Travis County Commissioners Court
December 30, 2008
Item 31
Number 31 is to discuss effect of approval of acceptance of dedication of street and drainage facilities for a portion of Austin lake hills section 2, a subdivision in precinct 3 on September 7, 2004, and take appropriate action.
>> judge, I asked to put this on because the applicant, tom jones of tom jones inc., I think probably got a -- did everybody in the courtroom get a copy of the letter that was sent to tom over to the Commissioners court and myself? If you've read that letter, joe, would you rather tom sit down and go over --
>> I don't have a copy of the letter. So yes, I would like him to explain it.
>> oh, you don't? I'll make you a copy of this thing and let tom -- tom, why don't you just lay out effectively what you brought and I'll make joe a copy of this. You don't have a copy, right?
>> if you would give us your name first, please.
>> my name is tom jones. I'm president of tom jones homes, inc. I moved to Austin in 1971. I started my real estate career in 1979. I'm a Texas real estate broker. I've been a member of the Austin board of realtors since 1984. I've been a long-term member of the Austin better business bureau. I am the former president of the (indiscernible) neighborhood association, who is one of Austin's oldest neighborhood associations. I'm the current president of the Austin lake hills section 2 neighborhood association, which is the subject of the reason we're here today. In 1999 I contracted to buy 36 lots, which are located in the yellow here. On the plat of a subdivision called Austin lake hills section 2 that was platted with Travis County in 1961. It has always been recognized as a legal properly adopted subdivision in Travis County. At the time this subdivision in 1969 was way out in the country, but it lay and still lays today -- lies today within the five-mile extraterritorial jurisdiction of the city of Austin. Ostensibly making it subject to some other rules. We first started our construction -- by the way, I'm a home builder, I'm not a developer. This is the -- my first endeavor of any kind of development. We started our first series of homes on a couple of these lots in 19 -- I believe in 2000. Under county development permits, county construction permits. We were issued a red tag by the city of Austin to cease development because the city of Austin claimed that the entire subdivision was illegal.
>>
>> [ inaudible ].
>> I'm sorry?
>> can you tell me what the city of Austin determination was to deem this illegal, this subdivision as you stated?
>> well, let me sum this up. This is very unpleasant, but it's true. I met in February of 2000 in the office of an assistant city attorney named david smith, who is now the lead city attorney. And mr. Smith told me in his office that day that the city generally hates these old, smaller lots in the lake Austin watershed. And they're going to do everything they could to fight me every inch of the way. And if I took the city to court over this, I would inevitably win, but they would bankrupt me before we got through court because they have 69 lawyers on staff that do nothing but fight this everyday on a taxpayer funded salary. So they don't care. Mr. Smith in effect says he didn't care what the law said, he was going to fight me, and if I fought back he was going to bankrupt me. They red tagged my subdivision while we had custom homes under construction. I had little choice but to go back under coercion and try to work with the city to develop a plan that would not completely destroy the rest of the lots in the subdivision, which would happen if they tried to overlay the newer plans over the older requirements of the subdivision.
>> I don't mean to cut you off, but in some kind of way it went right by me on the question that I asked, why did the city deem this property as an illegal subdivision? Based on what?
>> in 1961, although this subdivision was legally platted in Travis County, it was a requirement that the city planning department have a signature on the plat. This subdivision had no such signature ostensibly because the city of Austin didn't really care what went on way out in the country back then. I have other plats of subdivisions in this area that are similar with no city signature in the city e.t.j., probably adopted by Travis County, but lacking the city planning signature. Those subdivisions have never been called into question. This subdivision was never called into question for 38 years of continuous development. Continuous improvement and development. Until I bought my 39 lots and started construction on them. Even today directly across the creek from my subdivision there's construction continuing under the old rules in this subdivision, and the city has never gone to them and said wait a minute, this subdivision is illegal and it's subject to the new rules, not the old rules. There was a law passed in 1997 to solve this issue of what is grandfathered, what's not, how old can it be and continue under the old rules and when does it have to become subject to the new rules? That law was called house bill 1704. Since its passage it's been incorporated into the local development code under section 245. My subdivision, agreed by everyone that I've talked to, including mr. Smith at the city of Austin, is subject to a 245 determination, meaning it grandfathers out the new rules because it's a 48-year-old subdivision, it grandfathers. To try to overlay the new rules today would completely destroy all these lots. This subdivision was not resubdivided. All I got was a construction permit. Even so, the city has come back and for years has refused to formally answer my written applications for a 245 application?
>> so it is the original plat?
>> this is the original plat. It has not been resubdivided. It the original plat.
>> all right.
>> and in our opinion, in most legal opinions and even in the city attorney's opinion, it's a legal subdivision and the rules of 245 apply, meaning we grandfather it. We don't have to knock out the ends of these lots to put in a huge turnaround for the fire trucks. We don't have to put side walks there because there are no sidewalks in the neighborhood. We don't have to put in detention facilities to treat the over land drainage because all the drainage in the subdivision for the past 48 years has been over ground and maintained by Travis County. These roads were all adopted for maintenance of the streets and the drainage facilities by Travis County over a series of years. Most recently in 2004. Some of these pictures depict a lot of this overland drainage. The city came back and said that the only way that you can continue with your project and avoid a lawsuit from the people you're now building custom homes for out there is to come back and do it our way. Our way meaning you've got to give up two of our residential lots, you have to design and build a very complex water se dentation pond to drain the water on the streets here, just my streets. Under great duress we agreed to do that. We had no choice. We were going to get sued by the people we were building homes for. The city made me give up two of my residential lots, build a detention pond. One of the head engineers of the city of Austin and others over a period of many years came out and looked at this pond and said why in the heck are they making you build something like this? It won't work. And I said, go ask them. You're absolutely right. I agree, it will not work. In 2004 we finally got through all the political wrangling, we thought. Travis County tnr accepted these streets and drainage facilities for maintenance by Travis County. The city said they don't accept them, but they're going to refer them to Travis County. We have in writing, it's in your pamphlet there that the county agreed to maintain the streets and the drainage facilities in the subdivision. Some time several months later during one of the heavy rains we had in 2004, a lot of drainage came down not only from our 36 lots here, but from over half of the entire subdivision, which it inevitably does because the topography out there because it was never designed for this 48 yearsago. And we tried to go back and shoe horn it in there and it never worked. We all agreed it wouldn't work, and it didn't work. So sometime in late 2004 in one of these flooding rains, the county's overland easement right here overfilled, the storm water went above the curb, down into one of the inlets of our failed water quality pond and caused it to blow out. The city came back out and issued me a red tag. Said you've got to rebuild it. I said I don't have the money to rebuild it. It was never required to be built in the first place. We all agreed it was not going to work. Besides that, Travis County agreed in I believe November or September of 2004 to take over maintenance of the streets and drainage utilities, which includes the detention pond. The city said I had a one-year warranty period. I passed that one-year warranty period. The city gave me my fiscal security deposit back and said you are here by released from warranty. Travis County even came to me and said, we'll waive all the detention requirements entirely. All you have to do is give us some money because we're going to go downstream here and we're going to build a regional detention pond. This picture here is a picture of eanes creek. You can see about two miles back this way in the distance, all the way across cure la cak ca, around the surrounding neighborhoods. Nowhere on the creek is there any detention pond -- detention facility whatsoever except the one that the city made me build. That's it. The county's solution for this was we will build a solution -- a detention -- a regional detention pond on river hills road further downstream. That will solve everything. It will help drain the entire watershed of eanes creek. That facility was never built. I paid money into it. It was never built. The pond failed during this heavy storm event in late 2004 after the county had accepted maintenance for it. I told the city I can't rebuild it. It's not going to work. And I'm not responsible for it. The city came out, and although this land is owned by my corporation, the city jumped through the corporate veil and began filing a series of criminal charges against me for failure to maintain a water quality device. And every time they came out in the neighborhood, they filed another charge on me for the same thing. Still not finished, another criminal charge. Another criminal charge, another criminal charge. Nine times until we were finally forced to take the city to court where it was determined that the city court doesn't even have any jurisdiction over this. It has to go to state court. We had to sue the city in state court. My attorneys at the time failed to set one of the hearings, a very important hearing for an injunction allowing the city to proceed. When we showed up for court, the judge looked at us and said what are you doing here? You're not set for today. We don't have you on the agenda. I asked my lawyer what's going on? It just hadn't been set properly for court. The lawyer says it's not my fault. I said yes, it is. He said, well, I quit then. So I've spent about $50,000 in legal fees, I've never had this heard in court. I'm locked up in city court. I'm about to get thrown out of state court because I can no longer afford an attorney to represent my corporation and I cannot represent my attorney pro se. I'm being forced into federal court under a civil rights issue, lack of due process. This whole thing can be cured easily if people want to work with us. Number one, the county needs to ascertain if Austin lake hills section 2 as platted in may of 1961 is a properly adopted plat. If it is, then it grandfathers under 245. I'm not subject to the new rules, I'm subject to the old rules. Number 2, did the county accept maintenance for the streets and the drainage facilities, including this detention pond, in 2004, and does the county intend to honor that agreement? Number 3, I would like for someone of reason to go to mr. Smith and the city's law department and say, you cannot violate a man's rights like this. The law is the law. Even if you don't agree with it, the law is the law. Their ruling by (indiscernible) and he promised me he was going to bankrupt me before this got through court even though I'm right. That's a violation of my civil rights. I'm tired. I'm broke. I'm beat up. I've got an 800,000-dollar spec home on one of my lots. It's a beautiful home. It's a one of a kind. They're all custom made. I break my back to build these things. I put everything in them that you would ever want. Beautiful home. The city will not give me an electric meter for this house. I've had offers to buy it. I can't sell it. There's no electricity for this house. My only other assets, my life savings, my retirement, everything, is wrapped up in four more remaining lots that I have, that I have offers to buy. I can't sell them. The city won't give me electricity. A year and a half ago one of my clients moved in to a home, the city actually contacted him and said, for your own safety we're going to come pull the electric meter off your house, so your children can run around in the dark and your parents can trip down the stairs in the dark for your own safety. That's how far the city, with their egregious, capricious, arbitrary rules have gone with this. They've ruined me. I'm looking for a solution. I can no longer afford an attorney. I'm going to fight this pro se in federal court if I have to. I'm coming here before you today to try to help me find a solution that is legal, that's honorable, and that does not mire down the court system any more than it's been. I've been in court for really -- this whole thing has gone on for 10 years now. I've been to court with the city of Austin since 2004. I'm ready for it to end. I'm just asking that people do the right thing. That's what I've tried to do. That's what I'm here for today. Any help you can offer me, I would sincerely appreciate. In closing, I would like to say mr. Daugherty, I've known you a long time. I know you as an honest gentleman. You have been a very capable public servant. And on behalf of hundreds and hundreds of families in Travis County that you've served, we would all like to say thank you very much for your service. And that goes for me personally as well. That's all I have to say. Thank you.
>> I have a couple of things I'd like to say. I have some legal questions too, but I'll ask the lawyers about that. You had mentioned that in 2004 when there was a heavy rain that the water jumped one retainage, flooded the street and then blew out the other retainage, right?
>> not exactly.
>> okay.
>> the pond was designed on -- and I have all the technical stuff here, but to keep it simple, it was designed on two lots right here. The whole subdivision drains this way. It was designed only to drain these lots. In actuality, it drainsz most of this half of the subdivision.
>> isn't that it on the bottom right?
>> this is what's left of the pond now.
>> that's what went down.
>> it goes down into -- it's really a functionless feature. It doesn't provide anything.
>> so we're getting drainage off of the other portions of the grandfathered subdivision into these drainage -- ostensible drainage control devices, which were not designed for the entire subdivision because the rest of the subdivision didn't have to have. Is what what you're saying?
>> these are some of the overland open drainage easements that have been there for years and years and years. And as this should be. But when it rains this hard, just the way the subdivision is sloped topographically, it all pools right here and the water jumps the curb, goes down the street and into one of the storm sewer inlets into this pond here. Here's another angle of it. Here's the storm sewer inlet. There's the county easement, the drainage easement up there. This all overfills. The excess water goes down into the water, it overfills it and it blew it out.
>> so is the easement inadequate to handle the sheet flow?
>> the easement is adequate, the condition of the easement is inadequate, however, that's not going to be a full solution to the problem.
>> so -- but am I hearing that there is a drainage problem, though? That we are experiencing a drainage problem in this subdivision?
>> well, yes, that's what this whole thing is over. They want it all to drain through this thing, the entire subdivision triedz to drain through this thing. It won't work, it won't hold it. I've said look, there's too much water. It's draining way more water than it's designed to drain. It blows out. And they said, well, build it differently. I said, well, you wouldn't let me build it differently last time. They said, oh, that guy is gone now. Build it differently. They came up with some other kind of weird sand filtered pond that I'm supposed to have to build. And I have to maintain. Which means after every heavy rain the city can come back out like they do and they can issue me a citation for failure to maintain the pond, and I have to go in and I've got to dig all this sand out with heavy equipment, got to take it to a toxic waste dump, have to replace all the sand. The next time it rains, they make me do the same thing again until I die and then my estate takes it over.
>> so are you filing like you're having to -- sorry for the pun here -- carry the water for the entire grandfathered development?
>> not the entire, but about 50% of it. And I should never have had to be dealing with this anyway under 245, under the old rules.
>> because under the old rules you wouldn't have been required to do this kind of storm water retention.
>> correct. Correct.
>> but who would?
>> it's all open drainage, just like it's been for the past 49 years.
>> but the other 50% of the subdivision -- I'm just trying to determine, there is a drainage issue in the subdivision.
>> not really. It's a pond issue, there's not a drainage issue. It works fine except for the pond. It's worked fine for 49 years, since 1961. There are 295 lots out here. About 275 homes. My little part is 36 of them, so it's 10% or 20%.
>> I'm trying to figure out is where the drainage problem is coming from and who is responsible for it. Is there a drainage problem? Where it's coming from? If there is one. And who is responsible for it.
>> a lot of the easements need to be cleaned out. That would take care of all the storm water drainage. This pond really functions perfectly now, even though it's failed. We've flattened out all of the concrete pieces. There's a lot of rip ralph that drains down. It breaks the water flow up, the energy of the water up as it goes down into the bottom of eanes creek, which is a wet weather creek, it's a drainage creek also. I'm assuming that Travis County never has intentions to build this regional pond that we paid money for. I believe that idea has been abandoned. This isn't an environmental problem. It's a property rights issue. That's what it is. They want me to go broke over this. They want me to cram this down my throat because they feel like they can. They have create add problem where there is none. And I am not -- I am just apparently, obviously, I'm not going to roll over and go away. I'm going to assert my rights until some court of authority tells me, sir, you have no more rights. You have no rights to a fair trial. You have no property rights here. You must give up your property for arbitrary and capricious things. The city can take your property away from you and make you do things with your property that you cannot can't afford to do. Until a court of law tells me that, I'm not going to quit fighting. But I would like for reasonable people to preveil in this and leave me alone. Let me finish out my four more lots. I'll leave town. I'll go somewhere else. I won't bother anybody this this town again. Like you said awhile ago, public service is hard. Believe me, home building is hard.
>> so to build out the remainder of the plats as far as your home that you are aspiring to continue to develop, how many more lots would you available for that total buildout?
>> four.
>> just four?
>> there's a 800,000-dollar house on one of them.
>> and I guess I have some question from staff. I'm really concerned about some of the things that you have brought up and you have spoken on. You spoke of a regional detention pond. That was one point that was brought up. The pond that exists right now that has failed, if it was under single office, where we deal with the city and deal with the city on some subdivision stuff, was the county notified per se in a timely matter and said this is what the city is requiring you to do in this subdivision? Based on what? Why has there not been a ruling made on this particular plat if it is subjected to house bill 1704? Which there are probably several plats out there that may come up under that grandfathering clause under the 1704. I really don't know what else is out there, but if it's just one of the subdivisions that is subjected to 1704, then we need to know that. Right now I -- it appears that there needs to be a determination made up on if this comes up under the certain 04 situation or if it's outside of that. And if it is outside of that, based on what? But if it's included on that, what are the inclusionnary things? I'm kind of wrestling with this and I guess staff or legal or somebody will have to help me out on this as far as giving me some answers. Because right now I really don't know, but I hear what you're saying, but I want to see what's included and what's excluded based on the grandfathering aspect and also the other aspects of notification as far as what the county's role is in this. If the county has a role in it, what is it? I'm through. I didn't mean to cut you off.
>> I think we can -- we've got the full story here. Anna, you or joe, can you all -- there are some things here that we need to hear from staff. I mean, could y'all come forward and give that to us?
>> well, let me mention one more thing. We've asked in writing about six or eight times from the city to give us something in writing that responds to 1704. They wouldn't do it. I went to duncan mueller, which at the time was the development and review inspection, and I said, I need a response to 1704. I can't get it in writing. How do I get a response in writing to 1704. He said that's a real good question. We never got -- they would lose them, they would not respond to them, they wouldn't respond to my attorneys. They finally answered me in December of 2008, and there's a copy of it on there, and the 1704 determination, if you will look at the top, they put down plat not recognized by the city of Austin. Meaning these 295 homes, # 95 lots are illegally platted. That probably means that they're not worth anything and they're not worth any tax value, and these homeowners may need to come apply for a tax rebate. And at the very least, state law says that you can't supply utilities to an illegally platted subdivision, and they not only need to come and pull my electric meters, but they need to pull the electric meters off of 270 other homes out there. And I got an interoffice memo, if you would like to see it, that says that toby futrell has been fully apprised of this issue that we are supplying electricity knowingly to illegal lots. I can't get an answer. Maybe you can.
>> thank you.
>> county staff?
>> first of all, this was brought to my attention yesterday when I found out it was being put on the agenda, so we may not have all of the facts. And there are certain representations made by mr. Jones. We have looked at the file and anna and I have both, and also consulted with the county attorney's office on some of the legal issues. Which they probably would want to brief you on in executive session. Maybe we'll just clarify some of the facts that we do know about at this point.
>> okay. Anne bolin, Travis County tnr. I'm sorry. It's my understanding that this plat was in the city of Austin's e.t.j. In 1961, and I'm still doing research on this with the city, but from what I gather that the original plat wasn't taken or submitted to the city as it was to the county. I am getting a copy of I guess a resolution from the city council, I believe, an ordinance that speaks to what process -- explaining the platting exception that went on because the 61 plat did not have county approval back then.
>> you mean city approval?
>> I'm sorry, city approval. It had county approval, but city approval back then. A couple other facts, a couple other things that I would like to state is this pond is a water quality pond. It's not a drainage pond. It's a water quality pond. And I think I heard mr. Jones speak to the fact that there was a detention waiver that was granted for -- by the city so that he could contribute to an rsmp fund, a regional storm water management fund, as opposed to put detention on this site. So this -- but this pond I believe was an infiltration pond, and it is water quality only. And I would say that -- well, I guess I'll leave that to legal. At this point that's really what we have.
>> let me make sure I understand.
>> one is required by the city, the water quality is basically required under the authority that the city has that the county does not have. Also when it comes to our basic authority over the road and road related drainage in subdivisions, and so when the county with its authority, it's more limited authority over subdivisions, we go in and we create standards for road design and road related drainage. These then, when they're inspected and brought to county standards, are typically accepted for maintenance by the county. That means the road and the road related drainage are accepted for maintenance. Not all drainage in the subdivision. Nor do we ever accept water quality ponds or take -- accept the responsibility for maintaining those ponds. First of all, we probably lack the underlying authority to do so, and then there's also the issue of cost of maintenance. In the past these requirements for on along maintenance had been borne by the homeowners associations by the documents that they enter into prior to the subdivision being finally finished. And that may also be the case in this instance where it's the homeowners association that ultimately has the responsibility for the maintenance of that water quality pond that failed. That's typically what happens in the extraterritorial jurisdiction.
>> joe, to your knowledge -- this may be -- sound like a legal question, but does 245 or 1704 actually, does that -- are water quality ponds exempt from that? Because obviously 1704, before 1704, water quality probably wasn't -- water quality ponds probably wasn't as big an issue. Have you witnessed that before if somebody comes up and they say, hey, 1704 says that I don't have to do certain things, and water quality -- is water quality one of those things that kind of supersedes -- I guess you don't really supersede state law, but what is your opinion on that?
>> that is a legal opinion.
>> it is legal? Okay.
>> if I could add also, add to what joe was saying, you know, there are instances where the city does maintain water quality ponds in the e.t.j., provided it's built to the city standards. It's my understanding that in this instance a different design was chosen and so the -- it was not going to be maintained by the city, so there was a first supplemental declaration of covenants, restrictions that is in the homeowner document where it speaks of the ownership and maintenance and repairs of the ponds and the retaining wall that mr. Jones signed I want to say in 2003. So when this was being reviewed by both city staff and county staff, we knew in advance that the city wasn't going to maintain it, and thus it was spoken to in this document who was going to have that obligation.
>> judge, the reason I -- and I told tom, the reason I'm willing to bring this thing back and just make sure that we really don't have anything going on here where the county would inhibit tom from being able to move forward, I just wanted to make sure of that. Now, it's pretty easy to understand that the city has a real issue, you know, with -- I mean, it this, it with tom, it with the subdivision or just all included, but I just wanted to make sure that if there is something that the county could do to help. Now, maybe we've already done that and our stance may be this is all we can do, I mean, given the fact that this is how we do everything. I just wanted to make sure that we weren't leaving something done where we would be part of a hardship on tom. At the end of the deal, this deal really may be -- you've got a real problem with the city of Austin here insisting on whatever they want from you, but I want to make sure that we can at least mark off everything from the county's standpoint. And I've always understood that the fact that our acceptance of this thing back in 2004, like tom shows with one of the copies of the agendas, that we did accept the street and the drainage, but that did not mean that we were accepting the water quality pond issue. So if that is the case, then we need to be direct with that and say that is where it is and if that's something that we're going to have to get from a legal opinion. But tom, you are entitled to know at least where we feel like that we are from a legal standpoint. That's the reason why I wanted to at least allow you to either check something off that it's not the county and go back and whatever fight you've got with the city, that's what it is. Do you think, judge, that there are some issues here that executive session -- I guess there is because sarah said she had a couple of questions.
>> I have questions.
>> but that's what we're going to have to do, tom.
>> do we think we know exactly what the city is looking for? What kind of remedy the city is looking for to solve this problem?
>> I believe the city is looking to have the ponds repaired. I believe that's what the city is looking for.
>> so it will serve the water quality purpose?
>> uh-huh. Yes, sir.
>> so repairing the pond means what?
>> basically reconstructing it at this point. It has failed. You would have to rebuild the entire pond.
>> it's very expensive.
>> well, it will fail again because it handles three, four, five, six, 10 times the water that it's designed to carry because of the way the subdivision was originally laid out. This is laid out four years ago with no preassumption for any kind of drainage through two of my residential lots. This was just not platted for it, it wasn't contoured for it. It was not prepared for it. The swale on these lots is unacceptable.
>> one of the problems with grandfathering, you see.
>> what's the problem?
>> no. I'm saying what you're now describing is exactly one of the problems with grandfathering.
>> well, exactly. One thing that I specifically -- I want to reiterate here that I'm requesting is that does Travis County recognize Austin lake hills section 2 as a properly adopted subdivision in Travis County? Not in the city's eyes, not in (indiscernible) ieses, but in Travis County rules, does it recognize Austin lake hills section 2 as a properly adopted subdivision. If the answer is yes, then that triggers 245. 1704, 245 says the first permit that's issued is the permit you go by through the rest of the development process. And the first permit issued would then be the Travis County plat 1961.
>> would you think it would be visible to stick with that plat even if -- I'm saying hypothetically. This is a hypothetical. Even if we knew now what we did not know then, that there was a serious problem with the -- with water quality issues and the runoff coming off the subdivision?
>> you mean resubdivide? You say stick with the plat?
>> stick with the grandfathered plat with its number of lots, its drainage easements, its water retention plan, if we knew now what we did not know then?
>> the --
>> in regard to runoff, the water quality of the runoff.
>> the pond creates the problem. There's no problem without the pond there. Everything is fine.
>> it was a hypothetical question.
>> I also have another Travis County issue checklist here that says on August 16th of '04, a tnr report indicating the completion of that portion of the work represented by the reduction of fiscal, including streets, drainage, including detention ponds and common area sidewalks and traffic control device shown on the approved traffic control plan. So this includes the -- it says streets and drainage, including detention ponds. This is a Travis County document. You don't have a copy of it, but I'll be glad to show you this one.
>> they're saying that detention pond language doesn't mean water quality pond.
>> this is a water quality pond.
>> why was this not specifically addressed?
>> one question is whether we have the authority to require a water quality pond. And I don't think any action by us would basically obligate the city.
>> well, on one of these sheets here, Travis County waived detention requirements for me.
>> actually, the rsmp waiver comes from the city of Austin.
>> okay. From the county perspective, we would view this as a legal subdivision with legal lots, right? Because our requirements are met. His problem with the water quality pond is with the city of Austin.
>> yes.
>> the city of Austin specifically does not maintain water quality ponds. It says here on the letter that they'll turn it over to Travis County.
>> that's what they said.
>> no, they don't turn it over to Travis County. They turn it over to the homeowners association.
>> that's not what your letter says. That's not what the city letter says, I'm sorry.
>> and it's my understanding that in this instance, since the pond wasn't designed to city standards, that is why the first amendment to the neighborhood association agreement discussed who would have responsibilities for building and maintaining and repairing the pond, which was the neighborhood association.
>> so if the pond in the lower right-hand corner were not there, where would we be?
>> the water quality pond, it's my understanding, was a comment that was put on by city of Austin staff -- this was presingle office -- especially given the rsmp waiver, that that pond is -- was not needed for drainage. It was purely a water quality functioning pond and infiltration pond, I believe.
>> so the point of that pond is to --
>> capture the two year storm for water quality purposes.
>> as it drains into eanes creek.
>> that's my understanding, yes, ma'am.
>> I'm sitting there looking at the pond there thinking what you need to do is just restore the rocks that detain the water.
>> and maintain it for the rest of my life and then turn it over to my estate. It's about $50,000.
>> do you disagree that it's the responsibility of the homeowners association?
>> the deed restrictions are not enforceable in court. All we have to do is go down and amend the deed restrictions. The deed restrictions were created under extreme duress by the city of Austin. They said, again, unless you do it our way, we will bankrupt you.
>> although would you agree that it's not unusual that homeowners associations have these kinds of obligations with regard to drainage or water quality?
>> I have no actual knowledge of it being done anywhere. I know that there are no water quality devices anywhere on that creek and anywhere in this immediate area in old subdivisions. The new subdivisions, yes, that come under the new rules, but the old subdivisions, no.
>> so it's your position that the homeowners association should not be required to have to do this maintenance?
>> that's my opinion. And also I think it's a legal class action suit.
>> so in the alternative you believe it should be the government who is responsible for maintaining it.
>> I believe that the law should be obeyed and the law says that no pond was required. That's the bottom line. The law. Some people may not like the law, but the law says under 245. If that's a legal subdivision, then no pond is required because it grandfathers. Just like they've let every other subdivision in Travis County do for the past half century.
>> but you apparently agree -- apparently. I've looked at the documents, but there are some things that are missing that I'll ask legal about. But apparently you contractually obligated the honers association to the creation and maintenance of this pond.
>> under extreme duress. We'll bankrupt you unless you do this. We're taking your property away from you and we're telling you what you have to do with it. That's against the law.
>> tom, then that is the reason where -- I know this is not what you want to hear because you would like your -- like you said, you're out of dough, but that is a legal -- the issue here is can you go in to a court and win with the 1704 and saying this is not something that should have been there to begin with. So it would be a moot point. But you've got to -- you've got to win that in probably a district court or a federal court or whenever you're going to get to, but that precisely is kind of where you were headed when you ended up saying, okay, y'all aren't representing me. Okay. You're not. That's really where this thing needs to be, I think, isn't it? It's a legal question. Tom has got to legally win this battle because otherwise y'all are going to have this thing where it's either the homeowners, and you're right, they're going to pitch an absolute fit if they come in and say, oh, we have to be responsible for this thing. You're going, hey, I mean, I thought that I was doing the right thing and bought the lots. I knew it was 1704, certainly was not going to straddle myself with untold dollars in this thing to build it. And obviously you and I both know that you've got -- you really are cross ways -- you may be very justified in -- because listening to your story when you're dealing with the city saying, do you know what, you're just basically trying to wear me out. With this deal. So that's really where you are. But it sounds to me like -- and I'm at least satisfied that the county has not done something inadvertently that would cause you to say, well, I really -- I'm really up against a wall here because it's not -- if it were our obligation, you know me well enough, I'd say I think we have to somehow find a way to take this obligation on, but this is not an obligation that we would have. In a practical sense, that's not something that we would have -- that we would have done.
>> when we put the streets in out there, the city came out and said, you must let us inspect these streets. And Travis County said no, we're maintaining the streets. We're going to inspect them. So when we got finished, the city of Austin said, we're not going -- we didn't inspect those streets. We're not going to okay them. This was a big thing between the single office issue back then. Everybody was the boss, everybody had a different idea and we were just sitting there getting whip sawed back and forth. And I still am because regardless of this 1704 issue, in writing, the county has agreed to maintain these ponds. Unless you want to tell me that a pond is not a drainage device, even though your documents here allude to that.
>> I think that's exactly what staff is saying, that this is a misunderstanding in terminology, that this is a water quality pond where we accepted drainage.
>> I don't think there was any overt effort on Travis County's part to -- I think the city of Austin was.
>> and we don't have -- according to staff in any case, we don't have the authority to either demand a water quality pond or to take it on for maintenance.
>> well, it depends on how you want to define the pond. If it's a drainage facility, then you've taken on the responsibility. It shouldn't be there. The city of Austin has no legal basis of requiring it.
>> unless it's a contractual basis. What I'm hearing is that it was a contractual basis. Irrespective of whether or not you feel that you should have been grandfathered and therefore not required, what I'm hearing, and I'll have to -- I'll so to look more closely at this and ask legal questions, but what I'm hearing is you contractually obligated yourself with the city of Austin for the creation and maintenance of this water quality pond.
>> the city says the subdivision is illegal and I'm asking Travis County if you feel the same way. If it's illegal, everybody needs to have their meters pulled, all their utilities, which is only electric, but everybody needs to move out and they need to pull all the meters out there because it's illegal and against state law.
>> staff is saying today that the county has no problems with this subdivision.
>> and I'd like that in writing, please, because if it is a properly adopted subdivision, then it triggers 245. If it triggers 245, I'm subject to the old rules and I don't have to build the pond.
>> but you also understand --
>> we will ask legal, legal questions in executive session. And hopefully that will be later this morning.
>> thank you for your time.
>> no problem.
>> so we'll take 31 into executive session under consultation with attorney exemption.
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Last Modified:
Tuesday, December 30, 2008 2:27 PM