Grant Jackson of Naismith Engineering, left, and Henly property owner Jimmy Skipton, right, discussed new property development regulations this week with the Hays County Commissioners Court. Photo by Sean Batura.
By SEAN BATURA
New Hays County development regulations went into effect Tuesday, imposing tougher requirements on some Hays County residents who wish to subdivide their land, install septic tanks and build on floodplains, among other related activities.
The regulations didn’t pass without last-minute consultations between county commissioners and attorneys to be sure the new provisions can stand up to legal challenges.
The new development regulations, three years in the making, were finalized after months of public meetings in which residents debated the economic and environmental merits of the proposed rules.
Commissioners settled on a six-acre minimum lot size for new subdivisions served by individual private water wells and located in the Hill Country Priority Groundwater Management Area (PGMA), doubling the previous minimum. Water conservation advocates asked commissioners to pass an even larger minimum lot size, while property rights advocates asked the commissioners to at least stay near the previous minimum.
“The problem is you can’t pay as much for the raw land if it’s reduced in terms of the ultimate, salable units,” Dripping Springs resident W.F. Smith said at Tuesday’s commissioners court meeting. “It’s like anything, whether you’re making cookies or cars. If you can’t sell the car for more money than your raw materials cost, your raw materials have to go down. That’s what these rules do, is restrict growth. That’s the goal.”
Before the court approved the development regulations, Smith warned that the Takings Impact Study, a document required by the Private Real Property Preservation Act (PRPPA) and created by consultant Naismith Engineering in December, is flawed because no one associated with the Texas Real Estate Commission or the Texas Appraisal and Licensing Board was hired to examine the new regulations’ effect on the market value of the county.
“Those are the people that are qualified in the State of Texas to offer opinions of value, not engineers,” Smith said.
Smith said a complaint had been filed with the Texas Appraiser Licensing and Certification Board over Hays County’s new development regulations. In response, Naismith Engineering consultant Grant Jackson, the county’s consultant on the new regulations, directed the court’s attention to a provision of the PRPPA exempting government actions that are “under the political subdivision’s statutory authority to prevent waste or protect rights of owners of interest in groundwater.” The PRPPA also exempts government actions that are “designed to significantly advance the health and safety purpose.”
However, Smith’s comments prompted commissioners court members to make last-minute consultations with attorneys before finally passing the regulations, despite a document published by the commissioners court less than two weeks ago that claimed the proposed regulations are in accord with state and federal law.
The county has thus far paid $46,345 to Naismith Engineering for work on the development regulations. Jackson told commissioners Tuesday that Texas Commission on Environmental Quality (TCEQ) regulations may require minimum lot sizes higher than six acres in certain instances.
“That really concerns me,” said Hays County Precinct 1 Commissioner Debbie Ingalsbe (D-San Marcos). “That’s one of the issues that I hope we can work through.”
Ingalsbe had expressed concern during the last few months about the minimum lot size resulting in many properties being priced too high.
“This has been a difficult decision for me,” Ingalsbe said. “I’ve talked about affordability – a big issue for me. But one word continued to pop into my mind: sustainability. I am going to be supportive of the lot size. Is this the answer to the problem? No, not by itself. This has been a struggle in my mind. I don’t come to this decision lightly at all.”
Hays County Precinct 3 Commissioner Will Conley (R-San Marcos), who had long expressed support for a five-acre minimum lot size, called the new regulations “a living document,” with issues that need to be resolved to protect land value and promote operational efficiency.
“I have no doubt we will have some (rules) that are flawed and wrong as we move forward … but it’s an organic document,” said Hays County Precinct 2 Commissioner Jeff Barton (D-Kyle). “We can adapt.”
Residents from western Hays County in the past few months have appeared before the commissioners court to give accounts of wells gone dry and declining springs, which, they said, are partly the results of too many people pumping water out of the Trinity Aquifer.
“Lot sizing has to do not with business plans, not with other things,” said Driftwood resident Susan Cook at the Aug. 4 commissioners court meeting. “It has to do with aquifer recharge. It has to do with whether or not a piece of land can replenish with rainwater the amount of water that’s going to be pumped out by the family that lives on that property. And that’s the only thing that you should be considering, is aquifer recharge.”
The Trinity Aquifer lies beneath the region of Hays County encompassed by the Hill Country PGMA. Nine counties, including more than half of Hays County, lie within the PGMA. A PGMA is a zone the TCEQ finds is “experiencing, or is expected to experience, within 25 years, critical groundwater problems including shortages of surface water or groundwater, land subsidence resulting from groundwater withdrawal, and contamination of groundwater supplies.”
Henly resident Jimmy Skipton appeared at the same meeting to support a smaller minimum lot size than was adopted. At another commissioners court meeting in June, Skipton said the government currently allows his 137-acre tract to be subdivided into 1.5-acre lots. He said his family’s welfare may someday depend on them getting the best possible price for their land.
“If I came in here and said, ‘Let’s increase our tax base by 40 percent,’ y’all would say ‘You’re crazy, we’re not doing that,'” Skipton said at the meeting two weeks ago. “(If I said) ‘Let’s go up eight cents per $100, I think we need the money,’ Y’all would say, “We can’t, that’s way too much.’ But you’re sitting here willing to take our lot sizes up four hundred percent, and everyone seems to think that’s OK, (that) it isn’t a tax. But it is on me.”
The six-acre minimum lot size requirement would not apply to subdivisions of five lots or less in which all lots average at least two acres, or to subdivisions that are ten lots or less in which all lots are larger than ten 10 acres. Previous regulations specified minimum lot sizes in the PGMA of 1.5 to two acres for well owners with advanced wastewater systems and two to three acres for owners with conventional systems in the PGMA, depending on whether the land is also in the Edwards Aquifer Contributing Zone. The proposed minimum lot size requirement would also apply to new manufactured home communities.
Conley said last week that he was most comfortable supporting a five-acre minimum lot size, but had told his colleagues he could compromise at 5.6 acres. He said he was most concerned with the “smaller people.”
Said Conley, “We can develop rules all day long that cover large developers and developments – those are easy rules to do. They have professional teams, they have lawyers and engineers and everybody that can work through our rules and make it work for them – within reason, of course. Within reason. But it’s these smaller family-owned, family-oriented (people) that are caught up in a lot of the rules and regulations, that are usually hurt and squeezed the most and can’t work through it.”
Barton (D-Kyle) said last week that he preferred a 5.61-acre minimum lot size.
“Even going to five would be huge,” Barton said last week. “Because currently, up in the western part of the county, it’s a two-acre minimum. We long ago imposed – I led the effort 10 years ago to impose a much higher standard over the Edwards (Aquifer recharge) area in the eastern part of the county, where in similar kinds of lots using wells and septics, we already have a five-acre minimum. And we were the first county in the state to go there. The rules were groundbreaking rules when I led the effort to write – I actually did write much of what was in it, because we didn’t have money for a consultant back in those days.”
An earlier version of the proposed development regulations specified a minimum lot size of 6.5 acres. The governing body of the Hays Trinity Groundwater Conservation District (HTGCD), which the state created to manage groundwater production in the Hays portion of the PGMA, supported a nine-acre minimum lot size. HTGCD’s wishes were thwarted when Naismith Engineering recommended 6.5 acres to the commissioners court.
Two HTGCD board members said the calculation resulting in the 6.5-acre figure assumes 75 percent of rain entering the aquifer should be reserved for human use. They said a Texas Water Development Board report by Robert Bluntzer recommends that 10 percent of recharge be reserved for pumping. HTGCD Board Member Andrew Backus (District 3) said Bluntzer recommended minimum lot sizes of 25 acres in the Hill Country.
At around 11:30 p.m. on July 21, after more than five hours of development regulations discussion and public comment at Wimberley City Hall, Ford challenged her colleagues to support a minimum lot size requirement of six acres. With midnight approaching and only 20 people left in the room out of the original 200 or so, commissioners court members were not yet ready to come to a consensus. At the same meeting in Wimberley, Hays County Judge Liz Sumter (D-Wimberley) joined Ford in supporting six acres, though she said her preference was nine acres.
Sumter said last week that the minimum lot will probably be increased in future years to be in accord with the planning efforts of the Texas Water Development Board (TWDB). In the next year, the TWDB will issue a managed available groundwater number that will set a threshold for the number of water pumping permits issued by the Hays Trinity Groundwater Conservation District, which has imposed a moratorium on issuing new permits.
“Existing groundwater supplies — the amount of groundwater that can be produced with current permits and existing infrastructures — are projected to decrease 32 percent between 2010 and 2060, from about 8.5 million acre-feet per year to about 5.8 million acre-feet per year,” states the TWDB’s latest State Water Plan. “Groundwater availability — the amount of water from an aquifer that is available for use as determined by the planning groups — is projected to decrease 22 percent, from 12.7 million acre-feet per year in 2010 to 9.9 million acre-feet per year by 2060.”
Another controversial provision in the new regulations is a requirement for landowners developing property 50 acres or greater, or land with 50 or more dwelling units planned, to allow certain government entities to install and maintain groundwater monitoring wells on the property. Costs associated with the wells will be borne by the government entities that install them.