City’s position paper on “vested rights”

During the council’s work session last week, several members referred to a Vested Rights Position and White Paper.

I wrote the story as best I could, not knowing the details of what was in the paper. The paper was not included in the agenda back-up online. I finally received a copy late Friday.

But it has been well known that many of the troubles the city has had enforcing its new oil and gas development ordinance can be traced to the Harper Park Two decision.

The position paper argues against stretching the Texas Supreme Courts’ interpretation of a development project’s vested rights from Harper Park Two to an oil and gas development project, asserting that it likely does not reflect the intent of the Texas Legislature.

What is the project? Is it only that pad site identified on the original plat? Is it one well, or two wells, or five wells? Is the project the complete exhaustion of the mineral stores of the mineral lease, no matter the necessity of burdening the surface estate with additional wells and gas infrastructure? In an urban environment with underlying gas plays, the answer to these questions determines the health and safety and the quality of life of a municipality’s citizens.

 

 

Was the frack ban vote red or blue?

Much has been made of the vote in Precinct 4003, in part because I tweeted out some interesting facts as the counts came in on election night.

I thought it might be helpful to make a chart that shows each precinct with some conditional formatting on the cells to help you visualize the numbers and how they compare. “Favor” is the frack ban vote scaled red-yellow-green, to the degree to which that precinct favored the ban on hydraulic fracturing. “GOP” is scaled red-blue to the degree to which those who voted straight ticket did so for the GOP.

It’s important to know that this isn’t quite an apples-to-apples comparison up and down the chart. In Pct 1008, for example, 308 straight-ticket ballots were cast in Pct 1008, but just 35 ballots cast in the frack ban. Some voters in that precinct are likely outside the city limits and I’ll be checking into that.

Also, in Pct 4002 and 4042, there were only handful of voters who cast ballots.

It’s also important to know that the 308 straight-ticket voters in Pct 1008 notwithstanding, we have no idea how about 7,000 people contributed to one party or another, or if they even split their ticket at all. That’s roughly about a 27 percent difference between the two grand totals (25,376 frack ban votes, and 18,539 straight-party ticket votes in city precincts)

Let’s look at the precincts with the heaviest turnout. The top five were 4003 (2,746), 4007 (1,799), 1017 (1,728), 1018 (1,718) and 1012 (1,433).

Armchair pundits could point to the outcome in the first two and explain it away on party politics, but I don’t believe that would withstand much ground-truthing. There’s a lot more at play, and if you look closely at the next three, Precincts 1017, 1018 and 1012 tell the story much closer to the political reality in Denton.

Frack Ban Vote

 

Frack ban lawsuits

Here is the original petition from the Texas Oil and Gas Association, filed today in Denton District Court No. 431.

TxOGAvDenton

Here is the original petition from the Texas Land Office, which was filed in Travis County.

TLOvDenton

Convention Center financial scenarios

The Denton city staff posted a dozen different financial scenarios for the convention center financing to the agenda packet from last week. They weren’t there when the packet first went up, but got added later.

(Go here. Click on the 10/28 agenda. Scroll down to the convention center item, click on Exhibit 5, Scenarios Detail.)

Right away, you can rule out several of them because they include tax contributions from the county and school district. (It’s bothersome that neither body voted, so that the rejection could be on the record. But there you have it.)

The difference in the cost to the city in some of the scenarios is striking. For example, financing the $28.98 million project over 25 years and 30 years greatly increases the ultimate cost. Scenario 3 (4 percent debt over 25 years with a 78 percent full hotel to help out) means the convention center’s ultimate cost is $45.4 million. Scenario 10 (6 percent debt over 30 years with a 69 percent full hotel to help out) means the convention center’s ultimate cost rises to $60.8 million … a $15 million swing for the city.

The developer’s contribution swings about as wide between those two scenarios, from $5.5 million to $13.2 million.

Scenario 12 may explain why the developer has pushed the city to go to 30 year financing, without offering any support those last five years.

A poor performing hotel with the hotel on a 25 year note at 6 percent means the developer’s contribution toward the debt rises to $17.4 million.

Even small increments mean big dollars over the life of the deal.

Back by popular demand: Campaign Finance Reports, Round 2

For the proposition to ban hydraulic fracturing in the city:

Denton Taxpayers for a Strong Economy

Pass The Ban

For the proposition to make Denton wet:

Denton First

For the four propositions totaling $98.2 million for public improvements

Building a Better Denton

Don’t forget, these cover the period from Sept. 26 to Oct. 25.

The first round of reports are here.

Update on mineral rights lawsuit

The city has successfully petitioned to move the case with Arsenal Minerals, et al, to federal court. Here’s the original story to get you up to speed if you missed this important story when we broke it last month.

The court required attorney Charles Chandler Davis to refile according to federal court rules. The amended petition is here:

DavisAmendedPetition

The city has not yet answered the petition, although federal rules require that they answer it more specifically than they would in district court. They have a few weeks before the answer is due to the judge. Here is the court order that lays out the initial deadlines.

FedCourtOrder

 

Voter registrations to date

Denton County has processed 7,637 new voter registrations, 1,968 of them in the city of Denton, since July 15.

Elections officials tell me that there are more being processed that will have made the final cut off, which was yesterday, but it will be a few days before the last of the rolls are in.

New voter registration in the city Denton has far outpaced registration in the county’s other major cities, including Carrollton (635) Lewisville (846), Frisco (641) and Flower Mound (541).

Younger voters continue to drive those numbers, with about 1,260 of them ages 25 or younger. Recently, Amber Briggle posted on her Facebook page that she was at a University of North Texas event ready to register as many as 100 new voters and ended up registering far less because so many of the students had already registered.

But that also means about one-third of the newly registered voters, or about 700, are out there in the wild in Denton.

The NT Daily is reporting that early voting will be available on the UNT campus at Sycamore Hall to make it easier for students there to cast their ballots.

Denton campaign finance: Specific-Purpose Committees, first round

Working on the story for you, Denton. But in the meantime, here are the reports:

Ban on fracking:

Denton Taxpayers-30 days.pdf

Pass the Ban-30 days.pdf

Bond proposition:

Building a Better Denton-30 days.pdf

Liquor proposition:

Denton First-30 days.pdf

Call for eminent domain reform

Recently, a Denton County couple was awarded $873,824 in their case against Crosstex Energy in a gas pipeline easement condemnation suit.

The company had originally offered Terry and Ossie Button $44,955, according to a press release from their attorney, Glenn Sodd and his firm, Dawson & Sodd, LLP.

The Fort Worth Court of Appeals upheld a jury verdict that took into account the easement Crosstex Energy, now called Enlink Midstream, took across the couple’s undeveloped land near Lantana. Damages were awarded based on the reduced market value of the land caused by the pipeline. The pipeline’s placement limited development options for the land.

The company settled with the Buttons rather than appeal the matter to the Texas Supreme Court.

For many years, Texas laws and regulations have given energy companies wide latitude in establishing “common carriers” to move their product to market, latitude not seen in many other states. In the heyday of the Barnett Shale boom, many energy companies also formed pipeline companies to use eminent domain powers against landowners.

The Texas Legislature, through SB 18 last session, attempted some reforms to the state’s eminent domain laws.

Calvin Tillman, the former mayor of Dish, has called for more meaningful reforms. In an essay for the Texas Tribune, he underscores Texas’ low score on private property rights. He calls on the legislature to look to other states, such as Florida, which do a better job with private property rights.

Pre-filing begins Nov. 10. It will be interesting to see whether the Texas Legislature continues this important path of reform.

 

 

Frack ban: another legal discussion

Tuesday night municipal attorney Terry Welch (currently Copper Canyon and formerly Flower Mound) addressed residents at a meeting organized by Frack Free Denton.

I live-tweeted from the event, which included a short presentation by Welch on legal issues around the proposed ban on hydraulic fracturing in the city limits and a question-and-answer session with the audience. You can see the chain of tweets on the Twitter fall of our main page.

The topic was especially timely since the city was just sued by a mineral owner. Welch kept it simple, letting residents know that a ban on fracking was not the same as a ban on drilling and, as such, was legal.

First, there is no real state case law for oil and gas takings, which is why there has been reluctance to try such cases, Welch said. Unlike other property rights cases where it might be clear and easy to measure what is lost, oil or gas isn’t lost in a drill-but-no-frack scenario, he said.

“The gas is still there,” Welch told the crowd.

Second, a recent Texas Supreme Court ruling on an unrelated case could be brought to bear on recent claims of vested rights. EagleRidge Energy and Devon Energy have written the city claiming that permits issued long ago for leases they hold allow them to drill under old rules. Welch’s opinion was that rights that vest for development are quite specific and don’t extend to evolving business regulations.

Third, Texas cities, particularly home rule cities like Denton, have always had the authority to regulate oil and gas to some degree. There is no pre-emption.

Health and safety always trump property rights, Welch said.

However, he said it was possible that the Texas Legislature could introduce legislation that would forbid cities from banning fracking.