Subdivision 2006

Subdivision: The Statutory Framework

ANN E. VANDERBURG Hurst, Savage & Vanderburg, LLP 814 W. Tenth Street Austin, Texas 78701

I.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

Terminology, Obligation, Jurisdiction, and Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 C. Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 D. Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

III.

When Platting is Not Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. Governmental Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. Partitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 C. "Grandfathered" Lots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 D. 5-Acre Tract Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 E. Manufactured Home Rental Communities . . . . . . . . . . . . . . . . . . . . . . . . 9 F. Right to Create Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 G. Statutory Exclusion for Counties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 H. “Runway Property Exception” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

IV.

"Development" vs. "Division" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 A. Court Holdings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 B. Legislative Reply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 C. Condominiums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

V.

Useful Tidbits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 A. Required Components of Plats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 B. Timely Approval of Plats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 C. Certification of Plat Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

VI.

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2

SUBDIVISION: THE STATUTORY FRAMEWORK1 I.

Introduction

This paper is intended to provide a basic level of information about subdivision regulation in the State of Texas, and focuses primarily on two questions: (1) when a landowner must subdivide his property, and (2) when subdivision is required, what governmental entity or entities may enforce its or their subdivision regulations against the landowner’s property. Statutory authority for local (i.e., county or municipality) subdivision regulation generally is found in the Texas Local Government Code (the "Code"). Chapter 212 of the Code ("Chapter 212") governs municipal regulation of subdivision and property development, while Chapter 232 of the Code ("Chapter 232") governs county regulation of subdivision. Both Chapter 212 and Chapter 232 are subject to the provisions of Chapter 245 of the Code, which codifies prior Senate Bill 1704 and governs the issuance of local permits. Subdivision regulation primarily occurs at the local level. The Texas legislature has provided a broad statutory framework within which local governments may establish individually tailored standards designed to address particular local issues. These materials address only the statutory framework. A review of each local government's particular ordinances is beyond the scope of this Article, but is necessary in order to determine the specific regulations applicable to any individual tract of land. II.

Terminology, Obligation, Jurisdiction, and Enforcement A.

Terminology

The following terms, as used in the context of land use regulation, generally have the following meanings: 1.

The term "subdivision" means the division of a tract of land into two or more

parcels. 2. A "division" of a tract of land, for purposes of the preceding definition, may occur through use of a metes and bounds description in a deed of conveyance or in a contract for a

1

This article is an update of an article entitled “Subdivision Basics” prepared for the 2004 Austin Land Development Seminar, and borrows heavily from an article co-written by the author and R. Alan Haywood, of Graves, Dougherty, Hearon & Moody, entitled The ABC’s of Land Use Regulations: Reviewing the Basics of Zoning and Subdivision (September, 1998), and on an article co-written by R. Alan Haywood, Rick Triplett, and Mary H. Allen, all of Graves, Dougherty, Hearon & Moody, entitled the ABC's of Subdivision and Platting: Authority, Basics and Commonly Asked Questions (June, 2004). The author gratefully acknowledges the prior work of these authors and recommends such articles to you.

deed, by using a contract of sale or other executory contract to convey, or by using any other method.1 In addition, the Texas Attorney General has opined that with respect to urban counties, at least, imposition of a condominium regime upon a tract of land may constitute a division of land subject to county subdivision regulation.2 3. The term "plat" refers to a map which has been processed for approval by the applicable governmental authority and filed of record in the county real property records. The term "platted" refers to land as to which a plat has been recorded. 4. The term "resubdivision" refers to a subsequent division of lots which previously have been platted. B.

Obligation

As a general rule, an owner of a tract of land who "divides" the tract into two or more parcels must obtain approval of a plat reflecting the division by a city (if within the city's jurisdiction) pursuant to Section 212.004 of the Code, and/or by the county (if within the county's jurisdiction) pursuant to Section 232.001 of the Code. In City of Corpus Christi v. Unitarian Church of Corpus Christi, 436 S.W.2d 923 (Tex. Civ. App. - Corpus Christi 1968, writ ref'd n.r.e.), the court held that in order for the "division" of a tract to trigger the application of subdivision regulations to such tract, the subdivision regulations must have applied to the tract at the time the division occurred. In City of Corpus Christi, the Unitarian Church owned a portion of a previously subdivided lot. The division resulting in the partial lot had occurred before the City had subdivision regulatory authority over the lot. The City denied the Church a building permit on the basis that the property did not comply with the City's subdivision regulations (even though the regulations had not applied to the property when the division occurred). The court, however, prohibited the City from enforcing these regulations on the basis that the division occurred before the City had subdivision regulatory authority over that particular tract of land. There are a variety of exceptions to the general rule that a division of property will require compliance with subdivision regulations, which are discussed in detail in Article III below. C.

Jurisdiction

All real property in Texas, wherever located, is subject to subdivision regulation by at least one governmental authority. The location of the land determines which governmental authority has, or authorities have, jurisdiction. 1. Cities. As noted above, Chapter 212 governs subdivision regulation by cities (as used in this paper, the term "cities" includes all municipalities). Cities have the sole right to regulate the subdivision of real property within their corporate limits. Cities also have the right (but are not obligated) to extend their subdivision regulation to land located within their "extraterritorial jurisdiction" or "ETJ"3 subject to compliance with Chapter 242 of the Code (discussed under Article

2

II(C)(4) below).4 A city's ETJ is an area extending from its corporate limits for a specified distance based on its population. Section 42.021 of the Code establishes the applicable ETJ as follows: Population

ETJ

Up to 5,000 5,000 to 24,999 25,000 to 49,999 50,000 to 99,999 over 100,000

½ mile 1 mile 2 miles 3 ½ miles 5 miles

provided, however, that in a county bordering the Rio Grande River, Section 212.001 of the Code provides that a city with a population of 5,000 or more shall have an ETJ extending 5 miles from the city’s corporate boundaries. As a city annexes additional land and expands its corporate limits, the city’s ETJ automatically expands with the annexation; provided, however, that an expanded ETJ may not encroach upon the previously existing ETJ of another city.5 2. Counties. Chapter 232 governs subdivision regulation by counties. A county is authorized to regulate the subdivision of land within all unincorporated areas of the county (that is, land located outside the corporate limits of any city).6 Note that the subdivision of land within the ETJ of a city is subject to dual regulation by both the city and the county. 3. Extent of Authority. In general, subdivision regulations govern how property may be developed for use in terms of laying out streets, lots and public areas and by providing for utilities, drainage and other infrastructure improvements. Unlike zoning regulations, local governments cannot regulate through subdivision requirements the use of property or the use, bulk, height, size or number of buildings constructed on the property.7 Instead, subdivision regulations are intended to govern the manner in which real property may be divided for purposes of providing for orderly planning and development consistent with the public interest.8 With respect to the application of subdivision regulations the Code expressly requires cities (in Section 212.005) and counties (in Section 232.002) to approve subdivision plats that satisfy applicable regulations. This is in contrast to a city’s zoning authority, where the city has complete discretion as to whether to approve or deny a zoning request. a. General vs. Home Rule Cities. Different types of local governments have different authority to regulate within their particular jurisdiction. For instance, a home rule city has broader regulatory authority than a general law city9. General law cities are granted authority by Section 51 of the Code to adopt ordinances necessary for the government, interest, welfare or good order of the municipality. A general law city has been held to have the authority to "exercise only those powers that are expressly or impliedly conferred by law, and a power will be implied only when [it is] reasonably incident to those expressly granted or is essential to the object and purposes of the corporation.... Furthermore, any fair, reasonable, or substantial doubt as to the existence of a power will be resolved against the municipality."10 3

"Home rule" cities, on the other hand, have full power of self-government, limited only by the requirement of Article XI, Section 5 of the Texas Constitution which states that "no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State." Because a home rule city "derives its power not from the Legislature but from Article XI, Section 5 of the Texas Constitution",11 unlike a general law city, "the result is that now it is necessary to look to the acts of the legislature not for grants of power to such cities but only for limitations on their powers."12 b. Cities vs. Counties. In addition to the distinct authority granted to different types of cities, there are differences in regulatory authority between cities and counties, and between "urban" and "non-urban" counties. Section 212.002 of the Code authorizes cities to adopt rules governing subdivision generally to promote the public "health, safety, morals or general welfare of the municipality, and the safe, orderly and healthful development of the municipality." Counties, on the other hand, historically have been authorized by Section 232.003 of the Code only to regulate the width, design and construction of roads and associated drainage facilities.13 In 2001 the Texas legislature adopted Subchapter E of Chapter 232, and expanded the subdivision authority of certain "urban" counties (although I use the term "urban" counties in this paper for ease of reference, note that Subchapter E of Chapter 232 also applies to certain counties adjacent to Mexico). This expanded authority grants to these counties (primarily Dallas, Harris, Tarrant, Travis and Bexar, those counties adjacent to them, and certain border counties) broad authority similar to that which cities have under Section 212.002 of the Code. As revised, Section 232.101 of the Code allows the commissioners court of an urban county, with some limitations (primarily prohibiting zoning or land use regulations), to "adopt rules governing plats and subdivisions of land within the unincorporated area of the county to promote the health, safety, morals or general welfare of the county, and the safe, orderly and healthful development of the unincorporated area of the county,” just as cities may do. Pursuant to Section 232.100 of the Code, Section 232.101 applies only to the subdivision of land that is: (1)

subject to general county regulations or the regulations under Subchapter 232(B) (affecting border counties) and

(2)

in a county that: (a)

has a population of 150,000 or more and is adjacent to the border with Mexico;

(b)

has a population of 700,000 or more;

4

(c)

is adjacent to a county with a population of 700,000 or more and is within the same metropolitan statistical area as that adjacent county, as designated by the United States Office of Management and Budget; or

(d)

is adjacent to a county with a population of 700,000 or more, is not within the same metropolitan statistical area as that adjacent county, and has a population that has increased after the 1990 decennial census, from one decennial census to the next, by more than 40 percent.14

In addition to the broader rulemaking authority of urban counties, Subchapter E also allows urban counties to establishes rules regarding major thoroughfares15, lot frontages16, set backs17, developer participation contracts18, and connection of utilities19. 4. “Dual” or “Overlapping” Jurisdictions. All land within an ETJ is subject to dual regulation by the county and by the city within whose ETJ the land is located. Historically, land within an ETJ had to comply with regulations promulgated by both the city and county. When conflicts occurred, the more stringent regulations would apply.20 This system created difficulties for land owners, who had to analyze and comply with two different (and sometimes contradictory) regulatory schemes. It also resulted in inefficiency at the regulatory level, as the counties and cities duplicated personnel and functions. To eliminate the problems created by this dual regulation scheme, in 2001, the Legislature amended Chapter 242 of the Code to require that except as noted below, cities and counties must enter into written agreements that determine which jurisdiction will have authority within the various areas of the ETJ.21 This obligation does not apply to counties that contain ETJ of a city with a population of 1.9 million or more, counties located within fifty miles of the border with Mexico, or to certain economically depressed counties22 In those counties, both the city and the county regulations continue to apply, and if the city and the county restrictions conflict, the more stringent restriction applies.23 This obligation also does not apply to a tract of land subject to a development agreement under Chapter 212, Subchapter G of the Code (which is governed by the specific provisions of the development agreement).24 Chapter 242 of the Code requires counties and cities to enter into agreements that allocate authority to regulate subdivision plats and approve related permits within the ETJ of the applicable city. The agreement must allocate responsibility for such regulation as follows: (1)

the city may be granted exclusive jurisdiction to regulate subdivision plats and approve related permits in the ETJ (in which event it will regulate subdivisions under Chapter 212 of the Code and other statutes applicable to cities);

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(2)

the county may be granted exclusive jurisdiction to regulate subdivision plats and approve related permits in the ETJ (in which event it will regulate subdivisions under Chapter 232 of the Code and other statutes applicable to counties);

(3)

the city and county may apportion the area within the ETJ so that the city regulates subdivision plats and approves related permits within a defined geographic area assigned to the city and the county regulates subdivision plats and approves related permits within a defined geographic area assigned to the county; or

(4)

the city and county may enter into an interlocal agreement that (A) establishes one office authorized to (i) accept plat applications for tracts within the ETJ, (ii) collect fees for the county and city in a lump-sum amount, and (iii) provide applicants with one response indicating denial or approval of the application, and (B) establishes a single set of consolidated and consistent regulations related to plats, subdivision construction plans and subdivisions of land.25

All cities existing as of September 1, 2001 were required to enter into written agreements under Subsection 242.001(c) of the Code by April 1, 2002. For counties and cities whose ETJ extends at least 3.5 miles from the city’s corporate borders (i.e., those with a population of at least 50,000), Section 242.0015 of the Code requires arbitration between the county and city if an agreement is not reached by January 1, 2004. For counties and smaller cities, Section 242.0015 of the Code requires arbitration between the county and city if an agreement is not reached by January 1, 2006. However, the Code imposed no real penalty for failure to enter into or arbitrate such agreements, and compliance to date has been less than stellar. An analysis of the various status of county and city agreements in the Austin Metropolitan Area is beyond the scope of this paper, and we recommend that anyone developing in an ETJ contact the county to determine what, if any, agreement is in place. 5. One Tract - Multiple Entities With Jurisdiction. Where a tract of land is affected by more than one ETJ, determining which regulations apply to subdivision of that tract can be challenging. When a tract of land lies within the ETJ of more than one city (e.g., where Austin's ETJ covers 20 acres of a 24-acre tract while Pflugerville's ETJ covers the remaining 4 acres), Section 212.007 of the Code provides that the city with the largest population is the "authority responsible for approving plats" under Section 212. While this language is somewhat ambiguous, Section 212.007 probably means only that the larger city serves the mechanical function of performing the actual review and approval of a subdivision plat (as opposed to substituting the larger city’s substantive regulations for the smaller city’s substantive regulations within the area covered by the ETJ of the smaller city). In other words, regardless of which city reviews the proposed plat, the area that lies within the smaller city's ETJ should comply with the regulations of the smaller city, not the larger city. Note that Section 212.007 allows the larger city to delegate its statutory approval

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authority to the smaller city with respect to those portions of the property within the ETJ of the smaller city. D.

Enforcement

A landowner’s failure to obtain the required approval of a plat violates both state statutes and local laws, and failure to obtain plat approval when required may have serious consequences. 1. Criminal Penalties. Failure to obtain approval of a required subdivision plat subjects the owner of the land to criminal penalties. Section 232.005(b) of the Code authorizes counties to impose criminal penalties, and Section 54.001 of the Code authorizes cities to impose criminal penalties. Note, however, that Section 212.003(b) of the Code prohibits cities from imposing criminal penalties or fines for violations of subdivision regulations within their ETJ (so that such penalties may be imposed only within the corporate limits of the city). In addition to the general penalties under Sections 232.005 and 54.001 of the Code, a land owner who violates Section 12.002 of the Texas Property Code (“Property Code”) commits a misdemeanor offense punishable by a fine of not less than $10.00 or more than $1,000.00, by confinement in the county jail for not more than ninety (90) days, or both. Section 12.002 of the Property Code requires that a plat must be approved by the appropriate governmental authority to be recorded, and imposes penalties for using a subdivision description in a deed, contract for deed, or executory contract without complying with the platting requirement for the subdivision. Each violation is a separate offense and a violation constitutes prima facie evidence of an attempt to defraud the purchaser26. Responding to the concerns of developers who routinely enter into contracts before building subdivision improvements and recording plats, the Texas legislature added Section 12.002(d) of the Property Code to clarify that a subdivision's description can be used in a contract if the obligation to acquire the property is subject to the prior recording of the plat and the buyer has no right to use or occupy the property before the plat is recorded. Finally, recording a plat without attaching an original tax certificate from each taxing unit with jurisdiction over the real property that indicates that no delinquent ad valorem taxes are owed on the real property constitutes a misdemeanor offense under Section 12.002(f) of the Property Code. 2. Civil Penalties. In addition to criminal penalties, Section 212.018(a) of the Code authorizes cities, within their corporate limits, to bring an action to either (i) enjoin a violation or threatened violation of the platting requirement or a requirement imposed on the property under the city's subdivision regulations, or (ii) to recover damages in an amount sufficient to allow the city to complete the construction of required infrastructure improvements or otherwise bring the property into compliance with its subdivision regulations. Section 212.018(b) of the Code expressly provides that such actions do not apply to the owner of an individual lot in a subdivided tract (so that the enforcement is against the original subdivider). Further, Section 54.012 of the Code gives a city general power to enforce any of its ordinances by bringing civil actions. As noted above, however, Section 212.003(b) of the Code limits a city’s authority for civil relief with respect to property 7

situated within the city’s ETJ to an action in district court to enjoin violations of its subdivision regulations. With respect to counties, Section 232.005 of the Code authorizes counties to bring actions for the civil remedies of injunction and damages for violations of subdivision regulations. 3. Additional Enforcement Measures. In addition to the penalties described above, land within a city's corporate limits or ETJ that does not comply with the city's subdivision regulations is prohibited from receiving public utility services by Section 212.012 of the Code. Likewise, with limited exceptions, as set forth in Section 232.029 of the Code, compliance with subdivision regulations is a condition to receipt of utility service within the unincorporated areas of a county, Further, compliance with a city's subdivision regulations is often a condition for the issuance of other permits and approvals, such as a building permit.27 Finally, in addition to remedies available to the governmental authorities, the failure to obtain required plat approval may give rise to a private cause of action by the purchaser against the seller of the unplatted tract.28 III.

When Platting is Not Required

As noted above, there are exceptions to the general rule that an owner of a tract of land who "divides" the tract into two or more parcels must obtain approval of a plat reflecting the division. These exceptions have been created both by statute and by court decisions. A.

Governmental Acquisitions

Courts have held that the acquisition of a portion of a tract of land, whether a platted lot or unplatted acreage, by a governmental entity for a public purpose (i.e., for utilities or street right-ofway) either by dedication, grant, condemnation or purchase does not constitute a "division" for which a plat is required to be approved. The basis for this exception is that the governmental entity is the "person" creating the division, and that the platting requirement cannot restrict the government's exercise of the police power to acquire land for public use.29 B.

Partitions

Section 12.002(g) of the Property Code provides that neither the requirement that a plat must be approved by a county or city before it may be recorded, nor the prohibition against using an unrecorded subdivision description in a conveyance, shall apply to a court ordered partition. The Texas Attorney General also has concluded that a partition of property among co-tenants does not constitute a division requiring compliance with the platting requirement.30 The explanation for this exception may be found in the principal that a partition is not a conveyance per se, but rather only divides property already owned by the co-tenants to give each owner exclusive use of a part of the property.31

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C.

"Grandfathered" Lots

Where a tract of land is in the same configuration as existed before the date on which subdivision regulation first applied to such tract, the tract is considered "grandfathered", or exempt, from subdivision regulation (see discussion under II(B) above). D.

5-Acre Tract Exception

Section 212.004(a) of the Code (which applies only to city regulation of subdivisions), provides that a division of land into parts, each of which is greater than five (5) acres, is not subject to the requirement that a city approve a plat of the division if each part has access and no public improvement is dedicated. Note that if such a division occurred within an ETJ, this exception would not exempt the tract from compliance with the county's requirements. E.

Manufactured Home Rental Communities

Section 232.007 of the Code, with respect to county regulation of subdivisions, provides specifically that the development of a manufactured home rental community is not a subdivision and is not subject to platting requirements. "Manufactured home rental communities" are created by the separation of a tract of land into spaces or lots for the installation of mobile homes occupied as residences under leases with terms of not less than five (5) years and not including an option to purchase. F.

Right to Create Exception

Section 212.0045 of the Code allows cities to determine whether, even if they would otherwise constitute subdivisions, specific divisions of land are required to be platted (so that a city need not require the platting of every division of land within its jurisdiction). Similarly, Section 232.0015 of the Code authorizes counties to determine whether a plat is required for every division of land, and Section 232.010 allows counties to permit the conveyance of portions of platted lots without revising the plat. G.

Statutory Exclusion for Counties

Section 232.0015 of the Code prohibits counties from requiring landowners who divide a tract into two or more parts to have a plat of the subdivision prepared if the owner does not lay out a part of the tract for streets, alleys, squares, parks or other parts of the tract intended to be dedicated to public use or for the purchasers or owners of lots fronting on or adjacent to the streets, alleys, squares, park, or other parts, and either (1)

the land is to be used primarily for agricultural, wildlife management or timber production use;

9

H.

(2)

the land is to be divided into four or fewer parts and each of the lots is to be sold, given or otherwise transferred to an individual who is related to the owner;

(3)

all of the lots of the subdivision are more than 10 acres in area;

(4)

all of the lots are sold to veterans through the Veteran's Land Board program;

(5)

the land belongs to the state or any state agency, board or commission or owned by the permanent school fund or any other dedicated funds of the state;

(6)

the owner of the land is a political subdivision, the land is in a floodplain and the lots are sold to adjoining landowners;

(7)

the land is to be divided into two parts and one new part is to be retained by the owner, and the other new part is to be transferred to another person who will further subdivide the tract subject to the plat approval requirements of Chapter 232; or

(8)

all parts of the land are transferred to persons who owned an undivided interest in the original tract and a plat is filed before any further development of any part of the tract. Section 232.0015, Tex. Local. Govt. Code.

“Runway Property Exception”

Section 212.0046 of the Code provides that an owner of a tract of land is not required to prepare a plat if the land (i) is located wholly within a city with a population of 5,000 or less, (ii) is divided into parts larger than 2.5 acres, and (iii) abuts any part of an aircraft runway. IV.

"Development" vs. "Division" A.

Court Holdings

As discussed above, Sections 212.004 and 232.001 of the Code state that “an owner of a tract of land who divides the tract into two or more parcels must obtain approval of a plat”. Despite the express use of the word “division” (and despite the statutory list of conveyancing mechanisms that all pertain to conveyances of fee title), courts have been inclined to extend the requirement of platting beyond a legal conveyance of fee title. The issue initially arose in the area of rental communities of manufactured homes. For example, in City of Weslaco v. Carpenter, 694 S.W.2d 601 (Tex. Civ. App. - Corpus Christi 1985, writ ref'd n.r.e.), the court held that the lease of portions of a tract of land for mobile home sites constituted a “division” of land for purposes of Section 212.004 of the Code, despite the fact that legal title to the land did not change hands.32 In holding that the city had subdivision jurisdiction, the court stated that "a 'subdivision' of property may refer 10

simply to the act of partition itself, regardless of whether an actual transfer of ownership - or even an intended transfer of ownership - occurs."33 The court justified this conclusion by saying that the "point of the statutes and ordinances cited is that a subdivision of land, whether it refers to merely partitioning property or instead refers to sales of residential sites involving separate owners, suggests development....The concomitant needs for city services, in addition to the predictable problems generated by such intensive population of the land, justify appellant's use of its police power in protecting the general welfare."34 In Cowboy Country Estates v. Ellis County, 692 S.W.2d 882 (Tex. Civ. App. - Waco 1985, writ ref'd n.r.e.), the court reached a similar conclusion with respect to the county's ability to require a plat for a manufactured housing rental community: The manifest overall purpose of the statutes concerned is to give counties the power to control subdivisions to protect its citizens in matters of public health and sanitation, drainage, and maintenance of public roads. These public problems and concerns are just as great in the case of mobile home parks where the spaces are leased as in the case where lots are subdivided for purpose of sale.35 Finally, in City of Lucas v. North Texas Mun. Water Dist., 724 S.W.2d 811 (Tex. Civ. App. - Dallas 1986, writ ref'd n.r.e.), the court held that the "setting aside" of a tract of land within the City of Lucas' ETJ for development of a water plant constituted subdivision of that tract, even though the District owned all of the tract. Interestingly enough, in holding that the District had to comply with the City's subdivision regulations, the court held that it did not have to determine whether "setting aside" acreage for development of a water treatment plant constituted a "division" of land for purposes of Section 212.004 of the Code because the City's internal subdivision regulations were written more broadly than Section 212.004. This court, in essence, held that the City could apply within its ETJ subdivision regulations broader than the regulations authorized by state statute. This holding appears questionable, in that it ignores the limitation on a general law city's authority which is discussed above (i.e., that a general law city has the authority to "exercise only those powers that are expressly or impliedly conferred by law").36 B.

Legislative Reply

The Texas legislature has addressed the various court expansions of the meaning of "division" only indirectly. The legislature intervened with respect to a county's authority to regulate in the manufactured housing arena by enacting Section 232.007 of the Code. Section 232.007 specifically states that the development of a manufactured home rental community (defined as a tract of land separated into two or more spaces or lots for the installation of mobile homes occupied as residences under leases with terms of less than 60 months without an option to purchase) is not a subdivision, and is not subject to plat approval by a county under Section 232.001 of the Code. Note that this legislation addresses the issue of subdivision only with respect to trailer parks that are located solely within a county's jurisdiction and that utilize leases of less than five (5) years. It does not overturn the City of Weslaco case (so presumably a city can regulate these communities through their subdivision regulations), nor does it address the issues raised in City of Lucas. 11

C.

Condominiums

In July, 2004, the office of the Attorney General of Texas released an opinion (herein the “Opinion”), as noted above37, which relies on the decisions in City of Weslaco, Cowboy Country Estates, and City of Lucas in opining that Section 232.001 of the Code grants a county jurisdiction to regulate condominium projects through the county's subdivision regulations. The opinion interprets these cases as holding that "under case law, how land is to be owned is not dispositive of whether a division of land constitutes a subdivision under Section 232.001" (emphasis added). Therefore, the fact that the land itself is not divided into separate parcels (but is owned in common by all owners in undivided interests), does not determine whether or not a subdivision has occurred. The Attorney General so opined despite Section 82.006 of the Property Code, which provides that “a zoning, subdivision, building code, or other real property use law, ordinance, or regulation may not prohibit the condominium form of ownership or impose any requirement on a condominium that it would not impose on a physically identical development under a different form of ownership.” Because Property Code Section 82.006 also states that Property Code Chapter 82 does not “invalidate or modify any provision of any zoning, subdivision, building, code, or other real property use law, ordinance or regulation”, the Attorney General concluded that a county could regulate a condominium project under its subdivision laws so long as it did not discriminate against condominiums (emphasis added). The Attorney General's opinion may be driven by the fact that the condominium project in issue "looks like" a single family subdivision. The project identifies on the condominium plat seventeen 1.3 acres parcels, designated as "limited common elements", upon which "units" will be built. When built, the project will look substantially identical to a fee simple ownership residential subdivision, and will be operated in essentially the same manner as a residential subdivision with a mandatory homeowners association. Consider whether the same result would have been reached if the condominium project in question “looked like” an apartment complex (e.g., buildings containing multiple units). In the absence of the Opinion, it seems clear that a county could not regulate through subdivision laws, the construction of an apartment complex, with single ownership, on a single lot or grandfathered tract (although the rationale underlying City of Lucas suggests that some court might find such authority). The breadth of the Opinion, however, provides a basis on which a county now could assert that type of authority. While the Opinion does not make this distinction, the key to the Opinion may be the phrase in Section 82.006 of the Property Code which refers to a “physically identical development under a different form of ownership.” Because this particular project is “physically identical” to a single family subdivision, and because a county typically has authority to regulate single family subdivisions, arguably the Opinion could be interpreted so as to apply only to developments which are physically identical to developments which the county otherwise could regulate under its subdivision ordinances. Unfortunately, as written, the Opinion opens the door to a broad interpretation of “division” when such an interpretation was unnecessary to reach the same result. V.

Useful Tidbits 12

A.

Required Components of Plats.

The Code sets forth, in Sections 212.004(b) (as to cities) and 232.001(b) (as to counties), minimum standards that plats must meet in order to be recorded. Each of these Sections requires that a plat must (1) describe the subdivision by metes and bounds; (2) locate the subdivision with respect to a corner of the survey or tract or an original corner of the original survey of which it is a part, and (3) state the dimensions of the subdivision and of each street, alley, square, park or other part of the tract intended to be dedicated to public use or for the use of purchasers or owners of lots fronting on or adjacent to the street, alley, square, park or other part. Sections 212.004(c) and 232.001(c) of the Code each require that the owner or proprietor of the tract (or the owner or proprietor’s agent) must acknowledge the plat in the same manner required for the acknowledgment of deeds. There are no other statutory requirements for a plat. If a county or municipality has not enacted specific subdivision ordinances, Sections 212.004 and 232.001 of the Code will govern. B.

Timely Approval of Plats.

As to counties only, Section 232.0025 of the Code, which was enacted in 1999, provides an explicit procedure for submission and acceptance of plat applications. Code Section 232.0025(a) requires the county to issue a written list of the documents and other information that must be submitted with a plat application, and requires that each document or information on that list relate to a specific requirement authorized under the Code or other applicable law. Any application that contains everything on the published list is “considered complete”. The county has ten business days from submission of an application to notify the applicant of any items that it considers missing from the application. The applicant then has a reasonable time to provide the missing items, and the application will be considered complete when all of the missing items are received.38 The county must take final action on a plat application no later than sixty days after the date the application is considered received. This sixty-day period may be extended (i) for a reasonable period if agreed to in writing by the applicant and approved by the commissioner’s court, and (ii) sixty additional days if the county must perform a takings impact assessment. The initial sixty-day period applies only to decisions wholly within the county’s control.39 A county must decide within twenty days after the date on which a plat application is received whether it will extend the decision time by the sixty-days described in Section 232.0025(d)40. If the county disapproves a plat application, it must give the applicant a complete list of the reasons for disapproval.41 If a county does not take final action on a plat within the required time frame, (i) the county must refund the greater of ½ of the plat application fee or deposit or the unexpended portion of any fee, (ii) the plat application is granted by application of law, and (iii) the applicant may apply to a district court to compel the county to issue documents recognizing the plat’s approval.42 As to cities only, Section 212.009 of the Code requires cities to “act upon a plat” within thirty days after the application for the plat is filed. Failure of a city to disapprove a plat within that thirty day period results in the plat being approved. Unfortunately, there is nothing to prevent the

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arbitrary disapproval of a plat if the city simply does not review the plat in time, so this provision has had little impact on the processing of approvals. New amendments to Chapter 245 of the Code (the “1704 provisions”), effective April 1, 2005, are intended to facilitate the acceptance of applications for permits, including plat applications, and to prohibit cities and counties for rejecting or refusing to accept applications when submitted. Chapter 245 now provides that the date a permit is filed, for purposes of Chapter 245, is the date of filing of an application sufficient “to give fair notice” to the regulatory agency of the project and the nature of the permit sought. If an application is in fact incomplete, the agency must provide the applicant written notice, within ten business days after the application is filed, of the aspects in which the application is incomplete, and the date upon which the application will expire if the missing items are not provided. If the applicant provides the missing items within the required time frame, then the filing date remains the date the original application was filed. Otherwise, the application may be rejected and the applicant will have to re-file the application. C.

Certification of Plat Approval.

Section 212.0115 requires a city, upon the city’s approval of a plat, to issue to the person applying for approval a certificate stating that the plat has been reviewed and approved by the city. This applies to land within the city’s corporate limits and ETJ. Sections 212.0115(c) and (d) also require a city to issue a written determination, upon receipt of a written request of an owner of land, an entity providing utility service or the city’s governing body, as to (i) whether a plat is required for a specific tract of land, and (ii) if a plat is required, whether it has been prepared, reviewed and/or approved by the city. The city has twenty days to made the determination after receipt of the request and ten days to issue a written certificate after the determination is made. VI.

Conclusion

Every tract of land in Texas is potentially subject to subdivision regulation by at least one governmental entity, so that before developing property, the landowner must determine whether the proposed development will constitute a “division” of property triggering compliance with subdivision regulations, and if so, what regulations apply. Hopefully this paper will provide some assistance in making these determinations.

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1.

Tex. Local Govt. Code, §212.004 and §232.001.

2.

Tex. Att’y Gen. Op. No. GA-0223 (2004).

3.

Tex. Local Govt. Code §212.004.

4.

Tex. Local Govt. Code §212.0025.

5.

Tex. Local Govt. Code §42.022(a) and (c).

6.

Tex. Local Govt. Code §232.001.

7.

Note, however, that §§212.041 through 212.050 of the Code authorize cities to require a "development plat" for property within their ETJ instead of exercising the general authority to regulate subdivision under §212.004. As originally adopted in 1985, the development plat provisions applied only to "unzoned cities having a population in excess of 1,500,000," a condition satisfied only by the City of Houston. A development plat essentially combines subdivision regulations with limited zoning or land use regulations, such as required offstreet parking and building setbacks. In 1995, §212.041 was amended, presumably to avoid challenge as a constitutionally impermissible "local law," to delete the "bracket" language so that any city may adopt the development plat procedure. Currently, the extent of a city's the authority to adopt "zoning-type" regulations pursuant to the development plat process is uncertain, particularly since §212.042 provides that all subdivision provisions of §§212.001 to 212.018 that do not conflict with the development plat provisions continue to apply.

8.

See, City of Round Rock v. Smith, 687 S.W.2d 300, 302 (Tex. 1985), and Lacy v. Hoff, 633 S.W.2d 605, 607-608 (Tex. Civ. App. - Houston [14th Dist.] 1982, writ ref'd n.r.e.).

9.

"General law" cities are those created by incorporation pursuant to the statutory requirements found in Chapters 6, 7 and 8 of Tex. Local Govt. Code, and designated as "Type A," "Type B," or "Type C," depending on population of the city.

10.

City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681, 683 (Tex. Civ. App. - Waco 1980, no writ, emphasis added).

11.

Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975).

12.

Id.

13.

See, Elgin Bank of Texas v. Travis County, 906 S.W.2d 120 (Tex. Civ. App. - Austin 1995, writ denied).

14.

Tex. Local Govt. Code §232.100.

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15.

Tex. Local Govt. Code §232.102.

16.

Tex. Local Govt. Code §232.103.

17.

Tex. Local Govt. Code §232.104.

18.

Tex. Local Govt. Code §232.105. Note that §232.105 now allows counties to enter into a contract with a developer to build public improvements under an arrangement which allows the county to reimburse the developer, subject to certain restrictions, without requiring the developer to comply with the competitive sealed bidding procedure of Chapter 262 of the Code.

19.

Tex. Local Govt. Code §232.106.

20.

Prior Tex. Local Govt. Code §242.001.

21.

Tex. Local Govt. Code §242.001(c) and (d).

22.

Tex. Local Govt. Code §242.001(a).

23.

Tex. Local Govt. Code §242.001(f).

24.

Tex. Local Govt. Code §242.001(a).

25.

Tex. Local Govt. Code §242.001(c) and (d).

26.

Tex. Prop. Code §12.002(f).

27.

See, Head v. City of Shoreacres, 401 S.W.2d 703 (Tex. Civ. App. - Waco 1966, writ ref'd n.r.e).

28.

See, Precision Sheet Metal Mfg. v. Yates, 794 S.W.2d 545 (Tex. Civ. App. - Dallas 1990, error denied).

29.

See, El Paso County v. City of El Paso, 357 S.W.2d 783 (Tex. Civ. App. - El Paso 1962, no writ), involving the city's conveyance of a portion of a public park to the county for the construction of a facility for training firemen, and Palafox v. Boyd, 400 S.W.2d 946 (Tex. Civ. App. - El Paso 1966, no writ), involving the conveyance of a platted lot in a residential subdivision to the city to allow the construction of a street across the lot.

30.

Op. Tex. Att'y Gen. No. 0-5150 (1943).

31.

See, Hamilton v. Hamilton, 280 S.W.2d 588 (Tex. 1955).

32.

City of Weslaco v. Carpenter, 694 S.W.2d 601 (Tex. Civ. App. - Corpus Christi 1985, writ ref'd n.r.e.) and Cowboy Country Estates v. Ellis County, 692 S.W.2d 882 (Tex. Civ. App. 2

Waco 1985, writ ref'd n.r.e.). 33.

City of Weslaco v. Carpenter, supra at 603 (emphasis added).

34.

Id., at 603-604.

35.

Cowboy County Estates, supra at 886-887.

36.

Note that even with respect to home rule cities, which have all governmental authority except as limited by the Texas legislature, should not be able to apply that authority within the ETJ, as their rights to apply regulations within the ETJ is created only by statute and is not a part of their constitutional authority.

37.

Tex. Att’y Gen. Op. No. GA-0223 (2004).

38.

Tex. Local Gov’t Code §232.0025(b) and (c).

39.

Tex. Local Gov’t Code §232.0025(d) and (f).

40.

Tex. Local Gov’t Code §232.0025(g).

41.

Tex. Local Gov’t Code §232.0025(e).

42.

Tex. Local Gov’t Code §232.0025(h).

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