Waller County Judge Trey Duhon explained on Facebook yesterday the reasons why counties can’t regulate the explosive growth reshaping Texas communities like Canyon Lake and New Braunfels.
Facing a public hearing Thursday on proposed revisions to Comal County’s subdivision regulations, Comal County Precinct 4 Commissioner Jen Crownover reshared Duhon’s post to her Facebook page, calling it a “very well-stated explanation about county authority.”
With developers poised to bulldoze scenic land to build hundreds of tract homes on small lots on the north side of Canyon Lake and in Fischer, Crownover is feeling the heat from angry constituents.
Duhon says that’s unfair.
Counties can only regulate what the Texas legislature allows, “which isn’t much.”
He explains why in his Facebook post:
“I recently received a DM on Facebook from a resident inquiring about starting a petition against a new development because they are concerned that it’s going to affect electricity, roads, and flooding.
“This raises a very good topic for discussion, especially in light of current hot-button topics such as data centers, battery-energy storage facilities, solar farms, etc.
“Especially in light of recent events in the news, in early May, Hill County (Hillsboro area) passed a one-year moratorium on the construction of data centers in Hill County.
“A few weeks later, the developer filed a $100 million lawsuit against the county that it exceeded its authority in doing so.
“A few days ago, the Hill County Commissioners Court voted 3-2 to rescind the moratorium.
“This did not come as a surprise to many of us that serve as county officials, as we are very familiar with the limitations placed on our authority in areas such as this, and that by taking action when you don’t have legal authority can expose the county to liability, which can be substantial in these kinds of cases.
“As I explained to the resident who sent me the DM, before you do so, I would want you to understand the framework that you are working with, as I would not want you or anyone else to spend an inordinate amount of time and energy doing a petition, when it is likely that we (the Waller County Commissioners Court) have very little ability to just ‘stop’ a new development.
“Counties can only regulate what the Texas legislature has given us the ability to regulate, which honestly is not much.
“For example, we do not have ‘zoning authority.’ We can not arbitrarily dictate where certain types of developments can be built. We do not have noise-ordinance authority. The list goes on and on.
“We can regulate a few things. We can have subdivision regulations that dictate certain standards within reason for a residential development.
“We can regulate the floodplain.
“Developers must submit plans certified by hydrology engineers showing detention and drainage, etc., so that there are no negative impacts downstream, which is reviewed and approved by the county engineering department.
“We are required by federal law to regulate floodplain regulations in Waller County and maintain certain standards in order for people in Waller County to be eligible for flood insurance through the National Flood Insurance Program.
“We typically also require a traffic impact analysis to be provided, and we can require the development to make certain traffic improvements (build any roads indicated on our thoroughfare plan, traffic signals, extra lanes, etc).
“All of these things must be addressed during the development process.
“As for electricity, that is not something we regulate (that falls to Electric Reliability Council of Texas and the regional electricity providers in the area).
“We also regulate septic as well, unless a development utilizes a municipal utility district (MUD) to provide public water and utilities, in which case they are regulated by Texas Commission on Environmental Quality.
“All of these impacts, which we regulate, have to be assessed by certified engineers and addressed by identifiable standards.
“We can not impose arbitrary rules on any developer without running the risk of exposing the county to liability.
“Assuming that a developer complies with our rules and regulations, we are required by law to provide them with the necessary permits.
“So if you are inclined to start a petition, I would focus on what standards we have that are currently not adequate or need to be changed.
“Something of that nature may require the services of a professional engineer in order to demonstrate where current standards are insufficient for a particular purpose.
“To be more particular, let’s take flooding for example, since you mention that in your message.
“New developments must comply with our Flood Damage Prevention Ordinance, which can be found on our website here:
https://www.co.waller.tx.us/…/Flood%20Damage…
“Our Flood Prevention Ordinance has been updated to be compliant with Atlas 14 data.
“The National Oceanic and Atmospheric Administration’s Atlas 14 is the federal standard and authoritative database for precipitation frequency estimates in the United States.
“It uses historical rainfall data to calculate the probability and intensity of extreme rain and storm events for any specific location. Texas data under Atlas 14 was updated in 2018 after Hurricane Harvey, the Tax Day Floods, and the Memorial Day Floods.
“Those standards can be found here:
https://www.co.waller.tx.us/…/New%20Flood%20Damage…
“As such, the standards we enforce are fairly universal and are fairly stringent, especially after Atlas 14 was adopted in Waller County.
“If you want us to change the flood-prevention ordinance, then I would be prepared to show the court where the ordinance fails to adequately protect property, but keep in mind that the standards we are using are federally adopted standards that are widely adopted across the country.
“If we change the ordinance and we get sued by a developer, and the court determines that our change was ‘not reasonable,’ then the county could be liable for damages. The last thing we need is unnecessary exposure to liability, especially since it’s taxpayer dollars at risk.
“Hill County in Texas recently adopted a moratorium on data centers, etc., and they just got sued two weeks ago in a lawsuit seeking $100 milllion in damages, which could very well bankrupt the county if the plaintiffs are successful (Hill County commissioners have since rescinded the moratorium).
“So, with all of that being said, if you want to start a petition, feel free to do so, but please understand what a commissioners court can and cannot do (within reason) so that your time and energy doesn’t fall on deaf ears.”
“As I frequently tell people, if you want our commissioners court to have more authority in terms of regulating these types of things, then your time and energy is probably better spent on communicating with state representatives, state senators, and state officials to give counties more authority to regulate these types of things (like zoning authority, for example).
“However, our Texas legislature places a very high value on private property rights and for landowners to have the right to use their property as they see fit, including selling the property to another owner so that the property is used for the highest and best use (as dictated by a fair market value system with arm’s length transactions).
As a result, they generally disfavor giving local authorities very much control in terms of dictating how land can be used.
I hope this helps.”
(Editor’s Note: This post was edited for clarity.)