Issue Summary

It is the position of current Commissioners Court, though not of the prior Commissioners Court, that EHD ruled incorrectly when they issued our permit because of Hays County laws that limit septic size based upon lot size.  These laws were put into effect in 1997.    There is a principle in law called “long standing construction.”  What this principle says is that there are times when laws are vague or hard to interpret.  As a result of that, it might happen that elected officials decide that the law has not been applied properly.  In such cases, the way in which the law had previously been applied is considered the long standing construction of that law.  There is certainly nothing wrong with the officials telling their staff that from that point forward, the law will be interpreted in a new way.  However, to suggest that the staff should now, retroactively, revoke all permits that were issued based upon the long standing construction of the law is wrong.  This is the heart of the power grab that a majority in the Commissioners Court are attempting. If you let them succeed, they will have the precedent to go after any permit that was previously deemed to be within the law.

Details

The Hays County EHD has always interpreted the 1997 density rules as applying to lots created after the effective date of those rules. This is the long standing construction of those laws. The reason for this seems simple. People purchase property with a use in mind (residential, commercial, agricultural, etc.) and select the property based on what the laws allow. If, after you purchase property, the government passes a new law that severely restricts the use of that property, such as a law limiting the size of a septic system when you need that for your business, then the government’s law has robbed your property of the value it had when you bought it. It certainly makes sense that those people who bought their property prior to that point in time should not be penalized by subsequent laws. The EHD, the TCEQ, and the previous Commissioners Court all upheld this long standing interpretation of the law in the matter of our septic permit.   The view of Judge Sumter and Commissioner Ingalsbe and Ford is that they should have the right to pass a law and that it should be retroactive. This is a precedent setting power grab! They are trying to make sure they have the power to severely limit property rights whenever it suits them.  Further, they feel that their application of the law can be applied arbitrarily (See No Consistency for more details.)  In this case, the only business who has suffered this “new” interpretation of the law, is THK.   There is no question that when the previous Commissioners Court voted unanimously to deny Neighbor’s appeal of our permit on July 11, 2006, they were fully aware of this issue.  On July 7, 2006, Allen Walther, then head of EHD for Hays county, sent an e-mail to Joseph Strouse of TCEQ to verify there was no issue concerning how Hays County interpreted their rules.  His email states as follows:   “Concerning the Ramus OSSF permit issued by my department: We do not believe that the rule limiting non-residential wastewater discharge to 350 gallons per acre per day applies since the lot was created in the 1980’s and the relevant rule was adopted in 1997.  Our rules state that they apply to lots created after the effective date of those rules.   Please let me know if you concur with our determination. Thanks, Allen”   Mr. Walther is stating here the long standing construction of the law.   On July 10, 2006, Mr. Strouse of TCEQ replied as follows:   “We concur...The idea was that subdivisions platted after the 1997 implementation date were subject to this requirement.   Joe”   On July 11, 2006, the Commissioners Court upheld this view of the law. There is no question that was the long standing construction of the law.   The point we are making here is that the current Commissioners Court should not be allowed to retroactively interpret the law.  The Commissioners Court agreed with this position on July 11, 2006, by unanimously voting to deny Neighbor’s appeal.   Now, a year later, Judge Sumter and Commissioners Ingalsbe and Ford have voted to arbitrarily change the construction of the law.  If they succeed in this power grab, it will signal a tremendous limitation of property rights in Hays County. Please don’t let them get away with this. See What You Can Do for details on how you can help.