Cities in Texas May No Longer Restrict Building Materials Approved in International Codes
Most Texas cities have a sort of visual harmony when it comes to either the community as a whole, or specific neighborhoods within the city. This is because most Texas cities have ordinances regulating the construction of residential and commercial buildings. These ordinances are typically aimed at providing safety for citizens by requiring high-quality building materials or specific construction methods.
Many cities also regulate building materials specifically to provide aesthetic contiguity in certain areas. After all, a log cabin in the middle of a neighborhood full of brick houses would stick out like a sore thumb. Building and zoning ordinances help to ensure property values by keeping neighborhoods looking harmonious. Under Texas House Bill 2439, however, all such ordinances will be void as of September 1, 2019. In fact, if a city continues to enforce any such ordinance, rule or regulation; they can be sued.
Governor Abbott signed House Bill 2439 in June of this year, as we’ve touched on before in a blog about the 86th Texas Legislature hampering aspects of local control. Under the new bill, cities are prohibited from passing or enforcing any type of rules or regulations which:
(1)prohibits or limits, directly or indirectly, the use or installation of a building product or material in the construction, renovation, maintenance, or other alteration of a residential or commercial building if the building product or material is approved for use by a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building; or
(2) establishes a standard for a building product, material, or aesthetic method in construction, renovation, maintenance, or other alteration of a residential or commercial building if the standard is more stringent than a standard for the product, material, or aesthetic method under a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building…
In other words, if a product, building material, or aesthetic method is approved in the International Codes, cities can’t prevent it from being used in their communities. What’s more, cities cannot require that buildings are constructed with higher-quality materials than those approved in the International Codes. The International Codes certainly provide some level of product safety and building standards, but they are uniform internationally. The purpose of the International Codes is not to address the specific needs of different geographical or climate regions, much less the individual needs of particular cities. As of September 1, property owners can build a house on their property constructed with any material approved by the International Codes. During a House sub-committee hearing on the new bill, one public speaker brought up the fact that there is an International Code which allows for the construction of hay-bale houses. Under HB 2439, if a building material is allowed in a national code, cities have no power to prohibit its use. It’s worth noting that the bill does have some narrow exceptions related to dark skies ordinances and historical districts; but generally speaking, cities have been stripped of all authority to regulate building materials and aesthetics for both residential and commercial buildings. The new legislation also waives governmental immunity and allows for a city to be sued over new regulations or the enforcement of existing regulations which conflict with the new state law.
So is there any way to regulate the aesthetics of homes and businesses within a city? HB 2439 does not pre-empt the authority of a homeowners’ association or planned developments to regulate aesthetics. If a developer or an HOA want to use deed restrictions to keep neighborhoods looking neat and consistent, they may still do so. However, it is unlikely that a city has any authority to directly enforce any deed restrictions. Further, cities are prohibited from enforcing any regulations that “directly or indirectly” limit the use of building materials approved by the International Codes. For example: A city has an ordinance which requires a homeowner to be in compliance with all deed restrictions before the city will issue a building permit. The homeowner’s property has a deed restriction which requires the house be constructed with a brick exterior. The city’s ordinance would probably be in conflict with the new legislation since the city’s regulation is indirectly requiring that the house be constructed with a brick exterior.
The new law significantly limits a city’s ability to regulate zoning and building requirements. Compounding the problem is the fact that the legislature has waived governmental immunity for cities to the extent necessary to enforce the new legislation. In fact, if the Attorney General successfully sues a city to enforce the new legislation, the city can be forced to pay the AG’s reasonable attorney’s fees related to the suit. Under the new law, cities are left with little choice, but to go through their ordinances and other regulations, line by line to repeal any regulations that conflict with HB 2439. For many cities, this will be an extremely cumbersome process, but the alternative is facing a lawsuit when someone inevitably wants to build a home that comports with the International Codes but conflicts with the city’s regulations.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.