Eighty-Fifth Legislature Adjourns:
Respect for Local Control is Officially Yesterday’s News
If 2015 was the year that local control began to lose its luster as a governing principle among some state leaders, the 2017 Legislative Session saw the culmination of this unfortunate trend. The new, improved mantra at the Capitol is “liberty,” which translates to liberty to do anything you want in a city without consideration for the liberty or property values of your neighbors.
How did we arrive at this state of affairs? There are three principle reasons.
First, national legislative think tanks are specifically pushing the idea that state legislatures know better than local governments, and that preemption of those locals is the way forward. Many other state municipal leagues have recently faced similar, or in some cases identical, preemption bills to the ones Texas cities faced this session. These national groups are well funded by some, but not all, in the national business lobby, and money talks. It’s a simple concept: why deal with multiple cities’ regulations when you can have one-stop shopping at the statehouse?
Second, years of litigation against the federal government have convinced some leaders that state government is the pinnacle of all governments. A dangerous side effect of this mentality is now a recent increase in lawsuits by the state against cities. To some, state government is supreme, and higher and lower levels of government need to get on board with that concept. As lawsuits by the state against cities increase, so too do bad bills that would harm cities.
Finally, 2017 saw the beginnings of a new effort to politicize the successfully non-partisan nature of city government. One early-filed bill that didn’t progress was H.B. 2919 by Scott Sanford (R – McKinney). It would have encouraged candidates for mayor and city council to run as partisans in their elections. Further, supporters of the two major parties are now getting active in local city elections through endorsements and fundraising. This trend toward trying to politicize our least political governing bodies (potholes aren’t Republican or Democratic after all) may be one of the biggest challenges the League faces in the coming years.
The result of these trends was a more difficult legislative session for Texas cities than any in recent years.
A bill giving cell phone companies nearly free access to city rights-of-way and vertical structures, S.B. 1004 by Senator Kelly Hancock (R – North Richland Hills), passed in a somewhat improved form than the originally filed version. The bill improved in the House with regard to city control over location and permitting. The bad news: the $250 right-of-way rental fee is still much too low, probably unconstitutionally so. The League will work closely with the city attorneys of affected cities to explore how to address the bill’s unconstitutional donation of public property for use by private entities.
Legislation passed, H.B. 100 by Representative Chris Paddie (R – Marshall), that preempts city ordinances relating to transportation network companies (Uber and Lyft for instance). The so-called sanctuary city bill, S.B. 4 by Senator Charles Perry (R – Lubbock), was amended in the House with a provision that makes it more difficult for police chiefs to supervise their subordinates (though the League was neutral on the underlying bill). A bill passed, S.B. 1248 by Senator Dawn Buckingham (R – Lakeway), that limits city authority over manufactured homes in designated manufactured home parks, but it would not limit zoning of such homes as legislation in previous sessions would have done.
A bad annexation bill, S.B. 715, made it all the way through the process but died in a Senate filibuster with only 24 hours to go in the session. That’s two sessions in a row that an annexation bill has progressed almost to passage. The issue is sure to be back in the near future, and the League must continue to explain the benefit that annexation laws have had on our state’s economy.
A handful of other detrimental bills made it past the finish line as well; all are described in depth in this wrap-up edition.
Numerous beneficial bills for cities passed, but the two most notable were League priority bills. The first, H.B. 1111 by Representative Senfronia Thompson (D – Houston), allows general law cities to regulate sex offender residency. The second bill, S.B. 1440 by Donna Campbell (R – New Braunfels), permits city officials to attend candidate forums without triggering open meetings posting rules, thus putting incumbents on equal footing with challengers.
Many other good bills are described in this edition.
The Cutting Room Floor
Many more harmful bills were defeated by the League and its cities than were passed. Here were some of the worst that justifiably ended up “on the cutting room floor”:
- a bill that would have imposed a property tax revenue cap of four percent on cities and counties (S.B. 2 by Bettencourt).
- harmful anti-annexation bills that would have allowed only those being annexed to vote, instead of the entire region (S.B. 715 by Campbell/H.B. 424 by Huberty).
- bills that would have required cities to send email notification and hold hearings before adopting or raising any city fees (S.B. 737 by Hancock/H.B. 1577 by Parker).
- bills requiring voluminous financial information to appear on bond proposition ballots (H.B. 1658 by Phelan/S.B. 461 by Lucio).
- a bill that would have forced cities to acquire additional land through eminent domain, even if the land wasn’t necessary for the project (S.B. 626 by Schwertner).
- bills that would have made it much easier for former property owners to repurchase their condemned property for alleged lack of progress on a project (H.B. 2076 by Schubert/S.B. 628 by Schwertner).
- a bill to preempt any city ordinance prohibiting the keeping of up to six chickens (S.B. 1620 by Taylor)
- a bill to eliminate the May city election date (H.B. 1271 by Lang).
- bills preempting city ordinances regulating short term property rentals.(S.B. 451 by Hancock/H.B. 2551 by Parker).
- bills to ban city red light cameras (S.B. 88 by Hall/H.B. 808 by Fallon).
- a bill that would have required cities to get Secretary of State approval for all their ballot propositions (S.B. 488 by Bettencourt).
- legislation that would have required cities to send detailed information about city borders, and other information, to the comptroller (S.B. 200 by Campbell).
- a bill that would have preempted city plastic bag ordinances (S.B. 103 by Hall).
- a bill that would have allowed individual property owners to ignore city tree ordinances if the owner held a belief that cutting the tree was necessary for fire safety, among other tree preemption provisions (H.B. 1572 by Workman).
- legislation that would have made cities broadly liable for attorney’s fees in civil litigation (H.B. 744 by Farrar).
- a bill that would have made it difficult for cities to issue pension obligation bonds (S.B. 151 by Bettencourt).
- a late session amendment to an agricultural seed bill that could have preempted the application of most city ordinances to businesses operating in a city (S.B. 1172 by Perry).
Each of the bad ideas above got at least a committee hearing or were attached to a bill that got a hearing – some went much further – but all were ultimately defeated. Many additional harmful bills were stopped before ever being heard in committee.
The Path Forward
Has the entire legislature bought into the death of local control? Not at all. Many legislators in both parties still strongly support cities. Proof of this was an amendment to a bill in the last weekend of the session that would have permitted cities to be sued to overturn any ordinance that regulates a business more strictly than state law. After engagement by mayors and other city officials, the amendment was promptly pulled down by the bill’s author and sponsor. Grass roots involvement can still work, and cities are still respected in many Capitol offices.
What is certain, however, is that appeals to some noble concept of “local control” are less effective with legislators than in the past. The League will need to devote considerable time in the coming interim to examine how best to frame city issues for future legislatures.