Of all the legislation coming out of Austin in 2019, it’s House Bill 2439 that has some city officials in Ellis County worried the most.
The bill, which is now law, involves new construction in the Lone Star State, and Ellis County is especially affected because of its accelerating growth.
Some cities, such as Waxahachie, are not as affected by the new law because there aren’t as many restrictive building codes on the books.
“All it really changes for us is that we just now have to refer to the International Building Code, which is what this bill mandates,” Waxahachie director of communications and marketing Amy Borders told the Daily Light in an email.
However, other cities such as Midlothian, which has strict commercial and residential construction rules, have had their ordinances nullified.
In general, the law forbids cities and other governmental agencies from prohibiting the use of building products or materials that have been approved for use by the International Building Code within the last three code cycles.
The IBC lists up to 43 different exterior wall materials, ranging from aluminum siding to shingles to terra cotta and much, much more.
HB 2439, which was sponsored by Rep. Dade Phelan (R-Beaumont), is the result of a push by home builders, realtors and others in the construction industry. It effectively nullifies a patchwork of building ordinances established by hundreds of Texas cities.
Gov. Greg Abbott signed the bill, which received overwhelming support in both legislative chambers, into law in June in spite of urgent requests by cities for Abbott to veto the bill. The new law went into effect on Sept. 1.
Advocates for the law say it’s meant to keep building costs down and prevent cities from requiring certain vendors. The bill does exempt historical, cultural and architecturally significant areas, as well as buildings developed in the Main Street program. But Midlothian is concerned that the law will impact its rigorous building standards.
“We’re certainly concerned about the effects that it could have on how our town looks,” Midlothian city manager Chris Dick said. “Not just our town, but any other town in Texas that has standards in place.”
The law also forbids cities from establishing aesthetic methods in construction, renovation and alterations of residential and commercial buildings. For example, if brick construction was previously required in a city, the new law removes this requirement.
“In a nutshell, what it did was it took away our ability to control building materials that both residential and commercial buildings are made of,” Dick said. “Whereas a lot of towns have an 85-percent or 90-percent masonry requirement, it basically says that anything that is in a national building code can’t be restricted. You can build it.”
Existing residential developments that are already under construction are now concerning to Midlothian officials because a builder could theoretically construct a mishmash of styles. Most developers who have new subdivisions underway are expected to voluntarily maintain home construction styles throughout because of their own investment, but what comes next worries the city.
“There might be a slow erosion (of standards),” assistant city manager Clyde Melick said. “What could happen is they start with three sides being masonry and the back being a different product. Then something else happens, and there’s just the front façade being masonry. You don’t see the difference right away, but it’s a slow degradation of the quality that’s in that subdivision and it happens over time.”'
Dick added that Midlothian has had exceptions to its standards based on each subdivision, but the city’s issue with it is that it took away local control.
“You’ve taken control away from residents and their elected officials to make decisions on what their community’s going to look like,” he said. “Every community is different and … decides what they want to look like. They had those controls, and now those controls have been taken away.”
This continuing loss of local control has become a trend with recent legislative sessions, with several bills passed and signed into law which have overridden municipal ordinances.
“We’ve been seeing a lot of local legislation being pre-empted where the local officials don’t have the power to make policy in their own community,” Dick said. “It’s all at the Austin level. We just think it’s hard for the state of Texas, and the diversity we have across the state, for a group of legislators in Austin to try a ‘one size fits all, everything works’ for the state.
“Up here in the Metroplex, just travel around the different cities and you’ll see vastly different things just within our own geographical area,” Dick added. “That doesn’t take in the western, or the far north or the south part of the state. They’re all different. We just don’t feel like ‘one size fits all’ is the right approach. It seems counter to what Texas has historically been about.”
It’s not known at the moment if any legal challenge to House Bill 2439 will be mounted, but Melick thinks large parts of the law can be contested in court because of its vagueness.
“For one thing, the way it’s written, there’s not any clarity, and it’s evident they expected it to be nailed down in court,” Melick said. “Beyond building materials, it talks about aesthetics and architectural materials and things like that. You talk to five attorneys, you get five different interpretations of the law. We spent the time from when the governor signed it to Sept. 1 trying to figure out what it means.”
Both Dick and Melick said building standards are important because what is built will remain for many decades. In Midlothian’s case, the construction is just beginning. Melick said the city has been consistently approving 450 residential building permits per year and adding about 1,500 people.
“We’ve been growing for 10 or so years, but we haven’t reached that maturity stage where we’re almost built out,” Dick said. “We’ve got a lot of land to build on yet. A town like Plano that is 95 percent built out, there’s not a whole lot that can change the character of that city at that point. But with us, at 65 square miles, that gives us a lot of room to grow and without the ability to regulate that growth in any shape, form or fashion, it ties the locals’ hands.”