Bartonville town council members voted in favor of both a new conditional use permit application and a zoning designation change sought by the Cross Timbers Water Supply Corporation (CTWSC) for an elevated, 155-foot tall water tower which has been the center of controversy since the first application in August 2010.
The partially built water tower just off property behind the Bartonville Town Center on FM 407 has pitted neighbors against officials in ongoing conflicts that have landed in the court system.
In a super majority vote of 3-1, the council overrode the town’s Planning and Zoning Commission denial of the conditional use permit application. In a 4-0 vote, the council unanimously followed the P&Z’s recommendation to amend the zoning designation of residential 2-acre estates to public/semi-public to allow for the water tank, a meter and chlorine building, a water well and well transformer on the 4.735-acre site.
On Tuesday, both neighbors surrounding the water tower and officials from the water supply corporation arrived with presentations in hand to show their viewpoints on the fate of the water tower. The town council met in closed session twice to review questions with the town attorney regarding the permit application and zoning designation change.
About a dozen Bartonville residents asked council members to deny both requests from CTWSC, indicating the tower did not meet existing guidelines in the town’s comprehensive land use plan nor deed restrictions for Saddlebrook Estates, a nearby neighborhood. CTWSC bought the acreage from the
Saddlebrook Estates developer.
Jim Ball, a Saddlebrook Estates resident, said he was contacted by CTWSC counsel and offered money to relinquish deed restrictions belonging to the Saddlebrook Homeowners Association or face legal ramifications. “I do not have the authority to sell my neighbors’ property rights,” he said. “I guess the water company will now have to sue all 123 homeowners.” Ball also said a judge, 393rd District Court Judge Doug Robison, had declared the tract encumbered by deed restrictions which limits the heights of any commercial buildings to just 35 feet as dictated by existing zoning of residential 2-acre sites.
The zoning designation to public/semi-public has a maximum height requirement of 25 feet though CTWSC sought, as part of their application to the town, a waiver on maximum building height requirements as well as waivers to building setbacks and lighting standards.
Ball also referred to an agreement on April 21 between the town and CTWSC over construction of the tower to end the four-year legal battle between the town and utility company. According to the agreement, CTWSC would submit a new application to the town for a building permit and would make a one-time payment of up to $350,000 to reimburse the town for its legal fees and indemnify the town against all future claims and liabilities arising out of two related lawsuits. Terms of the agreement were conditional upon the issuance of a Conditional Use Permit (CUP) by the town for completion of the water tower.
“And I’m not forgetting that the water company has dangled more than 300 thousand dollars in front of you to erase the town’s legal fees covering a lawsuit the town already won. The offer also provides an exemption from further litigation and creates a statewide dilemma. If it happens here, it can happen anywhere in Texas,” Ball said. “The unfinished tower is not about Bartonville, fire suppression or even servicing 16 percent of its customers. It’s about feeding an economic engine and system to service 84 percent of its customers in other towns. … This tent needs to fold and move.”
Several officials including an engineer and board president from CTWSC told council members about the need for expanding their future water storage capacity based on growth projections and a desire to increase fire flow coverage of their customer base. Kerry Maroney with Biggs & Matthews Inc., who serves as the engineer for CTWSC, said the closest residences to the water tower are between 1,095 feet to the east and 3,060 feet to the south.
Maroney said that based on historical water use data, CTWSC has a peak day usage approximately 2.5 times greater than the minimum requirements by the Texas Commission on Environmental Quality (TCEQ). The average daily use of customers in the water supply corporation’s coverage area is 2,012 gallons per connection. CTWSC currently serves 2,567 connections including both existing and committed units. To maintain the level of water service as in the past while providing for fire protection and emergency storage, CTWSC must maintain elevated storage capacity of 200 gallons per connection, Maroney noted. The current elevated storage capacity is 195 gallons per connection.
“There’s no question in my mind we’re at the brink and we need elevated storage,” he said.
Maroney also told the council that CTWSC had looked at seven locations for a water tower, deciding on the current site, known as Stargate, from a cost standpoint and proximity to existing facilities. Currently, CTWSC has 700,000 gallons in ground storage and 200,000 in elevated storage – just enough to meet minimum requirements, he said. “I can tell you there is a need and it’s a public health and safety need.”
With 88 miles of pipelines and a capacity to supply 4 million gallons of water in one day on a peak day to customers, Maroney said the system is “the largest system I’ve ever seen on a per capita basis. It’s there and you use it.”
Several town officials queried CTWSC about fire suppression capabilities for Bartonville and whether the water supply corporation could commit to supplying it throughout the town as well as the coverage area.
CTWSC officials replied they hoped to reach a point of providing 1,500 gallons of water per minute for 120 minutes if needed for fire suppression. Patrick McDonald, president of the CTWSC board, said it was an evolving plan but “there’s no sense in going forward with this unless we have an elevated tower.”
Argyle Fire Chief Mac Hohenberger, responding to queries about fire suppression needs, said he looked back over a period of 10 years and saw only one situation with two fires occurring at the same time. With about 350 hydrants now part of the Argyle Fire Department’s coverage area, Hohenberger said even if the area had 1,000 hydrants, “we’re going to use the same amount of water.”
Hohenberger recalled the department using 105,000 gallons of water when lightning struck a house in Lantana. Upon talking to Lantana officials, Hohenberger said the town’s water supply wasn’t at capacity or overly stressed. “Normally, on a structure fire, we use 200,000 gallons (of water). If I can’t put a fire out with that, it’s going down.”
The fire chief also told town officials that the Kroger, which falls under one of Lantana’s Fresh Water Supply Districts, requires 3,700 gallons per minute capacity for fire suppression.
McDonald said later in the meeting during rebuttal that it was the board’s responsibility and obligation to serve the entire area. “We’ve been portrayed as bullies and a corporation out to make money,” he said. “This corporation is owned by the members. If you get a bill from Cross Timbers Water, you are an owner.”
Susan Armey, who with her husband, former U.S. Congressman Dick Armey, filed a civil lawsuit with other parties against CTSWC in late 2012, said records show limited growth from 2004 to 2014 with an additional 157 connections added or an average of 15.7 connection per year for the past 10 years. She also cited an option to sell 200 connections in Flower Mound back to the neighboring town to cut down the total water needs. “However, they do not need to sell those connections because they don’t need the elevated water storage,” she said.
Dick Armey stressed the lack of commitment by CTWSC on whether an elevated tower would be built near his property and to nearby landowner Bruce Monroe, who offered easement free of charge for what he thought would be a ground storage tank.
“You wonder why we feel so passionate about this?” he asked. “Because, ladies and gentlemen, we’ve been betrayed every step of the way.
In a 5-page letter submitted to the town Tuesday, Dick and Susan Armey said they did not see how it was possible to mitigate the adverse impacts of “an almost 16-story high-rise industrial structure in the middle of future RE-2 home sites and homes that have already been built based on the water company’s written and verbal commitments to never build such a structure.” The letter also indicated CTWSC bought the site with covenants and deed restrictions as part of their deed from the Saddlebrook developer who sold the property to them.
“They have now admitted in writing they bought that same land with the intention of building an elevated tower all along in spite of them agreeing to these deed restrictions forbidding the tower and in spite of their denials to the contrary during this entire four-year long battle,” they stated in the letter.
“When the previous town council made a deal with the water company to take money from them if the town gives them a CUP and zoning change to public/semi-public, they made a deal to take money from the company that had caused the town’s legal expenses to start with,” according to the letter.
Adam Whitten of Michael J. Whitten & Associates P.C. who is representing the Armeys in their lawsuit, remarked that CTWSC has sued the town three times following repeated denial of requests.
“The water tower isn’t needed,” he said. “That is what they have to show and that is what they’ve failed to show.”
Tim Landrum, who lives in Saddlebrook Estates, said the last thing he expected to see was a 155-foot elevated water tower when they bought their home. “We’re very concerned about the devaluation of our property.” Landrum mentioned that the Saddlebrook Estates HOA was offered $2,500 for the deed restrictions and told the council that the offer of money to the town to approve the tower “isn’t right.”
Kevin Glovier, a project manager for a Dallas engineering firm who lives in Bartonville, said he reviewed the property and had not yet seen anything to justify an elevated water tank. “Storage, I don’t think, is your problem,” he said. “You have plenty of storage.”
Michael Whitten, an attorney representing Dick and Susan Armey, said CTWSC started building the water tower without a permit. “They’ve sunk a bunch of money into this tower and they are desperate to keep it,” he said.
Several newer Bartonville residents said they were concerned about the amount of conflict over the water tower between the town and the water supply corporation. “If this was for the common good, you should have been able to talk to the people, talk to the council to get cooperation,” Doug Tobe said, speaking to CTWSC officials.
Rob Franke with H&F Consulting Inc., who was hired by the town to conduct an independent study, said their approach was to look at regulatory, fire suppression and distribution sides of the water system. Franke indicated there was not a compelling requirement to add storage at the current time but with the amount of growth projected, the amount of water used in the area and CTWSC’s plans to supply fire flow for the entire system, additional storage would be necessary.
According to the independent study, Franke indicated “there is not a clear conclusion that the CTWSC is mandated or there was an imminent need for the 750,000 million gallon elevated storage tank with the exception of the justification for providing reserve storage for fire flow. The system pumping capacity and ground storage capacity appear sufficient (even in excess of minimum requirements) to continue operations of a satisfactory system. However, at ultimate build out, it is also evident that additional elevated storage would be prudent for the reasons cited in the CTWSC planning documents.”
“The nuts and bolts of it is it looks like this is going to be needed at some point,” Franke said.
Place 4 council member Betty Medlock said she did not see a compelling reason to support the the conditional use permit. “Changing the landscaping of the town with a conditional use permit is a big, big deal. I don’t see there is a present need for the tower,” she said shortly before casting the sole vote against allowing the conditional use permit. “I have not heard any evidence of having this or not having this is going to affect fire suppression,” she said referring to comments from Chief Hohenberger that the town was not at risk. “Unless I’m missing something, that is what this boils down to.”
Jeff Traylor, Place 1 town council member, said the council talks about how best to use the property and how neighbors are affected. “Fire suppression is not a key component to what we’re considering. It’s the impact on the neighbors.” Traylor also said the independent study sought by town officials shows the water system is being managed well.
In ongoing civil litigation, Judge Robison denied a motion on May 16 to tear down the partially-built water tower, which is located next to the Bartonville home of Armey and his wife.
In December 2012, the Armeys, Jane and Brad Teel, Krystal and Richard Vera, along with the Bar RR Ranch owners, Exxon CEO Rex Tillerson and his wife, Renda, filed a civil lawsuit against CTSWC. In 2013, the Tillersons and Teels dropped out of the lawsuit. Court records show that only the Armeys and Veras remain as plaintiffs in the case.
After the Bartonville Town Council settled its own long-running battle over the tower in April, Armey added the town to his lawsuit.
“This could have been over if the previous council had asked the judge to comply with the appeals court order and request that the illegal tower be torn down. Instead citizens have had to do the very last thing they ever wanted to do and that is defend our town ordinances and property rights ourselves by suing the town for contract zoning, the very town they had spent so much of their own money to help defend,” stated Dick and Susan Armey in the letter submitted to town officials Tuesday.
One of his latest petitions included two causes of action — one for illegal contract zoning, as provided for in the town’s settlement agreement with the water supplier, and another for open meetings violations. The open meetings violations came, the petition alleges, when several Town Council members — enough to make a quorum — discussed the settlement among themselves, with members of the water supply corporation and with another Bartonville resident. Upset over the judge’s denial of his motion, Armey said at the time he’d consider appealing the ruling.
Robison also ordered the attorneys for the plaintiffs, the town and the water supplier to bring forward a motion to consolidate the cases, which was filed on June 25, according to court records.
The trial, which Robison said would last two weeks, has been scheduled for April 6 next year.