Gated Communities, Private Roads and Public Services: a Practical Guide
A general law city has exclusive control over its city streets, and private citizens cannot restrict access to public roads; therefore, all roads in a gated community must be private roads. The city can sell public streets to private interests by following certain procedures. Once the roads are private, however, the city cannot enforce traffic laws in the gated community, nor can it use public funds for any private purpose, such as road maintenance, trash collection, etc.
A general law city must maintain the public streets within its boundaries and has exclusive control over the highways, streets, and alleys of the municipality. It is specifically authorized to abate or remove an obstruction on its streets. Private citizens may not block access to a public county road by the installation of a locked gate; therefore, to have a gated community that restricts access to the public, all streets in the community would necessarily need to be private.
But if the subdivision has previously been platted, then all streets would have been dedicated to the city, so the city would need to convey the streets to the private landowners of the community (or the private property owner’s association created to manage the gated community).
A general law or home rule city may by ordinance vacate, abandon, or close a city street in response to a petition signed by all property owners abutting the street; however, the city may retain ownership of the street. The more usual practice would be for the city to sell the street, either at fair market value or to abutting property owners. This process is governed by Chapter 272 of the Texas Local Government Code and is beyond the scope of this article.
Once the roads become private, the city’s duties and powers with respect to the streets change dramatically. Cities may not enforce state or local traffic laws on privately-owned streets within their boundaries. In addition, Article III, Section 52 and Article XI, Section 3 of Texas Constitution prevent any city from lending credit, granting public money, or making any appropriation or donation to any private entity. In other words, cities may not spend public money for a private purpose and would therefore be prohibited from performing public services in the gated community, such as road maintenance, trash collection, etc. Ex parte Conger, 357 S.W.2d 740 (Tex. 1962); see also Tex. Op. Att’y Gen. DM-13 (1991).
There are a couple of exceptions to these rules. Most notably, on petition of at least 25 percent of the property owners in a private subdivision or on the request of the private subdivision’s homeowner’s association, a city may extend some or all of its traffic rules into the private subdivision, in which case the private roads would be considered public for purposes of the traffic rules. The city would charge the landowners or association a fee for providing these services.
With regard to law enforcement, the Texas Penal Code defines a “public place” as any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops. In Woodruff v. State, 899 S.W.2d 443, 445-46 (Tex. App.–Austin 1995, no pet.), the defendant was arrested for driving while intoxicated on the grounds of Bergstrom Air Force Base. The court held that Bergstrom was a public place, even though it was fenced and the only entrance was through a guarded access gate. Is a gated community a place where a “substantial group of the public” has access? The answer is unclear. Some city police departments may adopt a policy to respond to certain types of calls from gated communities, but not others. Again, the problem involves the provision of public funds for private purposes, which is prohibited by the Constitution and state law.
Although Chapter 352 of the Texas Local Government Code, which deals with county fire protection, does not apply to municipalities, it could be instructive for a city wishing to adopt rules and regulations for gated communities. A county has the authority to regulate vehicular or pedestrian gates in a gated community “to assure reasonable access for fire-fighting vehicles and equipment, emergency medical services vehicles, and law enforcement officers.” A county may require a lockbox near and within sight of the gate that can be opened manually. The county may require an approved gate-operating device that will activate the gate on the sound of an emergency siren. The county may require at least one vehicular gate be wide enough for emergency vehicles and at least one entrance from the public right of way that is free of impeding obstacles. The county may require each residential building in a gated community to have proper building identification that can be seen by emergency responders.
As you can see, gated communities create numerous legal and practical issues for both private landowners and cities.