Sunday, April 21, 2024

Martin: Stop the state from usurping local control!

By Ann G. Martin, Deputy Mayor Pro-Tem, Flower Mound

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” – The American Declaration of Independence, July 4, 1776

If the 2023 Texas Legislature has its way, “consent of the governed,” will be but an antiquated vestige of what was once the lifeblood of the fledgling American experience: a government of the people, by the people and for the people. A political “appendix,” as it were; the peoples’ right to consent is quickly waning, alas, at the hand of the very government initially devised to protect and preserve all rights endowed by our Creator.  This “appendix,” today seething with the infectious, corrupt cells of indifference, personal greed and vindictive political factions, threatens to render the governance of our entire local community fatally septic. If we stand idly by, death of local freedom is inevitable, even imminent.

Authors of numerous currently proposed bills (House and Senate) and their supporters seek to usurp local authority and control under the ill-considered guise of “consistency,” “landowners’ rights” and “superior control.” This is fundamentally wrong, and in absolute contradiction with the concept of popular sovereignty, a foundational tenant of our Republic.

If and when the people of a political subdivision (town or city) do not agree with local ordinances, they may follow established due process to enact change. There are ample mechanisms through which to achieve their wishes, the primary of these to be exercised in the ballot booth. We do not need the ubiquitous “State” to impose their values on our local communities.  We must be allowed to self-govern, particularly when it comes to zoning, construction of dwellings, hiring practices, aspects of commerce (for example, such as those related to sexually oriented and predatory loan businesses) and even when we want unaccompanied minors to be off the streets and safe at home.  Preemptive governance of these (and many other locally germane ordinances) will shred the fabric of our local communities. Further, elimination of the right to enact local ordinance while still operating as a designated taxing authority is tantamount to “taxation without representation” an egregious violation of our governmental contract, the one under which we consent to be governed.

A partial list of bills that severely threaten our popular sovereignty and the survival of our local communities include:

S.B. 1412 (Hughes, R) – Accessory Dwelling Units: allows an accessory dwelling unit (ADU) in a single-family zoning or un-zoned areas by right and prohibits much of a city’s ability to regulate an ADU.  This bill passed the Senate on 4-27-23.  Records indicate Sen. Tan Parker was the sole dissenting vote. AND H.B.2789 (Holland, R)– Identical

S.B. 1787 (Bettencourt, R) – Residential Lot Size and Density Requirements: prohibits a city from requiring a residential lot to be larger than 1,400 square feet, wider than 20 feet, or deeper than 60 feet, and from adopting certain other requirements on small lots. The bill applies to cities in counties with a population of 300,000 or more. AND, H.B. 3921 (Goldman, R) – Residential Lot Size and Density Requirements: prohibits a city from requiring a residential lot to be larger than 1,400 square feet, wider than 20 feet, or deeper than 60 feet, and from adopting certain other requirements on small lots. The bill applies to cities in counties with a population of 300,000 or more. This certainly would include Denton County.

  • These four bills represent a stark departure from the carefully and thoughtfully developed Master-planned communities, particularly those sensitive to environmentally protected areas (such as Flower Mound) by usurping all authority to oversee or regulate the addition of potentially damaging ADUs and extreme high density.
  • There will be no way to anticipate or respond appropriately (in a reasonable timeframe) to unprecedented and unplanned increases in infrastructure demand (water, sewer, roads, all provided at the local level), destroying current quality of life highly regarded by residents and businesses alike.
  • Existing homeowners outside of HOA/POA governed neighborhoods will have no way of regulating densities and occupancy (owner vs. rental) that can significantly contribute to their existing quality of life.
  • Homeowners with HOA/POAs who may be the last line of defense, likely will be excessively burdened with litigation if they choose to seek enforcement of their covenants and deed restrictions outside the prior protections afforded by local political subdivisions.

HB2127 (Burrows, R and Co-Sponsors: Richard Hayes, Kronda Thimesch, Ben Bumgarner):  Texas Regulatory Consistency Act, relating to state preemption of certain municipal and county regulation. Includes liability for certain preempted regulation (agriculture, finance code, insurance code, labor code, natural resources code, occupations code); IMMUNITY WAIVER AND PROHIBITED DEFENSES; Field Preemption:  precludes municipalities and counties from adopting or enforcing an ordinance, order, rule, or policy in a field occupied by a provision of this code unless explicitly authorized by statute. AND SB814 (Creighton, R) Relating to state preemption of certain municipal and county regulation. Concerns include:

  • Financial Burden of another un-funded Mandate: likely to result in numerous staff time and legal consultation expenses to quickly (either immediately if 2/3 passage, or by 9/1/23 if simple majority) evaluate, assess, and amend existing ordinances potentially in conflict with statutory requirements. Review and comparison of roughly 17,000 pages of State Law to current ordinances in a matter of several weeks is an Herculean task, rife with potential for unintentional errors and omissions further exposing municipalities to future litigation.
  • High potential for significant increase in local litigation expenses (defense and judgements) as the statute (as written) broadly allows suits to be files by not only alleged aggrieved individuals, but a host of broadly defined “individuals” including businesses. Legal Immunities (waivers and defenses) are also removed with these bills, further exposing us to litigation.
  • Preemption of local ordinance related to:
    • predatory loan and sexually oriented businesses (with very few exceptions). These establishments could be allowed to occupy locations anywhere in the subject political subdivision, for example, next to schools, churches, parks, etc.
    • insurance requirements for businesses; consumers who expect some kind of insurance backstop (for product and performance defects) could be left with no protection from faulty items or completed operations.
    • occupational requirements, for example, those established by municipal services (such as police and fire); HR implications for ensuring qualification of applicants.
    • safety and sustainability, such as rest breaks for workers, drought-control, sporting events and dangerous animal controls. These conditions and risks can vary immensely across the state; local control is the best and most appropriate mitigation plan.

 HB1819 (Cook, R) Relating to repeal of authority to adopt or enforce juvenile curfews. AND, SB603 (Hughes, R) Identical

Minors do have a right to be out and about pertaining to situations related to First Amendment Rights; municipalities already have the responsibility of recognizing these situations and respecting established case law pertaining to protected participation in related activities. This bill unnecessarily undermines local authority to enact crime prevention, safety and quality of life measures.

  • Preempts local political subdivisions from creating the expectations that unsupervised/unaccompanied minors/juveniles are not to be roaming the streets, beyond reasonable hours (outside of working hours, school activities, and parent/guardian sanctioned activities and protected First Amendment Rights).
  • Police officials have underscored the importance of supporting curfew as a tool in the public-safety realm, helping to protect our youth and citizens from situations conducive to a range of dangers, from general mischief to drug use, to other crimes of opportunity. Removing our ability to regulate this exposure broadens the likelihood of an increase in crimes, accidents and injuries.
  • Community support of parental curfew enforcement would be eliminated, making it harder for parents/guardians to promote their own curfew expectations.

We the people, as part of our “consent to be governed” agree to pay taxes to fund said government.  Property-owners pay ad valorem taxes in exchange for protection, common needs, and essentially, a quality of life to which they freely ascribe by property ownership in their selected municipality. In addition to the egregious and destructive outcomes generated by these bills, State preemption of local authority over ordinances is “taxation without representation” and must not be allowed to proliferate!

The urgent matter at hand is the opposition of statutes that preempt local control. I implore you to join me in contacting our representatives and directing them to vote “NO” to the bills detailed above and many other bills whose spirit is driven by a desire to squelch what they consider unpalatable local ordinances.  At the VERY LEAST, urge them to amend current bills to include local municipalities the right to “Opt-Out!” Honor the spirit our founding patriots espoused: popular sovereignty and taxation with representation as foundational expectations of our consent to be governed!

Grateful for your support, and most sincerely,

Ann G. Martin
Deputy Mayor Pro-Tem, Town of Flower Mound

CTG Staff
CTG Staff
The Cross Timbers Gazette News Department

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