REPLATTING WITHOUT VACATING PRECEDING PLAT RUSSELL T. ABELN ASSISTANT CITY ATTORNEY 19-1007-2545/PL#966178/Platting Procedure Presentation/RTA “Del eliver ering ng Excep ceptional S Ser ervices ces” 1
PLATTING 101 • A plat is a map of land that is drawn to scale and used to identify divisions of land into smaller parcels. • Plats are used to simplify legal descriptions from metes and bounds, and to provide a visual depiction of a subdivision of land. • Replat means the division of lot(s) or parcel(s) of land that is already a part of an existing subdivision.
RESTRICTIVE COVENANTS • A restrictive covenant is a private agreement, usually in a deed or lease, that restricts the use or occupancy of real property. • A restrictive covenant is a contractual agreement between the seller and the purchaser of real property. Real covenants run with the land. • Platting property in violation of restrictions (for example, creating new lots not allowed by the restrictions) does not effectuate an amendment of the restrictions, nor precludes enforcement of the restrictions. See Witte v. Sebastian , 278 S.W .2d 200, 203 (Tex. Civ App.—Amarillo 1953, no writ).
APPROVAL OF MUNICIPALITY REQUIRED, 212.005 TEXAS LOCAL GOVERNMENT CODE • 212.005 The municipal authority responsible for approving plats must approve a plat or replat that is required to be prepared under this subchapter and that satisfies all applicable regulations. An act is ministerial when the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion. 19-1007-2545/PL#966178/Platting Procedure Presentation/RTA 4 “Del eliver ering ng Excep ceptional S Ser ervices ces”
EL PASO CITY CODE (19.07.020) & TEXAS LOCAL GOVERNMENT CODE (212.014) • 19.07.020(3) The replat does not propose to amend or remove any covenants or restrictions previously incorporated in the recorded plat . • 212.014(3) [The replat] does not attempt to amend or remove any covenants or restrictions. 19-1007-2545/PL#966178/Platting Procedure Presentation/RTA 5 “Del eliver ering ng Excep ceptional S Ser ervices ces”
EXAMPLE
EL PASO REPLATTING LAW & HOUSTON EXCEPTION • 19.07.020(3) The replat does not propose to amend or remove any covenants or restrictions previously incorporated in the recorded plat . • 212.0146 (3) The replat does not amend, remove, or violate, or have the effect of amending, removing, or violating, any covenants or restrictions that are contained or referenced in a dedicatory instrument recorded in the real property records separately from the preceding plat or replat. • San Antonio 2013 In 2013 the Texas legislature amended 212.0146(3) to include San Antonio. 19-1007-2545/PL#966178/Platting Procedure Presentation/RTA Deliv livering Excep ceptional S Ser ervices ces 7
LIMITATIONS IMPOSED BY 2019 TEXAS LEGISLATURE C.S.H.B 3314 • A replat of a subdivision or part of a subdivision may be recorded and is controlling over the preceding plat without vacation of that plat if the replat: (1) is signed and acknowledged by only the owners of the property being replatted; (2) is approved, after a public hearing on the matter at which parties in interest and citizens have an opportunity to be heard, by the municipal authority responsible for approving plats; and (3) does not attempt to amend or remove any covenants or restrictions. 19-1007-2545/PL#966178/Platting Procedure Presentation/RTA 8 “Del eliver ering ng Excep ceptional S Ser ervices ces”
ADDITIONAL NOTICE LIMITATIONS IMPOSED BY 2019 TEXAS LEGISLATURE 2018 Code: (b)Notice of the hearing required under Section 212.014 shall be given before the 15 th day before the date of the hearing by: Current Code: (f) If a proposed replat described by Subsection (a) does not require a variance or exception, the municipality shall, not later than the 15th day after the date the replat is approved, provide written notice by mail of the approval of the replat to each owner of a lot in the original subdivision that is within 200 feet of the lots to be replatted according to the most recent municipality or county tax roll.
ANALYSIS FROM TEXAS LEGISLATURE • It has been noted that a public hearing is required for any replat planned for an area with residential restrictions. • Because a plat that meets all local subdivision requirements must be approved, regardless of neighborhood opposition, the public hearing serves only a ministerial function, which often leaves builders and developers frustrated by neighborhood opposition and citizens frustrated after engaging in a hearing only to find no real recourse. • C.S.H.B. 3314 seeks to create a more positive environment for public engagement and effective change with regard to the replatting process. 19-1007-2545/PL#966178/Platting Procedure Presentation/RTA 10 Deliv livering Excep ceptional S Ser ervices ces
TEXAS CITIES CONSULTED • AUSTIN • GEORGETOWN • IRVING
SUMMARY • Removing the highlighted language does not give the City the ability to enforce separately recorded private covenants. Enforcing separately recorded private covenants would violate State Law by unilaterally adding a new condition to the ministerial duty of City Plan Commission to approve and deny replat applications. • Section 212.014(3) does not apply to separately recorded covenants. Section 212.014(3) only applies to covenants and restrictions recorded on the plat. It provides protection for the removal of a covenant or restriction through the replatting procedure. It is a procedural protection and not an enforcement mechanism. A replat in violation of private covenants does not override those covenants. Any separately recorded deed restrictions would have to be enforced privately. 19-1007-2545/PL#966178/Platting Procedure Presentation/RTA 12 Del eliver ering Excep ceptional S Ser ervices ces
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