CHAPTER 16 by yangxichun

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                              CHAPTER          16                  TE X AS




               Source: U.S. Department of Commerce, Economics and Statistics Administration, U.S. Census Bureau
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                Despite very rapid urban and suburban growth, Texas has failed          gies, aerospace, government, defense, and health sectors (Texas
                to take adequate actions to manage the consequences. While              Business Industry and Data Center 2008; Murdock et al. 2003).
                some state agencies and programs have responsibilities for cer-         As of 2008, employment exceeded 12 million, making Texas sec-
                tain planning-related activities, the overall state-level response to   ond only to California in total number of workers.
                rapid growth has been feeble at best. Regional planning initia-                   Key industries vary considerably by region. Forestry and
                tives—especially in the Austin, Dallas–Fort Worth, and Houston          agriculture dominate the economy in East Texas, while energy,
                metropolitan areas—have helped to fill this void.                       chemical, shipping, aerospace, and biomedical research anchor
                                                                                        the Houston area. The state’s highest concentrations of informa-
                STATE PROFILE                                                           tion technology firms and telecommunications service providers
                Texas has 25 metropolitan statistical areas (MSAs), most of which       are found in Dallas (home to Silicon Prairie) and Austin (home
                are located in the eastern part of the state. Texas MSAs include        to Silicon Hills). The San Antonio metropolitan area benefits
                only 77 of the state’s 254 counties, but are home to 82 percent of      from having one of the nation’s highest concentrations of mili-
                the population. Almost 60 percent of the state’s total population       tary facilities, plus a mix of tourism, health services, financial
                of 12.2 million residents live in just five MSAs: Dallas, Fort Worth–   services, and, most recently, automobile manufacturing. While
                Arlington, Houston, San Antonio, and Austin–San Marcos.                 ranching still dominates West Texas and the Panhandle, govern-
                          Since 1950, phenomenal population growth catapulted           ment, defense, and tourism are also important in some areas.
                Texas from the sixth to the second most populous state in the                     Agriculture contributes a sizable portion of the indus-
                nation (U.S. Census Bureau 2008). Indeed, the population has            trial base in Texas, with farm and ranch lands constituting more
                increased more rapidly in percentage terms than the national            than 75 percent of the state’s total area. As table 16.1 shows, agri-
                average in every decade since statehood. From 1990 to 2000,             cultural and agricultural support services account for about 15
                91 percent of growth occurred in MSAs (Murdock et al. 2003).            percent of employment. Texas leads all other states in beef pro-
                          As of 2006, five of the ten fastest-growing cities in the     duction (15 percent of national production) and cotton (30 per-
                country were located in Texas: San Antonio, Fort Worth, Hous-           cent of national production). Texas ranches and farms also
                ton, Austin, and Dallas (U.S. Census Bureau 2006). Among the
                ten largest cities in the United States are Houston (1.95 million
                in 2000), Dallas (1.19 million), and San Antonio (1.14 million).        Table 16.1 Texas Employment, 2006
                          Minorities account for much of the state’s growth over
                                                                                        Sector                                 Number          Percent
                the last decade. In the 2000 census, Texas had the second largest
                increase in Hispanics, the third largest increase in African-           Total Farm                              1,774,817         15
                Americans, and the third largest increase in the “other” category.      Total Nonfarm                          9,924,600         85
                                                                                        Natural Resources and Mining              174,500          2
                In 2005 Texas became the nation’s fourth majority-minority              Construction                             588,700           6
                state. According to the Texas State Data Center (2006), popula-         Manufacturing                             912,300          9
                                                                                        Trade, Transportation, and Utilities   2,027,300         20
                tion growth is expected to exceed 35 million by 2040, with most         Information                              222,800           3
                                                                                        Financial Activities                     619,700           6
                of that growth occurring within the MSAs and within the His-
                                                                                        Professional and Business Services     1,204,400         12
                panic segment. By 2020, Hispanics are projected to be the               Educational and Health Services        1,203,900         12
                                                                                        Leisure and Hospitality                  924,600           9
                largest racial/ethnic group in the state.                               Other Services                           346,700           4
                          The Texas economy was based largely on agriculture and        Government                             1,699,700         17

                oil before World War II, but it has become more diversified with        Sources: Texas Workforce Commission (2007); Texas Labor Information Center (2008);
                growth in the service, financial, computer/information technolo-        U.S. Department of Agriculture (2008).
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                produce poultry and eggs, dairy products, greenhouse and                GROWTH CHALLENGES
                nursery products, wheat, hay, rice, sugarcane, peanuts, and a va-       Texas faces two fundamental challenges in addressing growth.
                riety of fruits and vegetables. The market value of the state’s agri-   First, there is a lack of political will at the state level to address
                cultural products exceeded $14 billion in 2002 (U.S. Department         urban growth. The dominant political philosophy has been anti-
                of Agriculture 2002). Meanwhile, agriculture-related industries         regulatory and pro-growth. Private gain is favored over the public
                added $72.8 billion to the Texas economy, or about 10 percent           good. Second, counties have virtually no land use regulatory au-
                of the gross state product.                                             thority. As a result, scattered, poor quality development is ram-
                          Major resource extraction activities include mining of        pant in the rural parts of metropolitan regions.
                sulfur, salt, helium, asphalt, graphite, bromine, natural gas,                    Fortunately, Texas cities possess strong planning author-
                cement, and clays. Chemicals, oil refining, food processing,            ities, and municipalities can more easily annex land than their
                machinery, and transportation equipment are among the major             counterparts in other states. Cities in Texas can also plan and to a
                manufacturing industries. Texas leads the nation in export rev-         lesser extent regulate aspects of land use in their extraterritorial
                enues, which totaled $150.8 billion in 2006. The state’s top            jurisdictions (areas immediately adjacent to their boundaries).
                value-added exports are computers and electronics, chemicals,           Texas cities are increasingly partnering with smaller towns and
                machinery, transportation equipment, and petroleum and coal             adjacent counties in collaborative regional planning. So far, how-
                products. North American Free Trade Agreement (NAFTA) trad-             ever, the impact of these regional initiatives is limited because of
                ing partners accounted for more than 50 percent of all exports,         the lack of state-level action and weak county land use authority.
                followed by China.
                          In the transportation sector, Texas has more interstate       GOVERNMENT ROLES
                highway and public road miles than any other state. Sections of         Texas has no statewide smart growth or growth management
                14 interstate highways crisscross the state, and 13 of them carry       program (see Appendix 16). There are no statutes requiring
                almost 90 percent of NAFTA truck traffic. Texas is planning to          Texas state agencies to develop a policy or land use framework to
                implement a new Trans–Texas Corridor, using public-private              guide growth and development for the state, regions, or locali-
                partnerships to accelerate development. The project aims to revo-       ties. Some state agencies, however, do have responsibility for cer-
                lutionize NAFTA mobility in Texas, incorporating automobiles,           tain planning-related activities.
                trucks, railroads, and utilities in a new north-south alignment
                through the center of the state. NAFTA traffic currently navigates      •   Texas Office of Rural Community Affairs (ORCA) serves as a
                its way in and out of Texas via 26 border entryways.                        clearinghouse for technical information and resources on
                          Forty-five railroads operate on almost 12,000 miles of            state and federal programs; monitors developments with a
                track, carrying more than 335 million tons of freight a year. In            substantial impact on rural communities, especially state
                addition, Texas has more than 300 airports to move people and               government actions; administers the federal Community
                freight. It has the second-largest state airport system in the na-          Development Block Grant program; and performs research
                tion, with 27 commercial airports in 24 major cities. The Fort              to determine the most beneficial and cost-effective ways to
                Worth Alliance Airport is the first purely industrial airport in the        improve the welfare of rural communities.
                Western Hemisphere, and United Space Alliance (USA) in
                Houston is the prime contractor for NASA’s space shuttle pro-           •   Texas Department of Housing and Community Affairs
                gram. Texas is also home to 13 deep-water ports, with the Port of           (TDHCA) assists local governments in preserving, develop-
                Houston ranked first in the nation in foreign waterborne com-               ing, and redeveloping neighborhoods and communities, as
                merce and sixth in the world in total tonnage.                              well as dealing with housing affordability and homelessness.
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                •   Texas General Land Office (GLO) administers the Coastal Zone      tion to localities and metropolitan planning organizations about
                    Management Program, which provides grants to coastal com-         the potential benefits of integrating land use and transportation
                    munities to protect environmental resources and encourage         decision making. And while TxDOT did not explicitly endorse
                    environmentally compatible economic development.                  smart growth principles in its strategic plan, it did offer regional
                                                                                      workshops and technical assistance reports stemming from
                STATE PLANNING                                                        those studies to help localities apply smart growth techniques
                While Texas does not have a state agency providing oversight of       effectively should they elect to use them (Bochner et al. 2002;
                local, regional, and state planning requirements, it does have a      Paterson et al. 2003).
                mandatory functional planning process that was put in place in                  In addition, passage of Senate Bill (SB) 243, authorizing
                the early 1990s. In theory, Texas has the institutional capacity      eight metropolitan regions to create Regional Mobility Authori-
                within this strategic planning, budgeting, and performance            ties (RMAs), provided regions more flexibility to create better
                measurement system to limit state agency actions and public in-       connections between land use and transportation. Under the
                vestments that would be inconsistent with smart growth goals,         TxDOT strategic plan, eight metropolitan regions are expected to
                much like those found in Florida and Maryland. This has never         develop multimodal mobility plans to meet their specific needs
                happened, however.                                                    and priorities.
                          In addition, the state’s vision statement and goals, as               Another initiative that has the potential to advance
                articulated by Governor Rick Perry and the Texas Legislative          smart growth goals is the state water plan. The Texas Water
                Budget Board (LBB) since 2000, have little bearing on smart           Development Board (TWDB) must update the Texas State Water
                growth or growth management concerns. The most germane                Plan biennially. As in transportation planning, water planning
                state goals relate to natural resources and agriculture, which        became more regional and bottom-up with passage of SB 1 in
                include preservation of the state’s land, water, and air resources,   1997. Under that law, 16 regional planning groups must generate
                and the pursuit of sustainable economic development. But the          20-year projections of water demand and develop regional solu-
                actual oversight function that checks for linkages between those      tions to meet those projections using both supply- and demand-
                state goals and each state agency’s action plan is limited and        side strategies.
                largely ineffective.                                                            Although smart growth approaches to water supply
                          Moreover, even if the governor and the LBB wanted to        planning are viable in many cases (U.S. Environmental Protection
                be more proactive on smart growth, the capacity to do so is un-       Agency 2006), neither the Texas State Water Plan nor the TWDB’s
                certain given that the strategic planning administrative rules and    conservation best practices guide emphasizes this fact (Texas
                guidelines have never been legally tested in terms of requiring       Water Development Board 2007). Similarly, the Texas Commis-
                consistency with the state vision, mission, and goals. The only       sion on Environmental Quality largely fails to consider or promote
                enforcement control over state agency actions that has been used      smart growth approaches to manage water quality limited streams
                effectively is the implied threat from the biannual appropriations    and lakes. One possible exception may be the state’s experimenta-
                process (Texas Legislative Budget Board 2008).                        tion with Watershed Protection Plans (WPPs) as an alternative to
                          Most state agencies in Texas view growth management         total maximum daily load studies. There are currently 15 WPPs
                and smart growth matters as a purely local concern and are            under way in Texas to deal with water quality limited streams.
                largely ambivalent about supporting such efforts unless they see      These plans reference U.S. EPA guidebooks for watershed plan-
                a logical connection to advancing their particular missions. For      ning, which in turn consider land use choices consistent with
                example, in 2002 and 2003 the Texas Department of Transporta-         smart growth. None of the plans, however, is far enough along as
                tion (TxDOT) funded two research projects to provide informa-         yet to be assessed for a smart growth component.
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                         The same could be said of the Texas Department of                 compact, and more environmentally friendly than the exist-
                Community Affairs and Housing (TDCAH), which coordinates                   ing pattern. The final scenario, completed in 2004, set out
                the planning and disbursement of U.S. Department of Housing                seven strategic roles for realizing that vision.
                and Urban Development grants and loans for community devel-                     Austin Mayor Will Wynn proposed a bond election in
                opment and affordable housing, as well as food security assis-             2005 to implement the ECT vision by funding open space ac-
                tance and rehabilitation of colonias (unincorporated subdivisions          quisition, inner-city infrastructure improvements, affordable
                along the U.S.–Mexico border). While certainly supportive of               housing, watershed protection, cultural facilities, and public
                local decisions to use smart growth principles and practices to            safety. Voters overwhelmingly approved the $567.4 million
                promote greater housing choices and local sustainability,                  package in November 2006. Building on the ECT process,
                TDCAH does not advocate such practices in its strategic plan or            the Texas Senate and House both proposed legislation to
                technical assistance programs.                                             improve planning along the State Highway 130 corridor.
                                                                                           Although the measure did not pass, the Texas Legislature at
                REGIONAL PLANNING                                                          least demonstrated that it would consider strengthening
                Chapter 391 of the Local Government Code defines the powers                municipal and county planning powers.
                and duties of regional planning commissions in Texas. The law                   Most recently, in conjunction with its COG, ECT part-
                is the primary enabling authority for the creation of councils of          nered with the Trust for Public Land to produce a regional
                governments (COGs). The code enables and encourages locali-                greenprint to help local governments and communities
                ties to create a commission to perform studies and cooperatively           make informed decisions about open space conservation
                plan for their region’s land use, transportation, health, economic         (Trust for Public Land 2007). ECT also partnered with the
                development, and historical and cultural needs. Section 391.004            University of Texas at Austin in developing a compendium
                provides for planning that focuses on major thoroughfares,                 of over 100 tools, best practices, strategies, and techniques
                streets, bridges, airports, parks, recreation sites, and other items       to manage growth positively.
                relating to the commission’s general purposes.
                          Any plans created by a regional planning commission          •   Vision North Texas (VNT). The second significant regional
                may be adopted by participating localities at their discretion.            planning effort is under way in the Dallas metropolitan area.
                There are no consistency requirements between regional and                 VNT was launched in 2004 as a public-private collaboration
                local plans. The COGs have express authority to provide techni-            led by the Urban Land Institute’s North Texas District Coun-
                cal assistance to localities to help implement regional plans.             cil, the North Central Texas Council of Governments, and the
                Three regional visioning efforts with ties to COGs are currently           University of Texas at Arlington. North Texas includes the 16
                in progress in Austin, Dallas, and Houston. They represent the             counties that make up the Dallas–Fort Worth Metroplex, cov-
                best opportunities for regional physical planning in Texas.                ering 9,289 square miles and housing more than 6 million
                                                                                           residents. Regional visioning and planning are viewed as a
                 •   Envision Central Texas (ECT). In early 2002 a nonprofit               critical step as the area prepares to add more than 3 million
                     organization was created to forge a collective vision for fu-         people by 2030 and almost 12 million people by 2050.
                     ture growth and development in Central Texas, drawing on a                  Like ECT, the North Texas process focuses on articulat-
                     broad base of public, private, and nonprofit partners from            ing a preferred future vision based on an extensive public
                     across the five-county area. Scenario-based planning was              examination of alternative regional development patterns.
                     used to identify a preferred pattern of growth and preserva-          Fifteen scenarios have been conceived, representing differ-
                     tion: one that was denser, more transit-supportive, more              ent options for quality of life, economic vitality, and public
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                    investment (Walz 2005). The project will create a preferred        use planning and management strategies, tools, and techniques
                    regional scenario along with an action plan. A greenprint for      commonly found in other states (Houston 2005).
                    open space protection is being developed in conjunction with                  Like most states, Texas has a large number of special
                    the Trust for Public Land. VNT also seeks to promote best de-      purpose governments that provide numerous services, adding to
                    velopment practices in the region through education and            metropolitan fragmentation and coordination challenges. The
                    technical assistance.                                              more than 2,000 single- and multi-function special districts in-
                                                                                       clude drainage districts, navigation districts, fresh water supply
                •   Blueprint Houston (BPH). This final example of nascent re-         districts, and river authorities, among others. Their boards are
                    gional planning addresses a single city of 602 square miles,       governed by officials elected from the district service area (inde-
                    making Houston larger than many metropolitan areas. BPH            pendent districts) or appointed by a city council that constitutes
                    is a nonprofit organization established to raise civic aware-      the service area (dependent districts). Most special districts have
                    ness about the need for and the benefits of planning. The          taxing and spending authority, and have become known as the
                    Houston Endowment provided initial funding in 2003, and            “invisible governments” of Texas because most citizens know
                    was later joined by the Urban Land Institute, the American         very little about them (Galvan 2007).
                    Institute of Architects, Wells Fargo Bank, Centerpoint En-                   Chapter 213 of the Local Government Code enables
                    ergy, Palmetto Partners, and the Hershey Foundation.               cities to undertake comprehensive planning to promote sound
                         Like the previous two planning efforts, BPH involved          land development and public health, safety, and welfare. A city
                    many public events. It also led to the creation of Envision        does not have to adopt a comprehensive plan. If it does, it can
                    Houston Region with the Houston–Galveston Area Council             define the design and content, which may include, but is not
                    in 2005. Nearly 800 community leaders, residents, and              limited to, plan elements that cover land use, transportation, and
                    elected officials participated in workshops where more than        public facilities. A city can also define a coordinated set of plans
                    80 maps of future development scenarios were presented.            such as agency functional and special focus plans (e.g., neigh-
                                                                                       borhood and district plans) as its comprehensive plan. A city
                LOCAL PLANNING                                                         may use the comprehensive plan to coordinate and guide the
                The Texas Constitution allows for the creation of two types of         creation of development regulations. It is up to the municipality
                cities: general law and home rule. Cities that incorporate with        to define the relationship between its plan and its development
                fewer than 5,000 residents are designated general law or Dillon’s      regulations, including whether they must be consistent.
                Rule cities, and have only those powers specifically allotted by                    The enabling legislation on comprehensive planning
                the state constitution or state statute. General law cities are more   is somewhat stricter if undertaken within the provisions of joint
                constrained in their land use planning and development man-            planning powers. Adjoining municipalities may by ordinance
                agement capacities. Texas counties, which also are governed by         agree to form a joint planning commission and assign an equal
                Dillon’s Rule, also have no enabling authority to engage in com-       number of commissioners to guide planning in the shared juris-
                prehensive or land use planning of any kind.                           diction. Once the joint planning commission is established, it
                          Once population exceeds 5,000 residents, citizens may,       must adopt a master plan that encompasses highway design and
                by local election, adopt a home rule charter and exercise all law-     street and park layout, and designates locations for schools, resi-
                ful powers to promote the public health, safety, and welfare not       dences, business and commerce, industry, and water reservoirs.
                in conflict with the state constitution, Texas case law, or state      The relationship between the plan and development regulations
                statutes. Three-quarters of all Texas cities operate under home        remains open to the definition and requirements established at
                rule provisions, which empower them to use many of the land            the locality’s discretion.
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                Regulatory Authority. Under Texas Local Government Code                border with additional authority to regulate subdivision infra-
                211.004, zoning regulations must be adopted in accordance with         structure standards. In 2001 certain urban counties received
                a comprehensive plan, but this requirement has been loosely in-        general authority to adopt subdivision rules to “promote the
                terpreted. Texas courts have found comprehensive, coherent, and        health, safety, morals, or general welfare of the county and the
                logical zoning ordinances are sufficient to satisfy the “in accor-     safe, orderly, and healthful development of the unincorporated
                dance with” requirement (Mayhew v. Sunnyvale 1989).                    area of the county.” Nevertheless, even these urban counties are
                          If the municipality does have a comprehensive plan,          prohibited from regulating the use of any building or property;
                that plan may have to serve as the basis for subsequent zoning         the size, bulk, height, or number of buildings that can be con-
                amendments. The law is not entirely clear on this point since          structed on a particular tract of land; the number of residential
                passage of SB 1227 in 1997 (now section 213.002 of the Texas           units that can be built per acre; or road access to a plat or subdi-
                Local Government Code), which provided that a municipality             vision in an adjoining county.
                may define the content and design of a comprehensive plan, as
                well as the relationship between a comprehensive plan and de-          Local Planning Constraints. Although some progress in the area
                velopment regulations. It may provide standards for determining        of subdivision regulation has occurred over the last 30 years, the
                the consistency required between a plan and development regu-          majority of Texas legislative activity is antagonistic to smart
                lations. Even so, Section 211.004, with its arguably conflicting re-   growth concerns. The reasons for this are clear: developers are
                quirement that zoning regulations conform to a comprehensive           an important and powerful lobby with a transparent agenda to
                plan, also remains in the Texas Local Government Code. Zoning          push back or limit city land use regulatory powers; and the state’s
                authority for cities is strictly limited to municipal boundaries.      conservative politicians tend to view city planning and develop-
                Texas Local Government Code prohibits municipalities from              ment management efforts as a necessary evil at minimum or
                zoning in their extraterritorial jurisdictions, the unincorporated     outright obstructionism to economic development at its worst
                areas contiguous to their borders, unless otherwise authorized by      (Galvan 2007; Hanna 1996; Larson 1995).
                state law.                                                                      The Texas State Legislature has thus significantly ham-
                          With only a few exceptions, Texas counties do not have       pered planning and development management within municipal
                the power to zone and limited power to regulate subdivisions.          boundaries and at the city fringe in four key areas.
                Regulatory authority generally extends only to prescribing right-
                of-way widths, road specifications, purchase contract disclosure       1. Authorization of municipal utility districts. In 1971 the legisla-
                requirements, and bond and engineering standards. Even within             ture enacted Chapter 54 of the Texas Water Code, enabling a
                these few areas, though, standards have not always been en-               sole property owner or developer to petition and, upon state
                forced. The legacy of this lax regulatory environment is that un-         approval, create a metropolitan utilities district (MUD).
                incorporated areas along the Texas–Mexico border are now home             These districts can use government powers of condemna-
                to over 1,400 colonias—inadequately or illegally platted residen-         tion, taxation, and issuance of tax-exempt bonds to finance
                tial subdivisions with substandard housing, inadequate roads              water, sewer, drainage, parks, and related facilities. The board
                and drainage, and substandard water and sewer facilities. Condi-          agrees to reimburse the project developer for all MUD board
                tions in the colonias have often led to severe public health, con-        expenses and infrastructure development costs, with interest,
                sumer fraud, and environmental injustice problems that are                as soon as enough homes are purchased so that the MUD
                unheard of elsewhere in the country (Williams 2002).                      can levy taxes and fees to recoup those expenses. The devel-
                          The Texas Legislature began to address the colonias is-         oper is essentially paid twice for public infrastructure invest-
                sues in 1995, and provided certain counties along the Mexican             ments—once through the sale of the homes and lots, and
                                                                                          again through reimbursement by the MUD board.
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                        Not surprisingly, many commentators have identified               economic development of the state,” and therefore sought to
                   MUDs as one of the single most important factors leading to            alleviate these obstacles by ensuring that permit applications
                   sprawl in Texas and a very significant enabling mechanism              would be approved or not approved based solely on “duly
                   for leapfrog development (Butler and Myers 1984; Galvan                adopted requirements in effect at the time the original appli-
                   2007). The popularity of this approach is reflected in its             cation for the permit is filed” (Hartman 1999). As inter-
                   sheer numbers—more than 950 MUDs now in operation in                   preted by Texas courts, the early vesting statutes essentially
                   Texas (Galvan 2007; Simmons 1997). Subsequent amend-                   nullified subsequent changes to local comprehensive plans,
                   ments to the state enabling legislation have made it even eas-         environmental regulations, and land development codes on
                   ier for developers to get approvals of MUDs.                           projects already in the permitting pipeline.

                2. Curtailment of annexation powers. Until the 1990s another          4. Undermining the use of impact fees. Over the last decade, leg-
                   important tool for controlling sprawl in home rule cities was         islative activity has led many Texas cities to stop using impact
                   their strong unilateral annexation powers. Unlike in many             fees because of the high administrative burden and low po-
                   states, most of the central cities in Texas had managed to            tential to recoup infrastructure costs. Indeed, local govern-
                   avoid being hemmed in by their suburban neighbors’ munic-             ment planners often referred to the 1987 enabling statute as
                   ipal boundaries. As a result, central cities were able to con-        the state “disabling act” because of the detailed planning and
                   tinue to expand their tax bases by capturing outlying                 updating requirements for creating fee schedules.
                   developments. But after many unincorporated communities                     In 2001 the Texas Legislature passed SB 243, which ef-
                   began to lobby against being annexed into cities against their        fectively reduced the maximum permissible infrastructure
                   will, the Texas Legislature significantly rewrote the laws re-        recovery charges to no more than 50 percent of the actual
                   lated to large residential subdivisions. Although the new             costs to ensure that no double taxation occurred through ad
                   rules did not authorize bilateral annexation (i.e., require a         valorem taxes or other fees. Since many cities were already
                   majority vote from both the annexing community and the                significantly reducing their impact fees to stay competitive
                   area to be annexed), they did make large population annexa-           with other municipalities and to avoid litigation, many
                   tions by home rule cities more costly, time-consuming, and            viewed this as the last straw for impact fee usage. In 2005
                   difficult (Houston 2004).                                             HB 1835 added a “rough proportionality” requirement on all
                                                                                         infrastructure exactions.
                3. Redefinition of developers’ vested rights. Another significant
                   blow to city efforts to manage growth was a series of statu-       SMART GROWTH OUTCOMES
                   tory amendments between 1987 and 2001 that provided in-            Given the absence of statewide planning in Texas, the state’s per-
                   creasingly favorable vested rights language in the Local           formance on most smart growth indicators analyzed in the pre-
                   Government Code. Developers were allowed to make the old-          ceding chapters is much as expected.
                   est land development rules in place when they started a proj-
                   ect (sometimes dating back decades for plats that had no           GROWTH PATTERNS AND TRENDS
                   expiration dates in the original permits) the basis for all fu-    The finding that population and employment concentrations are
                   ture activity at the site.                                         high in Texas cities comes as no surprise in light of formerly
                         The Texas Legislature declared in the 1987 Early Vesting     strong annexation rights that allowed central cities to capture
                   legislation that existing local regulatory practices resulted in   large shares of regional growth. In addition, many Texas metro-
                   “unnecessary governmental regulatory delays that inhibit the       politan areas—most notably Dallas and Austin—have pursued
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                aggressive infill policies over the last decade (Northeast Midwest     cal assistance to help private landowners develop sustainable
                Institute 2002). The Austin MSA’s large increase in population         forestry plans for their properties. Finally, the Forest Legacy Pro-
                density within the 10-mile ring and high concentration of em-          gram allows the state to purchase conservation easements on
                ployment within the 5- and 10-mile rings were also as expected,        forestland from willing sellers to keep lands in forestry use. The
                given that Austin’s strong incentive system was adopted and im-        program is funded with 75 percent of easement costs provided by
                plemented in the 1990s and early 2000. A recent study by Tu, Li,       the USDA and the other 25 percent provided by the landowner
                and Piltner (2005) corroborates this finding, clearly showing a        (Texas Forest Service 2008).
                significant shift in building activity away from the more sprawl-                A number of nonprofit land trusts—both national chap-
                ing, western drinking water protection zone of Travis County,          ters and locally created entities—focus on habitat, farmland, and
                back toward the central city’s desired development zone.               parks conservation. The Nature Conservancy (TNC), the Trust
                                                                                       for Public Land, and the American Farmland Trust all have active
                NATURAL RESOURCES AND ENVIRONMENTAL QUALITY                            state and regional offices in Texas. In 2001 TNC declared the
                While Texas looks strong in terms of state parkland acreage and        Texas Hill Country in Central Texas one of the last great places in
                acres per person, it is in fact weak when service standards are ex-    the world deserving priority protection. Since then, TNC’s Lone
                amined in the context of proximity to population centers. In their     Star Chapter has acquired 35 nature preserves and assisted pri-
                study for the Texas Parks and Wildlife Department, Schmidly,           vate landowners in conserving 250,000 acres of wild lands, and
                Parker, and Baker (2001) documented a mismatch between                 it reports that close to a million acres of wildlife habitat have
                where the majority of the population resides (eastern half of the      been protected across the state. More than 20 local nongovern-
                state) and where the majority of the state’s parkland is found         ment organizations, such as the Hill Country Conservancy in
                (western half of the state). This spatial mismatch represents a        Central Texas, are now actively purchasing easements and land
                significant fiscal and service challenge for Texas in light of esca-   fee-simple for conservation.
                lating property values in the eastern half of the state, where de-               Between 1982 and 1997, Texas lost more than 2.3 mil-
                mand for parkland is greatest and most underserved.                    lion acres of productive farmland as escalating land costs, ex-
                          Unlike many southern and western states, Texas has few       treme weather, declining commodity prices, and encroaching
                federal and state land parcels. Federal lands comprise only 2.6        development led to the conversion of many ranches and farm-
                percent of the state’s area; state and local government lands, as      lands (Texas Office of the Comptroller 2002). After a concerted
                well as parks and wildlife lands, account for another 3.4 percent      lobbying effort by the American Farmland Trust and other ranch-
                (Schmidly, Parker, and Baker 2001). Texas has several laws and         ing and farming organizations, the Texas Legislature established
                programs aimed at expanding open space and conservation of             the Texas Farm and Ranch Lands Conservation Program in
                agricultural and forestry lands, although these programs have          2005. The program allows eligible landholders, such as land
                not been funded as generously or pursued with as much tenacity         trusts or local and state governments, to purchase development
                as in other states (Daniels 2005; Daniels and Lapping 2005).           rights for conservation purposes from private landowners.
                          The Texas Forest Service operates three programs that                  Although no funding was provided, the law established
                rely to a great extent on private initiative to accomplish conserva-   a purchase of development rights (PDR) account with the comp-
                tion ends. The Forest Heritage Program encourages private own-         troller so that private funds could be deposited and future grants
                ers to gift forest properties to the state to serve as demonstration   could be leveraged. The law also created a Texas Farm and Ranch
                forests, where the proceeds of sustainable forestry practices fund     Lands Conservation Advisory Council to provide counsel to the
                an endowment to manage the heritage forests or support forestry        commissioner of the Texas General Land Office, who is to ad-
                excellence funds. The Forest Stewardship Program offers techni-        minister the PDR program (Texas Legislature 2005). As of 2008,
                                                                                       no PDRs had been purchased under the new law.
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               TEXAS                                                                                                                                   229




                TRANSPORTATION                                                        home to the City of Wichita Falls and Midwestern State Univer-
                The land use and transportation relationships in the metropoli-       sity, which has one of the strongest national collegiate cycling
                tan areas of Texas are like those elsewhere in the United States:     programs in the country.
                auto-dependent urban forms dominated by single-use districts
                with limited street connectivity, and a heavy reliance on buses as    CONCLUSIONS
                the primary form of mass transit. Texas has comparatively lim-        Given its historical and political context, the State of Texas seems
                ited investments in rail-based transit systems, although this is      unlikely to support smart growth principles and practices any
                beginning to change. Three metropolitan areas (Austin, Dallas,        time soon. While the state has become increasingly urban, its
                and Houston) are now investing in rail systems where mixed-use        mindset is distinctly country and western. One way that a shift
                densification strategies may one day account for fairly significant   might happen is if state policy makers and business leaders be-
                changes in mode share of commute trips. Indeed, the transporta-       come convinced that smart growth can provide a competitive ad-
                tion options may be considerably different as early as 2015 or        vantage in the marketplace. A second possibility is that state
                2020 as new light-rail, bus rapid transit, and commuter rail sys-     leaders come to realize that Texas is urban (if not yet urbane).
                tems gain service density and network coverage. With volatile oil              At the same time, though, visioning processes in Dallas,
                prices driving up the costs of auto- and truck-based commerce         Houston, and Austin have generated hope that a majority of the
                and personal trips, metropolitan rail investments will surely in-     estimated 12 million new residents arriving in Texas over the
                crease and lead to significant mode shifts in the coming decades.     next three decades will be able to live, work, and play in more liv-
                         The fact that San Patricio and Wichita counties stand        able, walkable, and socially just urban settings. It is too early to
                out as two of the handful of places that saw increased bike and       determine whether these collaborative visions will convert into
                pedestrian commutes in the 1990s is also understandable. San          collaborative actions. For the foreseeable future, smart growth
                Patricio County is home to Corpus Christi and Portland, where         advances in Texas are likely to remain largely grassroots-based
                sidewalks on most local streets are connected and where there is      regional phenomena.
                a movement to promote active, healthy living. Wichita County is
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                CHAPTER 16                                                                                                                                      230




                APPENDIX 16
                MILESTONES IN TEXAS LAND USE PLANNING
                 YEAR    ACTIVITY/LEGISLATION

                 1866     Texas Constitution prescribes that the county commissioners court has only the authority granted by the state

                 1927     Texas adopts the Standard Zoning Enabling Act and the subdivision portion (but not the comprehensive planning section) of
                          the Standard City Planning Enabling Act

                 1933     A constitutional amendment allows for county home rule approved by Texas voters

                 1965     The Texas Regional Planning Act allows localities to form councils of governments to assist with service planning and grant
                          administration for federal, state, and regional programs

                 1969     County home rule is repealed before any Texas county takes action to use it

                 1971     Chapter 54 of the Texas Water Code allows for the creation of municipal utility districts (MUDs)

                 1987     Legislature consolidates most of the laws regarding land use subdivision platting into Chapter 212 (municipal regulation) and
                          Chapter 232 (county regulation); it also expands municipal extraterritorial jurisdictions for plat review and approval purposes
                          only for cities with populations of 5,000 or more in border counties

                          Legislature passes impact fee enabling statute, specifying land use assumptions that must be used to calculate fee schedules

                          Legislature adopts the Early Vesting Rights bill, allowing landowners or developers to adhere only to government regulations
                          that applied at the time of the permit application

                 1989     Legislature passes SB 2 (codified at Chapter 624), setting up the Texas Water Development Board’s Economically
                          Distressed Areas Program to correct substandard water and sewer conditions in existing colonias; also broadens the list of
                          utilities prohibited from providing services to lots in a subdivision not approved by a city or county

                 1995     Legislature amends the Early Vesting Rights law to make it more sweeping, providing that when a series of permits was neces-
                          sary for a development project, regulations were vested as of the date that the original application for the first permit was filed
                          Legislature passes HB 1001 (codified at Chapter 979) to further strengthen platting requirements in Texas border counties
                          to control the creation of new colonias

                 1997     Legislature passes a statute enabling comprehensive planning by both general law and home rule cities; provides only a general
                          description of what comprehensive plans should contain, but does clarify that cities can define the linkage needed, if any,
                          between comprehensive plans and zoning and facilities (codified in Chapter 213)

                 1999     Legislature enacts the Texas Religious Freedom Act, but specifically exempts municipal authority over land use, zoning,
                          historic preservation, traffic management, and urban nuisance to the same levels as those afforded by the federal courts

                 2001     Legislature amends the state’s impact fee law to require an offsetting credit for ad valorem taxes or user fees that finance
                          infrastructure improvements
                          Legislature passes HB 3451, extending the Texas State Affordable Housing Corporation through 2003
                          Legislature amends Local Government Code 232.101(e) to give expanded subdivision authority to urban counties and
                          border counties to combat the creation of colonias

                 2002     Envision Central Texas is created as a 501(c)(3) organization to coordinate a regional visioning process for the five-county area

                 2005     Legislature further amends the impact fee statute such that if a city requires a developer to bear a portion of certain infrastruc-
                          ture costs as a condition of plat approval, that portion must be roughly proportionate to the proposed development (§212.904
                          of the Local Government Code)

                 2007     The 2001 changes to county subdivision powers are expanded to allow all counties to enact regulations to promote the health,
                          safety, morals, or general welfare of the county and the safe, orderly, and healthful development of unincorporated areas


                 Source: American Planning Association (1996).
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