Travis County Commssioners Court
September 9, 2003
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Item 13
13-a, consider and take appropriate action on request for a variance to chapter 82.302 d 11 of standards to allow for acceptance of a subdivision with a joint use driveway that does not have all-weather access to and from the proposed lots. There's six of them. And 13-b, consider and take appropriate action on request for construction agreement and approval of a plat for recording in precinct 3, clayton's crossing, long form plat, 22 lots, 40.735 acres, spicewood springs road, fiscal posted with city of Austin, sewage service to be provided by on-site septic, six lots, and city of Austin e.t.j.
>> this was on the agenda last week. This week we have some graphics that perhaps better shows the dilemma that we have. This is the site that we're talking about. As you can see from the topographic lines, the green lines, there's about 160-foot drop cliff from the northern part of the tract down to the flood plain. So there's really no way except for this piece right here that they could access to those lots from on top of the tract. On the bottom side, as you can see, you are totally bound by the flood plain of bull creek. So there's no way to get in from the top. The only way to get in from the bottom is through the flood plain. And so therein is the dilemma. Our requirements say you have to have an all-weather access to the lots. There's no way they can get that. This is another drawing of the same situation. Perhaps you can see the topographic lines better represented. You really have just a postage stamp part of each lot that's available for developers. The rest of it must pretty much go straight up. So ironically the six lots could have avoided a variance by proposing two driveways. But that doesn't avoid the safety issue. The six lots and the future owners of those six lots still have the same risk if there's one driveway or two driveways. If anything, the two driveways expose them to yet another risk, and that is the site distance on the second driveway on spicewood springs road. So we feel the sight distance is improved with one driveway and it doesn't enhance the flood risk because it's already there. So that's why -- I mean, it's either deny the subdivision altogether and tell the owner that they have to be satisfied with the current uses that they have, or approve the subdivision with all the public notice that we can engender through the plat notes, in the records and the deed and whatnot to put the future owners on notice that they have these risks if they buy these lots. And we recommend that that is the approach the court takes.
>> so if we turn down the variance, the owner can propose basically two driveways and will not need a variance.
>> well, we would have to come to the court and say you have the same problem in the safety and welfare provision. I mean, we derive our authority from safe health and welfare. That's the whole basis of our subdivision regulations. We don't obviate that by putting in two driveways. So I think we're doing the right thing by facing straight up with the safety issue. By approaching it this way, I think we do our due diligence with regard to what the public expects us to do when we get subdivision plats.
>> I think the other issue that came up that was floated by the city of Austin in terms of this had to go back with two driveways, whether that would gain approval by the environmental board, and they spent a lot of time talking about this, and the two driveways was unacceptable because of the watershed, that they wanted less impervious cover as opposed to more impervious cover. So they were going to be insistent on one driveway, not two. And again, even if we had two driveways, it still would not get around the issue related to access, all-weather access to the subdivision. It's irrelevant.
>> on one.
>> or two.
>> so joe, the department is not recommending the variance.
>> no, we would have to concur with the recommendation. I don't think there's any way else. You either approve the plat with the variance or you don't approve the plat at all. And I would say the best that we could do probably in this case with these facts is put the public on notice that the variance is being grand and to give full notice to the six future owners of these properties that they have a risk here when it floods. And to buy with that knowledge.
>> simply stated, the department's recommendation is --
>> to approve the subdivision with variance.
>> to do what now?
>> to approve the subdivision with the variance.
>> and appropriate notations on the plat.
>> that's correct.
>> and in the deed records.
>> and deed records.
>> and that's the big thing that got me to my comfort level because I asked a lot of questions and I appreciate the time the return staff spent with me because we have had situations where something is pulled on a plat and the public that buys it doesn't know oeuts the plat. This is going on the deed records which means this is something that's going to pop up at closing so the owner is going to see that when they are going through all their closing documents something special. That, to me, makes this different. Because then that person knowingly as they are signing their name to get this property, they will absolutely be on notice, and that is something we can always go back to is you signed and bought this property with full knowledge of what the situation was.
>> plus, joe, after item number 11, anybody that's thinking about buying one of these lots is going to have to drive past that brand-spanking-new stpaus city of Austin flood gate.
>> right.
>> and a person is going to see that and go this area must flood occasionally.
>> any reason we should not do this?
>> no, sir.
>> that's why I move approval.
>> I second.
>> with the appropriate notations on the plat and also deed records. Any more discussion?
>> yes, I have a question.
>> yes, sir.
>> when you come to closing, if there is by any chance that things are not disclosed during closing, I mean it's still a possibility that sometimes everything isn't revealed during a closing. Does that put any liability on the county or where that liability lies if things aren't disclosed properly. Because there has been instances when persons have bought even property from the tax roll or whatever else that they've bought property in Travis County that they are dealing with, we've heard of situations like that. Excuse me. I'm just wondering where the liability would lie if, for whatever reason, in a perfect world, maybe something could -- but the world isn't perfect as it is. That means there is a chance of somebody slipping and somebody dropping the ball. So if that's the case, then what situation does that put the county, Travis County in as far as this person just trying to acquire this property? Can you answer that for me, legal?
>> well, I think the county has gone above and beyond the minimum what we're legally obligated to do here, and at some point the burden shifts to the people who are selling the lot to inform the buyer and the burden shifts to the buyer to do a certain amount of due diligence themselves, that t.n.r. Has drafted a document to go in the deed records. And legally when you buy a lot, you are on notice -r everything in in the deed records affecting your lot, and it's legally your burden to go make sure you've got all those records. Now -- and generally you get all of that at closing, the title company gives you all that. But again, if there's a mistake, if the title company misses something, the burden is on the buyer, it's not on the county to make sure they have notice of that document. The burden is on the buyer. So I think we've done more than we need to to insulate the county from liability.
>> that's why people buy title insurance and that buyer, let's say something was missed, they would have the opportunity to go back on the title company to seek damages, and we've actually been involved in some lawsuits where it wound up being the title company paying for not finding something that was actually in the records.
>> I'm back to really the best thing that could happen here to address this issue has happened. Those flood gates are going to go up. I mean you don't have to search the title records to see a big flood gate on the road. That's going to tell people that if they buy in this area, there are going to be times when that gate is down which tells them it's not safe to drive that road. So --
>> I just want to make sure everybody basically understands what we're doing here. And I guess full disclosure as far as what I'm concerned about that people do understand the process, and even the notes and everything that's going with this particular subject matter we're dealing with. Those are questions I had I wanted to make sure.
>> the motion covers 13-a and b. All in favor say aye? That passes by unanimous vote.
>> no.
>> I'm sorry. All in favor say aye? Commissioners Daugherty, Davis, Sonleitner, your truly in favor. Voting against, Commissioner Gomez.
Last Modified: Wednesday, September 9, 2003 7:52 AM