Don’t look now, but the monkey’s got a machine gun.

That is to say, counties have “new” authority to regulate land use – a little bit, anyway.

Back in the 1990s, I was actively promoting efforts to win more authority for counties to regulate substandard subdivisions. One prominent, statewide publication responded with an article quoting a developer friend of mine, who said that many people feared giving counties more authority “would be like giving monkeys a machine gun.”

And this guy was on our side!

His memorable phrase captured what we were up against. Too many in the Legislature, and elsewhere, looked on counties as ill-suited to be entrusted with any substantial regulatory powers.

It turns out some things do change.

In the last decade, the Legislature has very slowly, but steadily, handed more regulatory authority to counties, including an interesting twist this session.

It’s a good thing because more and more we’re on the bleeding edge of the sharpest debates in the state about how to grow with grace and maintain a sense of place. In most places where the state is growing, counties are feeling the pressure.

If we’re to manage our business as a new generation of constituents expects, then we need better tools – valves that will allow us to vent the pressures of sprawl and hammers to blunt the jagged edges of explosive growth.

But we also need to recognize and make the best use of the tools we’ve already got in our toolbox.

Some of the most intriguing of these tools are found in Subchapter E of the “the subdivision statute,” Chapter 232 of the Local Government Code. Subchapter E itself is relatively new. It was originally adopted in 2001, but applied to only 30 counties in the state, generally urban and adjacent counties.

The next session, 2003, Subchapter E was amended to include another half dozen counties. Now, this session, the Legislature removed the bracket altogether, opening Subchapter E authority to all Texas counties. Sen. Royce West had introduced this concept as SB532, but it seemed doomed in House committee. Then, in the closing, chaotic days of the session, with many members no doubt pre-occupied by Speaker politics, Rep. Harvey Hildebrand tacked the language onto SB1867, an otherwise routine bill, via floor amendments. It was sly enough that even after the session, committee staffers and member aides were still telling me SB542 had died – something I repeated before I discovered what had happened.

Now all counties in the state are allowed to exercise the limited but important powers specified in Subchapter E, including development deals and broader transportation planning. More dramatic than specific grants of authority, though, is Subchapter E’s general language enabling counties to enact regulations designed to promote the health, safety, morals, or general welfare of the county and the safe, orderly and healthful development of the unincorporated areas (my emphasis).

The meaning of that language is subject to debate, but it carries bold implications, inferring police powers that cities have long used but which have been mostly denied to counties in Texas.

It doesn’t mean zoning authority. That’s explicitly prohibited in the statute.

But for those counties looking for new tools, this offers a range of options to explore. At the very least, the language can be used to bolster existing subdivision orders with language that reinforces the general authority of counties to regulate subdivisions.

That in itself is important because such authority hasn’t always been crystal clear. In 1995, in Elgin Bank v. Travis County, an appeals court ruled that counties had no authority to even review subdivision plats unless new roads or other public improvements were part of the proposal.

Since then, despite setbacks and failures, counties have earned a series of victories at the Legislature. Rules to help stop colonias were given (or imposed, depending on one’s point of view) on border counties in 1995, and additional authority extended to certain “economically distressed” counties in 1999.

Also in 1999, Sen. Jeff Wentworth passed legislation to fix the Elgin Bank loophole, clarifying county authority over plats, and legislation to give counties the right to ensure adequate infrastructure in mobile home rental parks.

Then in 2001 came Subchapter E rules, the expansion of the bracket in 2003, and the full opening of the bracket this year.

For a variety of reasons, few counties have taken advantage of the authority. We should.

But it’s equally important that we move judiciously. Because despite the recent gains, many good county bills – to allow regulation of industrial land use next to existing residential areas, for example – have not passed, and the consensus for county authority, particularly in the House, is clearly fragile.

Still, the trend is a good one. It’s time for counties to sort out the powers we do have, to compare notes among ourselves, and to sew together a creative patchworks of rules, using Subchapter E and a hope chest of other statutes – TCEQ regs, water codes, health codes, and so on – as material. It’s time to cautiously, prudently, test our limits.

When we’ve done that, we can talk about how to calibrate the next set of tools we’ll ask for from the Legislature.

There’s no space here to consider in depth the nuances of Subchapter E – its opportunities and dangers, or the precedents established by cities with similar language. But several years ago the engineering and land planning firm of Doucet & Associates put together a matrix illustrating the potential of Subchapter E (SB873 at the time), and that information – along with more background – is being posted on the Doucet Website for this column (www.doucetandassociates.com).

These tools are not the answer, but for many Texas counties they can be an answer. After all, even a monkey has a pretty good chance of hitting a target, if you let him point in the right direction and give him a workable machine gun to use. Barton is the former manager of Land Use and Planning for Doucet & Associates, where he continues to consult part time.