Travis County Commssioners Court
October 14, 2003
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Item 40
Now, we did indicate this morning that individuals may come down on one of the items posted for executive session. And that is number 40. What I have in mind is taking the open court discussion part of this. 40. Consider claim of bill ludwig, len layne and washing equipment of Texas regarding drainage easement in ludwig 2 subdivision for precinct four office building, and take appropriate action. This is for the open court part of this item. We will take that and when we go to executive session of the other items we will take that in with us.
>> you may recall that we briefed you on this last Tuesday in executive session. Just as a visual aid I have laid out a sketch of this area, this is part of a subdivision, the subdivision where we bought the land for the precinct 4 office building, what -- it indicates where precinct 4 is. As you may recall, the issue here is the drainage easement that runs along the back line of the subdivision, that's cross hatched on what I gave you, as a result of the county participating in the city's regional storm water management program, we ended up putting a 42-inch pipeline in that easement. The claim that the neighboring landowner is asserting is that that basically prevents them from using the easement in the way they had intended to. So we are trying to find a solution basically let's them handle their drainage and the county continue to have our 42-inch pipeline in there. I think if there's one thing to focus on it's lot 1 in that chart. The real issue that lot is owned by a company called washing equipment of Texas or wet. They have a site plan filed with the city of Austin and essentially the issue is there's a bottleneck for the drainage at that lot. Their site plan calls for their storm water ponds to go right up to the boundary of the easement. So the issue is, how can -- how can the other lot owners get their drainage from lots 2 through -- 2 through 4, I guess. Through lot 1, given that they are going to have Travis County's 42-inch pipeline on the other side, and wet's storm water ponds on the other.
>> last week we made an offer that we thought would resolve this matter. Do we need to get an update on that?
>> I think -- go ahead, roger.
>> the offer went to the county attorney to the landowner, as we offered about 15,400 to buy a 15-foot-wide easement for about like -- it's a -- it's a 15-foot wide, 700 -- I mean, 63 feet long of an easement, this way the -- the property owner, adjacent property owners can have additional drainage easements so they can work their drainage issues. And that's what the county would like to participate in that as a goodwill effort. And --
>> offer to acquire the necessary additional drainage.
>> that's right.
>> to give them the same damage capacity they would have had, had we not put our pipe in?
>> that's correct.
>> that sounds like such a good idea. Would it work?
>> [inaudible - no mic] representing the developers of this subdivision. And although the offer is certainly appreciated, judge, the problem is it doesn't make our clients or the owners of lot 1 whole. Under the circumstances, what happened here is that without any of these landowners' knowledge, the county came in and basically appropriated this easement to its own use and prevents us for being able to use it for the purposes for which it was intended namely a ditch to carry the surface water from lots 1 through 4. Although it does touch the side of the property that the county purchased, I think if you look at the history here, it will be clear that it was never intended by the developers of this subdivision that this easement should be used entirely by the county and they would not have the benefit of it. As a matter of fact lots were sold, specifically lots one and 2, with the expectation that the buyers of those lots could use it for drainage ditch. Since we can't do that, now we are in a situation where we have to have some kind of a relief that makes everybody whole. My clients are in the unique position here of being a target of the lawsuit by one of its own buyers because it sold a lot and those folks in full reliance upon the subdivision plat developed their plans and submitted them to the city in such a way that relies upon the use of that 25-foot drainage easement and a ditch in that easement. What we are faced with here, if we have to extend that easement an additional 15 feet, is an enormous retrofit on behalf of the owners of lot 1. It's estimated that will cost 60 to $70,000. Even if the county were to contribute $15,000 to the purchase of the land, it's not going to solve wet's program that's not going to solve our problem. That's the dilemma that we are in right now. What we did in response to negotiations with mr. Nuckols and he's been a gentleman throughout this, but we have a situation where we just have a different point of view. It's our position in order to make this situation livable for everybody, the simplest and cheapest solution is just to put a parallel pipe n. The county has the expertise, was we know, you put a 42-inch pipe in this easement very quickly. It's our expense that you could do it more cheaply than we could. The paralegal pipe would be -- prar legal pipe would be cheaper than what we had done. It was going to cost them about 10 or $15,000 to dig that ditch. We would contribute did to the solution here. We are faced with a problem that is not at all of our own making. The damages that we are going to be faced with if the county doesn't step up and do what we feel is the appropriate and cheapest solution. In the handout that we prepared, interventionnally made non-confrontational, trying to present the facts, the first aerial paragraph depict the scene. The second map is a -- is a demonstration of what was done more or less at the county's request. When the county -- you may recall when the county bought this for precinct 4 office building, they wanted no part of the ludwig 2 subdivisions, they asked that easements be vacated and that they not be included in the replatting here. That's what happened here. The only reference on this plat at all in the creation of this easement is found in note 28, which can be seen in small print where it says the property owner shall provide access to drainage easements as may be necessary and shall not prohibit access by governmental authorities. There's not an express grant anywhere that anyone can find that anyone is aware of where the lot owners gained permission for the county to use up this easement in its entirety. We are in a position where we can't use the easement for the purposes for which it was intended. The next handout is when the clients discovered this, they contacted leslie strickland and got some answers to questions. We have highlighted some portions of this memo she gave in response, it was very clear that it was the county's intention to use the pipe only by itself, not large nuch for the landowners to use themselves and that no one on the county's part notified the landowners of the situation. Had this problem been brought to our attention before any construction was done, we could have explained what needed to be done and perhaps we could have worked out a solution then, but it's way too late for that right now. In response to mr. Nuk culs' request for a written proposal, the clients put together a letter dated September 15th, 2003, which is towards the end of the package and it describes the problem, it expresses why we have a need to go with the cheapest and what we feel is the most economical and practical route, and that this will solve everybody's problems. We have expenses right now that we are willing to absorb, attorneys' fees, engineers' fees and incidental expenses, lay costs and things like that, not only my clients but the other landowners are willing to absorb themselves if we can just get a solution to this problem which is a simple parallel pipe running down that easement.
>> how much will that cost.
>> it's our understanding from your experts that would cost somewhere in the neighborhood of 60,000 or less.
>> okay.
>> it is the clients' understanding in order to dig the ditch that they were going to have to dig anyway was going to cost them around 10 to 15 thowpdz, upwards of 15,000 on my clients end and other land owners which we would work out ourselves how to divide that could be contributed towards this project. But we believe that the economies of scale and the county performing the work itself is the most economical way to do it. And there are of course approval that's have to be obtained from the city of Austin, this would all be con continuing getting on that. The county has evidenced its good skills in getting these things through the city of Austin process, we feel like with your assistance in spearheading this program that it could easily be done. Whereas we would probably encounter significant problems ourselves.
>> could you --
>> I apologize.
>> if our project had never taken place --
>> yes, sir.
>> -- you all would have spent 10 to $15,000 on drainage work.
>> that's correct. Digging a ditch, yes, sir. That's for the drainage portion. Wet itself of course each lot owner has to do its own retention, we are not including that in this at all. We are still expecting to have to incur those costs ourselves. We have intentionally left all of that out of this equation because those would have been borne by us anyway.
>> if we were to determine that our pipe is in fact large enough for everybody, and would you all agree to pay us, say, $15,000 to use it? Sisters.
>> I don't see that that would be a problem at all if you can convince the city of Austin that's the case and all approvals and all of that were to be obtained I don't see that's a problem at all. The main problem that we have is that the understanding is from the county itself is that pipe is not sufficient to enable our use and we have not been allowed access to it.
>> I understand now that it's sufficient today, but it may not be sufficient 10, 15, 20 years down the road. But that is one option that you find acceptable.
>> assuming that the -- that it can pass the city -- yes, sir.
>> the second one is helping you install a smaller pipe, your contribution would be 15,000 and it could cost 60,000, the county would be expected to kick in 45,000?
>> yes, sir. Actually, what we are requesting is that the county actually contract and do this work as it did its own pipe because we think that that is the best and most efficient way to get the job done. We would not run into the red tape, perhaps, that -- we would run into the red tape perhaps that the county would not.
>> but the $15,000 that you have set aside for drainage work, you would give to us.
>> correct, yes, sir, that is correct.
>> okay. Is there a third option?
>> there's a possible third option, judge. Is -- [indiscernible] number 1, number 2 -- I'm sorry, lot number 4, 3, 2, [indiscernible] can use existing drainage easement as is for their surface water drainage and at the border of lot number 1, number 1 and 2, we could put the pipe in there. So they can carry the water from lot number 4, 3, and 2 towards the outflow and lot number 1 can tie to that new pipe. This is another cheap of and can solve the problem.
>> no suggestions that you just put on the table, what would that cost?
>> that would cost much -- first of all, if I can run, I need to find out what the size of the pipe would be. Do a little engineering work on that. What the size of the pipe would be. We don't participate at all with the drainage channel, we participate in the -- in the placing the pipe from lot number 2 all the way to the outflow and in which lot number 1 the wet, w.e.t., I believe the name of the business, can tie directly to that pipe and that solves their problem. This is another solution. I'm not suggesting that it is the solution. That's another option that I need to run some cost estimate.
>> that would be the third option --
>> that's correct.
>> how does that sound.
>> judge, we just heard about this for the first time today. We have no objection to anything that works and wouldn't cost more money than originally intended. It is certainly clear that anything that we settle on need to be preapproved by the city and w.e.t. Has to be saved.
>> how did you describe option 3.
>> lots 4 eggs adjacent -- 4 is adjacent to our property, jo. Lot number 4, 3, 2, we have a 25-foot drainage easement. Our pipe is not in the middle of the easement. Our pipe is only about 8 feet to the east of the property -- of the -- east of the easement. Therefore it has about 3-foot, two to 3-foot cover all the way up to lot number 1. Meaning that if they do a slope 9 to 1 on the drainage channel, due a u shaped channel, v channel, whatever the pipe is not on the way. Therefore lot number 4, lot number 3, lot number 2, they can still use that drainage channels, you know, as they wish and then we can pick up the water from there by the pipe, with the head walls and put the pipes from -- [multiple voices] all the way to the outflow. This will shatter 10 the length of the pipe -- that will shorten the length of the pipe required and will solve the most urgent request right now was lot number 1. They have a site plan with the city of Austin that we need to take care of that.
>> any idea about what that would cost, though, option 3?
>> I can run that --
>> that's the 45,000, we think?
>> that's going to be less than that.
>> so if that will work and the and he will approve it, you -- and the city will approve it, you think that --
>> judge, may I ask one thing. I believe the owners, adjacent owners are supposed to go to the city and get it approved. Not the county. It's their property to be trained right there, we are providing a monetary value to solve the problem. Get it through the city, I don't believe the county should go forward and go to the process of approving the -- the drainage -- the additional drainage pipe or drainage conveyance. I believe the owners should do that.
>> okay.
>> I have two questions. A lot of this is just giving us stuff to think about because we obviously have to give some legal advice inside, we don't need to necessarily land on where we need to land. Question: when we talk about the conveyance through this easement, are we talking about the -- as we did -- the ultimate buildout of lot 1, the ultimate buildout of lot 2? Because we may be focusing on what will work well for wet today. But let us say 20 years from now, something else happens. Are you sizing your solution for the ultimate buildout of your property in the same way that we sized the pipe for the ultimate buildout of ours? Even though that's not what we have got on our property today?
>> yes, Commissioner. It's my understanding from our experts that the last page, option b.
>> uh-huh.
>> represents the raw costs that would be necessary to put in a pipe that would be sufficient from now on.
>> forever, got it.
>> yes, that's right.
>> second question is when you mentioned that it was going to be 10 to 15,000 in terms of the work that you already had intended to do, are you talking strictly about the -- about the work within lot 1? Or is that lots 1, 2, 3 and 4?
>> that's all four lots together.
>> thank you, that's a good chair indication, thanks.
>> incidentally, I'm informed by wet's reacht here that they have -- wet's representative here that they have some sort of scenario similar to the third option by the city and they were told that that would not be feasible, that the pipe is too shallow, that it would still require the widening of the easements in lots 4, 2, and 3, and in order to accommodate and back off of the existing pipe. It's my understand knowledge that the city's pipe -- excuse me, the county's pipe is between one and three feet under the surface, it's fairly shallow.
>> I disagree on that. We have a man that can show that the majority of the pipe is about 9 to 3 feet deep. The only thing is that it's shallow on lot number one toward the outflow. On the others, besides even on half of this -- half of the [indiscernible] of lot 1 is about 2 feet, 2 to 3 feet. We showed this to the owner earlier in the meeting with them. I disagree with that.
>> tom, tell me if this is a legal question. I would hold it for you inside. Can you reeducate me about a public drainage easement. Does the city of Austin, for example, sign-off on our plan and did they --
>> yes.
>> think that they were creating issues for lots 1, 2, 3, and 4 because that would seem a little counter productive if -- if somebody didn't take a look at the cumulative effect of the use of a public easement?
>> best -- based on our discussions with the city, everything the county has done is kosher here. The city tells us we haven't done anything wrong, we haven't violated anybody's rights according to their regulations. So again I -- as roger said, we have never approached this from the perspective of we've -- we've violated the law and need to figures it. But we have, you know, said -- need to fix it, but we have said we want to be good neighbors out there, we are going to be dealing with these folks for years to come. We are more than happy, you know, to do what it cames to keep -- stay in everybody's good graces. As you know, you have to deal with your neighbors for a long time.
>> and in terms of the definition of a public drainage easement, it's not that the piece that's attached to lot 1 belongs to lot 1. Is it everybody that's along the length of that public drainage easement has certain kinds of rights so the reality is that even though we are at the very end, we still have -- I don't want to say rights, but we certainly have expectations related to what can happen in that public drainage easement?
>> right. The easement is dedicated to the public. Which means anybody can use it. Now, if this easement is not available to us, then our lot is left without an easement. I don't think that's what anybody intended.
>> but then the reverse is also that if we do something inadvertently that takes away their right to the public easement, I guess that's where we are trying to see land is that delicate balance is everybody is held whole. I guess -- has the city weighed in with their -- do they think that lot 1 has a problem here? Do they think lots 2, 3, and 4 have a problem here?
>> well, I think from the city's perspective, a lot of times it's first come, first served. If you are the first one to develop, you can basically take advantage of the situation. I think the city's perspective is, yeah, lots 2, 3 and 4 are going to have a -- they are going to have to be more engineering to use the drainage easement than they had contemplated, but legally they can still handle their drainage, it's just going to cost them more.
>> thank you.
>> thanks. Commissioner, might we respond to that one issue on the natural flow of the surface water. I'm certainly -- [indiscernible] it's only that the -- obvious that the water that naturally flows from the county's property doesn't even touch the [indiscernible] [inaudible - no mic] it's obvious from our topographiccal surveys, that the water goes to a different watershed or would have but for the fact that it is collected on the property and forced through this pipe down this easement --
>> I thought that we were contributing to a regional solution. What we were doing was in accordance with what the city who deals with the drainage utilities, what they said we are supposed to do. We were contributing to a regional solution. We didn't just like pick this out of a hat, correct, say let's put it there, is that right?
>> that's correct, Commissioner. We paid 23,000 a fee to participate in that program and decide note a different watershed, but a different route that's all.
>> just a different route for the same watershed.
>> I bring this up, Commissioner because of the question of intent. I think the case law makes it clear that you look to the creation, the document that created the easement itself as to the intent. The only document that created the easement that we are talking about is found on the subdivision plat. All it says that -- is that the grantors, the developers of the subdivision shall not prohibit access by any governmental entity. It doesn't in any way indicate an intent to have the county appropriate entirely the use of that. That's what's happened here. Now, as far as the city, I'm not sure exactly how they approved this without thinking about the ramification, but I think it's kind of apples and oranges. We are in a situation where they approve something, it's already in the ground, now we have to live with the consequences. None of them was of our making, none of this was caused by us. We are trying to ameliorate as cheaply as possible the adverse effects of it. It is it's our position however this happened, the simplest solution is to put parallel pipe down there, next to you all's pipe that you know how to put in cheaply, that will solve our problem we think in the most cost effective way. To do that we will be happy to incur the cost.
>> the delta, the delta between what was necessary.
>> you mean that second pipe would give you much better drainage than an open drainage ditch?
>> I guess to the extent that the obstruction, you don't have to mow it things like that, in the long run it might be a little bit of savings bergstrom air force basely we are talking about conveying the same amount of water.
>> will you agree to pay half the cost of the second pipe.
>> that's damage that's we were not anticipating having to cover in the first place.
>> we hadn't anticipated paying an additional $45,000 either. After that it would be us paying 30 for a second pipe, that you have benefited from and if it costs 60,000 bics, you would pay 30, also.
>> well, we haven't -- we haven't been approached with that solution. What I do know is that the client have been more than happy to contribute what it would have cost them anyway. In looking at this it's important to note that we have other damages we are not even considering here. Expert witness fees, attorneys' guys, delay damages wet alone has not even bothered to calculate yet, but may have to at some point how much it's costing them every day this thing goes on. My clients are not able to sell their lots. They are sitting there fallow because we have a problem that doesn't have a solution yet. There are damages on top of just the simple digging of the ditch that we are talking about waiving under our scenario.
>> seems to me it would make sense for us to try to get a remedy in place to go ahead and implement it.
>> that's correct.
>> if we were to take half of itronix would be $30,000 that we didn't anticipate either. Allow us to get a remedy in place, cut whatever consequential damages that we are dealing with, we do that. Moving to the city, we have no idea that the adverse consequences may result to neighbors.
>> that's correct. We run through the city process for everything and they -- the average, their staff they look over -- [indiscernible] we didn't ask for any [indiscernible], they give us --
>> it's a problem that we created, unknowingly, then it seems to me that in fairness we ought to help pay for the remedy 2515, back in tyler Texas would not be viewed as a --
>> we started out with $15,000 known policy, now we are faced with a lot bigger one, that's where we are coming from. I appreciate the attitude that the judge has. The main components -- I can tell you one of the main components of the solution that we are proposing is the ability of the county to get through things that we don't think that we can get through. The ability of the county because of its expertise, it's good relationship with the city of Austin.
>> I guess you weren't here this morning. [laughter] [multiple voices]
>> ought to be worth something. That ought to be worth something as far as value, added value. What you just said.
>> absolutely an important [multiple voices] may be worth something to the clients.
>> can you all be reachable by telephone between 3:30 and 4:00.
>> we are anticipating by that time we will have gone into executive session, have a -- had a chance to discuss this. Anything else at this time.
>> thank you all for being here.
>> thank you.
>> thank you.
>> do we know how to reach I am?
>> yes. Plan on calling you about 3:30 to 4:00.
Last Modified: Tuesday, October 15, 2003 12:52 PM