Texas is the land of cattle and cowboys, where the buffalo roam free and ranch life is the life. But it’s also one of the fastest-growing states in the country, so it’s no wonder that county officials and residents have started to wonder just how long those ranches are going to last, and whether there’ll still be any space to strum on the guitar outdoors 20, 30, or 40 years down the line.

The urban sprawl fear increasingly heard in the state’s metropolitan areas of the one-big-suburbia isn’t all that unrealistic, especially in Fort Bend County. That’s why county officials there are taking the steps now to ensure that, even when suburbia does end up eating all the cattle, the “open space” and way of life Texas is known for won’t just be an old wives’ tale.

The Importance of Being Green Fort Bend County is the mini-me of Texas. Its population is somewhere around an estimated 500,000 and growing rapidly, due in large part to its proximity to Houston (the 500,000 is up from the 352,452 residents counted in the 2000 Census). Its municipalities range from larger suburban cities like Sugar Land (estimated population of 75,000+) to small rural towns like Needville, pop. 2,600.

In parts of Fort Bend, every sign a person sees while driving down the road is screaming about new homes for sale and new subdivisions in the works. The county just finished two new toll roads heading toward Houston, and road construction and widening seems to be as common a sight as stop lights.

In other parts of Fort Bend, a person can sit and wait 15 minutes mid-day for a car to drive by. Ranchland stretches on for miles and steer can be seen roaming free in the streets, though they usually stick to easements and pastures.

There are still more than 600 square miles of unincorporated land in the county. Many of the county’s current developments take place on “extraterritorial jurisdiction,” or ETJ, land, meaning that the nearby municipality has regulatory control over how a subdivision is developed and the county has final approval. Most of it is land that will eventually be annexed into the municipality, but until then, the county is in charge of providing services to the area.

The ETJ land in Fort Bend is popular. Since the late 70s, many of the developments in Fort Bend have been master-planned communities in which large developers with big pockets have bought large plots of land, several hundred acres worth, and designed living communities, complete with thousands of tightly-packed of homes ranging from middle class one-story and two-stories to upper class mini-mansions. The master-planned communities set aside space for the development of new elementary schools, restaurants, recreational centers and, in some cases, commercial retail centers and office space.

But development can happen outside a municipality’s sphere of influence, too. Fort Bend County Judge Bob Hebert remembers the day when he and Rosenberg Mayor Joe Gurecky went out for a field trip, a drive through the small town of Needville, situated just south of Richmond, the county seat.

The trip’s purpose was sight-seeing, or maybe blight seeing: it focused on housing developments just outside of Needville, developments that were outside of any local government’s jurisdiction. The developments Gurecky pointed out were ugly.

The developments are small – a dozen homesteads in an area, scattered haphazardly with no discernable pattern and no thought. Some of the homesteads have their own driveway, some share it with their neighbor, some are off a private, unkempt dirt road. Blue or white septic tanks clutter each yard, but when it rains, there is little actual drainage and water floods the yards. Each home has a yard, some more cluttered than the others, but there is no common, cared-for space to play, or any cared-for space at all.

Except for a community mail box at the corner, the developments look almost colonial, as if people walking by just sort of decided that a particular parcel was there and plopped a home down on top, then invited their family members to come and do the same, and no one noticed.

According to county officials though, what actually happened was a rogue developer or two came and bought large plats of land, but instead of developing all the land into a nice neighborhood or subdivision, he sold the one acre lots along the road and made sure he did the minimum work necessary to get the biggest bang for his buck.

“It’s just a piece of land that he just threw homes on, and nothing went into it,” said D’Neal Krisch, the county’s community relations manager, adding that there are low-cost developments and then there are no-cost developments. “Somebody could have made it look really nice. Somebody could have put some trees there, make it look decent. It wouldn’t have had to be expensive.”

Since the land was in unincorporated areas of the county, the developer had almost zero regulations to follow, and it shows.

“At the time when this was happening, we were helpless to stop it,” said James Wenzel, the chief of staff for Commissioner Tom Stavinoha, whose precinct covers the rural area where the developments were built.

“When I came into office, I understood that green space was a very important component to maintaining quality of life,” said the judge, recalling the drive around his county and adding that, before that drive, he hadn’t realized that preserving green space is just as important as having it in the first place. “I was very pleased with the development that we had had to date in Fort Bend County. … after that trip, I realized we had a potential issue.”

So Hebert formed a committee, made up of contractors, developers, builders, residents, municipality representatives and county residents.

He began by first asking the members if green space was important to Fort Bend County residents. They unanimously answered in the affirmative.

“Green space is very important to the high quality of life that we all strive for,” said Lynn Humphries, a member of the committee who said nobody present at the meetings voiced dissent over developing green space regulations. “Up until more recently, we have been an agricultural county. We’re growing so fast that we knew preserving green space was important.”

The committee focused most of its attention on the question of “how to preserve green space and balance the regulations so they’re not onerous,” she added. “We did not want any legal challenges.”

Members looked at the existing regulations from each of the county’s towns and cities before settling on their own recommendations, which included:

• Requiring developers set aside ¼ acre of green space for every 100 lots;
• Stipulating that if a development has more than 100 lots, the green space areas can be separate or together, but each must be no smaller than ¼ acre and must be at least 20 feet wide;
• If a development has less than 100 lots, the amount of green space preserved must still be ¼ acre, unless the lots themselves are larger than one acre;
• Counting pipeline and detention easements as green space if they include a 4-foot wide surfaced walking trail;
• Not accepting a fee in lieu of green space dedication;
• Dedicating 10 feet of right-of-way land in developments along major thoroughfares as landscape preserves;
• Planting two trees along roadsides for every 100 feet of major thoroughfare platted;
• Placing restrictions on driveways, such as not allowing residential lots to have direct access to major thoroughfares, unless the lots meet certain size specifications; and
• Requiring the green space be maintained by an entity established for the subdivision, such as a homeowners association.

“Not only is it important to preserve some green space… it is important to have in mind a plan for the maintenance of the green space,” Humphries said. “What you don’t want is a bunch of pockets of property that are unkempt or not mowed or result in dangerous conditions for the people.”

The committee also recommended not putting stipulations on what the green space should look like. It can be a soccer field, a picnic area, a gazebo, a wooded walking trail, a pond, bike paths, a kids’ park, or whatever else a developer dreams up.
The master-planned communities all go above and beyond the green space regulations. Many come with a couple of each of those various possibilities, plus other types of parks: parks with fancy sprinkler systems for kids to play in during the hot summer days; open fields with abstract art structures just for fun; fishing ponds and lakes for canoeing. But the point of the regulations isn’t to make all developments as high-end as the master planned communities; it is to take some of that care and thought and put it into all developments.

“Every neighborhood ought to have a common space where the public can gather outside,” Humphries said.

So far, the regulations haven’t met any legal challenges, or hardly any dissent at all.“I’ve had a couple developers tell me that this will have an impact on low-cost housing,” Judge Hebert said. “But I don’t think folks that need low-cost housing should be relegated to living in a slum. One quarter acre, this isn’t an insurmountable contribution. These aren’t major undertakings. The folks that were griping to me were the folks that wanted to build these future slums. … I do not believe that this ordinance has any impact on legitimate low-cost housing projects, none whatsoever. I think it does make it difficult for people who want to take advantage of low-income housing families.”

Tom Wilcox, a Fort Bend-area developer who chaired the subcommittee that drafted the ordinance, said he believes the green space requirements will work, in that they will benefit residents without harming developers.

“I think the impact on developers is minimal,” Wilcox said. “But I think there is no question that there will be a visual impact to the great benefit of the people of Fort Bend County. You’ll come back to a spot 20 years later and see a massive oak tree that just happened to be planted by a developer as a little three-inch tree 20 years before, and that’s where your impact really is, not today, but 20 years from today.”

The green space dedication requirement has only been in place since 2004. So far, the county has preserved 55 acres of green space, though Hebert said he couldn’t say how much of that was from the ordinance and how much was just from developers doing a good job.

“It’s hard to measure this early on if there has really been a boost. We’ve had a few smaller developments get started that we do think had more green space saved as a part of the ordinance,” Hebert said.

How to Stay Green

In order to require that developers set aside green space, Fort Bend County first had to determine that counties had the statutory authority to do so. It found that authority in Chapter 232 of the Local Government Code, also known as SB 873 during the 2001 Legislative Session. The bill gave some counties the ability to adopt certain subdivision regulations, including some regarding platting, lot size, setback limitations, major thoroughfare plans and right of way regulations.

The bill includes language known as “police powers,” which states that “the commissioners court may adopt rules governing plats and subdivisions of land within the unincorporated area of the county to promote the health, safety, morals or general welfare of the county and the safe, orderly and healthful development of the unincorporated area of the county” so long as the county is not regulating the use, height, number or size of buildings located on a parcel of land.

“That’s really broad language,” said Paul Sugg, a legislative liaison with the Texas Association of Counties who tracks legislation regarding subdivision regulations.

“Most counties are cautious in aggressively interpreting the law, believing it could result in a lawsuit or court challenge if counties require developers to set aside land for green space in a way where the requirement becomes a land use issue,” he added.
But Fort Bend officials believe that aggressively interpreting the law was the right decision for their residents. They also believe the requirement would hold up in court. Those involved in the process point out the green space regulations are nowhere near those required by cities in the area, and still provide “maximum flexibility” to developers, according to its Best Practices application.

“The committee adopted the position that the county could utilize a section of the law to require developers to incorporate green space within new developments to promote the health, safety, morals or general welfare of the county and the safe, orderly, and healthful development of the unincorporated area of the county,” the application states.

Community support for the county’s green space requirements is high, and the impact has been minimal, since the county is geographically situated in an area that attracts high-end developers who happily go above and beyond such regulations anyway.
But other counties may not have the same support Fort Bend has had from its developers and other impacted parties.

The statute resulting from SB 873 applies to counties that have a population of 700,000 or more or are adjacent to such a county and are within the same metropolitan area, as well as counties that are adjacent to the Mexican border and have more than 150,000 residents.

Counties that fit those constraints include Atascosa, Bandera, Bastrop, Bexar, Brazoria, Caldwell, Cameron, Chambers, Collin, Comal, Dallas, Denton, El Paso, Ellis, Fort Bend, Galveston, Guadalupe, Harris, Hays, Hidalgo, Hunt, Johnson, Kaufman, Kendall, Liberty, Medina, Montgomery, Parker, Rockwall, Tarrant, Travis, Waller, Webb, Williamson, Wilson and Wise, according to Tim Brown, of the County Information Project.

But many of those counties have not yet taken advantage of any newfound authority to regulate green space, according to groups whose interests focus in part on green space preservation.

When the bill was passed, members of the Senate had expressed concern that the statute would be a slippery slope toward zoning authority and for counties becoming more like cities.

“So what we are attempting to do is allow the county commissioners court basically the authority that cities have right now? Is that a good idea?” asked Sen. Royce West during the bill’s first public hearing in front of the Intergovernmental Relations Committee, back in 2001.

The question was met by a chorus of “no’s,” but it was also met by a long list of both city and county officials who argued that they weren’t asking for zoning authority and that giving counties authority to regulate platting was necessary for proper development and growth.

“My concern is that growth is happening unabated,” Comal County Commissioner Jay Millikin told the committee. At the time, Millikin testified that the county had 8,500 lots under development and that those developments weren’t being regulated to meet residents’ needs. “I think people are moving there because we have something to offer that the City of San Antonio doesn’t have, that’s why the City of San Antonio is encroaching our way. We have properties in the Hill Country which are three to four to five acres, which you cannot find in the city of San Antonio, at least that most of us can afford, and that’s why you are seeing growth toward us. … But we don’t have any way to prudently manage that.”

“The phone calls I get are not, you know, we moved to the county because we wanted to be out there with our 10 or 15 or 20 acres, etc, etc, ours is developing in pocket subdivisions of 80, 100, 120 acres of houses that are on 50 by 100 lots. And what that means is that people are calling us and saying is, ‘Why don’t we have better protection? Why aren’t you taking care of these problems that we are having out here, don’t you have the power to do that?’ And the answer is, ‘No, we don’t have the power. Your city that you moved from did, but we don’t have it.’ And as a result of that, guess what, we can’t service our population,” added Brazoria County Commissioner Jack Harris, a former House member himself. He said that, as a legislator, “I didn’t realize what I was doing to the counties. We had limited county power to the point, and I shouldn’t say power, the counties’ abilities to answer the questions that our people need to have answered, and it becomes a little embarrassing, to say the least.”

When asked by Sen. Jon Lindsay, who sponsored the bill, why counties hadn’t been given the authority in the past and why such regulatory authority over development had only been given to the cities until then, Conference of Urban Counties Executive Director Don Lee answered that growth is now happening in counties more and more, and that the time had come to give counties more authority.

“County officials started getting more and more growth that the cities were not incorporating. You’ve given the cities this authority to get the infrastructure in place up front,” Lee said, adding that not extending that authority to counties “creates an imbalance and in some cases an incentive” for developers to put subdivisions where they shouldn’t be, and to develop them incorrectly.

Lindsay then asked if giving counties regulatory abilities over subdivisions was a “radical departure” from previous law.

“Not extending the authority that you’ve always applied to development as it expands is a departure from what you’ve done in the past,” Lee replied.

In the present day, Fort Bend officials say it’s not their intention to zone land or tell developers how they must use their land. The purpose of the green space requirements isn’t to place a difficult requirement on subdivision developers, but to keep developers from taking advantage of the lack of regulation in the county and creating poor developments that they then run away from.

“We wanted to make sure that we weren’t requiring anything more than what the cities were requiring and we wanted to make sure we weren’t placing additional burdens on the developers or county for making those requirements,” Wilcox said.
For counties who want to continue exercising caution, there are alternative methods to preserving green space. A 2006 report by the Lady Bird Johnson Wildflower center titled “Conservation Development in Texas” urges counties to interpret the statute broadly, but also promotes other green space preservation methods.

One such method is being used in Travis County, where officials and members of a special committee spent several years creating a green space ordinance, which was finally approved in December. The ordinance promotes the use of conservation development agreements, in which counties and developers agree to “allow for greater flexibility and creativity in the design of developments” and “encourage a more efficient form of development that consumes less open land and conforms to existing topography and natural features better than a conventional subdivision.”

“Some people think you can do more than other people think you can do, so we really tried to stay away from the gray matter. … Senate Bill 873 gave you a few tools to use if you want to be aggressive and use them. It’s not something that we took a real aggressive approach on,” Travis County Commissioner Gerald Daugherty said about the statute, adding that, down the line, the county may choose to take a more aggressive approach to green space and platting regulations. “I think we will have to always look at our conservation development ordinance, especially if we don’t get any takers. If we don’t get any takers, why have it? There’s a fine line somewhere there as to what you’re asking developers to give, and what you’re telling them to give.”

Under the Travis County ordinance, a conservation development is one in which 50 percent of the property’s acreage is part of a single contiguous land area that is at least 10 acres in size, among other characteristics. The open land can include rural character buffer areas, parkland, some waste water disposal areas and undisturbed land. The developed land is generally much more dense than it is in traditional subdivisions. The county is also enacting a pilot incentives program for those developers who agree to build a conservation development. The incentives could include:

• Waivers of development permit fees, including the preliminary plan application fee, the long form plat application fee, the short form plat application fee, the driveway in right-of-way permit fee, and the construction plan review and inspection fees;
• Free assistance with the application process;
• Annual payments from the counties to the developers, based on how much land in the development has an agricultural or wildlife valuation, or a lump sum payment for each acre of conservation space;
• Reimbursements of the costs and fees associated with the ecological assessment of a development;
• Exemption from the county’s requirement that developers dedicate parkland or pay a fee in lieu of the dedicated land; and
• Pre-approved marketing statements for the development advertising said developments as “Travis County Approved.”

“The conservation development ordinance is really permissive, we are asking them if they will do it and we are trying to give them a big enough carrot to develop something that way,” Daugherty said. “But it’s not like we have a hammer.”