Landowners score big win for property rights as eminent domain lawsuit dropped
By Terri Hall
August 30, 2016
Finally some good news for Terrell and Pat Graham. Amidst the backdrop of the scenic Texas Hill Country, a three-year war over property rights has been waged by a private developer against the Grahams, whose cattle ranch has been in Pat’s family for over 100 years. The developers of Johnson Ranch, David Hill Johnson Brothers (DHJB), decided to dump its treated sewage onto their neighbor’s property in order to maximize its profits and cram as many houses as possible into its subdivision rather than contain the sewage within its own boundaries. When the Grahams fought back, DHJB resurrected a dormant Municipal Utility District (or MUD), stacked it with board members in its pocket, and sought to take the Graham’s property using eminent domain for its private project. Monday, after a fierce fight, including from its own residents, and a million dollars in legal costs (combined from both sides), the Johnson Ranch MUD decided to drop its lawsuit to condemn the Graham’s property using eminent domain.
“It’s a positive step, but we still have a ways to go,” related a relieved Terrell Graham.
The Grahams wish it was all over, but there’s still a pending lawsuit to appeal the Texas Commission on Environmental Quality’s (or TCEQ) decision to grant Johnson Ranch’s amended wastewater permit a year ago. DHJB sought to change its wastewater permit from 75,000 gallons a day of sewage (which could be contained within its boundaries) to 350,000 gallons (which could not be contained within its own property and would require dumping onto the Graham’s property). After a contested case hearing before an administrative judge, the Grahams won that round when the judge ruled in their favor saying the TCEQ should deny the amended permit. However, the TCEQ granted the amended permit anyway, despite the ruling of the judge. So the Grahams have had to continue paying for their legal fight to stop the dumping.
Then there’s the matter of stormwater. It’s illegal in Texas for a development to increase stormwater run-off. Yet at Monday’s special called board meeting, the MUD admitted they have indeed increased the stormwater run-off onto the Graham’s property, and it must be addressed. Flooding has been a persistent problem in the Hill Country since the recent influx of massive new developments.
Johnson Ranch’s track record in mitigating potential threats to water quality and human health isn’t exactly sterling. The TCEQ recently notified DHJB that it was being fined $31,500 for violations relating to its water pollution abatement plan. When it built its wastewater treatment plant, they not only failed to have a water pollution abatement plan as required by law, it failed to follow the abatement plan they eventually filed with the TCEQ. The developer also encountered sensitive features to the Edwards Aquifer Recharge Zone while digging trenches for utilities. The law requires all work to stop and the developer must immediately report it to the TCEQ. DHJB failed to do so. DHJB also failed to build its raw sewage collection system following TCEQ guidelines. All told, the daily maximum fine of $25,000 that could have been imposed for the number of days Johnson Ranch was in violation tops $2 million, but the TCEQ only fined the developer $31,500.
Johnson Ranch also leaked 30,000 gallons of raw sewage within 100 feet of the recharge zone during the flood on October 30, 2015. It never notified the city or any of its residents or neighbors of the potential threat to drinking water. With that much raw sewage entering the Edwards Aquifer, many San Antonio residents could have been affected. The TCEQ sent the developer a notice of violation on March 15, 2016, but no fine was imposed despite the risk of a potentially deadly outcome (eColi, blue baby syndrome, etc.), especially for infants and the elderly.
So while the Grahams can celebrate the end to eminent domain for private gain, there are many outstanding threats to the health, use, and enjoyment of their property for both humans and cattle. At a minimum, the Johnson Ranch MUD should be required to pay the Graham’s legal fees that exceed $500,000. Hopefully, the MUD’s withdrawal of the eminent domain condemnation suit is the first domino to fall in a series of victories for property rights and the Graham family who have fought to defend not only to protect their own rights, but also to secure property rights and prevent eminent domain abuse for all Texans.