Travis County Commissioners Court
December 22, 2009,
Item 13
Number 13 is to consider and take appropriate action on proposed corrections to Travis County code chapter 64, Travis County regulations for flood plain management guidelines and procedures for development permits regarding land use.
>> good morning.
>> good morning.
>> transportation and natural resources department.
this item really came up in conjunction with the item 15 when we were going through the review of that, it became evident that we had some wording in the code that the court adopted that was inconsistent with our legal authorities.
and Commissioner Davis asked that we submit an amendment to the code that would clarify the court's legal authorities and bring it in line with state law, and that's what this item does.
>> so what is the change, joe?
i see the --
>> specifically in 64.066 d, the previous code said the compatibility of the proposed use with the existing and anticipated development, including compliance with platting regulations.
trn is proposing to change that with platting regulations.
>> the code the way it's currently written immaterial pride that we could use adjoining land uses as a reason for reviewing the permit, and we have no such authority to do that.
>> and the change in j?
>> the change in just a moment, Travis County has not adopted a comprehensive plan.
what that should have said is the hazard mitigation plan which the county adopted in 2005.
>> questions?
okay.
ms.
diane crumbly, d.
are you hear on number 13?
okay.
please come forward.
and if you would just state your name for the record, we would be happy to get your comments.
and ms.
brown, are you here on this item too?
susan brown?
would you please come forward.
and either one of those empty chairs will be fine.
good morning.
>> hi.
my name is diane crumbly dee and I had a question about this because it involves the flood plain.
>> okay.
>> and my mother lives in the flood plain so we're kind of concerned about this.
and I would like to know what the history is behind this and why exactly is it being changed right now.
and what does the mitigation plan have to say?
does it say anything about not being able to place commercial in a flood plain?
>> you understand those questions?
>> the hazard mitigation plan does not speak to land use at all.
in fact, it's a mitigation plan to try to get mostly homes that are -- were located in the flood plain before the county had any kind of flood plain regulations, to get them either elevated or removed from the flood plain.
so it would not affect any kind of commercial use.
>> okay, and so if -- if you're in the flood plain now, then, in other words, if you are taking out this wording, would that be saying that -- what authority are going have to regulate the flood plain at all?
>> the regulation itself, all of 64 regulates new development within the flood plain.
>> new development.
>> new development.
what the county does not have authority to do is land use.
the flood plain regulation is a performance based regulation.
if you are going to build in a flood plain, then you need to elevate your structure, flood proof it.
it's more component based than use based.
>> are you regulating then that they can bring in and bring out of the flood plain?
are you able to bring dirt, fill in to put yourself out of of the flood plain?
is that in this also?
>> yes, that is a method of mitigating the fact.
you could raise on stilts or on fill.
if you brought in fill, we are a no rise community and we are looking at flood plain storage.
under the regulation as it's amended, you would still have to compensate for the material you brought into the flood plain.
>> okay, so in other words, you have to pull out before you can put in?
>> yes, they are simultaneously.
>> okay.
and if that hasn't been done, do you have rules and regulations that would draws that?
>> yes, ma'am, we do.
>> okay.
then I need to talk to you about that.
and I would like to say that right now we live in the area of chipmunk road, which is close to graveyard point.
graveyard point has a very bad rap on a lot of this and I would suggest that any of you come out there and look.
it's not as bad as what it's been portrayed to be, and we are fighting a marina out there.
we are in a deeded for 65 years noncommercial residential neighborhood and we're having this same problem come in right next door to us.
it is in the flood plain and they have proposed to put two 10,000-gallon fuel storage tanks within 100 feet of our house and transfer lines that run within 20 feet of our well.
and we do have a problem with that.
this has been addressed through the city of -- excuse me, the city of Lakeway and it's also been addressed with the new fire chief that is up there, and I think it's time now to really address it more with the county.
because it is in a flood plain and this is not right.
what's being done to a residential neighborhood.
so that's all I basically have to say at this time.
>> well, now, if their existing home is in a flood plain and it's damaged by flooding, then we look at the amount of damage and how much reconstruction has to be done before determining whether it's authorized, right?
>> that's correct.
>> so we say new construction, but if the current home is damaged and needs to be reconstructed in part, then I think we look at the percentage.
substantial comes to mind.
so if a little bit of it is damaged, no problem.
if a whole lot of it is damaged, it needs to be reconstructed, that almost is treated like a new construction.
so it's always -- that's always been the case.
we've had issues with it down through the years.
>> well, at this point in time, there has been a lot of homes that have been allowed to be built back right now that's sitting on fill that is causing more of a flood problem for other homeowners because of the amount of fill that has been allowed to be brought in.
and if that's the case, I would just say that the county maybe should be looking at all aspects of it and not just rebuilding the home.
because on our home it hasn't been rebuilt.
we have -- if you call tearing out sheetrock and redoing it ourselves, then yes, that's been done.
but we don't have any substantial damage, and I have talked to fema in washington that told us that we could get insurance no matter what.
that we can get insurance.
if we can't get it here in Travis County, we can go and get it through any other agency anywhere.
they cannot deny us insurance.
>> okay.
thank you.
>> yes.
i just -- I don't totally understand what the corrections are to b, but basically I have property, I have deeded property rights that go through the watershed and flood plain.
they are 65 years old.
they've protected the watershed for 65 years.
there's, you know, three deeds in a row.
there's about 1.5 acres down there.
and right now we are awaiting a judge's ruling, a court's ruling on the no commercial aspect of our neighborhood, and our deeded property rights.
we've been involved in litigation with this since 2004.
we've been
>> [inaudible], it's been a total nightmare down there.
the land that they claim own has a land even couple bettered and it's watershed, there's specific things in our deed that have protected it.
and Lake Travis is a reservoir.
whether it's a flood or a drought, the water is at risk.
and I think Texas needs to realize that when a commercial developer comes in or a corporate developer into a neighborhood that's older and, you know, can't fight back, it's very difficult, and, you know, we're up against parking in the flood plain, which I mean in 2010 are you going to be allowing that?
you know, with our water at risk, we've got fuel tanks right next to diane's house and other residential houses.
it's been a residential neighborhood established for 65 years.
the oldest one on Lake Travis.
and it needs to be respected and valued, not exploited, manipulated and destroyed.
and it's -- you know, yes, like diane said, we do get a bad rap, there's a lot of propaganda out there about oh, those people have flooded houses.
well, not all the houses out there flood.
and our deeds protect the -- the watershed.
and you know, awaiting the judge's ruling on some of these issues are important before you go changing the rules for, you know, people.
so I think you really need to look carefully at the watersheds around Lake Travis because I think the future of the water with more demands put on it, and it's like san antonio, they are fighting for water and whatever that situation is, I spoke to the attorney, I said are you taking exception to that marina being built out there because it's about clean water, not just water.
and you know, people don't need to get cancer in their lifetime and it gets absorbed in the skin.
we have private wells out there.
there's a lot of issues so that just to blatantly change something, we need to be protected.
there need to be larger buffers.
the lcra said they didn't have to look at our old deeds of record, yet they can negatively impact us and our water and risk our safety in our neighborhood.
so there's a lot of issues that really need looking at by unbiased people, because just to have a neighborhood be taken over because its watershed is valuable.
the watershed is valuable to Texas and it needs to be left alone.
it doesn't need to be, you know, I mean even building up doesn't always protect it.
you know, you are dripping both oil and dripping storage and all kinds of complications with that.
so it really is an issue that smarter people than me need to look at.
i'm looking at it every day.
i watch these developers come in and they try to distance themselves from each other, but there was dumping oil, welding rods, batteries, treated lumber, tires, and all of that was disrespecting our deeds of record.
we were harassed and, you know, and forced into contract.
and it's pitted neighbor against neighbor.
and I just -- you know, looking at something like this, I'm not sure what the corrections are and what the impact is, but I think it matters to us and all we've -- in fairness to all we've been through since 1987, the older people are too tired to fight this anymore and they are saying we need to fight it and we're just a few neighbors.
so in fairness, abraham lincoln said, he said a worst man cannot be found that one that stirs up strife to put money in his own pocket.
so I would like you to consider that and consider the clean drinking water of text and who is going to profit from and how this is for the greater good.
thank you.
>> any response?
>> yes.
>> [indiscernible]
>> [audio difficulties] in the unincorporated area and that is the heart of the issue.
we do not have that authority.
the federal or state law
>> [inaudible].
that's the issue here.
we imported when we drafted our regulations the Travis County code, we imported language
>> [inaudible] from municipal flood plain regulations.
cities in Texas do have land use authority.
counties do not.
and so we want to make it clear to our constituencys that when someone comes in for
>> [inaudible] we cannot tell them what they can do with their land.
and that is what this correction is doing.
basically bringing to light the inability of Texas counties to regulate land uses.
>> the lawsuit that you mention --
>> I have no knowledge of the lawsuit.
>> we anticipate bringing that to Commissioners court at the appropriate time.
we are not ready to recommend that application.
>> but you all are saying those issues are involved in a lawsuit in Travis County?
>> yes, numerous lawsuits right now are pending.
my neighbor and I are waiting a judgment on ours since June.
and diane crumbly dee, they have a lawsuit pending.
and it's -- you know, it seems improper to, you know, not do anything but protect us until the judge rules.
or the court rules on these cases.
>> may I ask of staff, will this edit in any way change our regulatory -- our regulatory policy or procedures with regard to floodplains?
>> no.
>> no.
>> that's my understanding as well, that this is a statement that was inadvertently imported and removing it will not change either our policy or our procedures.
although it does highlight a power that we have long wanted but don't have.
>> would this help you to look at parking and fuel storage in the flood plain in a residential area, because right now there's no -- you know, there's no real protective buffers.
there's, you know, 100 feet there and 100 feet there and that lakes comes up and down and stuff floats around.
and we've had accidents on that road right where the fuel tanks will be.
>> we did have a piece of legislation that we referred to as a performance based buffer legislation with regard to industrial uses.
but that piece of legislation did not even receive a hearing in the last legislative session.
so whether the statement that we are contemplating taking out today is in or out, we don't have clear authority to require any kind of buffering.
>> I see.
and another question, these same developers went in early in the morning in August and dug 25 holes without a permit.
along, you know, the -- between the water and the 670 and up to the 670.
and you know, I mean to me was very arrogant to dig 8-foot by 2-foot holes and the covers are floating everywhere, and nobody could say oh, you have to fill those holes.
it's like -- whether it's the blight and the dumping or whatever it is, it's like these people do they have different rules?
i mean it -- and it really is Texas drinking water and individual property rights.
i mean for 65 years it's been pristine down there.
>> first of all, I want to -- I know that my staff has been in touch with you and continues to be.
one of the things that it is really important in this -- this whole issue that we're talking about here is that we continue to stay informed on what goes on.
so to the extent that you can keep my staff and me and trn informed, it dove tails in when we go to legislative session the next time and that information would be very valuable.
>> thank you.
>> let me say something.
we did not sue the developer.
the developer sued me.
we were supposed to go to court November the 2nd to get this resolved.
and as of October the 1st, they served papers on my 99-year-old mother that will turn 100 years old a month after we get to go to court, if we get to go to court.
and these developers have no morals what so ever.
and to put a family through that and especially my mother at her age is wrong.
and I -- I don't know what needs to be done about getting a buffer or to have our deed restrictions enforced, or like susan said, the fact that they've gone out there and they do stuff without permits, and there is no penalty to them whatsoever.
none.
they just do what they want to do and then go oh, and stop for a second.
something needs to be done about the developers.
i understand that that's money into the county, but it's not right.
it's not right.
and I ask that something -- they need some kind of punishment for what they are doing to a neighborhood.
>> may I say one thing also.
in our -- in my case, they also sued me because I got an injunction to get the
>> [inaudible] building operation that was out of it.
we won that case, but they told the story they tried to manipulate the court rather than seek truth.
it confused the court and wasted the court's time.
they said I clear cut 91 trees which was not true.
and it just went from that court case to another court case.
so, you know, seeking truth and protecting the water and individual property rights, it's really critical.
and these people have harassed us, they've had lights on my house.
i've seen my neighbors being harassed.
it's unspeakable what we've been through.
i've been here since 2004.
i still don't have a kitchen on my house because I don't know what to do.
and legal fees.
they try to drain us emotionally, physically and financially.
and you know, individuals need protection.
protect the water and the watershed.
the watershed, I know I'm a yankee trying to be a good Texas woman and I've been here and I've fought for water issues up in boston, I had a farm, and you know, I know like on the
>> [indiscernible] where they don't allow motor boats, I know Texas is different rules, but it seems wise to look at what other states are doing to protect their water, especially, you know, with the trend and so much use.
thank you very much.
>> thank you.
mr.
mcdonald.
>> yes, I feel like I need to speak to this issue just because what you told me the other day was this thing hadn't come up until t.x.i.
case.
just a little history.
when the t.x.i.
permit was applied for, I went to the t.n.r.
website and looked at the law that governed the applications of permits.
chapter 64, and down there there was a list of items by which a permit could be denied.
and I swear it was a year ago in December or January at the latest I called stacy and I said what's the story with this law?
this seems like what we're talking about.
and she said well, I don't know, I hadn't really noticed that, I'll get back to you.
and I called anna bolin.
she said I don't know, I'll have to get back with you.
well, what does this mean?
and my questions all along how do you define incompatible, how do you define existing development?
this is in the law here.
in may we had the meetings with t.x.i.
and I was told that the county was considering using this law to stop the permit by t.x.i.
but I was also told we haven't told t.x.i.
yet, so it was like maybe I ought to not mention it or something like.
that this is what I was told.
no names are being mentioned here.
by that time, I had talked to mr.
geiselman several times and he said he would get back with me.
at the may meeting I stood up and I said all of these issues that we're talking about, dust, noise, public safety issues, fences, safety, all these issues could be dealt with with this law.
what is the deal?
is this not defined as incompatible?
what's the difference between incompatible and unsafe or, you know, the authorities describe in the legal code of the county having the law to protect public safety and moral and healthful development of the e.t.j.
you know, anyway, at that point joe geiselman said I don't really know the issue.
i've got three lawyers working on this.
okay.
since then, it has been described as some kind of, like a mistake.
like oh, we forgot to read that or that shouldn't have been included in there, and I just can't believe that when that law was written that there was not some serious thought considering where is this line, what is compatible versus we're not talking about land use, we're talking about this thing is so unsafe and unhealthy and against the economic development of the area that it is against the authorities that we have.
so I think not only in my mind but I -- I got to say it has had to be in your mind a line, something that has to be drawn of what this means.
and so now I understand why you're taking it out because you don't want the confusion, and I think I understand a lot about the county's laws and their rights and authorities now what they have and where that law comes from.
i've read it and read it and read it.
but, you know, whoever aspires to put this in the code originally, I'm hoping it wasn't just some legal mistake and that these are the same lawyers that are writing this roadway agreement code and that are taking care of our legal rights and all this other stuff if that was the fact.
and so I don't know that I can expect anybody to define this for me and to agree with me or whatever, but I just want to say that I think in the original aspirationings of leaving this in the code, there had to be some kind of understanding that there was going to be a case that came up that this was relevant.
and I think what happened, and this is what I told Commissioner Eckhardt, it's like we're the small college and we got this great play and we're saving it and we've got a play book here and this thing is going to double reverse end around and stuff, but all of a sudden here we are in the big game up against u.t.
and they've got the best defense in the country.
meaning t.x.i.
and their attorneys and stuff like that.
and so instead of trying this thing, we're going to drop this ball, get it off the -- the law books and not use it.
and I know these things are interpreted, they are not clearly defined in a lot of cases.
so I just wanted to make a case for sticking to whatever the aspirations were that put this law in the books to say that somewhere there is a line that compatible doesn't just mean land use, we don't have that authority, but compatible means this thing just won't work with what we have going because of the issues that we've been talking about, public safety, people on the roads getting run over by trucks.
air pollution blowing directly towards a subdivision from on 2,000-acre gravel mine.
economic development plan in which people were sold land by the same families that put their houses in and then turned around and have the road right across the street sold to a mining company.
so that was -- that's my interpretation of the law.
>> mr.
priest.
>> were you through?
>> yes.
>> okay.
i felt like you got cut off.
morris priest speaking on my own behalf.
i've seen -- I just don't believe that we're getting the government that we're paying for.
the research and work that I've done over the last several years working with campo, it became apparent in a campo meeting down at the capitol that I discussed that most of people that work for the state and the county and city are unfamiliar with the fema maps, the new fema maps.
and this came out at a hearing at the capitol.
basically what I see this social security total incompetent he knows by our staff to have this occur in first place.
they are not in line with the fema maps.
the campo waterways and the fema water maps don't line up.
this came out in a discussion that involved central -- vision central Texas, the plan b.
the main thing that I see is that basically the realtors run this city.
they contribute to the people that are on our city and county.
it's basically a situation where we have had success necessary the past with lawsuits.
i know the last time I spoke concerning this t.x.i.
issue, I was speaking with mark Gomez and it was brought up at a cap metro board meeting about the title 6 violations, which we've not yet got an answer back on this title 6 complaint we filed on this 290 east toll road.
so what I've seen time and time again is the unwillingness of our elected officials to listen to people that are far more knowledgeable about fema regulation, about the law itself, and turning a deaf ear and telling us basically that we're just stupid and that we don't know what we're talking about.
and we can show them chapter and verse in federal law and state law.
it's just an overwhelming numbers that come out at these meetings, whether it's 100 people down at the capitol that come and -- and just lay this out as plain as day.
and then we see the county suing over the courthouse.
they didn't have a case, they lost, and then actually considered to sue again.
and then they didn't.
we see other times where the county is sued.
people, developers sue people.
so it's a relentless attack from our elected officials and realtors.
this is a never ending thing that I can see only to be solved with lawsuits and recalls on the city council level and just a vote on the county level.
the citizens are left time and time again with insults from whether it's the court or the city.
then we hear them cry at the same time about the enormous amount of money that they spent on lawsuits.
and these lawsuits could be avoided.
oftentimes it's done because of the fact that the city is run by boards and commissions.
>> mr.
priest.
>> if I could just conclude.
>> no, sir, you need to be relevant to item number 13, though.
>> I am relevant.
i've been extremely relevant.
>> well, you're not --
>> that's an excellent example of what you are talking about.
>> no, you are not today.
there are two minor changes recommended.
what's your position on them?
>> the change -- I've already stated my position.
maybe you didn't listen, judge.
>> I listened to you completely.
>> the county staff that this has ever occurred in the first place.
>> that may be true.
>> it's absolutely obvious.
and due to the fact that we have to come up here and they on these issues and even address such an item, it says consider and take appropriate action on a proposal, corrections to Travis County code shapt 64, Travis County regulation for flood plain management and guidelines and procedures for development permits regarding land use.
that's crystal clear.
why we're here.
total tall incompetence.
>> what does this have to do with the city of Austin, campo?
>> we're in a county Commissioners court right now.
you all have a working relationship with them.
if anybody thinks that this -- with the exception of Ron Davis, if anybody thinks that the four other members on this court and seven members in the city aren't in lock step --
>> thank you.
>> -- against the east side or any other issues, they must be smoking crack.
>> thank you very much.
yes, sir.
yes, sir.
>> I was going to talk about the gravel pit.
>> that will be coming up real soon.
yes.
>> mr.
mcdonald spoke a little about -- I'm judith holden, about the wind blowing the dust.
and since you don't live out there, you don't know how much wind we have.
we have a lot of wind.
when we want to harvest our pecan orchards, we really have to pick the day and early in the morning because we have a strong southeast wind all summer long and, of course, a north or west wind in the winter, also very strong.
it blows my light weight lawn furniture off the deck.
we do have a lot of wind.
that's all I wanted to say.
thank you.
>> mr.
reeferseed.
>> out of ignorance, I was wondering what you said who has the authority.
if not the city on noncity land, if not the county?
does anybody have authority?
if it's noncity property, does the county, before you have to do anything, do you -- does the county have the authority on these kind of environmental preservation of our way of life kind of questions?
>> the city has general law authority.
so if the legislature has not prohibited cities from doing stuff, the cities are authorized to do it.
for counties it's just the opposite.
if they have not authorized us to do something, by law we are prohibit from doing it.
>> and mr.
reeferseed, we're balanced ten usely on the horns of a provision -- read the provision to you.
chapter 232, 1010-b.
unless otherwise authored by state law, a Commissioners court shall not regulate under this section the use of any building or property for business, industrial, residential or other purposes.
>> but it doesn't say that you can't regulate what happens to the environment.
i mean dumping things in there and the quality of life and that kind of stuff.
it does not exclude that.
>>
>> [inaudible] and this is a legal battle ultimately.
it will be a legal battle.
i'm just saying to you -- your question is who has the authority to regulate an in compatibility in land use outside the city limits of the city.
that is a legal question.
>> well, but we do have anti-dumping authority in other place.
and we have enforced that at least 20 years.
>> great.
>> so -- that's not quite the same as land use.
that's anti-dumping enforcement.
>> protecting the environment, it's a resource of all of us.
it's a common resource.
>> but we have the authority because the legislature has expressly authorized it.
>> dumping.
>> but illegal dumping.
>> great.
i still think that's an opportunity for all of us to -- dumping is the same -- you know, dumping noise.
>> where it says unless otherwise authorized by state law, I am unaware of any state law that gives us authorization to regulate noise.
>> dumping is not only noise but dust and all that other -- all these other things.
>> but what the judge says is true, unlike cities, counties have to have a specific provision authorizing them to act.
authorizing us to act.
>> even if it's not on city land that the city is encroaching on the county land.
that's immaterial.
did I get a nod there?
>> no, this is a -- this is I think we're traveling too far away from whether this is germane to the topic at hand.
the topic at hand is can we have a statement in our regs that says we can regulate for incompatibility.
and I think that it's -- I think that statutorily there isn't anything that says we can regulate for incompatibility.
>> I completely disagree.
>> I'm afraid that's what the law is.
i would very much like the law to be different.
very much so.
>> okay.
>> I don't think that it makes me extremely uncomfortable that there is arguably no law of the land regarding incompatibility.
>> excuse me, could I say something to this?
as far as the blight and the dumping that went on for a number of years, we called tceq, we wrote tceq, we called Travis County, we called everybody.
we wrote every legislator.
nobody did anybody.
>> I will need a legal opinion so we'll take it into executive session when we go.
i think this language needs to be cleared up at some point.
i'm not convinced that it needs to be cleared up today.
and that's one thing that we need to discuss with our lawyers.
so when we go into executive session, we will take item 13 under the consultation with attorney exception to the open meetings act.
we need to do one more item before we go to 15 and that is number 16.
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Last Modified:
Tuesday, December 22, 2009 2:30 PM
