„w CIFDER N0. X511
APFRGVAL Cii= MIt,IIMUM FRONTAGE dN PUHLIC ROAD
uF '~~a FEET ?C1 Ct_AlM "E~GIF:i ~.:..... C..~..--=C.: TV __.-..-=P•;:C
-. ,,.._ ..-, the 1~~t's ~-, :;f hiovember, 193? capon motion made by
unanimously appr^oved by a vote of 4-0-Z~, the minim:_~m frontage
i:f '~i3!~ f_~et to claim "Elgin Rank" Exemption to Flatting.
COMMISSIONERS' COURT AGENDA REQUEST
"PLEASE FURNISH ONE ORIGINAL AND FIVE COPIES OF THIS REQUEST AND
DOCUMENTS TO BE REVIEWED BY THE COURT
MADE BY: Franklin Johnston. P.E.
OFFICE: Road & Bridge Department
MEETING DATE: Nov. 10. 1997
TIME PREFERRED:
SUBJECT:(PLEASE BE SPECIFIC): Consider minimum frontaoe on Public Road to claim "Elgin
Bank" exemption to olattinq
EXECUTIVE SESSION REQUESTED: YES
NO XX
PLEASE STATE REASON: Consider minimum frontage on Public Road to claim "Elgin Bank"
exemption to olattinq
`" =STIMATED LENGTH OF PRESENTATION: 10 minutes
PERSONNEL MATTER -NAME OF EMPLOYEE:
NAME OF PERSON ADDRESSING THE COURT: Franklin Johnston. P.E.
Time for submitting this request for Court to assure that the matter is posted in axordance with Title 5, Chapters 551 & 552 of the
Government Code is as follows.
Meetings held on first Monday: 5:00 P. M. previous Tuesday
Meetings held on Thursdays: 5:00 P. M. previous Thursday
THIS REQUEST RECEIVED BY:
THIS REQUEST RECEIVED ON:
All Agenda Requests will be screened by the County Judges Office to determine if adequate information has been prepared for the
Court's formal consideration and action at time of Court meetings. Your cooperation will be appreciated and contribute towards your
request being addressed at the earliest opportunity. See Agenda Request Guidelines.

l[~~Ir>r ~C®un>rn~ If8®~~ll ~ ]~irncdl~~
4010 San Antonio Hwy.
Kerrville, TX 78028
(8301257-2993 FAX 8301 896-8481
TO: Commissioners' Court
FROM: Franklin Johnston, P.E., County Engineer G~
DATE: October 17, 1997
RE: Minimum Frontage on Public Road to Claim "Elgin Bank" Exemption to Platting
The Elgin Bank case interpreted the meaning of Texas Local Government Code Section 232.001, which
establishes county government subdivision authority. See the attached article titled "Beyond Elgin Bank.:
On page 4 of this article, "flag lots" are discussed and explained why a "flag lot" triggers the platting
requirements per above mentioned law.
The article also states: "counties must establish a standard for what constitutes an acceptable amount of
frontage, below which subdivision approval would be required." I would suggest this minimum frontage
be no less than 580'.
2 ao
A
LITTLE, PEDERSEN, FANKHAUSER & COX, L.L.P.
901 Main Street, Suite 5050
Dallas, Texas 75202
(214)573-2323
October 20, 1997
Writes D¢eu Dial Facsinule No. (214) 573-2323
No. (214)573-2311
Mr. Franklin Johnston
Kerr County Engineer
4010 San Antonio Hwy.
Kerrville, Texas 78028
Re: 135.60 acres on Witt Road in Kerr County, Texas (the "Pro ')
Deaz Mr. Johnston:
We aze legal counsel to Mr. J. Kinney Kane and this letter is written on behalf of,
and at the request ot; Mr. Kane. As you are aware, Mr. Kane is the owner of the
Property. According to Ivir. Kane, he purchased the Property with the immediate intent of
keeping the 60 acres to the south and selling the north 75.6 acres. He planned to sell the
north 75.6 acres in a minimum number of tracts with the reaz approximately 38 acres being
sold to one purchaser and the front 37.6 being sold to one or two purchasers. Prior to
Mr. Kane's purchase of the Property, he asked his engineer, Mr. Lee Voelkel, to discuss
with you any platting requirements for the Property. It is Mr. Kane's understanding that
at that time you informed Mr. Voelkel that there was no need to plat the Property. In
reliance upon his understanding that platting was not required, Mr. Kane purchased the
Property and commenced to try to sell the excess acreage.
Mr. Kane was informed last week by Ivlr. Voelkel that you intend to require that
the Property be platted. As a result of this situation, Mr. Kane asked me to review the
Kerr County Subdivision Rules and Regulations (the "Re lions"). Based upon such
review, I have the following observations and comments.
First, it does not appeaz that the express terms of the Regulations require that the
Property be platted. For instance, the definition of the teen "Subdivision" in Section 3.16
of the Regulations only refers to "laying out any subdivision or ..suburban lots... or
building lots". The division of 75.6 acres into two or three tracts does not come within
any conventional use of such terms. Further, Section 3.16 specifically excludes "the
division of land for agricultural purposes". Whether the Property is sold in two or throe
parcels, it is still of a size conducive to agricultural uses and is currently used for such
P~~•
LITTLE, PEDERSEN, FANKfIAUSER & COX,L.L.P.
Mr. Fndclin Jobaaan
October 20, 1997
Second, the instant situation appears to me to fall cleazly within the Elgin Bank
case which interpreted the meaning of Texas Local Government Code Section 232.001
(which establishes county government subdivision authority) to require platting only
where property is subdivided into lots and streets, alleys, etc. are to be laid out. In the
instant case the rear 38 acre parcel will have access to Witt Road via a deeded 60 foot
wide strip that will be used only by the owner of such 38 acre pazcel. Such strip will not
be dedicated for public use or the use of any other purchasers or owners of property
fronting on or adjacent to such 60 foot strip.
In sum, Mr. Johnston, it appears that the requirement that Mr. Kane plat the
Property is not required by the Regulations or the Texas Local Government Code. Given
your eazGer approval of the division of the Property without requiring a plat, and the terms
of the Texas Local Government Code and of the Regulations, we are very interested in
determining (i) what has caused the County to change its position relative to platting the
Property, and (ii) how Mr. Kane and Mr. Voelkel can work with you to resolve this issue.
"' Mr. Kane strohgly desires to resolve the subject situation. Your attention to this
issue and a reply would be greatly appreciated.
truly yours,
John C. Cox
ce: Mr. Lee Voelkel
Mr. J. Kinney Kane
1[~c~>r>r ~®>ln>ml>~ 1!~®~Qll ~z ~>rIl~~~ `~~/~~~
4010 San Antonio Hwy.
Kerrville, TX 78028
"~ (830) 257-2993 FAX (830 896-8481
November 3, 1997
John C. Cox
Little, Pedersen, Fankhauser & Co L.L.P.
901 Main Street, Suite 5050
Dallas, TX 75202
RE: 135.60 Acres on Witt Road (J. Kinney Kane)
Dear Mr. Cox,
The above referenced property was originally proposed to be divided with "adequate frontage"
on Witt Road and we determined it did not require platting per the Elgin Bank case. This was
several months ago. Lee Voelkel recently showed me a redivision of the property which contain
"flag lots."
-- The Elgin Bank case interpreted the meaning of Texas Local Government Code Section
232.001, which establishes county government subdivision authority. Section 232.OOlprovides:
"The owner of a tract of land located outside the limits of a municipality who divides the
tract into two or more parts to lay out a subdivision of the tract, including an addition, or
to lay out suburban lots or building lots, and to lay out streets, alleys, squares, parks, or
other parts of the tract intended to be dedicated to public use or for the use of purchasers
or owners of lots frontine on or adjacent to the streets alleys squares parks or other parts
of the subdivision prepared."
Elgin Bank's brief to the Third Court of Appeals points out that each divided tract would have
"adequate frontage" on a public road. Indeed, none of Elgin Bank's proposed lots even remotely
resembled "flag lots" but were rectangular or square shaped. If the subdivider had created flag lots
with "strips" intended to be used by the owners of the lots for access onto the lots, then the creation
of these strips would have constituted "other parts" intended for the "use of owners of lots adjacent
to the streets" and would have triggered the subdivision authority of Travis County. Rectangular or
similarly shaped lot~j do not typically create any portion of the lot that must necessarily be used for
access or drainage by the owner of the lot. Flag lots with narrow strips abutting public roads, for
example, do create portions of lots that Est be used by the owners for access and therefore may be
regulated by county subdivision authority f this is in addition to the fact that the strip may be
considered the laying out of a road for the use of purchasers of lots).
~~~ Page2
John C. Cox
Witt Road Subdivision
Divisions of land creating access strips for use by owners fronting onto public streets also have
a significant potential detrimental impact on existing county roads and drainage facilities. When
driveways are stacked one upon the other, the division of land affects not only the owners of lots
adjacent to the road, but public safety and the physical integrity of the county road and associated
drainage structures. In many instances, the preferred alternative to "flag lots" would be the creation
of a new public road serving the lots. Anew road would result in traffic from those lots entering
onto the public road from a single, safer road intersection, rather than innumerable driveway
intersections (each also negatively impacting the drainage way along the road). Requiring county
subdivision approval of these flag lots is thus consistent with Sections 232.003 (4) and (5) of the
Local Government Code, which authorize counties to implement "reasonable specifications" for
subdivisions relating to the construction of streets and roads or drainage.
Kerr County has established the "adequate frontage" for which no subdivision review is
required as 200 feet.
I think you will find that when agricultural land is subdivided into lots, it loses its "exemption"
status. It is up to the lot owner to reestablish the agriculture exemption per Kerr County guidelines.
^. It depends on "agricultural units" and not acreage.
This is why Kerr County changed its position relative to platting on referenced property.
Sincerely,
Franklin Johnston, P.E.
Kerr County Engineer
cc: Lee Voelkel
Commissioners' Court
County Attorney
BEYOND ELGIN BANK
By; Phillip H. Schmandt
^ There have been few court cases affecting county governments that have achieved more
notoriety than the Elgin Bank case decided on August 16, 1995. Critics have either lamented or
praised (depending upon the perspective of the writer) how Elgin Bank has 1'mtited county subdivision
authority. All of the public attention to the case, however, may have blurred the true meaning of the
court's decision. The popular myth is that counties no longer have authority to regulate a subdivision
unless a public road is being built. This myth is wrong. Counties retain subdivision authority so long
as the division of land lays out any land for public use, for the private use of purchasers of lots, or for
the use of owners of lots adjacent to the public or common parts of the subdivision.
Elgin Bank did, of course, have a significant impact on county subdivision authority. Now that
the dust has settled around the Elgin Bank case, county attorneys should first reexamine their county
subdivision order to assure it is consistent with the Elgin Bank case. Second, counties should take a
second look at the Elgin Bank case to determine the true extent of their subdivision authority-and, if
they desire to do so, craft their subdivision order to exercise the full power allowed to them under the
Elgin Bank holding.
Deciding "And" Means "And": What the Elgin Bank Court Said
The Elgin Bank case interpreted the meaning of Texas Local Government Code Section
232.001, which establishes county government subdivision authority. Section 232.001(a) provides:
-- "The owner of a tract of land located outside the limits of a municipality who divides the
tract into two or more parts to lay out a subdivision of the tract, including an addition,
or to lay out suburban lots or building lots, and to lay out streets, alleys, squares, parks,
or other parts 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 streets, alleys, squares, parks
or other parts of the subdivision prepared.°
The only question before the Elgin Bank court was a narrow one: whether the italicized "and"
should be consnued as an "and" or an "or." The court phrased the impact of the question as follows:
"The question we decide is whether Travis County car>, under Section 232.001(a),
require the owner of a tract of land who subdivides, but does not plan to lay out streets,
alleys, squares, parks or other parts of the tract for public or private use, to prepare a
plat of the subdivision." (emphasis added for later discussion).
The Third Court of Appeals aptly decided that "and" means "and." The court concluded that
before a county may require a plat there must be a division of land +~ one of the items fisted in the
remainder of the Section 232.001(a) (the laying out of streets, alleys, squares or parks or other parts
of the tract for public or private use).
An informal survey of counties across Texas conducted by the author several years before the
Phillip SchmandJDrenncr&ShuuUA04-2223/Aug. 8, 1997
Elgin Bank decision revealed uiat the vast majority of counties interpreted the "and" in Section 232
as an "ot" and asserted jurisdiction over all divisions of land, whether or not any of the remaining items
were called for. County attorneys, if they have not aL~eady done. so, should review their county's
subdivision order to assure that it is consistent with Elgin Bank and only asserts platting jurisdiction
if there is a division of land and those additional items listed in Section 232.001(x) of the Local
Government Code (the laying out of streets, etc.).
Exploring What Lies on the Other Side of the "And": What the Elgin Bank Court Left
Unsaid
The key to understanding the true impact of Elgin Ba»k, and the key to crafting subdivision
orders that reach the limit of authority allowed under Elgin Bank, is to explore what lies on the other
side of the "and." What improvements or laying out of property for use by others, when coupled with
the division of land, trigger county subdivision authority?
The best place to begin this exploration is with the holding of Elgin Bank: -.- -< -.. ---
`tive hold that Travis County may not require an owner who subdivides but who does not
lay out streets, alleys, squares, parks or other parts of the tract intended to be dedicated
to public use or for the use of purchasers or owners of lots on or adjacent to the streets,
alleys, squares, parks or other parts to prepare a plat."
This holding carefiilly tracks the language of Section 232 of the Local Government Code. Thus
the Elgin Bank court, after dispatching with the "and" or "or" question, made clear that all other
jurisdiction of a county under Section 232 of the Local Government Code lead been preserved. So long
as there is a division of land ~ any one of the five parts of property listed in Section 232 (streets,
alleys, squares, parks or "other parts of the tracx") are to be laid out for any one of the three uses listed
in Section 232 (public use, use by purchasers or use by adjacent owners), then a plat maybe requued.
The combinations of possible improvements and uses can be demonstrated as follows:
Part	s of Tract Laid Out
1.	Streets
2.	Alleys
3.	Squares
4.	Parks
5.	Other parts of the trail
ILSPoS.
Intended to be dedicated to Public Use
2. Intended for the use of purchasers
Intended for the use of owners of lots
on or adjacent to the streets, alleys,
squares or other parts.
Phillip SchmandVprennaRShuuU404-2223/Aug. 8. 1997
If the division of land calls for arty parts of tracts described in Category A to be laid out for any
use specified in Category B, then a plat may be required. Arty combination of items in Category A with
w uses in Category B requires plat approval. By analyzing all of the "mixes and matches° of uses and
improvements, the true meaning of Elgin Bank and the full extent of county authority can be
determined.
Use Category No. 1: Intended to be Dedicated to Public Use (Category B, Row 1)
Clearly, if the division of land calls for the laying out of streets, alleys, squazes or parks to be
dedicated for public use then plat approval is required. These simple scenarios are covered by
matching Rows 1 - 4 in Category A with Row 1 in Category B. More interesting is combining Row
5, Category A with Row 1, Category B. If any "other parts of the tract" aze intended to be dedicated
for public trse, then the county also has subdivision jurisdiction. The most common examples of "other
parts of the tract" dedicated for public use aze public utility easements and drainage easements.
Accordingly, even if no roads or streets are platted, if the division of land requires or calls for the laying
out of public utility or public drainage easements, then the county may require plat approval.
Use Category No. 2: Intended jor Use ojl'urchasers (Category B, Row 2)
This category reveals that laying out private streets, alleys, squazes or parks, intended for the
use of purchasers, triggers county subdivision authority. This conclusion is consistent with the
emphasized language in the excerpt from the Elgrn Bank opinion set forth above, in which the court
made clear that private streets may implicate county subdivision authority. Moreover, if"any other
parts" of the tract (Row 5, Category A) are intended for the common use of purchasers (Row 2,
~. Category B) then platting will be required. This reveals that divisions of land coupled with the creation
of private access easements, private drainage easements or easements dedicated to a homeowner's
association, all require county subdivision approval.
Use Category No. 3: Intended for the Use ojOwners ojLots on or Adjacent to the Streets,
Alleys, Squares or Other Parts (Category B, Row 3).
This use category has two implications. First, it makes clear that the controlling factor for
private streets or similar improvements is not whether the street or other portions of the tract will be
used only by purchasers within the subdivision Plat approval is also required whenever owners of lots
adjacent to the street or other parts will utilize the street or "other parts." This prevents the scenario
where the developer attempts to designate the divided lots as a "separate" subdivision from the abutting
street and thus avoid the platting requirements. In summary, so long as the public, the purchasers of
lots in the subdivision or persons owning lots adjacent to the "street, alleys, squazes, parks or `other
parts of the tract"' will use such parts, then subdivision approval is required.
Second, this use category demonstrates that a county may inquire as to how the division of land
lays out portions of lots that are fronting onto or adjacent to streets. How "other parts of the lots"
(Row 5, Category A) are laid out "for the use of owners of lots adjacent to the streets, etc." (Row 3,
Category B) is subject to county review under its platting authority. If the subdivision creates
Phillip SchmendUDtctmcr&.ShuN404-2223/Aug. 8, 1997 3
inadequate portions of lots for use by owners adjacent to or fronting on public streets, or which
adversely affect the County's roads (or drainage facilities along the roads), then a subdivision plat may
be required.
Elgin Bank's briefto the Third CouR of Appeals took pains to point out that each divided tract
would have "adequate frontage" on a public road. Indeed, none of Elgin Bank's proposed lots even
remotely resembled "flag lots" but were rectangular or square shaped. If the subdivider had created
flag lots with "strips" intended to be used by the owners of the lots for access onto the lots, then the
creation of these strips would have constituted "other parts" intended for the `lrse of owners of lots
adjacent to the streets" and would have triggered the subdivision authority of Travis County.
Rectangular or similarly shaped lots do not typically create any portion of the lot that must necessarily
be used for access or drainage by the owner of the lot. Flag lots with narrow strips abutting public
roads, for example, do create portions of lots that must be used by the owners for access and therefore
may be regulated by county subdivision authority (this is in addition to the fact that the strip may be
considered the laying out of a road for the use of purchasers of lots). To exercise this authority,
counties should create standards for what constitutes adequate frontage, for which no subdivision
review is required, and what constitutes inadequate frontage, for which subdivision review may be
required.
Divisions of land creating access strips for use by owners fronting onto public streets also have
a significant potential detrimental impact on existing county roads and drainage facilities. When
driveways are stacked one upon the other, the division of land affects not only the owners of lots
adjacent to the road, but public safety and the physical integrity of the county road and associated
drainage structures. In many instances, the preferred alternative to "flag lots" would be the creation
.., of a new public road sewing the lots. Anew road would result in traffic from those lots entering onto
the public road from a single, safer road intersection, rather than innumerable driveway intersections
(each also negatively impacting the drainage way along the road). Requiting county subdivision
approval of these flag lots is thus consistent with Sections 232.003 (4) and (5) of the Local
Govemment Code, which authorize counties to implement "reasonable specifications" for subdivisions
relating to the construction of streets and roads or drainage. Agair>, counties must first establish a
standazd for what constitutes an acceptable amount of frontage, below which subdivision approval may
be required.
The bottom line of the Elgin Bank case is that divisions of land involving nothing more than
the drawing of a line between two tracts need not undergo subdivision review. This principle is
preserved by construing Section 232 of the Local Government Code to require platting approval only
if there is a division of land and the laying out of portions of land for the uses enumerated in Section
232. As made clear by the Elgin Bank case, once the division of land involves the setting aside of any
portion of the property for the use by the public, purchasers, or owners of adjacent lots, then the
division of land ceases to be a purely private matter and county review may be warranted. This review
protects not only the public, purchasers and adjacent lot owners but, especially when the review
involves matters such as drainage or road construction, the developer of the property. The list of
improvements that implicate subdivision approval is lengthy and broad and counties should review their
subdivision orders to assure they encompass all such improvements
~ Phillip SchmandVDicnncrBcStuerV404-2223/Aug. g, 1997 4