Residents in the unincorporated area around Katy are voicing their opposition and organizing against two planned developments. The first was a proposed 171-unit apartment complex in Harris County at the intersection of Westgreen Boulevard and Highland Knolls Drive. The second was a Walmart store in Fort Bend County planned for FM 1463 and FM 1093. In both cases residents created petitions—garnering 2,331 and 1,697 signatures, respectively—contacted local officials and attended public meetings to express their concerns.
During the ensuing discussions in the community and online, one theme emerged. There are many layers of governance that may affect development in unincorporated areas, under most circumstances, there is little residents can do, aside from convincing the developer to alter the plans to change a proposed project from being built next door to their neighborhood.
The county's role
The county is perhaps the most public of governing bodies with a say in new development in the unincorporated Katy area. Fort Bend County Precinct 3 Commissioner Andy Meyers' office got an earful from residents opposed to the planned construction of a 182,000-square-foot Walmart Supercenter, Meyers said. The commissioner's court, however, is limited in its powers and cannot reject the development based solely on public opinion, he said.
"The authority counties have regarding residential and commercial development is approval of plats when a property owner subdivides his or her land," Meyers said.
Counties cannot regulate the size or type of buildings—as a city might—but determine according to the property owner's plans whether there will be adequate water and sewer, detention and drainage, and roads for the development.
The 93-acre Lovett development includes at least 15 pad sites for other businesses in addition to Walmart as well as room for a multifamily complex. Lovett is awaiting final approval from the Texas Commission on Environmental Quality, a state agency that reviews permits for water and sewers against a set of environmental standards.
The permit was initially approved by the TCEQ executive director but was appealed by Meyers and others with a request for a public hearing. The hearing is scheduled for 10 a.m. May 29 at the Fort Bend County Justice Center, Meyers said.
"Most of the time there is no opposition to a TCEQ permit," Meyers said. "But there is a process for affected persons to request a hearing."
Unlike most other such hearings, which are considered by the TCEQ commissioners, this one will be arbitrated by a judge from the State Office of Administrative Hearings first, TCEQ spokesperson Andrea Romorrow said. The process looks something like a civil court proceedings, she said. Afterwards the judge will make a recommendation to the TCEQ commission for a final decision.
The specific objections raised by Meyers, as well as Fulshear Mayor Thomas Kuykendall Jr. and a dozen or more other parties, are largely related to the proposed discharge of wastewater into nearby Flewellen Creek and the developer's resistance to work with the existing Municipal Utility District to expand its capacity to handle the new development, according to documents submitted to TCEQ.
Meyers said that several MUDs currently discharge into the creek and officials are concerned that the additional volume would create a potential health problem.
"Our complaint has to do with making certain that we don't create a public health issue," he said. "Obviously we want assurances that it's not going to create any kind of health problems. The responsibility is on the developer's shoulders to demonstrate that it does not create a problem."
TCEQ will likely try to resolve the dispute before the hearing, Meyers said. One potential resolution would be for the developer to get water and sewer from an existing MUD with a discharge permit so another does not have to be built.
Residents, however, are more vocal about other aspects of the development. In comments attached to the online petition against the development at www.change.org, residents note concerns about property values, crime and traffic.
"It will most likely bring down our property values and create huge traffic problems," one respondent wrote. "We do not need another Walmart so close, and the apartments will be a huge negative to this area of lovely homes and quiet streets."
Almost identical grounds were given against the apartments at Westgreen in December. In that situation, despite the opposition, Nottingham Country MUD president Ray Pavlovich said there is not much the MUD can do to intervene.
The only thing the MUD can do is respond to the request for water and sewer, he said.
"If it has the capacity it can't turn them down," Pavlovich said.
If the group tried to interfere, it would be a guaranteed way to get sued and lose, he said.
However, petitions addressed to county commissioners with thousands of signatures can often be used to negotiate with the developer, Meyers said. But a resident petition by itself does not require the developer to take any specific actions.
"I have met with the developer [Lovett] several times in an attempt to address my concerns without success," Meyers said. "A petition from the community expressing its concerns will certainly help my efforts."
Improvement district
One additional factor in the negotiations with the 93-acre Lovett and Walmart development was the creation of an Improvement District for the property in 2013.
Sen. Glenn Hegar, R–Katy, and Rep. John Zerwas, R–Richmond, introduced a set of bills at the state house that created the district. Such districts are fairly common types of political subdivisions of the state that are used to administer and provide for infrastructure, said Lisa Craven, chief of staff for Hegar's office. They have the power to levy both property and sales taxes.
Ideally, such districts can pay for infrastructure without burdening taxpayers who already live in a specific area, she said. Most often, they provide roads, water and sewer, drainage, and perhaps even parks, Craven said.
If a developer wants to build on certain property, he or she could go to the local city or county and ask for taxpayer-funded infrastructure to be provided. Alternatively, the developer can petition to create an improvement district, then pay for the infrastructure out of pocket. As more people or businesses move onto the developer's land, the new occupants pay a property tax, levied by the Improvement District, that reimburses the developer for the infrastructure.
Meyers said that since this is a matter taken up by the state legislature, the county commissioners have limited input. The commission can, however, ask that legislators opt not to sponsor the bills.
When the district was proposed in February 2013 for the Walmart development, Meyers objected to the legislation and requested the House and Senate sponsors of the legislation pull the bill.
His opposition stemmed from a belief that individuals who can vote to levy a tax should be elected, not appointed by a developer, he said. This allows the taxpayers to have a voice if they do not like the tax.
He also objected to this particular district's ability to levy a one cent sales tax that can be used to reimburse the developers for costs.
"From that standpoint the community at large will pay for it," Meyers said. "The reality is that this is a private entity that levies a tax against the general public for a specific purpose that benefits essentially just that development."
Meyers said he has asked the developer and Walmart to use some of that revenue to provide additional security, more green space, and a nicer architectural features, to make a development that is aesthetically more compatible with the area around it. They are still in negotiations, he said.
Despite Meyer's objections, the bill was passed and signed into law at the end of the session.
Meyers said he has an excellent working relationship with the bill's sponsors Hegar and Zerwas and the county had not previously objected to similar legislation.
"I oppose Improvement Districts, but other commissioners have not expressed opposition to their creation," Meyers said. "The earlier Improvement Districts that were passed were not created in my precinct, so I didn't object to them."
The sales tax revenue is not likely to provide the sort of public facilities that he believes such levies should. The county, on its own, has created a County Assistance District for the property, which will collect an additional one cent in sales tax, he said.
HOAs
In discussions about the Westgreen and Highland Knolls apartments, a number of residents approached their home owners associations to see if there was a way to prevent or regulate the development.
But HOAs only have the ability to regulate internally, not externally, said Gregory Cagle, author of Texas Homeowner's Association Law and partner at the law firm of Savrick, Schumann, Johnson, McGarr, Kaminski & Shirley, L.L.P., in Austin.
They are similar to MUDs and Improvement Districts in that way, he said. Covenants only regulate development on their property. These internal regulations are beholden to a different set of rules—as they are contractual obligations—than governmental zoning, which is a form of public law.
"HOA presidents or administrators can stand up at a commissioners or city council meeting and say 'We're opposed,' and that's about it," Cagle said.
In short, Cagle said, a group of HOAs that have decided to speak against a development outside their boundaries has a loud political voice but little legal standing.
