Court clears way for completion of Bartonville water tower

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Cross Timbers Water Supply Corporation’s partially-completed water tower in Bartonville.

Years of legal wrangling over the partially-completed water tower in Bartonville may be coming to an end.

A recent jury verdict awarded zero dollars to the Saddlebrook HOA and remaining plaintiffs in their suit against Cross Timbers Water Supply Corporation (CTWSC)—formerly Bartonville Water Supply Corp. (BWSC).

The Plaintiffs have 30 days to appeal, but jury verdicts are not often successful on appeal.  Without an appeal, CTWSC can complete the erection of its elevated water tank in Bartonville. CTWSC has a 500,000-gallon elevated water tank in Double Oak that provides water to 2,500 customers.

The utility has had a Special Use Permit (SUP) from the town authorizing it to run public utility operations on its Stargate property in Bartonville since 2001. That SUP granted the same authorities that were prohibited by the HOA restrictions.

“The land [4.87-acres adjacent to a public utility easement for power lines] was bought in 2001 for water storage,” said CTWSC General Manager Lloyd Hanson. “We brought in water lines, dug wells, and distribution pumps used as part of the business; and, also for its elevation for a future water tower.”

Construction began on the 155-foot-tall water tower back in August 2010.

That initial decision set in motion a more than an eight-year-long, multiple-party legal battle in several different court settings.

Town of Bartonville, 2011-14:

The first lawsuit filed against the then-BWSC was by the Town of Bartonville in June 2011 as a zoning dispute, because construction on 4.7 acres within BWSC’s property was started without a valid town Conditional Use Permit (CUP) plus two votes against the tower by the Town Council. The council cited an ordinance that allows nothing higher than 35-feet can be built in the town.

Rather than continuing its attempts to conform to Bartonville’s ordinance codes surrounding its property, BWSC requested a legal determination exempting the public utility from oversight by the Town Council; which morphed the water tower from a zoning fight into an “eminent domain” jurisdiction question.

In a hearing on May 1, 2012, Denton County 393rd District Court Judge Douglas Robison ruled with BWSC that the provider was not under the jurisdiction of the town’s ordinances and the CUP was granted.

In the summer of 2012, Bartonville filed an appeal with the 4th District Court of Appeals in San Antonio (the local Fort Worth Appeals Court’s docket was full), which eventually heard a portion of the case in March 2013. It overturned the Denton district judge’s decision on the town’s zoning authority, but failed to address the CUP permit question.

On April 21, 2014, an agreement was reached to put an end to the four-year legal battle between the now-renamed CTWSC utility and Bartonville over construction of the tower.

CTWSC agreed to 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 what had become, as of December 2012, two related lawsuits.

Private Residents/HOA, 2012-present:

A group of Bartonville residents filed a private lawsuit in the 422nd District Court in December 2012, which was then transferred to Robison’s 393rd District Court, to block the actual construction of the water tower.

Of the original group of plaintiffs, the final group included Susan and Richard “Dick” Armey– former majority leader of the U.S. House of Representatives from Texas’ 26th District– who own a 78-acre ranch adjacent to the water tower, Richard and Krystal Vera, Timothy and Shawn Landrum as trustees of the Landrum family trust and James and Shirley Ball.

After the Bartonville Town Council settled its own long-running battle over the tower in April 2014, Armey added the town to his lawsuit.

On May 16, 2014, Judge Robison denied Armey’s motion to tear down the partially-built water tower.

In mid-2014, CTWSC filed a Condemnation– an Eminent Domain action– against the Saddlebrook HOA seeking removal of three HOA restrictions (called HOA rights) burdening the utility’s Stargate property.

The utility was awarded those HOA rights after a hearing in December 2014.  CTWSC paid to the Court the award of $2,500 and took possession of the rights in January 2015.  Under Condemnation law, once the award is paid to the Court, the rights you are seeking become yours.

The Saddlebrook HOA objected to the award and were joined by two intervenors, homeowners in Saddlebrook.  After multiple legal maneuvers throughout 2014, 2015 and 2016, on December 16, 2016, a Denton Court ruled that CTWSC needed to include all Saddlebrook homeowners, as well as the HOA, in their condemnation action.

The restrictions were restored to the property, CTWSC got its $2,500 back and the case was closed.

On Oct. 29, 2014, the Town Council approved zoning from “RE-2” to “P/SP” (P/SP: a building, structure or complex of buildings that protect the health, safety, welfare and quality of life throughout the community). It also approved a CUP to allow an elevated water tank and related facilities.

The lawsuit jurisdiction was transferred on Feb. 2, 2015, from Robison’s 393rd District Court back to the 442nd District Court; the original 2012 filing court for a jury trial.

Originally set for April 2015, the trial was repeatedly delayed until July 20, with a verdict by the jury entered on July 24, 2015.

Oct. 6, 2015, Denton County Judge Hon. Tiffany Haertling told CTWSC to “dismantle, remove and demolish” its partially-completed water tower. In addition, the utility was to provide relief for the plaintiff’s $388,289.76 attorney fees.

The actual verdict against CTWSC, however, was not based on any water-related issues, adjacent property devaluation, or even aesthetics. It was based on CTWSC’s failure to comply with the Covenants, Conditions and Restrictions (CCRs) of Saddlebrook Estates HOA.

“The HOA violation wasn’t brought up until 2014,” said Hanson in November 2015.  He contended that, as a public utility, the acreage should be exempt from the HOA deed restrictions.

Hanson said that no additional hydrants will be added until enough pressure for fire protection requirements is settled.

“We have an adequate amount of water; we just don’t have an adequate pressure system,” said Hanson at that time.

The 2015 verdict was appealed to the 2nd Court of Appeals in Fort Worth and was argued in April 2017.

In April 2017, CTWSC filed a new Condemnation against the Saddlebrook HOA and all the Saddlebrook residents.

In October 2017, an award was granted to 14 homeowners, but not the HOA.

“We paid the court the award of $35,000 and again took possession of the HOA rights burdening our land,” said Hanson.

The HOA and some homeowners objected to the October 2017 ruling and again appealed.

On May 29, 2018, the 2nd Court of Appeals abated the appeal (essentially putting it on hold), pending the outcome of the Condemnation case CTWSC had filed in Denton County.

That Condemnation case jury trial was held in February 2019.  The HOA and homeowners were awarded zero dollars for the taking. Therefore, the Court has, determined that CTWSC now owns the rights.

Now that the Condemnation has been adjudicated, the appeals case can be reinstated and the Appeals Court can move forward with any action it wants to take.

For Copper Canyon, it means an end to the moratorium on water hydrants in its developments.  No longer will all newly-built homes have to have interior fire suppressant sprinkler systems.  And, no longer will all developments be required to have fire-suppressant ponds, with constant levels supported by on-site water wells.

The Court win for CTWSC also means a huge financial benefit for Toll Brothers and the Vickery Family for the proposed Vickery Park development in Copper Canyon’s Town Center south of FM 407.

“This has been a very divisive issue within the town,” said Bartonville Mayor Bill Scherer.  “Given the multiple legal jurisdictions involved, this has been a very drawn out process. We look forward to the issue getting resolved to allow not only Bartonville, but our neighboring communities also served by the Cross Timbers Water Supply to move forward.”

It is now up to the Saddlebrook Estates HOA and the homeowners if they want to request a new trial, appeal the verdict, or attempt some other legal action.  They have 30-days to decide.

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About The Author

Lyn Rejahl Pry

Lyn Pry is the Editor of The Cross Timbers Gazette.

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