Dateline: Hays County

In June, the five members of the Hays County Commissioners Court did what, until recently, would have been almost unthinkable: They effectively stopped expansion of a huge, upscale subdivision. For many years, developers have had their way in this booming county of 130,000 people southwest of Austin. So when the owners of Belterra-a sprawling, 1,600-acre subdivision in the fast-growing Dripping Springs area-sought a permit to pour treated wastewater into a creek in the recharge zone of the Trinity Aquifer, many people assumed they would get it. “Not so long ago, the county commission probably wouldn’t have even blinked at such a permit,” says Charles O’Dell, a longtime Hays County government watchdog and author of the widely read Hays County Roundup blog. The rejection of the Belterra permit was all the more surprising because all the other parties involved, including the city of Austin with its far more stringent development rules, had decided to hold their noses and go along with it. They thought the terms of the permit were the best deal they were going to get, in part because counties in Texas have so little say over how their land is developed.

Hays County’s opposition stunned the developers and many county government observers. But it was really only the latest manifestation of a change in Hill Country politics brought on by rampaging growth. Development was once seen as an undisputed sign of progress. Now, all across the Hill Country, county governments are trying to protect their resources from the wave of new subdivisions. Hill Country counties recently banded together to lobby the Texas Legislature-where the powerful home building industry dominates-to grant counties more authority over how land is utilized. They’re fighting to slow down growth before it swallows their natural resources.

Nowhere has the politics of development changed more starkly than in Hays County. Perhaps no one in the county signifies that change like Will Conley, an easy-to-talk-to, teddy bear kind of guy who recently won his second term as county commissioner. Conley is a self-described staunch conservative. He’s the only remaining Republican on the Hays County Commissioners Court after the 2006 election swept Democrats into power. Conley voted to stop the Belterra development along with the rest of the commission. “The idea of wastewater into Bear Creek didn’t seem appropriate at all,” says Conley, sounding a bit like a tree hugger. In fact, Conley also describes himself as a conservationist.

Some critics say Conley’s environmentalism has more to do with political survival. “His voting against Belterra has more to do with shifting political winds than any real change of philosophy,” O’Dell says.

Whether Conley fits among the new wave or the old guard depends on whom you believe, but there is little disagreement that the old guard brought their political downfall upon themselves.

For the last decade, Hays and other Hill County counties elected solidly Republican commissioners whose political mantras were property rights and “progress,” which, to detractors, is code for a green light to developers.

“It was the classic good old boy system here in Hays County,” O’Dell says. “Today, things are different. There’s still some of them around, but a lot of the good old boys are gone or got religion about uncontrolled growth.”

As numerous subdivisions replaced rural countryside, Hays County’s population swelled by more than 34 percent between 2000 and 2006, according to the U.S. Census Bureau.

The development free-for-all that the old guard so happily encouraged eventually led to voter revolt. Water wells went dry in one neighborhood. The roads filled to capacity and then some. Construction zones and cement trucks were a fact of everyday Hays County life. Finally, people got mad. In 2006 the old guard was booted out, ironically, mostly by the very newcomer voters they had encouraged to move in. In their places are Democrats and Will Conley. It was as if Hays County jumped from the 19th century into the 21st century in one election cycle.

“The demographics of Hays County changed,” Conley says. “All these new people expect more from government. The bar has risen.”

Not only are things different in Hays County; there are signs of more profound change sweeping across the entire Hill Country.

Like Hays, other Hill Country counties, sandwiched in-between or fringing the booming cities of Austin and San Antonio, have been getting walloped by suburban sprawl. Massive rural subdivisions overwhelm county roads and schools. Thousands of new water wells are dipping into finite aquifer reservoirs. As a result, the Edwards Aquifer is perilously low, and counties are scrambling to provide new infrastructure and basic services.

Faced with all this, 16 counties-calling themselves the Hill Country Coalition of Counties and being led by Democrat Liz Sumpter, the Hays County judge-have rebelled against state law that restricts how counties can govern their own land. They hope to convince state lawmakers to grant them more power to slow down development.

The main obstacle for Hill Country officials hoping to slow growth is that Texas counties have little say over how their land is used. In Texas, you can put a rock crusher next to a school or hospital in just about any unincorporated area. Unlike cities and towns, counties have no say in where subdivisions, even massive, high-impact projects like Belterra, are sited. Counties cannot assess fees on developers for roads, fire and police protection, and traffic controls. They can’t say no if someone wants to build a motocross track next to schools or homes. They can’t limit lot sizes or say no to developments with private wells that might lower the aquifer and threaten older wells nearby. In Texas, beyond fire and police protection, county government can do very little to protect the environment or quality of life.

Counties try to govern land use through the few tools at their disposal, mostly through wastewater permits, and water availability and drainage issues, on which state law allows county governments some voice. In that sense, Hays County lawmakers blocked the Belterra development the only way they could. In fact, Hays County’s opposition to the Belterra wastewater permit is a good example of the limits of county government. Hays County has no actual authority to reject the permit; local officials can only make a statement of opposition. It falls ultimately to the Texas Commission on Environmental Quality to make the final decision, although it can be appealed in state court. In the end, Hays County’s great victory may only delay the Belterra wastewater permit.

The Texas Legislature doles out land-use authority like starvation rations. Suburban counties in Texas have fought for more land-use authority for years. (Some rural counties in Texas, with little growth, often don’t want more land-use authority or zoning authority because of the expense of maintaining the added bureaucracy.) But the issue has gained new urgency because the Hill Country is straining from so much development.

“We’re under siege here with growth,” says Gene Miertschin, a Kendall County commissioner. “My precinct in Kendall County [just north of San Antonio] is a perfect example of the problems we’re having … For every $1 we collect in taxes [from new subdivisions], we pay out about $1.27 in services. We need to be able to assess some impact fees on these developers to help pay for new roads, but we don’t have the power to do it. We just don’t have enough to work with.”

Kendall County tried to gain some of that power during the last legislative session, in 2007. Perhaps a little naively, county lawmakers even wrote a draft of the bill themselves to help facilitate the process. It never made it out of committee, in part because it contained the fatal words “impact fees,” Miertschin says. “Our own representative at that time told us he would be thrown off the floor of the House if he even mentioned the words ‘impact fees.'”

This time, when the Hill Country Coalition pitches its legislation to lawmakers during the legislative session that begins in January, impact fees will be rephrased as safe road funds. Such a feint is probably not going to dissuade the opposition.

The powers arrayed against reform of county land-use laws are formidable. As just one example, the Texas Association of Builders, through its political action committee, HOMEPAC, is one of the state’s most prolific campaign contributors. In 2006, the PAC gave more than half-a-million dollars to the campaign committees of 224 legislators, judges, and state officials, Democrat and Republican, according to Texans for Public Justice, a nonpartisan campaign watchdog group. Gov. Rick Perry received more than $71,000.

HOMEPAC opposes broadening county land-use authority, says Interim Executive Director Scott Norman, with the exception of allowing counties to create some buffers between noisy industry and housing. Norman says that if counties could assess impact fees, then those costs would fall to homeowners, and “especially entry level buyers will be priced out of the market.” (“I don’t think so,” responds Judge Sumpter. “Impact fees for roads, which is all we’re probably going to be asking for, would increase prices only a small percentage.”)

HOMEPAC is hardly alone. Other powerful and well-funded groups such as the Texas Realtors Association and the Farm Bureau also oppose the counties’ efforts.

Even if the Legislature does make new law regarding county powers, it is likely to make them “permissive,” says Miertschin, the Kendall County commissioner, which means voters in each county would decide if the commission should have new powers. Those local elections would be another opportunity for developers and homebuilders to defeat county land-use reform. “The big money opposition will come out with both barrels,” Miertschin predicts. “They will give it their spin about property rights being threatened. County government just doesn’t have any money to get our message across.”

He adds, “I’m hoping for the best, but fearing the worst.”

Rusty Middleton specializes in writing about natural resources and the environment. He can be contacted at [email protected].

Investigative reporting for this article was supported, in part, by a grant from the Open Society Institute.