I dissent because I believe the majority's construction of TEX. LOC. GOV'T CODE ANN. § 232.041 (Vernon Supp. 1999) is too narrow. In passing this statute, the legislature for the first time established procedures for revising a subdivided plat that is under the control of a county. Under the law, the commissioners court is required to approve the revision if there is no infringement on property owners' "established rights" or if any infringement is acceptable to the property owners.
The statute does not define "established rights," but I disagree with the majority's view that the only rights that are "established" are the rights created by the filing of the original plat. In the absence of restrictive covenants, by the majority view, "the only rights established for the purchasers of lots set forth on the plat were the ownership rights of the specific property which the owner was conveyed." If so, then the objecting landowner acquired no rights from the filing of the original plat that he did not presumably acquire from the filing of his own deed. If ownership rights of the specific property are the only rights established for the purchasers of such lots, then what protection does Section 232.041 provide that they do not already have? It seems reasonable to conclude that the legislature intended this statute to provide protection for lot owners not just for contractual rights, but for rights in general.
The majority relies on MacDonald v. Painter, 441 S.W.2d 179 (Tex. 1969), as its source for defining "established rights." This was a declaratory judgment case, dealing primarily with restrictive covenants in deeds and whether or not those covenants prohibited the construction of duplexes on subdivided lots. "One further question" dealt with whether the restrictions prevented the developers from resubdividing three platted lots into six lots. In concluding that they did not, the court pointed out that the three lots had already been altered by purchases made by the surrounding owners of portions of the three lots, and the developers therefore resubdivided lots which had already been altered. The court further pointed out that other jurisdictions have held that the mere filing of a map which depicted lots, butwhich had no declaration that restricted the size of lots, was not a prohibition upon the resubdivision into smaller lots. It was in this context that the court then made the quotation from a North Carolina case which the majority repeats and on which it relies. The original plat in the instant case clearly declared that each of the four lots would contain 4.4518 acres. It was not a mere map depicting lots "which had no declaration that restricted the size of lots." Neither had any of the remaining lots already been altered.
In other cases, the Texas Supreme Court has recognized what may be considered "established rights" arising from a general plan of development in subdivision plats. In Evans v. Pollock, the court reviewed a situation where some lots in a subdivision surrounding a lakefront had been sold and were impressed with restrictive covenants, while unsold lakefront lots belonging to the grantors were not. The court held that the lakefront lots as shown by the subdivision plat were subject to a general plan of development, which was created by the common grantor. Based *Page 607 upon this conclusion, the court held that the lots not sold subject to the covenants were nonetheless subject to the implied rights of the other lot owners. Therefore, the court concluded that a grantee could "enforce similar restrictions [the scheme or plan of development] . . . against that part of the tract retained by the grantor or subsequently sold without the restrictions to a purchaser with actual or constructive notice of the restrictions and covenants." Evans v. Pollock, 796 S.W.2d 465, 466 (Tex. 1990).
In Burns v. Wood, a subdivision was established by plat and dedication with restrictive covenants written into deeds that (in pertinent part) restricted the building of apartments on the properties. The court noted that the documents "manifested a general plan for the development," and that each lot was burdened with restrictions for the benefit of other lots. Thus, the court concluded, a "general scheme or plan" was in existence to create a restricted residence district. The court referred to City ofCorsicana v. Zorn, 97 Tex. 317, 78 S.W. 924, 925 (1904), and quoted language from that opinion as follows:
Burns v. Wood, 492 S.W.2d 940, 943 (Tex. 1973).If the owner of land lays out and establishes a town (subdivision) . . . with various plots of spare ground, such as streets, alleys, quays. etc., and sells the lots, with clear reference to that plan, the purchasers of the lots acquire, as appurtenant to their lots, every easement, privilege, and advantage which the plan represents as belonging to them.
Under the rationale of these cases, it appears that the objecting landowner in the present case had at the very least an implied right that could be enforced against the developer when the developer attempted to abandon the original scheme or plan of development — in reliance upon which the lot owner had purchased his property — in favor of a new plan. There is evidence that under the replat of the subdivision there would be a decrease in the value of his property. This was property sold by the developer and purchased by the landowner based upon the representation that the whole of the property was subject to a particular plat as reflected in the official records of the county. The value of the property, as recognized in Pollock, is thus not merely controlled by the restrictive covenants upon some properties or the plats upon those properties, but also by the expectation of the purchasers that other landowners in the subdivision would be likewise restrained. That value is created by the "general plan of development" originating from a common grantor, which was dispositive in Pollock. There is evidence in the present case of a general plan of development created by a common grantor, based upon which the purchaser bought one of four lots in the subdivision.
The landowner also produced evidence that, under the replat, fire safety in the area would be decreased and traffic would be increased. He further demonstrated a concern that the smaller lots might not be able to properly handle the septic systems necessary. The only evidence introduced by the developer was the revised plat itself which he contends shows on its face that no established rights of the landowner will be adversely affected. However, the revised plat shows nothing about whether established rights are, or are not, interfered with.
Under the statute, before it is mandatory for a commissioners court to permit the revision of a subdivision plat, it must be shown that the revision will not interfere with the established rights of any owner. Here, the developer made no attempt to make such a showing and thus failed in his burden of proof. On the other hand, there was considerable evidence that the revision would interfere with the landowner's rights. *Page 608
The question is whether the Commissioners Court had the discretion to decide, or if it was required to reach a single decision — that being to grant the revision. If the evidence is sufficient to support a conclusion that the Commissioners Court's action was discretionary in nature, then the Commissioners Court had the authority to act and they were not required to approve the revised plat. Further, if the information before the Commissioners Court was sufficient to activate its discretion to act, then the trial court could not conclude that the Commissioners Court clearly abused its discretion by denying the request for replat. Based on the evidence, the trial court had no right to substitute its judgment and discretion for that of the Commissioners Court. CommissionersCourt of Titus County v. Agan, 940 S.W.2d 77, 80 (Tex. 1997).
I also disagree with the construction of "established rights" given in the concurring opinion. The bill analysis for the statute in issue, obtained from the Legislative Library, provides the following:
Background Information:
This bill . . . requires the Commissioners Court to approve the revision if there is no infringement on property owners' rights or if any infringement is acceptable to the property owners.
. . . .
Section 3. Requires the Commissioners Court to issue an order permitting the revision if the proposed revision does not interfere with the property owners' rights or if the owners agree to any interference.
BILL ANALYSIS, Tex. H.B. 1157, 68th Leg. (1983).
Since this analysis refers to only rights and not to "established" rights, it is reasonable to conclude that the legislature intended a more general protection of rights than the restricted construction given by the majority and in the concurring opinions. If the legislature had intended to so restrict its protection, it could have easily done so.
For these reasons, I respectfully dissent.