Item No. c.5 Consider and discuss minim~_im frontage on Public
Road to claim "Elgin Pank" exemption to platting. (County
Engineer)
Commissioners' Coi_ir•t passed on this item. Discussion only.
I[~c~>r>r ~G®nn>rn~g~ IL8®~Qll ~ I~>t°nQil~c~
4010 San Antonio Hwy.
Kerrville, TX 78028
X830) 257-2993 _FAX (830 896-8481
TO: Conunissioners' Court
FROM Franklin Johnston, P.E., County Engineer (,~
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 goverrunent 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 500'.
BEYONA 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 limited county subdivision
authority. All of the public attention to the case, however, may have blurred the tnre meaning of the
court's decision. The popular myth is that coumies 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 Bcnrlc 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 thew subdivision order to exercise the full power allowed to them under the
Elgin Bank holding.
Deciding "And" Means "And": R'hat 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(x) 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 construed as an "and" or an "or." The wurt phrased the impact of the question as follows:
"The question we decide is whether Travis County can, under Section 232.001(x),
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 prepaze 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 listed in the
remainder of the Section 232.001(x) (the laying out of streets, alleys, squares or parks or other parts
of the tract for public or private use).
An informal survey of coumies across Texas conducted by the author several years before the
Phillip SchmnndVDrcnncr&ShurV404-2223/qug. g, 1997
Elgin Bank decision revealed that the vast majority of counties interpreted the "and" in Section 232
as an "or" 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 already 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(a) of the Local
Government Code (the laying out of streets, etc.).
Exploring Wkat Lies on the Other Side of the "And": What tke Elgin Bank Court Left
Unsaid
The key to understanding the true impact of Elgin Bank, 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: -r
`eve hold that Travis Coumy may not require an owner who subdivides but who does not
lay out streets, alleys, squares, pazks 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 carefully tracks the language of Section 232 of the Local Government Code. Thus
the Elgin Bank wurt, 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 had been preserved. So long
as there is a division of land ~r any one of the five parts of property listed in Section 232 (streets,
alleys, squares, parks or "other parts of the tract") 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 may be required.
The combinations of possible improvements and uses can be demonstrated as follows:
IIs~
1.	Streets
2.	Alleys
3.	Squares
4.	Parks
5.	Other parts of the tract
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.
Philip Schmandt/Drenna&S4istU404-2273/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
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. I: Intended to be Dedicated to Public Use (Category B, Row I)
Clearly, if the division of land calls for the laying out of streets, alleys, squares 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 use, then the county also has subdivisionjurisdiction. 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, l: Intended jor Use of Purchasers (Category B, Row 2)
This category reveals that laying out private streets, alleys, squares 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 Elgin 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 jor the Use of Owners 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, squares, 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 SchmandVDlcnncr&.SNert/404-2223/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 brief to the Third Court of Appeals took pains to point out that each divided tract
would have "adequate frontage" on a public road. Indeed, none ofElgin Bank's proposed lots even
remotely resembled "flag lots" but were rectangular or square shaped. If the subdivider had created
Bag 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 `Srse 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 seate 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 seating 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 wunty 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. 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 pubhc, 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 Schmendt/Drrnncr&ShiarV404-2223/Aug. g, 1997 4
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.
MEETING DATE: October 27. 1997
OFFICE: Road & Bridge Department
TIME PREFERRED:
SUBJECT:{PLEASE BE SPECIFIC): Consider minimum frontage on Public Road to claim "Elgin
Bank" exemption to platting
EXECUTIVE SESSION REQUESTED: YES
NO XX
PLEASE STATE REASON: Consider minimum frontage on Public Road to claim "Elgin Bank"
exemption to platting
"'ESTIMATED 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 accordance with Title 5, Chapters 551 & 552 of the
Government Code is as follows.
Meetings held on first Monday: 5:00 P. M. previous Monday
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
Gourt's formal consideration and action at time of Court meetings. Your cooperation will be appreciated and crontribute towards your
request being addressed at the earliest opportunity. See Agenda Request Guidelines.