Travis County Commissioners Court
March 15, 2005
Item 21
We indicated our intention to call up item no. 21. It is to consider and take appropriate action on amendments to chapter 82, Travis County code, standards for construction of streets and drainage in subdivisions. May subdivisions. I do have a series of legal questions. I put most of them in writing to tom nuckols on Friday and shared that with the court. I have some additional questions to -- to ask and I guess the question is whether we should proceed directly into executive session as I think or whether we should have a discussion and comments first. If -- executive session first? Why don't we do that then. Let's convene in executive session and get out of the way the questions, legal questions for legal counsel and just read the item, this is under the consultation with attorney exception to the open meetings act. Most of these questions were generated by our discussion last Tuesday and the follow-up meeting we had in this courtroom on Wednesday and subsequent e-mails that we've had an opportunity to review. If I were a betting person, I would bet that we will probably take 20 to 30 minutes? For this discussion? There are 7 to 8 very substantial legal questions, my guess is that it will take 20 to 30 minutes for us to get the answers. Then we will come back into court and -- and take comments from -- from the audience after that motion our intention as far as I know is to take action. Okay?
good afternoon, we have just returned from executive session where we had a rather lengthy 20 minute discussion with our lawyer. Now we see why he gets paid the big bucks [laughter] we discussed item 21. Did we get the variance page circulated yet? How many plan to give testimony today, new england different advice. New and different advice. Why don't we have you come forward. What we discussed basically were various legal questions regarding options before us, the exact language some modifications, the moratorium. Possibility and other possibility. If we want to take a little testimony based on that maybe take a motion before we take other testimony. If you represent a group rather than yourself individually, why don't you come forward first. We have five chairs there.
>> judge, may we please ask that items number 10 and 11, which are the two star flight items be rolled over until next week in the interest of time.
>> okay. That's fine, we did touch base with the appropriate county staff. 10 and 11 we will have back on next week.
>> thank you.
>> if you give us your name, we'll be happy to get your comments.
>> I知 jim knight, the president of the real estate council of Austin, 1400 member organization. Interested in various real estate community issues within the travis, hays, Williamson county areas. The ordinance or rule revisions that you have in front of you have a lot of very good, positive things that need to be implemented by the county. Particularly the county needs to have the ability to make sure any property opener, any -- any property owner, applicant, developer, is complying fully with all state, county and federal regulations. If this is purely an enforcement issue, we need to figure out a way to help the county do those things. There are numerous jurisdictions that have implemented rules and regulations similar to what you are considering today that have taken years to develop those rules and have spent years after that amending them to make them realistic. And make sure that they do not create takings issues. If this is a no-growth discussion, we need to bring that to light. If this is a water quality issue, we need to bring that to light. This appears to be an -- excuse me, an enforcement regulation. We need to figure out some way that we as a community can help the Commissioners court develop a set of rules and regulations that will be beneficial to not one area of the county, but to the county as a whole. All the county citizens need to be beneficial or be of benefit of these regulations. We need to make sure we all work together to do that. But -- but I believe that we are moving too quickly. We need to get calmer heads together to discuss ways to make these work on a county-wide basis.
>> okay. Questions. Thank you, mr. Knight. Mr. Smith?
>> my name is hank smith, I知 representing the home builders association of greater Austin, the vice-president in chair of governmental affairs. I知 going to mirror a lot of what jim said. I think we just need time to look at how these rules are going to impact all of Travis County not just those that drain into certain basins. And be real clear what those impacts are. And we don't need six months to do that. But we do need more than the two weeks that we've had to look through this. I've given some written comments to joe gieselman, representing my views of kind of where we're at with this. I知 really available to answer any questions. I mean a lot of our concerns, there seems to be some piecemeal. We have taken some things out of some ordinances, other things out of other ordinances, I知 not sure what we have got is a real coherent set of regulations that adequately address the problems out there. These do come a long way. We do need some ordinances in the county, all for ism meaning those, but we need to make sure that we have the right set of regulations and the ability to implement those across the board. We do have that variance language. We take a -- took a look at variance language that is in our current ordinance and there is not a recommendation to change it. Meaning it would carry forward. And -- and the question came up what if individual tracts of land had special characteristics for which the proposed ordinance might not be a good fit. And the obvious answer was, well, that is so, that can be demonstrated there is variance language in our current ordinance that would provide some coverage and so our thought was, well, let's take a close look at that language, that language is not in the proposed ordinance or -- so what we asked was that we get sufficient copies to give everybody one, right, tom?
>> judge, could I address that, please, sir? Thank you. I知 sure there are a number of issues why the Commissioners court or the county staff believe that some of these rules need to be in place. However the majority of the people that I have talked to, it appears this is more an enforcement regulation, make sure that people are doing what they're supposed to be doing. To rely on a variance provision to allow property owners to get around the rules seems to be penalizing the great majority of people who are trying to do the right thing opposed to the five percent of the people trying to bend the rules. If that happens, as much as I don't want to defend the court, congratulations you have just become the city of Austin. I don't think this court has ever wanted to emulate the regulations, restrictions in the bureaucratic gridlock that has over the past 20 years become the city of Austin.
>> I don't know if I agree with this as just an enforcement problem, though. For the simple reason if you put standards in place and really depend on -- on voluntary compliance, so you put standards in place with the hope, understanding, that people will see what's to be done and basically do it. And then enforcement comes in when notwithstanding a clear set of standards, some of our residents just don't comply with it. They are the -- there the enforcement comes in. I think, you know, we had four preliminary plans filed yesterday I知 told. So I don't think anybody deny that's the standards in place at -- denies that the standards in place at Travis County right now are a little short of where they should be. We sort of have been threatening to look at them at some point. It just so happens that we, you know, the lick creek situation provided some impetus for us to look immediately. Then the question came up, what can we put in place immediately that provides some level of protection. In the immediate future. So we can give the study groups an opportunity to bring forth their recommendations, us a chance to respond to them. So in -- it's some enforcement, but at the same time we are hoping to look at standards, maybe put in place what we thought would be reasonable standards that we could implement pretty much immediately, and so the question came up, well, aren't there special things that the court may not have considered. And even in the current ordinance, that's what the variance provision is for. But it relies on the ability to persuade county staff basically. That you should be an exception to the rule more than anything else. Is this the variance language?
>> judge, let me ask jim I think. Do you all, I know you don't represent everybody in this room, but one of the things that we talked about in executive session is we think that there is a fair amount of agreement in this room with regards to most of the things on these interim rules. The one thing that I continue to hear great consternation over are the buffer zones. In specific to bluffs. Is that -- would that be an -- a fairly accurate -- a set -- assessment of what I think I知 hearing? I mean whoever --
>> I can address from the real estate council organization standpoint. Hank may have a different perspective. The county needs to have full control and ability to do your business. And I understand that the county staff needs to control every permit that's issued. I don't think that they should ever let any permit be issued until we have tceq approval, lcra water quality approval, certain water and wastewater guidelines already proving that you have capacity and guaranteed fiscal posted, et cetera. E.p.a. Approvals, federal guideline approvals in place and guaranteed documents. If you don't have that I wouldn't issue the permit. However, to immediately overlay buffer zones without analysis on the economic impact, the land takings, some of those things, seems to be overreaching. There's a particular point in the document that the way I read it becomes particularly difficult, talks about 75% pollutant removals on slopes over 10%. Once you get steeper slopes, talks about 90% pollutant removal efficiencies. Of the lcra guidelines, the only way you can meet that under my evaluation is through a retention irrigation system. The lcra ordinance specifically prohibits irrigation on slopes over 10%. So you have effectively taken everything in the 10% steeper category and proper hinted any development on those. Those are the type of things that I think can be worked out if we sit down and talk about how to work those out and protect the areas we want to protect. I don't think anybody that I have talked to wants to take any enforcement regulations away from the county. If it truly is a lick creek problem or other developers who haven't filed or followed the proper procedures, let's fine, enforce them. Engineers who submit documents who have not complied and who intentionally evade the process, take them to the straight board and yank their license. That does not need to be tolerated in our community. It's a complete disservice to our citizens.
>> I would agree with jim. There's three areas that i've heard a lot of discussion about. One is the permit control, I think jim said it correctly, we need to see how we can practically implement those regulations. One of the areas is getting all of your water and wastewater commitments in a contract before you can submit to the county. I think you definitely need those in place before you have a final permit or a plat recorded. But to let those processes go through simultaneously. At least start the process before you submit, let them go simultaneously, hold the plat back in abeyance until you get those agreements in writing in a format acceptable to the county. It's a -- something we have looked at. On the buffer zones, some of the issues that are out there, the city of Austin, the buffer zones that they have, they have a value to them. One is environmental value from what they protect. Two, if you agree to leave those areas undisturbed, you get additional impervious cover. So there's a value associated with that. You can take the -- the impervious cover that you would have built there, and you can move it somewhere else. Your regulations don't have impervious cover as an issue, but there's no value to those buffer zones from an economic standpoint. There's an environmental value for having them there, but there's no ability to assess what is the economic value for having a buffer zone. A landowner is basically selling land that has no economic value to it whatsoever, having to give that land to the county. So that's I think where a lot of the issues --
>> I have to take exception to that. There's nothing in the ordinance that makes the landowner give up title to that property. It's his land.
>> gives up use of the land. The city of Austin requires you to dedicate it to the city of Austin. Or another entity --
>> that's not in there, make things clear.
>> they are taking a piece of land and taking all of the value away from it under any scenario. No matter who opens it. There's nothing that can you do with that piece of land.
>> is that the county that's doing that or is that already in the rules, I mean, with the setbacks, I mean, specially when you consider the floodplains on some of these creeks, I mean, those are already in existence. Aren't they?
>> yeah. Development this is already highly restricted because most of the stream buffer --
>> that's not an add-on that the county is --
>> actually there's a yes and a no answer to that.
>> okay.
>> because the way the rules are set, depending on your drainage area, your setbacks can go up to 400-foot from center line creek. If you are a floodplain zone, 100 feet wide you have lost another 300 feet, that is a significant economic disincentive. There's no way you can look at it --
>> I don't think that's quite accurate, either. The buffer is based on the floodplain. It always at least a certain distance and there's a cap. So I don't know that there's going to be a scenario where it's 3 hub feet outside the floodplain.
>> I -- 300 feet outside the floodplain.
>> steiner ranch, very steep canyons, your floodplains are very narrowly defined because you have very steep side slopes of the canyon going down, if your floodplain is 90-foot deep, it may only go out 50 feet wide. Whereas some of your buffers would extend well beyond those areas.
>> there's an area where there would be some sort of a bluff, right?
>> it's where you have steep terrain.
>> it says in here that the buffers don't go beyond the bluff.
>> those wouldn't be defined as bluff, just an area where you have 31:00 slopes, 21:00 though the that would meet the distinction of a bluff.
>> there's a number of things that for instance the classification of a feature whether it's a bluff or recharge feature, you can have environmental experts, professionals, developers and a number of people in the city of Austin great because they have a complete group of staff that does nothing but evaluate these features and there are constant disagreements even internally and externally what classifies, what doesn't. Just by establishing a definition is not that cut and dried. There's more to it than saying something that's 10 feet tall and one foot vertical offset is a bluff. Some -- one person will say yes, one person will say no. Who is the ultimate decider. I知 not sure the county has thought some of those things through. You may have. If you have we need to make sure that we understand so that the property owners understand how those would be implemented.
>> with all fairness to steinner ranch because I happen to have worked on that one, a good portion of that was black cap vireos there, there were 819 acres set aside that you couldn't develop on that had nothing to do with bluffs and buffers, everything to do with endangered species. Some things that we are looking at it in in an isolated way you have to have setbacks from creeks, you mean creeks that are already in the floodplain and you can't build may? I mean some of this stuff there are already other things going on that will keep you from doing the building in that particular area that have nothing to do with just a setback or a buffer related to -- to a creek or some environmental feature. There are other things going on. You already are not going to be able to do some of those things in some of those areas.
>> right. There are some areas whereby just putting an arbitrary 400 feet, you are taking up the canyon plus a distance beyond the canyon, that is twoable land beyond what would be a critical environmental feature setback and making it a 400-foot setback just because of the size of the basin.
>> we have a variance procedure in here, if that turns out to be a hardship, some good reason whether that ought to be allowed and it doesn't interfere with good science about why you do it, we certainly have always had variance procedures here to say you know what that kind of sort of makes sense. You let people do it. These things are not arbitrary capricious numbers, the numbers are what the numbers are, there's no one reason we say you can't do that. The 10 years that I have been on this Commissioners court, we have always had a very viable variance procedure, variance is not a dirty word around here. If you have good reasons and good science and good engineering, we have allowed those things to go through.
>> Commissioner, I think a lot of what everybody is saying is very truth based. I maybe could be completely wrong, lord knows I have been wrong many times before today already. But there are significant overlying issues in the development of any parcel. Endangered species, tceq, lcra regulations, floodplains, corps of engineers, waters of the u.s., there's a ton of things that overlay each other. But there is a restriction here, potentially, in setbacks, this ordinance does not say that the boundary is set by the limits of the 100 year floodplain. What it says is for a major waterway it's no less than 200 feet, no less than -- no more than 400 feet. If your floodplain is 100 feet, you have an additional 100-foot setback on here. If your floodplain is greater than 200 feet, not. But if your floodplain is less than 200 feet, yes. Not every floodplain is defined by a bluff. There are potential situations. This is -- this is written virtually identical out of the city of Austin's land development code. Trust me, developing in this community for 23 years, there are significant areas in this community that have very large impacts on takingings -- not legal takings, but takings of property that you can't do anything with. I want to make sure that the county understands what you are doing, if you do fine. But we want to make sure that the property owners and citizens understand that.
>> okay.
>> my turn?
>> mr. Clark, yes, sir.
>> hi, colin.
>> good afternoon, judge and Commissioners, I知 colin clark from save our springs alliance. We would encourage you to adopt these interim ordinances today. And I would like to speak to a little bit about what james and hank have been talking about. Having creek buffers could be an enhancement to the subdivision because it's a selling point. An amenity.
>> no kidding.
>> we have a trail system, I don't know that these ordinances prohibit a walking path through the buffer zone. But I could envision a subdivision that had such a path that was marketed as such. And could in fact enhance the value of the development. I would also suggest that these interim regulations would provide a benefit to property openers downstream. Property owner down tream. When creeks get trashed the property values downstream suffer either from flooding or the quality of the water. I would imagine property owners on lick creek don't have as good of a product to put on the market now that their once pristine creek is filled with sediment or algae depending on the weather. I think that these regulations could help protect downstream landowners and also be an enhanced value to subdivisions that go in under it. Lastly, we do -- we are encouraged that the county is taking steps to improve water quality regulations. We hope this is a first strep. These are interim regulations and that the county can use the tools the state has given you. I don't think anyone is down here asking you to do things that you can't do. But we would encourage you to move forward using the tools given you by the state. Thanks.
>> colin, a question for you. Do you see anything in what's been proposed here that somehow implies or anything else that any kind of a setback from a creek somehow becomes public access? That still belongs to that private property owner, correct?
>> right. If that's what the ordinance says, I guess it would be up to the developer to turn it over to the public. But again it could be a private amenity much like a golf course.
>> but there's nothing in here that says that somehow we have declared all of these places to be public access points.
>> I知 not a lawyer. So --
>> okay.
>> I did read them.
>> as joe sick pack you are not seeing anything here that declares setbacks or buffers to somehow magically to become public access nor would you interpret it that way just as a layperson.
>> correct.
>> thank you.
>> colin, I know that you were at the meeting where we had the southwest dialogue meeting where mike ridly was there, the developer, you know, that develops out in llano county and in that area. And I would agree that there probably are examples where depending on how you are using land that you can give an example that it is an enhancement to have the setbacks, have that greenbelt, you know, do walking paths, do those kind of things. But I think that there are also examples that if you are trying to go out and create a market, I think that that was one of the things that I think that he brought up or one of the people brought up, if your market is a $225,000 home versus a $400,000 home, basically what you are going to do if you were to get the vietnams out of that where you are taking those properties and saying those are enhancements, then those probably work when you are selling four or $500,000 homes. But if you are taking a development where you are saying I mean in order for me to -- to make what I need to make for the investment that I had, you would have to agree there are probably some examples where that is not the case. Not in every case is the fact that a setback is an enhancement financially. I mean, that's just not true. I mean, let me answer it for you so you don't answer it the wrong way.
>> I was going to try.
>> because I知 afraid you might get that wrong [laughter] so there is where it's hard to drag me to that spot because it is -- it is a hardship, it is taking something away from somebody's property. Now, I知 not saying that I still don't think that we should work with folks and say, you know, if you are going to get closer than what some of these setbacks are, then let's -- let science or engineering-wise, say what can we do in order to protect that because I don't want downstream issues any more than you do. I mean, I certainly don't want them if I知 down there. We have got a ton of places, you know, in this community where that is the case. Fortunately, you know, western Travis County doesn't have as much of it as places in eastern Travis County. So I知 -- I won't back away from that. But I do want the recognition that -- that that's not just a cookie cutter deal, hey, you are just not looking at that right, I mean, because those are always enhancements. They are not always enhancements if you have a market that can drive that, if you have a market that can support that, then I think that you're right. You know what? You are going to buy this, what does everybody tell you, they love to have property next to a preserve.
>>
>> [one moment please for change in captioners]
>>
>> ...i want everybody to be honest about, you know, that may not be the case for everybody. And that's where I知 trying to get because I don't want anybody to get whacked. I just think that that's unreasonable. And the thing that I continue to hear, and I do believe that we probably could get people together and say, okay, that's just giving you great heartache, which is basically what we're doing with the southwest plan. There are people that want one thing. You're part of it, and I respect you for what your desires are, colin. And I think most people in this community do, but we've got to somehow find a spot where people walk away from this thing and say man, I just got my brains beat out on that thing. And I think that's the thing that's scaring everybody to death because quite frankly, just like a number of people have said on a different subject matter or different stories, but the same subject matter, and that is we don't really have enough time to look at this. I don't have to have time to look at it. What i'd like to have is to have people on both sides look at it and say where can I find a spot that you can give up something and that I can give up something, but it's clear to me that some of these setbacks are onerous and they would be frightful to me, and I don't want to own a -- it would scare me.
>> if I can, there are some things that we've talked about like that in groups. I think some of these buffer zones can be greatly enhanced and improved. I think a lot of people imagine you talking about a buffer zone, they imagine a pristine, rolling water, bubbling creek going along a piece of property with water falls and pools and fish. The reality is some areas do look like that, but there are a lot of these buffer zones that look like a rock out crop with no vegetation, no out growth and there is thog to protect water quality. If you can amend your buffer zone and go in and retrofit it and replant natural vegetation and get it to where it does function as a buffer zone, then at the same time give credit for pollute ant removal, then we can do 10% of that or 15% of that or 20%, whatever the number is in those vegetative buffer zones by restoring those areas back to natural, native conditions, then I think you've got something that the development community is going to say, hey, there's a benefit we can gain from having these buffer zones. We can give pollutant removal efficiencies. We don't mind having them set back if we get something for them. But right now we're giving the land -- somebody, maybe not the county. We're set it aside for no use, getting no credit for the pollutant removals, so it's really kind of a useless piece of land that's left out there. And the a lot of time it looks pristine, but a lot of times people go at the back of your fence and you dump your leaf clippings over the fence, it becomes a mess back there. I think if we can come up with standards for the way the areas should be maintained, I think we can do it.
>> you can picture water quality features in the buffers. That's allowed.
>> these are kind of discussions that we haven't had time to sit down and talk about these to see what we can and can't get out of these structures. A lot of information -- every time we talk a learn different things, I think you guys learn sircht things.
>> what you mentioned about getting credit for the water quality treatment aspect, if you go in and restore it and so on is what we're talking about when we say there's a variance available, if you can prove that up from an engineering perspective.
>> I think that some of the comments that have been made today I think is a perfect example of why we need to knew look at this some more. People have said we're not taking anything because these buffers are set at the boundary of the 100 year floodplain and we've heard comments that we need to be able to use those buffers as water quality. Those statements right there are in different conflict. We do have setbacks that have taken property that we can use for water quality or we have setbacks that don't anything near the 100 year floodplain. We need to figure those out and understand them.
>> several hours of doing that yesterday with hank. [ laughter ]
>> it's a very good -- these are very good points that have been illustrated here, not only today, but in the past discussions. And of course, I always have to try to revert back to what I intend to support and what I知 not going to support. And I think y'all probably illustrated some good examples of a whole bunch of stuff, along with a lot of folks here in the audience today. I知 not going to support a county-wide moratorium. I知 not going to do that. And I知 going to support the water quality issues because, again, although we are required to regulate water that go into our drainage system and off our streams, that's applicable to east Austin, west, north Austin, south Austin. I think all of us would enjoy water quality would it should be. Of course, there is a lot of development that's going on all over the county. Of course, we have a lot of single-family dwellings that have been put together now in several precincts, I知 speaking specifically of mine at this time, and the other Commissioners know what's going on in theirs. Again, it's very important that we look at the kind of development that we want to bring forth. And, of course, I think the moratorium county-wide would kind of put handcuffs around us where we can't proceed in the direction that we want to go. So I heard s.o.s., i've heard the developers, i've heard the residents, and of course I知 going to support these interim rules, as I stated earlier, and from the development community i've heard comments that they would like to have something on the ground, rules that they can go by. And I think tweaking and going forth with a lot of this stuff is something that I think is applicable and appropriate in my mind, but I think we need to in my opinion go in the direction to ensure that we do not hamper or handicap or disable the things that we value a lot in this community. And that is to work together on the quality of life, which also means a water source. Developments have this appropriateness, but also the environment has its appropriateness, and I think we have to act mutually in respect of all of these things. So again, I知 not going to support a moratorium, I知 going to support these interim rules, and I definitely would like development to continue to happen and prosper in precinct 1 as in other parts of the county. But I知 concerned also about what happens all across the county, but specifically precinct 1 with the commercial development that we desperately need in that precinct. So it's not just a regional type of setting, it's all of us in this thing together. And I think we can work it out. Thanks.
>> let me make sure I understand what you just said. Are you saying that -- I don't think we've used the word moratorium at this point. I think what we're talking about are interim rules. Are you saying that you are supportive of interim rules, but you're not supportive of interim rules for the whole county?
>> what I知 saying is I知 not supportive of a moratorium on any of these things as far as what we stated last week that we would support.
>> would that be county-wide? So you'll support that interim rule county-wide?
>> county-wide.
>> let's hear from a few more residents before we move on.
>> judge, i'd like to get some comment back from folks on this. We've tried to hear about the utility agreement up front. It's the chicken egg in terms of okay, the utility agreement, we get it. And I want to throw out some proposed language here that I hope is a blended way to try to get to where we're trying to get, and that is don't just give me a piece of paper that has no meaning and to kind of shorten the distance between when somebody turns something in and we get actual finalized contract. And that is in place of that you have to have all this stuff up front is that there would have to be a board resolution from the utility provider of readiness to provide service and the general terms and conditions of that service, and that a finalized contract would be required before a preliminary plan is approved, if that's what you're filing for, or a final plat is approved if that is what you're filing for. But to try to get to that point of narrowing the gap between somebody saying i've got service and knowing what exactly are the terms and conditions of getting that service from a provider.
>> if we do not have the completed agreement up front, then there is another way you can go.
>> exactly. Showing the readiness and the general terms and conditions. And it allows you that time that before you get to the final preliminary plan or the final plat, you've got to have a finalized contract. So it gives you time to work out this -- your issues with your utility provider, but short earns the gap.
>> we have four more chairs. If you plan to give testimony today, please take one of them. We are close to cutting off public comment. But if you come forward at this time, we'll know you plan to give comments today. Before the cutoff. Two takers and we've got two left. One left. These will be our final four speakers today, unless there's another speaker to step forward. Congratulations, our final four. Give us your names and we'd be happy to get your comments.
>> my name is larry kneeman, I知 an old attorney having represented many developers and neighborhood associations and landowners over the years. I知 one myself. I知 here only in my personal capacity today. I知 going to be retired soon and I won't be representing anybody. But I want to address several issues. Number one, the legality of what you're doing. Number two, the issue of variances that Commissioner Sonleitner raised. And another issue which I call a wolf in sheep's clothing. I知 sure one of the reasons why you had such a lengthy executive session with your attorney was perhaps issues that had been raised that I think the public need to know about, and that is the issue of whether the county really does have authority to draft ordinances as extensive as you have in this proposal. Number one, in my own research I couldn't find anywhere in the water code where express authority was given to counties to do what the tceq and the cities have authority to do on water quality. Number two, the supreme court case of quick versus city of Austin held squarely in my interpretation of it that subdivision regulations did not include the subject of regulating water quality. Number three, if you do have authority, I think you are trespassing on property rights enough to where you would have to have an impact study under the property rights laws of this state. So I am sure you will be addressing that extensively with your attorneys. The ordinance, if adopted as written, is going to be an open invitation to a declaratory judgment lawsuit declaring the ordinance beyond the authority of the county, and in the declaratory judgment lawsuit the other side gets attorney's fees. I don't think the county is insulated from that rule. And therefore if you're wrong from your legal position, the taxpayers of this county are going to be paying double attorney's fees. Attorney's fees for your own lawyer and attorney's fees to the prevailing attorney. That's enough said about the legalities. Now I want to address the variance. I have drafted legislation for over 40 years and I have found that if enough time and enough cooperation is spent on it, you can craft it with a scalpel to where it's fair at the beginning. The wrong way to draft legislation is to draft it unfair and then say, well, we'll fix it with a variance. We'll make it fair with a variance. I think your staff and the land development community and s.o.s. And whoever else is involved in this endeavor can work together to craft it fair from the very beginning and not have to trouble this body with variances. Variances can be abused. I've seen it abused a thousand fold by the city of Austin. The variances gives the governing body authority to blackmail. We will give you a variance if you will do so and so. I知 not saying that this county Commissioners court would do that. The current membership of this court has the integrity to not play those kind of games, but you can't vouch for your successors, nor can i. And I think your successors could abuse the variance procedure. And that scares me. And I hope that this court will leave for posterity this ordinance and not an ordinance that is unfair and can only be made fair with a variance. Now I want to address the sheep in wolf's clothing. Buffers and (indiscernible). If your concern is floodplain, you need to be forth right and address it with elevations and floodplain requirements. That's how you stop somebody from being in a flood. This ordinance does it through the back door with buffers. But they're adding on land to the floodplain. So it's beyond water, it's beyond the public safety. You're taking land from the owners, although you're not taking legal title, you're confiscating the use, there's no doubt about that. Anybody that denies that is fooling themselves and fooling you. And I think before you take someone's -- take the use of someone's land, you have to be very, very fair in your ordinances and not go with an unfair ordinance and fix it with a variance. You can be 50 feet from a creek and not be in a floodplain. You can be a thousand feet from a creek and be in a floodplain. This ordinance does not fairly reflect that reality. Instead, it's going through the back door with buffers instead of through the front door candidly with elevation requirements and floodplain requirements. That's how it really should be handled. Then I want to talk about another subject that nobody's addressed, but yes, I think mr. Knight very eloquently addressed it, but I want to be more blunt. The phosphorus reduction requirement is tantamount to saying you can't go -- what do you mean? You can't take phosphorus out through send mentation or filtration. You can take about 40% of it out. The only way you get it out is through irrigation. Fine, okay, so the solution is irrigation. But let the land and mother nature filter the phosphorus out, but that's not a shriews because the lcra says we can't irrigate on certain degrees of slope. So the section on 75% of phosphorus removal is very deceiving. It's tantamount to saying you can't build on a slope because when you define this ordinance with the lsh, it's tantamount to -- with the lcra, it's tantamount to prohibition. And I think the wool is being pulled if anybody thinks otherwise. I have not been known for my subtlety in the past. Forgive me for my bluntness, but I wanted not only you, but the general public to know what was going on here. If you're trying to save water quality, you can do it. The engineers can design water quality that will preserve our creeks and our springs and our water, but you don't have to do it with buffers that are unreasonable. You don't have to do it with slight of hand prohibitions against building on the slopes. And I would implore this court to be forthright in what they are doing and how they are doing it rather than going through the back door the way this ordinance does. Now, at the same time, let me say there's some laudable purposes in this ordinance. A lot of it is good to the extent that it's legal. The lick creek situation could have been avoided by the very suggestions that Commissioner Sonleitner talked about, making sure you have satisfactory evidence that you've got the utilities, you've got your federal permits if necessary. I think one thing that has been overlooked here has been segmented clearing. Got a big tract, don't clear it all at once like they did in lick creek. That's stupid. You can do it by strong enforcement of sedimentation in water quality ponds. You can do it with filtration. You can do it with inspections and permits. And get tough on enforcement. But you don't have to take people's property in the way this ordinance does under the false guise of water quality. Thank you for hearing what I have to say.
>> thank you.
>> good afternoon, Commissioners, my name is jim phillips. I知 a resident of west Travis County and lick creek watershed. First I want to say I知 pleased to be here today to see the court take action on the issue of water quality. I've been here before. Some of you may remember me. I知 sure Gerald does. I would like to comment on the buffer zone issue. I just recently participated as a voting stakeholder in the development of the water quality plan. The draft final report will be presented to the executive committee in the next couple of weeks. The buffer zone issue was debated extensively during that planning process, and the process took advantage of the experience and professional expertise of a wide variety of the stakeholders. And as a result of that debate, the buffer zones were adapted as one of the critical features of that water quality plan. And I can say from experience that it is necessary to have some control over the land immediately adjacent to streams that may be outside of the floodplain. In other words, in a situation where the floodplain is confined within a steeply sloped area, what you do outside of the floodplain can have just as huge an impact on water quality as what you did inside the floodplain. So myself, I recommend that you adopt this interim ordinance and I believe that the buffer zones are a critical feature of this. And those of you who have followed the progress of the barton springs water quality plan have seen that even more stringent buffer zones have been incorporated into that plan. So I wish again to recommend that you adopt the ordinance.
>> thank you.
>> could you tell us on the plan that we're going to see, because I think I知 going to start seeing it probably Friday, what is the recommendation going to be for impervious cover?
>> the impervious cover limitations were one area where consensus was not reached. And the actual recommendations, as I understand it, would be two different tables. It would be one that's a recommendation by the consultant on what's necessary to maintain water quality. And them another -- a range of limitations will be presented among the group. In other words, there was no set consensus as part of the process.
>> so what it really was is you couldn't get the parties together on impervious cover. Mpervious cover generally links in most instances to -- water quality and impervious cover kind of go hand in hand in most of those debates, do they not?
>> water quality and impervious cover, yes. And buffer zones and water quality also go hand in hand.
>> I look forward to seeing it because I think that in essence is kind of what we're getting to that really is where we are with this thing because impervious cover drives so much of people's values in the lant. And that is an issue. I can see where the group couldn't find consensus on that.
>> yeah. There doesn't seem to be an issue in the interim rules. The impervious cover is not an issue here, is that right?
>> well, it's not unless you make it. And there's always an inexplicable link between impervious cover and water quality. I mean, that's what -- in the 13 or 14 years since s.o.s. Has come about, that is -- I mean, you want to nail density, then you attach it to water quality. And water quality -- because density and that concept drives the degradation of the water.
>> right. If you're suggesting that we need an impervious cover limit also, I would have to agree.
>> no, I知 just saying that if you get one, you've got the other one.
>> what size buffers will be recommended?
>> I haven't seen the final table. I do know that the minimum watershed was 32 acres rather than the 64 that you presented. So the regional plan will be a little bit more strict than this plan.
>> okay.
>> good afternoon, I知 christine mues with the hill country alliance. And we help a lot of homeowners in western Travis County, the guardians of lick creek, the hamilton pool road scenic corridor coalition, Lakeway first. Many citizens in western Travis County. Afertd and I just want to thank you for working on this. I know since June you've been speaking about strengthening water quality protection. I do want to remind everyone we're talking about interim rules and this is not going to be the rule from here on out. I知 committed to working with the southwest Travis County panel and I知 committing to working with the large landowner. I知 hoping through the panel we can continue to find solutions that are ones we can all live with. I just hope we can get them put in place now as interim rules so we don't have any more huge detrimental developments approved in the meantime. I also would like the court a alleviate fears. I've been hearing fears among large londers that there's a -- landowners that there's a fear of public access on their land. I don't know of any discussions or any intentions to allow for public access on anybody's land. Thank you again.
>> my name is ted stewart, I知 a landowner in the southwest portion of Travis County. And I知 not sure who to leave that thought with. I would like to ask Commissioner Sonleitner and the rest of the Commissioners, you asked colin clark what his opinion of that was. I知 going to ask each of you to give me your opinion on whether or not a buffer zone can be construed as an easement and will this court state that it is not the intent of this court then as you can implied not to ever allow public access over these buffers, which I assume are obvious?
>> never.
>> not unless the property owner gives specific permission for that easement to occur.
>> there may actually be some property owners, ted, that are willing to do that and want to do that.
>> absolutely. And that's an acceptable way of acquiring that.
>> no public access even by members of this Commissioners court. [ laughter ]
>> I sent a memo in there to the extent allowed by law, I would like to go along if we get these buffers today, which I can't expound on my feelings about buffers any better than mr. Knee man did, so i'll skip that except to point out a couple of things. One of the things that he said is there are a lot of things in these interim rules that we can go along with as landowners. And our meeting yesterday was a very fruitful meeting. I think mr. Knuckles clarified a lot of things that were giving us heart burn in our part of the country, and I think they're good. The one thing on the table that is still an issue is buffers. And I had cunningham allen run a buffer map on my piece of property, and out of 12 hundred acres of my land, 460 acres would be set aside as buffers. And when you talk about stream buffers, I want you to -- I thought I was the only -- my portion of the county was the only portion affected by this, but mr. Davis' section up there is going to be severely impacted by these buffer rules and the drainage areas that go along with it. If you know any drainage area in excess of 64 acres will have a minimum of 100 feet set back, so some of those areas, little creeks and streams, not necessarily creeks and streams as you pointed out that flow clean clear water, thos not just what we're talking about on buffers. We're talking about areas in and around elgin and inside the elgin e.t.j. Up there that have flat lands of drainage. All land drains, so we all have these corridors. And most areas of the county drain more than 64 acres. We've affected virtually all of the county with these buffers. I want to make sure you understand that. Secondly, in part of my land where the 400-foot buffers go from major waterway, that buffer would go from the point above the flood line on the pedernales river. For me that doesn't seem to be the intent of a buffer zone. The 690 elevation, which we discuss, runs way up the pedernales river and 400 feet from the center of that river runs on top of my bluff back past some 150 feet or more. And that's 110 feet above the floodplain. That's not a water quality issue. And the other thing I would like to see, the moratorium word which mr. Davis used a minute ago I thought was prohibited in many of our discussions around here, and moratorium on all development or any more plats in the county to me would be more acceptable than the interim rules, however, I would like to suggest a compromise, which i've sent into Gerald Daugherty's office to at least pull the buffers off of the table until we have time to address those, put some time frame on when we have to provide information from some technical people to discuss what these buffers are. And also with the interim rules, I think the interim rules should be clearly intrum rules. And as we discussed in our meeting yesterday, and I don't think there's a lot of objection to it, I think we should have an spir rietion date on these interim rules if enacted today just to give everybody some clear feeling of what we're looking at, what the time frame is. Frankly, the interim rules as they're stated here today with the clarifications in my opinion remove a lot of the incentive for the groups to move forward because they've in fact delivered here as interim rules what many people in this county want to get as a maximum win-all solution. So those are my comments, and again I appreciate there's also -- we got another proposal. We think that maybe the landowners have not had a forum as the mierpt group here to really espouse what we would like to feel, but we're discussing with joe la sard, and if proposed through bob Moore to form a landowner subcommittee to come back to you within the next 30 days to the group and recommendations. Not from a developer's standpoint, but as landowners who don't want to develop their land at this time. Who want to not have to run down and file a plat to protect themselves under 1704, but to enter into some kind of agreement that allows us to not be penalized for not doing that. And I know that somebody stated today there were five plats filed yesterday. As far as I知 concerned, that's why we get into the problems we get into. I would like to be able to sit down with the group and negotiate a conservation minded development agreement that would say this is what we will turn our land over to them. And I expect to lead an effort of some 8 to 10,000-acre of land represented by a handful of landowners at southwest Travis County to do that. And I appreciate your time.
>> there have been several persons that have agreed with me on not invoking a moratorium. They have their reasons for it, even from this group here you've heard that they do not want to invoke a moratorium. But what I am hearing more than anything else is to go ahead with interim rules and the moratoriums from several folks are just not acceptable. Everyone has their different perspectives on how we should proceed, but I stated it the way I did was because of the fact that I do not support a moratorium based on this.
>> could you support the enactment of the of the interim rules without the buffers? 150-foot set back from a bluff makes no sense to be couched as a water quality issue. It just can't be. As mr. Kneeman said, it's a wolf in sheep's clothing. And that is the prime value of over two miles of the pedernales river that I owned and another three miles that three of my neighbors own. If we can't utilize the vit ta from the bluff of the -- vista from the bluff of the pedernales river, if we're prohibited from building there ever, then you've removed the value of our land and it's not waterfront property. The difference in waterfront property and non-waterfront property in this property is about a thousand percent.
>> let me ask you two questions. One would be, you know, preliminary plans do not have to be filed with Travis County. And I assume that if they're not filed we don't have to accept them. What if we were to do something less formal than a moratorium and we just proclaimed that effective on a certain day at a certain time in Travis County for 180 days will not accept preliminary plans or plats.
>> I think that's fine. From my personal perspective.
>> I think we're looking at 120 days.
>> I heard that mentioned. Now, there is -- there are study groups in place, and we expect them to come forward with recommendations at some point. So 120 days hopefully will give us an opportunity to receive that input.
>> it should cover all the panels going on at this time.
>> let me ask another question. If the buffers are the big problem, what if we take the variance language the part that applies and put it in the subsection on buffers. So if you have a particular tract of land and you believe that the 100-foot buffer really does not apply and one smaller does, then that would be the green light to basically persuade joe gieselman, who certainly does not believe in blackmail. The court may, but he does not. But persuade him that the variance should be granted. That way instead of asking for an exception, you really go in and show that your particular situation is different in that subsection and what you filed would be what you think it should be. Now, it kind of turns on whether or not county staff would agree with you.
>> right, and that's the problem. What I would rather see do on these buffer zones is tie them in some way to the floodplain. Get a scientific definition of what this buffer zone is and understand what I知 saying that on my property the buffers proposed go to a point 110 feet in elevation. That's 10 stories, 11 stories above the 100 year floodplain. And mr. Davis' jurisdiction is there are going to be streams over there that don't have water in them, very many -- except when it rains there are going to be drainage basins that go through there that will have swaths cut through there that there will be a lot of unhappy landowners. One of the problems is this is restriction that goes on all land, all the title exenz need to be weighing -- title companies need to be ha weighing in on this. And on top of that you have banks sitting there with collateral that's going to be taken away from them by this taigings measure that you're doing with the buffers.
>> let me get on that because I represent many of the same gee dwrafk areas as commission -- geographic areas as Commissioner Davis. You're talking about stuff that right now it's floodplain. Let me speak about northeast metro park. It is gill land creek. I think it would be considered a major waterway simply because of the water area. The setback from the creek, which is less than a football field, which makes it real easy for me to imagine because we have soccer field oz that property, the floodplain is larger than these setbacks. These are very shallow creeks, and I appreciate the fact that you're concerned in terms of, well, they're mainly dry, you bet they're mainly dry, but when it rains, and boy howdy does it, it floods. And we have a tremendous drainage problem up in the gill land and the wilbarger creek areas that those things are flash flooding creeks. And we can have a 10-year event. Forget 100. A 10-year event and we are flooding streets in subdivisions. So we're not going to be taken away most of that property because it's already in a floodplain. The buffer is actually less than the floodplain. So it's really -- it's really not going to be something that takes away. Northeast metro park, which Travis County bought in 1997. The lower 150 acres is all floodplain. And the creek is on the edge of the property, not in the middle of the property, on the edge. And it wipes out 150 acres. And the reason we bought it was precisely for that reason because we knew we could put uses in that land that can drain and flood and there are not going to be people on it and the water comes down and you can have the kids playing soccer again. If we're confusing a buffer in some of these shallow creeks with floodplain.
>> that's exactly my point, Commissioner, that the floodplain is defined -- I don't know if you're aware right now, but Travis County and the city of Austin are undergoing a brand new fema flood map that's being done right now to redo the 100 year floodplains. So with the floodplains go beyond the # hundred, 300 feet, then the buffer will not correct that problem. It needs to be defined by the floodplain lines that you describe in any scenario.
>> let me go back to something you're saying because I had to deal with this when I was still a lake Commissioner. You're still going to be able to build on your property. What you're wanting is to have a guaranteed view of the water as opposed to a guaranteed view of something else, be it trees or a sunset or whatever. You want to be able to -- where is it that says that we have to protect somebody's guaranteed view of a particular thing that may not be on the same plain?
>> my question here --
>> I don't think we're making your property unbuildable. I really don't. Where does it say that we're supposed to have rules that guarantee somebody's particular view of a particular thing that they might want to have as opposed to that is still wonderful, valuable property.
>> you're talking now about land use as opposed to water quality. If you're talking about usual ub -- I知 trying to respond to you where is it supposed to say that we're supposed to guarantee somebody wants a particular view as opposed they have to go higher up to get that same view.
>> you're missing my point. My point is not the specific view of the 150-foot set back. My point is that what we're doing here is setting aside buffers in the name of water quality and water treatment. In my opinion 150-foot set back along the bluff along the pedernales river does not fall in that category. It's a land use and it's a zoning issue of the county saying you don't want me to build there or maybe to protect the view corridor of somebody in a canoe going along the pedernales river. That's a different issue than not allowing me to build under the health and safety issues that mr. Knuckles has said that he's under the mandate of the state to protect. That's all I知 saying.
>> help me understand because the bluff -- I知 looking at the bluff language here.
>> on page 6?
>> on page 6 it says notwithstanding -- the (indiscernible).
>> my problem is that i've been told by cunningham allen that there are bluffs along the pedernales river. --
>> could you use that microphone. Otherwise we will have people yelling at us that they are not hearing.
>> it looks like I cut my throat on this this morning before I -- you said pick this up?
>> yeah, just pop it up. Thanks.
>> this tract of land you see right here represents about 12 hundred acres in southwest Travis County. This is cypress creek, this is the pedernales river. These buffers, including the setbacks from the bluff of 150 feet that are proposed along bluffs or rim rock actually are going to be controlled in the majority of this subject to a final topo by the setbacks from the creek because these are considered rim rocks. In a rim rock designation, the stream setbacks go past the rim rock and don't end with the bluff. And this amounts to a literal taking of 460 acres out of 12 hundred acres. In addition to that, these shaded portions are slopes in zero to 10 to 20-degree slope maps, which is included in the rest of that, which has some significant loss of development there. And that's a visual representation of what we're talking about, so, you know, these bluffs need more study. This is a very significant area of environmentally for the county. I mean, every one of these little circles is a spring and a seep or something that goes along there. And it's not my -- I don't have a plat ready to file. I haven't considered filing a plat. What I want is some protections that say I can get some entitlements on this property. As Commissioner Daugherty said early on, we want some -- we want some fixed rules that we know are not going to change between now and the time my grandkids get ready to build their cabin out here somewhere on this property. And I would like to -- I think the buffers are onerous and I can't say much more about them.
>> could I ask that this map be made part of the record?
>> if we took out the buffers could you live with the interim?
>> yes, sir.
>> and you would suggest that we continue to work with folks in the next 120 days to come up with new set back numbers with regards to bluffs? Is that what -- the large landowners obviously having a spot at the table?
>> yes, sir.
>> Gerald, let me try someplace in between there. If we got -- I agree, I don't want to go with the m word. I don't even want to say it out loud. But interim rules if we have a specific time period for them, let's say it's 120 days. Name your number. That tells you specifically that during a specific term period, these are going to be the terms and conditions of coming through the county development process, and you may come through, and we're not going to stop anybody from making reasonable use of their property. But it says these are the interim rules. It does not preclude the group from continuing to meet during that 120 days. And if they come up with something better, that those then become the permanent rules. I知 really going to stay as far away as possible because people have asked me this, are these the baseline? No. Interim to me means interim. They are the rules at this moment in time. But I want to have it be something that people can count on that this they know what the rules are. And if they choose to go forward during this interim time period, this is what you're going to have to do. And they can be replaced at the end of the dialogue. Because I don't want to take away the dialogues if it's impetus for even moving. If these things are going to be it for 120 days, keep meeting. Get some agreement. Because otherwise this is what we're dealing with. But to pull out the buffers, jarrod, it doesn't get me there. I would rather have something in place and then this is -- if you want to come through over the next four months thrks it. If you would like to take your chances that something better is at the other end because we have this dialogue group and we're trying to get consensus and trying to land someplace else, then let's work hard to land someplace else.
>> let me put it a little bit into perspective here. This 460 acres represents the value in my land because of its -- because of the environmental sensitivity of these features out there. I want you to go back in records because I知 not sure my facts are exact, but the county purchased right across the river from me, within a mile of my property, hamilton pool in the early '80's. The county elected to pay 30,000 -- approximately $30,000 an acre, as I think, for some 2 hundred acres of land out there, and then came back and paid another million something for right-of-way to get there. So from my perspective and from the county's perspective as far as looking at where I am, if you take 460 acres, which are the valuable features on this property, at $30,000 an acre, that's -- that's your purchase price, it's my comp. I want you to look at the significance of what you're doing to one landowner. And there are five miles of landowners on both sides, 10 miles of landowners, several thousand acres represented by this action. And I like your idea of let us continue to work. We've been working six months on the southwest Travis County panel. And all of a sudden these buffers come up here at the last minute on a Monday night special for review and enactment on next Tuesday morning. To me that's not operating in good faith, and I think there are enough protections in the rest of the interim rules to make sure you're not going to get a shoddy subdivision plat filed here in the next few -- in the next few months until we can get that resolved. That's one issue on the table. The rest of these issues are there. But that doesn't mean we stop working on buffers. We're happy as a landowner group in this environmentally sensitive area to sit down with you. And I think we can come forward with -- I think we have an opportunity to present under some development agreement with the county some 10,000 acres of land that could be entitled from now on and without having the plat filed on them to get our protections. And so I can't plead my case any other way, but that's a lot of money to somebody from odessa, Texas who made his living digging ditches and laying pipe to get to this point.
>> help me out in terms of understanding what you think is the harm. Because again you just said, I don't have any plans to come through the process at this point, so what is the harm, please, if for the next four months -- I知 just throwing that out as a for instance -- we have rules in place that you've made it clear you have no intent on coming through the process? Help me understand that.
>> well, i'd like to throw the question back to you and ask you the same thing. And we're kind of -- I think that one of the issues that mr. Neiman brought up is what will happen if the buffers are enacted on us at this meeting today. I think we can't rely on this court to protect our interests. And I think what you will see is we'll be spending our efforts and our money elsewhere, wasted energies, wasted legal fees. And again, I知 asking you, let's wait before we -- there are a lot of questions here that I don't think are answered fully to make this decision.
>> I take great issue with you saying this court is not looking out for your interest because if that is the case, ms. Muse would be saying why didn't you enact arbitrary and capricious rules back in June. We have been very cautious and deliberate. We've spent an unbelievable amount of time talking about this, more than about coyotes and more than about leash laws, more than about landfills. And goodness knows how much time we've spent on all of those. We have been extraordinarily cautious. We have not used the m word. We have not put in a moratorium. We have not slammed the gates. And we have allowed people to come through here on a case-by-case basis and plead their case, some extraordinarily controversial, ie sweetwater and rebecca hudson's property, and some why no one said a single word. Last week we did one 4 hundred acres on hamilton pool road and not one person put into the record saying that they objected. So I think we have been extraordinarily cautious. We've been trying to respond to the legitimate concerns that people have brought forward related to be careful of having unintended consequences. We are thoughtfully thinking these things through, but do nothing is not an option for me any more because things are happening every single week. The several fact we have five preliminary plans put in yesterday clearly shows that people are not taking the same thoughtful process that you are, and are not taking the same thoughtful process we are. And at some point we have to enact some interim rules, and to me interim means interim, it doesn't mean baseline. It says continue to work. And if you can come up with a better product, great, but if you want to come through and develop over the next four months, these are the rules that you're going to have to meet. Period. And 30,000 an acre, that's -- gee, mr. Clayman here will tell you how much we had to pay for the property on 2222 --
>> the price has gone up in the last 20 years.
>> or not.
>> we don't want to have to test that case. I知 certainly not implying -- implying that the court to this point in time has not been willing to participate. I appreciate all the dialogue committees and things and especially what mr. Daugherty has done in our areament but again, we're talking about one issue of buffers. That doesn't mean we quit talking about buffers. I think the interim rules as they've been amended and clarified are much better. They're something acceptable to me. And I would like to see them enacted without the buffers.
>> well, I do think -- judge, this will be quick. I can see why you're frightened. And I can see why the hamilton pool road people felt like that they were -- that they were not given the time back when lcra was talking about doing what they were -- what they ended up doing. And I would like to add -- christie, I guess you represent the alliance, don't you? Would you not use this as a starting spot? I mean -- here's what frightens everybody. Interim really does mean something. This is where we start. When you say interim. Because I can just imagine everybody being down here in the middle of us over, well, surely you're not going to move from here.
>> [inaudible - no mic].
>> I don't preclude them from coming up with a situation that says that kind of does make sense. We don't need to be 150 feet back from a piece of rock that's way far away from any kind of flooding or any kind of something. It quite possible that they could come back and say there may be some different sets of rules, but if you want to come through them in the next 120 days, this is the best we can do for you right now. That's quite possible if you make good arguments that's something different. But I have been asked this question more than any other. What does interim mean? What's the definition of is is? Interim means interim. And I am not going to take this -- this is the baseline and it can only get that much stricter. I知 just not.
>> what do you see as the term then for the interim rules?
>> I think the judge has --
>> do we have --
>> in my view, in view of all i've heard, the compromise is for Travis County to amend the current ordinance and pa basically proclaim that we will not accept any more filings of preliminary plans or plats for the next 60 to 90 days. And during that time period we work on not only buffers and setbacks, we work on everything else. That also allows the other study groups to complete their work. And if we put 90 days in the current ordinance, then 90 days is something. The other thing is it seems to me that in view of what we're trying to protect, I知 not sure that it ought to apply county-wide. And so if there's a way to come up with language that sorts out what we're trying to protect, that's what we would do.
>> judge, if I could throw out a for instance here. Because in terms of going on from thrrks we are -- there, we had people just yesterday who turned in a preliminary plan applications. We have x number of days to determine whether those items are administratively complete or not. Some of them very well might be administratively complete and ought to be allowed to continue forward. But what do we do about things that got turned in, be it yesterday, last week, two weeks ago, that there has not been made a determination of whether they have been administratively complete. And it turns out after review they are -- can we use the word substantively complete? Because I am really concerned that there may have been something that is not by anybody's definition substantively complete and they would be grandfathered in by having turned in a preliminary plan. And it's absolutely -- it absolutely violates all the tenets of the rule.
>> we've got things that have been turned in on cocktail napkins and that's what's happened. Because of what we've done in the last three weeks. It has frightened the living phooey out of a number of people. That's what it is. It's like this is happening to us and this is Austin, and this is what happens to you in Austin. And it has happened to you in Austin for a long time. Which is not right regardless of how you cut it. I知 very comfortable with what the judge -- it's effectively giving the neighbors a comfort level that we're not going to accept them if we vote on this thing today. You just hold up. We're going to allow -- I think you need at least 90 to 120 days. We've got six weeks to basically finish the southwest dialogue plan. And I think with the intensity that this thing caused it's probably going to take a little more time. I would think that if the neighbors -- we're not going to have an onslaught of people coming down here and throwing something on a cocktail napkin and submitting it that we're going to work between now and then and come up with some consistency on what we're -- there's someplace in the middle of this. And where engineers say, you know, you can do those things.
>> that does not answer the question. What do we do about those things where there has not been a determination by tnr that they are substantively, administratively complete? And it turns out they are your cocktail napkin example that you just --
>> if you filed and you are administratively complete, you're okay. If you filed and you are substantially complete, you're okay. If you file and you are administratively incomplete, then you are not okay. That is where we are.
>> the substance is there and it's a matter of dotting i's and crossing t's, you're not throwing anybody out on technicalities? Is that what I hear? I知 trying to determine substantively.
>> is this going to be county-wide or only in southwest? Because I will tell you that we have preliminary plan issues all over the county. And quite frankly, I would like to be in on this one if this is -- if this is good for southwest, believe me, we've got just as many quality issues related to good work being turned in all over the county.
>> I would be in favor of county wide.
>> my motion is that we approve our proclamation not to accept preliminary filings and preliminary plats for the next 90 days, that we amend the current subdivision regulations of Travis County to provide that. And that the application be county-wide.
>> I second that.
>> does that include that we are not going to include with that motion the interim rules as we see them today?
>> that's exactly what that is. Travis County is available to work with interested Travis County residents to work through these issues. We have been participating in the various studies already. Our intention would be to continue to do so. And if landowners who take an interest in this and other residents who are still interested, then I would think that those meetings would continue. The other thing would be that if we say 90 days in the rules, but there is a meeting of the minds, say, in 45 days, do we legally are have the flexibility to post this item, come back in and do something different?
>> sure. That's why I知 saying it needs to be an amendment to the code. You can always amend the code. If you say no filing of preliminary plans for 90 days, you can come back tomorrow or next Tuesday and change that if you want to.
>> then there's a motion.
>> can we make sure that we get written into the record, we went through this thing here that we've got some things that are out there that have not had a determination yet of whether they are substantially complete. And as long as that is a part of the motion, judge -- because I just see people right now saying, I got it turned in. Doesn't matter what y'all ruled on. It's in.
>> and judge, I have a comment on that. What was -- was it two weeks ago -- was it the first -- tom, was it the first?
>> first time it was on the agenda.
>> then I think that what that need -- I think that's probably what anna was going to ask. I mean, if you had plans in here before the 1st, you were turning things in here to beat the time clock. Where this thing has happened is the last couple of weeks because the interim rules have -- have I think added a different dimension to people getting things in. I think after the 1st, I would agree, Karen, if it's not substantially our substantively complete, then somebody's going to get caught in that. But I think it needs to be from the 1st. I don't think it needs to be from yesterday or it needs to be two minute after we vote on this thing.
>> do we have any things -- I apologize, Commissioner. Do we have any things that have not been ruled on, that have been filed since the 1st?
>> we have things that came in from yesterday.
>> but we have things from before that have been incomplete that they just haven't resubmitted.
>> if they're before the first, as far as I知 concerned, those are the ones that I知 not willing to vote on moving the bar on.
>> but there is law in place that governs all of this, isn't there?
>> you're talking -- the substantively complete concept is basically cutting them a break from existing law. We've got a provision in the subdivision ordinance that says you don't get any investing or grandfathering until you are administratively complete, period. Which means every little thing. What I hear y'all saying is you want to cut them a little break and say, substantively complete, you're still going to be grandfathered or vested.
>> if you have already filed then we expect you to be substantially or substantively --
>> sort of like substantively. Because you're looking at the substance.
>> that's more flexible than current law, we think.
>> yes.
>> the cocktail napkin got turned in yesterday and it's not going to pass muster, then it's going to be one that would be rejected on its face saying sorry, you didn't meet?
>> no grandfathering.
>> and no grandfathering. But if somebody did indeed up to whatever point we passed this, have turned something in that meets all tests, then it can move forward.
>> I second that.
>> Commissioner Davis --
>> I have a couple of questions.
>> Commissioner Davis.
>> as I stated erwin center, I知 going to continue to support the interim rules as presented to us last week by the -- and also discussed -- it's got a lot of discussion as far as getting to the interim rules. I really feel that there does still need to be a coming up minds to come to a finalization in all of this. I feel that if we just pull preliminary plans off the table at this time, I still think that there may not be any resolution in this particular issue. I think what the folks are really wanting is that we have some type of rules to go by. And, of course, these were -- they've been worked on and of course it's difficult at this point as we're here today. And I just do not feel comfortable in supporting anything other than than this because of the hard work that has gone into this. And I have had persons not only from the residents throughout Travis County, but also the development community who we really want to know what the rules are. And by not adopting the rules or going forward with the rules, there's no level playing field. We're still back, in my opinion, to ground zero because of the fact that this is where we started. And I know this is an action as far as pulling the preliminary plans as far as folks are filing and -- I guess it wouldn't be a moratorium, but I guess in a sense I guess it would be because of what we're doing here today. So I知 just -- I would like to make a substitute motion. I probably won't get a second on it. I would like to make a substitute motion, that being that we adopt the interim rules as we have discussed, the ones that we have, the ones proposed here, and that we go ahead and adopt these interim rules. And then I think there are some real good points in this. And there's a foundation that we can go by as far as governing how we deal with a lot of development throughout Travis County. I'd like to make that as a motion.
>> Commissioner, I would normally second the motion, except that I think that there is still a lot of room for dialogue and understanding of the rules that we currently do have. And those are the floodplain rules so we can understand exactly how the setbacks would fall under those rules. And those apply downstream as well as upstream. And so I listened to my attorney as well and I think that I would be ready to take any action and feel comfortable that whatever action I take is going to be the right action to take. However, I also know that there's more room for more dialogue and more understanding of what we have in place. And how we can apply those throughout the county. So yeah, we spend a lot of time discussing issues and I think on some we spend years, three or four years discussing the issues. And -- but at the same time I think that we -- we reach a better understanding of what we are about to set in place, whether it's interim or permanently. And so I feel comfortable in taking the 90 days that the subject is proposing to continue this dialogue and still -- but I feel good that there are some things in place that will not let us just totally go off the slope and hurt anybody. And ourselves. And at the same time I am concerned about downstream and so I知 very interested in seeing that we put in the best possible policies that will protect not only upstream, but downstream. And we -- we're the receiving end of the development that occurs upstream. And I am very much interested in water quality. I知 not about trying to stop growth. I think that there is room for responsible growth, but I think there's -- which means also protection of people downstream. So I think an additional 90 days is fine for this dialogue.
>>
>> [one moment, please, for change in captioners]
>>
>> ...well, another 90 days went by, we still have concerns that have not been addressed. Again, hopefully these interim rules will come back to the Commissioners court. If I didn't get a second, I guess that motion failed.
>> ms. Boldin, dr. Ross, Commissioner Sonleitner.
>> I have a couple of questions for clarification. We're not talking about inside the e.t.j.s, we are talking about strictly outside?
>> yes.
>> right.
>> and we're only talking preliminary plan, no final plats?
>> yes.
>> absolutely.
>> okay.
>> final plats have already -- are already in the process, right?
>> well --
>> [indiscernible] destination with a big final plat sign on it.
>> not all final plats have preliminary plans.
>> this -- this is supposed to cover filings of preliminary plats and preliminary plans.
>> so both.
>> this is -- covers both, tom?
>> final plats?
>> I -- I知 asking you, judge.
>> see that's what --
>> two different things, preliminary plans and final plats are two different things.
>> I know. Final plats I didn't think we were covering. I thought we were covering those that had not been filed with us. If you had filed and have been out there working your development, then you have gotten in under the -- right?
>> well, ana is raising a slightly different question. If you say that you cannot file a preliminary plan application with Travis County, over the next 10 days -- over the next 90 days, that still allows someone to come in and file that final plat application.
>> you can do your subdivision and you might not need a preliminary plan, even if you were doing streets if you were going to do the whole thing at once.
>> what's the likelihood of that happening?
>> sometimes it happens.
>> I thought -- -- my inclination was that seldom happens. Virtually --
>> usually it's phased.
>> you are going to have to do a lot of engineering, surveying, other stuff.
>> in the -- in the exceptional case, where that happens, then process that to the -- through to the Commissioners court, how's that?
>> I知 not sure that I understand what you mean.
>> what does that mean, judge.
>> have the staff work on it and present it to the court.
>> for approval or consideration or -- owe.
>> both.
>> I知 banking on it not happening during the next 90 days. If it happens once or twice I think we ought to see it.
>> you would in the mean time see all of the other final plats that you normally see, the short forms, ones without streets, the resubs.
>> here's where I知 trying to get to. Where the food fights have been occurring are on the preliminary plans and we have been lectured many a time appropriately by people in the audience that preliminary plans are discretionary by this Commissioners court. We have used that try to learn, I won't use the word blackmail, but leverage better things in a preliminary plan than we could. But when we start talking about somebody deciding to skip preliminary plan, go straight to final platting which is where anne is headed here, we are really lectured by state law as to what we can do. I don't think we have the discretion to say we are not going to allow somebody to go straight to a final platting. In fact when somebody turns it in, it is administratively complete, meets all of our rules, under elgin we have x number of days, it's ministerial, we could be taken to court to be forced to do it.
>> saying you can't file a final plat application is a moratorium. Saying you complaint file a preliminary plan application is different because preliminary plans are not required by law, that's something we create by rule at your discretion.
>> I agree. My initial motion does not cover final plans, if we get one of those, staff out to process that, put it on the agenda like usual, right? For appropriate action.
>> I think we are -- preliminary plans cutting that off is going to buy us some time related to one of my big issues a paper utility contract. By the time you get to final platting, you are going to have to know precisely what the rules and regulations are in terms and conditions of you getting water and wastewater service. If there are conditions attached they need to be attached to the final plat in terms of some things that get written in as plat notes. That is appropriate. Certainly you have to have dealt with other regulatory agencies and all of those things can be finally put into the final plat. So I think we can get Commissioner Davis to that same good purpose because some of these things that are happening in western Travis County are things that people are trying to come in and phase and they are going to have to deal with the entirety of the parent tract and not just one small part, which is what we have been piecemealed to death out in western Travis County. I think this will buy us the time and get us the certainty on the things that we need certainty for.
>> intended to be just a 90 day hold.
>> in the meantime, if we have a complete preliminary plan application, we still process that and put that on agendas -- I知 not saying that I know that we do. I知 just trying to -- to anticipate.
>> it's administratively, what's the word we can't ever say?
>> substantively.
>> I知 not saying I know one way or the other.
>> if you get one bring it to us. Dr. Ross, a final word on this?
>> yes. Judge Biscoe and -- Biscoe and Commissioners, this is a very different motion than passing the interim ordinance. And I appreciate the fact that you believe that this motion will prevent vested entitlements for developments that have either come in and are not complete and might come in in the next 90 days. I don't know whether you are aware of two pieces of legislation that are being considered in the Texas legislature this week. One is senate bill 848, the companion bill is house bill 1704, of course. Those bills would say that a development application is grandfathered, whether or not it's complete. It would be grandfathered based upon an application for a complete list review and that the date of the grandfathering is the post mark of the certified letter. I知 not a lawyer but I have worked many, many hours like this one because -- simply because I care about water quality protection in this community. And I have watched those efforts come to absolutely nothing. Because of the issue of grandfathering and it is very sad to me and it's very disturbing to me that not only have we lost the opportunity to protect water quality downstream from five additional plats because you did not vote last week, but now I知 watching the opportunity for developers to come in in the next 90 days, the state law doesn't say you have to receive it. It simply says that they put a post marked certified mail application to you in the mail and that will be a basis for vesting their entitlements to develop. And I think that you could lose in the next 90 days, exactly what we lost between may and August of 1992. And that is the opportunity to have any protections at all from regulating development in up incorporated Travis County, I can't tell you how sad that I am to see you do what you are about to do.
>> dr. Ross I知 not making any representations that we know how many of those five plats -- plans that were filed for yesterday are substantively administratively complete. We don't know.
>> but it could be all five of them.
>> if this bill passes it won't matter.
>> help us kill that bill.
>> you know what -- I haven't billed hours to a client in weeks because I知 working so hard to try to kill those bills. But you know what? I have very little influence compared to hank smith with the builders association, and jim knight with reca. I知 going to do everything that I can do just like I have been, but I actually need your help.
>> we will get Commissioner Daugherty to use his great influence with hank smith.
>> let me say, lauren, I mean, I知 always moved by the people in this community that will lay their life on the line for water quality. But you know what? This is Gerald Daugherty, water quality does not mean the same thing to me that it means to a lot of people. I like clean water. But I will tell you that I think that we had the 1704s, I think that we have the things in this community of all of the good things that came out of s.o.s.,ening to push the envelope to stop roads, to stop infrastructure, to sue people, I mean, regardless of whether you've got something, you know, that you ought to sue them over, I don't think that that is right. I would love to have had the ability to sit down, you know, 13 or 14 years ago, but you know what? People in this town were so crazed about knowing just enough to be dangerous, I mean, I think I signed the s.o.s. Ordinance because somebody asked me while I知 running around town lake if I was for clean water. I said well, yes I知 for clean water, but I didn't know what was going to happen. I do think that the reason that we have the range wars is because the environmental community have been the one that's have been we're not moving back, we have -- and in the city of Austin, the city of Austin that you do have the power. There is no question. That's the reason that I think that the legislature comes into this town and beats us over the head because the majority of the people in the state of Texas do not agree with those, lauren. I don't know -- I don't know how to get there.
>> well, what I have heard you say, Commissioner Daugherty, is that you in fact believe that Travis County ought to have additional -- ought to take additional power to protect water quality. And I知 simply saying that I think that the actions that you are taking today will completely erode the powers, not to implement impervious cover limits, motto sue developers, not to, you know, take public positions on bond issues. But to implement the water quality ordinances that you have said that you want. And so you either want them or you don't want them. But I hate to see you take an action that will absolutely negate the opportunity to implement anything and you have another choice today which is to pass the interim ordinance.
>> we will try to -- or try on keep the bill from becoming law. I think that we have already indicated that we were not in support of it.
>> dr. Ross, that bill is even -- eats even more interesting because it could even be that you dreamt about your development and that grandfathers you in. I think there's some things that we ought to be able to go to the author of that bill and say can we find a more reasonable position. And I have to tell you, if -- is it kimball's bill. If we go to representative kimball, I would rather go there saying we're putting a hold on something that is discretionary of the Commissioners court in term of the approval of a preliminary plan as opposed to we went in with interim resumes. - with interim rules. I think it's a stronger position. While we've got some folks here from the development community, I would love to know has the home builders taken a stance on hb 1704? Has the real estate council taken a stance on the new version of 1704? Has the chamber taken a stance on the new version of 1704? Rather than keeping it out there, I知 with ya, that legislation is challenging, i'll be nice in terms of how i'll describe it. I would like to find out if we have some allies in this room in the development community that will try to get some reasonableness reattached to 1704 in terms of what's been introduced. Because that would paper me greatly after going through all of this to try and respect property rights that all of a sudden we don't have friends that will help us fight reasonableness in terms of literally it can take a post mark, not even accepting an application, that grandfathers you in. That disturbances me greatly.
>> I don't think this item is posted for that, is it?
>> well, the other thing --
>> [inaudible - no mic]
>> judge, just one other point. The other thing is that in the -- in the plats that come before this court, we look at the floodplain ordinances that we have and based on that we -- the set asides or the setbacks are basically the floodplain. And that's what we rely on more than we do on any other ordinance. Because of the -- of the lack of -- of ability for us to pass ordinances. And my -- my reliance would be on what we have to go on and that's the floodplain ordinance. To take care of those kinds of setbacks. And so --
>> I don't know that we expect everybody to be happy. This is a compromise. But I think it's our way of saying let's try to work through these issues over the next 90 days and have something that we can live with.
>> is the effective date on this like as soon as we vote?
>> absolutely.
>> effective immediately is what -- the motion said, didn't it? Does now.
>> we feed to be clear.
>> judge, I would like -- I think that I need to go upstairs and draft actual language for you all to vote on. I don't want there to be any mistakes or uncertainty or any misunderstanding about what you vote on. Because we're talking about an amendment to the ordinance.
>> what if we vote on it right now, you get the lapping, we look at it, get it in final shape and sign it.
>> is t.n.r. Closed today? It's 5:00. Is your office closed? Okay. The office is closed.
>> let's see in this passes before you leave. All in favor? Show commissions Sonleitner, Gomez, daughterty, yours truly voting in favor. Voting against Commissioner Davis. Draft that language for us, bring it back down, we will look at it and if we agree we'll sign it.
we have been given language by the county attorney's office to capture our motion on item 21. Which involves the interim rules or the amendments to chapter 82. Tom, do you want to walk us through this quickly?
>> okay. The order is basically just to document the legal basis for doing all of this and make it defensible should somebody decide to challenge it and you'll notice that the bottom of the first page i've got you directing staff to do the takings impact assessment during the posting under chapter 2007 of the government code. I think we need to go ahead and do that. So if you all are okay with that, we'll go ahead and take care of those requirements. And then exhibit a is the actual rule language. And it says notwithstanding any other provision in this code, the option of submitting a preliminary plan is temporarily suspend outside the e.t.j. Of cities. So we only want this to apply outside the e.t.j.'s? Okay. For an initial period between March 16th, 2005 and June 15th, 2005, preliminary plan applications may not be filed and all final plat applications shall include the entire original tract. So they can still file a plat application, but it's got to cover the entire tract. The dates there, it's not exactly 90 days, but I think June 14th is a Commissioners court day, so I thought it might be good to have this go until the day after a Commissioners court day in case you all wanted to take action on that day. Then it says notwithstanding any other provision of this code, preliminary plan applications filed before March 16th, 2005 that are not substantively complete shall be rejected and a preliminary plan application for the same tract may not be refiled until after June 15th, 2005. So basically, if you filed before -- if you filed today or before and you are substantively, administratively complete, then you are going to be grandfathered and invested. But if you weren't substantively complete as of today, you are basically going to have to wait until after June 15th to refile.
>> quick question because we do make reference in a previous sentence that the initial term may be extended by an amendment to this paragraph. How do we capture that in that next sentence that says you cannot refile until after June 15th, 2005 or shouldn't it be something about or if the initial term has been extended?
>> well, my sums is if you do extend it we will go back in and rewrite this same section.
>> same section, not a problem. The reason you too that is basically people -- because we've done it so long, there may be in some expectation that people will be able to continue to file preliminary plan applications. We are saying first of all it a temporary suspension, not permanent. But it may, you know, go beyond June 15th or at least you all reserve the ability to do that. Nobody should count on having the absolute right to file a preliminary plan application on June 16th. We're not guaranteeing that to anybody.
>> okay. I知 fine.
>> also this is also something that legally want to do in these cases to make it more defensible, we do provide an exception for cases of extraordinary and undue hardship.
>> do we need to have that say [indiscernible] executive manager, appealable to the Commissioners court.
>> okay.
>> what I would move baichtionly is this is consistent with the motion that we already passed.
>> I wanted to momma sure that the language was consistent with your motion.
>> I believe there's a place here for the Commissioners court to sign, my motion would be for us to sign this document today or tomorrow morning and make it a permanent part of the court's record.
>> [indiscernible]
>> right. I see that, but one member is not here. And --
>> I think this is consistent with what Gerald was seconding.
>> all right. So over Commissioner Davis' signature put opposed over it.
>> opposition, tom, where my signature is required, please --
>> generally in most cases just not sign it.
>> just not sign it. Okay, that would be fine. You have the original?
>> I have got the original. I'll need to add that part about appealing the executive manager's decision.
>> okay. We can sign it tomorrow.
>> thanks.
>> thank you, sir.
>> thank you.
>> could we get an official motion vote?
>> yeah.
>> move approval.
>> second of this --
>> with the added sentence [indiscernible] come the Commissioners court. Discussion? All in favor? Show commissions Sonleitner, Gomez, yours truly voting in favor. Opposition Commissioner Davis. Commissioner Daugherty away. There being no further business.
>> move adjourn.
>> second.
>> all in favor? That passes by unanimous vote. 5:51.
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Last Modified:
Wednesday, March 16, 2005 12:38 PM