1 1 2 3 KERR COUNTY COMMISSIONERS' COURT 4 Special Session 5 Tuesday, October 18, 2022 6 9:00 a.m. 7 Commissioners' Courtroom 8 Kerr County Courthouse 9 Kerrville, Texas 78028 10 11 12 13 14 15 16 17 18 19 20 21 22 23 PRESENT: ROB KELLY, Kerr County Judge HARLEY BELEW, Commissioner Precinct 1 24 T. BECK GIPSON, Commissioner Precinct 2 DON HARRIS, Commissioner Precinct 4 25 2 1 I-N-D-E-X 2 NO. PAGE 3 2.1 Discussion and Potential Action. Discussion 3 and potential action shall occur regarding: 4 (a) pursuant to Chapter 2007 of the Texas Government Code and other authority, the 5 approval of a takings impact assessment regarding the proposed Subdivision and 6 Manufactured Home Rental Community Regulations for Kerr County, Texas ("Regulations"), (b) 7 the scheduling of and related notice for future public meeting of the Commissioners' 8 Court to consider approval and enactment of the Regulations and (c) all related matters. 9 *** Adjournment. 36 10 *** Reporter's Certificate. 37 11 * * * * * * 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 JUDGE KELLY: It is Tuesday, October the 2 18th, 2022, 9 o'clock in the morning, and Kerr County 3 Commissioners' Court is now in session. I call the 4 meeting to order. And we're going to go into Executive 5 Session at this time. It is 9:02. 6 (Executive Session.) 7 JUDGE KELLY: Okay. Come back to order. It 8 is 10:18, and we've come out of Executive Session. And 9 the next item on the agenda is 2.1 discussion and 10 potential action. Discussion and potential action shall 11 occur regarding: Pursuant to Chapter 2007 of the Texas 12 Government Code and other authority, for the approval of 13 a takings impact assessment, or TIA as we call it, 14 regarding the proposed Subdivision and Manufactured Home 15 Rental Community Regulations for Kerr County, and the 16 scheduling of and related notice for future public 17 meeting of the Commissioners' Court to consider approval 18 and enactment of the regulations and all related 19 matters. 20 So with that, where to begin. 21 MR. KIMBROUGH: May it please the Court. 22 JUDGE KELLY: Yes, sir. 23 MR. KIMBROUGH: I'm Chuck Kimbrough. I 24 represent the County, along with Heather Stebbins, 25 regarding this matter. It is our understanding that 4 1 some residents would like to take up a matter regarding 2 the proposed draft regulations as a component of the 3 "all related matters" part of your agenda item. And I 4 was thinking, would that be the appropriate thing to 5 hear from those folks at this point before we get into 6 the TIA matter? 7 JUDGE KELLY: It would, but where are they? 8 COMMISSIONER HARRIS: They're not out there. 9 JUDGE KELLY: I don't know where they went. 10 MR. KIMBROUGH: There's nobody out there. 11 I visited with them ahead of time. You want 12 me to for the record talk about the issue or not? 13 JUDGE KELLY: No, let's talk about the issue 14 because we need to have this on the record. They'll 15 have a transcript at some point and we'll be able to 16 refer back to exactly what we have discussed. 17 MR. KIMBROUGH: Hang on just a moment. 18 (Off the record.) 19 MR. KIMBROUGH: Yeah, here it is. Here it 20 is. At the public hearing, a group of concerned 21 residents, I've forgotten what the group's name was, but 22 Miss Janet Buchert? 23 JUDGE KELLY: It's the Center Point group. 24 We -- we know who they are. 25 MR. KIMBROUGH: All right. Miss Buchert. 5 1 Am I pronouncing her last name correctly? 2 JUDGE KELLY: I think so. I don't know. 3 MRS. STEBBINS: I don't know. 4 MR. KIMBROUGH: Janet is her first name. 5 Wrote a letter and then at the public hearing presented 6 the letter and made comments. And regarding one of the 7 issues they had with the public hearing draft pertaining 8 to a request by their group to modify one of the 9 exceptions that was -- that where in the water 10 availability portion of the regulations. The County did 11 that in the proposed enactment draft and made sure that 12 even if a subdivision qualified for an exception under 13 the water availability requirements, nevertheless that 14 subdivision would still have to comply with the 15 Headwaters Groundwater Conservation District active 16 rules and regulations. 17 Another one of the issues that she spoke of 18 at the public hearing had to do with their concern about 19 the portion of the public hearing draft wherein the 20 Model Subdivision Rules were recited did not say 21 anything about compliance with the Headwaters 22 Groundwater Conservation District active rules and 23 regulations. And that that matter was -- was not 24 adjusted by the Commissioners' Court in its active -- in 25 a proposed for enactment draft because of the coverage 6 1 of protection existing in the regulations on that point. 2 Should I go further to explain the Court's 3 position on that? 4 JUDGE KELLY: I think we need to clarify the 5 Court's position. And -- and the concern, as I 6 understand it, and I think you've accurately described 7 them, but number one, they want to make sure that the 8 water availability studies are required for subdivisions 9 under the model subdivision rules portion of our 10 regulations. And we -- we want to clarify that if they 11 are. And we wanted to make sure that even the 12 subdivisions under the model rules, same as ours, are 13 required to comply with whatever the regulations are for 14 Headwaters, which they are. 15 And by -- you can turn to Page 21 of the 16 rules, provides that everything in our rules from 17 Section 1 through Section 9, which are all the rules, 18 the entire thing, the entire packet, does it say -- it's 19 in Section 5.01(f)(a)(15), we believe requires that. 20 And we've discussed it in Executive Session with our 21 lawyers, both the County Attorney as well as our outside 22 counsel, and we feel like the rules do cover that. 23 The group that wanted to change the wording 24 felt like that it might not be adequately explained or 25 clarified that they apply. But it is our intent that 7 1 the Headwaters regulations have to be complied with 2 whether you're a subdivision under the model rules or 3 our regular regulations. And I think that's what we're 4 saying, isn't it? 5 MR. KIMBROUGH: All right. I could be even 6 more specific. 7 JUDGE KELLY: Okay. 8 MR. KIMBROUGH: All right. 9 JUDGE KELLY: So the point that I'm trying 10 to make is we feel like their concerns are satisfied in 11 the existing draft of the rules. 12 MR. KIMBROUGH: Yes, sir. 13 JUDGE KELLY: But we want to -- if -- in the 14 interest of cooperation, we're trying to make sure that 15 there's absolutely no doubt that they apply. 16 COMMISSIONER HARRIS: We're both heading to 17 the same goal. 18 JUDGE KELLY: That's right. 19 MR. KIMBROUGH: There are two missions as I 20 understand it that you're speaking to now. That group's 21 desire, and they've been very respectful in their 22 comments to me, and I thanked them for it. And -- and 23 courteous and cordial. Number one, as I understand it, 24 their concern is that the Model Subdivision Rules -- 25 let me back up. 8 1 Kerr County is what we call a Model 2 Subdivision Rules County that is required under law to 3 make and enforce for subdivision development in the 4 unincorporated area the model subdivision rules 5 promulgated by the State of Texas. Because Kerr County 6 borrowed money from the Texas Water Development Board 7 under the Distressed Areas Program of State Law in the 8 Water Development Board for the Wastewater Project -- 9 I've forgotten what it's called. What's the name of the 10 wastewater project? 11 JUDGE KELLY: East Kerr County/Center Point 12 Wastewater Line. 13 MR. KIMBROUGH: All right. And when a 14 governmental entity, local government, borrows money or 15 obtains a grant of funds from the Water Development 16 Board for a water or wastewater or a flood management 17 program, there is a requirement under the law, as I 18 understand it, in the state statutes and in the board's 19 rules that the County must; not may, but must in order 20 to get the money make, enact, implement and enforce the 21 Model Subdivision Rules. 22 And periodically, representatives of the 23 Water Development Board will audit the County to make 24 sure that the implementation or that the enactment, the 25 implementation and enforcement of the model subdivision 9 1 rules is occurring, because that is a condition, as I 2 understand it, of the loan agreement. So -- 3 JUDGE KELLY: Which -- and we have complied. 4 MR. KIMBROUGH: It is a highly significant 5 priority matter to be aware of when you are a Model 6 Subdivision Rules County. So in these proposed 7 regulations, the model subdivision rules apply to 8 certain types of configured and proposed subdivision 9 development in Kerr County, Texas. They are what we 10 phrase in this area of practice, what we call the 11 smaller lot subdivisions where at least -- where there 12 are at least two lots, five acres or less, presumed to 13 be used for residential purposes. Those are the 14 subdivision configuration that the models will speak to. 15 However, in your area of practice and 16 procedure there are other subdivision configurations 17 that would not qualify for model subdivision rule 18 treatment or governance. So it begs the question for 19 years what is the County doing for the larger lot 20 subdivisions to protect public health, safety, and 21 welfare, particularly regarding groundwater, surface 22 water and wastewater and drainage issues? 23 It was the charge from the Court to staff 24 and counsel to come up with some ideas and some options 25 by which to protect health, safety, and welfare for the 10 1 whole of the County in the unincorporated area, not -- 2 not just the specific provisions that the County was 3 required to do because of the model subdivision rule 4 obligation. This draft, this active draft does that 5 as -- as you have endorsed and concurred. Correct? 6 JUDGE KELLY: Yeah. Correct. 7 MR. KIMBROUGH: It has been said from time 8 to time a step up in regulatory authority for this 9 Commissioners' Court and the -- and the staff of the 10 County because of one simple overriding and frankly 11 governing principal, to do something for health, safety, 12 and welfare, particularly in the area, groundwater, 13 surface water, drainage and other health, safety, and 14 welfare issues. 15 So the Court in its proposed for enactment 16 draft dealt with not just model subdivision rule 17 governance issues for that protection for the people, 18 but also in other parts of the draft. And it's the 19 other parts of the draft that I think -- that I think 20 the folks that are asking for revision have not placed 21 enough emphasis on. Okay. And that would be in Section 22 5.08 of the active draft. 23 JUDGE KELLY: I think that's Section 5.08 24 that starts on Page 37 -- 25 MR. KIMBROUGH: Yes, sir. 11 1 JUDGE KELLY: -- and goes for several pages 2 here. 3 MR. KIMBROUGH: All right. So when you turn 4 to face page 38 there are several pieces of authority 5 there that we have been discussing -- we -- when I say 6 "we," Mr. Hastings' office, Miss Stebbins' office, and 7 my office -- we've been discussing with you for a long 8 while now to the point where most of you on the dies 9 (phonetic) are able to rattle off the statute numbers 10 and the regulation numbers with pretty good frequency. 11 But we know that because the County is in a 12 priority groundwater management area that for 13 groundwater there's a special water code statute, 35.019 14 of the Water Code, which allows the County to make its 15 own water availability regulations as conditions for 16 plat approval regarding subdivision development. That's 17 one area of authority. It doesn't say exactly what you 18 can do, it gives you the ability to create. To create 19 your own requirements given the local and factual 20 circumstances. 21 Next, there is a state statute out there 22 that helps the County greatly. It's Section 232.0032 of 23 the Local Government Code, which is available to any 24 County in the State which chooses to adopt its 25 regulatory power. By these regulations you do so. 12 1 232.0032 is a groundwater certification requirement 2 which states in so many words that if groundwater 3 appears to be the source for water, the human 4 consumption of water for the subdivision, then the 5 developers Texas licensed engineer or geoscientist must 6 perform a groundwater availability analysis and certify 7 that sufficient groundwater is under that land to 8 service the subdivision according to the methodology for 9 30 years. 10 The statute itself does not provide the 11 exact methodology to perform the study, but refers -- 12 the statutory language refers to the TCEQ to promulgate 13 rules -- 14 JUDGE KELLY: And TCEQ, so the public 15 understands, is TCEQ. 16 MR. KIMBROUGH: Yes. 17 JUDGE KELLY: The Texas Commission on 18 Environmental Quality. 19 MR. KIMBROUGH: Yes. That commission is 20 instructed to pass regulations to define the methodology 21 about how to do the groundwater study. TCEQ has done 22 that. And on Page 38, you'll see right after the 23 reference in paragraph -- subparagraph C, 232.0032 of 24 the Local Government Code, another site. To wit: 30 25 TAC, that means Texas Administrative Code. Those are -- 13 1 that's the -- those are the books where TCEQ regulations 2 get passed and promulgated. 30 TAC Sections 230.1 3 through 230.11, where the administrative regulations 4 that the commission on environmental quality enacted in 5 response to the legislature's direct orders in the 6 statute to make some rules to show them how to do the 7 groundwater study. 8 TAC 230.1 through 230.11 are the rules that 9 show the developer how to do the 30-year groundwater 10 study that the statute 230.0032 requires since you are 11 approving adoption of it. 12 JUDGE KELLY: And that applies to both the 13 model subdivision rules subdivisions as well as the 14 larger? 15 MR. KIMBROUGH: Yes, sir. You are saying on 16 this -- actually, turn the page to 39. The groundwater 17 sufficiency disclosure statement under the big 18 Paragraph A, 232.0032, that spells out what the statute 19 says. It spells out the methodology that the 20 legislature told TCEQ to pass and the administrative 21 regulation to tell them how to do the study and all the 22 other requirements of the groundwater study. Every 23 subdivision in Kerr County that is not exempt under your 24 regulations must do the 232.0032 30-year groundwater 25 study. End of statement. 14 1 I'm going to get to the Model Subdivision 2 Rules in just a moment. 3 JUDGE KELLY: Okay. 4 MR. KIMBROUGH: Any subdivision. That is a 5 plain and clear reading of your proposed regulation. 6 Then you understand? 7 JUDGE KELLY: Yes. 8 MR. KIMBROUGH: All right. Now go back to 9 Page 38 where we were just talking about the law. Also 10 in that Subparagraph C, you'll see a reference to 11 Subchapter E of Chapter 232 and Subchapter C of Chapter 12 232. Okay? C is the subchapter that applies to EDAP 13 counties who have borrowed money from the Water 14 Development Board. 15 JUDGE KELLY: And EDAP is Economic -- 16 MR. KIMBROUGH: Economically Distressed Area 17 Program of the Water Development Board. That's 18 Subchapter C. You're a Subchapter C County and a 19 Subchapter A County and a Subchapter E County. I don't 20 want to get into all that explanation again, but C is 21 where the EDAP money comes in that you borrowed from the 22 Board. 23 What does that say in Subchapter C? You 24 must; not may, you must enact, implement, and enforce 25 the Model Subdivision Rules because you borrowed the 15 1 money from the Water Development Board. All right? 2 We'll get to the Model Subdivision Rules in a moment. 3 But Subchapter E is mentioned in that 4 paragraph. Subchapter E is available to any County in 5 the State that wants to adopt one or more of the 6 specific provisions in Subchapter E. One of the 7 provisions is called 232.101. And it says that a County 8 adopting 232.101 may make regulations regarding plats 9 and subdivisions of land to protect the public health, 10 safety, and welfare, so long as your regulations do not 11 violate a list of prohibited topics, like zoning for 12 instance. 13 Your water regulations are important under 14 the authority that you have adopted under 232.101 15 because there can be nothing in these days and times 16 more important than health, safety, and welfare to the 17 protection of scarce ground and surface water resources. 18 Do you agree? 19 JUDGE KELLY: We do. 20 MR. KIMBROUGH: Okay. So that's -- that's 21 another support of authority for your water availability 22 requirements. But then keep reading. Do you see the 23 set of administrative regulations cited there, 31 TAC 24 Sections 364.1 through .72? 25 JUDGE KELLY: Yes. 16 1 MR. KIMBROUGH: Those are the model 2 Subdivision Regulations that you are required to enact, 3 implement, and enforce as a Subchapter C County because 4 of the money that you borrowed from the Texas Water 5 Development Board for the Wastewater Project. 6 Now, is there an argument -- a correct 7 argument that the model subdivision rules do not require 8 the groundwater availability study? There is no such 9 correct argument. That's the most direct way that I can 10 say it. Absolutely, the model subdivision rules require 11 the 30-year groundwater availability statute. Okay? 12 Now, make sure you keep your finger on 13 Page 38. And now turn to -- it's up ahead in the model 14 subdivision rules, which are typed in italics to let 15 everybody know quickly where they are. It was 16 Mr. Hastings wisdom on that point. 17 MR. HASTINGS: Commissioner Letz. 18 MR. KIMBROUGH: And they start on Page 17. 19 But just flip through the -- past the definitions until 20 you get to around Page 21 that says water facilities 21 development. And I'm not going to talk about the 22 public -- the public water part, but look at page 22. 23 These are the model subdivision rules; not a public 24 water system. Individual water wells or other 25 non-public water systems, when they are proposed for the 17 1 supply of drinking water. The subdivider shall have 2 prepared and provide a copy of the groundwater 3 availability study that complies with the requirements 4 of -- look at that number -- 30 TAC, Section 230.1 to 5 230.11 for individual water supply wells, etc., 6 certifying that the long term, 30-year quantity and 7 quality of available groundwater. 8 All right. Now go back to page 38. That's 9 the same 30 TAC Section 230.1 to 230.11 that all of your 10 subdivisions have to follow for the groundwater study -- 11 JUDGE KELLY: Unless they're -- 12 MR. KIMBROUGH: -- under 232.0032. See? 13 You've got double bagging there, using a grocery store 14 analogy, do you not? There's no question, at least in 15 my mind, and there should not be in your mind. 16 Your plain old regulations require the 17 30-year groundwater study under that specific 18 methodology of the 30 TAC Sections 230.1, et seq. The 19 model subdivision rules require the same groundwater 20 availability study. End of statement. Questions? Do 21 you understand? 22 JUDGE KELLY: That's what we wanted. 23 MR. KIMBROUGH: All right. Now go back to 24 38. I'm sorry, Page 39. We've already talked about the 25 big paragraph, 232.0032, the 30-year groundwater study. 18 1 Double bagging on that. 2 I want to go down to model subdivision rule 3 compliance D. Now clearly, you had the foresight to say 4 under water availability regulations that hey, if you're 5 a model subdivision rule governed subdivision, you gotta 6 comply with the model rules. So the model rules for 7 groundwater, it means you have to do the 30-year study 8 that we've been talking about at length here. 9 Well, can you make -- can you enact 10 mandatory regulations in the Model Subdivision Rules 11 that are extra than the specific topics that the model 12 subdivision rule or rules spell out? And the answer is 13 yes, you can. 14 I don't have the time to show you exactly in 15 the model rules where they are, but there are two 16 specific model rule regs that are on the books today. 17 One is the model rules are superior and control over any 18 other County regulation which would conflict with that 19 model rule provision. The model rules are superior. 20 They trump -- they -- they are superior to any other 21 conflicting County reg. All right? 22 Also, there is a specific regulation in the 23 model rules that states plainly the County can enact 24 additional regulations in addition to the model rules in 25 terms of plat procedure and requirements and other 19 1 health, safety, and welfare issues so long as you don't 2 violate or conflict the model subdivision rule. 3 You have done so. You have done so. It is 4 at page 21, face Page 21, bottom Page 21. The last part 5 of the section preceding 5.01(f)(3)(b). So it'll be the 6 last sub item, subparagraph of 5.01(f)(3)(a). Scope of 7 standards. 15 is the number I want you to focus on now. 8 It reads, The plat and all supporting documents 9 submitted for plat approval shall comply with: 10 A, the standards including methodology of 11 division two in the requirements, including methodology 12 of division three, and then it goes on and it cites 31 13 TAC Chapter 364, Subchapter B. Those are the model 14 rules. That's in the model rules. You gotta comply 15 with the methodology in those two subparts. 16 Second B, the other requirements including 17 methodology, plat sufficiency, and approval as described 18 in these model rules. Okay. That's in there, too. 19 But it's C that I want you to look at. And 20 C is the addition of the other County regs that each 21 model rule subdivision has to follow. What are we 22 talking about? The other requirements, including 23 methodology, described in Sections 1 through 9 of the 24 regulations, which do not conflict with or are not 25 superseded by these model rules. 20 1 JUDGE KELLY: And just a clarification. 2 Sections 1 through 9 -- 3 MR. KIMBROUGH: Section 1 -- 4 JUDGE KELLY: -- are the entire rules and 5 regulation? 6 MR. KIMBROUGH: Yeah. It's the whole book. 7 It's the whole book before the certificate of adoption, 8 which includes the water availability requirements in 9 5.08. 10 JUDGE KELLY: As well as the compliance with 11 Headwaters Groundwater conservation regulations. 12 MR. KIMBROUGH: Yes, sir. Yes, sir. And 13 that's the last issue. So -- so your water availability 14 requirements in 5.08 also say that whatever happens, the 15 developer must comply with the active Headwaters 16 Groundwater Conservation District active rules and regs. 17 JUDGE KELLY: That applies to the model 18 rules as well? 19 MR. KIMBROUGH: It does. It does. 20 Now, I would say it would apply to model 21 rules, even if you don't read the extra add on to the 22 model rules that the model rules allows. So the 23 question becomes is there a conflict? Is there a 24 conflict between a rule that says everybody has -- if 25 you're going to have water wells out there and related 21 1 facilities, you have to follow the Headwaters rules, 2 their active regulations. Is there a conflict between 3 that provision of regulation, that local provision of 4 regulation, and the Model Subdivision Rules? I fail to 5 see it. There is not. There is not, so it appears, as 6 to the three points that I recall being raised by the 7 group, Janet Buchert's group. 8 And Commissioner-Elect, Mr. Paces, also 9 wrote a letter advocating an issue regarding this matter 10 for a change. As to the exception paragraphs regarding 11 water availability requirements to certain subdivisions. 12 You -- you addressed that after at the public hearing 13 about making sure that even if the subdivision is exempt 14 or excepted from water availability requirements, they 15 still have to follow the model rules -- excuse me, they 16 still have to follow the Headwaters requirements. 17 Right. 18 Second issue. Do the model rules require a 19 30-year groundwater study? I hope we've knocked that 20 out of the park. Yes, yes, yes, it does. They do. 21 And finally, does the extra add-on language 22 to the model rules which covers Sections 1 through 9 as 23 compliance issues conflict with the MSRs, the model 24 rules? It does not. There's no conflict. 25 So we've been using the idea of the grocery 22 1 store concept of double bagging. I mean the -- the 2 formal way to say it is, the inner-connectivity or the 3 interim connection of protection is there. For all 4 subdivisions which are not exempt under your water 5 availability requirements, connecting in to the Model 6 Subdivision Rules in the manner stated. The question 7 becomes what do you want to do at this point regarding 8 the active draft, if anything? 9 JUDGE KELLY: Well, I don't want to 10 adversely affect the timeline to get these rules 11 enacted. 12 MR. KIMBROUGH: I understand. 13 JUDGE KELLY: That's my primary concern. 14 COMMISSIONER GIPSON: I suggest that a 15 clarification would be added to this that I'd like to 16 recite and discuss. 17 MR. KIMBROUGH: Okay. 18 JUDGE KELLY: Page 21? 19 MR. KIMBROUGH: Yes. Let's -- let's take a 20 look at the add-on language on page 21. 21 JUDGE KELLY: That would be Section 22 5.01.F(3.A) -- 23 MR. KIMBROUGH: Right. 24 JUDGE KELLY: -- and subparagraph 15. 25 MR. KIMBROUGH: After you see 31 TAC 23 1 Section 364.16, the final phrase of that sentence reads, 2 The other requirements (including methodology) described 3 in Sections 109 of these regulations, which do not 4 conflict with or are not superseded by these model 5 rules. So that means they had to do all the other 6 stuff. 7 Commissioner, you're suggesting perhaps a 8 parenthetical reference after 1 through 9 of these 9 regulations to say parenthetically, including without 10 limitation the water availability requirements of 11 Section 5.08 of these regulations. Does that sound 12 about right? 13 COMMISSIONER GIPSON: Yes, sir. 14 MR. KIMBROUGH: Well -- 15 JUDGE KELLY: Including without limitations 16 what? Say it again? 17 MR. KIMBROUGH: Let me make sure that I've 18 got the -- the -- 19 COMMISSIONER GIPSON: The rest of the Model 20 Subdivision Rules. Application of the Model Subdivision 21 Rules. 22 MR. KIMBROUGH: Hold on just a second. 23 Now, state what you just said again. I 24 didn't hear you. 25 COMMISSIONER GIPSON: You have it written 24 1 down; I don't. 2 MR. KIMBROUGH: Oh, okay. All right. I 3 just want to make sure I had 508, correct. 4 COMMISSIONER GIPSON: Sure. Yes. 5 MR. KIMBROUGH: All right. 5.08 are your 6 water availability requirements. All right. And so the 7 insert point if you were going to make it would be after 8 you see where it says one through -- Roman Numeral I 9 through Roman Numeral IX of these regulations, and then 10 the next word is "which." In that gap between the "s" 11 of regulations and the "w" in which, the "w" in the word 12 which, that's the insert point. Are you suggesting it 13 say, parenthesis, including without limitation the water 14 availability requirements -- 15 JUDGE KELLY: 5.08. 16 MR. KIMBROUGH: -- stated in Section 5.08 of 17 these regulations, close parenthesis. All right. So -- 18 so the question becomes, is that a substantive change? 19 It is not. 20 JUDGE KELLY: We've already got it. 21 MR. KIMBROUGH: That's -- 22 JUDGE KELLY: This is belts and suspenders. 23 COMMISSIONER GIPSON: I recommend this -- 24 MR. KIMBROUGH: Triple -- triple bagging. 25 Again, I would -- I would argue that once you say Roman 25 1 Numeral I through IX, it's the whole booklet. This is 2 just a marker, a sign post, to make sure everybody 3 knows. 4 Now, there is one thing that we cannot solve 5 and that is that do any of your water availability 6 requirements conflict with the model rules or conflict 7 with Headwaters? I would argue clearly they do not. 8 They do not. 9 JUDGE KELLY: We don't want them to. 10 MR. KIMBROUGH: No. But the best -- the 11 best opinion I can give you is what I think and I -- I 12 think clearly they do not. 13 JUDGE KELLY: But the gist of what we're 14 doing here is attempting to accommodate the concerns 15 expressed by the Center Point group and make sure that 16 the water availability study requirements apply to the 17 MSR subdivision -- 18 MR. KIMBROUGH: You've done it. We showed 19 you. 20 JUDGE KELLY: And secondly, that every -- 21 all the subdivisions are subject to compliance with 22 Headwaters regulations. 23 MR. KIMBROUGH: It also assists a layman 24 reader to determine the end of that legalese paragraph 25 that yes, they do hit this also. And I think that's 26 1 important. Because layman have to read this or have to 2 deal with it or could question it otherwise. So I think 3 that would be helpful. 4 COMMISSIONER HARRIS: Their goals are the 5 same as ours. 6 MR. KIMBROUGH: Well, you must -- to add the 7 parenthetical insert is explanatory for clarification 8 purposes. It is not a substantive departure from the 9 spirit or the actual language that exists on the paper 10 at this point. But if that addition is going to be 11 made, you probably should take a motion and a second and 12 a recorded vote to put it in before taking the impact 13 analysis, which means right now. I mean, just so that I 14 can give you my opinions. 15 JUDGE KELLY: So move. 16 COMMISSIONER GIPSON: Second. 17 JUDGE KELLY: We've got a motion and a 18 second. A record vote. In favor of this motion to add 19 the explanatory language -- 20 MR. KIMBROUGH: To the draft. 21 JUDGE KELLY: -- to the draft. 22 MR. KIMBROUGH: So you're not voting on any 23 regulation today. You're just adding something to the 24 regulation draft. 25 JUDGE KELLY: To the draft. 27 1 MR. KIMBROUGH. Yeah, right. 2 JUDGE KELLY: Okay. 3 MR. KIMBROUGH: To the draft. 4 JUDGE KELLY: So Precinct 1? 5 COMMISSIONER BELEW: Yes. 6 JUDGE KELLY: Precinct 2? 7 COMMISSIONER GIPSON: Yes. 8 JUDGE KELLY: Precinct 4? 9 COMMISSIONER HARRIS: Yes. 10 JUDGE KELLY: And I vote yes. Unanimous. 11 MR. KIMBROUGH: Okay. So that when we look 12 at the takings impact assessment, with that addition, 13 your question should be -- or your conclusion so if the 14 Court's -- if the TIA is approved, is there any need to 15 start over with the TIA? I'm going to argue to you 16 later on there's not. Because it's not a substantive 17 provision. It's an explanatory note for clarity. 18 And -- 19 JUDGE KELLY: Well, with that let's move on 20 to the takings impact assessment. 21 MR. KIMBROUGH: Okay. The statute procedure 22 that you've chosen to follow is Chapter 2007 of the 23 Texas Government Code. The proposed document is in 24 front of you. It's called the takings impact assessment 25 regarding proposed subdivision and manufactured home 28 1 rental community regulations for Kerr County. If 2 approved, this is the document that would constitute 3 your TIA, we call it an acronym, takings impact 4 assessment, TIA, under Chapter 2007. 5 The statute empowered the Texas Attorney 6 General's Office to promulgate guidelines by which to 7 analyze takings impact assessments applied statewide 8 that the AG's Office did some years ago. They 9 promulgated a seven-question analysis. But if you get 10 to the answer on question three and the answer is, "No," 11 under the guidelines you're not required to answer 12 questions four through seven. And in my opinion, our 13 opinion of our law firm, that is the situation today. 14 I'll analyze it in just a moment, but based 15 on the facts and the method of analysis it's our 16 judgment that the County is not required to go any 17 farther than number three. And number three concludes 18 in the language of the statute, page 9 or 10, if there's 19 a no private real property impact determination that's 20 being made by the Court. 21 So you start with the idea that this 22 document is approved, you're also making a scheduling 23 decision today. If the TIA is approved by a motion and 24 a second and a recorded vote, then it's executed by the 25 Court members and the County Clerk, or her deputy, and 29 1 it's given to the Clerk to be placed in the official 2 minutes of the Court. A copy of the TIA is placed in 3 the County Judge's office for public inspection and 4 copying. And then a special -- a special notice has to 5 go into the newspaper that -- in line with the statute 6 itself summarizes the proposed regulations and 7 summarizes the findings in the TIA. 8 And the other thing you do in that takings 9 impact assessment notice and takings impact assessment 10 document is you schedule your vote to consider approval, 11 final approval and enactment of these regulations. And 12 in this document the date of Monday, November 28, 2022, 13 the Monday after Thanksgiving, at 9:00 a.m., in this 14 building, in this room, is the date and the time and the 15 location where you will be saying that these regulations 16 with the slight explanatory revision that you've added 17 today will come up for discussion and potential vote 18 approval. Is that date acceptable to the Court? That 19 time and location? 20 JUDGE KELLY: Yes. We've been working under 21 that for a long time. 22 MR. KIMBROUGH: It's my understanding under 23 the law that there's no super majority required but the 24 quorum of the Court has to be there the Monday after 25 Thanksgiving, so from a scheduling standpoint there's a 30 1 timeline that has to play out, and I want to call it to 2 your attention. If the TIA is approved, that special 3 notice has to go into the newspaper. We're in contact 4 with the Kerrville Daily Times to get such a notice in 5 the newspaper to publish this Thursday. What would that 6 be, the 20th, correct? 7 JUDGE KELLY: Yes. 8 MR. KIMBROUGH: Once the newspaper notice is 9 published no action can be taken to try to vote the regs 10 in or take them up for approval consideration until at 11 least 30 days expire from the date of the newspaper 12 notice. So by my calendar calculation, November the 13 28th of 2022 would be the 39th day in the period; 14 therefore, that proposed vote day would be timely under 15 Chapter 2007. 16 Next, the TIA talks about, summarizes in 17 paragraphs seven and eight what the regulations say. 18 And if you quickly go through, you'll see some of the 19 statute numbers and the Texas Administrative Code 20 citation numbers that we've been talking about this 21 morning. 22 It also says that once the TIA is approved, 23 a copy of it will be at the Judge's office for the 24 people that want to go by and inspect it and get a copy. 25 And that the -- 31 1 JUDGE KELLY: She knows what that means. 2 MR. KIMBROUGH: -- and that the regulations 3 with this new -- with this slight explanatory 4 parenthetical statement on Page -- what was it 21? 5 JUDGE KELLY: 21. 6 COMMISSIONER GIPSON: 21. 7 MR. KIMBROUGH: 21 where it appears now, 8 will be in there. That -- the draft will be placed on 9 your website for public viewing and downloading and a 10 copy of that active enactment draft will be available at 11 the County Judge's office for public viewing and 12 inspection and copying. 13 Next, the TIA analysis begins with paragraph 14 number ten. And when you turn the page, you'll see 15 questions one and two, and then later on, on page six or 16 so, question three. 17 Question one is: Kerr County, 18 Commissioners' Court, as the governing body. Is Kerr 19 County a governmental entity covered by the Act? In 20 other words, is it a covered governmental entity? Well, 21 it's -- clearly, the answer is yes. The County is a 22 governmental entity, a covered governmental entity under 23 the Act. So the answer to Number 1 is yes. 24 Question to Number 2. Is the proposed 25 action to be undertaken by the County as a covered 32 1 governmental entity an action covered by the Act? In 2 other words, are you trying to by the passage of these 3 regulations engage in a covered governmental action? We 4 argue that the answer to that question is no, because 5 the County is exempt from coverage under or application 6 to the Act because of the statutory exemptions, which 7 include all of the matters that are included under 8 subparagraph B to the answer to question two. 9 The explanatory paragraphs regarding those 10 exemptions and a summary paragraph ending up with F, 11 just above question three. Therefore, we recommend that 12 the correct finding to question Number 2 is no because 13 the proposed regulations are exempt from coverage under 14 or applications to Chapter 2007, pursuant to the 15 exception list listed in the statute. And the statute 16 number is 2007.003, Subparagraph B as in boy. 17 And finally, question three: Does the 18 covered governmental action result in a burden on 19 private or real property as that term is defined in the 20 Act? We submit that the answer to that question should 21 be no and the analysis of those matters go all the way 22 to the signature line. 23 But it boils down to this. And I'm 24 summarizing the summary, okay? The law of the State of 25 Texas, whether it's the statutory law passed by the 33 1 legislature or the agency law of TCEQ promulgated in the 2 Texas Administrative Code gives you the power to act, 3 regulate and govern as the regs describe for one simple 4 overriding policy reason: The protection of public 5 health, safety, and welfare. And I could say it longer 6 and fancier, but that's been your guiding policy focus 7 from the first day you spoke to me on the record about 8 this. Correct? 9 JUDGE KELLY: Correct. 10 MR. KIMBROUGH: The law lets you do what you 11 are trying to do in the interest of public health, 12 safety, and welfare. And some might argue, well, are 13 there any reasonable alternatives to these regulations 14 that you might consider in lieu of mandatory compliance 15 with your regulations, if they're enacted? 16 Well, perhaps one might argue, you could -- 17 you can say the same thing in another booklet, say the 18 exact same thing, but not make the regulations 19 mandatory. Not make the regulations enforceable under 20 civil or criminal law as the law allows you to do. Make 21 them voluntary and try to educate the development public 22 to do these health, safety, and welfare tasks and 23 components on their own by voluntary consent. 24 The TIA takes the position that, yes, 25 alternative actions out there like that do not have the 34 1 regulations or -- or to water them down so that they're 2 merely best practice policy suggestions and not 3 mandatory, make them purely regulations that would be 4 followed only by developer consent. 5 This document says those alternatives are 6 not reasonable given your experience in this area of 7 Texas regarding land development, practice, and 8 procedure. For one overriding reason, and it's stated 9 in this TIA. Due to the present risk for Colonias, the 10 letter substandard development existed in this County 11 due to increased financial opportunities for private 12 land development in this region of Texas, for the sale 13 of land or for the sale of lots or other divided parts 14 of land in the unincorporated area of the public, the 15 residential, recreational or business development 16 purposes. Do you agree? 17 JUDGE KELLY: Yes. 18 COMMISSIONER GIPSON: Yes. 19 MR. KIMBROUGH: Then the final paragraph 20 summarizes your findings and if it's approved, it will 21 be that you have determined that the proposed action of 22 the County, meaning the enactment of the regs, has been 23 fully assessed for its potential impact on private real 24 property and that the proposed action of the County is 25 exempt from coverage under or application to Chapter 35 1 2007. 2 And three, finally, that a quote no private 3 real property impact determination, close quote, is made 4 by the County in this TIA regarding the proposed 5 enactment of the regulations and no further compliance 6 with or analysis under the AG guidelines or Chapter 2007 7 is required because the answer to question three is no. 8 Questions regarding the TIA, the scheduling 9 procedure, the public notice, the regs or anything else? 10 COMMISSIONER GIPSON: No. 11 JUDGE KELLY: No. 12 MR. KIMBROUGH: I recommend that you, 13 through a recorded motion, second and a recorded public 14 vote, approve the proposed takings impact assessment as 15 stated in the proposed draft. 16 COMMISSIONER BELEW: So move. 17 COMMISSIONER GIPSON: Second. 18 JUDGE KELLY: Okay. A motion and a second 19 to approve the takings impact assessment regarding the 20 proposed subdivision and manufactured home rental 21 community regulations for Kerr County to be approved as 22 presented. Any discussion? 23 The record vote. Precinct 1? 24 COMMISSIONER BELEW: Yes. 25 JUDGE KELLY: Precinct 2? 36 1 COMMISSIONER GIPSON: Yes. 2 JUDGE KELLY: Precinct 4? 3 COMMISSIONER HARRIS: Yes. 4 JUDGE KELLY: And I vote yes. Unanimous, 5 four zero. 6 MR. KIMBROUGH: Thank you. 7 JUDGE KELLY: Thank you. 8 MR. KIMBROUGH: I'll have some follow-up 9 work to do with Jody. 10 JUDGE KELLY: Okay. There being no other 11 business before the Court at this time, we are 12 adjourned. 13 * * * * * * 14 15 16 17 18 19 20 21 22 23 24 25 37 1 STATE OF TEXAS * 2 COUNTY OF KERR * 3 I, DEBRA ELLEN GIFFORD, Certified Shorthand 4 Reporter in and for the State of Texas, and Official 5 Court Reporter in and for Kerr County, do hereby certify 6 that the above and foregoing pages contain and comprise 7 a true and correct transcription of the proceedings had 8 in the above-entitled Special Commissioners' Court. 9 Dated this the 19th day of October, A.D. 10 2022. 11 12 /s/DEBRA ELLEN GIFFORD Certified Shorthand Reporter 13 No. 953 Expiration Date 04/30/2023 14 * * * * * * 15 16 17 18 19 20 21 22 23 24 25