1 1 2 3 KERR COUNTY COMMISSIONERS' COURT 4 Special Session 5 Friday, April 28, 2023 6 1:00 p.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 RICH PACES, Commissioner Precinct 2 JONATHAN LETZ, Commissioner Precinct 3 25 DON HARRIS, Commissioner Precinct 4 2 1 I-N-D-E-X 2 NO. PAGE 3 1.1 Consider, discuss and take appropriate 3 action regarding the final plat for Twin 4 Creeks Estates along with Bond No. 7901076823 in the amount of $2,543,100.00 5 for associated subdivision construction. 6 *** Adjournment. 19 7 *** Reporter's Certificate. 20 8 * * * * * * 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 JUDGE KELLY: Court will come to order. It 2 is Friday, April the 28th at one o'clock in the 3 afternoon, and the Kerr County Commissioners' Court is 4 in session for a special Commissioners' Court meeting. 5 This is a single purpose meeting, to discuss 6 a subdivision here in the County. And everyone that 7 wants to speak will be afforded an opportunity, but the 8 way I'm going to handle this is I'm going to call the 9 agenda item, and then I'm going to make a motion. And 10 we'll see ^ were ^ where we go from there, so -- and 11 I -- because all communications have been through the 12 lawyers the last couple months, I will not be making any 13 individual comment. 14 So the first item on the agenda is 1.1 15 consider, discuss and take appropriate action regarding 16 the final plat for Twin Creeks Estates along with Bond 17 number 7901076823 in the amount of $2,543,100.00 for 18 associated subdivision construction in Precinct 2. 19 I make a motion that we approve the proposed 20 order I'm about to read. This is an order of the 21 Commissioners' Court of Kerr County, Texas: (1) 22 disapproving the subdivision plat application, final 23 plat, and a related bond submitted to the County by the 24 developer regarding the proposed Twin Creeks Estates 25 Subdivision in the unincorporated area of Kerr County 4 1 Texas; and (2) establishing an effective date and 2 compliance with the Texas Open Meetings Act. 3 Whereas, Kerr County, Texas, hereinafter 4 known as "County", is a duly organized and operating 5 County of the state of Texas pursuant to the 6 constitution and laws of Texas, and further, the Kerr 7 County Commissioners' Court, hereinafter referred to as 8 "Commissioners' Court" is the governing body of the 9 County; and. 10 Whereas, pursuant to article V, Section 18 11 of the Texas Constitution, chapter 232 of the Texas 12 Local Government Code, and other authority, the County 13 may approve, adopt and enforce regulations governing 14 plats and subdivisions of land and manufactured home 15 rental communities in the unincorporated area of Kerr 16 County, Texas in order to promote the public health, 17 safety, morals, and general welfare of said County, and 18 the safe and orderly healthful development of the 19 unincorporated area of said County, and further, to 20 prevent colonias or other substandard development, said 21 matters being declared to be worthwhile public purposes 22 and in the public interest; and 23 Whereas, pursuant to Chapters 251 and 252 of 24 the Texas Transportation Code and other authority, the 25 County may design, lay-out, construct, operate and 5 1 maintain its county road and bridge system located in 2 Kerr County, Texas, and further, the County has a 3 concomitant duty and obligation to operate and maintain 4 that system in a manner which is safe for public travel, 5 and to strive to protect at all times the health, 6 safety, and welfare of the public from the risk of loss 7 in the form of property damage, personal injury, or 8 death; and. 9 Whereas, pursuant to Sections 232.0025 10 through .0026 of the Texas Local Government Code and 11 other authority, the County desires by this order to 12 disapprove the subdivision plat application, final plat, 13 and related bond number 7901076823 submitted to the 14 County by Lakewood Capital Group, hereinafter referred 15 to as the "Developer" regarding the proposed Twin Creeks 16 Estates Subdivision, hereinafter referred to as the 17 "Subdivision" to be located in the unincorporated area 18 of Kerr County, Texas, as more particularly described 19 and for the reasons stated in the attached Exhibit 1. 20 And I will now read Exhibit 1. Reasons and 21 authority for disapproval. Pursuant to Sections 22 232.0025 through .0026 of the Texas Local Government 23 Code, the following is a written statement of the 24 County's reasons and authority for disapproval of the 25 plat application, final plat, and related bond number 6 1 7901076823 submitted to the County by Lakewood Capital 2 Group regarding the proposed Twin Creeks Estates 3 Subdivision to be located in the unincorporated area of 4 Kerr County. 5 (1) The Twin Creeks Subdivision -- the Twin 6 Creeks Estates Subdivision is a proposed residential 7 development containing approximately 857.42 acres, more 8 or less, with 98 lots proposed by Lakewood Capital 9 Group, currently identified by submitted application as 10 the "Owner/Developer", to be located on Eagle Ridge Road 11 at a location approximately three miles, more or less, 12 from the intersection of said road with State Highway 13 173 in the unincorporated area of Kerr County, Texas. 14 (2) Preliminary documents regarding the 15 proposed subdivision were submitted by Lakewood Capital 16 Group to the office of the County's Subdivision 17 Administrator in 2022. Pursuant to chapter 245 of the 18 Texas Local Government Code, and County's subdivision 19 regulations which apply to a review of this matter are 20 the Kerr County Subdivision Rules and Regulations 21 enacted by the Commissioners' Court on November 26th, 22 2007. 23 On March 15 -- this is number 3. On March 24 15, 2023, a final plat application and related documents 25 regarding the subdivision were submitted on behalf of 7 1 Lakewood Capital Group by its authorized surveying 2 consultant to the County Administrator. That 3 application was incomplete. 4 On March 28th, 2023, the County 5 Administrator gave written notice to Lakewood Capital 6 Group through said consultant of a complete(sic) plat 7 application regarding the subdivision. Incomplete. 8 Incomplete plat application. 9 Number 4. On March 30, 2023, revised 10 documents regarding a final plat application and related 11 documents regarding the Subdivision were submitted on 12 behalf of Lakewood Capital Group by its surveyor 13 consultant to the County Administrator. That 14 application was incomplete. 15 On April 6th, 2023, the County Administrator 16 gave notice to Lakewood Capital Group through said 17 consultant of an incomplete plat application regarding 18 the subdivision. 19 (5) On April 7, 2023, the surveying 20 consultant for Lakewood Capital Group appeared in the 21 office of the County Administrator and began making 22 hand-written revisions to the March 30, 2023 documents 23 submitted regarding the Subdivision. Thereafter, but 24 before April 24, 2023, said consultant indicated to 25 County staff that clean documents with revisions would 8 1 later be submitted to the County. 2 On April 26th -- on April 24, 2023, certain 3 active and revised documents regarding the Subdivision 4 were submitted on behalf of Lakewood Capital Group by 5 its surveying consultant to the County Administrator. 6 To date, the active and revised documents submitted to 7 the County regarding the Subdivision include a final 8 plat application, final plat, and related Bond No. 9 7901076823. 10 (7) The active document submitted to the 11 County state that Lakewood Capital Group is the 12 Owner/Developer of the proposed subdivision named herein 13 as Twin Creeks Estates; however, the active final plat 14 submitted to the County state that Kerrville 15 Acquisitions, LLC is the Owner of the proposed 16 subdivision named therein as "Twin Creeks". 17 These discrepancies and deficiencies, 18 regarding the correct identity of the Owner and 19 Developer, and the correct name of the subdivision, 20 represent irreconcilable conflicts between the 21 allegations in the application and those in the proposed 22 final plat, and further, constitute a violation of the 23 County Regulations, and Chapter 232 of the Texas Local 24 Government Code. See County Regulations Page 5 through 25 9, 12 through 13, 36 through 43, page 48, pages 58 9 1 through 60, pages 62 through 63, Appendix A through E, 2 H, L, and the Texas Local Government Code Section 3 232.001. 232.003. 232.004 through .0045, 232.101 and 4 232.107. 5 Bond number 790176823 is an executed 6 Performance Bond in the amount of $2,543,100.00 dated 7 March 14, 2023 and executed my Nationwide Mutual 8 Insurance Company as Surety and Kerrville as surety, and 9 Kerrville Acquisitions, LLC as "Developer as Principal". 10 The bond recites that the named Principal Kerrville 11 Acquisitions, LLC, not Lakewood Capital Group as alleged 12 in the application, has petitioned the County for 13 permission to develop a subdivision within the 14 jurisdiction of the County described as a "857.42 acre, 15 98 Lot Development" shown on a subdivision plat 16 entitled "Twin Creeks", not Twin Creeks Estates as 17 alleged in the application, and the bond further recites 18 the plat was conditionally approved by the 19 Commissioners' Court of Kerr County, Texas on April 10, 20 2023. 21 The application and final plat however -- 22 the application and final plat, however, show the 23 following: The application identifies Lakewood Capital 24 Group as the Owner/Developer; not Kerrville 25 Acquisitions, LLC as alleged in the bond. And (b) is 10 1 the application describes the subdivision as Twin Creeks 2 Estates; not Twin Creeks as described in the bond and 3 the final plat. 4 And (c) in direct contradiction to the bond 5 recitation regarding an April 10, 2023 plat approval. 6 The final plat has never been approved by the 7 Commissioners' Court. These discrepancies and 8 deficiencies represent irreconcilable conflicts between 9 the statements in the application and those in the final 10 plat and bond number 7901076823, and further constitute 11 a violation of the County regulations and Chapter 232 of 12 the Texas Local Government Code. See County Regulations 13 Page 5 through 9, 12 through 13, 36 through 43, page 48, 14 pages 58 through 60, pages 62 through 63, Appendix A 15 through E, H, L, and the Texas Local Government Code 16 Section 232.001. 232.003. 232.004 through .0045, 17 232.101 and 232.107. 18 (9) On sheets 4 and 5 of the final plat, the 19 date of the floodplain study conducted by Hewitt 20 Engineering is stated incorrectly as August 22 of 2022 21 of 2022. The date of that floodplain should be 22 correctly stated as August 2 of 2022 on sheets 4 and 5 23 of the final plat. These discrepancies and deficiencies 24 represent a violation of the County Regulations and 25 Chapter 232 of the Texas Local Government Code. See 11 1 County Regulations 12 through 13, 22 through 25, 36, 38, 2 40 through 43, Appendix B, and Texas Local Government 3 Code 232.001, 232.003, 232.101, and 232.107. 4 (10) Compelling and persuasive evidence, 5 both written and oral, was submitted to County regarding 6 the following matters relating to the proposed 7 Subdivision. (a) the size and scope of the Subdivision. 8 (b) the existence of a single external public road, same 9 being Eagle Ridge Road, as part of the County's public 10 road system, which serves as the only public road access 11 route to and from the proposed Subdivision. 12 And (c) the dangerous status of Eagle Ridge 13 Road, including the intersection with State Highway 173, 14 with said roads and intersection not being properly 15 designed, structurally adequate, or safe to handle the 16 significant increase in the type and volume of traffic 17 resulting from the approval of the Subdivision for 18 development. See Roadway Safety Study, Eagle Ridge Road 19 at SH 173, Kerr County, Texas prepared by John Nevares, 20 P.E., Principal, Entheos Engineering PLLC, submitted by 21 a letter to the County as a public record by C. Dixon 22 Mosty, Attorney at Law, Mosty Law Firm, Kerrville, 23 Texas, representing certain landowners who live on Eagle 24 Ridge Road. And the comments to the Commissioners Court 25 during its public meetings made by landowners who live 12 1 on Eagle Ridge Road and other concerned members of the 2 public regarding this matter. 3 (11) Given the present circumstances, 4 including the size and scope of the proposed Subdivision 5 and the dangerous road conditions described herein, it 6 is the determination of the Commissioners' Court that 7 the submitted plat application, final plat, and related 8 Bond No. 7901076823 regarding the Subdivision should be 9 disapproved in order to protect public safety. 10 To do otherwise would result in a 11 substantial and unjustifiable risk to the loss of 12 health, safety, and welfare of the public in the form of 13 potential property damage, personal injury, or death. 14 See County Regulations pages 6 through 7, 19 through 20, 15 Texas Local Government Code 232.001, 232.101, 232.107, 16 Texas Transportation Code Chapters 251 and 252, and the 17 City of San Antonio versus Boerne at 111 S.W. 3d at page 18 22, at page 31 through 32. That's the Texas Supreme 19 Court case of 2003. Concluding that by granting 20 Commissioners' Court control over the roads, the 21 Legislature imposed on counties the duty to make the 22 roads safe. 23 NOW, THEREFORE BE IT RESOLVED AND ORDERED by 24 the Kerr County Commissioners' Court, for and on behalf 25 of said County and in the public interest, as follows: 13 1 (1) Unless otherwise designated, the past, present, or 2 future tense shall each include the other, the masculine 3 or feminine gender shall each include the other, and the 4 singular and plural number shall each include the other, 5 where necessary for a correct reading. 6 (2) The caption and preliminary recitals of 7 this order and all attached documents are incorporated 8 by reference. 9 (3) The Commissioners' Court hereby 10 disapproves the subdivision plat application, final 11 plat, and related bond number 7901076823 submitted to 12 the County by Lakewood Capital Group regarding the 13 proposed Twin Creeks Estates Subdivision to be located 14 in the unincorporated area of Kerr County, Texas, as 15 more particularly described and for the reasons stated 16 in the attached Exhibit 1. 17 This order shall take effect immediately 18 from and after its passage. 19 This matter was ordered, approved, and 20 adopted at a Public Hearing held in compliance with 21 Chapter 551 of the Texas Government Code, and the Texas 22 Open Meetings Act. 23 Ordered, approved, and adopted on this the 24 28th day of April, 2023. That is my motion, that order 25 that I read. I know it was lengthy and boring. But 14 1 that is my motion. 2 COMMISSIONER PACES: I second your motion. 3 JUDGE KELLY: We now have a motion and a 4 second. Any discussion? 5 COMMISSIONER LETZ: Before I vote, I'm going 6 to want to go into Executive Session. 7 JUDGE KELLY: All good. All good. 8 We have some people that have signed up to 9 speak. I don't know if you want to speak or not. But 10 this is the opportunity to be heard. Yes, Ma'am. And 11 you are. 12 MS. MCCULLOUGH: Shelly McCullough. 13 JUDGE KELLY: Yes, Ma'am. 14 MS. MCCULLOUGH: I provided a sheet. 15 JUDGE KELLY: Yes. I have it right here. 16 MS. MCCULLOUGH: I am a resident of Eagle 17 Ridge Road, 795 Eagle Ridge Road. And I have spoken 18 here on two prior occasions. First of all, I want to 19 thank you for having this special meeting today. When 20 we were here on Monday and urged you to do that, I 21 really appreciate your taking your duty and 22 responsibility seriously, and giving up a Friday 23 afternoon to this. So we appreciate the opportunity to 24 be heard again. 25 I am as the basis of your motion going to 15 1 speak in behalf of your supporting your motion, and 2 urging the rest of the commissioners to vote in favor of 3 that motion to deny the plat, both on the basis of the 4 apparent -- in discrepancies in the application versus 5 the plat and names. 6 And then of course two more importantly on 7 the basis of safety issues. The discrepancies, 8 obviously could be remedied. The safety issue, cannot 9 be remedied without serious expenditure of funds, either 10 by the developer or the County. 11 So again just to reiterate once more for the 12 record one final type. That road is not safe. Since I 13 spoke on Monday, an employee who was run off the road. 14 Another was run off the road this week since Monday by 15 another truck going into this proposed development. 16 Again, these employees have worked on the 17 ranch for many years. They know to stay to the side. 18 If they had been a visitor in the area, they could very 19 well have been hit by a truck coming around too fast in 20 the middle of the road. And they were fortunate enough 21 to be able to not go into a ditch. 22 So again, and as it stands now, this road 23 does not support this development and we would urge all 24 of the Commissioners to approve the Judge's motion. 25 Thank you. 16 1 JUDGE KELLY: Is there anyone else who would 2 like to address the Court? 3 MR. MOSTY: May I speak? 4 JUDGE KELLY: Yes. Mr. Mosty, identify 5 yourself for the record. 6 MR. MOSTY: Richard Mosty, Center Point, 7 Texas. I would like to commend the Court and urge the 8 adoption of this motion. I think it is superbly 9 written. It is well thought out. It is adequate to 10 protect the needs and the safety, and is I think just a 11 superb piece of work, and I commend the Judge, the 12 Commissioners, and the Counsel on their work. And I 13 urge your adoption of the motion. 14 JUDGE KELLY: I saw a hand over here. Yes, 15 Ma'am. 16 MS. JENSCHKE: Sharon Jenschke, Eagle Ridge 17 Road resident. Good afternoon, Commissioners and Judge 18 Kelly. I appreciate again getting to speak on the issue 19 of Eagle Ridge. I realize how hard this decision is 20 weighing on each of you, but hope that you have all 21 heard over the last nine months, what you heard has 22 strengthened your result to make this right. 23 You're in charge of a lot of people in this 24 County, and it is difficult to please everyone. But do 25 we need these developers who come in from other states 17 1 to put in developments that are not in your people's 2 best interest. There's a huge safety concern here that 3 needs to be examined closely. Just yesterday, I saw a 4 huge, and I mean big, 18 wheeler come down my road with 5 a big dump truck on the back and I was just hoping 6 nobody was coming in the other direction. 7 And I know I also worry about fire, which I 8 know that's not what we're talking about. And I know 9 Center Point Fire Department has control, but what about 10 us and other future residents that are going in the 11 subdivision getting in and out of a one-way in and 12 one-way out situation. 13 I realize that's not what we're here to talk 14 about, and I emphasize that we all deserve to live on a 15 safe road that has not been compromised with progress. 16 Again, thank you for spending time on this 17 consideration, and I applaud you to make the right 18 decision. 19 JUDGE KELLY: Thank you. Anyone else who 20 would like to address the Court? Miss McDonald. 21 MS. MCDONALD: I just want to say thank you 22 for truly considering everything that we've had to say. 23 I was prepared to get up here and talk about being a 24 momma bear, because that's actually what my kids all me, 25 it's a true story. People think it's cute, but they 18 1 know that I would fight for them tooth and nail. And 2 you know, our children will very soon themselves be 3 driving on our road. So it's important -- you know, 4 their safety is important to us. It's actually been 5 pretty quiet on our road lately, it's been heaven. And 6 there have been minimum traffic on the road, which is 7 what it was actually designed for. The safety, it's 8 just -- it's important. And we appreciate you, and we 9 thank you for your time. 10 JUDGE KELLY: Anyone else wishing to speak 11 to the Court? There being none, then before we vote, do 12 we need to go into Executive Session? 13 COMMISSIONER LETZ: Yes. 14 JUDGE KELLY: So at this time, we're going 15 to recess into Executive Session, and we'll probably 16 come out probably I don't know, 10, 15 minutes, 17 something like that. Maybe a little longer. With that, 18 we'll stand in recess. 19 (Executive Session.) 20 JUDGE KELLY: Court will come back to order. 21 We have a motion and a second on the floor. Is there 22 any other discussion? Then those in favor of approving 23 the proposed order that I read at length, say aye. 24 Opposed? Abstain? Unanimous. 25 Is there any other business before the 19 1 Court? We are adjourned. 2 * * * * * * 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 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 May, A.D. 2023. 10 11 /s/DEBRA ELLEN GIFFORD Certified Shorthand Reporter 12 No. 953 Expiration Date 04/30/2025 13 * * * * * * 14 15 16 17 18 19 20 21 22 23 24 25