Task Force Seeks Clarity, Consistency
Since January 2007, Webb County has provided water to more than 10 colonias including the delivery of first-time water systems in some locations.
“We have taken all possible measures to better the quality of life for the constituents of these socioeconomically challenged areas,” said Webb County Judge Danny Valdez. One of these measures taken by Valdez was a call for uniformity and fairness in the subdivision-related statutes governing border counties such as Webb and a level playing field when it comes to related funding.
“My county commissioners court came to me and asked me to help them clarify the law,” said Rep. Richard Raymond, D-Laredo. “Essentially, what they are experiencing is tension in the provisions.”
At the prompting of the Webb County Commissioners Court, Raymond authored House Bill 2275 which created the Task Force on Uniform Subdivision Regulation (Task Force) to develop uniform standards for subdivisions in the unincorporated areas of counties near the international border and in economically distressed counties.
The statute, effective June 19, 2009, called for a 23-member Task Force including a representative from the County Judges and Commissioners Association of Texas (CJCAT). Hays County Commissioner Debbie Gonzales Ingalsbe, CJCAT second vice president, accepted the appointment and attended the first Task Force meeting in mid-November.
Muddying the Waters
Originally, the same laws applied whether subdivisions were located along the border or beyond the border. Since 1989, the Legislature has enacted several statutes regulating subdivisions in border and economically distressed counties. In 1995, the 74th Legislature passed additional provisions that tightened restrictions along the border, only.
Under current law, counties with subdivisions along the border and economically distressed counties operate under separate subchapters of Chapter 232 of the Texas Local Government Code, said Rhonda Tiffin, co-chairman of the Task Force and planning director for Webb County.
v Border counties are regulated under Subchapter B, “SUBDIVISION PLATTING REQUIREMENTS IN COUNTY NEAR INTERNATIONAL BORDER,” which applies only to a county in which any part is located within 50 miles of an international border.
v Economically distressed counties are regulated under Subchapter C, “SUBDIVISION PLATTING REQUIREMENTS IN CERTAIN ECONOMICALLY DISTRESSED COUNTIES,” which applies to counties eligible for funding under the Economically Distressed Areas Program (EDAP) but not within 50 miles of the border. EDAP, administered by the Texas Water Development Board (TWDB), was established in 1989 by the 71st Texas Legislature and provides grants, loans, or a combination grant/loan when requirements are met for water and wastewater services in economically distressed areas.
In addition to the legislation, various funding programs such as EDAP have been created to address inadequate water and wastewater facilities, drainage, and housing to bring existing subdivisions and/or colonias into compliance with model rules and current platting laws. Counties that seek funding assistance under these programs are required to adopt and enforce regulations, specifically the Model Subdivision Regulations (MSRs), regardless of their location.
MSRs were initiated by the Texas Legislature in 1989 and established by the TWDB in 1990 to help control the proliferation of developments with substandard water supply and sewer services. MSRs must be adopted and enforced by: (1) any county adjacent to the Texas-Mexico border; (2) any county or city that seeks assistance through EDAP; and (3) by any county in which a city, district, authority, or water supply corporation seeks EDAP assistance.
The MSRs have been revised and/or modified a few times since 1990; the current MSRs have an effective date of Feb, 10, 2004. (See MSR FAQs, Page ?)
Taken as separate items – Subchapter B, Subchapter C and the MSRs – these rules and regulations aren’t necessarily problematic. But mesh them together, and two key issues rise to the surface.
A Level Playing Field
The first problem pertains to funding. If counties do not address the rules and regulations of the Local Government Code, they may not meet the criteria of the MSRs, which is necessary to qualify for funding programs, Tiffin said. However, Subchapter B places stricter requirements on border counties, making mandates that are not imposed on economically distressed counties beyond the border who are vying for the same infrastructure funding as the border counties.
“If we are all going to be competing for the same dollars, we should all be held to the same standards,” Tiffin maintained.
For example, Subchapter B includes criminal provisions, replatting requirements and advertising differences which pertain to border counties; Subchapter C does not impose these requirements on economically distressed counties outside the border area.
In addition, in border counties property cannot be sold or resold until water and sewer are in place, a rule that does not apply to the distressed counties in Subchapter C, Tiffin said. Finally, regulations in “B” counties apply to both the sale and lease of land for residential purposes, where as in “C” counties the rules apply only to the sale.
“It is more difficult for border counties to stay eligible for funding, as they are subject to stricter enforcement,” she continued.
One of the primary functions of the Task Force is to examine these differences, address any inequalities, and report back to the Legislature, Raymond said.
This or That?
In a few instances, the MSRs appear to conflict with the Local Government Code, Tiffin said, prompting the question, “Which do I follow?”
“My funding that I need to preserve in Webb County is directly related to the requirements of the Texas Water Code, which developed the MSRs,” Tiffin stressed. The MSRs don’t conflict with water and sewer issues in Chapter 232, but plat requirements are seemingly a different story. For example, in the Local Government Code a developer can ask for a delay or variance on pre-1989 subdivisions. However, according to the MSRs the developer is automatically barred from any type of variance.
“If you’re going to put it in two places, then the language needs to mirror,” she said.
Ambiguity is also a problem, according to Tiffin. For example, both the Texas Water Code and MSRs refer to one-dwelling-per-lot limitations; however, Subchapters B and C do not impose this limitation.
“There are simply too many areas that don’t mesh,” Tiffin maintained.
Erich Morales, assistant county attorney in El Paso County and Task Force co-chairman, said the issue isn’t a matter of direct conflict but rather inconsistency that has developed as changes have been made over time.
“I compare it to children who grow out of their clothes…we need to get them some new ones,” he said.
Morales, who helped draft language in both Chapter 232 of the Local Government Code and the MSRs, characterized the MSRs as a “strong hammer” originally designed to get everyone on the same page.
“The MSRs should not be weakened; rather the Task Force should refine the Local Government Code to ensure consistency while maintaining the strong minimum standards,” Morales said.
Task Force Initiative
During the inaugural Task Force meeting conducted in Austin in mid-November, team members reviewed the Task Force charge set out in the statute:
research and identify the conflicts and deficiencies in current law regarding the regulation of the development of subdivisions in the unincorporated areas of counties near the international border and in economically distressed counties;
develop recommendations and draft a proposal for legislation to create uniform standards for the regulation of the development of subdivisions in the unincorporated areas of counties near the international border and in economically distressed counties; and
submit findings, recommendations and proposals for legislation to the standing committees of the Senate and House of Representatives having primary jurisdiction over border regions or county affairs by Dec. 1, 2010.
State laws and regulations that require the installation of adequate water and sewer services in residential subdivisions are not only vital to the health and well-being of the residents they serve, but are an essential tool in preventing the creation of new substandard developments and the safeguard of tax-supported programs, Tiffin said.
“By no means is the Task Force seeking to diminish any of these safeguards but rather to provide recommendations for uniformity and consistency in their application,” she continued.
Following the first meeting, Ingalsbe said she was initially surprised to learn that counties were still struggling with low-level conditions that characterized the colonias of the early- to mid-1990s, but is confident that the Task Force can help develop rules to address the issue.
“I think we have a group of people who are very dedicated to dealing with this problem,” Ingalsbe concluded.
Former CJCAT President Mark Evans, Trinity County judge, was appointed to the Task Force as a representative of a Subchapter C county. Trinity County adopted the MSRs several years ago in order to attain grant eligibility.
“What I want to come out of here with is a much more in-depth understanding of the subdivision regulations as they are now and how they affect Texas counties.”
Both Ingalsbe and Evans said that, while the scope of the Task Force is limited, they believe the team can work together to create recommendations to benefit counties statewide.
“Membership on the Task Force was increased to include a broader representation of the state…with the potential for statewide applicability,” Tiffin said.
As of press time, the next Task Force meeting was tentatively set for Jan. 13 in Austin.
As a representative of the CJCAT, Ingalsbe encouraged fellow officials to contact her with their comments and suggestions at debbiei@co.hays.tx.us.
By Julie Anderson