                                                                                          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.



                                         1
                                        /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.




                                          2
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,
                                 21
                                       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
                                           22
