After nearly four years of legal battles, January 17, 2014 was a red-letter day for the town of Bartonville. During those four years, the town had been forced to defend their town ordinances and their right to determine what gets built in their own town. Before it was over, every town and city throughout the state of Texas was threatened in exactly the same way. But on January 17th, the town got one step closer to victory for all small towns when the Texas Supreme Court denied hearing Cross Timbers Water Supply Corporation’s (CTWSC) lawsuit against the town in which the water company argued that they should be exempt from the town’s authority and ordinances.
In August, 2010 and again in 2011, CTWSC (previously known as Bartonville Water Supply Corp.) applied to the town for a permit to build an almost 160-foot elevated water storage tank. While the Planning and Zoning Commission’s responsibility is to determine if the plans are workable, it is the Town Council’s responsibility to determine if the structure complies with the town’s lawfully enacted ordinances. If it doesn’t, the applicant must present clear evidence as to why the town should give them a conditional use permit for that request. Otherwise, any developer, manufacturer and retail public utility could run roughshod over any private citizens’ property they chose.
There were months of research and public hearings conducted by the Bartonville Town Council in both 2010 and 2011. The following facts emerged: The water company already had one elevated tower which stores 500,000 gallons of water. That, along with their ground storage tanks, provided all the water needed. In fact, they didn’t need a second elevated tower anywhere in their service area. A ground storage tank with back-up pumps adjacent to the Upper Trinity pipeline is all that is needed or required in Bartonville to add to their other storage facilities to provide safe water and fire protection to their customers now and in the future.
According to the Texas Commission on Environmental Quality Code, a retail public utility does not need a second elevated tower until it has 5,000 connections. CTWSC only has 2,160 connections currently and with their expected full build-out to be less than 5,000 connections, they will probably never need a second elevated tower. Even if they ever do, it shouldn’t be located in Bartonville where only 16% of their customer base lives.
After research and public hearings proved that the tower was not needed, the Town Council voted twice to deny the water company’s request to build the elevated tower because it did not comply with Bartonville’s Town Ordinance which states that nothing above 35 feet can be built in the town. All homeowners in every town in Texas count on town ordinances like these to protect their private property. Citizens were relieved and proud when their Town Council upheld the town ordinances to protect their property against the water company.
Since that time, CTWSC proceeded to sue the town of Bartonville three times.
The water company sued the town on the erroneous theory that it is immune from the Town’s zoning ordinances. Should the water company somehow convince a competent court of final jurisdiction to accept that theory, then the Town of Bartonville’s entire zoning laws become open to attack from builders and others who want to erect structures which do not conform to the Town’s comprehensive zoning ordinance. This would endanger the rural character of the Town and adversely affect the property values of homeowners who purchased their property relying on the zoning ordinance to protect them.
It seems that the water company has been hypocritical in their quest to build a water tower where the zoning prohibits structures over 35 feet. While representing to the court that the Texas Water Code exempts them from the requirements of the Town’s zoning ordinance, they were simultaneously trying to sneak a bill (H.B. 2156) through the legislature which would have destroyed the ability of every municipality in the State of Texas to zone and control non-profit retail public utilities like CTWSC. They hired a lobbyist to guide the bill to passage. They got their lawyers to write the bill. And instead of one of our local state representatives, they got a Houston state representative to propose the bill. Between the efforts of the Texas Municipal League, our local state representatives and concerned citizens, the bill was killed in committee. The water company then tried to attach the bill as a rider to the omnibus water funding plan in a late-night session in the final days of the legislative session. Again the TML and other opponents of unlimited power of a rural water supply corporation to build what it wants, where it wants, when it wants were able to catch and kill this attempt to circumvent the legislative process.
It’s been a long road but Bartonville has prevailed and its citizens hope that this will be a message to others who might try to encroach upon their property and the property of towns all across Texas. Even though it’s small, don’t underestimate the town of Bartonville. It has heart and it has strength. It has been recognized by the Texas Municipal League for its groundbreaking protection of not only itself but every town in Texas.
Texas Municipal League Deputy Executive Director and General Counsel Scott N. Houston stated, “…I am writing today to thank you for your leadership on this important issue. We realize that individual cities must often bear a large political and financial cost for standing up for municipal authority. Your decision to do so in this case has thus far set a precedent that city councils around the state can use to protect their right to decide what is best for their city. For this, we extend our gratitude.”
Jane Teel is a spokesperson for the North Bartonville Citizens Association.