Tuesday, December 21, 2010

The county’s responsibility

Part 1, Central Texas Airport: The county’s responsibility
By Cyndi Wright
Bastrop Advertiser
December 10, 2010

Part 2 of this series will examine the City of Bastrop’s steps in regards to the Central Texas Airport, which will exist inside the city’s extraterritorial jurisdiction. Part 3 will present citizens voices, both pro and con, for the CTA project.

Is Bastrop County doing all it can to protect its citizens and maintain the great quality of life many people moved here for, while at the same time promoting economic development?

For some residents, especially those who currently find themselves living near the proposed Central Texas Airport in Cedar Creek, it may seem as though there are not enough steps being taken by the county to ensure not only their safety and well-being, but also the safety and well-being of the environment.

But the cold facts are that counties in Texas have almost no power to stop, or even regulate, development within their boundaries. Unlike home-rule cities, who have zoning and other regulatory powers and can almost make their own rules, counties must operate under laws established by state legislation that are not specific to an individual county’s needs. And, that legislation does not allow counties to do much more than regulate subdivision growth.

“People move out to the country for the freedom from city regulations but then they still want the coverage,” said Ronnie Moore, the county’s engineer. “Counties cannot govern like a home-rule city. We can only enforce the statutes and laws of the Texas constitution.”

Counties have no zoning authority and have limited ability to regulate land use – primarily through approval of plats (the dividing of land). So what happens when a developer such as Carpenter and Associates, the main force behind the proposed Central Texas Airport comes to the county?

Besides having no real power to say no to a privately-funded development, such as the CTA, the county could find itself in legal trouble if it tried to – and would have to spend taxpayer money to defend itself in a battle it would most likely lose.

However, counties have learned through experience that while they cannot stop such development, they can come to the negotiating table and try to find ways to make these developments more palatable to the people who will be affected most – the county’s residents.

In this particular case, since part of the land that Carpenter and Associates are planning to build on is in a flood plain, the county can impose some regulations related to flooding impacts. If the developer decides to subdivide and it requires platting, the county has some authority over that with regards to roads and utilities. But the best negotiating tool the county has in its box by far is the 381 agreement – an economic development agreement that allows for financial incentives as a way to control how something is developed. Additionally, for the developer to pursue other opportunities through the Texas Legislature, having the county’s approval is a necessity and the county can withhold that approval until the developer agrees to meet certain requirements set forth in the 381.

“The most effective way a county can regulate is through incentives,” Moore said.

The county has entered into one other 381 agreement – with Burleson Crossing developers – and used that agreement as a skeleton for the one they currently have with Carpenter and Associates.

“We want to make sure we are not putting the county at risk,” said County Judge Ronnie McDonald. “We want to make sure the county is protected and if the developer does follow through (with the requirements set forth in the 381 agreement), then the county benefits.”

Tax rebates

Under the 381 agreement with the county, the developer will receive back 75 percent of the ad valorem taxes, a tax based on the value of real estate or personal property, paid each year for a period of 30 years, the length the 381 agreement is in force. The developer is also entitled to 75 percent back of any sales and use taxes remitted to the county by the state comptroller.

So, under this agreement, is the county giving away what amounts to taxpayers’ money to a developer? At first blush it may look that way, but in reality, the land the developer is looking at is currently an agricultural property – and the taxes collected are in line with that.

If someone comes in and puts millions of dollars of improvements on the land, such as what Carpenter and Associates are proposing, the value of the land increases in proportion. So, even though the county may rebate 75 percent of that tax back to the developer for 30 years, the 25 percent the county (and Elgin ISD) will collect, will still amount to much more than is currently being collected.

“It’s strictly performance based,” McDonald said. “Money they receive back is money they brought in – in investment and increased value to the property.”

Part 139

Much of the anger expressed lately by foes of the CTA has focused on a clause the county inserted into the 381 agreement.

In 2004, the FAA issued a rule that established certification requirements for airports serving aircraft designed for more than nine passenger seats. If larger aircraft, such as the ones flown by Delta and Southwest, ever want to land at Central Texas Airport, that airport must have a 14 CFR Part 139 certificate on file.

There are several basic tenets to a Part 139, including inspections by FAA airport certification safety inspectors for such things as pavement conditions, markings, lighting, presence of wildlife and traffic and wind direction indicators.

The county does not have the authority to impose – or not impose – whether an airport in its borders follows federal regulations. Whether an airport is liable to certain federal regulations depends entirely on the airport, its funding (whether federal or private) and its size and scope.

By inserting a clause into the 381 agreement that says in effect that the CTA will never be required to have a Part 139 certificate, the county has ensured that a possible future owner of the CTA will never be able to change this airport into one that services scheduled airlines that carry more than nine passenger seats or unscheduled airlines that carry more than 31 passenger seats.

“We wanted to have a safeguard to ensure that it would never become that type of airport,” Moore said.

Since this airport as it is proposed is to be privately financed, there is no requirement by the federal government for an environmental assessment. Since the federal government does not require such an assessment, the county cannot force the developers into getting one.

The promises

As part of going into a 381 agreement with CTA, the county has asked that certain requirements be met. As discussed, these typically focus on financial incentives for the company that help a Texas county negotiate for economic development that fits in with the safety and well-being of its residents.

Some of the requirements set forth in the 381 with the CTA include that the CTA agrees to use reasonable efforts to begin phase one of the airport improvements to begin by June 30, 2012 and be completed no later than June 30, 2014 (the same restrictions apply to commercial improvements in the project).

“As a county, if there is an opportunity for economic development in our area, as good government we should have a process for analyzing that in a fair way to see if it is good for our county and citizens,” McDonald said. “We need to use a fair system of evaluation that protects the citizens while providing for positive economic growth.”


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