Subdivision sells small park to create revenue to improve large park

by Gene
(Willis, Tx)

Visitor Question: My subdivision owns a small park (1 acre) and a large park (6 acres). We have limited revenue.

My question is what requirements would be necessary for our POA (property owners association) to get permission to divide the small park into lots to be sold to generate additional revenue to further develop the large park.

The small park is vacant and is not being used by our property owners. The large park currently has a community house, boat ramp, beaches, and picnic tables.

How can this happen legally and what is necessary to get the property owners' approval? Hope you have an answer. This would greatly improve our facilities.

Editors Reply: Actually we will have to answer two questions to give you some perspective on what you would like to do.

The first question is to deal with whether your POA was created by, and is subject to, deed restrictions that were set up when your subdivision was built. Ask your neighbors about this, and then to be completely sure, ask your county whether there are any recorded restrictions applicable to your and your neighbors' properties.

If these parks were created through deed restrictions, as often happens, then you might have to deal with changing deed restrictions that might have provided that specific property could only be used as a park.

If you need to change the deed restrictions, the covenants themselves usually will tell you how that can be accomplished. Read the actual language of the deed restriction, if there is one, and also of any language in the covenants that tell you how restrictions can be changed.

You might have to go back to the original developer, or his or her heirs, to get written permission to change the restrictions. Sometimes this becomes quite difficult if you cannot locate all heirs or if one of them disagrees. Or it might be as simple as a phone call and then giving the developer or original property owner a document to sign.

So that is the first question we have to answer.

Another possibility is that one or both of these parks constituted a required open space dedication at the time the subdivision was approved by your city. Check with your city hall to see if this applies in your case. Ignoring this possibility could mean that eventually your city would deny a building permit to someone who wished to build on a lot you already sold to them. You wouldn't want to be in that mess.

Now we move on to the second question. Assuming that you do not have a problem with deed restrictions or with city-required dedication of park land to the city or the POA, you now need to learn about dividing your one-acre park into lots for sale.

This becomes another question for your city hall. Each city will have a procedure for subdividing a larger parcel of land into lots for sale. Usually this is governed by a subdivision regulation, although now it could be called a land use regulation, land development code, or any number of variations.

A subdivision process typically requires less than a rezoning in terms of public notice, public hearings, and the like. Depending on how your courts locally react based on Texas law, the subdivision process usually is less discretionary than rezoning. In other words, if you check off all of the boxes on the requirements, the subdivision will be approved.

Sometimes subdivision is approved by administrative staff. In other places, a planning commission and/or city council must be involved. There will be a subdivision application form and filing fee. You will need to have a civil engineer draw up an official document called a plat that basically shows the boundary lines of the lots you are creating, easements for utilities, right-of-way for roads, stormwater arrangements, a technical details such as curve radii (how sharp or gentle a curve at a corner is).

Preparing this plat may be quite easy if the one acre park already is along a street in your subdivision, and no new streets will be involved. But probably some new easements for the utility companies will be needed, and there could be many other complications if the street does not abut the entire length of the park.

When you hire a civil engineer, he or she will know or gather all of the rules for subdivision in your city. All you really will need to know is your general desire for the new lots, and the engineer can take it from there. Of course you will be hiring the engineer, so you can assure that your wishes will be followed.

After the plat is approved, your POA then can sell off the lots, and the proceeds can be used for anything you wish, including improving the larger park.

That is the general outline of what should happen. We hope this information will give you a good start.

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