Point Austin: The Lege v. Austin

The Austin-bashing bills are not just about water – they're also about property, power, and democracy

Point Austin
It's hard not to take personally the portrait of Our Fair City that is perennially on display down at the Capitol. While the sobriquet of "People's Republic of Austin" is not heard as often as it once was – even bad jokes have limited half-lives – the myth that Austin is an uncharted refuge for a bunch of tree-hugging, anti-business zealots still flourishes at the Lege. The latest case in point is House Bill 2833, the regulatory "takings" bill that was lurking ominously in the Senate this week. As drafted, the bill would require that any official regulation reducing by 25% or more the potential value of a piece of property – the prime example being an impervious cover limitation of less than 45% of a given tract – would be considered a "takings" of that property, subject to public reimbursement.

In the wake of statewide municipal opposition, a whole raft of exceptions – everything from regulating strip clubs to protecting Capitol views (variations on a theme?) – were crammed into the bill, providing entertaining reading but making it even more obvious that the bill's drafters (reportedly, scribes from the developers' lobby) paid little attention to the potential consequences. What they did pay attention to is demonizing both public officials and community organizations that have anything to do with protecting water quality – especially if they hail from Austin.

In an op-ed defending his bill, House sponsor Robby Cook of Eagle Lake made no bones about aiming it directly at Austin and the "environmental extremists" of the Save Our Springs Alliance. "The city of Austin," thundered Cook, has "severely devalued land by means of its Save Our Springs ordinance. Other communities are enacting or poised to enact similar grossly restrictive land-use regulations." According to Cook, a Democrat who chairs the House Rural Caucus, "Environmental regulations are seriously stripping land value, by as much as 90%, without compensation to landowners."

Cook doesn't cite any examples of this egregious behavior – perhaps because they are almost entirely mythological. If Austin's Save Our Springs ordinance (duly approved by those environmental extremists known as voters) is laying waste to regional property values, why is every Tom, Dick, and Bulldozer pouring concrete west and southwest of the city as fast as it can dry? And why are a dozen different developers persuading the Lower Colorado River Authority to run water lines to anywhere there's an empty piece of ground?

Must be because the land is so damned over-regulated.

Attorney Full Employment Act

The truth is, environmental regulations in general, and water quality regulations in particular, tend to raise, not lower, the value of real estate. However, you will not see an amendment offered to this bill (or to any similar proposal) that when the value of a piece of property is increased by government action – by far the most common outcome – the public gets a piece of the resultant profit. We're just supposed to carry the freight, always in the name of "economic development" (i.e., making rich people richer). Yet several landowners testified concerning HB 2833 that the real problem beyond the suburbs is that land prices are soaring so quickly that traditional ranchers can't keep up and are being forced to sell by the pressure of the market. Perhaps that falls under the category of "Good Problem to Have" – but it suggests that Cook's bill is little more than a solution in search of a problem.

It is also an invitation to speculative lawsuits. As more than one observer has pointed out, the 45% impervious cover limit, especially in sensitive watersheds, is not only ecologically unsustainable but economically impractical – high-end house-buyers simply don't want it. That means a developer could not only build out a subdivision at a lower level, profiting nicely on his initial investment, but also simultaneously make a claim that his property would be even more valuable if not for environmental regulations that prevent him from turning it all into a 40-story skyscraper or a hog farm.

More likely, cities will be immediately bogged down by trying to anticipate (and pay for) the payoffs contemplated by the bill, as is suggested even by the dry language of the bill's fiscal note. "The financial impact on cities is anticipated to be substantial, especially in fast-growing areas of the state. Municipal land use regulations are implemented and changed frequently pursuant to the demands of city residents. ... Compliance with the takings impact assessment provisions alone could range from $12,000 to more than $500,000 per year for advertising, preparation of assessments, and legal fees. If a city must defend a regulation in court, the costs of attorneys and consultants would also be included."

The ensuing appraisal wars would be amusing, and perhaps go a long way to alleviate the supposed trial attorney crisis brought on by the Lege's enthusiasm for "tort reform."

Who Rules Texas?

Austinites are not entirely alone as pawns in the Legislature's biennial board game of Property Over People. This week, all that stands between San Antonio's end of the Edwards Aquifer (truly a sole-source municipal water supply) and a free pass for Temple-Inland's plans for a mammoth PGA golf course-resort is Fort Worth's Lonesome Lon Burnam. At press time, Burnam was defying the entire San Antonio delegation (mostly fellow Democrats) by insisting that a referendum on the project requested by 100,000 San Antonio citizens not be circumvented by legislative action.

The deadlock on that issue illustrates that arguments over land use are only partly about protecting the environment – they're also about the much longer battle between the public good and private profit, and whether limited natural resources, including land and water, belong solely to the highest bidder or are in fact partly subject to democratically expressed community needs and priorities.

When it comes to the myths about Austin, that's the real burr in the legislative saddle. It's not because we dress funny, or talk too much, or spend too much time contemplating the wonders of nature. It's because there's still just too much democracy in these parts to please the boys in the Owners' Box, who are used to having the loudest voices, the biggest wallets, and the final word on every public matter of consequence.

Too damn bad. end story

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water qualityTexas Legislature, HB 2833, Robby Cook, Save Our Springs Alliance, Edwards Aquifer, Lon Burnam

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