Our Declaration of Reservations in combination with the filed plat maps, clearly define the location and classifications of all the various platted lots and tracts, a recognized form of zoning.  The Declaration details Land Use, Improvement Structures, Building Codes, a Building Permitting Process, the Responsibilities for Common Area Maintenance and the mechanism for charging Assessments to support that maintenance.

Beyond that, the Declaration of Reservations defines an array of special rights and entitlements for the original developers.  In seperating their business interests Norman Hurd and Wayne Hurd, made a major change to the Declaration of Reservations in 1991, without the necessity for any approval by the property owners.

Included in that change was new provisions for future modifications, which insured that the property owners have no ability to modifiy the Declaration of Reservations without the approval of the two developers.  By definition, the Declaration can be modified with the signature of the owners of 80% of the fee-titled land in the subdivision.  However, the developers have the right to bring additional land into the subdivision at any time, without requiring any approval by the property owners.  Given the fact that our two developers have well over 1,000 acres that they could add to the subdivision, they will continue to control in excess of 20% of the land.

Pursuant to Texas law, even if the property owners could gather the signatures required for a modification of the Declaration of Reservations, Texas Property Code limits such modifications as follows:

§ 201.0051. SPECIAL PETITION APPROVAL REQUIRED FOR CERTAIN RESTRICTIONS. A right created or an obligation imposed by an existing restriction that relates to the developer of the subdivision or an architectural control committee established by the instrument creating the restriction cannot be altered unless the person who has the right or obligation signs and acknowledges the petition. Added by Acts 1997, 75th Leg., ch. 451, § 3, eff. Sept. 1, 1997.

It is believed by some people that because we are now a Type 'A' General Municipality, we can pass a Subdivision Ordinance with Zoning, Platting and Building Restrictions, which will change the existing Zoning, Platting and Building regulations defined in our Declaration of Reservations.  They are likely basing their opinion on the following statute in Local Government Code:

§ 211.013. CONFLICT WITH OTHER LAWS; EXCEPTIONS. (a) If a zoning regulation adopted under this subchapter requires a greater width or size of a yard, court, or other open space, requires a lower building height or fewer number of stories for a building, requires a greater percentage of lot to be left unoccupied, or otherwise imposes higher standards than those required under another statute or local ordinance or regulation, the regulation adopted under this subchapter controls. If the other statute or local ordinance or regulation imposes higher standards, that statute, ordinance, or regulation controls. (b) This subchapter does not authorize the governing body of a municipality to require the removal or destruction of property that exists at the time the governing body implements this subchapter and that is actually and necessarily used in a public service business. (c) This subchapter does not apply to a building, other structure, or land under the control, administration, or jurisdiction of a state or federal agency. (d) This subchapter applies to a privately owned building or other structure and privately owned land when leased to a state agency. Acts 1987, 70th Leg., ch. 149, § 1, eff. Sept. 1, 1987. Amended by Acts 1999, 76th Leg., ch. 476, § 1, eff. June 18, 1999.

While this statute does seem to allow us to more strictly restrict some building standards, it does not address the question of whether that applies to a developer's right to have unrestricted useage.  The following statute specifically applies to newly incorporated areas:

§ 211.016. CONTINUATION OF LAND USE IN NEWLY INCORPORATED AREAS. Text of section as added by Acts 2003, 78th Leg., Ch. 279, § 1 (a) A municipality incorporated after September 1, 2003, may not prohibit a person from: (1) continuing to use land in the area in the manner in which the land was being used on the date of incorporation if the land use was legal at that time; or (2) beginning to use land in the area in the manner that was planned for the land before the 90th day before the effective date of the incorporation if: (A) one or more licenses, certificates, permits, approvals, or other forms of authorization by a governmental entity were required by law for the planned land use; and (B) a completed application for the initial authorization was filed with the governmental entity before the date of incorporation. (b) For purposes of this section, a completed application is filed if the application includes all documents and other information designated as required by the governmental entity in a written notice to the applicant. (c) This section does not prohibit a municipality from imposing: (1) a regulation relating to the location of sexually oriented businesses, as that term is defined by Section 243.002; (2) a municipal ordinance, regulation, or other requirement affecting colonias, as that term is defined by Section 2306.581, Government Code; (3) a regulation relating to preventing imminent destruction of property or injury to persons; (4) a regulation relating to public nuisances; (5) a regulation relating to flood control; (6) a regulation relating to the storage and use of hazardous substances; (7) a regulation relating to the sale and use of fireworks; or (8) a regulation relating to the discharge of firearms. (d) A municipal ordinance or rule in conflict with this section is void. Added by Acts 2003, 78th Leg., ch. 279, § 1, eff. Sept. 1, 2003. For text of section as added by Acts 2003, 78th Leg., ch. 524, § 1, see § 211.016, post.

The developers' uses of their land as "Amenities Land" or "Future Development Land", as defined in our Declaration of Reservations was clearly legal prior to incorporation and the manner in which the developers can begin using their land was defined in our Declaration of Reservations more than 90 days prior to incorporation.  The Texas Municipal League has the following caution for Mayors and Councilmembers:

"Every councilmember needs to know the risks expressly contained in Section 1983, Title 42, of the United States Code:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured."

The literal language of Section 1983 makes all persons, councilmembers included, personally liable for damages if their acts result in depriving others of their civil rights, regardless of whether such acts were reasonable and made in good faith. Additionally, the U.S. Supreme Court has held that Section 1983 does not require proof that a defendant deliberately intended to deprive the plaintiff of his legal rights; the mere deprivation is itself a violation.

An example of potential liability under Section 1983 would be the council’s decision to deny a developer the right to use land by denying a rezoning or building permit to the developer because the construction plans are opposed by a vocal neighborhood group."

It is my belief that if our city council passes a Subdivision Ordinance, which seeks to levy new restrictions on land classified by our Declaration of Reservations as "A-1 - Amenities Land" or "FD - Future Development Land", such action will be challenged by the "Declarant" and/or the "Amenities Owner".  Such a challenge could come in the form of a suit in District Court or a Civil Rights lawsuit filed in Federal Court.  There is also the very real concern that the Amenities Owner can react by exercising other rights he has defined in Section 4.2 of the Declaration of Reservations dealing with "Anciliary Facilities and Club Membership".

Those who attended Doug Jaffe's presentation on July 13th heard him state that if the city acts to inhibit or restrict his development activities, such that it disrupts his operational financial needs, he would be compelled to respond by increasing the dues for Club Members, opening the Resort Facilities to more or total public usage and potentially suspending the Memberships entirely.  There is definately nothing the city government could do in relation to any such decision by the Amenities Owner.

Given the risk of law suits and the possibility of triggering a significant change in the operations of the Club, I do not believe that we should endeavor to enact a Subdivision Ordinance which is anything other than a codification of what's in the existing Declaration of Reservations.

There are ways to have more of a voice in the future development of Horseshoe Bay without trying to ordinance our way into it.

As a Municipality, we have certain opportunities to bring benefits to the table that are appealing to the developers, don't cost the property owners anything, that put us in a position to get concessions from the developers in a process whereby they become clients of Horseshoe Bay and allow the city to become the landlord.   In my various conversations with the developers along these lines, I believe we can come to a concensus.  I would like the opportunity to try this approach first.   If I'm wrong, future councils can always pass an adversarial ordinance and try to accomplish the objective that way.