Come Hell or No Water: The Story of Sandbranch and the Unincorporated Community Fight for Public Services.

AuthorPemberton, Daeja A.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND ON SANDBRANCH II. BACKGROUND ON UNINCORPORATED COMMUNITIES GENERALLY A. Definitions and Demographics B. Historical Background and Issues 1. California 2. Texas III. LAWS GOVERNING LOCAL GOVERNMENTAL DUTIES TO UNINCORPORATED COMMUNITIES A. California 1. Water, Waste, and Sewage Systems 2. Other Public Services B. Texas 1. Water, Waste, and Sewage Systems 2. Other Public Services IV. ARE LOCAL GOVERNMENTS FOLLOWING THROUGH WITH THEIR LEGAL OBLIGATIONS? A. California B. Texas C. Sandbranch V. SOLUTIONS A. Pay for the Extension/Creation of Public Services B. Annex the Community C. Fund Relocation Efforts D. Create a Political Subdivision E. Make Legislative Changes CONCLUSION INTRODUCTION

Less than twenty miles from one of America's richest and most populous cities is a tiny community that lives without clean, running water. In fact, for its entire existence of over 140 years, Sandbranch--a predominantly-Black unincorporated community with fewer than 100 residents and located just south of Dallas, Texas--has fended for itself. (1) When its wells were contaminated thirty years ago, residents resorted to carting water by the bottle because their larger, richer neighbor and Dallas County refused to assist them. (2) With "great consistency," unincorporated communities in the United States have faced a tidal wave of environmental justice issues that often stem from a lack of infrastructure essential to the well-being of a city: water, waste disposal, emergency services, street paving, lighting, flood control, and traffic control. (3) Sandbranch is no exception.

Over the years, the City of Dallas, Dallas County, and the State of Texas, together with local leaders in Sandbranch, have tried to address the problems that have plagued the community for decades to little avail. (4) With efforts being unsuccessful so far, (5) it is imperative that new solutions are explored before the ultimate downfall of yet another vulnerable, marginalized community.

This Comment discusses what duties, if any, the various levels of government in Texas have in providing public services to unincorporated communities, and it makes the claim that while cities and counties may fully comply with their obligations as a legal matter, they fail as a moral matter. As much of the literature about unincorporated communities focuses on California, this Comment also compares California's treatment of unincorporated communities to Texas's. Parts I and II provide background information about Sandbranch and unincorporated communities generally, including their history in the United States, California, and Texas. Part III lays out the legal obligations state and local governments have in providing public services to these communities. Part IV investigates whether these governments have been following through with their obligations. Part V explores possible solutions for providing public services to unincorporated communities. Finally, the Conclusion reiterates the importance of providing public services to unincorporated communities and limiting additional environmental injustices.

  1. BACKGROUND ON SANDBRANCH

    In 1878, twelve former slaves established Sandbranch. (6) After traveling from Louisiana to Texas and not being allowed to travel into town, the freedmen settled in an unincorporated area, became sharecroppers, and built their own community. (7) Today, it is home to eighty residents, eighty-seven percent of whom are Black. (8) It is the poorest community in Dallas County, with the average resident earning a little over 700 dollars a month. (9) The average resident is 68 years old. (10) The community is also only about fourteen miles away from Dallas, Texas, the ninth largest (11) and fifth wealthiest city in the United States. (12) Sandbranch is also Dallas County's last remaining unincorporated community. (13) Since its creation, Sandbranch has lacked water and sewer systems, trash services, and streetlights; it has also dealt with contaminated water wells. (14) It was not until after 1985 that the Sandbranch community began implementing the infrastructure and services all but synonymous with life in a municipality. Street signs were installed in 1986, emergency services were provided in 1988, community policing began in 1995, streetlights were installed in 1996, and the first community playground was built in 1999. (15)

    The community's ongoing problem with obtaining clean water began in 1985, after Dallas County placed a wastewater treatment plant less than three miles away. (16) All of the residents' private water wells, which they relied on for their daily needs, their livestock, and their crops, soon became contaminated. (17) While government entities attributed the contamination to the livestock in Sandbranch--and refused to fault the operation of the wastewater treatment plant--the community did not believe the livestock was capable of causing such widespread contamination. (18) Because the City of Dallas and other nearby municipalities did not help supply water to Sandbranch, the residents had to purchase bottled water instead. (19)

    "We have kids with no water. We're like a Third World country, and I don't say that loosely," Reverend Eugene Keahey, former pastor of Mount Zion Baptist Church in Sandbranch--the community's "beating heart"--said. (20) In addition to founding a nonprofit organization geared toward increasing self-sufficiency and community development in Sandbranch, Reverend Keahey led the community in its fight to obtain municipal services until his death in 2019. (21) He not only played a pivotal role in making the struggles of his community known to local government officials, but he also gave hope to residents who have been without clean running water for decades that conditions would improve. (22)

    Mark McPherson, an attorney who has provided pro bono legal services to Sandbranch since 2016, identified the community's classification as a floodplain as one of the barriers to obtaining funding for public services. (23) In 1985, Dallas County mandated its own floodplain regulation under the Federal Emergency Management Agency (FEMA)'s National Flood Insurance Program (NFIP). (24) The regulation placed limits on the construction of new structures in floodplains, including Sandbranch. (25) The regulation required structures that were situated after the adoption of the regulation to comply with certain specifications; structures situated before the adoption of the regulation were "grandfathered" in. (26) Between 1985 and 2000, Dallas County had allowed a total of seventy new structures to be built in Sandbranch, violating its floodplain regulation and the NFIP. (27)

    In 2000, Dallas County received a $400,000 grant from the Texas Water Development Board to investigate and create a plan to solve Sandbranch's water problem. (28) Shortly thereafter, FEMA noticed Dallas County violated the NFIP by allowing the construction of new buildings in Sandbranch; FEMA threatened to disqualify the County from the NFIP if it did not enforce its floodplain regulation. (29) Thereafter, to come into compliance with the regulation, FEMA gave Sandbranch residents various options for how they could proceed: build a levee to protect the community, elevate their homes above flood levels, move their homes to an area outside the floodplain, or destroy their homes. Despite the drastic nature of these options, the residents were only given thirty days to come into compliance. (30) With FEMA leaving Sand branch residents with little choice but adjust (31) or move, some believed that the floodplain classification was being used "as a tool to destroy the community." (32)

    After FEMA's ultimatum to the Sandbranch community, Dallas County created the Dallas County Optional Sandbranch Relocation Assistance Program in 2005. (33) This buyout program provided funding for thirty-six families to relocate, but after those families paid home demolition fees, they were only left with $350 each to move from Sandbranch--this was not enough for a family to afford even a month's worth of rent. (34) Mr. McPherson described the County's efforts as "nothing short of a government housing grab that duped vulnerable citizens into giving up their mortgage-free homes for a pittance." (35)

  2. BACKGROUND ON UNINCORPORATED COMMUNITIES GENERALLY

    This Part defines what an unincorporated community is, discusses the characteristics of these communities, and gives some historical background regarding their creation in the United States, California, and Texas.

    1. Definitions and Demographics

      Unincorporated communities are communities within unincorporated areas that do not have a municipal government and therefore fall under the immediate jurisdiction of the county in which they are located. (36) There are some instances where nearby municipalities govern unincorporated areas; these local governments exercise this authority through extraterritorial jurisdiction (ETJ). (37) The Texas Legislature uses ETJ "to promote and protect the general health, safety, and welfare of persons residing in and adjacent to the municipalities." (38)

      Unincorporated communities exist across the country in states such as California, (39) Louisiana, (40) North Carolina, (41) and Texas. These communities are spread out geographically across the United States, exist in large numbers, and are located in rural as well as urban settings. (42) According to a study by Michelle Anderson--one of the more in-depth studies looking into the plight of unincorporated residents--unincorporated urban areas (UUAs) are unincorporated low-income, residential areas adjacent to a city's municipal borders or within a city's "sphere of influence" or ETJ. (43) UUAs tend to be predominantly Black or Latino. (44) While Sandbranch may not be in an unincorporated urban area as Anderson defines the term, its demographic make-up is similar to that of UUAs; it also suffers from many of the same...

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