Fayette County, Texas - Commissioners Court 4/11/2024

Close the Subdivision Fast Lane!

Commissioners Court was poised to grant a variance to a 15-lot subdivision, eliminating the plat requirement, when a couple timely questions drew attention to the flawed subdivision platting procedure.  Don’t miss this very important 13 minute discussion.  State law requires a plat for all subdivisions, with few exceptions, yet our County continuously grants variances for large subdivisions without public dedications, approving them with little consideration and without plats.  It’s time to close the subdivision fast lane and start considering all subdivisions more carefully.  In other news, 3 of the 5 members of the Court agreed it was better to read the airport hangar contract before approving it.

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In this case, there are several issues that need to be addressed.  First, the County must re-learn state law.  Sec. 232.001 of the Local Government Code requires all subdivisions of land to be platted.  Sec. 232.0015 provides for exceptions (none apply here) and authorizes the county to specify which types of divisions may be excepted from the plat requirements.  The County has no such exceptions, but they have an “unofficial policy” not to require plats for subdivisions that do not have public parts to dedicate (like roads).

They implement this policy by granting a variance to the plat requirements.  They say that the subdivision satisfies all the regulations, but then they grant a variance from the platting requirement.  If the County had a written ordinance allowing for this, then there wouldn’t need to be a variance, the Court could simply approve the subdivision application without a plat.

I am going to use this subdivision to demonstrate the flaws in our system and illustrate what a good subdivision regulatory environment should be like.  This plat was submitted to the Court for approval, and it would have been approved in a routine manner had I not spoken up.  As you read my comments below, keep this simple plat in mind.

The "Plat" Submitted by Pope

A Simple Sketch of the Pope Subdivision

What Defines a "Pencil Lot"?

My Comments on the Plat Submitted by Pope

Comments (related to the submitted plat):

  1. If this plat satisfied our ordinance, a variance wouldn’t be needed.
  2. Don’ trust, verify. Without a properly prepared plat, how would you know whether these lots have adequate minimal buildable area or how they may adversely affect the public health and welfare?
  3. This subdivision has too many lots not to be platted. According to case law, platting is the best way to describe a piece of property and field notes descriptions are not required.  The property can be described by a single paragraph.  This eliminates many pages of legal documents that would otherwise be required, especially when things like utility easements are documented on the face of the plat.
  4. What is the minimum lot width of these lots and are they even wide enough to accommodate a house and all appurtenances?
  5. This tract has a “blue line” on it. These are water courses shown on the USGS topographic maps.  The water course may be small and inconsequential (we don’t know), but according to our flood regulations (Sec 2.01g), there is a buffer of 150’ on each side of the blue line and the entire 300’ swath is (or may be) considered to be a “Area of Special Flood Hazard”.  If so, then according to Sec 5.03 of our regulations, in a special flood hazard area where a base flood elevation is unknown, a hydrologic and hydraulic engineering analysis must be performed (and there are other onerous provisions).
  6. What is the right-of-way width?  Is this road wide enough to handle the driveway density and traffic increase?
  7. Does it matter that the deed calls for the property line to go to the middle of the road, and so some of the record acreage is beneath Falke-Heinrich Rd?
  8. Where are all the mailbox receptacles going to go? The post office now requires a common mailbox area for all subdivisions.
  9. What is the overall length of these driveways and will they be made of dirt or gravel? Will emergency services be able to access these lots?
  10. What is the spacing on these driveways and will they impact drainage across the subdivision?
  11. State law requires that the Court consider drainage in a subdivision. How can drainage be considered without a contour map or a drainage study?
  12. What is the county regulation related to driveway culvert minimum spacing and density? Is placing that many culverts so close together even practical or safe?
  13. Do these tracts have access to rural water? If so, where will all the water lines run?  If there enough room on these skinny lots?  Where there be individual utility easements on each lot, requiring 15 more legal documents that could be eliminated by a plat?
  14. Water wells are permitted on all tracts greater than 1/2 acre. Are these lots wide enough to accommodate the required 50’ buffer between all water wells and property lines?
  15. Septic systems and drain lines, according to our regulations, must be 100’ from all ponds, other water impoundments, water wells and boundary lines. Is there enough room on these lots for the required buffers between all these objects?  This regulation alone requires the lot to be 200’ wide (plus the width of the system) at the location where the septic system is installed.  It doesn’t matter that this provision needs to be revoked, it still exists.
  16. Are there any restrictions in place to force well drillers and OSSF installers to install those facilities and locations that satisfy County regulations?
  17. Are there any existing pipeline or other easements on this property? Will there be a pipeline running near someone’s house?  What about oil & gas wells?
  18. Who enforces these regulations when there are violations and how would you know there was a violation without a plat?
  19. Will there be telephone or internet cables underground? If so, is there enough room to install those lines and will each one need its own separate easement, requiring even more documents to be filed in the Clerk’s Office?
  20. Are there going to be any restrictions in this subdivision, such as the prohibition of manufactured or mobile homes?
  21. Are potential buyers made aware of potential restrictions, easements and regulations?
  22. Does the County or the public even have adequate information to make all of these determinations?
  23. Is any of this in the city limits? (Fortunately, here, the answer is no, but the Court recently nearly approved another subdivision that was in the City ETJ

In a good regulatory environment, the ordinances would be up to date, there would be multiple checklists for the public and the county officials to use to ensure that nothing is forgotten, and the County Clerk’s Office would have an efficient way to record numerous subdivision plats.  A subdivision plat, with the information it contains on one piece of paper, is far superior to multiple sets of field notes, easement documents, etc. that would be required without a plat.

There is no reason to grant a variance for this and similar subdivisions.  It is not difficult to prepare a plat and plats are necessary tools used to evaluate subdivision compliance with our regulations.  It is not just for the subdivision inspector, or the Court, but also for the public at large.  We are doing subdividers a favor by not closely scrutinizing subdivisions and we are shooting ourselves in the foot by not ensuring compliance with our regulations.

Currently, the Court must do one of the following with a subdivision application (which is automatically approved if not dis-approved within 30 days):

  • Approve the application because it satisfies all county regulations,
  • Deny the application because it does not satisfy all county regulations, or
  • Grant a variance for non-conformance due to actual hardship.

I have said it repeatedly in Court, if you must constantly grant variances to one of your ordinances, then your ordinance needs to be changed.  Our County grants variances for nearly all subdivisions which don’t have public parts to dedicate.

As it is, our subdivision ordinance is so old that it is completely outdated and in need of a major re-write.  For now, the County should start by eliminating the subdivision fast lane and requiring plats for nearly all subdivisions, excluding only the very small and simple ones.

Plats help in determining whether the subdivision complies with the regulations, simplifies property descriptions, provides basic public awareness and reduces a tremendous amount of paperwork.

There are many implications here.  My point is not to list them all, but to start the dialogue.

In my opinion, the County should:

  • Not approve this subdivision on the grounds that it does not have, or does not demonstrate, an adequate minimum buildable area for each lot.
  • Immediately craft an ordinance regulating minimum culvert spacing and density.
  • Immediately craft an ordinance prohibiting “pencil” lots, which should be defined as a lot whose minimum uniform width is less than 1/4, 1/5 or 1/6 of its overall length (choose a standard). See the sample sketch above.  132’ by 660’ is my favorite (132’ x 5 = 660’).
  • The subdivision regulation needs to be completely re-written and updated so that it conforms to state law and new standards.