Motion to demolish tower denied

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Partially built water structure continues to be issue in Bartonville

A district judge denied a motion Friday to tear down a partially built water tower next to the Bartonville home of former U.S. Congressman Dick Armey and his wife, Susan.

The couple’s attorney, Mike Whitten, argued that a year-old 4th Court of Appeals ruling in the long-running battle required that the tower be demolished. R. William Wood, attorney for Cross Timbers Water Supply, argued the appeals court ruling made no such holding. Such an order “smacks of finality” in a case that has yet to go to trial, Wood said.

The dispute over construction of the elevated water tower between the town of Bartonville and the water supplier began as a zoning case in 2011. It spilled over into civil court in 2012 when the Armeys and their neighbors also filed a lawsuit against the water supplier.

Judge Doug Robison, who presides over the case now in the 393rd District Court in Denton, said he was satisfied that a cash bond the water supplier previously deposited to cover demolition costs was sufficient and he would leave the tower up, at least for now.

“I fully expect them [the water supplier] to comply if they lose,” Robison said, adding that he found the case and its shifting sands troubling. He likened it to one debated by a law school team. “We’re on novel ground.”

But he also said he was determined to settle the matter over the partially built water tower even though most of the work done to that point had been wiped out by the appeals court ruling.

“I drive by it on the way to Highland Village to eat or shop — I see that thing sticking up there,” Robison said. “We need to either build it or tear it down.”

The 4th Court of Appeals in March 2013 upheld the town’s zoning authority, which the water supplier had tried to claim did not supersede its right to build the tower under the Texas Water Code. But the appeals court left unanswered the question about a construction permit for the tower.

Since then, the battle has become even more fractured.

To that end, Robison also ordered the attorneys for the plaintiffs, the town and the water supplier to agree on a trial date and bring forward a motion to consolidate the cases soon. The trial, which Robison said he expected to last two weeks, has been scheduled for April 6 next year.

Armey, the former majority leader of the U.S. House of Representatives from Texas’ 26th District, his wife and some of their neighbors first sued over the water tower in December 2012. But after the Bartonville Town Council settled its own long-running battle over the tower last month, Armey added the town to his lawsuit.

His latest petition has two causes of action — one for illegal contract zoning, as provided for in the town’s settlement agreement with the water supplier, and another for open meetings violations.

The open meetings violations came, the petition alleges, when several Town Council members — enough to make a quorurm — discussed the settlement among themselves, with members of the water supply corporation and with another Bartonville resident.

After the hearing, Armey said he was frustrated by the judge’s denial, saying he would discuss with his attorney a possible appeal of that ruling.

“He’s given them about a mile of slack,” Armey said.

Bartonville’s attorney Robert Hager also appeared in court Friday. He took no position on the motion for demolition, saying the Town Council had no direction on that matter.

However, he told Robison he wanted the court to know that the water supplier had made a new permit application to the town’s Planning and Zoning Commission and that he expected the permit application to be heard in the next 60 days.

When Bartonville reached its settlement with Cross Timbers Water Supply, formerly Bartonville Water Supply Corp., in April, the town allowed the new application to be made. If that permit application is successful, as part of the settlement agreement, the water supplier has offered to reimburse the town up to $350,000 in legal fees related to the legal battles between them.

The water supplier also agreed to indemnify the town against any claims over that new permit, including claims by the Armeys and their neighbors.

The water supplier also agreed to make another capital investment in the system — an 8-inch diameter water pipeline loop for one subdivision — within five years of completing the tower.

Armey has said that since he and his wife bought the land for their home in Bartonville, it had always been his understanding from both the town and the water supplier that there would only ever be ground storage on the lot adjacent to his.

The private lawsuit made national news in February when word got out that Exxon CEO Rex Tillerson and his wife, Renda, were part of the lawsuit with the Armeys through one of their Bartonville properties, the Bar RR Ranch.

The Tillersons and Bar RR Ranch dropped out of the lawsuit in March. Another Bartonville couple, Jane and Brad Teel, dropped out of the lawsuit in June 2013, court records showed.

Only the Armeys and Krystal and Richard Vera remain as plaintiffs in the case.

PEGGY HEINKEL-WOLFE can be reached at 940-566-6881 and via Twitter at @phwolfeDRC.


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