Vested rights at work

Over the weekend, the San Antonio Express-News published a revealing article about how the governmental system in Texas is rigged vastly in the favor of real-estate developers over the needs and desires of the communities of our state.

In short, no matter what laws a community may pass to attempt to regulate and control how it develops for the benefit of its citizens, real estate developers can do whatever they please. All thanks to what a legal concept so unobtrusively called "vested rights."

The scenario from Sunday's article is sadly typical, as revealed in a four-part Express-News report from last October. (1) City wants developer to abide by laws passed roughly a decade ago that require developer to be a good neighbor. (2) Developer objects to obeying current laws and waves around vague 30-year old documents from a previous owner of the land describing a completely different project, claiming that these ancient forms exempt the developer from current law. (3) A governmental entity, beaurocrat or judge, approves the developer's objection thanks to the Texas state law concept of "vested rights." (4) Land development proceeds, making oodles of money for the developer at the expense of the citizens of the community whose laws he has just flouted.

In the specific case reported on Sunday, the developer is John Schaefer and the city is San Antonio.

The 27 acres of plowed earth that Schaefer and city lawyers are skirmishing over lies on the rapidly growing Northeast Side.

Bernard said the city asked Schaefer's engineer to prove that plans for the dense, 150-home development on Crestway Road wouldn't dramatically increase storm-water runoff flowing to a dam on Martinez Creek.

But Schaefer felt the property was already designed to handle the runoff and didn't want to follow the city's 1997 drainage ordinance.
The rules require developers to either pay fees earmarked for flood-control projects, or set aside valuable land for basins that impede runoff.

Schaefer said he didn't have to follow those requirements because of a 1971 planning document known as a plat that had been filed by a previous landowner.

...

The 1971 plat in Schaefer's possession only showed the contours of the property, giving no indication of what was supposed to be built.

Schaefer and his engineer said that didn't matter.

"They've got a plat," said engineer Harry Jewett during a civil deposition. "They can do anything under that, whether it would have been a mobile home park or a subdivision of single-family residences or a skating rink or a shopping mall or whatever."

The result?

In the end, [district court Judge Andy] Mireles granted Schaefer nearly every item on his wish list, including exemptions from the city's drainage rules.

The decision meant Schaefer could use his vague plan, and he was also exempted from ordinances covering safety standards for issues such as street construction.

Until recently, San Antonio bureaucrats appear to have been complicit in this undermining of their own laws. But that has been changing as more and more citizens become concerned with runaway growth:

With the hiring of City Attorney Andrew Martin in 2002, San Antonio officials began challenging more grandfathering claims, although most still are approved. The development industry has turned to an old friend, the Texas Legislature, to seek a remedy.

In the past five years, members of the real estate industry who have publicly supported the vested rights law paid more than $4 million in campaign contributions to Texas lawmakers and spent at least $11.7 million in lobbying fees.

During that time, legislators filed several bills that broadened the type of plans that could trigger exemptions.

So who are the real estate developers' friends in the state capitol that created, and seek to continue, this environment so hostile to local communities?

As those monetary figures above should indicate, there are plenty. And at the top, the list includes the current Governor of Texas, Rick "Goodhair" Perry himself. From the Express-News' October investigation:

When San Antonio's top developers threw a fundraiser last year [2004] for Texas Gov. Rick Perry, architect Steve Heflin [then President of the Greater San Antonio Builders Association] assured colleagues the poolside gala would pay off.

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"All of you who participated and contributed — Gov. Perry thanks you for it," Heflin wrote. "Next year when we are campaigning for vested rights legislation, we know we have a friend at our state capitol."

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Perry, who received nearly $400,000 in the past five years from the [Texas real estate] industry, has signed three vested rights bills.

The legislation broadened the type of permits that trigger exemptions and whittled down the authority of cities to impose development controls.

To help get the government of this state out of the hands of special interests, Governor Perry has got to go.