What would Daniel Boone do? The dilemma of imposing state regulations to improve housing in Texas colonias

“We continued not in a state of indolence, but hunted every day, and prepared a little cottage to defend us from the winter storms.” – Daniel Boone

Daniel Boone's cabin -New York Public Library

Daniel Boone's cabin -New York Public Library

As the Southwest Airlines flight climbed upward from the El Paso Airport it banked southeast over the area known locally as the Lower Valley. The rich soils along the Rio Grande River and the extensive network of irrigation ditches emanating from the river made the 40 miles down river from the city of El Paso one one of the most agriculturally productive areas of the state.

From a couple of thousand feet in the air it was clear that the farmland was rapidly being overtaken by an irregular scattering of growth of residential subdivisions. Beyond the boundaries of the city of El Paso these subdivisions sprang up rapidly in the 1970s.

The so-called “developers” of these colonias often did little more than buy a piece of farmland and mark out the lots with wooden stakes before selling them with low monthly payments and little or nothing down to low income families with the dream of owning a piece of land and building a home. The explosion of the growth of colonias in El Paso’s Lower Valley, when viewed from the ground were distressing for the substandard housing conditions they brought but the view from the window of the airplane was most alarming because the magnitude of the problem could be appreciated.

Sitting next to me on the plane was my late friend John Edmondson, the son of one of El Paso’s largest homebuilders, and at the time the chief of staff to El Paso State Senator Peggy Rosson. “What a mess,” I said to Edmondson. “Colonia sprawl is gobbling up all the farmland in the Lower Valley. You all need to get this under control.”

“How do you tell those families they can’t build a home in a colonia?” Edmonson replied. “They’re like Daniel Boone, going into the wilderness and building a cabin for themselves. They can’t afford to live in the city. There’s no housing for them. How do you say ‘no’ to someone with a frontier attitude of, ‘I’m going to do what I have to do to make a home for my family.’”

That 1991 plane ride and conversation has stayed in my mind as each session the Texas Legislature brings new bills to address the colonias. For me, weighing colonia legislation amounts to a balancing act between limiting inefficient urban growth, sprawl, environmental problems, dangerous substandard living conditions and transportation dilemmas on the one hand and the need to allow poor families to exercise the option of buying land and building a home they can afford and for which they have no other viable housing option.

I call this the Daniel Boone ethic of homeowner freedom.

Compelling developers to provide decent subdivisions

In the mid-1990s the Texas Legislature acted decisively to compel border counties to adopt and enforce minimum subdivision development standards on colonia developers. The Legislature sought to ensure that future colonias had decent roads, proper drainage, and water and wastewater. In exchange for Texas border counties adopting and enforcing these new rules, existing colonia residents got help from the State of Texas in the form of bonds to bring in water, sewer and roads that earlier colonia developers had failed to provide.

The public improvements came at the price of driving up the cost of lots in new colonias significantly. Before the enactment of the so-called “model subdivision rules” a lot in a colonia could be bought for $5,000-$10,000 with very low monthly payments financed through a contract for deed. Today, that same lot could easily cost $25,000-$30,000. There are not many people around who would argue that the Legislature’s imposition in the 1990’s of minimum standards on future colonias was not the right thing to do. My point is that it came with a price. A price that was paid entirely by impoverished families.

During this year’s session of the Texas Legislature an organized group of colonia developers brought forward legislation to reduce the requirements imposed by the model subdivision rules that they provide roads, drainage, water and sewer in their new colonias before they start selling lots. The developers argued that the existing infrastructure requirements drove up the cost of the lots, making them less affordable to low income families. That is true.

Our position was to oppose all of the developers’ efforts to allow them to delay proper development of the colonia infrastructure until they actually sold a lot. I came to this position having watched the practices of many of these same developers 15 years ago. At that time they would often sell many of the lots in a colonia before roads and water were in place, promising the buyers that these improvements would be forthcoming shortly and would certainly be in place before they finished building their homes. I can cite literally dozens of examples where the developer never provided the roads, water or sewer, leaving the low-income residents of their colonias in desperate straits. It took years to get public funding to build the infrastructure the developers failed to provide. In many cases, colonia residents are still waiting for improvements.

Efforts by developers to weaken colonia quality standards

The colonia developers also proposed this session exempting five acre “ranchettes” from the subdivision laws requiring them to provide infrastructure. Existing law exempts ten acre tracts and larger.

We opposed this too. The legislation was a blatant attempt to get around the infrastructure requirements and would have opened up a large new market, creating large lot de facto substandard colonias. The consequences to orderly and proper urban development would have been disastrous. Imagine the problems of a city ringed with five acre lots on poorly drained dirt roads, with inadequate septic systems, lacking potable water, owned by extremely low income families.

As these areas built out there would be a compelling demand for public services. Yet the cost of providing those public services would be disproportionately large because of the low density of the housing. The cost of extending water and sewer lines per household would be greatly increased because of the large lot size and low population densities. The same holds true for the provision of paved roads, electricity and gas service, fire and police protection and on and on. The adjacent incorporated urban areas would not annex these new colonias because the cost of providing municipal services would far exceed the tax revenues that could be assessed on the impoverished property owners.

Legislation exempting five acre lots would have been an urban development disaster and was wisely rejected by the Legislature. Even the current law exempting ten acre lots from the subdivision rules and standards has proven to be a problem according to the Valley Morning Star newspaper in a June 6 story…

Call them “ranchettes” or grazing land or the site for a future dream home.

But Cameron County officials are not very optimistic about 10-acre tracts of land being offered for sale along Coco and Louisiana roads north of La Feria, the same area where county workers spent months after last July’s Hurricane Dolly, pumping around the clock trying to remove floodwater.

Alejandro Sanchez, assistant Cameron County engineer, said that, even though anti-colonia legislation was passed by the state in 1991, the size of the tracts of land being offered prevents the county from doing anything to stop their sale.

“The state basically assumes that, if it’s more than 10 acres, it will typically be agricultural use,” he said. “They don’t have to go through the subdivision process. They don’t have to file a plat.”

Land purveyor Art Ortega said he’s offering the 10-acre tracts for $50,000 each.

“Yes, you can build there,” he said. “There was a flooding problem out there last year. We’re disclosing it.”

Precinct 4 Commissioner Edna Tamayo said Thursday she was shocked to learn that more people might be sold land in the area for homesites.

“I was out in my precinct and I saw those signs and I was shocked,” she said. “It definitely floods there. I caution anyone to please check with the county first before buying anything there. I’m really worried about it,” the commissioner said. “I don’t want somebody to buy some land and then they can’t do anything with it.”

Because the tracts are 10 acres, there isn’t much the county can do, [Gustavo Olivarez, assistant director of the county’s environmental health department] said.

“If it were a subdivision, it would be easy (to stop the development),” he said.

Colonia developers did not come away from this session empty-handed however. They convinced the legislature to establish a task force to study the model subdivision rules to see if they should be changed (HB 2275). We worked hard and succeeded, with the support of the bill sponsors, in amending this legislation. Originally, the bill said…

The legislature finds that the current law regarding the regulation of subdivisions in the unincorporated areas of counties contains numerous conflicts and is unnecessarily complex, particularly regarding the regulation of development in counties near the international border and in economically distressed counties, and that uniform subdivision standards in those counties serve an important purpose in promoting a high standard of living for the citizens of Texas.

Working with the bill sponsors we were able to have this amended to eliminate the presumption that development standards for colonias “contains numerous conflicts and is unnecessarily complex, as well as restating the goal of “enhancing the quality of living for the residents” of the colonias.

The legislature finds that the current law regarding the regulation of subdivisions in the unincorporated areas of counties near the international border and in economically distressed counties should be reviewed to ensure that statutory provisions are consistent and clearly achieve the goals of promoting uniform subdivision standards in those counties and enhancing the quality of living for the residents of those subdivisions.

The original filed version of HB 2275 would have included representatives of ”private interests in land development” but included no colonia residents or their representatives on the commission. The bill sponsors agreed to our request to provide six colonia residents and their representatives with seats on the commission. Despite these improvements, we are deeply concerned that this commission may become a vehicle for undoing the model subdivision standards that have served over the past decade to prevent the proliferation of new substandard colonias.

A problematic attempt to impose residential building standards

The other major colonia legislation this session had to do with the imposition of residential building standards outside of incorporated urban areas. In this area of legislation the “Daniel Boone ethic of homeowner freedom” becomes a matter of special concern.

It horrifies urban planners from other states when I explain to them that in Texas there is no county zoning authority, nor even county ordinance making authority. Texas counties, for the most part, cannot control development or even regulate the standards for constructing a home.

You still can be Daniel Boone in Texas and go out and build what you want, and build it how you want it, so long as you own the land. At least you could until June 1 if you live in a border county.

The complications began two years ago when the Texas Legislature authorized the changes to the law governing the Texas Residential Construction Commission (TRCC) that required builders to construct residential units in compliance with the residential building code. For good reasons this year the Texas Legislature abolished the TRCC and with it the imposition of the statewide residential building code.

We decided several years ago to support legislation by Senator Eddie Lucio (D-Brownsville) that new homes constructed outside of incorporated areas be built in compliance with standard residential building codes. These codes exist for a reason. They protect people from the dangers of electrocution, fires and disease caused by improper plumbing and electrical work. If a home is to be a financial asset and not simply be an ongoing financial liability then it needs to be built to comply with physical standards to ensure that the home does not prematurely deteriorate or fall down.

We advocate this violation of the Daniel Boone ethic of homeowner freedoom with some caveats.

First, we have insisted that any legislation imposing building standards on existing homeowners not impose harsh financial or criminal penalties on low-income homeowners who lack the financial resources to bring their homes into compliance with the new building codes. This is not an idle concern. When the Texas Legislature granted counties the ability to regulate septic tanks in unincorporated areas, El Paso County undertook an aggressive enforcement campaign. County inspectors went into the colonias and began assessing fines on residents of colonias for having improperly installed septic systems. When government begins fining poor people for their substandard living conditions something is obviously wrong. In the case of the septic system fiasco, low=income homeowners were at times spending all of their money paying fines for having bad septic tanks instead of fixing their septic tanks.

Hence, our insistence that any legislation requiring previously non-compliant homes in unincorporated areas to meet building standards had to contain a grandfather provision to protect existing low income homeowners from being fined out of their homes. Legislation offered by State Sen. Eddie Lucio (SB 1370), which we supported, contained such a provision. It prohibited county governments from fining homeowners with a substandard homes for being out of compliance with building codes unless the county made available low-interest loans or grants for home repairs that the homeowners refused to accept.

Sen. Lucio’s legislation was passed by the Texas Senate for the past couple of legislative sessions only to die in the Texas House. Over in the House the sentiment for protecting private property rights from government regulation has repeatedly blocked efforts to extend county government powers to regulate development, including Senator Lucio’s bill.

Yet a building codes bill did pass the session. HB 2833 by Rep. Marquez (D-El Paso) and Sen. Shapleigh (D-El Paso). [Both of whom worked with us to improve the bill, for which we are very grateful.]

HB 2833 was rushed through in the final days of the session and is far from a perfect bill. The saying goes that you don’t want to watch the process of legislation being made. That also applies in the case of HB 2833 to the final bill in itself. It is contradictory and will present a host of problems as counties try to implement it.

The bill applies to any house or duplex constructed on a vacant lot and also to any addition to a residence that increases the size of the residence or it’s value by more than 50%. The bill does not apply to mobile homes.

The bill permits counties within 50 miles of the Texas-Mexico border, with a population of 100 or more, to adopt the bill’s provisions by resolution of the commissioners court. Once adopted, a person who builds or adds onto a residence has to arrange for three inspections to be performed while the house is being built to ensure compliance with building codes. The inspector can be a licensed engineer, a registered architect, a professional inspector licensed by the Texas Real Estate Commission, a building inspector employed by the county or city or another certified inspector.

Precisely how this is going to work is unclear.

The first problem is how are colonia residents going to find out about this requirement in the first place? If they don’t know about the law, and don’t secure the necessary inspections at the three stages of construction they will be out of compliance and subject to injunctive action by the county. Conceivably, the county could seek an injunction to require the house to be demolished in that case.

Second, where does the colonia resident obtain a list of inspectors? Who regulates how much the inspectors can charge? Who handles disputes between the homeowners and the inspectors? If an inspector does not approve the work, can the homeowner just hire another inspector? How is the quality of the inspectors’ work overseen?

None of these questions are addressed in the legislation.

If this hire your own inspector approach seems strange, well, it is. A more traditional and straightforward approach would have been to provide that a homeowner to go to the county, apply for a building permit, and have a county employee inspect the home as it was being built. The hire your own inspector approach is the legacy of the Texas Residential Construction Commission, a state agency created of the Texas homebuilders’ lobby. The homebuilders did not want to subject themselves to review by government inspectors. They preferred to hire an inspector of their choosing, in their own employ, to review their compliance with building codes. This is a good deal for the builder but a bad one for the homeowner.

The TRCC itself was the creation of the Texas homebuilders lobby. It was created to force homeowners who were dissatisfied with the work of their homebuilder to go through a lengthy and drawn out dispute resolution process mediated by the TRCC. In the wake of widespread consumer anger, the Legislature this session did away with the TRCC.

This session’s new home inspection bill was sponsored by two members of the El Paso legislative delegation. “When we saw that regulations were disappearing, we knew we had to do something to ensure that substandard housing did not crop up overnight across the state. In the border counties, we have been fighting that very circumstance for years,” said Representative Marquez (D-El Paso), the House sponsor, said in a press release proclaiming the bill “a major victory” for herself and for Texas homeowners.

“Today, all of Texas wins. Border counties finally get some authority to regulate building and the rest of the state avoids the problems we have lived with in El Paso,” she said.

I am quite a bit more skeptical about the effect of the legislation.

The home builders lobby was not about to roll over and allow themselves to be subjected to government enforcement of building codes outside of incorporated areas. Hence, the requirements in this bill that a homebuilder hire their own inspector. The law was written to favor the interests of the homebuilders while ignoring the practical difficulties of forcing low income colonia residents, who build their homes with their own labor, to independently contract with home inspectors.

A second provision of the bill requires a person building a house to provide notice to the county of the location of the house, the date they intend to begin construction and the building code that will be used. The county can also require that the builder notify the county within 10 days of the final inspection that the house is complete.

Yet, in an apparent contradiction to the requirement that the homebuilder provide advance notice to the county that they intend to build a house, another section of the bill provides that the new law “may not be construed to require prior approval by the county before the beginning of new residential construction.” Apparently the Legislature is trying to distinguish between providing notification to the county and securing approval of the county. The difference between the two beats me.

The legislation grants the county the authority to bring suit in District Court to “obtain appropriate injunctive relief to prevent a violation or threatened violation of a standard or notice required under this subchapter from continuing or occurring.” It further provides that a violation of this law is a Class C misdemeanor. But the bill exempts (at our urging and thanks to the bill sponsors) from the misdemeanor fine new residential construction built by the individual or an individual acting as their own contractor provided that the individual intends to use the residence as their primary home.

This is important because the Texas Penal Code in Section 12.03(c) provides that conviction of a Class C misdemeanor is punishable by a fine not to exceed $500. We anticipate that compliance among colonia residents with this law will be spotty at best because, at least initially, they will have a hard time finding out that the new law exists.

We were were especially worried about the impact on homeowners with previous unrelated misdemeanor convictions. Cumulatively, the results could be serious, including the potential for jail time.

Daniel Boone and today’s colonia residents

The Daniel Boone ethic of homeowner freedom is dying in Texas.

Today’s colonia residents have more in common with Daniel Boone than one might suspect, not just by virtue of their self-reliant and independent character but by the way they are treated by their government.

As one historian has noted…

Boone the trailblazer was too unsophisticated for the civilization which followed him and which eventually defrauded him of his land. Boone was dogged by debts, lawsuits, and land-record technicalities until, as one of his kin said – exaggerating slightly – at the time of his death he did not own enough land to make a decent grave.