San Marcos Mercury | Local News from San Marcos and Hays County, Texas

March 17th, 2010
Henly resident sues county over development regulations

031610skiptonHenly resident Jimmy Skipton, who is suing Hays County, left, and Hays County Civil Division Chief, the county’s lead attorney, right, at Tuesday’s meeting of the Hays County Commissioners Court. Photo by Sean Batura.

By SEAN BATURA
News Reporter

Hays County commissioners returned fire Monday in the first legal battle over development regulations commissioners approved in August.

Henly resident Jimmy Skipton filed suit against the county last month, alleging that the county failed to sufficiently evaluate the regulations’ effect on property rights. The development regulations include more stringent rules regarding minimum lot size, roadway setbacks, required parkland and open space property dedication, and easement dedication for the Hays Trinity Groundwater Conservation District (HTGCD).

The county responded Monday by asking the court to dismiss Skipton’s suit because he failed to file his petition within the statutory 180-day period that began when the development regulations were passed. The county also alleges that Skipton does not clearly specify whether he wants the regulations to be nullified or whether he wants compensation as allowable under state law when an action by a governmental entity is found to constitute harm to someone’s property rights — a “taking.”

Takings are defined by the Private Real Property Rights Preservation Act (PRPRPA) passed by the Texas Legislature in 1995. The county, in its response to Skipton’s petition, also claims that the doctrine of sovereign immunity protects it from Skipton’s suit.

In his suit, Skipton asked for the court to declare the county’s development regulations “void and invalid.” Skipton asked the court to require the county to pay his court fees and “such other and further relief to which the Plaintiff may be entitled at law or in equity.”

Skipton’s core claim is that the county failed to prepare a legally-sufficient Takings Impact Analysis (TIA), a document required by the PRPRPA. Skipton alleges the county’s TIA is insufficient on several grounds, such as lack of examination in the study of the change in minimum lot size requirements, which directly affects his ability to get the most money for selling his land.

“Once they do a new TIA, I think they will see that there is a taking of my land,” Henly said.

Skipton said that under the previous development regulations, his 137-acre tract could be subdivided into 1.5-acre lots. The new regulations, approved unanimously by commissioners, establish a six-acre minimum lot size for new subdivisions served by individual private water wells located in the Hill Country Priority Groundwater Management Area (PGMA). Skipton’s land is in the PGMA.

A PGMA is a region where the Texas Commission on Environmental Quality (TCEQ) finds that people are experiencing, or are expected to experience, within 25 years, critical groundwater problems, such as surface water or groundwater shortages, land subsidence resulting from groundwater withdrawal, and groundwater contamination. The Trinity Aquifer lies beneath the region of Hays County encompassed by the Hill Country PGMA.

Skipton said he made the 180-day deadline because the date he filed, Feb. 16, was preceded by a federal holiday and a weekend. Hays County Civil Division Chief Mark Kennedy could not be immediately reached for comment. Commissioners court members met in closed executive session on Tuesday to discuss Skipton’s lawsuit, though they took no action on the matter in open court.

Skipton’s suit also specifies other alleged deficiencies of the county’s TIA.

“The TIA does not meet the required standards under Section 2007.043(b) of the Texas Government Code,” said Skipton’s petition, because it did not assess how the new development regulations would “affect the private real property as a whole,” and that the combined effect of the regulations constitutes a “taking.”

In a related pending legal matter, Dripping Springs real estate appraiser Dubb Smith, who attended Tuesday’s commissioners court meeting, said he filed a complaint with the Texas Appraiser Licensing and Certification Board (TALCB), a state agency. A TACLB official later confirmed that Smith filed a complaint against Naismith Engineering, which the county hired to write the development regulations and conduct the TIA. Smith said only certified appraisers should offer opinions of value. Smith said Naismith Engineering employees had offered opinions of value for compensation without a license.

Smith raised the same objection during the public comment period before the development regulations were approved. The county published a response to public comments on August 12, 2009, which included a page-long reply to Smith’s charge.

“The text of the (PRPRPA) contains no requirement that a TIA be prepared by a certified or licensed appraiser,” states the county’s response to public comments. “As outlined in the (PRPRPA), the Texas Legislature directed the State of Texas Office of the Attorney General to develop and publish guidelines for the preparation of TIAs. The text of the guidelines developed and published by the Office of the Attorney General contain no requirement that a TIA be prepared by a certified or licensed appraiser.”

Skipton, in his lawsuit, also alleges the county’s TIA failed to comply with Office of the Attorney General Guidelines (OAGG).

“The TIA merely asserts a public health and safety purpose as authorization for the proposed action requiring property owners to make a physical dedication of parkland or open space within a new non-exempt subdivision or to make a financial contribution to the (county),” Skipton’s petition states. “The OAGG … prohibits actions asserted for the protection of public health and safety unless the action is undertaken in response to a real and substantial threat to health and safety, be designed to advance significantly the health and safety purpose, and should impose not (sic) greatly burden than necessary to achieve those ends.”

The county has implemented all sections of its new development regulations except the portions dealing with septic systems and flood damage prevention. Hays County Subdivision Coordinator Clint Garza said counties must obtain TCEQ authorization before implementing new wastewater-related rules, so his department will propose offer the septic regulations as an appendix requiring the approval of the commissioners court once TCEQ is satisfied.

Garza said TCEQ has reacted neither negatively nor favorably towards the county’s new development regulations. Garza said the flood mitigation-related portions of the new development regulations must be approved by the Federal Emergency Management Agency (FEMA) before the county can implement them. The county is required to initiate a public comment period before creating or amending development regulations, so there will likely be open hearings before the county approves the portions being tweaked to satisfy TCEQ and FEMA.

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