Imagine if an electric utility could build a substation wherever it wanted within a city — in the middle of a residential community, for instance, or on top of business property or in a busy downtown area. And your local municipality was powerless to stop it.
That’s just the nightmare scenario that state Rep. Pat Fallon wants to prevent with his House Bill 1427, legislation now pending in the Texas House of Representatives. The bill relates to the rights of municipalities to enforce their own land-use regulations, and it specifically addresses city zoning authority over electric cooperatives. The House Urban Affairs Committee is expected to take up HB 1427 in a public hearing this week.
The bill is simple. In a nutshell, it clarifies the very common-sense proposition that a city’s zoning authority extends over electric cooperatives just as it would for any other business operating within city limits. HB 1427 would be unnecessary except for a recent legal challenge mounted by two electric cooperatives to a zoning decision in North Texas.
Here’s the back story: in 2014 the Brazos Electric Cooperative sought city authorization to place a substation in a busy commercial area of The Colony, a community of about 40,000 in the DFW area. Failing to reach an agreement over zoning, the electric cooperative appealed its case to the Texas Public Utility Commission with the argument that, as an electric cooperative, its request was for the state’s electric regulators to decide and not the local municipality.
Although this may sound like an arcane jurisdictional conflict, the issue is important to cities and their citizens. If electric cooperatives do possess such an exemption from city land use authority, then cooperatives presumably could push for construction projects in densely populated areas of any city regardless of health concerns, safety concerns, environmental issues or historical or aesthetic values. These sorts of issues do not fall under the purview of the Public Utility Regulatory Act, under which the PUC operates.
For this reason, the Texas Coalition of Cities for Utility Issues, the city of The Colony and others have expressed support for Bill 1427. TCCFUI and other city representatives say the legislation clarifies that electric cooperatives do not enjoy any special immunity to zoning laws, and, as a consequence, HB 1427 should help protect municipal residents against haphazardly placed utility construction projects.
But city officials also note that HB 1427 in no way upends the status quo with regards to utility land-use rights. For instance, HB 1427 does not undermine the condemnation powers that electric cooperatives and other utilities currently possess, nor does it add any general prohibitions against the construction of substations within city limits.