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2009-11-05

Guilott v. City - drip, drip

By Judith Pannebaker

Despite a SRO crowd and, at times, passionate rhetoric, in the end, a combination special meeting-public hearing of the City of Bandera Board of Adjustments was rendered moot.

An hour into the Wednesday, Oct. 28, proceedings, the board decided they lacked the jurisdiction to hear Gay Guilott’s request for a variance to a city ordinance that requires her to connect to city water.

Whose jurisdiction?
Apparently, the board agreed with the municipal attorney Barbara Boulware-Wells’ assertion that 15-day time limit for applying for a variance began in January 2008 and not on June 25 as Stacy Rogers Sharp, attorney for Guilott, contended.

The dispute began in October 2007 after the city issued Guilott a building permit for a new office complex to be constructed on Highway 16 near the intersection of Main Street. As part of the greening of Bandera, Guilott installed a water harvesting system, which she proposed to use in lieu of hooking up to city water. However, she is connected to the wastewater system. For potable purposes, Guilott is uses bottled water.

In January 2008, the city denied Guilott a certificate of occupancy due to her refusal to connect to city water. According to Boulware-Wells, Guilott responded to the city’s claim a month later by offering to connect to the water system, but declining to pay for the service, which, she indicated, she had no intention of using. “The variance she requested was not to pay for water service,” Boulware-Wells said. “The 15 days started in January 2008, but Ms. Guilott did not file a variance within (the required) timeframe.”

Appropriate venue?
On behalf of her client, Sharp said the matter had been brought before the board of adjustments because Guilott considered this an appropriate venue for dealing with “flexibility of (city) ordinances, public interest and hardship.”

Sharp continued, “Our position is clear. We’re asking for a decision from you as to whether Ms. Guilott must connect to city water.”

Board of Adjustments Chairman Linda James noted that nothing had been written in the remarks section of the building permit regarding Guilott’s intention to install a water catchment system.
“My client was not trying to keep it a secret. She was proud of the water catchment because of the environmental impact,” Sharp said. “Time after time, (city staff) had an opportunity to stop construction, but they didn’t.”

While agreeing they knew about the proposed water harvesting system, City Administrator Gene Foerster and Public Works Director Mike Cardenas said they were unaware of Guilott’s plan not to connect to the public water supply.

However, in a notarized affidavit, general contractor Finn Rasmussen stated that Cardenas was aware of Guilott’s intention not to hook up to city water.

During the meeting, Rasmussen added, “Both Gene and Mike knew we were installing a catchment system and that we were not going to connect to city water. Who would spend $8,000 to save $10 a week? We were not told we had to connect to city water, which is very surprising.”

However, during a “rough-in inspection,” Cardenas said pipes laid to the fresh water line were subsequently stubbed out. “We knew they were going to put in a water catchment system,” he said. “The questions were about the requirement to hook up to city water, not about the water catchment system.”

Next stop district court?
“Within 15 days of being notified, Ms. Guilott was required to either hook up to the city’s water main or request a variance,” Boulware-Wells stated flatly. “It is hard for me to understand how (this board) can hear it now.” She asked members to consider the question of when the 15-day time period actually began as opposed to the merits of the variance now being requested.

James asked, “If we have no jurisdiction, where do we go from here?”

“They have the right to appeal to district court,” Boulware-Wells replied, reiterating, “The first required notification to connect was issued in a letter dated Jan. 23, 2008. After that date, no certificate of occupation was issued.”

“The January letter was not the final determination,” Sharp countered. “There was a lot of back and forth. A lot happened that shouldn’t have happened in this situation, but a compromise wasn’t worked out.”

“The city put an offer on the table that wasn’t accepted,” Boulware-Wells said.

Concessions offered & declined
In the June 25 letter in accordance Boulware-Wells offered Guilott concessions approved by city council in May, which included a 50 percent reduction in the water rate to $8.33 during the months she would not use city water. In addition, Guilott would receive an additional one-time credit of $1,000 to her city water-wastewater account, bringing her credits to a total of $1,500 from the city. City administrators would also dismiss a criminal charge currently pending in municipal court related to her failure to connect to city water. However, Guilott did not accept the city’s concessions.

“The city’s position is that Ms. Guilott is required to hook up to the public water system, but would not be required to use that water,” Sharp continued.

Boulware-Wells explained, “The city requires that water be connected to every establishment in the city. Beyond that, the city cannot dictate what is done on private property; however, the liability has been transferred to (residents and business owners).”

Bill Bryce, an alternate member of the board of adjustments, noted, “In my opinion we can’t hear this (variance request) based on the advice of our attorney.”

He took a seat at the table after Denise Griffin recused herself from discussions. Former mayor Linda Stein pointed out Griffin’s conflict of interest after signing the original building permit while also serving as mayor. Boulware-Wells supported Stein’s assessment.

On the advice of my …
Sharp argued that, as a neutral body equipped to resolve the situation, the board of adjustments wasn’t bound by Boulware-Wells’ opinions. “She’s making arguments for the city, not for this board,” Sharp said.

Bryce, however, declared that as the city attorney, Boulware-Wells served as attorney for the board as well. “If we go against the advice of our attorney, we can be sued individually,” he said.

Nancy Montgomery, a member of the board of adjustments, also noted, “Two attorneys can’t solve this and you expect us to?”
Bryce made a motion that the board of adjustments does not have the jurisdiction to hear Guilott’s request for a variance. The motion, which was seconded by Susan Burke, passed 4-0 with Griffin abstaining.

According to Boulware-Wells, a criminal matter regarding enforcement of Guilott’s non-compliance is pending in municipal court. The case is scheduled for pre-trial hearings and a trial in November, Boulware-Wells said.

In addition, Bandera City Council will discuss Guilott’s litigation against the city in a closed executive session during a regular Thursday, Nov. 5, meeting.