Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERALOFTEXAS
GREG ABBOTT
July 30,2004
The Honorable Michael S. Wenk Opinion No. GA-0223
Hays County Criminal District Attorney
Hays County Justice Center Re: Whether a condominium development is a
110 East Martin Luther King subdivision subject to county regulation under Local
San Marcos, Texas 78666 Government Code chapter 232 (RQ-0177-GA)
Dear Mr. Wenk:
You.ask whether a condominium development is a subdivision subject to county regulation
under Local Government Code chapter 232.’
I. Backmound
Your questions involve the relationship between chapter 232 of the Local Government Code
and chapter 82 of the Property Code, the Uniform Condominium Act. Chapter 232, subchapter A
generally requires the owner of a tract of land located outside the limits of a municipality to have a
plat of the subdivision prepared if the owner divides the tract into two or more parts to lay out,
among other things, a subdivision of the tract. See TEX. Lot. GOV’T CODE ANN. 3 232.001(a)(l)
(Vernon Supp. 2004). The commissioners court is authorized to approve or disapprove a plat based
on whether it meets statutory requirements. See id. 5 232.002. In addition, you indicate that Hays
County falls within subchapter E of chapter 232, see id. 0 232.100 (applicability), which governs
subdivisions in urban and adjacent counties and generally authorizes the commissioners court in such
a county 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,” id. 0 232.101 (a); see
also Request Letter, supra note 1, at 1 (noting that Hays County is an “urban county”).
Chapter 82 of the Property Code provides for ownership of land separately and commonly
by condominium owners. Under chapter 82, a “condominium” means
a form of real property with portions of the real property designated
for separate ownership or occupancy, and the remainder of the real
‘LetterfromHonorableMichaelS. Wenk, HaysCountyCriminalDistrictAttorney,to HonorableGregAbbott,
TexasAttorneyGeneral(Jan.28,2004) (on file withthe OpinionCommittee;also available at http:l/www.oag.state
.tx.us)[hereinafterRequestLetter].
The Honorable Michael S. Wenk - Page 2 (GA-0223)
property designated for common ownership or occupancy solely by
the owners of those portions. Real property is a condominium only
if one or more of the common elements are directly owned in
undivided interests by the unit owners. Real property is not a
condominium if all of the common elements are owned by a legal
entity separate from the unit owners, such as a corporation, even if the
separate legal entity is owned by the unit owners.
TEX. PROP. CODE ANN. 9 82.003(a)(S) (V emon 1995). A condominium is created .“by recording a
declaration executed in the same manner as a deed by all persons who have an interest in the real
property . . . . The declaration shall be recorded in each county in which any portion of the
condominium is located.” Id. 5 82.05 l(a); see aZso id. 5 82.003(a)(ll) (“‘Declaration’ means a
recorded instrument, however denominated, that creates a condominium, and any recorded
amendment to that instrument.“). Chapter 82 also requires the filing of condominium plats and
plans. See id. $ 82.059(a) (“Plats and plans are a part of the declaration and may be recorded as a
part of the declaration or separately.“); see also id. $ 82.003(a)(18) (“‘Plan’ means a dimensional
drawing that is recordable in the real property records or the condominium plat records and that
horizontally and vertically identifies or describes units and common elements that are contained in
buildings.“), (a)( 19) (defining “plat”).
You explain that Hays County regulates the subdivision of land in all unincorporated areas
of Hays County pursuant to chapter 232. See Request Letter, supra note 1, at 1. The Hays County
Environmental Health Department administers these regulations and seeks the commissioner court’s
approval of subdivision plats. See id. A developer in Hays County is proposing to develop a 1Zacre
parcel of land as a condominium governed by chapter 82 of the Property Code. See id. A brief
submitted on behalf of the Hays County Commissioners Court describes the development as follows:
“The proposed development comprises 17 condominium units . . . . None of the . . . units share any
walls, foundations, roofs or structural elements and each . . . unit exclusively occupies the land on
which it is located, similar to a typical single family residence.“2 It further states that each unit will
be situated on a. 13 acre parcel “that will be designated on the condominium declaration as a ‘limited
common element’ reserved for the exclusive use and enjoyment of the owner of the condominium
unit.” Id.; see also TEX. PROP. CODE ANN. $ 82.003(a)(17) (Vernon 1995) (defining “limited
common element” to mean “a portion of the common elements allocated by the declaration or by
operation of Section 82.052 for the exclusive use of one or more but less than all of the units”).
Hays County has obtained a legal opinion concluding that the condominium development
is a subdivision subject to regulation under chapter 232. See Request Letter, supra note 1, at 2; see
also id. Exhibit B (brief from David B. Brooks (Dec. 1,2003)). The developer, on the other hand,
takes the position that “the development does not qualify as a ‘subdivision’ and is therefore exempt
from development regulations.” Id.; see also id. Exhibit C (brief from James M. Butler (Jan. 26,
2004)) [hereinafter Butler Brief). The Hays County Commissioners Court has asked you to seek an
‘Brief fromPhillipH. Schmandt,McGinnis,Lochridge& Kilgore,L.L.P., to HonorableGregAbbott, Texas
AttorneyGeneral,at 2 (Apr. 27,2004) (on file with the Opinion Committee).
The Honorable Michael S. Wenk - Page 3 (GA-0223)
opinion fi-om this office clarifying whether chapter 232 applies to condominium developments. You
ask us to address two issues:
1) Whether a condominium development pursuant to Chapter 82,
Texas Property Code, is subject to the regulatory control of the
county under the subdivision statutes contained in Chapter 232
of the Local Government Code?
2) Does Section 232.100, Texas Local Government, allow urban
counties to require condominium or other multi-unit
developments (a building, structure or combination of structures
which have been designed to contain units in which more than
two families may reside) to meet subdivision or infrastructure
planning requirements?
Request Letter, supra note 1, at 2.
II. Analvsis
A. Local Government Code Chapter 232, Subchapter A and Property Code
Chapter 82
To answer your first question, we must determine whether a condominium
development such as the one described above may be a “subdivision” within the meaning of Local
Government Code, chapter 232, subchapter A. If we conclude that it may be, we then consider
whether Property Code chapter 82 exempts a condominium from county regulation.
Section 232.001 of the Local Government Code establishes when a landowner must tile a
plat:
(a) The owner of a tract of land located outside the limits of
a municipality must have a plat of the subdivision prepared if the
owner divides-the tract into two or more parts to lay out:
(1) a subdivision of the tract, including an
addition;
(2) lots; or
(3) 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.
The Honorable Michael S. Wenk - Page 4 (GA-0223)
(a-l) A division of a tract under Subsection (a) includes a
division regardless of whether it is made by using a metes and bounds
description in a deed of conveyance or in a contract for a deed, by
using a contract of sale or other executory contract to convey, or by
using any other method.
TEX. Lot. GOV’T CODE ANN. 5 232.001 (Vernon Supp. 2004). In addition, section 232.0015
authorizes a county to define when plats are not required: “To determine whether specific divisions
of land are required to be platted, a county may define and classify the divisions. A county need not
require platting for every division of land otherwise within the scope of this subchapter.” Id.
232.0015(a), See generaZZy Tex. Att’y Gen. Op. No. JC-0260 (2000) (concluding that section
232.0015(a) authorizes a county to “define and classify divisions” to except from the platting
requirement particular subdivisions that would otherwise be subject to the requirement, even though
the exception is not one listed in section 232.0015(b)-(k)). Section 232.0015(b)-(k) excepts various
subdivisions from the platting requirement, but neither the county nor the developer suggests that
any one of those exceptions is relevant here. See TEX. LOC. GOV’T CODE ANN. $232.0015(b)-(k)
(Vernon Supp. 2004).
Courts have broadly construed the term “subdivision” in section 232.001 and similar land
regulation statutes. h-r 1985, a court considered whether the statutory predecessors to section
232.001, former Revised Civil Statutes articles 6626a and 6702-1, required a landowner who
intended to lease spaces on his land for mobile homes to file a plat. See Cowboy Country Estates
v. Ellis County, 692 S.W.2d 882 (Tex. App.-Waco 1985, no writ). The landowner argued that the
land in question did not constitute a “subdivision” within the statutes because the landowner “ha[d]
no intention of selling lots, but
.I only to lease spaces for mobile homes; that since the land [was] not
being divided for purpose of sale, that it [was] not a ‘subdivision’ under these statutes.” Id. at 886.
The court disagreed:
[T]he statutes concerned do not make any requirement that the lots be
for fee simple purchases in order for a tract of land to be constituted
as a subdivision. The manifest overall purpose of the statutes
concerned is to give counties the power to control subdivisions to
protect its citizens in matters ofpublic 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.
Id. at 886-87. Cases construing the term “subdivision” in statutes providing for municipal land use
regulation also construe the term broadly. See City of Lucas v. N. Tex. Mm. Water Dist., 724
S.W.2d 8 11,823 (Tex. App.-Dallas 1987, writ ref’d n.r.e.) (the term “subdivision” as used in former
article 970a, section 4 “may be simply a division of a tract of land into smaller parts”); Ciq of
Weslaco v. Calpenter, 694 S.W.2d 601,603 (Tex. App.-Corpus Christi 1985, writ ref d n.r.e.) (the
term “subdivision” as used in former article 970a, section 4 “may refer simply to the act of partition
itself’). As one court stressed, “a subdivision of land, whether it refers to merely partitioning
The Honorable Michael S. Wenk - Page 5 (GA-0223)
property or instead refers to sales of residential sites involving separate owners, suggests
development.” City of Weslaco, 694 S.W.2d at 603.
By contrast, in EZgin Bank of Texas v. Travis County, 906 S.W.2d 120, 124 (Tex.
App.-Austin 1995, writ denied), the court construed the section 232.001 platting requirement
narrowly, holding that it did not apply to 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 fronting on or adjacent to the streets, alleys, squares, parks, or other
parts. The court relied in part on an opinion of this office, Attorney General Opinion JM-1100
(1989). See id. at 121. In 1999, the legislature amended section 232.001 and other subchapter A
provisions to clarify the platting requirement’s breadth and commissioners courts’ authority to
regulate subdivisions. See Act of May 5, 1999,76th Leg., R.S., ch. 129, $9 l-2, 1999 Tex. Gen.
Laws 574, 575-76. Bill analyses for the 1999 legislation indicate that the legislature expressly
intended to close the loophole in county subdivision authority created by the EZgin Bank construction
of section 232.001 .3
A brief for the developer asserts that “by its very definition, a condominium unit cannot exist
on a subdivided tract of land,” because owners of condominium units “retain an interest in the
undivided common elements, that is, they own an undivided interest in land; not divided separate
interests in land.” Butler Brief, supra p. 2, at 3. We disagree that a condominium unit cannot exist
on tract of land that is “subdivided” within the meaning of section 232.001 of the Local Government
Code.
First, under the case law, how land is to be owned is not dispositive of whether a division of
land constitutes a subdivision under section 232.001. In Cowboy Country Estates, 692 S.W.2d 882,
the only case to address the meaning of the word “subdivision” in section 232.001 or its
predecessors, the court concluded that the landowner planned to subdivide the land even though he
would continue to own it in fee simple. See id. at 886 (“[T]he statutes concerned do not make any
requirement that the lots be for fee simple purchases in order for a tract of land to be constituted as
[a] subdivision.“); see also City of WesZaco, 694 S.W.2d at 603 (rejecting landowner’s contention
that “the term ‘subdivision’ must be construed as requiring the land to be split into at least two
different lots which are owned by different people”). Thus, land may be subdivided for purposes of
section 232.001 even though the land is owned by a single owner or commonly owned by multiple
owners.
Second, in Cowboy Country Estates, the landowner divided the land by leasing separate
parcels as spaces for mobile homes. As the term is defined in the Property Code, a “condominium”
also involves dividing property into separate parcels, see TEX. PROP. CODE ANN. $ 82.003(a)(S)
(Vernon 1995) (“‘Condominium” means a form of real property with portions of the realproperty
‘See SENATE COMM.ONINTERGOVERNMENTALRELATIONS, BILLANALYSIS,Tex. S.B. 710,76th Leg., R.S.
(1999) (As FileddatedMar. 22,1999); SENATECOMM. ONINTERG~VEIWMENTALREJK~IONS, BILLANALYSIS, Tex. S.B.
710,76th Leg., R.S. (1999) (Comm.Rpt. datedMar.25, 1999); HOUSECOMM. ONLAND&RES.MGMT.,BILLANALYSIS,
Tex. S.B. 710, 76th Leg., R.S. (1999) (Engrossed Version dated Apr. 22, 1999); SENATECOMM. ON
INTERGOVERNMENTALRELATIONS, BILLANALYSIS, Tex. S.B. 710,76th Leg., R.S. (1999) (EnrolledVersiondatedJuly
6, 1999).
The Honorable Michael S. Wenk - Page 6 (GA-0223)
designatedfor separate ownership or occupancy, and the remainder of the real property designated
for common ownership or occupancy solely by the owners of those portions . . . .“) (emphasis
added), including condominium “units,” which are “physical portion[s] of the condominium
designated for separate ownership or occupancy, the boundaries of which are described by the
declaration,” id. 9 82.003(a)(23). Moreover, in the case of the proposed condominium development
at issue here, units will be located on .13 acre parcels of land designated as “limited common
elements,” which are “portion[s] of the common elements allocated by the declaration or by
operation of Section 82.052 for the exclusive use of one or more but less than all of the units.” Id.
0 82.003(a)( 17). The developer’s brief asserts that the designation of a unit for separate ownership
is not the subdivision of land because “the underlying physical land will not and cannot be
subdivided,” Butler Brief, supra p. 2, at 4, but, again, land need not be separately owned in order to
be subdivided under section 232.001. See Cowboy Country Estates, 692 S.W.2d 882. The seventeen
.13 acre parcels, each reserved for the unit owner’s exclusive use, are as much a division of land as
the mobile home spaces at issue in Cowboy County Estates. See id. at 885; see also City of
Weslaco, 694 S.W.2d at 602 (concluding that plan to develop a 8.17 acre park by renting spaces for
mobile homes and recreational vehicles constituted a subdivision of land). Accordingly, we
conclude that section 232.001 authorizes a commissioners court to determine that such a
condominium development constitutes a subdivision that must be platted.4
Having concluded that subchapter A authorizes a commissioners court to determine that a
condominium development is a subdivision for which the landowner must prepare and file a plat,
we consider whether chapter 82 of the Property Code, the Uniform Condominium Act, forecloses
county regulation of condominium developments.
The developer’s brief asserts that chapter 82 exclusively regulates condominiums and excepts
condominiums from regulation under chapter 232 of the Local Government Code. See Butler Brief,
supra p. 2, at 4. However, no provision in chapter 82 expressly states that a condominium is exempt
from chapter 232 and several provisions indicate that the legislature did not intend to except a
condominium from regulation as a subdivision under chapter 232. First, section 82.006 indicates
that chapter 82 precludes a county or city from prohibiting or discriminating against condominium
ownership. See TEX. PROP. CODE ANN. $ 82.006 (Vernon 1995) (“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.“). But the same provision
expressly indicates that chapter 82 does not otherwise invalidate or modify subdivision laws or
regulations: “Otherwise, this chapter does not invalidate or modify any provision of any zoning
subdivision, building code, or other real property use law, ordinance, or regulation.” Id. (emphasis
‘Section232.02 I(1 l), citedas authority
in a briefsubmitted
to thecountyonbehalfof thedeveloper,is inLocal
GovernmentCodechapter232, subchapter B, whichdoesnot applyto thecounty.See ButlerBrief,supra p. 2, at2; see
also TEX.LOC.GOV’TCODEANN.5 232.022 (VernonSupp.2004) (applicability of subchapter B to countylocatednear
internationalborder). We note, however, that this offke has also broadly construedthe meaningof the terms
“subdivision”and “subdivide”in subchapterB. See Tex. Att’y Gen. Op. No. DM-485 (1998) (concludingthata
residentialleaseused by a school districtthat conveyedto a teacherthe rightto occupya manufactured home on a
distincttractof landdividedthe surfaceareaof land).
The Honorable Michael S. Wenk - Page 7 (GA-0223)
added). Section 82.006 precludes a county from discriminating against condominiums but expressly
preserves a county’s authority to regulate them as subdivisions.
Second, chapter 82 defines the term “plat” to exclude Local Government Code chapter 232
subdivision plats:
“Plat” means a survey recordable in the real property records
or the condominium plat records and containing the information
required by Section 82.059. As used in this chapter, ‘plat ”does not
have the same meaning as ‘>Zat” in Chapter 212 or 232, Local
Government Code, or other statutes dealing with municipaz or county
regulation ofproperty development.
Id. 5 82.003(a)( 19) (emphasis added); see also id. 0 82.05 1(d) (“The book for the condominium plat
records shall be the same size and type as the book for recording subdivision plats.“). Thus, a
condominium plat is legally distinct from a subdivision plat. Section 82.05 1(d) requires a county
clerk to record condominium plats or plans in the real property records “without prior approval from
any other authority.” Id. 9 82.05 1(d). Importantly, however, section 82.05 1(e) expressly provides
that chapter 82 “does not affect or diminish the rights of municipalities and counties to approveplats
ofsubdivisions and enforce building codes as may be authorized or required by law.” Id. 5 82.05 1(e)
(emphasis added). Section 82.051(e) expressly preserves cities’ and counties’ rights to apply
building codes and subdivision requirements to condominiums. Thus, while a commissioners court
lacks the authority to approve a condominium plat, chapter 82 does not affect county authority to
require or approve a subdivision plat for a condominium for which a subdivision plat is required
under chapter 232 of the Local Government Code.
For these reasons, we conclude that chapter 82 does not prohibit a county from requiring a
condominium development to file a plat under chapter 232, subchapter A.
B. Local Government Code Chapter 232, Subchapter E
You also ask us to address whether section 232.100 of the Local Government Code
“allow[s] urban counties to require condominium or other multi-unit developments . . . to meet
subdivision or infrastructure planning requirements.” Request Letter, supra note 1, at 2.
Section 232.100 makes subchapter E applicable to certain urban counties and counties
adjacent to them. See TEX. Lot. GOV’T CODE ANN. 9 232.100 (Vernon Supp. 2004).5 Section
232.101 (a) provides subchapter E counties with broad authority to regulate subdivisions:
‘Section 232.100 providesthat subchapterE appliesonly to the subdivisionin a countythat “(A) has a
populationof 150,000 or moreandis adjacentto an international
border;(B) has a populationof 700,000 or more; (C)
is adjacentto a countywitha populationof 700,000 or moreandis withinthesamemetropolitan statisticalareaas that
adjacentcounty,as designatedby theUnitedStatesOffice of ManagementandBudget;or (D) is adjacentto a county
witha populationof 700,000 or more,is not withinthesamemetropolitan statisticalareaas thatadjacentcounty,and
hasa populationthathasincreasedafterthe 1990 decennialcensus,fromonedecennialcensusto thenext,by morethan
40 percent.”TEX.Lot. GOV’TCODEANN. 5 232.100(2) (VernonSupp.2004).
The Honorable Michael S. Wenk - Page 8 (GA-0223)
(a) By an order adopted and entered in the minutes of the
commissioners court and after a notice is published in a newspaper of
general circulation in the county, the commissioners court may 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.
Id. 5 232.1Ol(a).(j The legislature enacted subchapter E in 2001 to give affected counties greater
authority to regulate subdivision infrastructure. As a bill analysis explains,
Current law allows cities to make certain requirements in the
development of infrastructure for subdivisions. No such provision
exists for counties. S.B. 873 grants counties the authority to: adopt
subdivision regulations, including lot size and setback limitations;
enforce a major thoroughfare plan and establish right of way; require
possession of aplat compliance certificate before utility hookups; and
enact other regulations relevant to responsible development.7
In addition to the broad regulatory authority granted in section 232.101, sections 232.102 through
232.106 authorize counties to adopt various requirements. See, e.g., id. $9 232.102 (major
thoroughfare right-of-ways), .103 (lot frontages), .104 (set-backs).
You ask whether this regulatory authority applies to condominium developments or other
multi-unit developments. The authority granted to a county to regulate subdivisions in section
232.101 (a) applies to a subdivision of land subject to county regulation under subchapter A and is
subject to the same exemptions provided in subchapter A in section 232.00 15. See id. $9 232.100( 1)
(“This subchapter applies only to the subdivision of the land that is [] subject to county regulations
under Subchapter A or B.“), 232.101 (c) (“The authority granted under Subsection (a) is subject to
the exemptions to plat requirements provided for in Section 232.0015.“). Furthermore, section
232.107 expressly states that the authority granted to a county by subchapter E is “cumulative of and
in addition to the authorities granted under this chapter and all other laws to counties to regulate the
subdivision of land.” Id. § 232.107. These provisions indicate that the legislature expressly intends
subchapter E to add to a county’s authority to regulate subdivisions subject to platting under
%ee also id. 0 232.101(b) (“Unlessotherwiseauthorizedby statelaw, a commissioners courtshallnotregulate
underthissection: (1) theuse of anybuildingorpropertyforbusiness,industrial, residential,
or otherpurposes;(2) the
bulk, height,or numberof buildingsconstructedon a particulartractof land; (3) the size of a buildingthatcan be
constructed on a particular tractof land,includingwithoutlimitationandrestriction
on theratioof buildingfloorspace
to the landsquarefootage;or (4) thenumberof residential unitsthatcanbe builtper acreof land.“).
‘SENATECOMM. ONINTERGOVERNMENTALRELATIONS, BILLANALYSIS, Tex. S.B. 873,77th Leg., R.S. (2001)
(EnrolledVersiondatedJune5,200l); see also SENATE COMM.ONINTERGOVERNMENTALRELATIONS, BILLANALYSIS,
Tex. S.B. 873, 77th Leg., R.S. (2001) (As Filed datedMar. 15, 2001); SENATECOMM.ON INTERGOVERNMENTAL
RELATIONS, BIUANALYSIS,Tex. S.B. 873,77th Leg., RS. (2001) (Comm. Rpt. datedMar. 28,200l); HOUSECOMM.
ONLAND& RES.MGMT.,BILLANALYSIS, Tex. S.B. 873, 77th Leg., R.S. (2001) (Comm. Rpt. datedApr. 30,200l).
The Honorable Michael S. Wenk - Page 9 (GA-0223)
subchapter A. Thus, we conclude that the term “subdivision” has the same meaning in both
subchapters and that subchapter E authorizes a county to further regulate a subdivision regulated
under subchapter A.
In answer to your specific question, section 232.100 of the Local Government Code and the
other provisions of subchapter E “allow urban counties to require condominium or other multi-unit
developments” that are subject to subchapter A “to meet subdivision or infrastructure planning
requirements.” Request Letter, supru note 1, at 2.
(GA-0223)
The Honorable Michael S. Wenk - Page 10
SUMMARY
Local Government Code chapter 232, subchapter A authorizes
a county to determine that a condominium development is a
subdivision of land for which the landowner must prepare and file a
plat. Subchapter E of chapter 232 authorizes an urban county to
regulate a condominium development that constitutes a subdivision
under subchapter A.
Very truly yours,
%kEG ABBOTT
Attorney General of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee