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Dear Readers,
At last week's Texas Association of Community Schools' 5th Annual Practical Hands-On Facilities & Construction for Community School Districts & Community Colleges Advice Conference a number of attendees raised questions about the power of a city or county to require school districts to landscape or otherwise 'beautify' school district grounds. While it is best to always try and work out your difficulties with the political subdivisions you serve and who serve you (for they are not going anywhere and neither are you!), a public school district or junior college district cannot be required by city or county ordinance to comply with landscaping or land use mandates that do not also have as their primary purpose health, safety and welfare. Cities possess no inherent powers of zoning and are limited to the power conferred on them by statute. The Office of the Attorney General of the State of Texas has stated very clearly that the building and zoning ordinances of cities are an exercise of police power delegated to them by the state for the aforementioned primary purposes, but this grant of power is not considered a surrender of the legislature's right to regulate the state's own property which may happen to be located within a city. (To see the Attorney General's Opinion No. JM-117 please CLICK HERE.)
What do we mean by this? If drainage or security or traffic issues result in an ordinance that is reasonable in cost and clearly designed to protect the users of school district property, the ordinance is most likely defensible and within the powers of the city to enact. Cities miss the mark when they require expensive trees, which often product a visual obstruction and are thus a road hazard, profuse displays of water gobbling plants, or costly wrought iron fences in lieu of the far less costly chain link or other unadorned fencing or profuse displays of water gobbling plants, that cities miss the mark.
The defense from the city council's lips that "we are just requiring the school or the college to do what the private developers are required to do" absolutely misses the point. Cities can do almost anything they like to developers so long as it is not capricious; exactly the opposite rule applies when one political subdivision attempts to enforce its authority over another. It simply cannot do so without a showing that the exercise is defensible for health, safety or welfare reasons. As noted in the case that has shaped much of this area of law, Austin ISD v. City of Sunset Valley, 502 SW2d 670, "This immunity is absolute unless the City in a given instance can show that its exercise is unreasonable or arbitrary."
In your every gardening and landscaping adventure, we wish you the very best.
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