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Bartonville water tower trial set for April

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There’s a glimmer of light at the end-of-the legal tunnel the controversial elevated water tower in Bartonville has been traveling through for almost five years. It’s been quite a trip.

The reason for the need of an elevated water storage tower was explained by Jim Leggieri, the general manager in 2010 of the Bartonville Water Supply Corporation (BWSC): “There’re only two options to provide the required pressure for water pumps – electricity or gravity. If electricity goes out – or if a customer needs to use too much water at one time, like for a fire – and the pressure drops too far, there’s no water getting pumped; just air. With a water tower, the pressure for the pumps is from gravity; that doesn’t turn off.”

He added that municipalities the utility serves in addition to Bartonville have started passing ordinances requiring sprinkler systems for homes with larger square footage and bigger buildings like schools. The town’s new commercial and retail centers, in addition to new residential subdivisions, have only increased the demand.

“We simply can’t go forward to meet those regulations,” he said.

Hence, the utility’s need to meet its required responsibilities sparked its need to build the water tower.

During the journey, there have been multiple lawsuits and court jurisdictions, changes in lawyers, plaintiffs and defendants as well as a name change for one of the participants – the BWSC became the Cross Timbers Water Supply Corporation (CTWSC) in 2013.

A jury trial is set to begin at 9 a.m. on April 6 in Denton County’s 442nd District Court to determine whether the final 30 feet of the 155-foot tower will progress, or an order to teardown the existing 125-foot partially-constructed tower could result.

This litigious journey began in August 2010, when the public utility first applied for a building permit with the Planning & Zoning Commission to construct a 155-foot elevated water tower on the 4.753 acres within the BWSC’s property located at 1250 I.T. Neely Rd., behind the former Stargate Sport Horses facility west of Lantana.

Town Attorney Robert Hager said then that the commissioner’s options were limited. He said BWSC’s powers of eminent domain limited the town’s authority to oppose the proposed tank. He added that if BWSC can show the tank is needed and required to maintain the system, then the town can only regulate the aesthetics.

That fall, the town’s Planning & Zoning Commission twice approved the general building and specific use permit applications from BWSC for ground storage and pumping facilities on the site, as well as the Conditional Use Permit (CUP) for the companion water storage tower.

The next stop down the tracks was the Town Council, which disagreed with both the town attorney and P&Z recommendations and denied the recommended permits. The reason for denial given by those 2010-11 council members was that the water company’s requests did not comply with a town zoning ordinance that allows nothing higher than 35 feet can be built in the town.

BWSC countered that, as a non-profit/retail public utility – as defined by the Texas Water Code – it operates under state statutes and the authority of the Public Utilities Commission. As such, it’s exempt from the town’s zoning ordinances.

Rather than continuing its attempts to move forward under Bartonville’s ordinance codes for its property, BWSC requested a legal determination exempting the public utility from oversight by the Town Council. It filed a Declaratory Judgment in June 2011 against the Town of Bartonville and the Town Council on the basis that its authority to build the tower is based on the state water code and is exempt from the town’s zoning ordinances; the utility continued with its construction of the tower.

This legal detour to determine who’s in charge of the land under the main tracks of the “water tower train” – solid ground or quicksand – proved to be a lengthy process.

“The case was filed and we discussed it in executive session with the town attorney at the June [2011] council meeting,” said then Town of Bartonville Mayor Ron Robertson.

In an attempt to hasten through the detour, the utility also petitioned for a Writ of Mandamus [an extraordinary court order made without the benefit of full judicial process, or before a case has concluded] in the 211th Judicial District Court against the Town of Bartonville and the Town Council. No increase in speed resulted.

As a backup maneuver to kick start activity on the original trip, BWSC filed an application for a building permit in December 2011 with Kristi Gilbert – then the Town Secretary and building official – to construct an elevated water storage facility on its property. She denied issuing a building permit, because the utility’s 4.753 acres was zoned “RE-2” – Residential Estate 2 Acres. The proposed water tower was not an approved-use or structure within that zoning designation and a CUP for construction of a water tower had not been issued; another re-route.

BWSC appealed Gilbert’s denial of the building permit application to the Town’s Board of Adjustment (BOA). At a BOA public hearing in February 2012, BWSC argued that Gilbert erred in denying its application, because she should have determined that BWSC is not subject to the Town’s zoning ordinance – the same detour destination.

Hager pointed out to BWSC that Gilbert had no authority to make such a determination, nor did the BOA. He emphasized that decision was under the 393rd District Court’s jurisdiction. After consideration, the BOA denied BWSC’s appeal and upheld Gilbert’s decision. Progress on both the original and detour routes stalled.

In a hearing on May 1, 2012, Denton County 393rd District Court Judge Douglas Robison ruled with BWSC that the provider is not under the jurisdiction of Bartonville’s ordinances and the CUP was granted. He ruled that: “the Water Supply Corporation does have the ability to select its own sites unfettered by restraint from the Town. The Board of Adjustment Order is reversed and the BWSC’s application is granted and the building permit for the elevated water storage structure that is the subject of the BWSC application is hereby issued.”

On June 25, the BWSC board signed a notice to begin construction of the tower under the permit granted by Robison’s ruling. Movement on the original tracks seemed to be on firm-footing.

The following month, however, the town pulled the emergency brake by filing an appeal of Robison’s ruling with the 4th District Court of Appeals in San Antonio; a new track side rail spur to the same detour.

In March 2013, that Court of Appeals overturned Robison’s decision regarding the utility’s exemption from the town’s zoning authority:  “The BOA has no authority to make determinations of whether a statute ‘trumps’ an ordinance, but only to enforce. If the BOA had attempted to make such a determination, that determination would be null and void.”

While the new ruling addressed the land authority issue, it didn’t reverse the building permit granted by Robison’s ruling. So, BWSC had its permit and the detour had been closed, but a new route parallel to the original tracks needed to be laid. The question became—where to start the new tracks to complete the original journey. The utility decided to re-start its water tower trip with CTWSC newly-painted on its nameplate.

In the middle of that ongoing legal battle, a group of Bartonville residents opposed to the water tower attempted to lay a blockade across the original tracks in December 2012 by filing a temporary restraining order. It was denied.

The group immediately filed a private lawsuit in the 422nd District Court, which was then transferred to Robison’s 393rd District Court, to block the actual construction of the water tower. The group questioned the need for an elevated storage tank, instead of lower and larger ground tanks such as in neighboring Southlake, the potential for reduced property values in the area around the tower and the aesthetic impact on the rural atmosphere of Bartonville.

The group of residents included Susan and Richard “Dick” Armey, former majority leader of the U.S. House of Representatives from Texas’ 26th District, and Renda and Rex Tillerson, Exxon’s CEO, through one of their Bartonville properties– the Bar RR Ranch. However, between March 2013 and April 2014, five of the seven couples—including the Tillersons—had dropped out of the lawsuit. The only remaining blockaders are the Armeys and the Veras.

Meanwhile, via closed meetings, there had been motion on the original tracks. On April 21, 2014, an agreement put an end to the four-year legal battle between the renamed CTWSC utility and the town over construction of the tower.

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 (CUP) by the town to reach the existing permit granted by Robison to complete the water tower. Therefore, CTWSC had to start its new tracks from the original journey station—the town’s P&Z Commission.

In May, the residents’ lawsuit attorney was denied a motion to tear down the existing water tower construction, but the case was set for trial on April 6, 2015 at 9 a.m. The end-of-journey light appeared in the distance.

The April agreement meant that town officials and the utility were now both onboard the “water tower train.” The two parties moved to correct a basic flaw in the previous expedition through the town’s ordinance jungle; the 4.753 acres zoning designation as “RE-2” – Residential 2 Acre Estates. It would seem that former Town Secretary Kristi Gilbert was correct in her assessment of building permits in “RE-2” zones.

In October, the P&Z Commission held a public hearing to grant a zoning change for the utility’s property from “RE-2” to a “P/SP” – Public/Semi-Public and a CUP to allow an elevated water tank and related facilities. The re-zoning and CUP passed unanimously. A motion to amend the corresponding town ordinance, however, did not. Those recommendations headed down the tracks to the next station.

The Town Council approved re-zoning the 4.735 acres recommended by the P&Z Commission, as well as the request for a CUP. It also unanimously approved zoning Ordinance No. 569-14 amending No. 361-05 from “RE-2” to “P/SP,” with amended Item J – Fire Flow system-wide upgrades to provide more extensive protection to all municipalities within the 10,875 total acres in the CTSWC service area.

In a letter by Kerry D. Maroney, president of the engineering firm Biggs & Mathews, Inc. representing CTWSC, wrote that an additional elevated tank in service is critical to maintaining adequate reserves for fire protection. The utility’s current capacity for fire protection flows maximum is 1,250 gpm for a 120-minute duration; a rate of protection for residential developments, but only limited fire protection of commercial and/or industrial developments.

The council also approved Ord. No.570-14 to grant a CUP to allow an elevated water tank and related facilities—the final section of track needed to link-up with the previously-granted building permit.

In a move acknowledging the existence of the residents’ private legal blockade, a Temporary Injunction barring additional construction of the water tower was granted on Nov. 26, 2014. It did, however, allow obtaining of all permits and other paperwork necessary to finish construction of the tower, pending the outcome of a jury trial.

The jurisdiction was transferred on Feb. 2, 2015, from Robison’s 393rd District Court back to the original 2012 filing court, the 442nd District Court and the Hon. Tiffany Haertling for the April trial.

The trial to decide the fate of the CTWSC elevated water storage tower has been estimated to take about two weeks. Time will tell if the legal blockade ends the journey, or if the CTWSC must decide what to do about its service responsibilities and the 4.753 acres in Bartonville that it owns.

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