Right-of-Entry Issues when Surveying Property
One of the most important items that the client must provide before a surveyor can get started on a survey is the “Right-of-Entry” to the property. If surveyors cannot enter onto the subject land, then they cannot perform the survey.
Boundary surveys complicate the need for permission to enter because surveyors need to gain access to the adjoining lands to find and measure the adjoining land’s property corners. Limited surveying of adjoining properties ensures that there are no overlaps, gaps, or other issues with the common boundary lines.
In Texas, surveyors do not have a right-of-entry statute like some other states. Therefore, surveyors must gain permission in other ways. One of the easiest ways is for the client to notify their neighbors and ask permission for the surveyors to enter onto the neighbors land. The surveyors can also try to contact the neighboring land owners when they arrive on site. Another way is for the surveyor to send out “right-of-entry letters”. This letter informs the land owner the need for a survey and asks for permission for the surveyors to have access to the land. The letters also have a space for any special requests that the surveyors must adhere to when on the owners land.
Notifying the land owners prior to arriving on site helps in two ways: safety and timing. First and foremost is the safety issue for the field crew. Many land owners are protective of their lands and rightfully so. We would not want to alarm the property owner and cause them to pull a firearm on the field crew or worse fire upon the field crew. Another safety concern is the actual access to the land. It is much safer for the field crew to walk through a gate opened by the land owner, as opposed to jumping over the fence. I know of one instance when the land owner turned on an electrified fence when the survey crew member was halfway over. It did not end favorably for both the land owner or the crew member. Dogs and other protective animals are also a concern. If a property owner knows the survey crew is coming, they can contain the animal(s). Second is the timing issue. When the surveyor waits until the field crew is on site to notify the land owner, the surveyor must assume the land owner is there to give the permission. If the land owner is not on the property and the surveyor deems it necessary to go on the owner’s land, then the safety issues stated above arise.
In all instances, the coordination of the right-of-entry takes time. When the surveyor sends out the right-of-entry letters, they must spend time researching the names and addresses of each of the adjoining land owners and individually addressing and mailing the letters. Once the letters are sent, the surveyor must spend time to keep a log of which letters have returned, the status of the authorization (access granted, access denied, or conditional access), and which letters must be followed up on.
During the course of the project, the surveyor and survey crew must be keenly aware of the status of the authorization of each of the tracts of land. The surveyor must keep track of whose land they can or cannot enter upon, the gate access codes or keys, and any special conditions they must adhere to. Some of the possible conditions are keeping gates closed and locked, no smoking and leaving the property in the same condition they found it.
If a land owner does not grant right-of-entry, the surveyor has few options. One option is to seek a court order authorizing the surveyor to cross the land. The surveyor may apply for an order under Section 1071.358 or Section 1071.3585 of the Professional Land Surveying Practices Act from the District Court in the county in which the land is located. The court shall grant the order on proof that the person is a registered professional land surveyor and that the issuance of a court order authorizing the person to cross the land is in the public’s best interest.
Another option is if there has been a condemnation suit filed for the land in question. In Texas, Surveyors have right to enter property for preliminary surveys when condemnation suits are filed. The condemnation suits are a result of eminent domain, which is the right of the sovereigns (or governments) over citizens to take property for public use in exchange for just compensation. Eminent domain is derived from the 5th Amendment to the Constitution of the United States. The right to enter upon the condemned land has been upheld by court decisions but is not found in civil statues. Some key court cases are as follows:
Lewis v. Texas Power & Light Co., (276 SW2d 950)
Puryear v. The Red River Authority of Texas (383 SW2d 818)
Hicks v. Texas Municipal Power Agency (548 SW2d 949)
Hailey v. Texas - New Mexico Power Co. (757 SW2d 833)
Coastal Marine Services of Texas, Inc v. City of Port Neches (11 SW2d 509)
Caution is taken by the surveyor when doing these types of surveys. Surveyors are liable for damages performed before the compensation is paid. Surveyors have been fined for damages because they cut trees for traverse lines, to create the ability to sight various points for the survey, when other methods of surveying can be made.
In conclusion, right-of-entry to the land to be surveyed may seem like a simple issue but without it the survey cannot be performed.
By: Miguel A. Escobar, L.S.L.S., R.P.L.S.
Introduction to Zoning in the City of Austin
One of the first steps in the entitlement process within the City of Austin consists of zoning. Zoning imposes requirements, limitations, and restrictions for a property and defines “ranges” in uses. Residential, commercial, and industrial base districts are arranged in a hierarchy that begin with the Lake Austin (LA) base district as the most restrictive and ends with the Limited Industrial (LI) base district as the least restrictive district.
The purpose for zoning is compatibility in the most simplistic definition. A buyer or developer wants to know what is planned around them if they are investing in a property. This extends the spectrum whether one purchases a home or a commercial property. It’s more of “insurance” to know whether a home will be abutting a supermarket (commercial use), a school, a greenbelt, or another home in the future.
Zoning defines what can be situated on the property. There are allowable uses that can be placed on a zoning district that are more restrictive. I referred to these as “ranges” in uses. More often than not the allowable uses in less restrictive zoning districts are usually grandfathered structures/uses. Thus, allowable uses must be taken into account when determining restrictions based on zoning. An example would be a residential home located on a commercially zoned property. If the surrounding properties are all commercially zoned, the residential home would be considered as the more restrictive single family (SF) zoning.
The City of Austin’s zoning (chapter 25-2 in the Land Development Code) does account for such cases, so the code must be delved into in order to determine the impacts on the property one is developing or rezoning based on the surrounding zoning and land uses. Thus, when you are buying or developing a property it is necessary to investigate not only the zoning and range of uses of your property, but also the surrounding properties.
by Rubén López, Jr., P.E.
Development using Commercial Design Standards, Part 1
Commercial Design Standards have been a part of the City of Austin Design process for several years. Cunningham-Allen embraces the concept of the standards and think there are many ways of complying with the intent of the ordinance while continuing to achieve our clients’ goals by producing a project of excellent quality. This is the first part of several upcoming articles about the Design Standards.
How do you determine how the Commercial Design Standards (CDS) will impact your project?
If your property is located within the Austin City Limits, you will probably be affected by the Commercial Design Standards unless your property falls under some of the exemptions which include:
development in a Traditional Neighborhood district,
development built prior to the overlay provisions of the university neighborhood overlay district, or
development built prior to an adopted transit station area plan.
The first thing a property owner should do when designing the project site plan is to determine exactly how many of the CDS apply to the particular project by asking some of the following questions:
What land use is being proposed?
If the project is single family residential, it is exempt from this ordinance. Any other use: commercial, office, multifamily, or industrial will all require compliance with all or varying parts of the standards.
What type or types of “roadway or roadways” as defined by the standards, provide access to the project and what happens if the project is fronted by more than one roadway?
The impact of each of the varying roadway types on which your property has frontage determines the relationship of buildings to streets and walkways; whether you will have to “pull” your building up to the property line with room for sidewalks and tree/furniture zones, or whether you can have parking located between the street and the building. If your site has frontage on more than one type of roadway, the highest level of roadway is the roadway that determines your building and parking placement.
There is a hierarchy of street types listed in the Design Standards. The most important to least important in the city’s design strategy is as follows: Core Transit Corridor, Internal Circulation Route, Urban Roadway, Suburban Roadway and Highway or Hill Country Roadway. There are several maps at the beginning of the Commercial Design Standards section that depict Core Transit Corridors, Future Core Transit Corridors, Urban Roadways and Suburban Roadways of the city.
Core Transit Corridor: If your project fronts on a Core Transit Corridor, it means the property is located on a street that the city has determined to be a roadway with enough population to encourage transit use and therefore, the relationship of buildings to the streets and walkways is of great importance. City of Austin - Core Transit Corridors
Internal Circulation Routes: Any public or private street in a development.
Urban Roadway: Any street that is not a Core Transit Corridor that is located in the center of the Austin City Limits as shown on Figure 1 of the Design Standards (See Image).
Suburban Roadway: Any street that is not a Core Transit Corridor that is located outside the boundary of the Urban Roadway area.
Highways: Includes all the freeways, expressways, parkways and frontage roads listed in the Austin Metropolitan Roadway Plan, except for Core Transit Corridors.
Hill Country Roadways: If your project fronts on a Hill Country Roadway as defined by the list of Hill Country Roadways within the Design Standards, the first 1000 feet of your project will have to comply with Hill Country Roadway standards of the Land Development Code in conjunction with the Commercial Design Standards.
For example, if your site is located on Lamar Boulevard, your site faces a Core Transit Corridor. Building placement on a Core Transit Corridor requires the creation of a 15 foot wide sidewalk and tree/furniture zone between the street and building, to provide an environment that is supportive of pedestrians.
If your site is located on a suburban roadway, public sidewalks are required but you have choices as to whether to place your building adjacent to the sidewalk and street or to have parking between the sidewalk and building. If you choose to “pull” your building up to the sidewalk and locate the parking behind and beside the building, you will be exempt from connectivity requirements. Connectivity is described as the internal circulation system for a large site.
At this point, the size of the site (number of acres) will help make the location decisions of the building and parking with reference to the roadway frontage. If your site is five acres in size or larger, you may choose to design the site with buildings fronting on internal circulation routes created by dividing the site into blocks no longer than 660 feet by 330 feet. On sites larger than 15 acres, the site may have one block with a maximum dimension of 660 feet by 660 feet for each 30 acres. Corporate Campuses are exempt from the maximum block length requirement.
The following sketches illustrate some of the possibilities of building placement along some of the different types of roadways and along the internal circulation route of a larger site.
Remember, the goal of the Commercial Design Standards is to provide guidelines enhancing each project and helping create a community with multiple land uses, utilizing pedestrian access to provide enjoyable living environments.
Next time we will discuss more specifics about building placement and building design requirements.
Making a Middle School into a High School
In 2007, Dripping Springs Independent School District’s (DSISD) Bond included a recommendation to convert the existing High School to a new Middle School and to expand and convert the existing Middle School to become the new High School. This was based on a two-year long study conducted by the DSISD’s Long Range Facilities Planning Team consisting of 74 community members representing every part of the school district attendance area, including parents, grandparents, business owners, teachers, principals, district administrators and support staff, board members, retired community members, and consultants.
Cunningham-Allen, Inc. was honored to be selected to work on both conversion projects and provide Surveying and Civil Engineering services.
There was one stipulation: Both projects had to be completed without ANY interruption of classes or other school services
The construction operations had to be carefully scheduled and coordinated with the school schedule and design required the facilities and services (water, wastewater, drainage, and parking) to be phased to achieve a conversion without service interruption.
As you would expect, both projects presented several challenges. However the civil engineering challenges we faced converting the existing Middle School to the new High School were truly unique, especially the design of the wastewater service.
The existing Middle School was designed for 1,200 students and occupied a 40 acre site including an on-site wastewater treatment plant (WWTP). The new High School was to house 1,800 students, with a future capacity of 2,500 students. The district purchased an additional 60 acres to accommodate the additional facilities associated with a High School campus. Due to the significant increase in population and the planned expansion of the existing building, the existing on-site wastewater treatment plant had to be abandoned, completely redesigned at a different location and permitted to meet current State of Texas code.
As the design of the new on-site WWTP was underway, the team learned there was a possibility the City of Dripping Springs could provide wastewater service to the school. This option was attractive to DSISD since it was more economical and would eliminate substantial maintenance and operation costs associated with an on-site wastewater treatment plant. In order to connect the school’s wastewater lines to the City’s system, a different wastewater collection system would have to be designed and constructed.
DSISD and the City of Dripping Springs started the necessary negotiations immediately, but it became clear the time needed to reach a final agreement might take longer than the planned opening date of the new High School.
A reverse schedule was prepared, starting from the opening date and listing the major design, permitting and construction milestones and “drop dead” decision dates that would have to occur for either of the wastewater options to be in place by opening day. Based on that reverse schedule, DSISD decided to proceed with the design and construction of both options until the final agreement between the District and the City had been reached.
By the time the agreement between the City and the District was reached to use the City’s wastewater system, the on-site wastewater treatment plant had been completely designed and permitted, and the majority of the on-site wastewater infrastructure had been constructed. Luckily, no construction on the on-site wastewater treatment plant had started.
The coordination of the design, construction, and school schedule was very challenging with a looming, unchangeable opening date. In the end, having a team that was willing to work together toward one goal paid off. The entire project was constructed on schedule, on budget, and without one day of missed school – much to the dismay of the students!