Water tower project stalls

Shakespeare wrote: “What’s in a name? That which we call a rose by any other name would smell as sweet.”  In Bartonville, the phrase could read: “What’s in a name? The Bartonville Water Supply Corporation (BWSC) newly named the Cross Timbers Water Supply Corporation (CTWSC) would be as litigious.”

The legal dispute will continue as the Town of Bartonville vs. Cross Timbers Water Supply Corporation following the March 27 ruling by the Fourth Court of Appeals in San Antonio.

That decision reversed and remanded the previous ruling by the 211th Judicial District Court in Denton County which said, basically, that the town and its ordinances had no jurisdiction over the water utility’s property and its construction decisions.

The appeals court said that the district court exceeded its jurisdiction in the matter, so the arguments will go back to a lower court for proper determination.

The ongoing litigation between the Town of Bartonville and the water supply utility concerns the half-built 155-foot tall water storage tank on 4.7 acres within BWSC’s property located at the end of I.T. Neely Rd., behind the former Stargate Sport Horses facility west of Lantana.

The arguments followed Bartonville Town Council denial of Conditional Use Permits (CUP) originally dating back to August 2010.

During the legal battles, the BWSC felt a change in name for the utility would better reflect all the communities it serves.

“While we’re located in Bartonville, we also serve the areas of Double Oak and Copper Canyon and others,” said Board President Pat McDonald. “People think we’re part of the Town of Bartonville and call them about their water bills. This should make things easier.”

The new facility headquarters will open during May and is located in unincorporated Denton County on Hickory Hill Road north of Lantana.

“We’ll keep the same phone number, but other contact information will be mailed to our customers when we know what that’ll be exactly,” said McDonald.

The new facility had a budget of almost $1,176,000.

The Town of Bartonville council members had twice voted against BWSC building an elevated water tower on land it owned within town boundaries after the P&Z Commission had approved the plan.

Because the water utility had obtained Specific Use Permits for its acreage from the town in 2001, BWSC began constructing a water tower within its property in the town boundary. BWSC then received a letter from the Town, demanding that BWSC cease construction because it had failed to obtain a CUP.

In response, in June 2011, BWSC filed a petition for declaratory relief and writ of mandamus in the 211th Judicial District Court for Denton County.

In a letter to BWSC’s General Manager Jim Leggieri dated October 24, 2011, Bartonville Town Administrator Debbie Millican requested that the proposed construction “cease and desist.” She explained that the proposed water storage tower “would be, if built, an illegal use at the Neely Road site.”

On December 7, 2011, BWSC filed an application for a building permit with the town’s secretary and building official, Kristi Gilbert, for construction of an elevated water storage facility on the property in question.

As a result, there were now two legal proceedings: one in district court for declaratory relief and another administrative application for a building permit filed with the Town’s secretary.

On December 12, 2011, Gilbert denied BWSC’s application for a building permit because the site for the proposed water tower was zoned RE-2, and the proposed water tower was not an approved use or structure within that zoning designation.

The Town’s zoning ordinance requires a CUP for construction of a water tower within that zoning district, and BWSC had not been issued a CUP for the construction of a water tower.

BWSC appealed Gilbert’s denial of the building permit application to the Town’s Board of Adjustment (BOA).

At a public hearing on February 2, 2012, the BOA considered the appeal. During the hearing, 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 Town’s attorney pointed out to BWSC that Gilbert had no authority to make such a determination and that neither did the Board of Adjustment. The Town’s attorney emphasized that such a question was for a court of competent jurisdiction. After considering the evidence and argument of counsel, the Board of Adjustment denied BWSC’s appeal and upheld Gilbert’s decision.

The 211th Judicial District Court in Denton County ruled that under the law: “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 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.”

The Town of Bartonville took the quarrel up the legal ladder to the Fourth Court of Appeals in San Antonio which reversed and remanded the issue.

“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. And since it was not within the BOA’s jurisdiction, it also was not in the trial court’s jurisdiction.”

The BWSC (or CTWSC) has filed an appeal for jurisdiction rulings.

“The appeal process may take over a year,” said Bartonville Mayor Ron Robertson. “It [the unfinished water tower] could sit there a long time. There’s no requirement to take it down. We’ll pursue a demolition order at some point.”

Until such time as a final ruling of whether to dismantle, or complete and fill, the water tower, the only movement is on the hourly clocks of the attorneys.

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