet are the actual model rules. Have y'all ever 3 seen these? 4 COMMISSIONER LETZ: Mm-hmm. 5 MR. KIMBROUGH: Okay. 6 COMMISSIONER LETZ: Just recently. 7 MR. KIMBROUGH: Okay. Well, the model rules also 8 apply to cities, and the city version is in the very back. 9 That's what makes it a little bit thicker. But what we're 10 going to do when Claudia goes through the summary, we're 11 going to show you where in the model rules those issues 12 appear on the page so you can highlight them and circle them 13 and go back to them and read them in more detail when you 14 have some time. The next thing in the packet is a -- an 15 administrative regulation under Title 31, Section 355.72 of 16 the Administrative Code, which sets out the criteria for 17 eligibility; funding, in other words, with the Water 18 Development Board. And that's -- I only need to show it to 19 you once. It's right here. That's the thing that says that 20 if you want the money from the board -- 21 MS. RUSSELL: You must adopt the rules. 22 MR. KIMBROUGH: -- you must have adopted the model 23 rules, okay? And then the next one -- the next -- 24 COMMISSIONER LETZ: Chuck, just on that point -- 25 MR. KIMBROUGH: Okay. 9-18-07 wk 66 1 COMMISSIONER LETZ: Most counties that adopt it, do 2 they just adopt them? Or try to make them mesh in their 3 rules? I mean, I guess -- 4 MR. KIMBROUGH: Well, you got to do one, and you 5 ought to do the other. Because, as Claudia's going to show 6 you, M.S.R. only applies to, you know, 5 acres or less, 7 residential. And we know the exemptions when you get above 8 10 acres, and the usual exemption statute under 232, 9 Subchapter A -- 232.0015, I think it is. 10 COMMISSIONER LETZ: Mm-hmm. 11 MR. KIMBROUGH: You know, if you're over 10 acres, 12 then you do not dedicate any land for roads, streets, parks, 13 and you don't do any of that, you know, stuff for the benefit 14 of common adjoining lot owners. You're not required to plat. 15 So, it's -- to work into your county's regulatory scheme is 16 very important. 17 COMMISSIONER WILLIAMS: Well, Chuck, I think the 18 reason Jon asked that question is 'cause we have -- in their 19 correspondence back to us, they listed the various sections 20 of our model subdivision rules -- or of our subdivision rules 21 which they thought didn't comply or needed modification, and 22 they identified them. And then, when they get through with 23 all of that, then they -- they put a catch-all paragraph that 24 says, you know, "However, you can refute all this just by 25 adopting our model subdivision rules." 9-18-07 wk 67 1 MS. RUSSELL: I think they would prefer that. I 2 know, from talking with some of the folks at the Water 3 Development Board, just the government relations guys, they 4 said that through cities -- that they've just, through the 5 different ordinances that do exist all throughout, that it's 6 -- they would prefer for a county or a city just to take what 7 they provide and to adopt that. That's what they prefer. 8 MR. KIMBROUGH: But we can't do that for all 9 subdivisions, because -- well, I guess you could. I guess 10 you could say for every subdivision that's over 5 acres, but 11 less than 10 acres, we're making the model rules apply. 12 COMMISSIONER LETZ: I don't think you have -- my 13 question is, I don't think you have the authority. If you're 14 less than 5 acres, I think this applies. 15 MS. RUSSELL: Yes. 16 MR. KIMBROUGH: Absolutely. 17 COMMISSIONER LETZ: But if you're over that, where 18 are you going to get the authority to have those separate, 19 tougher restrictions? 20 MR. KIMBROUGH: Health, safety, welfare, moral 21 development; Subchapter E. 22 COMMISSIONER LETZ: At risk, right? I mean, you're 23 going to be -- 24 MR. KIMBROUGH: Yes, sir. Yes, sir, I can't back 25 up on what I said before the break. Yes, sir. 9-18-07 wk 68 1 MS. RUSSELL: But he also did say -- 2 MR. KIMBROUGH: But just an educated opinion, in my 3 judgment, looking at the -- the way the law's been 4 developing, I don't dislike your chances, but there is risk, 5 yes, sir. 6 COMMISSIONER LETZ: Okay. 7 MS. RUSSELL: Right. But you also did indicate 8 that you did think that that was available through A, right? 9 MR. KIMBROUGH: Through A? 10 MS. RUSSELL: Through the general safety -- the 11 catch-all. 12 MR. KIMBROUGH: I do. I do. And, you know, the 13 debate's been going on ever since, what, '03, when 14 Subchapter E hit? And I just -- we're looking for the case. 15 We -- maybe we'll get it one of these days, but the case law 16 does not exist right now. Now, Claudia's going to go through 17 this, and what I'm going to try to do after she's through is 18 to actually show you the pages in the M.S.R. where you can 19 circle it and go back to. 20 MS. RUSSELL: Circle, go back to it. Well, some of 21 the main points to come off of the M.S.R.'s are -- Chuck and 22 I talked about it yesterday. Three things that we take away 23 from it; in other words, the real big ones. And one is, 24 what's the scope? Who does it apply to? We've already 25 talked about that. It applies to residential acreages, 9-18-07 wk 69 1 5 acres or less. 2 MR. KIMBROUGH: Two or more lots. 3 MS. RUSSELL: Two or more lots -- 4 MR. KIMBROUGH: But -- 5 MS. RUSSELL: -- containing 5 acres or less. And 6 then there's the part that we've also talked about, 7 Commissioner Letz. No more than one single-family detached 8 dwelling may be located on any one lot. And, again, this 9 must appear in the final plat. So, those two things; who 10 does it apply to? It applies to lots containing 5 acres or 11 less and intended for residential purposes. And then they 12 went through the requirement -- with the requirement that no 13 more than one single-family -- detached single-family 14 dwelling may be located on the lot. The second thing to come 15 across are what we call just, like, the -- like, the minimum 16 standards. What are they requiring? For water services, it 17 depends on if there's an existing -- depends on what you plan 18 to do. If there -- if the developer -- if there is no retail 19 public water service, and he's not wanting to put in well -- 20 you know, wells or septics, then, yes. Then they want what 21 we -- these minimum standards that they want on the front end 22 is to prove that that retail public -- whoever's going to 23 provide the water is able to provide the water for 30 years. 24 They want assurances that this water -- that these people in 25 the subdivision will be able to -- to get water for 30 years. 9-18-07 wk 70 1 COMMISSIONER LETZ: Quick question. 2 MR. KIMBROUGH: Okay. 3 COMMISSIONER LETZ: This is kind of an opinion. If 4 we went to Water Development Board -- you cannot put a water 5 well on less than 5 acres in Kerr County, okay? So -- but 6 this is 5 acres or less. Seems that if we could get Water 7 Development Board to say -- instead of saying 5 acres or 8 less, say less than 5 acres, is that minor a change something 9 they might accept? Because then we -- you couldn't have a 10 water well, period. I mean, if they can just change that to 11 less than 5 acres, that solves the whole problem. 12 MR. KIMBROUGH: That's the PGMA rule? 13 COMMISSIONER LETZ: Well, it's our -- it's our 14 local rules, yes. It's our PGMA rule -- we'll probably have 15 to talk to you about that sometime, 'cause we have -- 16 MR. KIMBROUGH: There is a state law that allows 17 you to do that? 18 COMMISSIONER LETZ: What we have done, we have 19 looked at data that comes in from the regional water planning 20 and Headwaters and others, and said, based on all this data, 21 we feel that you're less than -- you know, you're guaranteed 22 to get water developability if you're 5 acres or more. We 23 don't require studies, but we have referenced the various 24 documents that we looked at, talking about the consumption 25 and all that, and what water looks like. Currently, there's 9-18-07 wk 71 1 not enough data in Kerr County to say yes or no, definitely, 2 that 5 acres is the right number. But the other problem is, 3 we have multiple aquifers and multiple different areas of the 4 state that vary greatly across. So, Bill's area, you know, 5 it might be real tough even at 5 acres. Bruce's area, you'd 6 probably be good on 1 acre. But since the area -- the 7 science is not advanced enough that we have -- we're saying 8 we're going to play it safe; 5 acres. If you have -- if 9 you're greater than 5 acres, you can do individual water 10 wells. 11 MR. KIMBROUGH: Where in your regulations does it 12 say that? Subdivision regulations? 13 COMMISSIONER LETZ: Yes -- water availability 14 regulations, actually. 15 MR. KIMBROUGH: What does state law say about that? 16 COMMISSIONER LETZ: State law says that we can 17 develop our own water availability requirements in a PGMA. 18 MR. KIMBROUGH: In a PGMA? 19 COMMISSIONER LETZ: (Nodded.) Which we've done. 20 MR. KIMBROUGH: A water conservation district 21 exists here? 22 COMMISSIONER LETZ: Right. 23 MR. KIMBROUGH: The name of that one is? 24 COMMISSIONER LETZ: Headwaters. And they -- 25 MR. KIMBROUGH: They are on board with that? 9-18-07 wk 72 1 COMMISSIONER LETZ: They've never -- not objected 2 to our rules. 3 MR. KIMBROUGH: Were they involved in the -- did 4 they provide help to the Court, data to help the Court make 5 its decision on that? 6 COMMISSIONER LETZ: Through regional water planning 7 process, definitely. I don't know -- and that board's been 8 divided over time. Some -- I'd say right now, there's 9 probably a quorum that would support it. Other times there's 10 been a quorum that wouldn't support our rules, and want us to 11 be a little bit stricter. 12 MR. KIMBROUGH: That is a very interesting point. 13 I told you that I forgot that you were a PGMA before I came 14 over here. I should not have, but I did. I plead guilty on 15 that. You've asked a question that is really interesting for 16 a lawyer. 17 COMMISSIONER LETZ: Be interesting for a county to 18 know if we're right to -- 19 MR. KIMBROUGH: Can the -- under 364.11, model 20 subdivision rules, can a county who got money from the board, 21 in an audit -- or maybe even, you know, to get the money, 22 imposing a hypothetical, can -- can it obtain a compliance 23 report through the Water Development Board's review in 24 contradiction to the plain language of 364.11? That's been 25 there a long time. Only to a subdivision which creates two 9-18-07 wk 73 1 or more lots of 5 acres or less can -- can a deviation from 2 that, based on the PGMA authority, supported by conservation 3 district data, can -- can this -- can this be the subject of 4 a deviation -- where I'm putting my finger right there -- 5 right there. Can that primary rule component be the subject 6 of a deviation, and equal substantial compliance, in order to 7 get the money? 8 COMMISSIONER LETZ: But while you were talking, 9 I -- 10 MR. KIMBROUGH: That's a very interesting question. 11 COMMISSIONER LETZ: But I figured an easier 12 solution. If we can modify our subdivision rules to greater 13 than 5 acres. Instead of saying you can have an individual 14 water well on 5 acres or greater, we can just do "greater 15 than" 5 acres, and that way you can adopt this for less, and 16 there's -- basically, the only time that they'd have to 17 follow these rules is if it's exactly a 5-acre lot size. 18 MR. VOELKEL: Much easier approach. 19 COMMISSIONER WILLIAMS: That may be the way. 20 COMMISSIONER OEHLER: Yeah. 21 COMMISSIONER LETZ: That would solve the problem, 22 'cause then we can be in compliance with their rules, and we 23 can say greater than 5 acres. It's just a matter of where 24 you put the "greater than." Okay. 25 COMMISSIONER OEHLER: Rather than trying to get 9-18-07 wk 74 1 them to say less, you have to say more. 2 COMMISSIONER LETZ: Right. 3 MR. VOELKEL: They're not going to do it. 4 COMMISSIONER OEHLER: They're not going to do it. 5 MR. KIMBROUGH: But Priority Groundwater Management 6 Area rules, you know, come from another agency, Texas 7 Commission on Environmental Quality, and it's a very 8 interesting question. I -- I'd like to come back to it on 9 another day. But -- 10 COMMISSIONER LETZ: Okay. 11 MR. KIMBROUGH: -- I don't feel comfortable taking 12 sides on that one. 13 COMMISSIONER LETZ: Okay. 14 MR. KIMBROUGH: At this point. 15 COMMISSIONER LETZ: But you gave me -- by your 16 comments and my question, I figured out a solution. 17 MR. KIMBROUGH: Well, for me -- 18 COMMISSIONER WILLIAMS: Possible solution. 19 JUDGE TINLEY: Do it in a way that you have 20 control. 21 COMMISSIONER LETZ: Right, so that we don't have to 22 ask the question. 23 MR. KIMBROUGH: Very interesting. Sorry, Claudia, 24 but that -- 25 MS. RUSSELL: No, and please stop as we keep going 9-18-07 wk 75 1 along. So, again, you know, what are the minimum standards? 2 So -- we're talking about water now; not wastewater, but just 3 water. And, so, if a subdivider is going to propose to 4 supply drinking water and wants to connect -- 5 COMMISSIONER WILLIAMS: Where are you in your 6 folder? 7 MS. RUSSELL: I'm at 364.32. Do you see 364.32? 8 MR. KIMBROUGH: If you look at the top of the page, 9 it will be Page -- 10 COMMISSIONER LETZ: 1 of 4. 11 COMMISSIONER OEHLER: Yeah. 12 MR. KIMBROUGH: What page are you on in the model 13 rules? 14 COMMISSIONER OEHLER: 1 of 4. 15 COMMISSIONER WILLIAMS: I got it, 1 of 4. 16 MR. KIMBROUGH: I'm sorry, what's your number? 17 What's your number on your highlight? 364.32? 18 MS. RUSSELL: Uh-huh, 364.32. 19 MR. KIMBROUGH: That'll be Page 1 of 4. 20 COMMISSIONER WILLIAMS: Got you. 21 MS. RUSSELL: So, they're going to break it down 22 by -- is there an existing public water system? And if -- if 23 you're wanting to connect the water -- if you're wanting to 24 connect into an existing public -- existing public water 25 system, and what they want to see is a contract with you and 9-18-07 wk 76 1 the existing retail public utility saying that they can take 2 -- that they can supply -- that they will provide, and has 3 the ability for the total flow anticipated for the next 30 4 years. They want -- 5 MR. KIMBROUGH: Who's the water provider out there? 6 COMMISSIONER WILLIAMS: There's three of them -- 7 two of them that operate three systems. Actually, there's 8 three of them that operate four systems. 9 MR. KIMBROUGH: Water supply corporations? 10 COMMISSIONER WILLIAMS: Aqua Texas has two. 11 Another guy has one, and a big mobile home park has its own. 12 MR. KIMBROUGH: Okay. 13 MS. RUSSELL: And then you even have an Appendix 14 1-A that they give you a form -- a form contract to -- 15 between the county and the retail public water supply to sign 16 and execute. They want to see that. That's like the minimum 17 standards that they're trying -- that they're requiring the 18 County to have. Now, if it's not -- and this is where we 19 think about the building it. If there is no existing retail 20 public water, then they're going to require the developer to 21 build one. And, by obtaining a CCN and everything necessary 22 to -- to go through the steps of providing your own -- that 23 might not be the option here, but just to break that down, if 24 -- if that developer does have to -- if this is the option he 25 chooses, and decides to build his own, then he's got steps to 9-18-07 wk 77 1 take. If he's going to use groundwater, then he's got to 2 provide some type of groundwater availability study that's 3 going to meet their -- their requirements. If he's going to 4 use surface water, then they want sufficient evidence to 5 prove that that surface water supplier is going to be able to 6 supply water for 30 years. Now -- 7 COMMISSIONER WILLIAMS: Notwithstanding a drought 8 of record, huh? 9 MS. RUSSELL: Except for surface water, right? 10 Yes. 11 (Discussion off the record.) 12 MS. RUSSELL: Now, on the (a) -- 364.32(b) is where 13 we were talking about they're not requiring subdivision -- 14 sub -- developers to build -- to obtain a CCN and build every 15 treatment center, 'cause they're allowing right here on (b), 16 where you have individual wells for non-public water systems. 17 So, where you have individual wells, the subdivider still has 18 to prepare and show that the groundwater availability is 19 there and is long enough to supply for 30 years. Thirty 20 years, you know, is what they're wanting to see. And then 21 the (c) part, I think, is saying that it's not acceptable 22 to -- to transport potable water. So, that's for the water. 23 The next section, 364.33, is our wastewater. And, 24 again, it's -- it goes along kind of the same lines. If the 25 subdividers have a collection and treatment center, that they 9-18-07 wk 78 1 propose to develop one, then they've got certain engineering 2 planning materials that have to be -- have to be approved. 3 If they want to dispose of the wastewater by connecting to an 4 existing permitted facility, then they want you to, again, 5 enter into a written agreement and show them that that retail 6 public facility has the ability to -- to treat your flow and 7 take care of your wastewater disposal for a minimum of 30 8 years. So, that's what they're wanting to see. They're 9 wanting to see contracts. They'll want the type of 10 agreement; that they'll want to see the application, under -- 11 that's the organized. Now, (b) allows for the on-site 12 sewerage facilities, in 364.33. So, with the septic systems, 13 we know that they're only allowable if you serve 5,000 -- no 14 greater than 5,000 gallons a day. So, that's a general 15 requirement for, I guess, your O.S.S.F.'s. But, basically, 16 they're just saying you comply with what already the state 17 law is for septic systems for a developer. So, again, we're 18 saying that -- 19 MR. KIMBROUGH: We didn't give you the O.S.S.F. 20 statute or the regs. We've got it. 21 MS. RUSSELL: But y'all are authorized agent, 22 right? 23 COMMISSIONER WILLIAMS: We're authorized agent. 24 COMMISSIONER OEHLER: Right. 25 MS. RUSSELL: You're authorized agent. So, again, 9-18-07 wk 79 1 these minimum standards are -- they're wanting these up-front 2 assurances. 3 MR. KIMBROUGH: For whose benefit? 4 MS. RUSSELL: For the public. 5 MR. KIMBROUGH: The people. It's for the 6 uneducated person who buys the lot. 7 MS. RUSSELL: The lot, that -- 8 MR. KIMBROUGH: And, you know -- 9 MS. RUSSELL: -- thinks that there's going to be 10 water there. 11 MR. KIMBROUGH: Yes, or the unscrupulous sales 12 representative who promises the moon. You know, they're 13 trying to get at that. 14 MS. RUSSELL: So, those -- again, who it applies 15 to, and what they're wanting is those minimum standards. 16 They're wanting proof on the front end that it's going to be 17 there, and that's there for the protection of the consumers. 18 The third thing that Chuck and I think are the most -- is the 19 most important is the financial -- 364.54; is that right? 20 What page is that on? 21 COMMISSIONER LETZ: 3 what? 22 MS. RUSSELL: 364.54. 23 MR. KIMBROUGH: It's -- 24 MS. RUSSELL: 3 of 9. 25 MR. KIMBROUGH: Yeah, 3 of 9. 9-18-07 wk 80 1 MS. RUSSELL: So, this is what we've heard as a 2 "build it or bond it." Right? So, what they're -- before 3 the final plat is going to be approved -- and correct me if 4 I'm wrong -- they're going to require the Commissioners Court 5 that it be built at the time of approval, or that you issue a 6 bond, and it goes into detail what type of bond that the 7 developer must issue, as assurance that it will be built. 8 MR. KIMBROUGH: With two exceptions. Again, 9 private water wells, and private on-site septic facilities 10 are okay. The "build it or bond it" rule has to do with the 11 other type of water and sewer provisions where the 12 developer's going to put in a water system, and put in a 13 sewer system -- and/or put in a sewer system. 14 COMMISSIONER WILLIAMS: Well, the practical 15 application to our particular situation we're talking about 16 would be that if we obtain their money to construct the sewer 17 collection system and transmission system, future developers 18 who come along purchasing land for development that's 19 available, they have to be required to hook up. Would that 20 be a factual reality? I would hope so. 21 MR. KIMBROUGH: It's logical. 22 MS. RUSSELL: It's logical for them to -- 23 COMMISSIONER WILLIAMS: If they put in the water, 24 we're going to have a requirement to hook up to the system. 25 MS. RUSSELL: And one thing that stands out when 9-18-07 wk 81 1 you say that, I know at T.C.E.Q., they're really trying to 2 push the regionalization -- 3 COMMISSIONER WILLIAMS: Right. 4 MS. RUSSELL: -- issue. And that is the -- I think 5 the logical step of -- of planning, is to regionalize this 6 and hook up. 7 COMMISSIONER WILLIAMS: Mm-hmm, right. 8 MR. KIMBROUGH: The -- the scenario, Commissioner 9 Williams, that you've talked about is a hookup requirement to 10 an existing sewer system? 11 COMMISSIONER WILLIAMS: Mm-hmm. 12 COMMISSIONER LETZ: I think -- I think -- I don't 13 know that you can do that, to my mind. I mean, you could -- 14 they may -- if they want to build their own transmission line 15 or put in their own sewage treatment facility, they have the 16 right to do that. 17 MS. RUSSELL: They have the right to try to get a 18 permit from T.C.E.Q. to cover that. 19 COMMISSIONER LETZ: Sure. 20 MR. KIMBROUGH: Or -- but what about -- I'm short 21 on the facts. You mentioned that there was an existing sewer 22 system. 23 COMMISSIONER WILLIAMS: No. 24 COMMISSIONER LETZ: Assuming we get the money to 25 build the system. 9-18-07 wk 82 1 MR. KIMBROUGH: Okay, hypothetically. And it 2 happens. 3 COMMISSIONER WILLIAMS: And future developers come 4 along under these rules. My question is -- and I guess it 5 applies both ways, considering what Jonathan just said. They 6 either have to hook up to the existing system, or they have 7 to put in one of -- 8 COMMISSIONER LETZ: Their own. 9 COMMISSIONER WILLIAMS: -- their own. 10 MR. KIMBROUGH: Depends on where the land is. 11 COMMISSIONER LETZ: If it's -- 12 COMMISSIONER WILLIAMS: Of course. 13 COMMISSIONER LETZ: Yeah. I mean, adjacent to the 14 system, if it can be hooked up into it. 15 COMMISSIONER WILLIAMS: We're talking about in the 16 proximity where the system's going in, talking about the 17 community of Center Point. Say a developer comes in, buys 18 land within the proposed service area. 19 MR. KIMBROUGH: I'm not sure about that. I have to 20 do -- I'm not sure about that. Because if there's anything 21 that jumps out at you from the model rules, it clearly 22 says -- look at 1 of 4. 23 COMMISSIONER WILLIAMS: Which one? 24 MR. KIMBROUGH: 1, 2 and 3. Pages 1, 2, and 3. 25 The first part of it's water facilities development, and next 9-18-07 wk 83 1 part is wastewater disposal. 2 COMMISSIONER LETZ: Where are you? 3 MS. RUSSELL: About -- 4 MR. KIMBROUGH: Just look at the top of Page 2. 5 The top of Page 2. 6 COMMISSIONER LETZ: Okay. 7 MR. KIMBROUGH: The model rules. The top part is 8 talking about water supply, of the model rules. Yeah, page 9 -- it'll be the model subdivision rules, this big, thick 10 packet. 11 COMMISSIONER WILLIAMS: Yeah. 12 MS. RUSSELL: But not necessarily -- it's page -- 13 it's the next section. 14 COMMISSIONER LETZ: What's the number? 15 MR. KIMBROUGH: Oh, okay. 16 MS. RUSSELL: Sorry. 17 MR. KIMBROUGH: Top right-hand corner would be Page 18 2 of 4. 19 COMMISSIONER WILLIAMS: Got you, okay. 20 MR. KIMBROUGH: Page 2 of 4. 21 COMMISSIONER WILLIAMS: Now I'm with you. Okay. 22 MS. RUSSELL: We're looking at 364.32. 23 MR. KIMBROUGH: Yeah. It's the top of the page, 24 where it says non-public water systems. 25 COMMISSIONER WILLIAMS: Mm-hmm. 9-18-07 wk 84 1 MR. KIMBROUGH: "Where individual wells or other 2 non-public water systems are proposed... the subdivider 3 shall..." Okay, those are the front-end assurances. Test 4 well. That's what it ultimately means, when you get back to 5 the end, okay? Right off the -- I mean, it's there in plain 6 English. You do not, if you're a developer, have to put in a 7 water system. 8 COMMISSIONER WILLIAMS: Okay. 9 MR. KIMBROUGH: All right? And go down to 10 wastewater -- 11 COMMISSIONER LETZ: But in our county, you can't do 12 it if you're -- you have to have 5-acre lots or more to be 13 able to put in individual water wells, and subject to these 14 rules. 15 MR. KIMBROUGH: Okay. 16 COMMISSIONER LETZ: So you're not going to be able 17 to put in individual -- in reality, you're going to be 18 hard-pressed to put in water wells. 19 MR. KIMBROUGH: Okay. That's the -- in other 20 words, the PGMA-authorized county regulation preempts a -- an 21 individual water well. 22 COMMISSIONER LETZ: And Headwaters, the ground -- 23 the conservation people, won't allow it from a -- I mean, 24 they can only do spacing, but their spacing somewhat conforms 25 to our lot size. 9-18-07 wk 85 1 MS. RUSSELL: Now, I'm wondering if you -- 2 Commissioner, your question would be with the CCN, say, for 3 the water services that a developer puts in. And he has 4 to -- and he -- there's no existing retail utility, and he's 5 going to construct his own, and the first thing he has to do 6 is go get a CCN from T.C.E.Q., and that CCN basically 7 operates as a monopoly within that, wherever your boundary 8 is. Then any new developments -- 9 COMMISSIONER WILLIAMS: That's for water. 10 MS. RUSSELL: For water, yes. 11 MR. VOELKEL: How's that work for sewer? 12 MR. KIMBROUGH: Look at the bottom of that page, 13 wastewater disposal, 364.33 (b), on-site sewerage facilities, 14 and then go to the next page. Could this developer do 15 septic, even though there was an existing public sewer system 16 adjacent to the lots? 17 COMMISSIONER WILLIAMS: If I read this correctly, 18 it suggests it can. 19 MR. KIMBROUGH: Yes, sir. 20 COMMISSIONER LETZ: Said he can. 21 MR. KIMBROUGH: So I'm not sure, at least as to 22 sewer, that the county regulation requiring them to hook 23 up -- 24 COMMISSIONER OEHLER: There were some old state 25 regulations at one time that said that if you were within a 9-18-07 wk 86 1 certain range, 150 feet or something, of an existing 2 wastewater line or something, that you must hook up. 3 COMMISSIONER WILLIAMS: That also, but under EDAP 4 -- under the EDAP rule, counties have the authority to 5 mandate hookups under the EDAP program. 6 MR. KIMBROUGH: Okay. We haven't talked about the 7 EDAP subdivision rules. I've given you copies of them, okay? 8 There's a whole different set of plat requirements that you 9 may choose to engage in, separate from Subchapter E. There's 10 -- this is Subchapter D, the EDAP rules. This is the 11 reason -- 12 MS. RUSSELL: C. 13 MR. KIMBROUGH: Excuse me, C. I'm sorry. 14 MS. RUSSELL: Not to confuse anybody. 15 COMMISSIONER WILLIAMS: I'm already confused; don't 16 worry about it. 17 MR. KIMBROUGH: It's got a red tab on it. 18 COMMISSIONER LETZ: So, if you go -- so, even 19 though -- if we do an EDAP grant, then Subchapter C would 20 also apply in Kerr County? The entirety, or just within the 21 area of the EDAP -- 22 MR. KIMBROUGH: Whole deal. You can -- I will show 23 you the -- 24 COMMISSIONER LETZ: Is that your stack or my stack? 25 COMMISSIONER OEHLER: That's mine. 9-18-07 wk 87 1 COMMISSIONER LETZ: Get your own stack. 2 MR. KIMBROUGH: Actually, it's attached to your 3 model subdivision rule packet. I forgot to tell you about 4 it. It's the very last -- it's the very last attachment in 5 your M.S.R. packet. 6 COMMISSIONER LETZ: Okay. 7 MR. KIMBROUGH: Who -- "This subchapter applies... 8 outside the corporate limits of a municipality" -- this is 9 232.071 -- "and in a county in which there is located a 10 political subdivision that is eligible for and has applied 11 for financial assistance under the" -- and it gives -- that's 12 the EDAP sections. 13 COMMISSIONER LETZ: EDAP is now applicable 14 statewide? 15 MS. RUSSELL: That's right. 16 MR. KIMBROUGH: If you comply with 232.071, and 17 your county has actually applied and is eligible for the EDAP 18 money, okay? So, these rules apply. And they specifically 19 mention -- they specifically mention the model subdivision 20 rules. Now, I'll give you the cite on that. 21 MS. RUSSELL: All the different chapters are 22 confusing, but of the 232, A was the general -- the one that 23 all counties can do; B was the border one, which had the 24 strictest of the strict in there; C is the EDAP, which came 25 about -- it was effect -- became in effect after '05, after 9-18-07 wk 88 1 EDAP was expanded out to beyond border counties; and E, the 2 other one we've been talking about, is the one that's just 3 now -- the old urban county that's now opened up to all 4 counties. 5 MR. KIMBROUGH: Okay. When you look at Subdivision 6 E, which is this last attachment to your model subdivision 7 rule packet, okay? It's the statute at the bottom of the 8 first page, Section 232.072. And you turn -- it's called 9 Plat Requirements. And then you turn the page, and you see 10 model subdivision rules adopted under Section 16.343 of the 11 Water Code, very top -- at the very top of the second page. 12 And then, when you read that, "A plat required under this 13 section must" -- 14 COMMISSIONER WILLIAMS: Oh, F. I got it, okay. 15 COMMISSIONER OEHLER: Where is it? 16 MR. VOELKEL: At the bottom -- top of the second 17 page. 18 COMMISSIONER OEHLER: If I had the right document 19 in my hand -- 20 MR. KIMBROUGH: The reason that the Water 21 Development Board is suggesting to you that the County must 22 adopt the model rules, okay, is because Kerr County applies 23 under Subdivision C, EDAP subdivision regulation authority. 24 You also happen to apply under A. You also happen to apply 25 under E. 9-18-07 wk 89 1 COMMISSIONER LETZ: So far, we now have -- 2 MS. RUSSELL: And under E, you also have B, 3 remember? 4 MR. KIMBROUGH: Remember? 'Cause E reaches back to 5 B. 6 COMMISSIONER LETZ: Part of B, all of C, and all of 7 E. We just don't have D. 8 MR. KIMBROUGH: But the reason that E applies -- 9 excuse me, that C -- this one applies to you is because there 10 is a political subdivision located in Kerr County, Texas, 11 that is eligible for and has applied for EDAP money. That 12 political subdivision happens to be the County of Kerr. 13 COMMISSIONER WILLIAMS: Right. 14 MR. KIMBROUGH: Now, the TAC rule says -- the 15 administrative regulation that I gave you, this one, Chapter 16 31, -- 17 COMMISSIONER LETZ: Mm-hmm. 18 MR. KIMBROUGH: -- says that political subdivisions 19 must meet the appropriate requirements of this section before 20 the board, meaning the Water Development Board, may consider 21 an application for financial assistance. But what do you 22 have to do to get the board to consider your application? 23 Your county must adopt -- okay, so that's where these two 24 things dovetail into each other. 25 COMMISSIONER WILLIAMS: That's what they told us. 9-18-07 wk 90 1 MR. KIMBROUGH: Now -- 2 MR. VOELKEL: There it is in writing. 3 MR. KIMBROUGH: We have connected the dots. But 4 your question becomes, can you make them hook up to the sewer 5 -- to the existing sewer system? 6 COMMISSIONER WILLIAMS: I asked the question 7 originally with respect to individual property owners, and I 8 was told that under EDAP regs, the County has the authority 9 to mandate hookups under -- by accepting those funds. Okay. 10 So, I would assume that to apply to a developer who says, 11 "I'm going to put in an apartment complex or whatever" -- 12 MR. VOELKEL: You have to define an area, that it 13 falls in the area? 14 COMMISSIONER WILLIAMS: Well, you define surface 15 area, sure. 16 MS. RUSSELL: It says -- there's CCN sewer just 17 like there is CCN water. 18 COMMISSIONER LETZ: If you're within the CCN -- 19 MR. VOELKEL: If it's in that area, you can require 20 that? 21 MS. RUSSELL: Yes. But we can study that further, 22 and let us just study that further. 23 COMMISSIONER WILLIAMS: The answer came back from 24 Water Development Board. 25 MR. KIMBROUGH: I couldn't -- 9-18-07 wk 91 1 COMMISSIONER WILLIAMS: You couldn't take their 2 word as gospel? 3 MR. KIMBROUGH: No, no, no, no. I'm not -- I'm 4 going the other way, 'cause it's their money. You know, if 5 you want their money, you know, I would think that their -- I 6 wouldn't disagree with them, is where I'm going with it. You 7 know, I'm much more interested in the interplay -- 8 "interested" is -- I'm concerned about the interplay 9 between -- you know, like we talked about, with the 5 acres 10 or less deal, whether we could obtain a substantial 11 compliance ruling from the board in order to get the funds, 12 based on the presence of a PGMA rule -- a PGMA-authorized 13 rule. 14 COMMISSIONER LETZ: That's a -- we can fix that by 15 just changing the "greater than." 16 MR. KIMBROUGH: I'm with you there. But -- 17 COMMISSIONER LETZ: You like the legal part, and 18 it's an interesting question as to which rules -- and the 19 Water Development Board's going to have to get more and more 20 involved, because as they extend EDAP, they've expanded into 21 a whole new area of rules. 22 COMMISSIONER WILLIAMS: Exactly. 23 COMMISSIONER LETZ: I don't think they fully 24 thought through -- 25 MR. KIMBROUGH: Well, the election is coming up. 9-18-07 wk 92 1 If it's unsuccessful -- 2 MS. RUSSELL: Money's going to be running out soon 3 enough. 4 MR. KIMBROUGH: -- there may be a higher level of 5 scrutiny applied, but if the election is successful -- the 6 constitutional amendment election is successful, they still 7 may, you know, increase their scrutiny on substantial 8 compliance, because $250 million is a lot of money, but 9 there's a whole lot more people that are -- more entities 10 that are going to be seeking the financial assistance. 11 COMMISSIONER WILLIAMS: Right. 12 MR. KIMBROUGH: Okay. I -- 13 MS. RUSSELL: That's where we -- kind of the three 14 main things for the M.S.R.'s are who it applies to, what are 15 the minimum standards? What do they want to see on the front 16 end? And the build it or the bond it. If you're in a 17 situation where a developer does decide to create its own 18 water or sewer, then they have to have it built before it's 19 approved, or have a bond for it. 20 MR. KIMBROUGH: I've got my model rules marked on 21 the key parts that we talked about today, and I want to go 22 through and show you so you can mark them, and then you can 23 go back and read them at your leisure. But on Page 1, 364.11 24 and 364.15 is the basic, you know, two -- two tracts or more, 25 5 acres or less, intended for residential purposes. So, you 9-18-07 wk 93 1 know, put a mark here and here. And then the standards -- 2 you know, the goal, the purpose right there in the middle of 3 the page about minimum state standards for adequate water and 4 wastewater facilities, that's -- that goes through the -- 5 that's the purpose of why they exist. Okay. Then Claudia 6 talked to you about the minimum standards beginning at Page 1 7 of 4, 2 of 4, 3 of 4. But at the bottom of Page 3 of 4, the 8 setback rules, minimum 10 feet in areas that lack a 9 nationally recognized fire code, and then it talks about a 10 Chapter 233 statute. 11 I'm going to talk to you about this at the end, but 12 you don't have the population bracket to allow to you pass up 13 a county fire code; you have to be 250,000 or more in 14 population, or be adjacent to a county that has at least 15 250,000 in population. So, you don't have the ability to 16 adopt a nationally recognized fire code under Chapter 233, 17 but your minimums should be at least 10 feet. And, certainly 18 the increased setback options that are available to you under 19 Subchapter E can help you there. Okay. Number of dwellings 20 per lot. Go to the next page, 4 of 4. That's where I've 21 marked it. No more than one single-family -- single-family 22 detached dwelling on each lot. And then the rule about the 23 plat has to say that and the deeds and the contracts for deed 24 that support the lot sales; that's where it says it too. 25 That restriction has to be on the deed of conveyance where 9-18-07 wk 94 1 people buy their lots. 2 COMMISSIONER LETZ: And -- 3 MR. VOELKEL: How does the County control that? 4 MR. KIMBROUGH: Well -- 5 MR. VOELKEL: Just curious. 6 MR. KIMBROUGH: We haven't said anything at all 7 about enforcement, Mr. Voelkel. But -- but that is where 8 crimes are committed. At the very back of this -- okay, this 9 Administrative Code attachment to model subdivision rules -- 10 I know y'all are getting tired of me playing flash cards, but 11 back here it talks about the provisions in state law where 12 enforcement authority exists, okay? Now, without getting too 13 technical, when you talk about the Water Code provisions 14 there and the Local Government Code provisions in 232, two 15 things come up. The rules can be enforced by -- by criminal 16 prosecution, if the statutes allow it, by your local County 17 Attorney or District Attorney, and sometimes the Attorney 18 General's office. So, criminal violations are the law; 19 mostly misdemeanor offenses, okay, where the criminal 20 prosecutors become involved under facts that support such a 21 prosecution. Proof beyond a reasonable doubt. All right? 22 Secondly, the statutes that exist allow civil 23 enforcement whereby Kerr County, through the services of 24 either the County Attorney or the District Attorney, or 25 possibly outside counsel, where lawsuits are filed for 9-18-07 wk 95 1 injunctive relief, just to keep somebody from doing 2 something, to get a court order -- civil case court order for 3 injunction to stop the prohibited action, sometimes to get a 4 finding in court of the assessment of a civil penalty. So, 5 there are ways to enforce violations of the model rules, as 6 well as violations of the -- of your subdivision regulations 7 adopted properly according to authority of state law. So, 8 normally you don't associate a county going to court and 9 suing somebody very often because of the litigation risk and 10 expense, okay? But there are lots of counties in the state 11 that routinely refer subdivision regulation violations to 12 their local prosecutor's office, and you see those. 13 When I was a prosecutor in my home county, we -- at 14 first, we were trying to figure out where the doggone law is. 15 You know, I didn't -- I was D.A. in my home county for 12 16 years, and I didn't know where it was until back when we had 17 the Water Commission prior to -- you know, prior to the 18 current agency setup. With 60 or 70 people in the 19 Commissioners Court meeting that day, he leaned over and 20 said, "Well, your local District Attorney has criminal 21 prosecution jurisdiction over these alleged violations. 22 Don't you?" And everybody looked at me. And I said, "Well, 23 I guess so." You know, I didn't know where the law was. And 24 that was in the -- the early 90's, and it was about that time 25 that the criminal violations began to hit the books for 9-18-07 wk 96 1 subdivision ordinance activity. 2 COMMISSIONER LETZ: Chuck, how do you physically go 3 about -- I mean, this -- by 364.37, the number of dwellings 4 per lot, it says this restriction shall be placed on all 5 deeds. Well, you know, we don't compare deeds. 6 MR. KIMBROUGH: No, but what -- nor do -- nor do 7 you ride around catching burglars, either. Okay? And so 8 there is an enforcement mechanism that's built into state 9 government, and there's an investigative mechanism too that 10 involves, most of the time, law enforcement. Do you have a 11 Code Enforcement Officer or someone in county government that 12 checks septic permits? 13 MS. RUSSELL: Environmental Department does, right? 14 As the authorized agent? 15 MR. KIMBROUGH: You know, normally you would -- you 16 would have training, education, and experience for those 17 types of people on staff to look at enforcement issues 18 regarding subdivision regulations and plat rules, and model 19 subdivision compliance. And when they see things that -- 20 where the facts support a criminal violation of the law, a 21 referral is made to the prosecutor with jurisdiction, and 22 then the prosecutor's office must make a determination of 23 whether the facts are sufficient to charge a criminal 24 offense. 25 MS. RUSSELL: Chuck, a question that comes to my 9-18-07 wk 97 1 mind that they might also have is, would there be an 2 affirmative duty for them to look -- 3 MR. KIMBROUGH: Well -- 4 COMMISSIONER LETZ: -- at the contract deeds? I 5 mean -- 6 MR. KIMBROUGH: If the law -- I will tell you that 7 many times, in my experience as a prosecutor, it was from the 8 tax appraisal district staff that we learned of things, that 9 the code enforcement people learned of -- of violations of -- 10 like, for instance, subdivisions that were -- were 11 non-platted, but selling lots. How are you going to stop 12 that? 13 COMMISSIONER LETZ: I see. 14 MR. KIMBROUGH: Unless you learn from some source 15 outside of the courthouse that it's going on. 16 COMMISSIONER WILLIAMS: We set it up so that when 17 the application comes in for a septic permit -- we got one 18 right now going on; we met on it yesterday, where there's an 19 unrecorded plat many years ago, and suddenly this old 20 gentleman who owns a bunch of property out there wants to 21 convey some to his grandson, sell some off, have a new well 22 lot, and the Environmental Health picked up on it. And we 23 had -- we issued a court order a long time ago that when you 24 pick up on that, when you see it, you check for subdivision 25 violations and put a flag up on it. So, we've done that. 9-18-07 wk 98 1 MR. VOELKEL: It's easy to do for plats. I think 2 that's easy for plats, and I think Jon and I are thinking 3 along the same lines here. When you have all deeds, there's 4 no way of checking, unless you just physically read all the 5 deeds. A lot of contract for deeds are not even recorded. 6 COMMISSIONER WILLIAMS: Exactly. 7 MR. VOELKEL: If those -- if that restriction is 8 not in a contract for deed that can be found, and yet an 9 audit comes up and finds this, do you lose your funding 10 because you haven't complied? Or does it get that 11 nitty-gritty? 12 MR. KIMBROUGH: The answer is, when they ask -- 13 when the Water Development Board audit staff comes down and 14 asks you a question, you need to be able to answer that you 15 check it occasionally. It's here in the courthouse, correct? 16 MR. VOELKEL: Mm-hmm, except for the contract for 17 deeds that may not be recorded. 18 MR. KIMBROUGH: Some of them might be. 19 MR. VOELKEL: I don't know how you handle those. 20 MR. KIMBROUGH: But what I'm getting at is, I don't 21 think that you can ignore the enforcement obligations. If 22 that means a retraining of existing staff to look for certain 23 things, particularly law enforcement, I think that goes 24 hand-in-hand with having regulations that mean something. 25 COMMISSIONER LETZ: Okay. 9-18-07 wk 99 1 COMMISSIONER WILLIAMS: I agree. 2 COMMISSIONER LETZ: All right. 3 MR. KIMBROUGH: And then, finally, the -- the last 4 part I want you to circle, it'll be Page 1 of 9. I think 5 it's plat approval, 364.51 and 52 and thereafter. That's 6 where the final engineering report components -- if you're 7 going to put in a public water system as opposed to 8 non-public water system, organized sewage facility as opposed 9 to septic. Okay? 10 COMMISSIONER WILLIAMS: Mm-hmm. 11 MR. KIMBROUGH: In order to get the plat approved, 12 that's what's got to be in the engineering report. Financial 13 guarantees for improvements, 364.54, and then some more plat 14 approval elements at 364.55. That's it on M.S.R., unless you 15 have questions. Now, what is the -- where are you with 16 Mr. Reynolds looking at the conflict issue? How long has it 17 been since he -- 18 COMMISSIONER LETZ: About a week or so. 19 MR. KIMBROUGH: Okay, so it's on the front end. 20 COMMISSIONER LETZ: What we'll do after going 21 through this today -- adopting what they want is pretty 22 simple. We just need to change that one "greater than" to 23 make it sort of apply. Not much of a conflict, so -- and 24 except for those couple of issues, like the lots, number of 25 dwellings and those, they're going to have to say which rule 9-18-07 wk 100 1 applies. 2 MS. RUSSELL: Mm-hmm. 3 MR. KIMBROUGH: That's right. 4 COMMISSIONER LETZ: 'Cause if we -- you know, but 5 it's -- most of what they want to include, we've just been 6 silent on. And if they want to put it in, this gives us the 7 ability to say, "If you're going to put in some sort of a 8 sewage collection system, here's the rules you got to 9 follow." Right now we're silent; it doesn't say you have to 10 do anything. And the reality is, in my time as Commissioner, 11 we've never had one. No one's wanted to put in a sewage 12 collection system. We get a lot of water systems, but no one 13 does sewage collection systems, so it's on-site. Or -- but, 14 you know, down the road with the EDAP plan, there may be 15 some, but that's a nonissue for the County for everywhere 16 except right in that where it may apply. And the water 17 systems, we never had a good set of rules that we could force 18 people to follow on water systems, and now we do, so I don't 19 see that that is a big hindrance. Just a couple of 20 definition-type things that are really -- we have to work 21 out. 22 MR. VOELKEL: So this would be a supplement to the 23 current rules? Is that what you're saying? It wouldn't be 24 in place of the current rules? 25 COMMISSIONER LETZ: No. We'd go in there and -- 9-18-07 wk 101 1 and we would probably go in there -- how I would envision 2 incorporating it, take the part -- like the wastewater part, 3 put that whole language in. If you're 5 acres or less and 4 you're going to do this, this applies, and if you're 5 acres 5 or less -- probably do that "5 acres or less" language, then 6 say if you're that acreage size, this applies for wastewater 7 and this applies for water systems, you know. 8 MR. VOELKEL: Okay. 9 COMMISSIONER LETZ: So, you just want to kind of -- 10 otherwise, it's going to be -- it will make our rules more 11 confusing, but it'd be really confusing for us to say, "No, 12 we're adopting this too," and this is back somewhere no one 13 ever finds it. And I don't think it's hard to incorporate 14 it. 15 MR. KIMBROUGH: The last handout's the fire marshal 16 statute; it's the skinny one. 17 COMMISSIONER LETZ: Okay. 18 MR. KIMBROUGH: And you've heard me talk just a bit 19 about the ability of a county to adopt a county fire code in 20 the unincorporated area. The bracket that pertains to that 21 is under Chapter 233 of the Local Government Code. And Kerr 22 County doesn't have a population of 250,000 or adjacent to a 23 county with that, so you don't have the ability to adopt a 24 county fire code, quote, unquote, at this point. And it 25 would -- and it's -- the attachment, the fire marshal's 9-18-07 wk 102 1 statute, the 352 statute, that's attached, but then I also 2 put the county fire code statute attached to that. It's back 3 behind it, Chapter 233 of the Local Government Code. If you 4 could adopt a county fire code, it would be good for 5 everything except single-family residential. All right? 6 So, the question becomes, all right, you've got, 7 let's say, an idea as a Court to make an informed, 8 forward-thinking decision, after obtaining input from all 9 segments of -- of the county; not just the regulatory side, 10 but the development side, the builders, the lenders, 11 the water and sewer quality experts, as well as counsel. But 12 you're trying to make a decision about subdivision 13 regulations that is forward-thinking and that will last for a 14 long time without needing to be significantly modified or 15 changed. Well, everything that we've been talking about 16 today has to do with what we really call a planning effort, 17 you know, to put rules in place for planning things, but not 18 controlling construction, not controlling what is actually 19 built. The way cities regulate growth for the health and 20 safety of all is through building codes and fire codes, 21 construction codes, things like that. Counties normally 22 cannot do that, except under 233, county fire code, if you 23 have a population bracket or adjacent to a county with 24 250,000 in population, and you don't fit. 25 But there is a statute in Chapter 352 of the Local 9-18-07 wk 103 1 Government Code that allows any county to create a county 2 fire marshal, okay? And the county fire marshal statute has 3 some regulatory power attached to the position. Now, when 4 you look at the middle paragraph and the bottom paragraph, it 5 basically says that the county fire marshal, if you create 6 the ordinance -- create the position, has the ability to 7 inspect, in the interest of safety and fire prevention, any 8 structure, appurtenance, or fixture, or any real property 9 located within 500 feet of same in the county -- across the 10 street, way out in the county, you know, wherever -- to 11 inspect for a fire or life safety hazard. Then that last 12 paragraph talks about, well, what is a fire or life safety 13 hazard? It's really anything that promotes or causes 14 something to burn or blow up. 15 COMMISSIONER BALDWIN: Could be wiring in a house, 16 or -- 17 MR. KIMBROUGH: It's -- right. Presence of a 18 flammable substance, dilapidated or dangerous walls, 19 ceilings, or other structural components, improper electrical 20 components, presence of a dangerous chimney. But that's not 21 it. I mean, you know, it's an open-ended definition, in my 22 judgment. And the statute is 352.016. Any condition that 23 endangers the safety of a structure or its occupants and 24 promotes or causes fire or combustion, including -- meaning 25 the list is non-exclusive, all right? So, if the county fire 9-18-07 wk 104 1 marshal inspects a building or any property around it or 2 structure for one of these fire or life safety hazards, what 3 does he or she do when he finds something that looks to be a 4 safety hazard? Well, the first question to ask is, well, 5 what you are you judging the inspection by? What's the 6 standards by which the inspection is governed? If you've got 7 a county fire code, it's that standard. And, frankly, it's 8 a -- the county fire code statute talks about any recognized 9 state -- state-adopted code. I think the International Fire 10 Code of 2005 is the one, I think, that is most -- most 11 commonly adopted. But if you do not have a county fire code, 12 the statute says that it's -- I think it's any -- any 13 recognized code adopted by the state of Texas, okay? So, 14 you'd have to find out which is the current authorized code 15 adopted by the state of Texas. I've given you one of them 16 that I think works. And that's what the county fire marshal 17 will use to govern the inspection. Just walk in and inspect. 18 The law, if you pass it, allows him to do that. 19 COMMISSIONER LETZ: This is residential? 20 MR. KIMBROUGH: Any building. First page. 21 COMMISSIONER LETZ: Deer blinds? 22 JUDGE TINLEY: Yeah. 23 MR. KIMBROUGH: Any structure, appurtenance, or 24 fixture. Well, you say deer blind. I can think of some of 25 the deer blinds I've been in with my coffee cans that I build 9-18-07 wk 105 1 a fire in, in a drought situation. That might exactly be a 2 problem. But any structure, appurtenance, or fixture, or any 3 real property located within 500 feet of same. So, you go in 4 there and you do the inspection. There's a violation, 5 according to the code that the law authorizes. The fire 6 marshal enters an order to comply and correct. If the owner 7 does not -- owner or occupant fails to correct, it's a Class 8 B misdemeanor, with more stringent penalties that govern 9 repeat offenders. So -- 10 COMMISSIONER LETZ: Is there -- if you do that, is 11 there any proactive requirement that you go out and find 12 these things? 13 MR. KIMBROUGH: Okay -- 14 COMMISSIONER BALDWIN: Requirement? 15 MR. KIMBROUGH: If you pass -- 16 COMMISSIONER LETZ: If you adopt the fire code. 17 MR. KIMBROUGH: No, you can't adopt a fire code. 18 COMMISSIONER LETZ: Well, if we adopt whatever -- 19 MS. RUSSELL: You can have a marshal. 20 COMMISSIONER LETZ: Do a fire marshal. 21 MR. KIMBROUGH: If you adopt the 352 law -- 22 COMMISSIONER LETZ: Right. 23 MR. KIMBROUGH: -- and create one, and you don't do 24 it -- 25 COMMISSIONER LETZ: Well, say we appoint somebody 9-18-07 wk 106 1 who's not paid, 'cause we're cheap around here. And -- 2 MR. KIMBROUGH: Happened in other counties. 3 COMMISSIONER LETZ: Right. And you go out there 4 and there's the -- something not in the city, something 5 that's in Center Point, the -- I don't know, some church in 6 Center Point has a kitchen in the back, and a fire hazard. 7 COMMISSIONER WILLIAMS: They all do. 8 COMMISSIONER LETZ: I know, and we don't do 9 anything. If we don't -- if we adopt the chapter, have a 10 fire marshal, and we don't do anything with it, we're just 11 doing it to get lower insurance rates -- if that applies. I 12 don't know if it applies or not. I mean, is there anything 13 that we're going to have to assume some liability by not 14 doing the inspections and finding things that are flagrantly 15 in violation? 16 COMMISSIONER WILLIAMS: Restaurants come to mind 17 real quick. 18 COMMISSIONER LETZ: Restaurants. Vicki's Burger 19 Barn is almost in flames every noon. 20 COMMISSIONER BALDWIN: Mr. Voelkel here says -- 21 COMMISSIONER WILLIAMS: Smokes up real big. 22 COMMISSIONER BALDWIN: Mr. Voelkel says it will 23 wipe out Ingram. 24 MR. VOELKEL: Whole town. 25 MR. KIMBROUGH: Look at page -- it's the statute 9-18-07 wk 107 1 itself. 2 COMMISSIONER WILLIAMS: Which page? 3 MR. KIMBROUGH: 3 of 5. Section 352.016 carried 4 over into the top of that 3 of 5. Look at (b). In the 5 interest of safety and fire prevention, the fire marshal 6 may -- it says "may" inspect. 7 MS. RUSSELL: May. 8 MR. KIMBROUGH: Okay. Blah, blah, blah, blah, 9 blah, blah, blah... marshal shall inspect a structure if 10 called on to do so. That's the answer. Now -- 11 COMMISSIONER LETZ: So, once you know, you have to 12 inspect it? 13 MR. KIMBROUGH: I would -- you know, the -- you 14 have to see the -- what I contend to be the -- the important 15 part of this statute is revealed when you measure it against 16 the statute that you cannot rely upon, 'cause you don't have 17 the population or geographic location, the fire code statute. 18 In that -- in that situation, if you had 250,000 in 19 population, you could adopt a county fire code, and then they 20 have to get a permit from you to -- the builder has to get a 21 permit from you in order to build the structure. And the 22 permit means that you are involved in reviewing plans and 23 making sure that a fire or life safety hazard doesn't exist, 24 all right? Now, you can't do that -- can't do that here, but 25 if you could do it, that's where the dovetailing or the 9-18-07 wk 108 1 cohesion between subdivision regulations, fire code, septic, 2 overlaid under the umbrella of development rules, mesh all 3 together, okay? To make it a comprehensive plan for the 4 healthy, safe development of the unincorporated area -- 5 unincorporated areas for the benefit of all. All right? 6 Now, there are some places that do not want that. There are 7 some places that are begging for the authority. Whether it 8 happens or doesn't, the comprehensive cohesive effect of the 9 three types of power together depends on where you are and -- 10 and the people. But when you look at the fire marshal 11 statute, you are able -- and I think we cover it right there 12 at the end of the bullet point -- or the summary. This 13 paragraph right here, right before we tell you where the 14 copies are. 352, you can't issue permits. Okay? Your fire 15 marshal goes and makes the inspection. Sometimes he's 16 required to do it; sometimes he's not. He may do it in 17 certain cases; he shall do it in other cases. But you can't 18 issue permits. All you can do is issue violation orders, 19 fix-it orders. And if they don't fix it, then it's a 20 criminal offense. But it's my opinion that if you are 21 interested in making sure that substandard development -- in 22 other words, dangerous structures -- are not built, to where 23 you find out about it because the fire engine showed up, this 24 is how to do it. You know, it boils down to whether a county 25 wants a cohesive effect of the regulatory powers that these 9-18-07 wk 109 1 various statutory issues gives you. I do not know at this 2 point, but I didn't want to leave today without mentioning it 3 to you. 4 COMMISSIONER BALDWIN: I'm glad you did. 5 MR. KIMBROUGH: The fact that you don't have 250 -- 6 COMMISSIONER LETZ: I've got one more question. 7 MR. KIMBROUGH: Sure. 8 COMMISSIONER LETZ: And then I'll have another one, 9 but one more right now. 10 COMMISSIONER BALDWIN: Y'all pack up when he gets 11 through with this one. Run. 12 COMMISSIONER LETZ: Say you have a situation where 13 you have a 30-foot easement going to a tract of land that's 14 1,000 acres; they want to put a development in. 15 MR. KIMBROUGH: A 30-foot easement -- 16 COMMISSIONER LETZ: Going across one or two 17 properties; doesn't make any difference. 30-foot easement 18 going into a tract of land where development's going on, but 19 the developer wants to put in 20 lots. What authority does 20 the County have to make the developer do something on the 21 easement, which he doesn't own? He has a right to use the 22 easement, but it's not his easement; he doesn't own the 23 property, can't do anything. 24 COMMISSIONER BALDWIN: Let me ask you something. 25 Do you already know the answer? 9-18-07 wk 110 1 COMMISSIONER LETZ: Hmm-mm, but I've got two of 2 them in my precinct pending right now. 3 JUDGE TINLEY: Corollary to that question is -- 4 MR. VOELKEL: You had some in your precinct too -- 5 yeah, in yours too. 6 JUDGE TINLEY: If it doesn't -- if the width of the 7 easement -- assuming you have the right to -- to require him 8 to improve that easement if it doesn't meet with the required 9 right-of-way width, can you just reject his application 10 for -- 11 MR. KIMBROUGH: You may be able to do so under 12 Subchapter E; health, safety, welfare, morals. 13 COMMISSIONER LETZ: But he doesn't take -- 14 MR. KIMBROUGH: I'm not prepared to give you an 15 opinion on that till I see the papers. I don't know that I 16 can answer it. But I will tell you that the first thing that 17 came to mind is there are plat exemptions under 232.0015 that 18 might apply. Does he have to plat it? 19 COMMISSIONER LETZ: Yes. Because once he gets in 20 there, if he has to build a road and give access -- 21 generally, it's almost impossible to do a subdivision in this 22 county where you're not going to have to build a road, so 23 almost any division requires platting. Unless -- the only 24 time, really, that they're exempt -- I mean, occasionally 25 there's someone going to do something on a county road, 9-18-07 wk 111 1 selling off 10-acre lots, but that's pretty rare at this 2 point in the county, so almost everything gets platted. 3 MR. KIMBROUGH: Well -- 4 COMMISSIONER LETZ: More and more of them we're 5 coming up with -- and, actually, there's a whole bunch out in 6 the Y.O. Ranchland, far west Kerr County, under this 7 scenario, and they were just done. I mean -- 8 MR. VOELKEL: And does it make any difference if 9 it's just an easement or if it's an existing county road 10 that's substandard as far as width? 11 COMMISSIONER LETZ: Right. Yeah, it can be either 12 way. 13 JUDGE TINLEY: Yeah, that's another good question. 14 MR. VOELKEL: Can that also -- 15 COMMISSIONER LETZ: These are the toughest 16 questions we have as to what we can do. As to -- and what 17 triggers it, if they're going to put in three lots or eight 18 lots or 100 lots, where do you draw the line that something 19 has to be done? The -- I'll tell you, the County Attorney's 20 opinion has been -- or is at the moment, just verbally, is 21 that, you know, if it's -- if the subdivision is at a point 22 that it's meeting our minimum road standards, which I think 23 is less than 8 lots -- 8 or 10; if it's less than that, they 24 can do it, but if they start getting something they're going 25 to need to upgrade a road beyond -- do a higher density, 9-18-07 wk 112 1 they've got to figure out a way to get more access or better 2 access. 3 MR. KIMBROUGH: Well, the -- I've gotten to where I 4 don't want to give up my old book. The book really did 5 become -- I mean, the new rules that became effective 6 September the 1st aren't in here, but you can see I use it a 7 lot, 'cause I got it dog-eared pretty good. But the -- 8 Subchapter A talks about reasonable road construction 9 standards. 10 COMMISSIONER LETZ: But our standards are -- I 11 mean, it's not an issue on standards. He doesn't own the 12 property; he can't -- I mean, especially if it's a county 13 road, it's really -- it's our responsibility. 14 MR. VOELKEL: Off limits for him. 15 COMMISSIONER LETZ: What can he do? And we have a 16 lot of county easements that are 25-foot, one-lane little 17 roads. 18 MR. VOELKEL: Fence to fence, basically. 19 COMMISSIONER WILLIAMS: Yeah, we do. 20 MR. KIMBROUGH: The lot sizes are what? 21 COMMISSIONER LETZ: They'll be over 5 acres. I 22 mean -- 23 MR. KIMBROUGH: But less than 10? 24 COMMISSIONER LETZ: Most of these are probably over 25 10 acres, in reality. These are large -- most of these 9-18-07 wk 113 1 probably tend to be 20- to 50-acre tracts, somewhere in that 2 area. 3 MR. KIMBROUGH: Well, the exemption specifically 4 speaks to issues like that, do they not? 5 COMMISSIONER LETZ: Not if you're putting in a 6 road. If they have to put in a road to get to those lots, 7 it's got to get platted. 8 MR. KIMBROUGH: Why don't we talk after we go off 9 the record? 10 COMMISSIONER BALDWIN: Sure. 11 MR. VOELKEL: I like the idea. 12 MR. KIMBROUGH: I'd say that would be the best way. 13 JUDGE TINLEY: I bet Kathy would like that, too. 14 Wouldn't you, Kathy? 15 COMMISSIONER BALDWIN: Want to go to the bar? 16 MR. KIMBROUGH: What -- 17 COMMISSIONER LETZ: That's my last question. 18 JUDGE TINLEY: Good. 19 MR. VOELKEL: That's a big one, too. 20 JUDGE TINLEY: Okay. Are we done here with the 21 session? 22 COMMISSIONER BALDWIN: Yes, sir. 23 JUDGE TINLEY: Okay, let's fold it up. 24 (Commissioners Court workshop adjourned at 4:02 p.m.) 25 - - - - - - - - - - 9-18-07 wk 114 1 STATE OF TEXAS | 2 COUNTY OF KERR | 3 The above and foregoing is a true and complete 4 transcription of my stenotype notes taken in my capacity as 5 County Clerk of the Commissioners Court of Kerr County, 6 Texas, at the time and place heretofore set forth. 7 DATED at Kerrville, Texas, this 21st day of September, 8 2007. 9 10 JANNETT PIEPER, Kerr County Clerk 11 BY: _________________________________ Kathy Banik, Deputy County Clerk 12 Certified Shorthand Reporter 13 14 15 16 17 18 19 20 21 22 23 24 25 9-18-07 wk