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

March 17th, 2010
Lawsuit asks judge to invalidate county development regs


A Henly resident is seeking to invalidate development regulations adopted last August with a lawsuit filed in state district court that argues Hays County did not properly analyze the financial impact minimum lot sizes and other rules would have on property owners.

James K. “Jimmy” Skipton, among the most vocal critics of the new regulations when they were adopted seven months ago, contends that a Takings Impact Assessment finalized in December 2008 is invalid because it did not consider a host of provisions that were not part of the original draft but were added before adoption. The suit also claims the Takings Impact Assessment did not meet state requirements because it was not conducted by a certified appraiser and because it was completed too early in the rules-drafting process.

The county is relying on a Takings Impact Assessment that “did not assess how the combined effects of new water and wastewater demonstrations, required minimum lot sizing, parkland and open space property dedication, easement dedication for use by the Hays Trinity Groundwater Conservation District, minimum roadway setback amendments … would constitute a taking” under state law, Skipton’s lawsuit states.

Skipton’s lawsuit seeks a judgement “declaring defendant’s adoption and implementation of the [development regulations] void and invalid” and reimbursement of attorney’s fees. He is represented by Randall H. Robinson of Willow City, a former Hays County resident and Hays Trinity Groundwater Conservation District board member.

Skipton owns about 130 acres in far northwesern Hays County which he says he may want to divide up someday for a residential subdivision. His lawsuit argues that new six acre minimum lots, an increase from 1.5 acres under the 1997 regulations, constitute a “taking” of his property.

In an initial response filed on Monday, Hays County argues that Skipton’s suit is invalid on jurisdictional grounds because it was filed more that 180 days after the rules were adopted on Aug. 18. Skipton said he met the deadline because the 180th day fell on a Sunday followed by a Monday holiday.

The county also invokes the doctrine of sovereign immunity which shields governments in some cases from being held liable for legislation. Further, the county’s response argues, that Skipton “should be required to clarify whether this is a taking action or one purely to declare certain regulations void and invalid.”

The Hays County Commissioners Court discussed the litigation behind closed doors in executive session on Tuesday. Hays County District Attorney Civil Division Chief Mark Kennedy, the court’s lawyer, did not immediately respond to a request for an interview by press time.

The lawsuit is assigned to 22nd State District Court Judge Charles R. Ramsay.

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2 thoughts on “Lawsuit asks judge to invalidate county development regs

  1. If, as this article implies, Mr. Skipton’s cause of action is that an increase in minimum lot size to 6 acres would limit the development potential of his land, one can see in Table 741.06 of the county development regulations that this restriction applies ONLY to developments that rely on individual private wells and that lie within a Priority Groundwater Management Area. Assuming that Mr. Skipton’s property lies within this area, he can still plat lots as small as 2 acres if the land is within the Edwards Aquifer Contributing Zone or 1.5 acres if it is not by using rainwater harvesting as the water supply system. The cost of a whole house rainwater harvesting system may be comparable to that for installing a well (installers can speak to this far more authoritatively than I), especially if one hones the design with a good modeling process and employs building and cistern design concepts that optimize the investments in rainwater harvesting (I have a historic rainfall model that can readily provide this, and I can provide assistance in evaluating all that — the point being that such services are readily available), and the water quality would be a whole lot better than what can be obtained from a Trinity well. That water supply strategy would have implications for the area of irrigated landscaping the lot owner could “reasonably” maintain, but that can be blunted by using a “septic” system that treats the water and reuses it for irrigation through a subsurface drip irrigation field, which would be located to serve the highest value landscaping. This can all be fairly routinely permitted and done. So, it would appear that the plaintive does have recourse that would not result in the “taking” that seems to be implied.

  2. David,
    Only one problem… you can not obtain an interim construction loan, nor a first-time mortgage for a home which has its sole water supply delivered from rain water harvesting.

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