Yes, sir. And someone this together.
all good afternoon, everyone. Welcome to commissioner's court. I'm gonna call to order a special meeting.
it's april 24th, 2025 at 1:00 pm and we're gonna move
right into our agenda items. Agenda item number one is the public forum.
this is the public's opportunity to address the county about any county matters.
a couple people have signed up. Number one, mr. Brian mcneil.
as you know, mr. Mcneil, keep your comments to about three minutes and speak
right into the microphone there. Yes, sir. Yes, sir.
good afternoon, judge. Commissioners. Uh, thank y'all for hosting,
uh, this today. I just, I didn't come with anything prepared as
I normally do because I just wanted to actually speak from the heart this time. Um,
the city of mclennan chisholm is, is growing. It is probably one of the most
opened areas in rockwell county that has the opportunity for development
to come. And contrary to prop, popular belief,
I'm actually not opposed to development. I'm just pro
smart development. And this is just not smart development.
this overruns the infrastructure. It impacts the etj,
it impacts the city. And when you start doing that, as we have learned
with our county size, if it hurts one city, it's probably gonna
hurt all the cities. While I do respect the american
dream for people to make a living and make money,
I also respect the opportunity to sit down
and work out things and talk about things. I can tell you
this many times. Dr horton has reached out to me, none.
zero, not one, not one opportunity to say, hey,
here's what we would like to do. Could we meet in the middle?
it's great that they want to help build a water, uh, area for
black land. I respect that too. But that doesn't help the county.
that helps black land and their development.
of course, they need to do that because if they don't have that, then they don't have water.
so for them to offer that as a thing that they're offering, that's a
necessity that you have to provide at this point, which you're not providing,
is relief of traffic. Um, relief of
the overrunning of our schools, the relief of overrunning of shopping centers, just the
small things. I don't know what the wait time is every day at zanadu, but I can assure you,
you'd probably go add another hour or two to it, because if it's 6,000
plus homes in my head, an average of three cars, I can do the
math real quick. That's another 18,000 cars, and we're just not
there. We're not ready for it. Come to the table. That's all they gotta do. They
can come to talk to you. They can come to talk to me. I bet we can find a collaborative way
to work together. Thank you. Thank you. Brian mcneil.
uh, next person signed up. Peter hanon. Han, you're gonna have to help
me out with your last name, hanon hanon. Yep.
excuse me.
well, good afternoon, uh, commissioners and I appreciate the, uh, opportunities to
speak. Thank you. Nothing prepared. But, uh, again, as a resident,
uh, that will be directly affected by this development. I,
uh, and my wife oppose it, and probably a good, many of my
neighbors have informally expressed opposition to it, uh, live
in high point ranch, which as I understand it, is directly across
the street from the, uh, from this proposed development. So they will be a
mfi not in my front yard, I dunno. But the, uh, opposition is,
is based on, uh, the, uh, mayor's, uh, statement. The infrastructure
isn't ready for it. We have a septic system, uh,
uh, as of now, uh, water is, uh, questionable during
the summer. I know we will get a, uh, hookup to the north central
of the texas water supply system north, whatever it is,
uh, later in the year. But, uh,
the other infrastructure problem will be 5 48. That
road just isn't ready for that amount of traffic. And, uh,
we're going into, uh, construction on fi on, uh, 2 0 5.
I mean, that's gonna be horrendous just for the traffic infrastructure out there.
uh, I, I would hope that the developers would
be, had to have second thoughts about selling somebody a home in, into that sort of
an environment. I mean, if you are a true developer, you want
to sell a home where people can actually live and feel comfortable.
I mean, I dunno whether any of those 6,000 people were moving into those homes
would feel comfortable coming into an undeveloped infrastructure like this.
so I hope, uh, if the, uh, development goes ahead, that
it will be postponed until, until the infrastructure
situation is worked out. All I have to say, thank you very much. Thank you, mr. Comb.
is there anybody else that would like to address the court? All
right. Seeing no one, we'll move on to agenda item two. Appeal hearing regarding apportionment costs
for river rock trails and dr. Horton appeal dated march 4th, 2025.
I'd like to kind of go over the rules. This is the, uh, first ever
in the state of texas appeal hearing of apportionment costs.
so, uh, once again, rockwell county's breaking new ground. So the
conduct of the hearing, uh, shall proceed as follows, the
applicant's representative shall present the applicant's position by presenting
testimony, evidence, and argument. In support of that position,
the commissioner, court engineering representative, or his or her designee
shall present the commissioner's court engineering representative's position by presenting
testimony, evidence, and argument in support of that position. And the applicant's
representative shall rebut the points made by commissioner's court engineering representative
by presenting testimony, evidence, and argument in rebuttal to the position of the
commissioner's court engineering representative. During this rebuttal, the applicant's
representative cannot present new testimony, evidence, or argument
that does not rebut the position of the commissioner's court engineering representative.
now, there are time limitations. Each side shall have up to 15 minutes
to present its case if there is only one item being appealed and there is
more than one item being appealed, and an additional 10 minutes for each additional item
being appealed up to a maximum of 45 minutes to present its case.
the applicant shall have five minutes to present its rebuttal if there is only
one item being appealed, and an additional two minutes for each additional item being
appealed up to a maximum of 15 minutes. So each side
will roughly have 45 minutes, and then the applicant will have
15 minutes for a rebuttal. So, is the
applicant ready? Uh, we are. Thank you. Please proceed, sir.
thank you. Uh, mayor by anderson. Not represented. 1, 1, 1
second. Art, we gotta yeah. Push the button and it should turn red.
sorry. You, there you go. And, and standard rules. Mr. Anderson,
tell us, tell us who you are. Sure. And, uh, art anderson. I'm with the winstead
law firm in dallas, 27 28 north harwood, uh, representing
the applicant and the developer. Um, I did have a question.
um, in most of these hearings, I actually have been in a apportionment
hearings before. So, uh, this, this is one of the first,
but not the first, uh, in texas, the, um,
most of the time the rules allow cross-examination of the opposing party's
witnesses. And so I initially just wanted to request if the
county will allow, uh, cross examination of its witnesses
in this case or not. Yeah, cer certainly, certainly will. Okay. Um, um,
I'm not certain there will be, 'cause I don't know what's gonna be said, but just wanted to be sure.
um, do each of you have a copy of the exhibits?
and there're basically things that everybody's already
seen, but I'd like to kind of go through those, uh, to start
out with. I, I think the other thing that's important to
point out in a case like this, because it's really not set forth in the statute,
um, but the burden of proof under the case
laws on the county. So you don't, typically it's the plaintiff
is the one who has the burden of proof. If it's a constitution, if it's proven to be
an exaction, which I think that it is here, then the burden
of proof as to whether or not there's this nexus and rough proportionality
goes to the county. So not sure if it'll make a difference or not, but just wanted
to make sure everybody knew that. So our exhibits are, are relatively
straightforward. The first one is the statute itself. And so
I, I think a critical piece here is if you look under 2 32
0.1, 1 0 1 oh a, that
the only time there can be an apportionment under the statute is if
it deals with county infrastructure improvements. So
virtually all of the items on the county's list, uh,
in its regulations, uh, other than roads, and, and
I'm not saying the roads are properly calculated here, but
as a type of, um, exaction, none
of them meet that standard, right? Because
school buildings, not county infrastructure, broadband's not a county infrastructure.
so that was the intent when the legislature passed this, it, it's modeled on
section two, 12.904, the local government code. The, it deals with infrastructure,
which we know what that is, right? It's roads, drainage, uh,
you know, thing, things like that, waterline sewer lines.
the second piece of it is it has to be roughly proportionate
as approved by a professional engineer. So the only item
that's in the county's list that has a report or
a study or a prove up, is the road item. That's
one outta 16 items. So clearly the legislature
was saying that this has to be an infrastructure improvement,
concrete pipes, however you want to define it. Um,
so the only witness we're gonna call is gonna be a, a pe dealing
with the road issues because I think it's pretty
clear that none of the other 15 or county infrastructure,
and so, uh, the county's not authorized to, uh,
impose an exaction, uh, for those items.
the other item I'd like to show, you know, I think y'all are aware under
e that if there's an appeal, uh, the developer prevails
is entitled to attorney's fees and cost. And
under g well, let's go back. So
f says that the section does not diminish or modify the
procedures by chapter 3 95. That involves impact fees.
so a lot of the exactions that are being considered here would be considered to be
impact fees that are not authorized by statute. And that's what chapter
3 95 of the local government code is. And then
g it says the section does not increase or expand and shall
not be interpreted to increase or expand the authority of a county
to regulate plats or subdivisions under this chapter. So that, where that
plays in, as y'all know, uh, the county commissioners met about two weeks
ago and denied four preliminary plats that have been submitted. A list
of reasons were provided by your counsel and one of them
involved not paying the proportionality fees.
and we really don't know what those are right now anyway. But what,
what that means is, is that the county cannot make that a
requirement of a plat approval is separate
and apart. And so if you
look at exhibit two,
that y'all are familiar with this 'cause y'all passed it, but in, uh,
this is the county's subdivision regs under section
five point 10.1 a that lists the 16 items.
so we do have time limits, but I think we can dispose of most of these relatively quickly.
and then just the next part is exhibit three, uh,
was the appeals request. Four is the county's response.
and then the last one is, is a response that we made,
um, march 4th, 2025 to those items.
um, I think it's important to point out, I think one of the speakers said,
you know, whether horton has, um, attempted
to cooperate or work with the local jurisdictions, I think there's zero
doubt that they have sign spent significant time and effort to
do that. They've met with the county folks, they've met with,
uh, the folks from different cities, the utility providers. Um, they've
spent significant amount of money and a significant amount of time,
uh, and effort to try to address the county concerns.
so I wanna point out that in exhibit five, uh, which addresses
each of the items, um, there was an offer
that was made to make a contribution without waiving
our legal rights to object to it, to, uh, fm 4 5 4 8,
which is the, uh, report by your professional
engineer that was prepared in course with the statute. Um,
and there was also, uh, and an offer at that time
with regards to police, which is exhibit five, the second
page. So the road was an offer to contribute,
um, the 338,867 that
the county had requested. And then for the
sheriff piece, it was an initial offer of 529,
um, 4 24. Um, the county did not accept
those offers, and the county has rejected our plats. So those
offers are no longer on the table.
so going through the subdivision regs, I mean, yeah, the, the
items that are there, um,
all of them, I won't repeat for each one, but the only one that can
potentially relate to what the statute allows
is roads. None of the rest of them are county infrastructure. Okay.
um, they're not owned by the county. Most, almost all
of 'em have separate political subdivisions such as schools, right?
so the, the county had a report that said we'd like for you to
pay about $35,000 per lot per house
to the schools. Well, there were so many problems with that.
it's, you know, unbelievable in terms of how schools are funded by our legislature,
how they're bonded. There's no individual assessment of that. Nobody
has determined the, the actual impact. Um, I
got two different school districts. Should it be for one, not for the other. There,
there's no substantiation. More importantly, there's no professional
engineering report of that issue, which is required by the statute.
you know, counties and school districts are separate subdivisions under our
constitution. They have separate powers. If the school district wants to impose,
uh, a development fee, they can, I guess
they could attempt to do that. But again, the, the, that's something for the schools,
not for the county. The schools have a board of trustees counties have
a county commissioner's court. Um,
again, there's no individual assessment which is required.
it's not just taking a bunch of data from somewhere. You have to do an individual
assessment and is irrelevant really 'cause there's no professional engineering
report. But clearly for legal reasons, that's invalid
with regards. The number two is roads. Um, again,
this is a state road's not a county road. County doesn't
own it. I mean, yeah, county doesn't own it. Um,
it's, it's simply not county infrastructure and our,
um, witness will, uh, address the issue of proportionality.
but if you look at the tia that was submitted to
the county as part of this development, there is sufficient capacity
in the fm 5 48, which I think is the road today to
handle the additional trips from the development.
now, it, it should be noted that the dedication
of the right of way for the road is considered to be an exaction. Legally
we're not objecting to doing that, making that dedication.
so that's a, a value of approximately 50,000
to a hundred thousand dollars for that right of way dedication. But again, we're not,
um, disputing that. Um, police,
again, not, it's not infrastructure, you know, our deputies
and stuff like that. Um, and y'all know
this, these costs are not paid by the developer on the front end.
um, they are paid by taxes
and as growth happens, uh, property tax revenues
go up. Um, and, and that's typically how for
most of these things that, um, these things are paid for. There's
a lot of active growth throughout the state and governmental
entities handle it and they handle it by the schools handle it. And the,
um, sheriff or city, whoever's doing that also handles
it. But it's not infrastructure not prepared by a professional engineer.
so therefore it cannot be authorized. There's also no statute that
authorizes this type of fee, um,
dispatch and nine 11 radio communications. It's my understanding the county with true
those two items as exactions that they were requesting. I,
I think that's what the, the report said. Water, sewer,
electric, open space drainage. Uh, again, um,
none of these involve county infrastructure and are not legally valid.
there's also no, um, prepared professional
engineering report justifying any of those exact exactions. We
agree with the county engineer that these will be addressed at
the time of final plat construction plans. And it's kind of important to remember
right now we're at the preliminary plat. So basically it's to show,
uh, more conceptually what's gonna be out there. And as you prepare construction
plans, you do the engineering, you basically delve deeper into
those types of issues. And that's where those things are
determined. And I think that's what you're counting engineer indicated was the
appropriate way to approach that. We agree with that. Um,
ambulance, fire broke, broadband natural gas, aerial controlled
trash. Again, none of those involve county infrastructure, not
legally vi valid. We've provided proof of service on those items.
um, that's basically the legal arguments.
um, hope my car's okay. So, um,
do, is it appropriate now to call mr. Jeff miles or do
you have any questions? No, no. Does anybody have any questions? And, and again, I didn't, uh,
say it at the start, but any questions won't be, uh, won't
be taken from your time. Counted against time. Yep. Okay. So yep. Call, call. I, I have questions,
but can we wait till the end? Certainly can. Alright. Certainly can.
and just curious, how much time do we have left? I don't think you have used 12 minutes
and 54 seconds. That's pretty efficient. So you, you we're, we're gonna be really short, so you've got time.
we're gonna be focused here. Um,
you got that. Can you please, uh,
give your name for the record? Yeah,
yeah. Uh, jeff miles. And what do you do for a living?
I'm an engineering consultant. And who do you work for? I work for myself,
uh, miles consulting, llc. Are you licensed by the state?
yes, I'm licensed. And are you considered to be a professional engineer?
yes, I'm professional engineer licensed by the state of texas. So you would meet
the criteria then under the statute? Oh, thank you.
see if that works. Can you hear me okay? Separate 'em out a little.
no feedback. Right. Can you hear us okay? No, you're,
you're, you're good. Okay. Um,
you are licensed by the texas, you're a professional engineer? I am. Okay. So you would
qualify to provide testimony and evidence with
regards to county infrastructure issues under the statute, correct? Yes.
and do you have an engineering focus? Yes. Uh, civil engineering for
land development projects. And over your career, how many subdivision
plats have you been involved with? Um, probably over a thousand in a 35
year career. Okay. So we're gonna focus on the road piece,
as you heard me. Um, basically present at the beginning,
uh, roads theoretically can be
considered county infrastructure, correct? Correct.
and for this case, was a traffic impact analysis prepared for
the development? It was, was it submitted to the county? Um,
not sure the county ever asked for it, quite frankly, so I don't recall. But you got one, we've
got one may of 2024. We did one. What's the name of the
perimeter road to the first two phases
of the development? Yeah, it's, uh, farm to market road 5 48.
and does perimeter road means it's adjacent? It's adjacent. And does the county
have subdivision regs that basically address
the platting and construction of perimeter roads for a development they
do. And fm
5 48, is that a county road or a state road? State of texas road.
in your opinion, can the county require fees from a developer to improve
a state road? No. Have you ever seen this situation before?
no. How many lanes are in the existing road? Two lanes.
alright, so let's focus real quick on the right of way. How much
right of way is shown? It's being dedicated by the plats? Uh, 1.1
acres. Okay. Now according to the
tia, what is the capacity of the existing roadway? It's
uh, 875 vehicles per hour per lane. Okay.
that means that 875 vehicles could
travel on each lane and still be safe and correct
within an hour timeframe? Yes. So according to the
tia, what's the peak hour number of vehicular trips generated by
the 418 houses? 115, uh,
trips, uh, going westbound in the morning towards state
highway 2 0 5 and then 127 trips,
uh, vehicles per hour going eastbound from 2 0 5
back towards the neighborhood in the evening. And from
a traffic impact methodology, the peak hour is typically
when you would have the most cars coming out of the development? Correct. Okay.
and so in your opinion, is there sufficient
capacity in the existing two lanes of roads to handle the trips from
this development? Yes. We're it, like I said, we, the
capacity is 875 vehicles per hour per lane each direction.
and we are roughly 13 to 14% of
that total. And would
the construction of additional lanes be required from
this development? No,
we pass the witness. We
can. Uh, can you tell the, uh, court,
uh, how many houses are planned for the full build out of the development?
it's unknown at this time, but we've projected, uh, over 6,000.
okay. And so the, uh, first two phases, uh, of this, uh,
phase one a and one b are uh, just over 400 houses,
correct? Correct. So the eventual build out will be 15
times that amount? Correct. Okay. Um,
and, uh, is that road, uh,
able to handle the traffic, the expected traffic from 15
times the amount of houses? Uh, they're in, uh, one a and one b?
no, it is not. Okay. Um,
pass the witness. Sure. So the engine, you've seen the engineering
report by the county's witness, correct? Correct. And it's only
focused on the proportionality and
the impact on 5 48 from the 418 houses for the
first two phases? Correct. Mr. Anderson, if you could scoot that microphone just a little
bit clo it also projects in the courtroom. I, I apologize.
so he, you know, mr. Ray was talking about development of the entire
property, correct? Correct. The proportionality appeal that we're
addressing here and what the county addressed in their report focuses
just on the 418 houses and their impact
on the roadway system. Is that correct? That's correct. Okay. And so at some
point it's like most roads you get enough
development, there will be road improvements that will result as
part of that. Is that fair? That's correct. Okay. No further
questions. I have one, uh, follow up judge.
um, are you here today to provide, uh, testimony on
any of the other, uh, 15 items in the county's apportionment letter?
other than the, uh, road section?
no. Okay. He, he's, the only thing he's
qualified to testify under the statute is on rose,
and that would apply to the county as well. No further questions
here. Alright, mr. Anderson. Uh,
it's still in your court. You've got plenty of time left. Is that I, I told you
I'd be efficient and hopefully I have been. And I, I mean, I, I
think we all know this, that this is really a legal issue. It's really not
a proportionality issue with the roads. Could be one except
it shouldn't, but it's cleared none of the other 15 items or county infrastructure,
which is what the statute addresses. None of them have any
support by professional engineer. Um,
that I think that's the clear legal piece of this.
you know, if if we have additional questions or need to address things,
we, we will, but I think that that's where we are.
all right. Does anybody have any questions?
I've got at least one. I can hear you. I said
I've got at least one. My name's lauren lichty. Um,
in paragraph one of your
response letter that you sent back,
it says that drh will work with the school districts
including reserving regarding reserving
needed school sites within the larger development at the appropriate time,
and will oversize infrastructure where needed to serve
the school sites. Um,
has the applicant reached any agreement with the school
districts regarding its contribution for schools?
um, its oversizing of infrastructure
or other things, other items? Not, it's not, not as far as I
know. The sites haven't been identified. Yeah. I think it's too early in the process
for a development like this. It, that would come a
little bit later in the process when the school district will say, we'd like to have a site
here. Here's what, how, what we'd like to build. Do we want elementary school? Do
we want a high school? You know, it's, it's a coordinated effort. It benefits the
development right. To have schools nearby and it
benefits the school district to have a developer who works with them. That's what this developer
does all over the state. Alright. Well,
I appreciate the response, but, uh, I'm not gonna argue those
points with you, but the answer is, I take it is no, there's been no agreements with
the schools. Yeah. With with the explanation I give, no, nobody would have
an agreement with the schools at this part in the development. Okay. Well, I
don't know if that's true or not. I mean, you say if you have some examples, I'll say
nobody would. If you see, have some examples. I've seen, see, I've seen a lot of plat where
they show school sites. Sure. Right. When it, when where you're in a position
where it makes sense and the school district, the school district, the way usually
approaches the developer first and says,
we'd like to have a school in this particular location and here's what we look to
have. And that's where they kind of work together and they work it out. Oh,
have they had those discussions as a school district approached them? They, they have,
as far as I know. Okay. Again, that's, the
school districts will work that out. Their political subdivision, they know how to
locate properties and plan for growth. That's what they do.
okay. Um, another question.
I think this, these two plats show
418 homes, if I remember right. I think that's plats
phase one a and one that should be about correct. Sure. And then
as, um, mr. Miles
identified, they're planning to build about over 6,000
total. Not that don't have a certain number yet, but in this entire
property, um, could you
give us a projected build out time on that? Uh,
like how long will it take based on your projections,
which I would imagine you have your big company, um,
because it affects a lot of this infrastructure. So do you have any projections
about the time over which these first 418
will be built out and the remaining, uh, 5,800
or whatever it would be would be built out? Well, the real challenge to, to answer
that question is we need to get plats approved and the plats were denied.
so, well, you can answer from whenever they would be approved, assuming they would be, if you,
I'm just asking, trying to get a feel for how long it's gonna take to build this out. If you can
predict when that is for me. . Okay. So you're not gonna
answer that question. Well, I did. How can I give you a date? I asked for it. How can
I give you a date when you, when the county tell me is not approving plats?
I asked. We can't develop until that happens. How long it take to build this out over time there?
I'm, I'm sure I, I'm sure of nothing, I've never looked at dr. Horton's
projects, but I would imagine a company like that projects
how long it'll take to sell out these homes. Hey, david, do you have a range?
uh, um,
10 to 15 a month on 418 to do the 6,000,
and that could be
20 to 30 a month. I mean, it could be a,
this could be a 15 year project, 20 year project. 15
to 20 maybe years. Correct. Okay.
thank you. Does anybody
else have any questions? Uh, just one more second. I'm not, I anybody
else can I, but I'm not, I think I have one more. Okay. Go, go ahead.
um,
um, I, I have stopped your time, just so, so you're aware. I I
think we're all good, at least on the time part. Yes, sir. I think we're all good.
so the, there were a list
of these 16 items in the county health letter or from
the environmental, uh, health coordinator. Um,
it looks like most of those were not asking
for money. Um, it looks like
water, sewer, broadband, electric,
esc and emi, fire, natural
gas, drainage, animal control,
trash and refuse dispatch. And nine 11
gis service and radio communications,
at least at this point, we're not asking for an apportionment.
and I think the key language it, or at least
significant language is in the statute, is
that the developer bear a portion of the cost of county infrastructure
improvements by the making of dedications, the payment
of fees or the payment of construction costs.
and I think those items, there was nothing, if
I read the letter right, there was nothing in there requiring the
payment of fees, the payment of construction costs or the developer's
portion of costs. They dealt with things like, uh, for
example, esc and emt. We wanted proof of service
fire. We wanted proof of service. Uh,
water and sewer had said resolved through project design.
do you agree with me on that? That we're not asking for money on those things? Yeah, I agree with
you. I don't think the county should have any of
those items in the ordinance anyway. But the other ones, and I think
most of 'em have been addressed by you, do a will serve letter or anything else, but
they're really not appropriate for a proportionality appeal. I don't know why the county
included them. Okay. But my point is
they're not asking for money at this time, uh,
as far as I can tell. And I think that's what the sta that's, and I think that's what
the statute deals with. Yeah. So proportionality, appeal
concerns, that sort of thing. Yeah. That's why they're really not appropriate
to even be in the ordinance. Okay. Um,
well I had another question, but I think you already answered it. Uh,
mr. Anderson. So for right now, that's it
from me. Does anybody else have any questions?
we, we rest. Alright. Uh, mr. Ray.
alright. Uh,
I, uh, have handed out to the court, uh, a, uh,
two
thank you. I've handed out to the court, uh, two, uh, sets of
documents. Uh, one is a brief, um,
that is, uh, it's about 44 pages of
content that goes into, uh, all of the different, uh,
elements in the county's initial letter. Uh, and then the response letter
from dr horton, uh, that we're calling the appeal letter.
the second, uh, document is a list of,
or is a, uh, printout of all of the exhibits that are cited. Uh, there's
17 exhibits cited, uh, in the county's brief.
um, 15 of those are in that packet. The other two
were extremely long. Uh, and so we will provide those in electronic
format rather than in hard format. Um,
if you take a step back and, uh, boil this down to what we're really talking about,
um, I I think it's been very clear from mr. Anderson
that, uh, the real underlying issue is an issue of
legal authority. Uh, and most of the brief,
uh, goes into detail on legal authority related to, uh,
each of the items that were in the county's initial letter. Um,
it would take, uh, a long time to go over each of those elements,
uh, uh, in, in that are explained in the 44 pages. Uh,
but I'm gonna go over a couple of highlight, uh, high points,
um, so that they're, uh, clear on the record, uh, for
anybody who wants to come watch this later on. Um,
first of all, some real very brief background about why we're here.
um, the, uh, initially,
uh, d horton, uh, approached the county,
uh, and, uh, started the, uh, platting process,
uh, for the river rock trails mud. Um,
in november, uh, of last year, dr horton
asked for, uh, they formally asked for a proportionality,
uh, determination from the county. Um, about a month later,
uh, december 13th, uh, the county sent over its
letter, uh, which is in both of the sets of paperwork
that, uh, you have in front of you, uh, the exhibits from dr. Horton and
from the county. Um, and as part of the county's
response, there were 16 infrastructure improvements, uh, listed,
uh, specifically, and I know that you've all seen the letter, we've, uh,
discussed this in, in open court. Um, the letter
response, uh, from dr horton, uh, addressed
each one of those. Um, and each one of the responses,
uh, were different, um, one from another. But,
uh, the most often repeated item, uh, came down to,
um, a lack of authority, uh, the
alleged lack of authority, um, based on, uh, d horton's
reading, uh, of the meaning of the statute. What this comes down to
is a difference in interpretation of a couple of words in
the statute, uh, specifically county infrastructure.
um, mr. Anderson is correct that most counties do not,
uh, uh, or have not historically, uh,
read that the same way that the county's interpreted it. Um,
and our brief, uh, goes into detail about
why, uh, the county's position is what it is, why we think that,
um, infrastructure in the county does include those items.
um, and we do have a relatively pure legal
disagreement here about what it means, uh, when you say county
infrastructure. Their understanding, uh, as, uh,
mr. Anderson made very clear is that, uh, that means infrastructure
that's owned by the county, um, the
county, um, leadership in the, uh,
at least in the, uh, department that, uh, initially sent out that apportionment
letter, uh, disagrees with that position. And, uh,
we believe, uh, the county, uh, employees who are,
uh, who sent that letter, uh, and who have been dealing with this, um,
uh, development, uh, for, uh, a while now, believe
that that means infrastructure that is in the county geographically.
um, and, uh, the, the brief goes into
detail, um, by sa citing different, uh, sections of different
codes, not just the local government code, but other codes as well, uh,
that go, uh, that, that have other, uh, definitions
and descriptions. Um, and, uh, also goes
into detail on case law, uh, that has, um,
interpreted some of those items. Um, and I think for
it, it, it's probably, uh, the right time to tell you, um,
that in the past, uh, that there, there really haven't
been any cases, uh, from courts of appeals in texas that have
interpreted those two exact words. Uh, but
the, uh, section of the texas local government code that allows counties
to, um, exact apportionment costs is
relatively new. Uh, it's only a few years old. Um,
but if you look back at the legislative history, and some of this is cited in our,
uh, brief, uh, but, uh, when the legislature
passed that a few years ago, uh, they did that to mirror image,
uh, another statute that had been on the books for much longer. Uh, it's
almost exactly word for word the same, uh, statute. And what
that, uh, statute did was allow cities, uh, to
exact, uh, fees, not, not impact fees, but,
uh, apportionment, uh, fees that are similar. Um,
and, uh, so for about 15 years, uh,
14 years, um, cities could, um,
apportion costs, um, from development,
uh, but counties could not. Uh, and when the legislature,
um, put the law into place that was cited, uh, earlier,
um, by mr. Anderson, uh, which is, uh, local government code
2 3 2 1 10, um, it did not
specifically define that term, uh, about what counts as county infrastructure.
it didn't, um, narrow the scope. Uh, and
so we're in a position where, uh, because it's not
defined in the law specifically, it's not defined,
uh, or it's not interpreted by a court of appeal, uh, and,
um, there is no ag opinion that addresses the meaning of that
term. Uh, there's, uh, there's a legitimate
difference in interpretation here. Um, we believe that the county's
interpretation is, um, is not
just defensible, but, uh, what the legislature intended.
um, there, if you, in, if you read the
statute to mean only infrastructure that's owned by the county, that's
very narrow. I mean, we all know, uh, that the counties, uh,
owned infrastructure is, uh, gonna come down to buildings
and roads that are owned by the county, which is, uh, usually
not nearly as extensive even as all the cities within the county. Uh,
but if under that interpretation, there would be
no government, uh, that would have the ability to exact
apportionment costs, uh, from developments. Uh,
and that's, um, we don't believe that that's what the
law, uh, was intended to say. Uh, we understand
obviously that there's a difference of opinion here, uh, on that.
but, um, we believe that the, uh, um,
that the, um, brief, uh, goes over that in
relatively, uh, deep detail and we cite, uh, other,
uh, case law from texas, uh, case law from the us supreme
court regarding the extent of municipal power, um,
and, uh, other parts of, uh, the texas codes
that are relevant. Um, I'm not gonna go into a whole lot of detail
there other than to say, yeah, we, we definitely disagree about the
meaning of those two words. Uh, I will go into a little bit more
detail about some of the specific, uh, items,
uh, that, uh, mr. Anderson, uh, brought up.
uh, number one is the school apportionment fees. Um,
the county believes, uh, and I think it's clear through the county's actions to
date, that the county, uh, believes that the county infrastructure does include,
uh, the school district. Um, in part
because the local government code section, the 2 3 2 1 10 does
not nearly define, uh, county infrastructure. And,
um, the schools that we're talking about here are within,
uh, the geographic bounds of the county. Um, one
thing that I do, uh, take some exception to in,
uh, mr. Anderson's, uh, telling of, of, uh,
where those numbers came from, uh, those were not made up
by the county. Uh, in the initial letter that came from, uh,
the development office, there was a, a stated amount of 15,
almost $16 million, uh, for the first two,
um, phases of the project. Uh, that was based
on, uh, an exhibit that's in your packet, exhibit,
uh, three a, uh, that's, uh, from the school district.
uh, it's an older, uh, it's an email that
relates to the, uh, calculation of student yield,
expected student yield from houses in the royce city, isd.
um, and the expected, uh, student yield, at least in that, uh, email,
uh, was 0.5 students per house. Um,
it, uh, I mean, the county has an obligation to be reasonable. I think,
uh, one student for every two houses is an extremely
reasonable number. Uh, some, uh, ca uh,
school districts that have calculated that number for bonding purposes, uh,
over the past few years or the past 10 years, have come in
at much higher numbers. Uh, but it's very reasonable to, to take a middle
of the road number of 0.5 students per house, uh, in,
uh, uh, more of a bedroom community, uh, like the eastern half of
rockwall county. Um, the number, uh, which
is 75,591 per student, uh,
did come directly from the, uh, superintendent of the royce city,
isd uh, the former superintendent, the one, uh, there's a different person
in that office now. Uh, but that email is in your packet.
um, and I'm gonna, uh, in the
interest of time, I'm just gonna hit the high points of a couple of these other items.
we did discuss, uh, road infrastructure. Uh, there's obviously been some
agreement to, uh, participate in the road structure,
uh, or the, the, the payment for the, uh, uh, roads
that are adjacent to the development, uh, the county, uh,
on that section and several other sections. Uh, there was references
in the appeal letter, uh, to lack of county authority to do it
in the order in which it's being done. Um,
in the, uh, section two of the brief, which is one
of the longer sections of the brief, uh, we break down
why, uh, the county's, um,
proposed order, uh, is number one different from dr.
horton's proposed order, uh, and why the county's proposed order
of payment versus, uh, the timing of, uh, platting,
uh, either approval or filing. Uh, while we believe that the county's,
uh, letter and stance on that, uh, complies with state
law, uh, and why that's reasonable,
I want to talk about, uh, two other specific issues.
uh, obviously there's been a lot of, uh, letters attached, uh,
that are either will serve letters or can serve letters. But, uh,
the two big issues that I'd like to talk about, uh, quickly are
the issue with the fire and the ems, uh, contract. Um,
there's obviously a disagreement about whether there is a valid
contract in place between dr. Horton and mcclendon chisholm. Uh, and
then I want to talk about the water contract, uh, and whether or not, uh,
the water contracts that at least that we've seen so far, uh, from,
uh, black land and from, uh, north texas,
uh, amount to a will serve letter. Uh, and I wanna go through why
we believe that they do not, um, rise to the level of an
appropriate will serve letter. Um, but first fire and ems, um,
this is in section three of the brief. Um, we believe that
the, the, this, uh, section, this area,
uh, equates to a, uh, a serious deficiency in
the submissions. Um, emergency services, uh,
are literally lifesaving infrastructure. Uh, the county,
uh, does not own, uh, the fire department, but the county
does pay contractually, uh, pay, uh, money to,
uh, pay for fire and ems services. Um,
there's disagreement, uh, apparently, uh,
based on comments that were made in court, uh, I believe by,
uh, d horton's witness here, uh, a couple of sessions ago
about whether or not there is a valid contract with mcclendon chisholm.
um, we have, uh, included in
the agreement, uh, exhibit nine, uh, and
10, and those are, uh, exhibits
related to the initial contract that was signed by mclendon chisholm,
and then a secondary, uh, exhibit that shows that, that, uh,
the, at least the city council that's there now believes that they have
walked that contract back. There is, uh,
there have been statements made in court, uh, that dr. Horton believes that
that was ineffective, uh, but there hasn't been any reasoning
presented, uh, to show why they think that that contract is still in
place. Um, section three of the brief,
uh, goes into deep detail about why, uh, the
county has legal authority to ask for that service or proof
that that service is going to be there. As it stands right now,
everything that, uh, has been presented to the county, uh, comes
along the lines of emergency services, is that there was
a contract, and at least one party to the contract believes
that that contract is no longer valid. And I, I will point out,
uh, just to get a little into the weeds on this one specific section,
um, the mclennan chisholm agreement has conditions precedent in the
contract, uh, that are required for, uh, the contract to become
effective and to be valid and enforceable. One of those
is that, uh, there must be tceq approval of a joint
fire plan, uh, which hasn't occurred yet. Um,
the other one is that the mud, um,
well, the, uh, the other issue is that the mud was,
uh, or the, uh, agreement with the mud was repealed before,
uh, those conditions precedent became effective.
uh, we believe that the city's action to repeal, uh, slammed
the door on the effectiveness of that. I understand that there may be,
uh, litigation, uh, between dr horton and the city of mcclendon
chisholm. Uh, but as it stands right now, the county doesn't
have any effective, um, will serve
letter or any sort of evidence of a contractual,
uh, relationship with any other, uh, fire or ems group.
before I talk about water, let me talk about, uh, law enforcement funding very quickly.
um, there was a section four of the brief, uh, goes into
law enforcement services. Uh, the county's apportionment, um,
is based on, uh, the number of,
uh, people who, uh, are likely to live in that subdivision.
um, the section four of the brief goes over the math about why
we believe that, uh, two law enforcement officers, uh,
is not enough to handle, uh, the number of houses that are
gonna be built out there. Um, and that, uh,
future, uh, tax income in subsequent
years is not enough to pay for the actual burden.
um, it takes a while to bring new officers on.
uh, it takes, um, about a year and a half from the beginning to
the end, from the time that there's a need identified to when people, uh,
are actually full on deputies. Uh, and that is
part of the length of the hiring process. Uh, but
from the beginning to the end of that process, that's one period of time.
the, uh, time that it takes for the county to actually add those people
to be paid for in the next upcoming budget is another whole
extended period of time. Uh, and so based on the number
of houses that we're, uh, expecting in this, uh, development,
at least a full build out just for 6,000 houses, um,
having two deputies up front is still gonna create
a massive lag issue, uh, with the ability to bring on officers
and the ability to tax, uh, these new, uh, properties
to pay for those people. Um, another,
uh, lag issue, uh, in addition to the time
required to, um, put out an, uh, a job, uh, notice
and hire people. And, uh, the, the other, uh, timing issues that
we talked about with, um, taxing and adding things to
the upcoming, uh, year's budget is the fact that, uh, these
houses don't get taxed right away. Uh, they, they're
not gonna be taxed until after they're done with construction, uh,
at least not the taxes that would be necessary to pay for, uh, additional
deputies at the sheriff's office. So you have three different time lag issues,
uh, that, uh, is a major point of disagreement on,
um, when that payment should come and how much it should be.
and we go into a great level of detail in section four about why,
uh, the county's position is different from dr. Horton's.
um, I'm gonna go
ahead and skip to the last, uh, issue I'm gonna talk about at least here,
uh, which is the water supply, and that's section five of the brief.
um, there are several exhibits that go along with that, uh, exhibit
14, 15, and 16. Um, but what it really comes down to,
if you boil all of that down, uh, the county does have authority,
uh, to ensure that new developments are gonna have water.
uh, there's a disagreement here, obviously about whether or not that's appropriate
for the apportionment, um, uh, process or if it comes
with the platting, uh, process with the preliminary or final
plat, uh, or engineering. Uh, leading up to the final
plat, um, section, uh, six of the
brief, uh, goes into detail about why we believe, uh, it's appropriately
part of the apportionment process. Uh, the county's not asking
for money, uh, like with many of the other utility items,
uh, what we are asking for, uh, is a will serve
letter. And, uh, those three letters,
uh, that are, uh, 14, 15, and 16 in your packet,
uh, do not add up to a will serve
letter. Uh, they add up to a can serve letter,
uh, but that can serve is dependent on a bunch
of other things happening, uh, some of which, uh, we just
don't have any evidence to show will necessarily happen.
um, obviously, uh, black land does
want to do this. Uh, there's no question about that. The
question is whether or not they can show that they have,
uh, contractual rights with, uh, north
texas, and in turn, whether or not north texas has
the subscription rights to that water from the sabine river authority.
uh, and the, the things that have been provided to the county so
far do not show that. Uh, in fact, they show, um,
about as close to the opposite as you can get. Um, they
do show that, um, uh, blackland obviously has enough water, you
know, subscribe to enough water to support the people that are there now.
uh, and, uh, apparently the idea here is that,
uh, dr horton will pay for all the costs to get
them up to speed, uh, up to the level where they have a new take
point or a new pipe, um, that comes off of, uh,
north texas's, uh, water supply, which comes from
ney and from sabine river authority. Uh, but
what the, what the, uh, documents do not show is that there
is a, uh, contract that,
uh, makes that 100%, um,
reliable. And if the county, uh, approve, if the court
approves, uh, of the, uh, the
opposition here, uh, position and, uh,
allows this, uh, development to become final and move forward. There
is, uh, at least currently in the paperwork that the county has no guarantee
that there's gonna be enough water for that development. There's
a guarantee that, uh, they'll be able to provide the water that they're
currently subscribed to, but that is nowhere near, uh, 6,500
houses worth of additional water, much less other development
that comes in, in the, uh, non, uh, residential
portions, uh, that may be built out there. Um, and
I know that water is the main issue that every development
is talking about. Every county in this, in this whole state is,
uh, dealing with is the lack of water. Um,
I've dealt with that, uh, every single day for about two
years, uh, for other clients that I've got, including negotiations
with the sabine river authority. Um, and the
documents that, that I've seen here, um, are, uh, in,
in section five of the water supply or of the, uh, brief,
we go into a lot of detail about, uh, why a can
serve letter in this position, uh, is not the
same as a will serve. And what the county has, uh, asked for,
um, is a binding commitment. And the
documents that are in front of you just don't add up to, uh,
a binding commitment because there's no formal contract that
ensurers that this development will be served either, uh,
from north texas to blackland or from sabine river
authority to north texas. Um, that's not to say they can't get
it. I hope that they can get it, um, and
time will tell. Uh, but right now everybody wants
more water. Everybody needs more water. Um,
the counties, uh, around you and, and, and to some extent in this county,
um, there's, uh, groups and, uh, neighborhoods,
uh, running up against, uh, the sub the limits of their subscription,
uh, amounts. Um, I'm sure that you've all heard news about,
um, um, construction moratoriums
based specifically on the lack of water. Some of those are in
this, uh, general service area, the water that comes from this watershed.
um, and this watershed is part of rockwall
counties in one watershed, parts in a different watershed, everybody has
over subscription and under supply. Um,
the, uh, that section of the brief though goes, uh, line by line through
all of the documents that are included in that section, uh, 14, 15,
and 16, and explains why, uh, the county believes
that, um, there is not enough here to rise to
the level of a will serve. And because of that, uh, we
believe that the, uh, county has an obligation to,
um, not move forward with a final approval,
um, whether that's approval in the form of an order in
response to this hearing or eventually, uh, approval related
to the final plat. Um, and that's one of our
areas of disagreement is whether or not this is appropriate
for, uh, today's hearing or, uh, eventually for
a private or for the, uh, final plat. Um,
we believe that legally, uh, rockwell counties on, on solid
ground, even though it is not, uh, a, a path that many other counties have
taken, uh, since this, uh, law came to pass,
uh, six years ago, um, based on the
other, uh, statutes that we've, uh, provided in explaining the letter and the
other case law. Um, and we would ask
the county to, uh, the commissioner's court to enter an
order, uh, after considering all of the documents and
testimony and evidence, uh, that are presented today, uh, upholding
the previous position that the county's taken on, uh,
the apportionment issue in particular, uh, and just
to remind the court that is a completely separate issue from,
uh, the issues, uh, surrounding the, uh, disapproval
of the preliminary plat and ongoing negotiations related
to platting this apportionment. And the, the, the exact meant
arguments are statutorily separate. Um,
and there, there is bleed over. Obviously the, uh, that is the
main point of disagreement is when those issues should come up.
but we would urge the commissioner's court to read through, uh,
the, uh, brief and the, um, exhibits
that we've provided, um, most of which are the same exhibits
that were provided by, uh, dr horton's counsel and
to enter an order, uh, upholding the county's previous
position and denying, uh, dr horton's appeals
on, uh, 14 of the 16 points.
does anybody have any questions for mr. Ray?
okay. Hearing none, uh, mr. Anderson, you've got 15 minutes to
rebut. Thank you. Um, you know, it's interesting,
I've been to several hearings here where the county
has complained and probably rightfully so, about not having as many powers,
um, for example, as home rural cities have with regards to protecting
the police power, uh, and, and how the legislature
has addressed those over time, and that it's probably a
legitimate concern. I think it's important to keep in mind that
that is a fact. The constitution and the state statutes have greatly
limited the powers of counties in general law
towns to act without having expressed authority.
and I'm not saying it's a good thing, I'm just saying it is what it is.
and the brief, which I just got, so I had to skim through it, it
wasn't provided to me ahead of time. The 40 pages, again,
goes way beyond what the statute and the constitution allow
the county to do. And I, I appreciate it. It's,
it's well crafted. I usually don't spend that much time writing
a brief like that one. But, um, the, the real crux
of the issue, I think is to just read
2 32 0.11 a. And I'll be honest
with you, I, I really don't like it when lawyers say,
I've done all these cases and I know how it's gonna end up and all that, but
unfortunately, I'm gonna say it. So I've had, you know, four
cases before the texas supreme court dealing with governmental
powers. I probably have 20 court of appeals cases
on infrastructure. So I have a pretty good idea. The courts know what infrastructure
means. Okay? And probably another 35 or 40
court of appeals cases, and this one's really simple,
it's county infrastructure. Infrastructure means
pipelines and or water lines. It's streets and in drainage,
all those sorts of things that happened with the development. Okay?
county infrastructure is simple, and I appreciate the strained attempt to
try to make it something that it's not. And I appreciate where he wants to go think
it shows a lot of creativity. But my experience is when you go before
a court, they usually just look at what the worst common meaning is.
the county is. You infrastructure is streets,
culverts, water lines, sewer lines, okay? That
if y'all, if you look at your traditional subdivision regs, that's what y'all deal
with. That's what y'all regulate. The reason it's county infrastructure
is not city infrastructure, right? Cities within their corporate limits can
own and have dedicated all those types of improvements. That's, that's
the distinction there. But the real critical piece here, I think is
if you look at the statute. It, it involves,
um, a condition of approval for a property development project
that the developer bear a portion of the cost of county infrastructure
improvements by the making of dedications. The payment of fees or
the payment of construction cost, the developer's proportion of the cost
may not exceed the amount required for infrastructure improvements
that are roughly proportionate to the proposed development as
approved by a professional engineer who holds a license issued
under chapter 1001 occupations code. And
it's retained by the county. And so the rebuttal basically is,
and I, and I kind of skimmed this brief 'cause I didn't have it ahead of time,
the county doesn't dispute that in order to have a valid, um,
apportion ity appeals proposal like has been
in this case, it's gotta be prepared by a professional engineer. That
kind of relates back to the infrastructure, right? If, if you're gonna have
a civil engineer that typically does construction drawings for streets and utility
lines and stuff like that, you have a civil engineer do it. So the legislature said
you actually have to have an engineer to do those things.
I I look through the brief. I don't think they're the , the county's
disputed that there, there are, are no professional
engineering reports here except for the one on streets. And
again, that one's not an individualized assessment. It's gotta be individualized.
the, the, their report basically says, we looked at the subdivision ordinance and
or regulations. It requires typically on a perimeter street that the
developer dedicate and pay to construct two lanes.
so the way that this usually happens for a
proportionality appeal, it, it's not intended to be
the sort that the county uses to extract things.
it was intended to be a shield by the developer. So let's take streets
ca the engineer says you need for your
development to dedicate two lanes and build two streets.
okay? That's just because that's what the subdivision
regulations say. It's not an individual assessment for this
particular developer and the number of trips that he's generated,
it's the general applicability of a subdivision wreck. The way it typically happens,
the developer then comes up and says, whoa, you
know, let's, let's pretend it's one house, my one house, 'cause we've
had this before. My one house doesn't generate the need for me to
dedicate 50 feet of right of way and build an extra road
extra lane. That's how this process typically works.
so the county's kind of flipped that and is trying to use it
again, like I say, more than a sword, but a shield. But you still gotta
comply with the statute and just haven't
done it. I mean, there's just no professional engineer reports here.
and that's the whole reason this, this statute to set the way up. It, it
is, is infrastructure improvements as part of a development that are
basically a professional engineer. And I will admit they had
a professional engineer do their street report. We disagreement for the
reasons we talked about, but, and, and jeff miles obviously is
an engineer, but the other 15, I mean there's
just no question. There's, there just isn't that
y'all can't impose those. I I I don't even see why
there's a question there. Um,
so that I really should keep it to that. But just a couple of
comments that were made. Um, but again, I do honest with
you, I don't know about this fire contract with
the city. Um, my understanding of
contract law is pretty basic 'cause that's not what I do. But typically one party can't
just terminate a contract. You know, I mean I grew up in west
texas, your word was your bond, if you will both want to terminate, you can terminate,
but one party just can't terminate because they want to. That's not how
it works here, uh, in texas. The um,
you know, I have other stuff written down, but I think that's kind of the main thing. I
mean, it just, there there may be other issues here
and I think commissioner lty is correct. You know, he says, well, you don't have to pay
a fee. Well, that's kind of my point. You know, that's what the statute is for.
if you have to construct, dedicate or pay a fee and if it's,
you know, make sure you can get electricity to the side or you know what,
make sure you have animal control or whatever. Those are not
proportionality appeal items. Okay. And frankly,
every development has to go through those and make sure they work or they can't develop.
okay. So if if there's no water, it,
it won't happen. The, the retail provider under state law says
that there is nothing personal against council there. But
that's not really their call. If the retail water provider has
the ccn and if he says I can serve it, I can serve it. I think all the discussion
beyond the, the parcels that we're talking about here is irrelevant,
should be disregarded. I know it's important. I'm not saying it's not important for the county.
so please don't, you know, make it look like I'm not saying that long
term there are things to be worked out. I'm just saying legally from where we are today
and what the statute requires and what the appeal is before you,
then I don't think that the, the
county has proven up, the county over here has
proven up or made its burden to show that it legally can require
those 16 items. Uh, I, I'm, I'm not sure what else to say
'cause it's so crystal clear and there's lots of case law on what
infrastructure means. That's not a real difficult term for
people to figure out. So if anybody has questions, but I'm not gonna
go I, you know, 44 page brief. I'm not gonna go
respond to every item that's in there. Does anybody have any questions, mr. Anderson?
nope. No questions. Okay. Thank you. Do you have anything further? You still have a few minutes? Well,
if I had something good to say or relevant, I would, but, but I don't wanna
waste people's time. Okay. So
all
that being said at two 16, we're adjourned.