LA VENTANA, TEXAS - La Ventana Driftwood

Volume 1, Number 2
MARCH 8, 2016
LA VENTANA, TEXAS
La Ventana Ranch Owners for Self-Governance
LA VENTANA LEGAL UPDATE*
QUOTE
“There lives more faith in
honest doubt, believe me,
than in half the creeds.”
—Alfred, Lord Tennyson
Page 1
Volume 1, Number 2
MARCH 8, 2016
Page 2
105-30 vote in favor of recall, but loses...
...how can that be?
S
ome fairly rash statements have been made
about the recent recall election, here are a few
with some factual responses:
the ELIGIBLE voters (not the votes cast) must vote
to remove. The required threshold was not met.
Statement:
The quorum to elect the two Class A Directors
was smaller than the quorum to remove, therefore the two Class A Directors should be removed.
On site voting had a quorum and most of them
voted to recall so the recall was successful.
Facts:
Statement:
Response: A quorum is not a moveable target, as
stated in the LVROA Bylaws Article II Section K. ExLVROA Bylaws at Article IV Section C on “Removal” cept as otherwise provided in these Bylaws or in the
state that any officer may be removed, with or with- Declaration, the presence in person or by proxy of
out cause, at any time by a majority vote of the
Members representing ten percent (10%) of the eliClass “A” Members or a unanimous vote of the Digible votes in the ROA … shall constitute a quorum
rectors, including the two Class “A” Directors.
at all meetings of the ROA.
In this instance a petition was circulated to call a
The rules here are clear. It takes an affirmative
special meeting for the purpose of holding a vote on
act to remove Directors. That act is the vote of
whether or not the two (2) class A Directors should
more than 50% of eligible voters voting affirmabe removed from office. The rules are clear, if a
tively to remove. That threshold was not met and
quorum of voters or proxies show up to vote, a vote
the recall failed.
will be had. For removal to occur more than 50% of
This was a vote to recall, not an election.
Our Analysis
Pacesetter’s First Board Meeting
Pacesetter said the meeting held by Pacesetter in
Driftwood was not closed, because it was “published.” A
published meeting announcement has no bearing on
whether or not it was closed. In fact, persons allowed into
the meeting had to be invited with the self-proclaimed
Class B Board members having veto authority over any
invitee. The meeting was clearly closed.
Water Developments
Pacesetter, in their response now say what we will get is
more water pressure, at least theoretically. They do not
say the community will get new water infrastructure or
more water capacity. For more information, read the article
in this publication concerning water.
Pacesetter agrees with our article. They acknowledge
limitations on emergency egress. The “limitations” are
more like revocation of approval to use any southern
emergency exit at any time.
Pacesetter claims they must be Declarant to complete
project even though they bought the property without those So where Do We Stand?
rights. What changed? The disagreement is about their
In response to our newsletter, they act as though they did
claimed Declarancy, not their building of homes.
us a favor by getting the Lowdens to turn down a request
for a 2nd exit to the south because they saved us money.
Pacesetter Court Actions
Absent the additional homes, a 2nd exit is not necessarily
Although Pacesetter provides a reason for there not being needed so the need is due to their construction and
a TRO (Temporary Restraining Order) against Salvo and
certainly the ROA was not going to pay for it. But their
Tanner, they agree no such order ever existed.
response does expose their thinking on who should pay for
what.
If the quote used by Pacesetter in defense of their position
asking that Plaintiffs in the Miller/Plisowski suit need to
This fear is understandable and can be resolved without
name all homeowners as parties to their suit, then why
suing the two Class A Board Directors.
when they ask for Declaratory Relief in their suit against
the Class A Board Directors did they not name all the
home owners as parties?
Volume 1, Number 2
MARCH 8, 2016
Applicable Rules and Law for
Meetings
LA VENTANA
There are three (3) types of meetings
acknowledged in the LVROA Bylaws and Texas
Property Code Title 11 Section 209. They are the
Annual/Regular Meeting, Special Meetings and a
vote.
Annual/Regular and Special Board Meeting at
section 209.0051 are defined as a deliberation
between a quorum of the voting board where
association business is considered and the board
takes formal action. All board meetings, regular and
special must be open to owners subject to the right
of Board Members to adjourn to an executive
session.
An election or vote taken at a meeting for that
purpose wherein eligible members (owners) cast a
vote on issues authorized by the LVROA Bylaws at
Article II Section H, which are:
o
o
Nomination and Election of Board
Removal of Directors
o
Amendment of Declaration
o Mergers, dissolution or sale of ROA assets
Notice required for these votes or elections are
stated in both the Bylaws and the Texas Property
Code. Since the Property Code trumps the Bylaws,
they are referred to in lieu of the Bylaws.
Annual/Regular and Special Board Meeting Notice
Requirements:
o Notice must include date, hour, place and
general subject of a regular or special board
meeting.
o
Notice shall be mailed not later that the 10th
day or earlier than the 60th day or provided
at least 72 hours before the meeting by:
· Posting a sign
· Posting on any Internet website
maintained by the association and
· Sending the notice by e-mail to each
owner who has registered an e-mail
address with the association (it is the
owner’s duty to keep an updated e-mail
address registered with the property
owners’ association).
Election or Association Vote Notice Requirements:
For an election or vote taken at a meeting of
the owners, not later than the 10th day or
earlier than the 60th day before the vote a
written notice shall be provided.
Page 3
LVROA members and Directors have been told
that Pacesetter has secured emergency egress
through the Lowden property to the south of the
new Pacesetter home development. That claim is
not quite accurate.
The complete agreement is available in pdf form
by going to laventanadriftwood.org, but here is a
summary:

There isn’t an actual road nor is there an
easement

The agreement can not be recorded with
Hays County

The Lowdens may AT ANY TIME, without
prior notice revoke the agreement and
BLOCK residents from using their property for
emergency exit by simply posting a sign and
locking the gate.
Volume 1, Number 2
MARCH 8, 2016
Page 4
present LV community occurs

As we all experienced last
summer, 126 GPM capacity is
inadequate for the 182
connections under summer
seasonal demand

As to Pacesetter’s development
– under TCEQ regulation of 0.6
GPM/connection, their 65 homes
minimally require 39 GPM. That
is all a new Pacesetter well
needs to deliver to be compliant.
La Ventana Water Co. is
obligated to provide water
service under the CCN, but
Pacesetter is equally obligated
by TCEQ to fund the system
capacity required to deliver the
service.
La Ventana Water
A
n application is pending with
the Public Utility Commission
(PUC) to approve the sale of La
Ventana Water Company assets,
and transfer of the Certificate of
Convenience and Necessity
(CCN), to Southwest Liquids, by
Interim-La Ventana. All LV
property owners of record received
a formal notice of the application
by mail back in September 2015.
The application is now in the
hands of the State Office of
Administrative Hearings to rule on
issues and concerns filed by the
PUC staff and affected parties.
Key Points
 The two existing wells, now
serving 182 connections (homes
and common area irrigation
meters), are just barely compliant
with minimum TCEQ regulations,
and will be noncompliant when
the number of connections
reaches 210.
 Extended hours of well pumping
to meet summer seasonal
demand pushes the system into
Stage 3 – Emergency Restriction
under the Drought Management
Plan
 Pacesetter/Sentinel has offered
to drill/install a new well, but has
never said they will provide any
more capacity than is required
for their 65 new homes.
 La Ventana’s community water
consumption, on a per
connection basis, has exceeded
the annual pumping permit
issued by the HTGCD in all but
one year of the last seven.
Related public records are online
at http://tinyurl.com/interchangepuc
I've generated an analysis of the
current water system,
incorporating information from the
Texas Commission on
Environmental Quality (TCEQ), the
Hays Trinity Groundwater
Conservation District (HTGCD),
and the La Ventana Water
Company Drought Management
Plan. The final report has been
uploaded to the Yahoo Group
site. Look for the file "La Ventana
Water System.PDF".
This report does not take into
account the implications of
Pacesetter building 65 new homes,
however those homes will be
provided water service from our
community system. To complete
the picture, including Pacesetter’s
development is fairly simple.




What increase in well capacity
would reasonably be adequate
and sufficient?
A per connection capacity of
between 1.0 GPM and 1.3 GPM
would meet both the average
annual usage, and reasonably
meet a once a week irrigation
program during the summer,
without triggering the Drought
Management Plan’s Stage 3 –
Emergency Restriction level.
For the current LV community, at
the full build out of 250 homes, this
equates to 250 GPM up to 325
GPM, an increase in well capacity
of between 124 GPM and 199
GPM.
The current water system, two
Adding Pacesetter’s 65 homes,
wells, has actual total capacity of increasing the LV community build
126 GPM
out to 315 homes, increases the
water capacity as follows: at
TCEQ regulations sets the
between 1.0 GPM/connection and
minimum capacity at 0.6 GPM/
1.3 GPM, the total system capacity
connection
would equate to 315 GPM up to
Ending 2015, there were 182
410 GPM. From today’s 126 GPM
connections, which equates to
condition, this requires adding from
0.7 GPM/connection =
189 GPM up to 284 GPM.
Compliant.
Given this perspective, when
The current 126 GPM capacity
Pacesetter drills a well, what would
can meet the TCEQ regulation
you define as success, 39 GPM or
only up to 210 connections. It
200 GPM or 284 GPM?
will be noncompliant when the
full build out of 250 homes in the (continued on page 5)
Volume 1, Number 2
MARCH 8, 2016
(continued from page 4)
Pacesetter has said they will drill a well.
They are required to do so TCEQ regulations. This offer is not a gift the LV
community.
As a side note, when the number of
connections exceeds 250, TCEQ regulation adds the following requirement “Sufficient emergency power must be
provided to deliver a minimum of 0.35
GPM per connection to the distribution
system in the event of the loss of normal power supply.” Up to this point in
time, no one has mentioned, nor has
Pacesetter offered to add diesel or propane fueled emergency generator(s).
Just to round out the picture, The Hays
Trinity Groundwater Conservation District (HTGCD) regulates the installation
and operation of commercial wells.
1) HTGCD issued an increased pumping permit in Dec of 2014 for 250
connections, at an average of 330
gallons per day of consumption =
30.1 Million gallons per year. LV
Community consumption per connection has exceeded the 330 GPD
level by 30% over the past 7 years.
2) For 2015, with 182 connections we
consumed 25.7 Million gallons = 388
GPD per connection. Without some
degree of voluntary conservation, we
will be unable to maintain compliance with the permit as the number
of homes increases.
3) La Ventana Water Co. will need to
file for an additional increase in
pumping volume to meet Pacesetter’s 65 home development
I hope you’ve found this information
useful. Updates will be provided as
future events unfold with both the PUC
application and with Pacesetter’s development activities.
—Submitted by
George Hansen
LV Resident
Page 5
Dear friends and neighbors,
It seems we have brought ourselves to the brink, based not
completely on fact, but supposition, hearsay and plain lack of
communication. Now that some residents, in the name of LVROA,
have sued for the removal of our President and Treasurer, they have
countered and because of that, all of the residents may have to pay
for their defense! That's funny…if it wasn't so tragic. Certainly,
there's a way for us to talk through our differences without having
to get lawyers involved.
Here are some things that we should all consider and then discuss in
a rational, respectful and dignified manner.
First, I've not seen any evidence that our President
misappropriated ROA funds to consult with a lawyer about the issue
of Declarancy for La Ventana. He is well within his right as President
to get clarification on any issue(s) which may affect his ability to
govern our community. And, I also believe he has, or should have,
the authority to spend minor amounts of ROA funds in the execution
and administration of his duties.
Second, it has been a very long time since we've had an effective
governing body. I've been here almost 5 years and there hasn't been
one in that time. Our President and Treasurer were elected in
October, by us, from a long list of those who volunteered (oh wait,
nobody else volunteered). They understand what their
responsibilities are and they want to do the job. I wonder how easy
it will be to find replacements if they are removed over a
misunderstanding of the facts....
Third, having run a large city (over 90K), I can tell you that there
are many things that must be done to properly govern and our
President has set out as best he can to set appropriate processes
and systems in place to do just that--govern us. Everybody won't be
pleased all the time but, in the long run having a working system of
governance will be better for all of us than another year (or more) of
stagnancy.
Finally, on the issue of Pacesetter, it is unfortunate that this has
come as far as it has. The biggest thing we as homeowners should
be concerned about is that our personal interests (value of home,
safety, security, congestion, and availability of utilities) are being
considered and protected. Perhaps Pacesetter has considered our
personal interests and is committed to protecting them...I don't
know, I've never met any of their management...but my experience
says that Pacesetter’s financial interest is first and foremost, and if
those interests can be achieved without affecting the community's
personal interests, good. If not, so be it. At the end of the day,
Pacesetter is not a resident here (I don't think) and doesn’t have to
live with the decisions it makes that will affect our community...
I believe our Class A directors have our community’s interests in
mind as they make decisions concerning our community. I would ask
that all of us attempt to treat each other with dignity and respect as
if we lived with each other. Oh wait, we do!
—Bill and Jill McCoy
Covered Bridge Drive
Volume 1, Number 2
MARCH 8, 2016
Page 6
A Secret Agenda?
Dear Neighbors,
We have been told by others that we surely have some
“hidden” agenda, or something other than merely
pursuing a legal action for determining if La Ventana’s
control by a Declarant is proper.
Well, the answer to that question is plain and simple. We
have no secret agenda. There is no lurking iceberg. We
expect nothing from this lawsuit, if you don’t count grief.
There is no payday at the end of this for us. No position.
No privilege. No advantage of any kind.
So why are we doing it? We’re doing it because we want
as much certainty as we can get with regard to the size,
governance and makeup of La Ventana. We not only
want this for ourselves, but also for our neighbors.
Michael
Plisowski
Mark
Miller
La Ventana Ranch Owners for Self-Governance
PO Box 345
Driftwood, Texas 78619-0345
As residents of a place we call La
Ventana, every time we (and those who
visit us) arrive or depart that place, we
are greeted by a magnificent herd of
Longhorn cattle.
Longhorns have the reputation for their
ability to endure conditions of drought and
disease and adversity that often cause
the demise of other breeds. And, they are
also known to vigorously protect
themselves from predators. Wildcats and
wolves harbor a healthy respect for the
Longhorn’s boundaries.
Like those Longhorns, when we assert
healthy boundaries, others will learn to
respect them.
PLACE
STAMP
HERE