Travis County Commissioners Court
Tuesday, March 22, 2011,
Item 21
Item 21, consider and take appropriate action on the city of Lakeway's agreement with the developer of cross water yacht club to offer Travis County $20,000 for roadway improvements and/or maintenance of hurst creek road in precinct 3.
>> good morning.
anna bolin, three is a caulk ins and Travis County t.n.r.
the cross water yacht club development has two permits that are currently being reviewed by Travis County.
one permit is for the -- like the parking facility, well, the site plan for the permit application and the second is for a waterline extension down hurst creek road.
a portion of hurst creek road, more or less 3400 feet of hurst creek road; in Travis County.
the city of Lakeway also has reviewed this and the development -- the developer entered into a development agreement with the crosswater yacht club and the city of Lakeway, and one of the provisions of that agreement was the developer was to offer Travis County $20,000 for the limited purpose of funding the improvements and/our maintenance at those certain public right-of-ways adjacent to the land owned and operated and maintained by Travis County.
so right now we are reviewing two permit applications.
the Lakeway development agreement really ties to the facility site plan and the roadway waterline agreement that -- well, not waterline agreement, the roadway development -- well, okay.
the development agreement speaks to roadway improvements that are more in our mind tied to the waterlines agreement that -- or waterway permit that they are looking for.
so really the question is do we want to accept the $20,000 and what would we do with it if we did choose to accept it.
as part of the waterline per miss, there is a portion -- a little bit over a block that will have the -- will have the waterline inside the pavement area and then that area we are asking -- well, we're requiring that the developer repave the whole section of that block.
in the other portion that's outside of Travis County, we are going to have to examine after they have done the construction and if they have damaged the roadway, they would be required to make repairs to the center line to repave.
that's where we currently are right now, but we need to do bring this to court to ask your opinion on or get advice on accepting, rejecting or not taking action right now on the $20,000.
>> anna, is there any time frame in acceptance or rejection of this 20,000?
>> no, ma'am, not to my knowledge.
>> is it not true that this crosswater marina project is a development of under water properties in the category of properties that were set aside when the lakes were built under water?
>> the portion we're asked to built is the london, but the marina land does cover land that goes into Lake Travis.
that was approved a permit by lcra.
but the portion that Travis County is being asked to permit is on ground.
>> okay.
>> so this agenda item wording pertains to the $20,000.
>> correct.
>> what about the application itself?
>> this is not intended to address the permit application that they made.
again, there's two permits they are seeking from us.
one is to put a waterline in our right-of-way and the other is to build the parking area.
those will be done administratively within the next week, I would think.
>> as soon as they are complete.
they are getting close, though.
>> okay.
this is just to get the court's direction on this $20,000 that Lakeway, we're glad they are trying to look out for our interests.
we don't know that $20,000 is going to be adequate though.
and we could -- or we will take a look at the condition of the road after through running water lines and trucks and traffic up and down the road to build this parking area.
and if $20,000 is adequate, we would use that to make any repairs that are necessary or resurface parts of the road to handle additional traffic loads.
if it's not adequate, we would place a note on the permit for the developer that he's going to be responsible regardless of costs for fixing any problems that his construction traffic causes for our roads.
if we don't need the 20,000, then I suppose we could reimburse that to them, but I think 20,000 would be on the low end.
>> why is it that Lakeway wants us to receive this 20,000?
>> that was just an agreement between them and the developer.
I think Lakeway was thinking they are looking out for our best interests, but they didn't approach us and ask us that beforehand, we found out about it later.
that's where we are.
>> Commissioner Eckhardt.
>> I just have a question with regard to procedure and it may be actually a legal question.
do we have any authority to require that they post a fiscal note and then draw down on the note to the degree that we need it?
it feels strange to take $20,000 without knowing -- hi.
it feels strange to take $20,000 without knowing if or to what extent we would need the contribution from the developers.
>> it is awkward and I believe we do require fiscal posting.
>> we certainly do for subdivision plats, but not so much for site plans.
to me, what we would normally do is we would look to see what was actually damaged during construction, well, and we would put something -- a note on the site plan and probably condition on the permit itself that we issue saying, you know, we're going to evaluate this at the end of your construction and take appropriate action, but we expect to you, you know, repair any roadway damages you cause, and we did let them know that when they are outside of the pavement but in the right-of-way, we would be wanting it to be repaired to the center line, not just a strip along the outside of the road.
>> if a large subdivision puts a lot of traffic on the roads, you can require them to dedicate right-of-way or construct roads to mitigate that impact.
if someone is just going to impact a road through construction.
you couldn't make them dedicate land to expand the road from two lanes to six lanes or something like that.
you are basically limited to requiring them to do whatever is necessary to mitigate the impact that they have.
>> it doesn't sound like there's an impediment to just doing a fiscal note, is there?
>> well, I would just say this, if they are going to have an impact on the road, we can require them to post fiscal so that we make sure it's mitigated.
what the impact is is really an engineering question, but basically yeah, if they are going to have an impact, we can require them to post fiscal to mitigate it.
>> okay.
>> ms. Brown.
>> yes, Commissioners, thank you for the opportunity to speak.
>> can we get your full name?
>> my name is susan brown, 1413 oak hurst road, Austin, Texas, 78734.
I know I only have three minutes.
I would like to read a letter from my attorney to Commissioner Karen Huber.
he's unable to be here today, he's moving, so I would like to do this if possible.
dear Commissioner Huber: our firm has been retained by susan brown, 1413 oak hurst road, Austin, Texas, as well as the acres owned by a.k.
stewart and annie stewartment I'm submitting this letter in conjunction with respect to the following agenda item from Travis County Commissioners court: item 21, consider and take appropriate action on the city of Lakeway's agreement with developer of crosswater caught club to offer Travis County $20,000 for roadway improvements and/or maintenance of hurst creek road.
cause number 1 g.
n 0502788.
in the event you have not been provided a copy of the said final judgment, a copy is attached.
the final judgment upholds the no commercial development contained in the deeds for each of the three properties which are located in the area of Lake Travis where cross water yacht club continues to go forward with commercial activity in connection with a proposed commercial dock facility.
of greater importance with respect to the impact on cross water yacht club's proposed commercial development is what the court found and held in the attached final judgment on which commercial development with respect to a proposed marina was occurring.
on page 6 in paragraph 6 and 7, the court discusses the intent that there be no commercial development on any of the 128.5 acres being conveyed by ak stewart and annie stewart called the stewart tract.
the court also found that such a no commercial operation restriction applied equally to the portions of the stewart tract retained by ak stewart and anniey stewart without a restrictive covenant.
prohibiting the operation of a commercial enterprise on such land are imposed with a restriction prohibiting the operation of the commercial enterprise on such land by virtue of a negative reciprocal easement doctrine.
in other words, no commercial development is to occur on any of the 128.5 acres.
in the final judgment, the court made it clear paragraph 8 and 9 that no commercial operation was to occur on the harbor ventures property cingt of 2.5, two five acres of land and harbor had constructive notice of the intended general scream and plan of the development by ak and/or annie stewart that would prohibit any portions of the stewart tract being used for the operation of commercial enterprise and that by virtues of the negative reciprocal easement burdened with a restrictive covenant prohibiting the operation of -- as commercial enterprise on the harbor venture's property that runs with the land.
the final judgment goes further in paragraph 10, the court held that the defendants breached such restrictive covenants prohibiting the operation of a commercial enterprise on harbor venture's property by operating and/or permitting the operation of a dock building business on the harbor venture's property.
in paragraph 11 and paragraph d on page 8, the court permanently enjoined the defendants including specifically by name mr. Rand for rest by allowing the operation of a commercial enterprise on the property.
crosswater yacht club is trying to do the same thing.
it or an afully eight entity owns three tracts of land that are within the acres covered by the above discussed final judgment.
and there's a footnote, in a proceeding in which crosswater yacht club was the plaintiff, the court ruled the negative reciprocal easement come continue the d.
not apply to certain tracts of land.
that involved property within and outside the 128.5 acres.
it is not clear from the decision what tracts were covered by the ruling on summary judgment because the court did not issue any findings of fact or conclusions of law.
that court is the only one to so rule as there have been several other earlier court rulings, the same as set forth in the attached final judgment with the respect to no commercial operation provision in deeds involving the stewart tract.
the crosswater decision is on appeal and is the final judge in the dalton, mckinney and brown case.
yet there can be no doubt that crosswater yacht club is fully cognizant of the results in that case and no more operations are take place on the entire 128.5-acre stewart tract.
at least at the time of the respective formation of harbor ventures in 1997, crosswater yacht club in 2006 and cotwater management llc in 2007, mr. Rand forest was one of the two directors harbor ventures.
one of the two managers and the president I have attached as item 2, two number 2 copies of the articles of incorporation of harbor ventures for cross water yacht club and the certificate of formation of cross water yacht club.
I also attached the Texas franchise tax public information report for 2222 for harbor ventures and for 2002 for cross water corporation.
based on resented corporate records and the business registrations filed with the state of Texas, this relationship continues between mr. For rest and cross water.
mr. Forest is listed as registered agent for cross water corporation and manager and president of cross water yacht club which is the general part of lp.
there's a footnote.
true and correct copies of the corporate records and business registrations of cross water yacht club are attached in my motion to -- in susan brown's motion to show cause hearing, application for writ of enforcement, which motion with exhibits is attached here to.
the city of Lakeway --
>> are we about to get to the end of the letter?
>> I just have a couple more paragraphs.
>> okay.
what's the date of that letter?
>> that was fax to do Karen Huber, Commissioner Huber.
>> yesterday.
>> yesterday.
>> was it shared with county staff?
>> I don't know.
I was hoping to read it into the record.
for that reason because my lawyer can't be mirror today.
>> but the problem is this is new to me.
I don't know about the rest of the court.
>> staff was aware -- we're aware of it.
we've looked into that issue and it is really a private lawsuit between neighbors over restrictive covenants and the like.
it's not a matter that's addressed by county regulations so it's not an issue that -- upon which is county could approve or deny the permit is the short answer.
>> but whatever the ruling is of the court, if there is a deed restriction that's upheld, it trumps any kind of permit that we issue, correct?
>> right.
having issued the permit, that would not grant them the right to build the marina if a judge says their neighbor through a restrictive covenant can prevent them from doing it.
>> that private right trumps any permit that they may achieve.
>> go ahead and finish.
sorry for the interruption.
>> I'll be quick.
>> longer than I thought at the beginning.
>> okay.
>> I would have suggested that you give us copies and we would have read them, but finish, please.
>> oh, I'm sorry.
>> go ahead.
>> the city of Lakeway's previous staff report recommended approval of the proposed development agreement with the cross water yacht club recognized that cross water were related in some manner.
the first sentence of the background section of the report apparently indicates in 2007 cross water yacht club was known as harbor venters.
this was in conjunction with the lcra's permit.
in 2008 the lcra permit was reissued to cross water yacht club.
I have attached as attachment 4 the September 2, 2008, letter so advising.
however, as addressed in the last paragraph of the attached letter, the permit was issued subject to any subsequent lawsuits.
the lcra's permit contained the further caveat of final judicial decision impacting the permitted marina or the ability to have marina at all together with the -- termination of the permit in order to comply with the judicial order, end quote.
in December 20th, 2010, the city of Lakeway city council approved development agreement with cross water yacht club which made effective January 6, 2011, article of development requires the landowner and/or developer offer 20,000 to the Travis County transportation and natural resources department for limited purposes of funding the improvement and/or maintenance of certain rights of way ajay sent to the land and owned and operated and maintained by Travis County, ie portions of hurst creek road and chipmunk road.
misbrown has filed with the susan brown's motion for show cause and writ of enforcement which motion with exhibits is attached here to.
in the motion ms. Brown seeks to have the parties remand to remain cross water yacht club, no commercial department on the acres to include specifically cross water yacht club's proposed marina as well as any activities associated therewith designed to move the process forward.
of noteworthyness to the Travis County Commissioners' consideration of agenda 21, the hearing on miss brown's motion is scheduled next Tuesday afternoon, March 29th, at 2:00 p.m.
thus no prejudice will befall cross water yacht club until after the court rules on the motion.
it appears premature for any action to be taken on the city of Lakeway's development agreement with the cross water yacht club at this time.
sincerely, randolph l.
jones, jr., attorney.
>> thank you, miss brown.
>> thank you.
so you want to enter that into the record?
>> yes, I would like to enter that into the record.
>> do you have more than one copy?
>> I could provide a copy.
I would have to make copies.
>> we got this
>> [inaudible].
>> thank you very much.
>> so we are posted on this $20,000.
and I guess my question to be as to the fiscal requirement, what would t.n.r.
usually appropriate and when and is there a recommendation as to the 20,000?
that's three questions, I guess what.
would we normally require if we believed a county road might be damaged and when would we require it?
>> if I may, what I think the answer to your question is, it would make the most sense when we have a project that looks like it's going damage a road and we're not sure to put something in the permit notes and on the face of the permit saying we will evaluate this.
if you did damage, when you are done with your project and you will be required to repair our roadway and we lay out the scope and portions where we know they are going to be putting their waterline in the pavement, you are going to repave that whole section of roadway.
where you are adjacent to the pavement but in the right-of-way, let them know we would expect if our road is damaged for you to pave up to the center line.
so I would propose it would make the most sense to look at this once the work has been done.
>> and would we put an estimate with the fiscal note so we could draw down on so we wouldn't have to -- so it would streamline the process, as it were?
>> I suppose that we could.
in some instances where we know there's going -- with total certainty there's going to be a lost damage, we'll bring in a -- a lot of damage, we'll bring in a roadway agreement.
we don't know to what extent we'll have the damage on this so we didn't propose a roadway agreement.
>> I see.
>> is the applicant here?
do you have a response or a motion first?
is there something we should hear from you?
>>
>> [inaudible]
>> [no mike on].
>> mr. Danbury, a lawyer of a few words.
>> I don't know if it's the legal issues that are troubling us.
>> go ahead.
>> good morning.
Commissioner Eckhardt may be right.
whatever the legal issues might not have a bearing on this permit so I don't want to waste time talking if you don't want to hear it.
but cross water yacht club lp and llc were not parties to the litigation miss grown referred to.
the only litigation concerning their property, we have won a summary judgment saying it is not subject to implied negative reciprocal agreement.
that was by judge rose.
that is a final judgment.
it's on appeal.
no steps have been taken in appeal.
I frankly expect it will probably be dismissed because the record hasn't been filed, but it is on appeal.
the only lawsuit pertaining to our property has found affirmatively that our property is not subject to any noncommercial restrictions.
the lawsuit miss brown is talking about involved different property and different parties.
>> okay.
>> that's it in a nutshell.
>> you've heard staff's position on damage to the county road or county property and the obligation to restore to the original condition, I guess is how we would word that.
do 6 any issues with any of that?
>> well, judge, I think why I need to visit with mr. Kemp on that issue, we're here prepared to offer the 20,000 that was part of our development agreement and I know we've had ongoing discussions with staff on this issue, and mr. Kip may want to respond to that this morning.
>> steve seems to be saying it may be less or more.
how did you all arrive at that number, by the way?
>> Lakeway provided that number and we agreed to it.
>> nice round -- nice round number.
>> I was told you provided that number to Lakeway.
>>
>> [inaudible].
>> another lawyer here.
I am the one involved that negotiated the agreement or handled a lot of the notions.
>> what is your name.
>> kevin blaylock with coates rhoades.
basically the sense of the staff at Lakeway was this project does not generate enough traffic to fall within guidelines regarding tia's which generally governs what site improvements will be required.
it doesn't meet that 2000 trip per day threshold.
because we were operating outside code requirements, we were just negotiating the contract, the parties agreed it would be prudent to post some Monday to, offer some funds to Lakeway at the time to off set any potential damage to the roadways.
and the $20,000 was an arbitrary figure agreed to by the parties and to be quite honest when it was first discussed, the city of Lakeway was uncertain or failed to acknowledge at that point really where their jurisdiction ends and Travis County's jurisdiction begins.
and so the initial terms the fund would be available to Lakeway and Lakeway and the applicant discussed the fact that really the most highly impacted roadways, the adjacent roadways are what's in Travis County's jurisdiction.
that's why the provision reads that the applicant will make the funds available to Travis County.
but it's a covenant that's enforceable by Lakeway.
as convoluted as it is, that's how we reached the 20,000 and making the funds available to Travis County.
>> so -- but I guess we don't know what the amount might be if anything.
could be zero, could be 30 or 40,000.
our policy and I guess the law requires to cover the cost.
>> if they damage our property, we would pursue getting reimbursed for that.
>> we would try to achieve agreement on the amount.
but until after the project, it's difficult to make that determination.
so the 20,000 is more a good faith gesture than a firm number, right?
>> yes.
yes.
>> and we're happy with the fiscal note on the permit.
and if we damage the road further, we're certainly going to fix it.
>> this sounds like really just a matter of figuring out how to handle this other agreement.
we don't want to unravel the other agreement you've already negotiated, but we also want to deal with it in our customary way.
and I think we can get there.
this doesn't sound like there's anything insurmountable here.
>> that is why the timing of making the funds available, it's a condition precedent to Lakeway issuing a certificate of okay pan simple it -- a certe of occupancy.
and when the parties can evaluate the roadway.
the developer will offer the funds to Travis County and if Travis County elects to accept those to pay for roadway improvements, then they would be paid and then certainly, of course, if there is any other -- say they failed to cover the actual damages, well then state law requires that the applicant pay for it, as tom nuckols mentioned.
>> and I think in good faith, judge, we would certainly if the damage $10,000, we'll give you 20,000 so you can upgrade the road with future use.
we budgeted and if it's more, we're going to use rubber tires on the machines to just put in a waterline and there's some issues of the road not having right-of-way to the site or we would have put water lines in the -- beside the road.
>> [one moment, please, for change in captioners] move that we defer acceptance of the 20,000 until a more appropriate time in the permitting process so we can see what the impact to the road is is going to be of the waterline being put in there and address it at that time.
>> should that be substitute language rather than $20,000, we have other language?
do we have routine language that we use in.
>> we can work with tom to come up with some language that is appropriate for the situation, I guess.
>> the device we have used before that sounds like maybe appropriate here is a roadway agreement where concurrent with tnr's issuance of the permit, the applicant and tnr sign an agreement that says here is the plan for restoring the road to the same condition it was before this project happens.
sometimes fiscal is supposed to deal with those.
seems like if we can just use that same device we have used before on other projects, we could address the issue of what they are going to do to the road and how they mitigate for whatever impact they have.
>> that would be fine with us.
>> if a developer damages a road during the process of development, we give the option of restoring the road or giving us the money to do it.
>> we have done it both ways, yes.
we have used our own crews in a very urgent situation to do repair and seek compensation from that from thant the I that damaged it.
a lot of times we can't point the figure with that particular entity.
these guys are not the only ones using the road.
take that into consideration as well.
>> the motion is to reject the $20,000 but to--
>> defer consideration.
>> I think there ought to be some language of a fiscal note nature.
I wouldn't just leave it open.
>> I would leave it open for the parties to negotiate how to deal with the $20,000.
if our legal and their legal can get together, I am mindful they have a standing ink agreement with Lakeway, that I think I agree with the language of the motion to defer it so that we know all the ramifications of rejecting versus utilizing as fiscal on a road agreement or what all of of our options are legally.
>> I have--
>> Commissioner, would there be a specific time that you with trying to get this back before the court.
>> whenever the permit for the waterline, the outcome of that is assessed.
>> what I'd like to do then is work with todd to get a road construction agreement.
maybe that will be the motion.
direct staff to develop a road construction agreement with the parties that addresses the fiscal posting, scope of work to be done at the appropriate time, and the issuance of the permits.
>> one of the concerns I have here, and I don't know the legal answer, is that if they address this now in some sort of positive way like a road agreement or whatever, then this motion or this outcome of that could be used in court as as tasit approval of this court.
>> it predesignate poses --predisposes the project before we really have the project before us correct?
>> that is not unusual in the development world.
sometimes we issue permits for projects that never happen for a variety of reasons.
as Commissioner Eckhardt suggested, it's simply not a matter that we're even allowed to address.
we can address the infrastructure impacts.
if we did --do a roadway agreement, we are saying we oppose a project that negatively impacts the road.
so you are required to fix.
we are not required to look at the issue of whether it affects the neighbors' property values.
>> I think the concern here, if I may, correct me if I'm wrong, but we don't have the permit squarely before us.
this is just about the $20,000 pertinent to the Lakeway agreement.
>> that is right.
>> I would feel more comfortable taking it up as part of our permitting process.
what is the time frame on that?
is it coming back in a month?
>> the permits won't be coming to Commissioners court.
>> oh, they won't.
we don't have any authority, we don't have any permitting authority over this particular project?
>> there's not a variance associated with it.
>> however, Commissioner, there is a lot of precedent for the Commissioners court saying we would like tnr to give us a presentation on this permit before tnr issues it.
you know, if you want that, there's precedent for y'all requiringing that.
>> then I think that is implicit in the motion, I think.
>> if you don't want a whole presentation on the permit, but say you want the roadway agreement to come to you before the permit is issued, you can have just the roadway agreement on the agenda.
>> I think that is contemplated by the motion.
>> it's the court's agenda, so you can put on what you would like.
>> I'll rephrase--
>> on the next agenda.
>> yes.
>> what we are posted for feud --today is to accept or reject or take other action on the 20,000.
>> yes.
>> I assume Lakeway is trying to do the right thing.
we ought to send a letter of appreciation.
there's a motion which levers it hanging.
is your intention to reject it or let it languish?
>> I would let it languish, the permit presentation or roadway agreement presentation, until it's brought to court, at which time they could address it, tnr could address it in the content of that or context of that.
>> okay.
motion to defer.
seconded by Commissioner Eckhardt.
anymore discussion?
all in favor of the motion.
show Commissioners Gomez, Huber, Davis, Eckhardt voting in favor.
judge Biscoe voting against.
that motion carries.
let's give Lakeway a thank you note, though.
>> okay.
>> I would do that.
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Last Modified:
Tuesday, March 22, 2011 6:49 PM
