HomeMy WebLinkAbout09-19-06 PZ Agenda Memo Town of Westlake
Memo
To: Chairman Bill Greenwood and Members of the ia�inyrin
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From: Trent Petty, Town Manager
Subject: Regular meeting of p ;2r
Date: August 28, 2006
ITEM
Conduct a Public Hearing and take appropriate action regarding an application for a
specific use permit for a private water well to be located at 2013 Post Oak Place.
RECOMMENDATIONS
ATIONS
Staff recommends approval.
BACKGROUND
The operation of private water wells supports the policy of the Town to provide for an
aesthetic living environment that promotes the development of green spaces, the
preservation of trees, and the maintenance of a rural setting. The extensive landscaping,
tree preservation and mitigation policies of the Town are in fact dependent on the ability
of the development community to maintain the living material in a healthy state. This
requires that an alternative source of water, other than public water supply, be utilized.
From a planning perspective the siting of a water well should address land use
considerations such as compatible land uses, adverse performance impacts, and
accessibility. There is ample opportunity to screen the site from adjacent property. In
fact, water wells of this type are normally very low in profile and are usually screened by
natural trees and vegetation.
We do not see the need for dedicated rights-of-way or easements for the access roads,
however, the applicant should illustrate how the well will be serviced so as not to
interrupt neighboring property owners.
As the Town considers the application for a Specific Use Permit (SUP) for a water well,
it is important that we establish the appropriate standard of review. Specific Use Permits
are generally applied to uses that encompass intensity levels of a type which require
special treatment or location to ensure compatibility with surrounding properties and
uses. As an example, a convenience store with high traffic volumes and significant
outside lighting, should only be allowed adjacent to residential homes when its harmful
elements can be alleviated or compensated for by landscape screening, access
restrictions, low-glare lighting, or the like. Allowing such a use "by right" would not
allow for individual consideration of those factors. Conversely, prohibiting the use
entirely would result in certain necessary uses being located only in areas where the use
is impractical. Matters such as those discussed above constitute the proper standard of
review when considering this SUP application. As is explained below, however,
concerns about the protection of the Town's underground water supply are not a
permissible basis for the denial of an SUP for a water well.
The State of Texas operates under the same rule of capture with respect to both its water
and petroleum resources. That rule can be best summarized by the most definitive Texas
Supreme Court case on the issue of water use when it ruled as follows:
absent malice or willful waste, landowners have a right to take all the water they
can capture under their land and do with it whatever they please, and they will not
be liable for their neighbors even if in so doing they deprive their neighbors of the
water's use. Sipriano v. Great Spring Waters of America, Inc., 1 S.W. 3d 75, 76
(Tex. 1999).
That decision, which makes clear that neither the Town nor the courts can regulate the
amount of water taken from wells, is based on the premise that the Texas legislature has
specifically reserved to itself the authority to establish rules regarding groundwater. Id.
At 77. The legislative structure regarding the rule of capture has been in place since 1904.
Id. At 78. In light of the existing precedent on this matter, the Planning and Zoning
Commission and the Board should limit their review to the compatibility of the proposed
use with the surrounding properties and uses.
In summary, the SUP application filed by Anthony Lekkos for 2013 Post Oak Place
should be considered based only on any potentially harmful impact its location and
placement might have on adjacent properties and uses, exclusive of any consideration of
groundwater conservation. In light of the location of the subject water well, and its
limited potential impact on surrounding properties and uses, staff recommends approval.
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