Editorials.html

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Ethics and the big picture:
The Brooks ACT and Section 2254 of the Texas Government Code.
Recently I was contacted by a gentlemen from Nebraska about a project for NOAA (National Oceanic and Atmospheric Agency). His elaboration of the project was related to damages along the coast and their Engineering company had been selected by NOAA to perform designs for reconstruction of some critical structures destroyed by hurricane IKE. After discussing the scope and our firm's ability to perform the surveying services they had planned to subcontract to me I was asked to submit a Bid for the scope which we had outlined together. I asked if I was the first Surveyor he had contacted regarding this project. "No", he said "just the first one to respond." This is the point at which you must ask yourself if you have any scruples about what is taking place here. In case you are one of those surveyor's that isn't aware of the Brooks ACT or Texas State Government Code Section 2254, you might just whip out that BID and send it to him and compete for a Federal Contract which probably has State money paying for a portion of the project and thereby breaking a Federal Law and a Texas Law.
Perhaps I'm not hungry enough or my parents raised me different from a few of our fellow surveyor's out there, but I like to think that having ethics, scruples or a professional attitude is something that separates man from the beasts of the earth. At this point I went into my speech about the Brooks ACT and the Section 2254 Texas Code and that his request for bid was a violation of the Brooks ACT and said Section 2254 and that the proper process is what is called "qualification based selection". At the time the Engineer was in a hurry to get this done before the end of March and agreed the scope of work would take several weeks to complete. He also admitted his ignorance of the related laws. We exchanged emails and I attached internet links for each of the laws for his use. That way he could find it very easily using the links I had forwarded.

So here's your self test. You should know if you passed or failed by your own answers.

By the way, this took place on February 2, 2010 and as of this writing I have heard nothing from the Engineer in question.

by Bud Thompson, editor & web master (02-15-2010)
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ One more time...........this is an update to the article above.

I had a very interesting discussion today with a local surveyor who was in complete opposition to the "qualifications based selection" process. I must admit, after re-reading my article above, that it may have offended a few surveyors in our area. So be it. My intention was not to attack any specific surveyor for their practice, more to draw attention to the passive breaking of Federal and State Laws. Breaking the law, in my opinion, is illegal at least and unethical at best. Ignorance of the law is no excuse. Be assured, these are not the only unethical practices going on in the Surveying profession. The Professional Surveyor I talked to this morning, even if I disagreed with him, was professional. Our conversation brought up another point we should be making regarding the way some government contracts are being awarded. That Canon of Ethics No. 15 which states "15. Will not offer to pay, either directly or indirectly, any commission, political contribution, gift, or other consideration in order to secure work, exclusive of securing salaried positions through an employment agency." That's from the TSPS Constitution and Bylaws. More to come on this one.

Now the update

I got an email today(02-25-2010) from the Engineer, as follows.

"Bud:

Thanks for your interest in our project and follow-up phone call.
We decided to use a survey firm in Galveston with reference from another team member firm.

Best Regards,

Jim"

I think this speaks for itself. I am hopeful that the Surveyor was selected properly and that the "Public" is protected.
"Sometimes paying the price for education is higher than others are willing to pay, but it is not of a lesser value."
by Bud Thompson, editor & web master (02-25-2010)

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Here we go again...........this is an update to the article below.

Subject: Water Meter Easements...again
Recently I was contacted via email by the construction contractor related to the fact that the COH was still not accepting the WME prepared for a local school site. Yep, you guessed it, the very same one as discussed below. To "cut to the chase" he emailed me that the COH Taps and Meters had turned him down again (this is the third time). He was, needless to say, frustrated and was asking me to "fix it". It's amazing how much money you're expected to lose on a lump sum job when the COH is involved. My personal opinion is, due to the economic downturn, the COH employees have an abundance of time on their hands and have the opportunity to scrutinize every single detail and analyze some details outside their expertise, like the law of easements.
Let's go back to the Black's Law Dictionary's definition of an easement: An easement is "A right of use over the property of another". The person who had declined approval was confused by some policy he had interpreted saying that "every water meter has to have a job number attached to it." That's simple enough that the city has a job number attached to every water meter. The problem came when that very same person extrapolated that to mean, every job number (water meter) has to have it's own WME "drawing and metes and bounds description". The facts are that this particular site, as many do these days, has two meters. One for potable water and one for fire protection. Both have backflow preventers to keep from contaminating the city water supply. One fact that escaped the COH Taps and Meters inspector was that one easement of sufficient size can accommodate multiple water meters. On the day the problem was solved, I ended up talking to five different people at the COH. Fortunately for me after the third one I had my explanation and arguments well rehearsed and I was fortunate to get someone who actually was flexible enough to understand the logic of multiple devices in the same easement and he conferenced in people until we had the particular inspector. Even after all this was explained he could not agree but so long as someone else would take the blame and tell him to copy the drawing and metes and bounds into each job number file for each water meter he would let it go. I have elaborated only the condensed version of this escapade. This was a four hour exercise on a job that had been completed, billed and paid for by the client in May of 2009. Think about the Principle of your Surveying or Engineering company spending four hours (this makes twice at four hours) to explain something that was correct the very first time it was addressed. That is what it costs to do business with the City of Houston. I applaud those brave souls that compete for work with municipalities and governmental agencies. You must have the patience of Jobe.
by Bud Thompson, editor & web master (02-15-2010)

Subject: Water Meter Easements
This may not make sense to everyone but here goes. It is not uncommon to file a subdivision plat and then the property gets developed and in the final days before the project finishes construction the Engineer or the Construction Company will require a water meter easement. In short very simple terms the water meter easement is that place on the private property where the municipality's infrastructure meets the private property's infrastructure. Therein is the Water Meter and valves to deliver water to the site. In some cases this may also involve a water vault to deal with potable water and water for fire fighting. An easement is "A right of use over the property of another" according to my Black's Law Dictionary. A place where the city has the right to get on private property to maintain their infrastructure.

Recently (December 11, 2009) I attended the TBPLS meeting in Austin. I recommend all surveyors attend at least one per year. At this particular meeting the complaint reports were heard early on and they were discussed by the Board Members for nearly three hours. The point I took away form this and relative to the Water Meter Easements issue at hand is a discussion that came up about whether or not the survey could be put back on the ground. In simple language, could a competent surveyor take the information from the survey drawing and metes and bounds description and put the survey lines back on the ground with certainty? Isn't that what we look for in a record document? Is there enough information to put the survey back on the ground ? Not if the survey is pretty or hand drawn or CAD drawn or the size of a postage stamp or 24" X 36". The investigator asked that question in determining the primary facts of the complaint.

Now lets get back to the City of Houston Water Meter Easements (WME). If you have prepared such a document lately you probably already know what's coming. If not, brace yourself. You will now be required to note:

1. Basis of bearings must be noted on both the plat and Metes & Bounds (good idea)

4. Combined scale factor must be noted on both the plat and Metes & Bounds (see below)

6. Correct Key Map & GIMS Map (by the way this is the FACET#) information must be noted on title block

7. Record information must be noted for the adjoining Right-of-Way (see below)

Lets take for granted that the Subdivision Plat was done in the City of Houston's Limits or ETJ and has Texas Co-ordinates on each point on the boundary, including the point of commencement used for the WME and that the bearings used on the plat are the same as those used on the WME (it would be self defeating to change). Therefore the Basis of Bearing would be the same, so number 1 & 2 are a no brainers. By the way if you are putting Texas Co-Ordinate values on each point along the boundary why would you not choose to utilize the State Plane Bearings as your basis of bearings? Record deed bearings will be sufficient and be a good witness to the original survey bearings but how hard would they be to reconstruct after construction and all the boundary corners have been bulldozed out of existence?

Getting accurate grid coordinates, for number 3, should be easy since everyone uses GPS now. I would be cautious if you are using TxDOT practices (one grid factor for the whole county) and how you get from surface to grid.

Number 4 has issues. The "combined scale factor" is a number calculated from the scale factor and elevation factor (a number derived from the comparison of the elevation above mean sea level and the radius base (R sub b) of the spheroid (earth) on that precise horizontal position. As you can imagine the R sub b changes as you change horizontal and/or vertical position, therefore the "combined scale factor" also referred to by scholars and "combined grid factor" changes. Therefore I would recommend you also give the precise x, y position on the site where the "combined grid factor" is calculated.

Number 5: The updated title block has changed from the previous by adding the "Chief Surveyor" to it.

Number 6: Use the Key Map and HCAD Facet number (GIMS #). Which came first the HCAD FACET# or GIMS#?

Number 7: Record information must be noted for the adjoining Right-of-way. I'm sorry but when will the city start doing their own research? After all it's their street.

All this being said, could the survey be put back on the ground without all of this? Remember the WME had shown the POC and POB with Texas Co-ordinates, used State Plane bearings, is based on the recorded plat of the subdivision and has a line table for each call with bearing and distance?

After talking to one of the two licensed surveyors in PWE about this, he said
"The standards that you now have to apply to water meter easements are consistent with the COH Design Manual. We are going to achieve consistency for all survey documents filed with the COH. These documents will meet the minimum standards of the Real Estate Branch's requirements (when prepared for Real Estate) and the current COH Design Manual's requirements. Actually, the thrust of all of these requirements are for the GIMS and have been so since 1969. Of course, the minimum requirements have adapted and changed to better affect the information desired by GIMS, but GIMS is the reason for most of the current requirements the City has in place for surveys and plats."

I've learned something important from this, these requirements went into place before there were GPS or COH monuments tied to the Texas Co-ordinate system and I was still a teenager. Wonders never cease. I think the short answer is treat it just like a new subdivision plat and charge you client accordingly remembering that it may need revisions in three or four months when it gets back to you with even more requirements.

Until next time when the ever-present government B.S. (BEAUREAUCRATIC STALL) technique draws our attention.

More on platting coming......new ordinances frequently will add to your "frustration" and "aggravation factors".

Well folks it has become abundantly clear that the slow down in the economy is giving Planners at the County and City way too much time to review plats. Have you had you grammar marked up on a plat yet. Well prepare yourself for it. Since the traffic count for plats has dropped from 150-175 per two week period down to about 40, these diligent employees have more than enough time to review the plats with the utmost care (magnifying glass in hand the proceed to uncover even the slightest imperfections. Notes we have used for years without comment are now suddenly a violation of good grammar and will require changes to the plat, prior to recording. Redundancy will not be tolerated, even if a direct quote of their note. It appears that the County HCPID has finally got into the act now and they don't like the City of Houston Note: (This I got directly from the City of Houston Web site years ago before they stopped being helpful. You may be able to get it these days if you can navigate the site to find it.)

"FURTHER, Owners do hereby covenant and agree that all of the property within the boundaries of this plat and adjacent to any drainage easement, ditch, gully, creek or natural drainage way is hereby restricted to keep such drainage ways and easements clear of fences, buildings, planting and other obstructions to the operations and maintenance of the drainage facility and that such abutting property shall not be permitted to drain directly into this easement except by means of an approved drainage structure."

The redline markup I received today requires "is hereby" to be changed to "shall hereby be". C'mon, when will common sense kick in? We now have planners playing lawyer? It's bad enough when they critique drafting or even worse, they want to practice surveying without a license but now they become the grammar police !

Let's take another tack on the course to total domination by government employees. Have you noticed the tangent of requiring the recording information of streets and county roads and even Interstates. The one I got today wants the recording information for Stuebner-Airline Drive, which is a half mile from my plat and not an adjoiner. One more item on this one, I checked fourteen other plats along Stuebner-Airline from FM 2920 to Louetta. Guess what. None of them, not even one had the recording information on them for Stuebner-Airline and they were direct adjoiners.

Why is it, that the City of Houston Planning & Development Department and Harris County PID can NOT get on the same page? Kind of reminds me of the FBI and the CIA. They don't play well with others and are territorial. The "FURTHER..." note above is a perfect example. Since I learned growing up to always offer a solution and not just complain about the situation, no matter how good it feels to vent, I pose a solution. FIRE a few of these planners to even the work load out so they don't have all that time on their hands OR require them to attend continuing education courses that would teach them some simple cures for these ills that drive us crazy. Some consistency between the City and County would be welcome but some fairness and common sense would be awesome.
How about courses like:
What is a prescriptive rights road?, The pitfalls of practicing Surveying or Law without a license., Standardized plat notes, City and County. A Plat is still a boundary survey and what constitutes the minimum standard of practice according to TBPLS. I'm sure we could all come up with a few.

Until next time when the ever-present government B.S. (BEAUREAUCRATIC STALL) technique draws our attention.

by Bud Thompson, editor & web master

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More B.S. (BEAUREAUCRATIC STALL) from the City of Houston Planning & Development.

Ok gang, here is the latest mind numbing from the City of Houston and their ever amazing lack of foresight and common sense.

As a part of the Plat submittal process, sometimes we must apply for a variance and perform the "Public Notice" steps. For this the City of Houston has a guide which you may download. This is a twelve page PDF document. On page 3 under photos you are required to furnish "Photos submitted electronically of each sign taken from the adjacent right-of-way (as a citizen would see the sign from a parked vehicle in front of the property) must be attached to DRC application or emailed no later than the date of the sign posting deadline. Signs depicted in the photograph should be legible and location of the sign on the property should be apparent." The sign posting deadline is detailed in Section 42-83 (b) below;

(a) The director shall give the notice required by subsections 42-81(g) and 42-82(f) of this Code by:

a. Mailing a letter, first class mail, postage paid, to the owners of all lots or tracts that are within 250 feet of the boundary of the general plan, subdivision plat or development plat, as shown on the most recently approved ad valorem tax rolls of the city not less than the seventh day before the first meeting at which the commission will first consider the application; or

b. By causing the information to be readily available to the public in an electronic format* and

(2) By letter mailed first class mail, postage paid, or by electronic mail message to each neighborhood association registered with defined boundaries with the department in whose area the general plan or plat is located as soon as reasonably possible before the first meeting at which the commission will consider the application.

(b) The applicant shall give the notice required by subsections 42-81(g) and 42-82(f) of this Code by posting at least one sign on the property that is the subject of the general plan or plat before the tenth day before the date of the meeting at which the commission will first consider the application. A sign shall face each public right-of-way bordering the site, provided, however, that if more than four signs would be required to be posted, the applicant may request the director to approve an alternative number and location of signs. The director shall approve an alternative to the number and location of signs required by this subsection in excess of four upon determining that the alternative will provide maximum visibility and obtain the objectives of this section without unduly burdening the applicant. Each sign shall be a minimum of four by eight feet in size and shall be posted no more than 15 feet from the public right-of-way. The lettering on the sign shall be legible from the public right-of-way. The applicant shall use reasonable efforts to maintain each required sign on the site until the close of the meeting at which the commission acts on the application. The sign shall provide the following information:

(1) The application number of the plat and the fact that a variance or special exception is being requested;

(2) The date, time, and place of the meeting at which the commission will first consider the application;

(3) A telephone number of the applicant to call for additional information; and

(4) A department telephone number to call for additional information.

Hang in there, it get's better. It's important that you realize that 10 days before the meeting of the commission is the deadline date for Plat Submittal.

One of the largest pieces of text on the sign (pictured above from the guide) is the "PROPOSED SUBDIVISION NAME (Ref.#)". No problem, you say. When do you get the Ref.# ? It's not a trick question. As Alex Trebek would say, "The answer is..." at the time of plat submittal. Ok, so this begs the question, how do I put the reference number on the sign, take a picture of it and submit as a part of the plat application submittal, before I get the reference number, if the reference number is only supplied at the time of plat application submittal? Leave it to the City of Houston to make an ordinance that can not be followed. At the very best, the sign can be constructed and erected on the Friday before plat submittal, submit the plat immediately WITHOUT the photos and then email the photos to a planner or the PCAGENDA and hope and pray that it gets attached to the correct plat application? After all if the sign is not "maintained" your plat will be deferred. Which means you stand a chance of losing your application fees and will have to go through this again.

I recently attended a City of Houston Planning Commission meeting and met some old friends who share some of the same problems with regards to the City Planning and Development Department we all do, it seems. Other Surveyors in attendance at the meeting three that will remain nameless since I didn't clear it with them first. I have talked with other surveyors over the past year or two about platting problems and they too feel the system has become a challenge, at the very least. First I must qualify these statements and concerns. Like is says at the top of the page, "editorials are not necessarily the view of all the members". In fact, I can think of at least one person in the chapter that would never agree with me on anything, so I'll let the chips fall where they may. I know the smaller surveying firms, you know the companies that don't have at least two or three people dedicated full-time to platting, can identify with most of the following. I notice that more and more surveyors are deciding NOT to perform platting due to the overwhelming complexity and difficulty in dealing with the planning and development department. First a few questions to get you thinking.

Have you ever submitted a plat and the first comments come back with, what I would call, drafting comments? (change this line type, this font, this format) I guess since there is a lack of standards it's up to the individual reviewer to make these comments. I had no idea there was a drafting police. You would think they had plenty of things to concentrate on other than drafting opinions. Perhaps I missed that in Chapter 42.

Have you submitted a Preliminary, got required changes on a markup and submitted a final and received comments that require you to change back the original submittal? Huh? Different reviewer? Change of mind? Making busy work for surveyors?

Have you received an email or phone call right after your normal business hours that require changes in your submittal due by 8 a.m. the next day "or your plat will be deferred"? (sounds like a veiled threat, doesn't it?) Usually this will be something related to title commitment/city planning letter maybe even a drafting change or simple typo. We all know when most Title companies open and it's not 7 a.m.

Have you noticed the Planning Dept. has been force feeding us new ordinances on a regular basis over the past two years?

Have you noticed on your CPC-101 that even after you have submitted the plat for final approval, and made the required revisions, the CPC-101 still has the same comments?

"049.2 Subdivision plat must include State Plane Coordinates in NAD83; and NAVD 1988 with 2001 adjustment."
found after all boundary corners have been labeled with SPC.

"063. All appropriate engineering and surveying data shall be shown. (42 & 44)"
Cryptic at best. Perhaps they have to put SOMETHING on the CPC-101 (makes you wonder if an attorney is writing it since they like to use the phrase "all".

"064. Provide all dedication acknowledgements and certificates on the face of the plat.(42 & 44)"
This on a FINAL. Do you really think we got this far without that on the plat?

"204. Provide current title opinion in complete agreement with the plat dedication and addressed to the Planning & Development Department. (45)" This is required at every single step in the process. I wonder if they think it's really going to change during the platting process?

This is a very poor practice to put this on the CPC-101 if it has been dealt with on the final submittal and approved. To me, being the simple person that I am, it makes me wonder if I missed something so I pour over the plat in detail to find nothing wrong and call the reviewer and ask about it, only to find it's that person's standard policy to put it on the CPC-101. Woah !! Individuality in a standardized form. Scary, I know.

Have you platted along a county road? Was it a prescriptive rights road? Did you have to educate the reviewer in what a "prescriptive easement" is and I had my best laugh this year after a two page explanation of why there were no record documents of how the County got the road, the reply was simply "please provide deed record for county road". HELLO, anybody listening? It's not a lot better when bordering a city street. They own it but we have to prove it to them. Do you get the feeling we're the source of their GIS program?

There are many concerns about the functionality of the planning and development process, including the apparent lack of seasoned employees. I recently asked a reviewer how long she had been at the city and could not get an answer. It seems surveyors have a bad reputation for not returning calls. Ever tried to contact a planner by phone? It's best to make the pilgrimage to the kingdom of the six floor and wait patiently, as long as it takes, for the "Planner of the Day". I have often wondered if this is a reward or a punishment for the planner?

Do you think City Council is aware of how many plats do not get processed through the system due to mis-management and poorly trained or seasoned personnel?

Imagine this situation, your plat is recommended for approval by the planning department, all your issues have been dealt with and politics at the Planning Commission deals you plat the death blow. They choose not to approve it, against recommendation from planning and legal departments. Ouch.

Most of us have clients that do not understand, nor do they want to, the platting process, but they do expect us to deliver a recorded plat in a reasonable time for a fair price. Most want a lump sum price. If you have a crystal ball or you can borrow your daughter's Ouigi Board or the eight ball with answers, you might be able to predict what they will throw at you during the platting process with the exception of a new ordinance dealing with park space or some other thing. The platting process, for those of us without a full-time dedicated plat team, is fraught with many pitfalls.

Three last questions:
Can you think of anyone, not a governmental employee, that signs a subdivision plat, other than a Registered Professional Land Surveyor?
How many surveyors on the planning commission and what is their focus?
Do you think Wayne Dolchifino could have some fun with the city as he did with the county recently? Way to go Wayne !!

If you agree let me know, if not, c'est dommage.

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No, your computer is fine the web site was just in decay and languishing in apathy. It's been a while since I've been able to spend any time on the web site, but now I'm back on the job. As some of you probably know, I had to take a sabbatical from the pleasures of managing the Chapter 9 web site for a while due to a bout of official duties at the State level. A little history of our web site is in order since it's getting ready to have a face lift and a major overhaul. The Chapter 9 web site was initiated by the chapter ten years ago. At the time Larry Smith commissioned Steven Markham to get it going. At the time both worked for P.B.S. & J. The template was borrowed from Chapter 6 (Beaumont) and their man of many talents Richard Worthey. The Domain (TSPS-9.ORG) was registered under the name of PBS&J and Steven Markham was the original web master. Not too long after, in a moment of weakness, I was volunteered to replace Steven and took over his duties. I maintained the web site until my state duties started taking a majority of my off-duty hours and I asked to be replaced. Bob Terry and then Rob Hertwig managed the web site. Two men with a great deal of work to do on any normal day. Due to their overwhelming work load the web site had taken a back seat to their other duties. There are only so many hours in a day.
During my time as President of TSPS, I received a letter from a Chapter 9 member, who wanted to remain unidentified, complaining about the outdated web site that was not doing the job of keeping members informed. After all, that's the function of a good web site, to inform people. I must admit I used the website for information about some of the vendors listed, officers phone numbers and committee chairmen and other members. I didn't bother to put them in my outlook contacts because at the time when I started working on the website I hadn't even been using the contacts. Anyway, I just knew if I needed that information, I knew it would always be right there under my favorites at tsps-9.org. Wrong, way wrong.
Near the end of my term as President, I addressed the Chapter at a dinner meeting about some state issues and informed those in attendance that I had volunteered to start maintaining the web site again. I could, after all, see the light at the end of the tunnel. I made some updates, thinking this would be fairly easy to fix a few broken links and some page frames and the sort. Wrong, way wrong again. Little did I know that lurking in the unknown of beauracracy were bills that would call the web site to it's demise. Yes the bill collector cometh. The website had been moved to a different web hosting company. For the uninitiated, that a place that you use to put things for web sites instead of on your computer and it ends up on the www. The web hosting bill was mailed to PBS&J, who probably promptly filed it in file thirteen (garbage can). When our rent came due and wasn't paid, we were evicted. The website died and we lost our spot on the web. Since we had the site registered to PBS&J and the site was down anyway. I took on the quest of getting the ownership back in the hands of TSPS, move the website to 4dwebhosting and reloading it. The only version available was from 2005. Getting all of that done took two months. The mission has been accomplished but now be patient and give me a week or three to get it all back updated and working. Like you, the members, I also have a full time job and still a year to serve as Past President.

If you have pertinent information about TSPS events, schedules or data, feel free to email it to me and I'll review it and put it on the appropriate page. Thanks for you patience and I'll be seeing you at the next dinner meeting.