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Anyone interested in learning how to form a 391 Commission to require TxDOT to Coordinate the TTC with their local community, is welcome to read the following article prepared by attorney Fred Kelly Grant. This is the most complete explanation of how easy it is to form a Commission, and how effective it can be.
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Related Link: Texas 391 Commission Alliance
March 5, 2008
By Fred Kelly Grant
Stewards of the Range
In July 2007, the mayors of four small Texas towns -- Mae Smith of Holland, Arthur White of Bartlett, Ronnie White of Little River-Academy, and Billy Crow of Rogers -- decided to find a way to make their concerns about the Trans Texas Corridor (TTC) heard in a meaningful way.
They and their citizens, and the officials of their related Independent School Districts, worried about the lack of specific information regarding where the TTC 35 Corridor would be located, worried whether it would geographically divide their towns and school districts, whether it would endanger the continued existence of the agricultural economy upon which their towns, districts and citizens depended, whether it would endanger their very traditional rural way of life.
They found the way. The Texas legislature had paved the way with a very important 2001 amendment to the Local Government Code, an amendment that clearly recognized the authority of local government officials to enter into a meaningful government-to-government relationship with state agencies.
A. Early Local Rural Concerns
From the inception of the plans by the state of Texas to study and develop the TTC 35 corridor for the Trans Texas superhighway system, the towns of Holland, Bartlett, Little-River Academy and Rogers, Texas were concerned that the interests of rural citizens would not be seriously considered.
The local elected officials, and citizens of these towns attended public meetings, and voiced their opposition to super-corridor planning disruptive of their agricultural economic base and traditions, their water and other local infrastructures, and delivery of their local police, medical and fire services. They voiced their concern that their interests in preserving and maintaining their rural life-style were being ignored in favor of the interest of larger urban areas in avoiding transportation inconvenience.
They were also concerned that they could not get specific details as to the study areas being proposed by the Texas Department of Transportation (TxDOT), the preferred study area, and the designation of a highway corridor. At the public meetings, TxDOT personnel presented general information which heightened local concerns about destruction of the Blacklands Prairie, an historic area of productive farm ground critical to the economy of their towns, and about the potential geographic division of their towns and school districts by alignment of a closed or severely limited access super-highway.
School district representatives were concerned that the interests of the parents, students, teachers and personnel of their districts were not even being discussed by state planners/designers.
B. Creation of the Eastern Central Texas Sub-Regional Planning Commission
The mayors of the four towns decided to propose to their respective city councils that they form a 391 statutory sub-regional planning commission to facilitate closely focused and coordinated discussions with TXDOT and other agencies involved in the planning of the TTC 35 corridor. They proposed that a sub-regional planning commission be established for consideration and coordination of the special and unique planning needs of the area east of IH-35 within planning region 23 of the State.
The city councils agreed, and passed ordinances creating a 391 statutory planning commission for their area to be called the Eastern Central Texas Sub-Regional Planning Commission (ECTSRPC). (A copy of the ordinance from Holland, Texas is available at www.stewards.us, the other three cities ordinances were similar.)
The purpose was to “coordinate with governmental units sharing similar needs to plan for the rapidly expanding population of the State and the unique needs of governmental units east of IH-35.” The ordinances provided that the communities “have a culture carrying forward the rural values of the state of Texas which requires consideration in planning for development which impacts the unique character” within the sub-region.
Following enactment of the ordinances, the mayors met and organized the Planning Commission. The Governing Board of the Commission consists of the four mayors and a business owner within the sub-regional jurisdiction.
The Commission launched its efforts in August, 2007. One of the first orders of business was to notify TxDOT of the formation of the Commission and to request that TxDOT begin to coordinate with the Commission as required by Chapter 391 of the Texas Local Government Code.
Prior to the first coordination meeting, the Holland, Bartlett, Academy and Rogers School Districts joined the Commission as general, non-voting members, to join with the Governing Board in securing and protecting the educational interests of their local districts.
C. Coordination with TXDOT
On October 23, 2007, the first coordination meeting was held in Holland. Four representatives of TxDOT -- the Environmental Manager for the Turnpike Division, the Director of Corridor Development for the Turnpike Authority Division in Austin, the Area Engineer in the Waco District, and the Public Information Officer for the Waco Division -- attended.
Neither before, during, or after the meeting did any of TxDOT’s representatives challenge the Commission’s statutory authority to establish a coordination relationship with the Department under Chapter 391.
TxDOT’s representatives described the first meeting as “the beginning of what is going to be a long-term relationship between the Department of Transportation and this group.” They expressed their acknowledgement that they were starting a “dialogue” that would be “an on going dialogue…for many years to come.”
TxDOT’s representatives also recognized that the Commission has authority to speak at a level that must be listened to “a step above the general public” because TxDOT wants “to hear what the elected officials say because they’re speaking for a larger group of their constituents.”
Again, on March 3, 2008, TxDOT sent a group of eight representatives of planning, administration and engineering to meet with the Commission in Holland. Specific concerns of the local citizens were presented, and TxDOT’s representatives answered specific and general questions as to how the concerns would be considered. The meeting lasted nearly four hours, most of which were taken up in specific questions and answers regarding the projected adverse impacts on local economy and delivery of services. TxDOT’s representatives committed to providing specific information requested by the Commission members at future coordination meetings.
D. Coordination with U.S. Environmental Protection Agency
The individual mayors and school district officials, in behalf of their respective interests, also advised Region 6 of the United States Environmental Protection Agency (EPA) that they expected coordination with EPA during its review of TxDOT’s Draft Environmental Impact Statement (DEIS) as to the TTC 35 corridor. On January 30, 2008, the manager for planning and coordination for the Dallas Regional EPA Office, the NEPA attorney, and two planning specialists for Clean Air reviews traveled to Holland to meet with the elected officials and the Eastern Central Texas Sub-Regional Planning Commission.
During the meeting, the Commission specified concerns about the fact that the DEIS does not demonstrate recognition of adverse impacts on the economy of the sub-region, on air and water quality, on delivery of local emergency fire, police and medical services, on continuation of publicly recognized high level educational services, and on agricultural productivity in the Blacklands Prairie through which the proposed corridor runs.
The EPA staff acknowledged that Commission interests would be reviewed as the DEIS is reviewed by EPA.
E. The Statutory Basis for the Commission’s Success in Establishing the Coordination Relationship
In 1965, the Texas legislature enacted Chapter 391 as part of Subtitle C of the Texas Local Government Code. The Subtitle is named: “Planning and Development Provisions Applying to More Than One Type of Local Government.”
Section 391.001 states the legislative intent to “encourage and permit local governmental units” [such as towns and school districts which are “governmental units” under Texas law] to “join and cooperate to improve the health, safety, and general welfare of their citizens.” (Emphasis added)
The legislature went further to explain that it encouraged and permitted the cooperative joinder of local governments to “plan for the future development of communities, areas and regions” in order to assure that: “the planning of transportation system is improved; adequate street, utility, health, educational, recreational, and other essential facilities are provided as the communities, areas and regions grow; the needs of agriculture, business, and industry are recognized; healthful surroundings for family life in residential areas are provided; historical and cultural values are preserved; and the efficient and economical use of public funds is commensurate with the growth of the communities, areas and regions.” (Section 391.001) In Section 391.003, the legislature authorized the cooperating units of local government to establish a planning commission, which it defined as “a regional planning commission, council of governments [the “Cogs” such as the Rio Grande Council of Governments or Metropolitan Council of Governments], or similar regional planning agency.”
So, the legislature clearly authorized local governmental units to form planning commissions other than Councils of Government. The “similar…planning agency” language does not replace the Councils of Government. It simply authorizes the formation of other planning agencies similar in basic nature.
The authorizing language, together with the “purpose language” stressing “communities, areas and regions,” certainly authorizes the development of a sub-regional planning commission of local units of government with common problems such as those facing the towns in the sub-region east of IH-35.
F. The Statutory Process for Establishing the New Type of Planning Commission
The legislature specified that, “any combination of counties or municipalities … may agree by ordinance, resolution, rule, order, or other means to establish a commission.” (Section 391.003 (a) ).
The statute provides that once two or more towns have agreed by ordinance to establish a planning commission, other governmental units [which would include any other political subdivisions of the State including school districts] may “join and cooperate” with the commission.
Following the letter of the law, the towns of Holland, Bartlett, Little River-Academy and Rogers created the Eastern Central Texas Sub-Regional Planning Commission. Specifically following the statutory language, the towns adopted by-laws, established the governing board and elected officers. They then accepted into membership of the Commission the four school districts of Holland, Bartlett, Academy and Rogers. G. The Requirement that State Agencies (Such As, but not limited to TxDOT) Coordinate with Planning Commissions was added by a 2001 Amendment to Chapter 391.
In 2001, seeing a need to require “coordination” by state agencies during implementation of state programs, the sponsor of Senate Bill 200 sought to amend Chapter 391 to mandate such “coordination.”
The “Bill Analysis” of Senate Bill 200 provided by the Senate Research Center stated the “Digest and Purpose” of the Bill to be:
“Currently, state agencies and regional councils are not required to coordinate with each other in the implementation of state programs. This bill adds language that requires coordination between state agencies and commissions in the implementation of state programs at the regional level.” (Emphasis added)
The reference to “councils” in the first sentence, and the more general “commissions” in the second, certainly shows that the “coordination” mandate was to apply to regional planning commissions formed outside the meaning of and parameters of Councils of Government.
The Texas Senate passed Senate Bill 200 by a vote of 30-0, with one member noted as not voting. The Bill amended Section 391.009 to require that:
“In carrying out their planning and program development responsibilities, state agencies shall, to the greatest extent feasible, coordinate planning with commissions to ensure effective and orderly implementation of state programs at the regional level.” H. What Does ‘Coordinate’ Mean?
While the mandate to “coordinate” does not specifically define the term, there is no doubt that the legislature intended it to mean more than simply to “meet with,” “discuss,” or “cooperate.” In authorizing local units of government to form planning commissions, the legislature used the term “cooperate” in Section 301.001 (which encourages local governmental units to “join and cooperate” by forming commissions)
Under any standard for determining legislative intent, it must be presumed that the legislature meant something specifically different than mere “cooperation” when it required that state agencies “coordinate” with the regional planning commissions. The legislature could have provided that “state agencies shall cooperate with commissions.” But it did not. It provided that the agencies shall “to the greatest extent feasible, coordinate planning with commissions.”
The word “coordinate” is a word of common usage, and when interpreting such words, courts look to dictionary definitions. The Texas Court of Civil Appeals did so when defining the word “coordinate” in Empire Ins. Co. of Texas v. Cooper, 138 S.W.2d 159 (1940): “’Co-ordinate’ means equal, of the same order, rank, or importance; not subordinate. Webster’s New International Dictionary.”
So, the concept to “coordinate,” where one party is not subordinate to the other, when applied to the relationship between state agencies and planning commissions such as Eastern Central Texas Sub-Regional Planning Commission, means that TxDOT and other state agencies planning projects that will impact local concerns must discuss their plans and projects with the Commission members as equal rank parties.
Any standard Thesaurus shows that the word “cooperate” used by the legislature in encouraging local government to form planning commissions, is not even a synonym for “coordinate.” The terms are separate and distinct, and obviously the Texas legislature understood the distinction. It urged local governments to “cooperate” with each other in forming a commission with which the state agencies were required to “coordinate.”
Relying on the common understanding of “coordinate,” the towns of Holland, Bartlett, Little River-Academy and Rogers formed their sub regional planning commission because the unique concerns of their citizens were not being adequately addressed in the public meetings being conducted by TxDOT. Once the Commission was formed, TxDOT was asked to meet to begin the process of coordination.
In the course of the subsequent meetings, TxDOT’s representatives have demonstrated that they understand the meaning of “coordinate.” Instead of the usual public meeting generic presentations by planners, followed by the severely time limited public responses, the coordination meetings have featured in depth discussions of plans, impacts, timelines and methods of considering impacts adverse to local interests. There have been substantive discussions regarding how to avoid geographical splits of towns and school districts, how to focus economic analysis on the unique local area, and when and how TxDOT will perform specific economic and environmental analysis.
The meetings have not yet resulted in solutions satisfactory to the local governments, but they have resulted in on-going discussions with a commitment to continue the specific discussions.
During the latest coordination meeting, a TxDOT representative advised the Commission members that they are providing the communication needed to advise the state agency of local issues that must be considered. Until the Commission was formed, the issues relating to this sub-region were not being addressed.
I. The Creators of the Eastern Central Texas Sub-Regional Planning Commission Carefully Considered Their Course of Action.
When the mayors first scoped the route to a meaningful planning relationship with the state, they carefully considered some potential problems. They were, after all, embarking on a new path laid out for them in 2001 by a carefully worded special amendment to the Local Government Code. So, they proceeded cautiously and thoughtfully.
They considered apparent questions as to how the Commission structure would work, and how they could achieve a legal standing with TxDOT, and with other agencies including the federal agencies, which have a stake in TxDOT’s plans.
1. They Considered Whether TxDOT Would Resist Coordination Efforts.
Since the mayors had seen little evidence that public meetings regarding the TTC 35 corridor were effective in getting specific information as to impacts on local governments and citizens in their area, they naturally had concerns as to whether TxDOT would willingly recognize the statutory mandate of coordination with a sub-regional planning commission.
After studying Chapter 391, and the “coordinate” amendment passed in 2001, after considering that the legislature clearly intended a different level of relationship than mere cooperation, after considering the definition of “coordinate” that satisfied the Texas Court of Civil Appeals, and after considering the definition of “coordinate” contained in many federal statutes that would be applicable to the federal agencies with a stake in the TTC 35 corridor, they determined that the statutory mandate was clear enough for them to urge TxDOT to comply.
The question has been more than adequately answered by TxDOT’s participation in the substantive coordination meetings, which have resulted. TxDOT is currently performing its statutory duty to “coordinate.”
2. They Considered Whether the General Public Input Meetings Were Sufficient to Satisfy TxDOT’s Statutory Duties.
The mayors considered the question of whether the statute required TxDOT to do more than conduct public input meetings regarding departmental plans. They also discussed and considered questions raised as to whether TxDOT had ever historically entered into a bargaining relationship with local government.
They satisfied themselves that the statute did require more than general public input meetings. While historically TxDOT may have limited its local government relationships to the public input process under the Transportation statutes, the mandate to “coordinate” is found in the Local Government Code. That mandate is not limited by TxDOT’s participation in and conduct of general public meetings. And, the mandate is not limited to TxDOT. It applies to all state agencies whose planning and projects will impact local governments who choose to form planning commissions.
The coordination requirement places commission members in a government-to- government relationship with TxDOT, a different relationship than that between TXDOT and members of the general public who are allowed to speak on a very limited basis, offering individual concerns.
In the TxDOT-Commission coordination meetings, TxDOT representatives have recognized that they will give the positions taken by, and the concerns expressed by the Commission, special attention, because, they are being expressed by elected officials who represent specific constituents.
The mayors did not contemplate any bargaining relationship with TxDOT or any other state or federal agency. Neither TxDOT nor the Commission should attempt to bargain with regard to TxDOT’s duties and the Commission’s responsibilities.
Rather, the coordination relationship of government-to-government discussions puts the Commission members in the position in which its concerns are listened to and evaluated on a coordinate basis. In that “coordinate” relationship, the Commission members seek to reach some consistency or compatibility between TxDOT’s plans and local concerns. That goal cannot be achieved in general public input meetings.
The transportation statutory requirements of public input meetings, and the local government code requirement of coordination serve two very distinct purposes.
The former allows individual members of the public to hear the Department’s plans and whatever information the Department provides in support of and in explanation of its plans. The input portions of the meetings provide individuals with a very limited amount of time to state their personal position. The input portions of the meetings traditionally provide individuals the opportunity to express, in a group setting, their objection to or support of a very general plan.
The coordination relationship between the Commission and TXDOT allows specific, in depth discussion of the officials’ concerns as to how their responsibility for serving the interests of their constituents will be impacted by specific application of plans/designs to their jurisdiction. It is in fact a government-to-government statutorily created relationship.
Both serve a valuable public service. Neither is restrictive of the other. The public interest benefits from both processes.
3. They Considered Whether Creating the Commission Would Result in Another Level of Bureaucracy.
None of the mayors were interested in forming a planning commission, which would simply result in creating another level of government bureaucracy. They sought a simple organizational avenue to real, substantive discussions, which would focus on their citizens concerns.
By reviewing the provisions of Chapter 391, they satisfied themselves and their councils that they would not get bogged down in bureaucracy if they didn’t allow it to happen. They believed the process would work if they kept their organization and structure simple, and pointed at “coordination” with agencies of the state and federal government.
So, they established the Commission simply and in strict accordance with the law. They provided that their meetings would be held in strict compliance with the Texas Open Meetings Act and their records would be subject to full compliance with the Texas Public Information Act.
They established the Commission to comply with all laws of the state dealing with political subdivisions of the state. They decided formally that they would not seek public funding, public grants, would not engage in investing funds, bidding, procurement or other activities related to seeking, obtaining, or facilitating the award of grants or funding. Thus, they could avoid all the convoluted requirements applicable to such public funds.
They also decided that no local funds from their towns would be allocated to the Commission for its use.
The mayors advised their councils of all these decisions, and keeping it simple has avoided meaningless and wasteful bureaucracy.
Section 391.005 does authorize a commission to contract and take other specified official actions. But, again, since the ECTSPC is not seeking, and does not intend to seek, either state planning grants or other state funding assistance, and does not seek to create an arm of government for any purpose other than coordinating for effective and efficient planning, the role of the Commission would not be diminished even if the Commission had none of the authority specified in Section 391.005.
The Commission will have to file an annual report, but the reporting requirement will call for minimal preparation because the Commission will not be seeking or using state funding. The report will be a statement of the operations and activities of the Commission for the year.
Chapter 391 provides in Section 391.001 that the “general purpose of a commission is to make studies and plans” to guide coordinated development. The Commission has simplified its operation to a study of plans, reports and studies already existing which provide reasonable alternatives to the preferred TTC 35 corridor study area which would split the communities and school districts in the sub-region. The existing studies, and the volunteer time of associates, have allowed the Commission to take its coordinated position into matters of economic analysis, environmental concerns and NEPA requirements without funding.
Since the goals of coordination are central to all members and to the local governments and governmental units represented in the membership, there has been no problem in reaching consensus or in getting approvals. All parties involved are opposed to the proposed corridor study area which cuts through the heart of the sub-region.
4. They Considered Whether the Sub-Regional Planning Commission Could Gain Standing in Court to Force Agencies to Coordinate?
The mayors conferred with Texas attorneys regarding the legal standing of the Commission if it had to seek judicial enforcement of the statutory requirement of coordination. They were told that there is at least one case reported in Texas where a regional planning commission was granted standing to sue its landlord. They were also advised by Texas lawyers that since the commission is designated a “political subdivision” of the state by the express provisions of Section 391.003(c) there would be at least implied authority to file a lawsuit to pursue the legitimate planning and coordination interests of the Commission.
But, as noted, there has been no necessity to sue to attain a current coordination process.
5. The Commission Members Did Not Want to Supplant Any Other Means for Expressing Public Input.
The members also satisfied themselves that creation of the Commission would in no way interfere with their or their citizens’ other processes for influencing agency decisions.
Creation of the Commission does not limit the members’ ability, or their citizens’ ability, to meet with legislators and express concerns about state planning projects. Coordination by the Commission in no way limits resort to contacts with legislators and/or with representatives of TxDOT or other agencies by members or individual citizens.
Creation of the Commission in no way interferes with the work of the Councils of Government, which may serve the Region in which the Commission is located. The Commission, its members and individuals can continue to seek support from the COGs, and since the Commission does not even seek the authority to receive planning grants there will be no interference in that aspect of the operations of Councils of Government.
Unlike the mission of the COGs, the focus of the Commission is directed toward coordination with the state agencies to solve local problems.
6. How Does the Sub-Regional Planning Commission operate in relation to Governor’s Oversight.
Section 391.009 provides that the governor (with the assistance of the auditor) may issue rules for oversight of 391 commissions, with particular emphasis on funds, use of funds and audits of use of funds.
In the Texas Administrative Code, Title I, “Administration,” Part 1 “office of the Governor,” Chapter 5 “Budget and Planning Office,” Subchapter A “Federal and intergovernmental coordination,” Division 3 “State Planning Assistance Grants,” Rule 5.82 provides that the State will recognize “one [section 391] regional planning commission…in each state planning region or subregion” as being eligible for state planning assistance grants.
That the rule recognizes the existence of a “subregion” and that planning commissions may serve subregions, demonstrates that the Commission can rightfully serve a subregion. Under the rule, only the planning commission designated by the state can receive state planning grants. The Eastern Central Texas Sub-Regional Planning Commission, thus, cannot receive state planning grants, and does not intend to seek any such grants. The members understood that rule when they created the Commission, and conditioned creation of the Commission on the fact that no such planning grants would be sought.
The provision allowing oversight rules to be issued is found in the same section, which the legislature amended in 2001 to provide for “coordination.” So, clearly there was no legislative intent that oversight rules could prevent or limit the creation of a planning commission in order to achieve coordination with state agencies.
The Eastern Central Texas Sub-Regional Planning Commission was formed after its members carefully considered how to properly structure a 391 Commission. Once satisfied they could form an effective organization that could require TxDOT to finally consider the concerns of the citizens in a meaningful way, they acted swiftly and decisively.
They have executed the Commission’s duties with respect for and in compliance with all applicable laws. They have kept the process of governing simple, clear, and in the public’s view, avoiding the creation of another layer of bureaucracy. Most importantly, they have ensured the concerns of the citizens of Bell County will not be ignored by TXDOT, EPA, the Governor or any other agencies involved in the TTC.
They have asserted the most fundamental principle of our American system of government – local control – for the benefit of the citizens they represent, and for us all.
Fred Kelly Grant
President, Stewards of the Range
Grant began his formal education at the College of Idaho where he attained a Bachelors of Arts degree in History, with emphasis on Constitutional History and Law. He then attended the University of Chicago School of Law, specializing in criminal law.
Fred has spent nearly fifty years practicing law, and during this time has worked in his professional capacity with all levels of government, and every branch of government.
He served as a Law Clerk to Chief Judge Brune, in the Maryland Court of Appeals, and later for Judge Lodge in the Idaho Supreme Court. He has worked many years in private practice, first for Lord, Bissell, and Brook; a Chicago law firm representing Lloyd’s of London, later as a criminal defense attorney in Baltimore, Maryland and currently for private clients in Nampa, Idaho.
Early in his career he served as an Assistant United States Attorney in the District of Maryland. He later became Assistant State’s Attorney of Baltimore, and then at the age of 28, promoted to Chief of the Organized Crime Unit, State’s Attorney of Baltimore.
When he returned to Idaho, he accepted an appointment by Idaho’s Governor as the states liaison with the federal agencies, and also served in other capacities for the Governors office, which included issues regarding land use planning and zoning for the state. He has over 30 years experience as a planning and zoning hearing officers, which he continues to do today.
Later in his career, Grant began working closely with Owyhee County, ID where he began using the coordination mandate by Congress.
He currently serves as President of Stewards of the Range where he has been able to use his years of expertise to help local governments and landowners protect their private property, local economies and way of life from heavy handed federal and state policies.
Stewards of the Range
PO Box 490
Meridian, ID 83680
American Land Foundation
PO Box 1033
Taylor, TX 76574
© 2008, Stewards of te Range:
Related Link: Texas 391 Commission Alliance: www.391texas.blogspot.com
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