Travis County Commissioners Court
July 22, 2008
Item 18
Now number 18 is consider and take appropriate action on wandering creek plan and a phasing agreement with wandering creek investments l.p., a subdivision in precinct 4. Where is the applicant? I believe those were some of the ones I told we would call up at 10:30.
>> staff is here, judge.
>> why don't we go ahead and start. We did get a list of issues by e-mail yesterday. Some old, some new, I guess. In my view, has staff had an opportunity to look at those, try to figure out which ones we should -- which ones we need to address today?
>> yes, sir, I believe we have. Are you referring to the e-mail that you sent, you forwarded yesterday afternoon?
>> actually I think I got two e-mails. One from mr. Hilgers and one from klem vetters.
>> and I forwarded those this morning.
>> yes, ma'am. I did share them with my staff to look at those. I'm going to ask stacy, our administrator, to address mr. Hilgers' comments that he sent because I believe they are mostly related to the
>> [inaudible].
>> good morning. Stacy shuffle, t.n.r. Basically what mr. Hilgers sent was a brief. This was reasons that he feels that the court should not approve this preliminary plan. And it has to do with the fema letter, the comments from fema that were received on the complete clomer application submitted by the developer. We received the letter June 10th. Fema was really picky in their letter and their review of this project. And part of the reason they were is because we actually asked them to be extra picky. There's nothing in my opinion in this letter from fema that would kill the project, that says it cannot be built. Title 30 specifically requires that a complete clomer application be submitted to fema in order to approve a preliminary plan.
>> clomer means what?
>> conditional letter of map revision. We're asking fema to give their opinion on the project.
>> just to add to the discussion, judge, I think the reason staff was picky in what they submitted to fema was as a result of a meeting that you and I had with mr. Hilgers, and there were some other parties, I think, and so we said after spending time on the issue, we said write this letter and be real specific about some of the concerns that were raised. Isn't that correct?
>> yes. I've actually -- I was instructed to write a letter to fema asking them to review this in great detail. Additionally, I talked to the fema reviewers and reiterated the county's position that the flood plain needs to be reviewed absolutely correctly on this. But in order to approve a preliminary plan, all that is required by title 30 is a complete application for clomr. Not that a clomr will actually be issued from fema.
>> if we require that the clomr be approved by fema before we took action would be in effect changing the rules after the fact. After this is all occurred.
>> that is correct. And since 2003 when the city and the county adopted title 30, we have approved multiple preliminary plans with clomr applications submitted to fema. But not clomrs issued from fema.
>> one of the things that government is prohibited from doing is changing the rules while a project or a permit is pending. And so I'm always reminded of those rules because once a year I have to go for continuing education to -- and it's a great thing to be reminded of what my duties are as a member of the Commissioners court, and we're always reminded we cannot change the rules while a permit or a project is pending. And that's vested rights under chapter 245 of the local government code. So I just want to make sure that we're following all of the rules and the state law, obviously.
>> could you explain to the public what a clomr is?
>> a clomr is a conditional letter of map revision. It is something you get from the federal emergency management agency whenever you are proposing to alter their -- their flood plain as shown on a flood insurance rate map.
>> what -- fema had not been engaged when this matter went before the zoning and platting commission?
>> that's incorrect. There was a complete application submitted to fema prior to this going to the zoning and platting commission. We had not yet received fema's comments back on the application, but the requirement of title 30 was only that a complete application be submitted to fema.
>> so where does it leave us if the fema conditions are not met?
>> if for some reason fema comes back and says this just isn't going to work, it will be the applicant, the developer will have to come back and revise his preliminary plan. In other words, go through all of the application, reviews and approvals all over again. It's in his benefit to get this right the first time.
>> and he knows this?
>> yes.
>> okay. Any of the other points you would like to address?
>> theresa caulkins, engineer that reviewed the drainage and transportation aspects of the preliminary plan. Anna asked me to speak a few minutes this morning on the drainage review of this project. And as subject to title 30 regulations, the applicant is obligated to show that they are providing conveyance through the project area for throws that travel from upstream areas as well as show that their project does not result in any adverse identifiable flooding in other properties. And so what the applicant is charged with doing is providing a drainage analysis for the area of their project that shows that -- identifies the existing flows that run through the project and also identifies the proposed peak flows that run through the project after its developed as a subdivision, and identifies the measures that they will take to show that they are not increasing flows at the subdivision boundary. So they have identified locations where they will provide retention ponds on the property to basically maintain the peak flows at or below existing conditions where they cross the property boundary. And they have done that in this application.
>> and that is the same process that you would require of every other --
>> that's correct. Every application is required to show a drainage analysis that shows that they will not increase peak storm water flows at their subdivision boundaries, that's true.
>> what does -- do concerned citizens have the ability to approach or submit questions to fema themselves? I mean is there any preclusion from that happening? I mean have the people that are really concerned about this, I would assume, unless there's some reason that they legally are not supposed to engage fema, is that something that you can do?
>> of course. Fema will entertain comments from concerned residents, and my understanding is that residents of the area have voiced their concerns to fema and fema in the process of their review of the clomr is attempting at least to address the concerns.
>> so fema is abundantly aware of the concerns, and then a letter from us saying we have got to have you get this right. Now, obviously, we don't have perhaps all of the comments back from fema, but that is what will happen and what would prevent this thing being given a final plat until the applicant comes in and complies with any and all of the things that fema has said concerning the clomr, correct?
>> let me be absolutely clear on this. Final plats in the flood plain areas cannot go forward until the clomr is approved by fema. Construction cannot happen in the flood plain areas until the clomr is approved by fema. What we're talking about is a preliminary plan, which may have to be altered if the flood plain is not as the developer claims it is.
>> [one moment, please, for change in captioners] you are being asked to do something that you know is inaccurate, incomplete, going to require major there are a number of other flaws in the staff's approach to this. Which I won't elaborate in detail<@hut some of them are these. When you are measuring thei] floodplain, according to the experts that have written onc it, you use measurements that you can gauge with gaugings onnini bridges. There's not axdni single gauge anywhere on any of the eight bridges around dryxdco creek that show the water flow. The only gauge that's accurate, that's usable is in -- in 2007,ni the -- during that 2007 flood, we had a m1e000 fiewb bic feet per second flow into that creek. We're talking about major flood problems in this area. You have -- you have the -- theni lcra I've got copies of all of these documents here for you. But the lcra, has put 7u5 a number of statements about the colorado river floodplain coalition, 34 counties collaborating onur that. Travis County is one of them.
>> [technical problems, please stand by]htxd they know that they are going to have 90 days to wait until they get an accurate result. They know it's going to be changed. Why push it? If you are going to have to wait anyway and do it, nobody is going to be at a loss for it. You will have both sets of engineers having fema decide. What they are going to require. Their requirements are going to be very extensive. And at -- one of the things about the levy that -- that they are evaluating, we have talked about endlessly and whether or not the engineering meets the standards on that. About 10 or 12 different major items that are going to have to be addressed by the engineers to be resolved. Fema has the final say. If fema doesn't approve it, it's dead. Why did the court put itself in the position of saying we're going to try to second-guess fema when we know that it's going to be wrong, it's going to be different. I don't see -- one of the things that I really -- I want to elaborate because it's so -- so astonishing to me, there's an excerpt in the response from the county, I don't know where it came from. But -- has to do with the hazardous mitigation rules. The summary that's prepared there has a statement. That says -- that says Travis County's hazard mitigation plan was adopted in 2004 and approved by fema in 2005. The plan's purpose is to mitigate damage from natural hazards, such as flooding, to structures that were constructed prior to the adoption of regulations preventing development in high hazard areas. County uses the plan to obtain grant funding from fema to fund its mitigation efforts. All new developments comply, must comply with current Travis County and city of Austin regulations. Previce-presidenting development in high hazard areas. Therefore hazard mitigation plans for these new government -- new developments are not required. That is a false statement. Haas disard mitigation is -- hazard mitigation is required for everything that takes place in Travis County and -- how in the world the staff can rely on that. Hazard mitigation rules are very exacting. They give the county powers you don't have any other way. People say this is just preliminary you can change it down the line. Hazard mitigation puts the burden on the county to find the public, health, safety and welfare is addressed. That's what it's about. And the county has a mandate to see that that's done. Somewhere along the line somebody hasn't read the book because it is clearly in force and effect for everything from now on. What the government does when they pay for property that's been destroyed or damaged, they have to see that that hazard mitigation standard is in place and being addressed. There are a number of things about this development in my mind saying it out to be -- the hazard mitigations that are out there are voluminous, we have got people here to talk about them. The main thing -- the main thing that I'm concerned about, I would like the court to address this question. The motion to postpone this consideration of this application until October the 10th should be done. It is -- there's no way that this court on -- outing to be put in the -- ought to be put in the position of saying you are going to support something that you know is inaccurate and false.
>> let's address that then. Right now is this question. Why now with this preliminary plan if.
>> the preliminary plan meets the requirements of title 30. Staff is object gated to recommend to court and -- obligated to recommend to court and zoning and platting when a plan is compliant with our regulations.
>> how long has this one been ready?
>> anna, maybe you can answer that?
>> this first went to zoning and platting -- this was approved at zoning and platting earlier this year. I will need to look at the exact date. But I want to say it was -- hum ... Well -- March 4th.
>> or --
>> but the answer is -- county policy requires that if you meet our preliminary plan requirements, we will approve it. The other thing is the -- a lot of things happen during the -- during the planning and implementation of a project. A lot of that really turns on when we issue a final plat approval. And so these issues with fema have to be resolved before we consider a final plat approval. But they -- they currently meet our preliminary plan requirements and staff's position and I guess since I've been here, court's position has been, you meet the preliminary plan requirements and we approve it.
>> judge, let me ask you a question about that.
>> okay.
>> can the staff tell me how they measured the flood -- the discharge from the floodplain above dry creek? There's no measurement for it available. They know that fema has required that to be done. The court cannot -- title 30 doesn't have anything to do with flooding. Title 30 takes care of normal situations where you have property that's reasonably
>> [indiscernible] this court is facing a totally different issue here. The court should not undertake something they know to be inaccurate, incomplete and false. That's what you are being asked to do.
>> all right. Let's address that point.
>> which point? The drainage area or the title 30 not adding adding -- nt adding floodplain.
>> he mentioned gauges earlier and measure. -- measurement.
>> there are several ways acceptable to fema to measure floodplains. It would be a perfect world if we had gauges on every stream at every road crossing. It's just not feasible. It's not out there. But there are other methods that are perfectly acceptable to fema to determine your flows.
>> what does it -- why does it make a difference if -- if that nails this thing y'all? Then -- then nothing will be built. I mean -- the amazing thing, mr. Hilgers and I have spoken at least for 30 or 40 minutes one particular day, if we were okaying something where something was actually going to get built, then that I would -- then I think this court would say we can't do that because mr. Hilgers may be right. There are a number of things in y'all's opinion that will stop this deal and if it stops it, well then this court will go you can't get a final plat and if you can't get a final plat you can't build anything. There is nothing that is going to happen out there until fema says yes or no. And that is -- that's what we're really faced with today. I mean, I don't think that we are making some monumental decision because we're going to predicate whether this thing really goes forward with construction happening. I mean, when fema comes back, you may be right, mr. Hilgers, all of the things that you're saying, fema may say there are all sorts of issues here and the applicant knows that -- that then the county I mean we got a lot of things to get done in order to move forward. But I just -- I mean, I'm trying to find a way to agree with ya except for the fact that what we are posed with here, something that we consistently do, is when somebody meets our written rules, that we move forwardment and our written rules are not saying that they can go out there and start putting something up. We know that you don't want this, we know that you have -- probably some sound reason because you live out there, you probably know more about it than any engineer or any of us, I mean,, you know, when you live out there. But unfortunately this stuff gets predicated on a professional sealed set of -- what -- you know what if we can't trust fema we probably need to go back, probably a lot of people go can we second-guess fema I mean with some of the issues that's taken place with them? Probably so. But don't, I mean, you -- you shouldn't put us in a spot, mr. Hilgers, where we all would be doing something if we vote for this preliminary plat that were against ya. I mean that's not what we're being asked to do. We have a written set of rules, that's what we consistently try to do. Some of us, you know,, I mean, getting in the cross hairs of people that don't want us. I heard it loud and clear the last time, you know, I'll walk the streets to make sure that you don't get reelected. I'll walk the streets to make sure that everybody knows everything that you have done. I get that. You know what? That's part of what being an elected official is. Getting over here on Tuesday, making decisions. But I will tell you that most of us make decisions predicated on here are the rules, we are only trying to follow and be fair and I will guarantee you that you all will be dealt as fairly with as anybody else. If fema comes back and says guess what you got a lot more work to get done, I mean, I'm just as happy to go to the applicant whoever say you know what, fema says y'all have got a whole lot of work to be done. But what we're doing today is not -- you can say delay it for 90 days. We could say okay let's delay it for 90 days, let's be kind of arbitrary on when somebody comes in and says don't do the preliminary plan, that is changing, we do probably need as a county to say is that something that we do, but don't put us in a spot to where it makes it looks like that we don't care about ya. I mean, that's not -- I mean we've got rules that's all that we're doing, we are being consistent.
>> Commissioner, I'm used to the rules. Title 30 is not that clear. It does not deal with flooding. It does not deal with fema requirements. It does not deal with a number of issues that the staff has considered. For example, the staff has said the hazard mitigation rules don't apply. That is not true. It is literally not true in every instance where that has come up. They have relied on that in saying that this meets the standards of title 30. Hazard mitigation gives the court unusual authority to do something creative and constructive about this. Flooding is a major problem for the rest of Travis County. The residents of Travis County. We have here, the staff mentioned a -- l creek out at webberville as a comparative thing for the levee on the tributary. Fema has come back -- we're talking about engineers trying to make decisions about what is allowable on this and the staff has said that hazard mitigation doesn't apply. Well, that is a flat error. Everything about the rules and everything about the court has done says that is not the case.
>> what's the county's position on the hazard -- hazard mitigation ordinance?
>> the court has authority under that as opposed to what the county rules are.
>> the -- let's hear staff's response.
>> actually my response is actually what mr. Hilgers did read. The hazard mitigation plan is adopted by Travis County is not applicable to wandering creek. One of the premise behind our hazard mitigation plan is that the county would adopt rules to prevent folks from moving into harm's way. Such as flood hazard areas. Wandering creek meets the rules adopted by Travis County. Therefore they would not be included in the hazard mitigation plan for specific mitigation actions. Mr. Hilgers is correct, it is a plan for the entire county. And in that sense, wandering creek is included. But one of the premises is that the mitigation plan allows for the county to adopt rules that -- that would prevent folks moving into high hazard areas. So you -- you either meet our regulations or remay need to put you in a -- we may need to put you in a plan to mitigate some hazard.
>> the presumption is if you meet county regulations, you have dealt with the potential hazard. In a way that satisfies us?
>> that's correct.
>> other people can comment in greater depth, we pointed out a number of hazards that were not addressed at all by the solution that had been offered by the developer. I don't know -- it seems to me that one thing that ought to be in the county's interest is for the county to aggressively pursue every way they can to mitigate flooding and discenters. Right now -- disasters. Right now you are about to do something that says we follow the rules, therefore it doesn't matter what happens to the future because we have done our thing. That is not the case. Commissioner I don't mean to say that's your problem. What I'm saying is the developer and his engineers have a war going on with fema and their engineers and until they get it resolved nothing is going to happen. All I'm asking is that you put this off, let fema do what it's going to do and then we'll know what we're looking at. If z.a.p. Had seen this letter from fema before they acted on it, I guarantee you they would not have taken any action on it.
>> let me ask this question --
>> yep.
>> I'm going to pose this question to our county attorney.
>> what was
>> [indiscernible] if there is a delay based on what they are recommending to -- to October 1 and looking that the preliminary plan, is there -- is there any harm that would be done, per se, as far as if we -- we couldn't legally do? In other words are we just bound to take action today and deny the neighborhood until October the 1st?
>> I think that the judge addressed that a little earlier about the the way --
>> I'm asking you, though.
>> I think that the judge correctly stated the county's position on that.
>> okay. Which is?
>> which is that when these plans have come up and they have complied with our rules, the county has approved the preliminary plan.
>> so as far as a delay -- taking action today, it's been up here for action two or three times, a month, how long ago has it been? I don't even know. When were you all here last.
>> June.
>> the timing of this, it's not complete or adequate --
>> [multiple voices]
>> the point is that it was the staff's position hasn't changed since then. It was delayed. For action. So what -- what -- what -- it was delay understand that particular instance, in that particular regard, why can't it be delayed in this particular regard. We have delayed it from action before. What would be the circumstance of why it can't be delayed for this request if we have already delayed? We have already delayed it before. We have already done it. If we have done it once, the staff position hasn't changed, why can't we delay it until October the 1st.
>> I will try to repeat the answer that I gave a few minutes ago, Commissioner. I think that it's --
>> I'm not saying we're not going to take action today and on October 1st, I'm saying why can't be it delayed, not saying we are not going to take action. Action being taken October 1st instead of today.
>> I think that it's just a matter of precedent how
>> [indiscernible] in the past.
>> well, can I add a little something again. Let me go back to going to training to get my cne hours so that I will be very sure of what my job is. It says that the failure of the Commissioners court to take timely application on a plat application has dramatic consequences for the county. Untimely action results in the plat being approved by operation of law, a refund of certain fees and the applicant being entitled to seek mandamus relief. That's 232.0025 of the local government code. In addition to that, it talks about the duties of members of the court. That we may not deny a plat if all legal requirements have been met by the developer. The county has a ministerial duty which means that we have no discretion to approve a plat if all legally authorized requirements have been established. And so -- so that's in -- that's in subchapter a of chapter 232 of the local government code. Thank goodness I know how to read.
>> [laughter] I'm not an attorney. But, you know, this is why we go to -- to a training for Commissioners for members of the court so that we will know what our duties are. There -- I have a ministerial duty and we can't change the rules in the middle of the road. I understand and I empathize with all of your arguments. The only thing is that I have a duty to carry out the -- the duties for -- for me as a member of this court according to law.
>>
>> [indiscernible] we had a flood on dry creek this week. You have a floodplain erupting with disaster which could easily happen.
>> uh-huh.
>> talking about whether or not you are -- you have discretion to do this, that, the other under the rule, this court has discretion to do whatever it wants to under the hazard mitigation rules.
>> even if we approve this, mr. Hilgers, there's not going to be any construction taking place.
>> it doesn't matter.
>> until we hear from --
>>
>> [multiple voices]
>> false.
>> until we hear from fema.
>> if --
>> this has not been met under the rules because fema has to sign-off on it before it can go forward and we know that under the present rules and under the present facts fema is going to make major changes and the staff knows that, too.
>> judge, may I have a clarification on that. I mean how can we rely on that as being a guide? To his comment.
>> I'm not sure that I understand. Do you understand the question?
>> I think that I understand the question. I think mr. Hilgers' contention is fema approval is required in order for this preliminary plan to happen. My understanding, not being an attorney as well, of 44 cfr is it does not require that a clomer application or a completed clomer be completed in order to the county to approve a preliminary plan under our contract with fema. The only thing 44 cfr states is in regard to final plats that's that we review all proposed subdivisions to -- to ensure that -- that we are not increasing a hazard. That they are reasonably safe from flooding. But there is no specific requirement from fema that the county would require that a completed -- the completed clomer application or it be issued prior to the approval of a preliminary plan.
>> okay. Other residents have come today. Why don't we hear from some of them. Mr. Vetters. Can we get your full name for the record, that was attorney bill hilgers. Mr. Vetters?
>> honorable judge Biscoe and Travis County Commissioner, my name is clem vetters. Thank you for allowing me the opportunity to speak today. I'm a Travis County resident, an elected board member of the elroy preservation association and my family farm borders the proposed wandering creek subdivision. There are nine of my neighbors present here today. The other 500 that have signed the petition opposing wandering creek are not all able to be here. I would like to present the following photos and maps. They are not to scale. And they are homemade. But they are accurate to the best of my knowledge. They show the property with the critical environmental features numbered. The underground pipelines
>> [indiscernible] and the lcra easement in blue. The photographs are numbered and correspond to the critical environmental features. And as you just heard testimony, that there are three underground pipelines, the final number, crossing this property, I'm also going to present to you the railroad Commissioner map which I printed out last night that appears to show five.
>>
>> [indiscernible] hold on. I hear what you are saying. Now, that's what came into discussion last time, though, the number of those pipelines that were -- that were
>> [indiscernible] that were up under the property. And as you heard me state earlier, I asked staff to check with the Texas railroad commission, who is the regulatory authority of pipelines carrying whatever material those pipelines carry. And they at that time reported to me that according to the Texas railroad commission person who they contacted, said that basically the information is accurate. There are only three lines. We said five.
>> [indiscernible] before. How can the regulatory agency say one thing on the one hand and the maps reveal something else, what's the deal?
>> sir, that's exactly our point. This is not the only inaccuracy in the file there. Are three pipelines that appear to enter and exit the property, two additional pipelines showed the railroad Commissioner's map that's available to us all on the internet that shows two more pipelines going across the property. They are within the boundaries of the property. They don't enter and exit, but there's two more pipelines there, for a total of five. I'm not a pipeline expert, but I can look at the map, you know, that the consider commission has. This is a huge plan of over 1700 lots and one of the largest developments in Travis County. And the largest in del valle. There appears to be violations of federal, state, county and city laws and/or regulations. In other words, Commissioners, you are being asked to follow the written rules as it's been stated today. In a memorandum with over 50 points that was sent to each of your offices yesterday, we are trying to point out the violations in the written rules. It's my understanding that if these laws are broken, I can't call up the sheriff's department. So I'm here today appealing to you and presented a memorandum that was sent to each of you yesterday.
>> mr. Vetters are these the same as last time or different.
>> yes, sir, they are the same. The numbers on the photographs now correspond to the aerial photograph with the boundaries of wandering creek.
>> okay.
>> a vote for this plan is a vote to put Travis County's low income families on postage stamp lots in the crowded del valle school district, with no public transportation on unstable fill dirt, perfect for cracked slabs. Overlooking and smelling the Travis County dump and the city of Austin dump near the prison with not one square inch of dedicated parkland on over 640 acres! Where children can play. In the flight path. Under high voltage lcra electrical lines, over several underground gas pipelines that have exploded and killed people. In the 100 year floodplain with the levee not yet approved by fema. Just days before fema releases their new floop floodplain maps and you have all of the information. If your conscience doesn't bother you enough to outright reject this plan, hear now today -- here now today, then I beg in Commissioners court to delay any decision until the clomer application is complete with fema and fema releases their new firm floodplain maps which is just days away. So that this court has the proper information to properly deny this application. Thank you.
>> thank you, mr. Vetters. Ms. Olive.
>> right, kathy olive, president of elroy preservation association representing the 500 people opposing this addition. I wasn't planning on speaking but I heard testimony today that fema will listen to the homeowners. Wrong. I called them two months ago. I didn't come with a gentleman's name that I talked to in fort worth at fema. Fema will not talk to the homeowners association, property owners, anybody. The only two people that fema will speak to are registered professional engineers and city government. The gentleman was really nice and I kind of conned and talked and talked to him, I wheedled agents information about him. Fema is not in a position to talk to neighbors, homeowners, anybody, that was false testimony. Also you have heard testimony that they studied the drainage issue. They have studied dry creek somewhat, marginally. But there's other drainage issues because this is a 650-acre piece of property. A lot of other drainage issues. I sent you an e-mail that told you that six property owners that I know of, probably more than that, but only six that I know of personally have stock tanks that fill the stock tanks from that property. They start on that property, they come downhill, they fill six stock tanks. Plus I have a wet weather creek that's unnamed, it starts on wandering creek, comes across del roy road, two concrete culverts, underneath elroy road, under my property line and the baughers, unnamed wet weather. That creek has never been studied, when you put curbs and gutters across that street, that wet weather creek is going to dry up. That's never been studied. There's a whole lot of issues that have never been studied. When you -- when or if you pass this preliminary plan, which is that going to be studied? In the permanent -- when are you going to study my wet weather creek that's never been studied? When are you going to study my stock tank? When?
>> okay, now this is --
>> I'm asking.
>> let me clarify this, though, when you say my this, my that, is that part of this project or something else?
>> there's six neighbors on elroy road that have stock tanks where the water feeds off -- it starts -- that's a very hilly piece of property.
>> okay. So your question is what impact will this project have on stock tanks.
>> to come tank and a wet weather creek that's going to dry up.
>> when will that be studied.
>> it's already been looked at. The project will have no effect on the low flows. The stock tanks will remain as they are. The intent behind the drainage is to attenuate peak flows. But allow the flows that exist off the property to remain. But they will be protected by water quality, whatnot.
>> the engineers are supposed to certify that there won't be adverse impact on the adjoining --
>> when were they on our property to study this? When?
>> it's not necessary for an engineer to actually step foot on a property to study something.
>> or to see a wet weather creek that's not on any map?
>> normally, wet weather creeks can be ascertained due to topography. You can determine things like that in an office setting.
>> but your bottom line is you don't want you and your neighbors to be adversely impacted.
>> right.
>> the engineers are supposed to make sure that doesn't happen.
>> that is correct.
>> what if the engineers err and in fact it does happen, what relief do they have?
>> Texas -- basically Texas water code says that you can't I am body, impede or divert water that adversely affects another. We review this, our rules are set up on the water code so both peak flow goes and normal everyday flows remain as they are.
>> okay. They have studied -- topographies like this. They have studied dry creek. I do not believe they have studied 220 feet above dry creek. That's what I'm talking about, 220-foot up in the air, not dry creek.
>> any additional response?
>> they just wanted to clarify when an applicant submits an applicant for development, they are required to provide a drainage analysis and primarily what they are looking at is the drainage, the storm water runoff that originates on their property as well as the runoff that enters and conveys through the property and show that there -- that as stacy indicated that they are not increasing peak flows, that leave the property. And again that they are not also -- diverting or impounding the water. So basically they are maintaining flows in the existing creeks where they -- where the storm water currently leaves the property. And showing that they are not increasing peak flows. But after development, after the water travels through storm water quality pond and detention ponds, it will leave the property in the same creeks that it currently does.
>> okay.
>> let's let ms. Olive --
>> again, they are still talking about the water running down the hill. I'm talking about the quarter at the top of the hill. We are still talking apples and oranges, that's been the whole problem with this project. It's so huge that we're talking apples and oranges, they are talking apples, I'm talking oranges. I'm talking about the water at the top of the hill which flows this way, they are talking about the water coming down the hill at the bottom. And into -- into dry creek.
>> okay. So you wonder --
>> I don't think they answered your question about what would happen if this project does go forward and it adversely affects the six ranchers who have stock tanks whose livestock depends on this water. What does happen? Who is responsible? If my stock tank dries up and my wet weather creek dries up?
>> my understanding the developer and his engineer would be responsible.
>> your understanding.
>> I'm not an attorney.
>> ms. Olive, tell us the answer to that question. We're -- I mean we're not looking for I gotcha. I mean I'm not looking for an I gotcha to y'all. You know, there -- yes, there are things that happen in development. And when they do happen, that's the reason that you do hold people responsible for these kind of things. But I mean you can imagine if you could use that argument for every place where somebody didn't want something, you would effectively say you know what? We're not doing those things? You have got to depend on engineers, in our writeup it clearly states that the engineering that has been done and I'm not an engineer, which is the reason I've got to depend on our engineers. And now if we have got engineers that are -- I mean grossly inaccurate with -- with what they are coming up with, then we're going to find that and we're probably going to find out from fema if there are issues.
>> let me point out one thing. There's no disclosure on the part of the developers, engineers or fema of anything that's going on. These fema clomers pending for 128 months, back -- 18 months back and forth. We don't have knowledge of what anybody said about it. All we know is fema set up a mandate, 90 days, get it straight or forget it. Right now there is nothing to be gain bid this court to go forward with this application until fema has made itself clear. Because if staff knows based on the fema reports, there are major changes that have -- that are going to have to be made. We know it ahead of time. They have already acknowledged if it is they have to go back to the whole zoning and platting, the whole process. Why do it? What is to be gained by doing this until we have that final result? We ought to be entitled to have fema disclose to us what they are -- what their requirements are. We have got that in our letter. It's clear that we have not complied with the fema requirements that the developer has not. He's got major obligations. One of the requirements that the court looks at and -- an engineer's certificate must state that the filing is accurate and complete. And free of major defaults. No engineer can make that statement about this project right now. So the court doesn't have anything to look at.
>> ms. Olive did we give you a chance to finish?
>> I am finished. That was the first time I had heard. It wasn't a gotcha. Just the first time in two years anybody has ever answered my question who do I hold responsible.
>> okay. What's the purpose of the preliminary plan?
>> the preliminary plan is the first in a series of steps that -- in a house being built on a lot in a recorded subdivision. The preliminary plan -- not all subdivisions have preliminary plans, but I -- I mean if you have a tract of land and building it all out at once, at least out in the county you could do a final platd for the whole tract. What the plp does is allows for us to -- what the preliminary plan does is allows for us to look at things on a larger scale. The whole tract we do this to try to ensure that orderly development happens instead of looking at little final plats by themselves in a vacuum, we look at the whole picture.
>> okay. We have one other gentleman to give comments. Who else is here to give -- to address the court on this issue today? Who else is here to address the court on this issue? I see that one person here. Anybody else? Two? Okay. We will need those three chairs.
>> your honor, may I ask you a question before I leave this seat? I would like to know if all of you did indeed receive the memorandum that I send to you yesterday in writing?
>> yes.
>> because in this I'm trying to point out where the written rules aren't being followed and the accuracies just as this map before you is inaccurate. Thank you.
>> we understand. If you are here to add the court on this -- to address the court on this issue please come forward now. Two gentlemen raised their hands. Anybody else? And if you would give us your name we would be happy to get your comments.
>> yes, sir, my name is tom lincoln, good morning, judge, Commissioners. I'm here as a member of the board and also representing myself, I live out there. I have two homes. My business, Austin area limousines is also located adjacent next door to the property that's proposed. I would like to first apologize for my hoarseness. We once again have no water out on our property. There's been a water main break on f.m. 812 that was this morning, 2:00, 3:00 in the morning, we estimate to get water back by 4:00 or 5:00 this afternoon. Since we have met this is the second time now that we've had a major water main break that's affected that entire area. Elroy, del valle, 973, all of that area. Now, of course there's not that many people living out there now, but it's something to consider when there's going to be a development like this that will also be affected by that. I don't know what the city utilities have in mind. But it seems that it's a regular occurrence that quarter mains break and we have no water for days. Sometimes. So that's something to consider. I don't know if that's your responsibility, but that is something that happens with regularity in our area since there's so few people out there now to report it, it doesn't affect a great amount of population. With this development it would affect a large number of people. I would like to point out to you the area on the map of the road, of elroy road. I mainly am concerned about transportation and the roads. I would liked to show you an area on the map where -- where elroy road --
>> we will need you on that microphone.
>> elroy road comes down, does a 90-degree turn at this point. I want to explain to you my concern about traffic at that particular area which you can see plainly is between their main exit and a substantial amount of area where there's going to be some more traffic entering on to elroy road, which I think there was some estimates of a substantial increase in traffic on the road. I had a vehicle, it was July 7th, 7:30 p.m. And it was raining. I think the only day it's rained between then and now coming up elroy road is my driver was making this corner, there was another vehicle coming in this direction, that had wandered into his lane. The road has no curve, it has no access on the side. It basically goes from road to grass and dirt. As he came around this corner to avoid the accident, he had to go to the right, which he did. Which immediately put him into the grass and kind of a -- an embankment, which was wet grass and hence now I have over $5,000 in damage on that vehicle that occurred once that vehicle spun out of that area and went across the road into the opposite ditch across the road. So my concern here is the increase in traffic on that road is inherently going to increase the possibility of accidents that are going to occur and thankfully my driver was able to avoid a head-on collision which could have possibly caused death on that corner. Those occurrences happen, it's happened between the last time we were here and now. On that particular corner. I just fear that for the increase in traffic, we talked about fire, e.m.s., all of those issues, that that -- that that could possibly be an increased danger for Travis County on that corner.
>> thank you.
>>
>> [indiscernible],.
>> speak into the microphone please.
>> > my name is david heiney, I'm a fourth generation property owner. I unfortunately am the receiver of the water from this proposed subdivision. I have an 82-acre tract just south of this, I run 50 head of cattle. I have lived there my entire life. My father lived their his entire life. My grandfather lived there his entire life before him and my greatgrandfatherred who settled that lived there most of his life, he came from manor. I know a lot about this creek. It's treacherous. I have pulled cars out of there. People with fire ant burns on them. It's a treacherous creek. Now when you are being ask to do is send a water chute down there. When it rains, I have an 82-acre parcel with 50 acres of creek over it. Run the cattle up there to heiney farm road. That's the name of a road out there. I don't know a lot about it. I'm an engineer, I have lived there my whole life, I have seen that creek a thousand times. I think what you are getting ready to do to me is gush a whole bunch of water up there. I'm not an engineer either, but you don't put that much cement on the ground. The creek already comes up 10, 15 feet, I've got two stock tanks that it overruns, you are going to overrun some more. I thought that we would have the courtesy at least to talk to the people that have lived there for five generations to see what they thought about it. The rumor that I hear, fema is going to raise that flood line, that floodplain. I know I got floodplain. I don't think we need to make it any worse. Thank you very much.
>> thank you.
>> can we address his concern about that?
>> theresa, I mean the -- will there be -- there won't be any more water because you can't do more water. But there is -- it's a good question is do you funnel it and do you have -- or too you -- how do you do that? If it enters your property in a different manner than it enters it now which is what --
>> you have a water chute.
>> what do we do from an engineering standpoint with it?
>> the obligation of the applicant is to show that they are providing, including plans to mitigate any increase in flow, which would mean they will provide detention ponds on the property, that basically slow down the peak flow. Slow down the storm water so that they are not exceeding the peak flows that currently leave the property.
>> so that is something that you cannot send the water your way faster than it naturally gets there right now.
>> that's correct.
>>
>> [indiscernible] sounds like it will violate that principle to me. Because I know where the
>> [indiscernible] I have seen that water, sir.
>> I'm just saying that --
>>
>> [multiple voices]
>> we have got rules in place --
>> I understand --
>> we got -- we have got to hope that the rules --
>> I appreciate.
>> -- are going to be complied with. That is a good point because some folks think okay well if you're going to chute the water then all of a sudden, you know, you are going to create, you know, a, you know, a bad piece of ground on your side.
>> sir, since the development upstream the water level on my level has rose feet, so I know they were supposed to do something, too, but I don't believe they did. I live in floodplain. I can live with it. But they haven't even talked to me. I ain't never been involved in this until this morning, sorry I'm late. But -- but they come out and tagged my trees, they never talked to me.
>> do you live there.
>> I live there. I live on two places out there. 50 head of cattle. I plan on living there the rest of my life. I have already inherited the land to my children. We are going to make it five generations if they don't wash me down the creek. Those poor houses south of me, I don't know who is speaking for those poor folks in cilos, I have nothing to do with that subdivision. They are sitting right down there. You have got to get more water in that creek. I know that creek.
>> okay.
>> the other issue, judge, that was raised was about the traffic. I think that campo I think is addressing some part of that. In that area. And so maybe that's something else that needs to be addressed? For traffic?
>> it does.
>> judge and commissions, my name is ken manning. I am not intimately familiar with this proposal. I only sat down with mr. Hilgers a week ago. And he asked me to look at some aspects of this project and share my thoughts. I think that you are being posed with a fundamental question. That being how do you deal with development, intense development, on a tract that is clearly hugely impacted by floodplain issues. And I think that's a real fundamental thing that you need to grapple with. Presumably, the developer knew the extent of the impact of the floodplain on this property when he purchased it. The tract. So we're not dealing with presumably an uninformed owner of the property. I am proposing 40, 42-foot lots on a tract that's this severely impacted raises -- I think proposing -- raising very fundamental questions about whether this is an appropriate kind of development on this property. That bring goes us to the question of what discussion does Commissioners court have to do anything, to say anything about -- about the development that -- that potentially I would hope you would say we're not sure this is a real great idea. I this is your -- to come across a proposal, say maybe they arguably meet all of the requirements but we have real problems with this. That would be the level that I think policy made by such as yourselves would want to look at in this regard. Is it an abuse of your discretion to delay something that has -- has admittedly huge flooding issues. For another 60 days -- when -- when like this is the root of the problem. Is that -- is that an abuse of discretion? Are you setting a press precede? I would hope that you would be setting a precedent, it's a precedent that I would want to set in your position is that when I have got something where part and parcel of the issue is flooding, I'm going to be cautious, I'm going to be sure that nothing moves forward and, yes, it's a minor departure from how we have done business in the past and that's what we ought to do. When you have a level of flooding issues that you have on this property. I think there's another couple of ways that the Commissioners court could involve itself in this kind of a situation. You do have two federal processes going on. One is with fema. Seems to me that the Commissioners court could say fema we know your review is purely technical, but if you want to know what we as the public policy body thinks about the appropriateness of this intensity of development on this kind of a floodplain, don't think too hard about what we think about it, we're not real happy but we're being told our attorneys we don't have any discretion. I think you can make the the same statement. The one thing that hasn't been talked about too much is the wetland component of this project. I have some real questions about how the wetland component has been addressed. I think there's a great deal of vulnerability if the citizens provide some input and expertise to the corps of engineers about how some of the stock tanks that exist on the property that -- that are arguably jurisdictional wetlands are proposed to be handled. Which is most of them are going to get, you know, nuked. I think that you could similarly express the court's concern to -- to the corps of engineers that -- that we're not sure that it's a great idea to wipe out all of these stock tanks and wetland. So I think that you have got avenues to express if you said this is not a great idea. We would like a developer to work with more, come up with something more sympathetic. I think that you have avenues, discretion.
>> I think those are issues that can be worked on, there's nothing to stop the developer from continuing their work with staff during the preliminary process because remember there's no construction taking place during the preliminary process.
>> I think that's what we have all learned over the years, though, is the earlier in the process, you can get things on the right track. The much more successful you are going to be at some kind of meaningful change. By the time that you have got an approved preliminary, the developer has little to know incentive to say let's rethink this. The preliminary plat approval is a huge, huge step.
>> remember that the final plat has to come back to us and it has to show that the developer has worked with our staff --
>> Commissioner why --
>> one moment. Before we give final approval of the plat. But what is your take on -- on, you know, his suggestion? Theresa or somebody?
>> Commissioner, for two years we have been back and forth on this. We don't have -- we're not trying to litigate this thing. We're trying to resolve it. The reason staff has been very careful about it, there's so many issues that they are not sure of.
>> sure.
>> that they have been going back and forth and coming up with changes every time they address it.
>> correct.
>> right now, doctor ken manning, I met with him because he's a highly respected environmental expert in this part of the country. He's very even handed, open minded. I didn't ask him to come here today. I asked him to look at this objectively from his standpoint and see if this fema letter is what I think it is. What I think it is and what I think the court knows it is, is a mandate that has to be met before the court can consider the final version.
>> I know dr. Manning very well as well, I highly respect him. What I wanted staff to do is give me a reaction to his suggestions.
>> it's certainly true as you mentioned that the preliminary plan does not grant any authorization to construct the project. It is also true that the applicant will need to come back for a final plat as well as provide construction plans. All of these issues actually are evaluated again at the time of final plat and at the time of review of the construction plan. So it will need to -- to again further demonstration that they are protecting any environmental features, properly, according to the regulations, prior to gaining any authorization to -- to move any dirt on their property.
>> [indiscernible]
>> ken without question I mean my god I mean everybody in this room probably knows about your credentials, I mean, propose and promote your talking to fema, I mean, you coming from the world that you came from at least right before you retired I'm sure that you had many a time to deal, you know, with fema and that group of folks. I would think that your asking of certain things would be very meaningful to them. We want this thing to be taken care of right as well. You do bring up a subject in this discussion right now about is this the kind of development. You know that really opens up a whole lot of different arguments for us where you have opinions all over the board. But we are trying to make sure that we are judicious about how we good about this, I mean, I hope that you discuss with fema, if there are things they are overlooking, because we want everything taken care of. If there are things that you really think are of issue here, I'm sure fema won't get into the 42-foot, you know, size lots with you but everything else, I mean, you, I mean, with them I think that you probably will have a, you know, an open door policy with them to say tell us what we may not be understanding about this thing. Again, I would just get back to -- if somebody was being able to move forward with doing anything with this preliminary plan, I bet that you would have a court that would say that's not someplace that we need to move. But that's -- I mean I hope that you do that ken because quite frankly I would feel more comfortable if I had known that ken manning had gotten in touch with fema and says here's some issues that I think that you need to consider when you do your deals.
>> I just think it would be far more meaningful if they heard from the Commissioners court than from me.
>> that's the point your honor. The point is right now the court is involved in this, the court's jurisdiction, nothing is going to happen for anybody until fema comes up with its answer. If we think the answer needs to be changed we can argue with them at that point. But right now until that writ comes out, nothing that this court can do or that the staff can do is going to change a thing. The engineers are going to have to come up with the mandate. I urge the court to postpone this, defer the decision on it until October the 10th after we have a fema report.
>> anybody else on this item who has not had a chance to address the court today? It may be your last opportunity.
>> the applicant.
>> okay. Please come forward.
>> judge, Commissioners, I'm henry gilmore, for the record I'm representing the applicant. I'm going to bring this back around and bring it home and also try to address some of the issues that -- that the neighborhood has raised. But we also have the owner here as well as the project engineer in case that you have any particular questions. First of all this is a 640-acre -- in the city's e.t.j. In the desired development zone within a mile of state highway 130 and 8 miles from the heart of downtown Austin. It offers affordable housing for home buyers working in Austin that's closer than that offered by Austin and Travis County's competitors in buda, kyle, Leander, Cedar Park and Round Rock. We anticipate many of the home buyers in wandering creek will be first time home buyers, first time move up home buyers, the homes will start in the 120's. This will be a deed restricted community. There will be a homeowners association. Of the 647 acres of land, 347 acres will be open space or over 51% of the land. 53% of the land. The owners are not maximumming out the project. The average lot size will be 4800 square feet. City rules actually allow lot sizes to be as small as 3600 square feet. So the average lot size in wandering creek is 33% larger than that allow under Austin's rules for small lots. They have reduced the number of lots. When the project was first filed there was over 1250 sing -- 2150, reduced to 1750, a reduction of some 18%. With -- with respect to traffic, the tia for the project has been reviewed and approved not only by county staff, but by txdot as well. It's important to point out that not all 1750 lots will be final platted and built at the same time. But rather the buildout will occur gradually over a 10 to 15 year period. So that the traffic generated by this development will not appear all at once, but will gradually appear and traffic improvements will be phased in for a traffic phasing agreement. The project will bring city of Austin centralized water and sewer service to the area. Most of the surrounding properties are on septic systems. All of the atrocities within the project that -- all of the streets in the project will have adequately sized water and wastewater lines and easements to allow adjacent properties to extend water and wastewater lines to their property. As staff reports, this application meets all applicable requirements. But not only does it meet all applicable requirements, it exceeds it in at least two important respects. One the developer has voluntarily agreed to comply with the city's hazardous pipeline ordinance. This ordinance doesn't apply currently in the e.t.j. Of the city or in Travis County. Secondly the developer has also voluntarily agreed to cop apply with the city's recommended water conservation specification and measures checklist, even though that doesn't normally apply in the e.t.j. This checklist is an environmentally friendly checklist that requires among other things the offering of a water wise landscape option for buyers, rain shut offs on automatic tick irrigation systems, the use of turf grasses that require less water, a minimum of six inches of soil under landscaping and high efficiency clothes washers, dish washers, faucets, shower heads and commodes. Commissioner eckhardt asked questions about what notification home buyers will have with respect to pipelines and 100 year floodplain on or near their lots. Because of the owners voluntary compliance with the city's pipelines ordinance and with existing requirements of title 30 and state law, buyers of lots will in fact be informed. By agreeing to comply with the pipeline ordinance, sellers of lots that contain a pipeline easement or are within 25 feet of a pipeline easement are required to provide written documentation to a buyer before closing, describing the restricted pipeline area, describing what the development limitations are within the area, and giving the name and address of the owner or operator of the pipeline in case they have questions.
>> with that, it was brought to our attention, second time it's been brought to our attention, mr. Gilmore, of the number of pipelines. Now, we've heard staff this morning tell us according to the Texas railroad commission there's three. But we just had some illustrations brought flort broh via map from the same Texas railroad economics folks, one of the persons that spoke this morning, again that there's five. How many pipelines do we have on this subdivision? Is it five or is it three?
>> I understand --
>> now they showed maps of the same, I guess down loaded from the Texas railroad commission website, I don't really know. But the point is that there are some controversy about that disclosure of the number of pipelines in the subdivision.
>> I understand it, Commissioners, that there are three. But the important thing to point out is that we are voluntarily agreeing to comply with the city's pipeline ordinance. That is something that is not required by county rules or within the city's e.t.j. So the homeowners are actually getting more protection than what your rules require. Secondly, at the final plat stage, you are going to have to depict all covered pipelines on your final plat. Not only that, you are going to have to put a plat note on your final plat notifying buyers. Again we can't build any homes before a final plat is approved, all final plats have to be approved by this court.
>> right. I understand that. And all of these other kind of things. But it was -- there was a request made to this court today that -- that the persons that spoke this morning, the residents of the community, asked for -- for a delay, for us taking action on this particular plan until October 10th. Of this year. There have been other delays, situations, situations have delayed, we have delayed this, my question to you is -- to the applicant is would they be willing to wait until October 10th, which concerns that the community brought up to delay this project to -- until then and that's basically
>> [indiscernible] part of the things what I'm looking at is what they are requesting and what I hear you saying. I hear all of those great amenities, all of these other things, but I think the October 10th date to delay this is something that they were asking. Can you all live with that? That's the question. Can you live with it?
>> I will address that. In chip wants to add that after me that would be fine. The answer is no we can't live with it. Secondly, mr. Hilgers misinterprets the letter from fema. The fema letter does not state that this matter will be resolved or settled as far as fema is concerned by October the 10th. The fema letter require that's we respond to their request for information by October the 10th. So by October the 10th the fema issue will not be resolved. So if the point is that we wait until October the 10th to have all of this issue resolved by fema, that just won't occur. He miss interpreted the letter. Secondly your code requires you to approve the preliminary plan if it in fact meets all ordinance requirements. We meet all ordinance requirements. We also exceed it. So we would ask for your approval today. ,.
>> did we give you a chance to finish?
>> yes, sir.
>> the other issue that Commissioner eckhardt raised was notice to home buyers on the presence of 100 year floodplain. I think first it's important to point out that no lots in wandering creek will include 100 year floodplain, period. Title 30 requires that 100 year floodplain be dedicated as a drainage easement and this drainage easement be actually shown on the final plat. Additionally, section 5.08 of the state property code and the Texas real estate commission rules require written disclosure by a seller to a buyer of the presence of 100 year floodplain. This disclosure is on a Texas real estate commission form that has to be signed by both the seller and the buyer before closing. So in light of the owners voluntary compliance with the pipeline ordinance and in light of title 30 and state law, the buyer of the lot will be more than adequately informed of the presence of pipelines and of 100 year floodplain. I would also point out, I'm sure that you have heard this time and time again, that during this process your staff has met with the neighborhood some six times and has addressed all of their questions in writing. All of the arguments that they have presented have either been addressed, have been ruled on previously or simply not applicable to a preliminary plan application. This application meets all of your requirements. It not only meets your requirements, it exceeds them. And we respectfully request your approval today.
>> judge, may I make one further comment?
>> be with you in just a minute. Let me ask you this question, we will get back to you, mr. Hilgers forks a final opportunity -- for a final opportunity. Several residents mentioned about the floodplain and either the possibility or likelihood of adverse impact downstream. What's the engineer's answer to that.
>> I'm judd wellman with jacobs engineering group. The preliminary design that we have done to date shows no adverse impact downstream or upstream for any adjacent property openers. That's being accommodated through the means of conveying the water through water quality and detention facilities to both control the quantity of the flow off the site and the quality of the flow off the site.
>> so if there's a 10 to 15 year buildout, do you monitor that impact during construction?
>> we build the ponds that treat water from a given section of the development with each phase. So that as you build out, you are providing the appropriate treatment and control of quantity of flow.
>> how do you know whether the ponds are working?
>> they are -- they can be inspected. When they are built they are surveyed for as built conditions to make sure they match existing conditions. It's all based on the standard of care for design of water quality and deattention facilities. The homeowners would typically maintain vegetation required otherwise.
>> any other questions of the applicant or its representatives?
>> yes. Just clarification on a couple of points that had been raised in the past. One was that the property was for sale. Whether it's for sale or not, the covenants that we would establish with the applicant would apply to any other owners, subsequent owners, correct?
>> yes, ma'am, they would run with the land.
>> they ran with the -- run with the land not with the owner. That answers one of my questions. Trying to -- recall the other one. I'll think about it. Thanks.
>> any other questions of the applicant or his representative? Closing comments, mr. Hilgers?
>> judge, in about 1970, my wife and I were coming home from town as I've told you about and the pipeline which is right at the entrance of this property exploded. We didn't know what it was at the time. We saw a -- fumes and low lying clouds and both of our cars stopped. My wife and I ran away. Six people were killed behind us. And that pipeline is right there in the entrance, same entrance, it was because of a defective weld that that pipeline exploded. It burned all night. It was -- it was as big of a fire as I have ever seen, including world war ii in london. Those six people died right at the entrance of this place. Now the developer may be gratitous saying that he is complying with the pipeline ordinance, but complying with the pipeline ordinance is not gratituosus it ought to be mandated. The city and county should have that requirement before any -- before any -- any offer of gratuitous accommodation, that ought to be a requirement. I don't know why it isn't. But right now there's nothing to keep a butane truck from turning over in that wandering creek development in that traffic totally blocking it. And -- and I would say that the council is right in saying October 10th may not be long enough to get fema worked out. But there are a lot of requirements, engineering requirements that -- that the developer has to meet. This court is entitled to see what those are and make a full disclosure in the meantime of what is being said between them. Full disclosure is a big -- is a very big opportunity for this court. This court has a great opportunity right now to -- to mitigate flooding in eastern Travis County from now on. And to miss this opportunity now I think is a really mistake because you can do it very quickly. Nobody is going to get anything done anyway until we have those answers.
>> do we believe the county has the authority to adopt a pipeline ordinance?
>> I know that we looked at this before. Can I get you that answer in executive session?
>> okay.
>> I know that we have looked at it. I have to check the file.
>> in the future would be fine.
>> I remember the question that I had -- I wanted to ask the applicant that -- that are you -- are you voluntarily also going to continue working with our staff as you go along to make sure that -- that the concerns that -- that the community has or have keep getting addressed. We understand, you know, that -- that it will continue to be neighbors and so there's going to be the need for neighbors to keep communicating and keep working on concerns that -- that people have.
>> kip cronenberg the owner. Thank for you the opportunity to speak. I would really like to take the opportunity to thank the staff. They have been amazing over this long, arduous process. They have been professional. They have been on time. They have been courteous, they have been everything under fairly tense situations a number of times. So your answer is absolutely and in fact I look forward to working with them.
>> thanks.
>> yes, sir, mr. Vetters.
>> judge, I would like to respond to a couple of remarks mr. Gilmore made. He remarked they would all receive a Texas closure before they close on the home. I believe the Texas real estate act and Texas real estate commission do not require property condition disclosure on new homes. They do to resales, but not on new homes, so they are not guaranteed a property condition disclosure. And the point that all issues have been resolved and addressed, they have not been resolved and addressed all of them which is why they are all in the memorandum, such in regards to engineering, point 44 in the memorandum, they are cross-sections where they use computer models to measure the flow of the water don't even go to elroy road, when this creakings to elroy road, the water covers elroy road, I have a photograph here of the road closure barricades hundreds of yards out in mr. Heiney's farm, instead of including that road which acts as a dam to the river their cross-sections are not taking into account ownership just the property there. There's many issues in the memorandum. To us all of the issues haven't been resolved and addressed.
>> thank you.
>> > a motion?
>> is he going to ask us to go into executive session or not?
>> up to you. I can get the answers some other time.
>> judge, I think after listening to all of the arguments and all of the comments that people have had, I would just like to -- to say that -- that many thanks to staff. I think they -- they also train for these positions, they bring us the best information that they can bring, given the fact that we don't have ordinance making power, but we do have state laws that we have to comply with. When I take my oath for office just like anybody else who might take the oath for this particular office, anywhere on this court, we -- we swear that we will uphold the state laws and the laws of this country. So it's kind of tough to tell friends that -- that -- that I have to rely on -- on law in order to get things done. It's nothing against any of -- any of the folks that I have known in this community for a long, long time. I grew up here. And so -- so I -- with that explanation, I would like to move that we approve this phasing agreement and that we move forward with all of the understandings that have been expressed here today. Please understand that the preliminary, the phasing agreement does not call for any construction at this point. And but that the applicant has said here that they will continue working with staff to make sure that we meet all of the concerns of the people in this community.
>> that's approving the preliminary plan phasing agreement.
>> yes.
>> second. Discussion of the motion?
>> judge, I would like to make a substitute motion. I'm not opposed to anything that you are doing per se, especially with providing the necessary housing to address your affordable housing needs, my goodness I've been a strong champion of that, still promote that. But there's just a lot of things that -- that have made me very uncomfortable. And some of the rendering of the testimony that I have heard during this process. Some of these questions have not been answered in my opinion to satisfaction, to make me feel -- feel where I could be supportive of the motion. I think -- bylaw. Bylaw we can delay this until October 10th. It wouldn't be any violation of the law. By delaying this particular preliminary plan, I think by October 10th there will be a lot of other things that may be -- may be revealed that we do not have available to us today. I have some very serious uncomfort about pipelines. I can go to pipelines about tank farming, all of the stuff in east Austin, that we were lied to on a lot of things that happened around there about underground pipelines. And kind of maybe rehash some thoughts of not even being able to get an accurate counts of the pipelines that we actually have available out there. Safety concern and I understand that we are wanting to bring affordable housing to a lot of folks that deserve to have affordable housing, I champion and do everything to support affordable housing in Travis County, but under safety conditions that I think that ought to be warranted and awarded and made applicable to any segment of the county's population. So I would like to make a substitute motion and not going against you at all Commissioner, I want you to know that Commissioner Gomez, but a substitute motion just asking for a delay until October the 10th and at that time we will take action on this preliminary plan. I think by law we are not violating the law by such a nothing. John, if I'm -- if I'm correct --
>> you are not refusing -- you are simply choosing not to act. You are not refusing the plat.
>> bylaw I can make such a motion. I applaud you, applicant for --
>> is there a second to the motion.
>> I wasn't through yet, judge.
>> you have made your motion. Is there a second to Commissioner Davis's motion? A substitute motion dies for lack of a second.
>> all right.
>> back to the original motion which is to approve the preliminary plan and the phase in agreement. Any more discussion of that motion? All in favor? Show Commissioners Gomez, Daugherty, yours truly voting in favor.
>> Commissioner Davis abstaining.
>> abstaining --
>> move that we recess until 130.
>> all in favor? That passes by unanimous
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Last Modified:
Tuesday, July 22, 2008 1:51 PM