Broad language could have broad impact on future of suburbs
By Maria Sprow

For nearly 20 years, Hays County Commissioner Jeff Barton and other county officials from rural and mid-sized counties have patiently and impatiently waited for the moment during the last legislative session when all commissioners courts were granted the authority through Senate Bill 1867 to regulate subdivisions according to 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 moment was slightly unexpected, sort of like when Mom and Dad hand over the family car to the youngest child having just turned 16. The “health, safety, morals or general welfare” language is a hand-me-down that has applied to Texas cities almost since “subdivision regulation” first began; the Legislature has been slowly extending it to counties. With the passing of SB 1867, rural and mid-sized counties joined their counterparts from along the border and urban areas, which have had access to the broad language for at least the last five years, ever since SB 873 passed during the 2001 legislative session.

But many urban and border counties — including Hays — have yet to explore the wide possibility of regulatory allowances granted by SB 873 over fear that legislators and lawyers may have set a trap designed to take the planning vehicle back.

Barton spent years petitioning the Legislature and building media support for giving counties subdivision regulation capabilities because his county was seeing poor colonias-type developments move in that were creating water and sewage problems for the county. “We rented a bus on one occasion (in the early 90s) and took legislative aides out on a tour of my precinct so that they could see first-hand what poor colonias development was like, what problems could be created by the absence of regulations, the cost,” said Barton, a land use and planning consultant for the engineering and planning firm Doucet and Associates.

At the time, the rights of property owners were attracting a lot of attention in the Legislature because of a campaign by a group known as “Take Back Texas.”

“The Take Back Texas effort was really big and there was this feeling in some areas and groups that we really didn’t need (regulatory authority). We had to go out and show people first-hand what happens if the marketplace is completely unrestrained,” Barton said. “I mean, I believe in capitalism and a free marketplace, but without any government oversight, sometimes you get unscrupulous developers who come in.”

Even as legislative support tentatively grew, other factors — fear of getting sued and courts ruling in developers’ favor — made officials nervous.

“Relatively few urban counties have used this broad-language authority to its fullest. It came through in 2001, but everyone was trying to understand what it meant, and then in 2003, it was up for review and people were afraid it would go away so they didn’t do anything with it. But it didn’t go away,” Barton said.

With the passage of SB 1867, Barton said he expects more counties will finally take the language for a spin — cautiously. Just recently, Hays County formed a citizens committee to develop regulations based on the broad language, which are expected to be adopted within the next three or four months.

The Owners Manual

Prior to the passage of SB 1867, most counties only had limited kinds of authority to plan how their unincorporated areas developed, such as the ability to set aside special zones for airports and junkyards and to implement specific regulations regarding utility connections, minimum lot frontage size, stormwater and drainage planning, erosion and sedimentation control, right of ways, setbacks and major thoroughfares.

Senate Bill 1867 clarified and expanded most of those authorities, and then applied deliberately broad language to the county’s general capacity to influence subdivision development.

The language is so broad that it’s difficult to interpret what exactly it means without reviewing past legislative hearings, city actions and general testing of the waters. “Health, safety, morals and general welfare” and “safe, orderly and healthful development” could feasibly apply to almost anything.

“It’s a little bit of a guessing game,” Barton admitted. “I think it leaves us a good deal of room to maneuver.” Counties wanting to explore the language do have sources to around the state to try and gauge the various ways they have used similar broad language to regulate subdivisions.

Taking answers from that poll, Doucet analyzed that “bold” counties could use the language for a wide variety of possibilities resulting in well-planned future growth, including site development, stormwater detention, requiring reviews of subdivision grading plans, water quality filtration and sedimentation, impervious cover, tree protection, parkland dedication (or requiring payment of fees to finance county park development), sign controls, landscaping, setbacks to protect critical environmental features, fire codes and hazardous roadway glare lighting.

Of course, just because counties have the ability to police development or place requirements on something doesn’t mean it is necessary for the area.

“The authority is not explicit and may not be crystal clear. So it depends on the situation in your county: How big an issue is subdivision regulation, what kind of growth are you seeing, what is your risk tolerance?” said Duane Hutson, Doucet’s Planning Department Manager in a note regarding the firm’s analysis.

He added that there are certain kinds of subdivision regulations counties are still prohibited from implementing and that counties should not attempt to push the language’s reaches too far. Counties should not attempt to oversee the bulk, height, number, use or size of buildings in a development, nor can they set a maximum number of residential units per acre outside of what is authorized by other statutes, and they also should not attempt to require any type of developed floor area to overall lot square footage ratio. The Doucet report categorized those authorities as “beyond-the-pale” and “don’tgo- there” territories.

“These are issues either specifically prohibited by the Legislature or that were discussed and cut from the bill in committee, or simply are a little too bold for Texas counties to implement,” Hutson said. The analysis, which is not intended to be legal advice, can be obtained by contacting the firm via its Web site at www.doucetandassociates. com.

Shifting into gear

The most important message counties can take away from the language is that counties do have the tools to regulate certain aspects of subdivisions, and they can update or create subdivision regulations accordingly, said Medina County Judge James Barden, whose county lies on the outskirts of San Antonio and has had the broad language at its disposal since 2001.

“If a county is facing any sort of development and growth, they need to look around at other counties who have been through that and do some plagiarizing of their subdivision rules,” Barden said. “If you don’t get ahead of the growth, you’re trying to play catch-up.” In 2004, Medina County formed a citizens committee and began working with Barton’s firm to create a workable set of subdivision regulations to allow the county to adequately deal with development-related issues, such as water quality and supply. According to the Doucet Web site, the regulations include a matrix for providing minimum lot sizes in relation to water supply and location — for instance, the matrix requires bigger lots near the Edwards Aquifer Recharge Zone — as well as incentives for green space preservation. The regulations require developers to provide water storage facilities for area fire departments.

“We have assumed a lot of flexibility and a lot of empowerment allowed to us under that particular act and we haven’t been challenged yet,” Barden said.

Part of Medina County’s interest in having updated subdivision regulations came from the realization that, at any time, a developer could come in and build in the county, and build big. While some perceive that development is the result of slow urban sprawl that extends farther and farther out into the country, some developers are now basically building city-sized developments — master-planned communities like The Woodlands north of Houston — in unincorporated areas of Texas. While most master-planned community developers have solid reputations for carefully planning and engineering their communities, having 3,500 new homes plop down from nowhere riles some feathers and opens the notion that such development is coming to rural areas and could create havoc if there’s no one around to regulate it.

Several other counties, including Fort Bend, Travis and San Jacinto, have also implemented similar incentives or rules based on the “health, safety, morals and general welfare” language, but many areas of the state do not yet have the need or desire to utilize its broad interpretations.

Barden said he believes the next step is for counties to be able to one day collect impact fees for developments — which Doucet’s analysis concluded is currently a “beyond-the-pale” and “don’t-gothere” territory for counties — and the ability to mimic cities’ power to implement building codes and building inspections. Counties also do not have zoning authority, but no county association has asked to take those on and many elected officials have stated it is not a power they want