8/19/2004

Municipal Utility District Seeks to Seize Subdivision Land for Sewage Plant

By Arie Wilson

Residents of a small Lake Conroe [TX] subdivision are outraged at a municipal utility district's intentions to use eminent domain to force construction of a water and sewage plant in their community.

The district seeks to claim land outside its boundaries to build the plant, which would serve only the district's residents – not the subdivision where it is located.

About 50 residents of the Capps Addition neighborhood attended the Far Hills Municipal Utility District board of directors meeting Wednesday night to voice their concerns about the sewage treatment plant that the district intends to build at the subdivision's entrance.

The group was forced out after about 30 minutes of discussion.

Homes built inside the Capps Addition subdivision each have independent septic systems. The neighborhood does not belong to any Municipal Utility District.

Jonell Nixon and husband Roy Zboyan, a Capps Addition resident, could lose 4.2 acres of land at the corner of Victoria Street and Cude Cemetery Road through eminent domain to the Far Hills MUD for placement of the water and sewage treatment plant.

Eminent domain laws allow public agencies to take land for public use by reimbursing the landowners the property's appraised value.

In May, the district offered Nixon and Zboyan $40,000 for the land -- about $5,000 above the appraised value. Since then, the couple twice have rejected the offer, which has been reduced to the appraised value of $34,848.

"We don't have a problem with (the amount) they offered," Nixon said. "We just don't want that plant going in there."

Jim Haymon, president of the Far Hills MUD, said the district plans to place the water and sewage treatment facility at the corner of Virginia Street and Cude Cemetery Road.

The plant will have a serving capacity of 1,200 homes – far fewer than the number of houses already built in the district's six subdivisions east of Cude Cemetery Road.

The district's primary lift station, which pumps the district's waste to the Montgomery County Utility District 2 sewage plant at Seven Coves for treatment, already is located on one acre of land adjacent to Nixon and Zboyan's property, Haymon said.

"Currently, we have a contract with Seven Coves that runs out in four years (for waste treatment)," Haymon said. "That plant isn't large enough to support us both, and we'll have to build our own."

Haymon said placing the plant at the Victoria Street/Cude Cemetery Road site is the most financially viable option for the district.

"(The property) is located next to our current lift station, and then it would run right into the plant," Haymon said. "This is what our engineers, financial advisers and attorneys tell us to do, and anywhere else would cost us extra money to our taxpayers."

Two years ago, the French Quarter subdivision development, which lies west of Cude Cemetery Road, was annexed into Far Hills MUD, promising the addition of more than 250 homes to the district. But only six of the homes, costing upward of $200,000, are under construction.

In February, Rob Broussard, French Quarter developer, contacted Nixon and Zboyan on behalf of the Far Hills MUD about buying the land that is now at the center of dispute, pitting the district against Capps Addition.

Broussard lives in Capps Addition on Circle Drive, but he is building a new home in the French Quarter development.

"We were just trying to be neighborly," Broussard said. "The district contacted me and asked me to call (Nixon)."

Many of the Capps Addition residents blame Broussard's development for the sewage treatment facility being placed on their doorstep.

John Vernon's home will be located less than 400 feet from the sewage plant if it is built on Virginia Street. Vernon does not understand why Far Hills is not building the facility within the district.

"I've lived here for over 25 years, and (Broussard) should have to put the plant up there with those high-dollar homes," Vernon said. "They're trying to take advantage of us retired people, but we'll carry them to court if we have to."

Broussard maintains he had nothing to do with the decision of where to place the plant. Considering the repercussions, he would not have gotten involved as a spokesman for the district, he said.

"Looking back, I probably should have asked them to make the phone call themselves," Broussard said.

Residents understand Far Hills' need for a sewage treatment plant, but they are not sympathetic to placing the plant outside of the district and at the entrance to the Capps Addition subdivision.

At the Wednesday night meeting, residents donned name tags that read "Capps Concerned Citizen" and passed around a detailed list of their concerns.

The flier expressed a concern for the environment, cost to property owners in the Capps Addition neighborhood and alternatives to placement of the plant.

Bert Goll, a staff lawyer specializing in eminent domain cases at the Institute for Justice in Washington, D.C., said such grassroots organizations are key to citizens' concerns being heard.

And he expressed concern over eminent domain cases that seem narrowly designed to serve the interests of private developers -- rather than any broad public interest.

"Almost always, there is a relationship between the condemning agency and the developer," Goll said. "You get an unholy alliance between (public agencies) and the developers."

Goll encourages citizens to be aware of the goings-on of local municipalities. Many times, the property owners are the last to hear of plans for condemnation or claiming of eminent domain, he said.

"This is a situation that is crying out for activism," Goll said.

Nancy Martin, an attorney at Winstead, Sechrest and Minick in The Woodlands, said utility districts are within their legal right to claim land outside of the district boundaries if it's for the good of the district.

"The city of Conroe wouldn't be able to take property in the state of Tennessee and claim it's for the public good," Martin said. "But if it's in the area, then they will be able to do it," Martin said.

The principle of eminent domain is laid out in the Constitution under the Fifth Amendment and is governed by the Texas Property Codes. The code requires that landowners receive compensation for the property being claimed.

"If the parties are unsuccessful in negotiating (the value), then the issue will go to a special commissioners court," Martin said. "If the parties don't like what they say, then they can file suit."

But going through the court system would not keep the utility district from using the property, Martin said.

"The district may have a good reason for putting the plant where they are, and that's not the kind of thing courts step into," Martin said. "The court will probably uphold it."

Nixon and Zboyan are not giving up, though. The couple have hired a lawyer and plan to fight to keep their land.

"We bought that land about four years ago and had no intention of developing," Nixon said.

Zboyan said the district's claim of eminent domain is strictly financial.

"I don't think they're doing anything sneaky, just going after an easy target," Zboyan said. "And if it was the only piece of land available, I think they could get away with it. But that's our basic argument that they have so many other places to put it that it's ridiculous."



Arie Wilson can be reached at awilson@mail.hcnonline.net
www.thecourier-online.com.