ACCEPTED
03-14-00068-CV
3607591
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/29/2014 4:32:41 PM
JEFFREY D. KYLE
CLERK
APPEAL NO. 03-14-00068-CV
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
COURT OF APPEALS FOR THE THIRD DISTRICT12/29/2014
OF TEXAS 4:32:41 PM
JEFFREY D. KYLE
AUSTIN, TEXAS Clerk
LARRY MARK POLSKY, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
__________________________________________________________________
APPEAL FROM CAUSE NO. D-1-GV-13-000067
IN THE 126TH DISTRICT COURT OF TRAVIS COUNTY, TEXAS
__________________________________________________________________
APPELLANT’S REQUEST FOR COURT TO TAKE JUDICIAL NOTICE
OF CAMERON COUNTY BEACH ACCESS AND DUNE PROTECTION
PLAN, PAGE 21, SECTION 4, (iii) – (xi)
_________________________________________________________________
TO THE HONORABLE THIRD COURT OF APPEALS:
COMES NOW, Appellant, Larry Mark Polsky, Esq., and moves this
Honorable Court to take judicial notice of the attached Cameron County Beach
Access and Dune Protection Plan, Page 21, Section 4, (iii) – (xi).
Please govern yourselves accordingly.
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/s/ Larry Mark Polsky, Esq.
LARRY MARK POLSKY, ESQ.
State Bar No. 16105500
Law Office of Larry Mark Polsky
5508 Padre Blvd.
South Padre Island, Texas 78597
(956) 761-1529 Telephone
(956) 761-1599 Facsimile
CERTIFICATE OF CONFERENCE
I certify that I attempted to conference Shelly Doggett, Esq. on December
29, 2014 at 12:15 p.m. and 12:18 p.m. and I received a reply stating that Ms.
Doggett would be out of the office until January 5, 2015.
/s/ Larry Mark Polsky, Esq.
LARRY MARK POLSKY, ESQ.
CERTIFICATE OF SERVICE
I certify that the original of this document was served on the Third Court of
Appeals in Austin, Texas for filing by e-filing and copy by e-service to Shelly
Doggett, Esq., P. O. Box 12548, MC-066, Austin, Texas 78711-2548 in
accordance with the Texas Rules of Civil Procedure on the 29th day of December
2014.
/s/ Larry Mark Polsky, Esq.
LARRY MARK POLSKY, ESQ.
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CAMERON COUNTY
BEACH ACCESS
·.· AND
DUNE PROTECTION
condition in the original application.
c) A permit or certificate automatically terminates if construction comes
to lie within the boundaries ofthe public beach by artificial means or
by natural causes .
.3. Administrative record.
The administrative record of official Commissioners' Court actions relative to
permit and certificate applications shall be maintained within the minutes of
the Commissioners' Court by the County Clerk as consistent with state law.
The County Engineer shall keep the files relevant to applications and
permitting for dune protection pennits.
Cameron Countv delegates the authoritv to the Town of South Padre Island
and the Citv of Port Isabel to develop and implement a dune protection
program (or implementation within the Town's and Citv 's corporate
municipal limits onlv.
4. Issuance
r
or denials of dune protection permit.
a) To determine whether to issue or deny a permit, the Commissioners'
Court or its designee should at least review and consider the following
factors:
I) the information in the permit application
2) the proposed activity's consistency with this order and the
General Land Office rules for management of the beach/dune
system;
3) any other law relevant to dune protection which affects the
activity under review;
4) the comments of the dune protection committee, the General
Land Office, the Attorney General's Office, and the general
public; and particularly:
i) cumulative and indirect effects of the proposed
construction on all dunes and dune vegetation seaward
of a dune protection line;
ii) cumulative and indirect effects of other activities on
dunes and dune vegetation located on the proposed
construction site;
iii) the pre-construction type, height, width, slope, volume,
and continuity of the dunes, the pre-construction
condition of the dunes, the type of dune vegetation,
and percent ofvegetative cover on the site;
iv) the local historical erosion rate as determined by the
University of Texas at Austin, Bureau of Economic
Geology, and whether the proposed construction may
alter dunes and dune vegetation in a manner that may
aggravate erosion;
v) all practicable alternatives to the proposed activity,
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proposed site, or proposed methods of construction;
vi) the applicant's mitigation plan for any unavoidable
adverse effects on dunes and dune vegetation and the
effectiveness, feasibility, and desirability of any
proposed dune reconstruction and revegetation;
vii) the impacts on the natural drainage patterns of the site
and adjacent property;
viii) any significant environmental features of the
potentially affected dunes and dune vegetation such as
their value and function as floral and faunal habitat or
any other benefits the dunes and dune vegetation
provide to other natural resources;
ix) wind and storm patterns including a history of wash
over patterns;
x) location of the site on the flood insurance rate map;
xi) success rates of dune stabilization projects in the area;
and
6) Any other information the Commissioners' Court considers useful, including
resource information made available to them by federal and state natural
resource entities. The Commissioners' Court may issue a permit only if it
fmds as a fact , after a full investigation, that the particular conduct proposed
will not have a net effect to materially weaken any dune or materially damage
dune vegetation or reduce the effectiveness of any dune as a means of
protection against erosion and high wind and water (with or without
mitigation). To find that there will be no such material weakening or
damage, the Commissioners' Court must find that:
5) Commissioners' Court will evaluate proposed projects to ensure that the
following consequences will not result from the proposed activities:
a) The activity will not result in the potential for increased flood damage
to the proposed construction site or adjacent property;
b) The activity will not result in runoff or drainage patterns that
aggravate erosion on or off the site;
c) The activity will not result in significant changes to the natural
permeability of a dune or its ability to transmit rainwater to the water
table;
d) The activity will not disturb unique flora or fauna or result in adverse
effects on dune complexes or dw1e vegetation; and
e) The activity will not significantly increase the potential for washovers
or blowouts to occur.
F. GENERAL CONSIDERATIONS FOR PROTECTED DUNE AREAS
To minimize unavoidable adverse effects as required by Subdivision 3.D. of this
'section, pennittees shall:
1. locate non-exempt pipelines across previously disturbed areas, such as
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