DRIPPING SPRINGS – Following a hearing Feb. 18, Dripping Springs City Council partially upheld a takings assessment March 4 related to the Hardy Tract.
The tract — a 78-acre parcel of property proposed for the construction of approximately 70 residential lots — is located in the Dripping Springs city limits at the west end of town at the southern boundary of the Bunker Ranch Subdivision. The secondary access road, Hardy Driveway, is located west of the Bunker Ranch subdivision and runs from the Hardy Tract to US 290. The road itself will be in the city’s extraterritorial jurisdiction (ETJ).
The Hardy Tract is in process for approval of residential development that includes requirements for roads, drainage, sidewalks and other infrastructure.
According to agenda documents, in consultation with North Hays County Fire, the city of Dripping Springs requires a minimum 26-foot roadway and a five-foot sidewalk on one side. This was based on the representation by the developer that multi-family housing may be placed on the tract. If no multifamily is on the tract, the roadway only must be 24 feet. Section 11.3.4 of the City Subdivision Ordinance requires all subdivisions with 50 or more lots or units have at least two points of vehicular access and must be connected via improved roadways. The standard is to require sidewalks on both sides of the roadway, but the city waived the requirement for the second side on request of the developer in return for payment of fee-in-lieu.
“The city requires that a secondary access be provided when there are more than 50 or more residential lots proposed. In addition, the fire code requires a secondary access when the proposed homes are too far from the other access,” said city attorney Laura Mueller. “The city requires that the minimum road for a subdivision of this size be 24-foot wide and have adequate drainage, as well as sidewalks. The sidewalks required are normally five feet of sidewalk on each side of the road, but in this case, the city has already waived five feet of sidewalk on one side of the roadway.”
In addition, drainage improvements are required, but are only those needed to meet the Water Quality and Drainage mitigation as required by the Water Quality Ordinance Article 22.05.2 The extent of the drainage improvements are only those that directly affect the required roadway and the sidewalk. These improvements are not required to be oversized for any other development.
As part of the residential development approval process, any applicant can ask for what is known as a takings assessment under state law — Local Government Code Section 212.904 — that asks the city engineer to determine whether certain required improvements are roughly proportional to the impact of the development, according Mueller. Roughly proportional means that the improvements required by city ordinance and staff make sense for the subdivision and do not cost more than the kind and level of traffic — pedestrian and vehicular — drainage issues and infrastructure which the type of proposed development will create.
The applicant asked for a takings assessment related to a secondary access road required by the city through its subdivision code and through the fire code; the city-required improvements are the minimum required for this type of development and no oversizing was required, said Mueller.
“The applicant has a limited amount of area to build its road and related improvements based on its ownership interest on the narrow strip of land it chose to build its secondary access on. This limited area increased the cost of the improvements,” Mueller explained. “The city’s takings assessment determined that the required road, drainage and sidewalk was roughly proportional to the impact of the proposed development — 78 acres, over 70 units — because they are the minimum the city requires and did not require oversizing or public dedication of property.”
After partial success in removing requirements through the waiver/variance process, the applicant requested a takings assessment from the city in May 2024. The city then produced the takings assessment within the 30-day deadline required by state law and the applicant appealed the takings assessment to city council. Following cancelled meetings regarding the tract, this item was brought back for a hearing Feb. 18, with no action taken, and then, again March 4.
During the Feb. 18 hearing, Jamie Rose, an attorney representing Hardy T. Land, LLC, said in her presentation that the applicant or appellant has been working for more than two years to address the city requirements.
“The city requirements for the Hardy driveway are so excessive that the cost of just the road is anticipated to exceed $6 million. This is for a 70-acre, 72-lot, phase six addition to Bunker Ranch,” Rose said. “Among other things, the city is requiring that Hardy T. Land construct a sidewalk to nowhere that runs approximately 3,100 feet along one side of this private road. It will remain a private road. There will be no public easements granted on the road or the sidewalk.”
Along with related cost increases associated with the “sidewalk to nowhere,” it’s estimated to be just over $2 million, due to various features of the strip of land and complex drainage required, Rose said. The attorney continued to echo that the sidewalk goes nowhere and connects to nothing, stating that it dead ends at a busy area of US 290.
“The elementary school and the middle school are approximately a mile down 290 with no sidewalks. I don't know any parents that would want their child walking down a sidewalk to that 290 area now without sidewalks, or even with sidewalks, if ones ever are developed along 290,” Rose said. “But as it stands right now, there are no existing sidewalks connecting to this sidewalk to nowhere and there are none planned or funded.”
Rose stated that by law, under the circumstances presented, the city must pay for the sidewalk.
“It is a taking of private property and we’re not here to say that, ‘Please don’t make us build this sidewalk’ because we’ve done that and been denied … We’re not here to seek further relief in that regard. The hearing today is on who pays for it,” she said. “As it stands, the development cannot proceed because the private drive requirements put on Hardy T. Land destroys the financial viability of the project. And the second vehicular access will ultimately be beneficial to the existing residents of Bunker Ranch who will be able to use that access and obviously, they have one one way in and out of the primary existing Bunker Ranch subdivision. So, we're hopeful that the city council will determine, as we believe to be the case, that the law requires the city and not Hardy T. Land to pay for all of the sidewalk related construction costs and fees along the driveway.”
“They're only allowed to have 72 lots within this relatively small, 78-acre subdivision, whereas in Bunker Ranch, I think there's …. 180 lots. They didn’t have sidewalks there. We've already got the sidewalk within the subdivision requirement, making this more costly,” Rose added. “With these larger lots, obviously, you can't sell as many houses and a $6 million secondary access when the primary access is actually sufficient for traffic flow is just over the top in terms of the expenses.”
There are some challenges that come into play with this project, as it includes a strip of land situated in the Dripping Springs ETJ and it’s located between two large — approximately 80-acre — privately-owned family tracts that are owned by unrelated parties to Hardy T. Land, LLC, Rose’s client.
“The engineering of the road to city specifications is extremely complex and costly because of the very small width in which they have to store water, including off-site drainage that's flowing from 100 acres to the west of the property, flowing east across the road, as well as stormwater detention,” Rose said. “All of that with such little space has to be stored under the road, which means the road is … elevated. Adding a sidewalk, more impervious cover, less place to store water, under this circumstance, just magnifies the cost and complexities associated with the road.”
The city of Dripping Springs adopted a new sidewalk ordinance in 2020 after a lot of looking into sidewalks to determine what was important and ensuring that there were adequate pedestrian walkways, Mueller stated to council. The ordinance provided a variance process that goes through the Planning & Zoning Commission and provided a fee-in-lieu for specific cases.
“People often come to us and ask for sidewalk variances because maybe the lot next to them, or both lots next to them, don't have sidewalks. But the issue has become, at that point, we're never going to have sidewalks … because at some point, if you want sidewalks, you have to require them. Now, right now … that sidewalk on 290 — and once again, it's totally separate from what's internal to the Hardy Tract — doesn't connect to the Bunker Ranch trail as of yet and doesn’t connect fully to the middle school sidewalk project,” Mueller explained. “At the Arrowhead Convenience Store, we require sidewalks and also with 290, which we know is a constant discussion with TxDOT is that as that gets improved, those will have sidewalks. We have sidewalks on 290 right now and there's the sidewalk, there's the grassy area; they're already on 290 and so, that's where we're at.”
City of Dripping Springs Planning Director Tory Carpenter added that in this particular case, one of the concerns is with the construction of the road. If the city or anyone were to construct sidewalks along US 290 in 15 years, at that point, there is a subdivision, long road and an area where residents can ride bikes or walk: “Our concern is people are going to walk on that road in unsafe conditions to be able to get out of the neighborhood on foot or on a bike or any other way than a car … To use the justification of sidewalks to nowhere to not require sidewalks is really shortsighted because if you use that rationale constantly, you are never going to get the connections you want.”
Following a public hearing and discussion across the dais over the course of two meetings, Dripping Springs City Council voted 4-0, with council member Taline Manassian abstaining, March 4, following executive session to uphold the drainage and road improvements, but to waive the sidewalk requirement based on the unique factors of the property.
“I have always felt very strongly that the road makes sense, not just from a rough proportion standpoint, but also a safety standpoint that, again, the fire access, is both in fire code, as well as what the fire marshal requires … When you're putting concrete, you have to provide for improvements that make sure you're not [diverting water] onto the adjacent property based on the impact,” said council member Geoffrey Tahuahua, who made the motion. “[For] the sidewalk, I think there's some unique circumstances on this specific tract of land. And so, I think that is why I would, if I was doing something, I would probably partially uphold it specific only to the requirements of the access and the drainage.”
Manassian said that the challenge she has is that they are only requiring the minimum of the city’s ordinances and they are not asking for more than the basics.
“I disagree with the characterization of this property, this sidewalk as a road to nowhere or sidewalk to nowhere because I think that the functionality of it is purposeful and useful to the neighborhood and the bigger Bunker Ranch neighborhood around it. So, I personally think it needs to be there and it is serving the residents of that neighborhood, in addition to the larger Bunker Ranch,” she explained. “I understand the reservation about the cost, given the unique circumstances. I don't know that we were given enough information really to assess that in the last hearing or the last time we spoke about this, but it's hard for me when all we're requiring is the minimum of our ordinances to pass on any part of it.”
Mayor Bill Foulds echoed Manassian’s point, stating that the comment that the sidewalk to nowhere is inaccurate. He also shared that everyone should participate and support the community in which they live in and in this case.
“I still feel pretty strongly that there should be a sidewalk there,” Foulds said. “I know figuring out the proportion share, saying zero, that's a terrible number because they're going to have an impact on these roads and the lack of sidewalks. The kids and the families that live there are going to suffer in the long-term.”
As a legal deliberation, council is asked to determine the rough proportionality of a private road that has a tangible public benefit, Tahuahua said: “It sucks that we have been placed in this position. I would argue, partially by the applicant or the appellant, I guess. But it is the reality that we're tasked with what we're doing. And I would say that any future residents that were wondering why they don't have a sidewalk, they should refer their complaints to the appellant's claim … We will, certainly, in future planning, try to still build the connectivity that we're able. Unfortunately this, this will just be a hole that we would rightly have to have at least for the foreseeable future.”
The applicant can now move forward with its project without building the sidewalk, but must build the road and drainage needed for the subdivision. The applicant has 30 days from March 4 to appeal this determination to a state trial court, if it chooses to do so, Mueller said.
Dripping Springs City Council meets next at 6 p.m. Tuesday, March 25.
