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2013-10-17

County fires back at BMA 'land grab'

By Carolyn B. Edwards Judith Pannebaker, BCCourier

"This is the biggest potential land grab in the history of Bandera County," said a clearly incensed Precinct 2 Commissioner Bobby Harris during an interview on Wednesday, Oct. 9.

He was referring to Bexar-Medina-Atascosa Counties Water Control & Improvement District No. 1 (BMA-WCID) intervention as an "interested third party" in a civil lawsuit between several Bandera County residents, who own waterfront property. The suit's parties are Judith and Terry Robinson, Gary and Brenda Fest, Virginia Gray and Butch Townsend vs. John and Debra L. Lance and FD and Helen Franks.

According to the intervention, "BMA owns the land below Elevation 1084 which encompasses the entire tract of land perportedly [sic] transferred from the Franks to the Lances."

"I'd like to see BMA's deeds to that property," Harris said. BMA is based in Natalia in Medina County.

While BMA repeatedly claims the property, the WCID has taken no responsibility for the property, according to some lakefront property owners. "They don't pay taxes on it, they don't maintain the roads, they don't enforce septic tank rules, or clean up toxic messes," said one concerned property owner.

The intervention, which was filed last February as Cause No. CV-12-209 at the district court on Highway 173 North, further states: "Record legal title to the lakefront below Elevation 1084 belongs to BMA" and "BMA asks the court to declare that: The title owner of the disputed tract and the surrounding area below Elevation 1084 is the BMA." It was the phrase "... and the surrounding area" that raised the alarm for Bandera County since the "disputed tract" was only .282 of an acre.

According to the intervention filed in the then-216th District Court, BMA's claim to all land below the 1084 elevation is derived from the "1917 Spettle Deed, recorded at Volume G-1, in the Bandera County deeds records. The BMA is the successors in title to the grantors in the Spettle Deed, and own the disputed land." BMA attorneys in the intervention are Gostomski & Hecker, PC of San Antonio.

On Thursday, Oct. 10, Bandera County Commissioners voted unanimously to authorize County Attorney Janna Lindig to file an intervention in the same lawsuit on behalf of the county.

The 1084 elevation line, which was declared the height of Medina Dam when it was constructed in 1911, extends over both private and county property, as well as state roadways. Recent surveys using modern equipment have confirmed a 1929 USGS survey that declared the top of the dam at 1076 feet above sea level and the spillway at 1064.

Bandera County's brouhaha with BMA came to a head when the Bandera County River Authority & Groundwater District attempted to change their election from May to November via the legislative process in Austin. "The date change would have attracted more voters and cost the taxpayers less money," Harris said. At the 11th hour, however, a lobbyist for BMA added an amendment to the bill that would have transferred all property in Bandera County below the 1084 elevation to BMA.

"Of course, we killed the bill immediately," Harris explained. "Then BMA enjoined in the lawsuit, attempting to claim all the tracts below 1084 and surrounding areas. This had to be addressed and it needs to be addressed today."

Another sea change occurred when 216th District Judge Keith Williams nearly signed a court order declaring all land around Medina Lake below Elevation 1084 to be public access with BMA as the owner, according to Don Sloan, president of the BCRAGD Board of Directors. On Sept. 1, Bandera County became a part of the 198th Judicial District with Judge Melvin "Rex" Emerson. Sloan indicated both Williams and Emerson are now working together on this increasingly knotty proceeding.

According to Harris, BMA lost a court case in 1981 that had ruled the agency had no jurisdiction in Bandera County. "Still they continue to try and take land," Harris said. "The 1084 elevation goes all the way to English Crossing."

In 1981, the Texas Court of Civil Appeals ruled that BMA has no jurisdiction in Bandera County. In Case No. 16520, BMA vs. Wallace, the court also ruled that the warranty deed executed in 1917 from Joseph F. Spettle et al to the Medina Valley Irrigation Company, upon which BMA bases its ownership, had an insufficient description of the disputed tract of land.

While emphasizing that the county is not taking sides in the civil dispute, Judge Richard Evans also noted last Thursday, "When BMA intervened in the lawsuit, it made this a whole other ball game. It will impact taxpayers and property rights around Medina Lake. This is a big deal."

According to rough estimates, if BMA prevails in their tilts against a windmill, Bandera County could potentially lose between $500,000 and $1 million in property taxes.

"The only commodity BMA has is water and this drought has left them with precious little of that. The fact is BMA is going broke. SAWS no longer buys water from them because it was of such poor quality," Harris opined. "I think this grab is will lead to an attempt to raise the dam and flood that property when the drought finally breaks and the lake is full again."

When - and if - the lawsuit that now involves Bandera County goes to court, Harris believes there will be a change of venue. "What jury in Bandera County would find in favor of an outside agency that is laying claim to the property of county residents?"