Grandfathering and the Tree Ordinance

Grandfathering (also called entitlements and vested rights) is a legal means of circumventing the San Antonio Tree Preservation Ordinance. Grandfathering rules are a combination of state and municipal laws.

According to Texas Local Government Code Chapter 245, once an applicant gives "fair notice" of a development project to the City, no new development standards can be enforced on that particular project. In effect, development codes are frozen on the date "fair notice" is mailed to the City.

Diamonds are forever, entitlements are not

However, cities are given powers to set expiration rules and dates for grandfathered permits. When a development permit expires, entitlements to circumvent modern standards are lost.

Since Chapter 245 grandfathers development projects, not land, only the project that was originally proposed can be grandfathered. If a different project is constructed, even if it is on the same land, it is not grandfathered.

Frequently, cities and developers disagree as to whether or not a project is different than what was originally planned. Predictably, developers try to avoid being too specific on their initial plans so that, when they finally get around to actually building the project, they can argue it is the same as what they originally proposed.

Used and abused

Chapter 245 was exploited by sophisticated landowners, engineers, and developers who flooded the City with applications immediately before the tree preservation and aquifer protection ordinances took effect. Often, only a sketch plan or "naked plat" was filed to freeze regulations while a landowner waited for the right market conditions. In a lawsuit against the City, one developer is claiming grandfathering back to 1927. In many cases, entitlements to circumvent the tree and aquifer protection ordinances are sold together with land (picture at left).

Meanwhile, in Austin

In 2005, the Texas Legislature passed two bills expanding grandfathering for the land development industry. These bills came on the heels of a 2003 bill that also increased developers' entitlements. The industry has been extraordinarily successful in passing laws favorable to its interests.

Recently, the Express-News warned that developers are mounting a richly-funded effort to completely dismantle tree and aquifer protections in the 2007 Legislature. A disturbing Express-News investigative series, "Losing Ground", is also excellent reading (click picture below left).