Texas Legislature Tightens State Reins over Local Control
As Daenerys rode the dragon Drogon and sacked King’s Landing in Game of Thrones, I was reminded of the just closed 86th Texas legislative session and its effect on local control. “Local control” is the notion that the better form of government is the government closest to the people because it is more responsive and better than government further away. Thus, a city council or county commissioner court is better than the state government and the state government is better than the federal government. If this notion is true, then it’s an inconvenient truth best ignored because local government lost most bills passed by the Texas Legislature. As one legislator bluntly put it, “you reap what you sew.”
While we all wait on Governor Abbott to sign or veto bills before him, he has already signed several bills causing ripples throughout local governments. Bills usually state when they become effective. Most become effective on September 1st of odd years in which they were passed. The 2017 annexation statute didn’t become effective until December 1st. This year’s annexation ordinance became effective immediately.
Annexations were originally unregulated until reined in by the 1964 Municipal Annexation Act. Between then and 2017, there was tinkering around the edges. That is, unless Houston or Dallas annexed a large subdivision; then there were assaults to further restrain cities. Houston, or more specifically Mayor Lanier, beat back one such assault by supporting a House representative who happened to be on the Calendars Committee and bottled up the bill. In 2017, the Legislature ended annexations as we knew it by creating a two-tiered system and requiring petitions and elections before so-called Tier 2 cities could annex. (Tier 2 cities are those located in counties with populations greater than 500,000). The 2019 session then finished off this annexation model by eliminating the artificial designation and making all cities follow the Tier 2 rules requiring consent.
Another bill now signed and effective is one prohibiting permit fees based on value for residences. Because it became effective immediately, cities have been caught off guard if their permit structure is based on value. In Houston, CenterPoint, the electrical utility delivery company classifies the mansions built in the Memorial Villages as small hotels since they draw so much power. Logic would infer that a small hotel is more complicated to inspect and permit than a tract home. What is a city to do? Some have moved to a simple square footage calculation; the more square footage, the more the permit. Others have repealed the fee setting ordinance and for a 90-day period let staff calculate a permit fee. Some are taking a flat fee approach based on an aggregate value from a prior time period.
Effective September 1st, local governments can no longer regulate building material if such material is approved for use by a national model code. Are cedar shakes now allowed on roofs? Are architectural zoning standards now illegal? There is an acorn-shaped house on Galveston Island made out of sheet metal plates. Will that drive up your home value? As one commentator said, “As a residential general contractor with over 30 years in business, I believe local experience and the judgment of local building officials and city councils should be able to require or prohibit use of materials that have proven to be problematic under local conditions. National codes are a good general framework, but they cannot be all things to all communities. Local conditions in the Texas Gulf Coast areas are quite different from those in West Texas and a ‘one-size-fits-all’ approach, which this bill dictates, is not appropriate.”
So now, cities need to work in the reality in which they find themselves, but also try to find their champion to wrest control back down to the local level. All hail, Bran the Broken.
If you want to see what bills are on the governor’s desk, click here.
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.