Travis County Commissioners Court
January 22, 2008
Item 15
Number 15 is to consider and take appropriate action to set a public hearing on February 26th, 2008 pursuant to chapter 26 of the Texas parks and wildlife code and on a request by brushy creek regional utility authority to construct a 78-inch diameter raw water line within sandy creek park in Travis County. This is really just to set the public hearing. Commissioner eckhardt?
>> my question is a legal question. I don't know if y'all wanted to do this in session or what. I’m confused -- well, I’m concerned regarding our setting the public hearing since we are just the lessor, right?
>> the brushy creek regional utility authority I think is plan ght to hold the hearing the week before on February 19th. And I don't think it hurts the county to have the-- I don't see a down side to it.
>> will the lcra be required to make the findings necessary under chapter 26?
>> I think it would be us because we actually operate the parkland?
>> so it would be just us and we would be the only governmental entity making the findings?
>> I think it would be us because we are the ones who are going to be the license sores under that license agreement. We're operating the parkland itself and not the lcra. And I think that from a practical perspective, the audience that might be -- that might attend the brushy creek utility authority hearing might be a little different from the audience that might come to Commissioners court. So maybe that would give more of an opportunity for everyone to be able to have a say in what's going on and for everyone to be fully informed. The statute isn't totally clear on who would hold it. From a legal standpoint there doesn't seem to be a down side in holding it.
>> my concern was the possibility of conflicting findings by two different governmental entities. Is that possible?
>> I think it's possible, but perhaps joe can --
>> I think it's very possible in my own opinion, not legal. I think you --
>> it's not time to be shy, joe.
>> [ laughter ]
>> it is a controversial issue. You're talking about the routing of a pipeline and the Commissioners court by stepping in to have a public hearing is basically having to make a finding that there's no prudent and alternative route. It's a very high standard. I guess that the sponsor of this pipeline when they conduct their own hearing will find that there's no prudent alternative. And they will have a public hearing prior to us. We'll step in and we'll have to make our own independent finding that there is no other way to do this pipeline. And the residents of the county who oppose this particular route will come to you seeking to not approve the use of the park because -- not necessarily because of the park but where the route goes otherwise.
>> and potentially lcra also has the authority to make these findings under chapter 26 as the landowner, don't they?
>> my understanding is that they're not planning on holding a hearing.
>> they're not planning on it, that's right.
>> so do we need to get legal questions out? I mean, I assume that if we take no action, somebody else makes the decision and implements it.
>> I think that the proper way for to us have the license agreement drafted is for this Commissioners court to make findings under the parks and wildlife code, but the statute talks about department or political subdivision and it's not exactly clear under this particular arrangement that the way the park is operated through who exactly would hold the leering. So I don't think it hurts from a legal stand foint this court to hold that hearing.
>> we could always hold the hearing and determine that we don't have the authority to do certain things.
>> the burden of proof is still on the applicant. We're basically listening to the facts and we will also -- tnr will attend the other public hearings to be able to supplement this memo with an identification of issues that were brought to the prior public hearing. So you will get the benefit of that hearing before you enter into your own. At least we can lay out some of the issues that you will hear at the public hearing on the 26th if you choose to hold that hearing.
>> is this the same brushy creek that the two persons testified on the communication about this one?
>> yeah.
>> so we're involved in this because we operate the park?
>> that's right.
>> it seems to me there are five or six questions that we need to discuss with legal. And have a little time for research. I guess a couple, three weeks in advance of the public hearing. So we can mull over that.
>> judge, it might -- I guess I just need to understand what the legal questions are. Are you asking are we authorized to have the hearing?
>> no. What I heard was if we can avoid this, why not? And how deeply do went to get involved. The four or five questions that I have in mind would go to that, plus just legal authority, legal obligation. Do you see what I’m saying? Not so much for the public hearing. I thought the public hearing was just a good government move to make.
>> right.
>> since the -- we operate the park. But there are no basic legal questions I think that we have to address at had some point. Rather than answer the questions and ask them off the cuff, I thought getting them to you with us doing research and us getting the answers in sceetion might be more appropriate. But we would get the answers in advance of the public hearing prior to two or three weeks.
>> but we want to set the public hearing today?
>> that's what I’m thinking unless there's unreadiness. We would typically set it and try to get enough notice.
>> so statutorily we have to give 30 days notice. So this date is picked in part to give us the amount of time required under the law.
>> so if we take another week we would have to slip the hearing one week.
>> right.
>> just based on the little bit that I know, we'll end up doing the public hearing anyway. It doesn't rg matter to me whether we do it the first week of March or February 26th.
>> but we are required. -- are we required to have a public hearing under the law?
>> it seems that --
>> under the law.
>> I think the legally prudent thing to do would be to go ahead and hold the public hearing because there are in -- in the license agreement I think the court -- it would be a good idea legally to make those findings. You would need to --
>> based on that?
>> you would need to make though findings in open court.
>> because we have the ability to approve or disapprove the use because of our relationship as a licenser.
>> within the agreement. I wanted to flush it out more and get down to the matter of this.
>> am I right that if we actually take no action and ignore this and they decide to install the pipe -- it happens?
>> because it's a utility, the utility code allows them a lot more flexible than someone else who wants to come in and use the park for another purpose. So the utility, we have to look at the utilities code. But we don't have as much leeway as we would in orderly have in other license agreements because it's the utility that they're saying is necessary. But the parks and wildlife code says you need to make those findings.
>> any problem with the public hearing on February 26th.
>> move approval of that.
>> seconded by Commissioner Gomez. And if this passes, if we get to our questions this week, we can post it for Tuesday, January 29th, February 6th.
>> okay.
>> February 5th executive session discussion to get answers to those questions? Okay. Any more discussion of the motion to set the public hearing on February 26sth? All in favor? That passes by unanimous vote. Now, have we gotten a request from the utility to approve this.
>> yes.
>> and as part of that request have we gotten reasons why in their view this is the logical place?
>> we have a copy of their alternatives analysis, and I think the question is what the law states is the standard as opposed to what the utility views asking being the best alternative. They may agree with their n findings that of all the al alternatives this is the best. But that's not what the law says. Well, the attorney can tell you what the law says. I think there will be an issue with on owe even though it may be the best alternative, does it still meet the test of the Texas parks and wildlife code.
>> let's get mr. Joe whatever legal questions we have by Friday of this week so they will have all of next week and even Monday following before come to go visit with us on the first Tuesday of February. Snok that did pass, isn't it?
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Last Modified:
Wednesday, January 23, 2008 8:09 PM