Travis County Commissioners Court
January 5, 2010,
Item 7
7.
consider and take appropriate action on demands for installation of wood privacy fencing between residential single-family lots and the anderson mill road right of way from the following landowners: a.
michael lavery; b.
james wenzel; and c patricia porter.
i just indicate that the matter may be taken into executive session under consultation with attorney depending on how today's conversation goes.
>> I'm
>> [indiscernible] from t.n.r.
public works, with me is greg
>> [indiscernible] from our right-of-way program.
essentially what we have here is a dispute over who is responsible -- who is to be responsible for replacing privacy fence on three properties.
the history of it has been that we had our anderson mill road project put in the 2001 bond referendum.
we completed the design in 2004-2005 time frame.
in that process of designing, we determined what property we needed from property owners up and down the road, widening from a two to a four-lane.
we had the properties that we needed from them appraised.
we presented that appraisal report to the property owners.
some of them accepted it as it was presented.
we closed out the deal.
we created purchase contracts and finished up with them.
some did not.
these three cases, these properties owners rejected the appraisal report.
they hired their own attorney, all used the same attorney and we had to negotiate from there.
then pending the appraisal report, it stated that the county would be responsible for replacing any privacy fence.
out on anderson mill road if you have driven down it, there's privacy fencing going down both sides of the road.
in the case again if they accepted the appraisal report we were responsible for replace thank privacy fence.
those that rejected the appraisal report, we negotiated a -- a new compensation that we both felt was adequate and that we were successful in the cases with these three property owners.
but in rejecting the appraisal report, staff took that to mean that they were also rejecting that the county would be responsible for replacing the privacy fence and the privacy fence issue would become a part of the negotiations for the contract.
as we finished up the project, going on two years ago, we wrapped up the last of the agreements with folks regarding privacy fencing with everyone except these three property owners.
when we approached them about closing out our agreements with them, we were taking the understanding that they were to be responsible for replacing the privacy fence and they thought we would be responsible.
it's not clear.
if you look at each -- each purchase contract there was an exhibit c, which was a listing special provisions.
and in addition to the compensation, this was a clarification of what was to be done with specific items on their property.
if you compare with me, this is very short, I will read to you what it said.
for the porter property, buyer compensates for sellers trees, one post oak, four live oaks ...
with same or similar type of those on the property to the extent that the total girth of the replacement trees will be approximately equivalent to the trees removed.
no mention of the fencing in there.
again, t.n.r.
staff were thinking that the fencing was compensated for in the amount that we negotiated with their attorney.
so there's no mention there.
in the case of we nzel, a little bit more complicated, but there was no mention of the privacy fencing in his, either.
in the case of lavery it states it is understood and agreed upon that the considerations set out in section 2 covers and includes compensation for the replacement by the seller of existing fence on the property as well as all fencing related issues and fencing components, landscaping and damages to the remainder.
when we had the conversation with these three property owners, about getting the fence installed, so that we can close out the contract, as far as wenzel and porter went, I agree there is some room for interpretation because it was unclear what to do with the privacy fence.
as far as mr.
lavery goes exhibit c was very clear to me.
however, mr.
lavery pointed out that from between the time that we finished the design and acquisition of properties and were getting ready to start construction, Travis County approached these property owners and said hey, before anyone puts the new fence up, we would like to put in place a temporary fence farther on to your property to give us more room to construct the project.
so we approached them for temporary construction easements.
in that temporary construction easement, there's a statement that says that upon completion of the construction the county will return the state of the land to its original condition.
mr.
lavery has interpreted that to mean that we were to put the privacy fence back up, the new privacy fence.
i disagree.
i would like to invite mr.
lavery, mr.
we nzel, I'm not sure if ms.
porter is here today to come up and express their point of view of this situation.
do you guys want to come up?
>> do we have anything else from staff?
>> I would like to add one quick note on the wenzel property.
these two chairs are together, those mics should be live.
>> all right.
>> on the wenzel contract, there was a modification to it.
the property owner was to be responsible for relocation of fencing and at the 11th hour mr.
wenzel modified that to add chain link, just a clarification on it.
and the issue at hand is the wood privacy fencing.
so again as -- as steve indicated, it's unclear in the contract on wenzlaf, the contract is silent to the issue on the porter property.
>> okay.
in essence what he's saying is there's two types of fences on mr.
wenzlaf property, there's the privacy fence and he had chain link fence that kind of tied into it.
the chain link fence was spelled out to what to do it, not the privacy fence.
it really doesn't have anything to do with the privacy fence, but it was included in there.
>> so what's the state of this property as to the fencing today?
>> today, we, the county, installed temporary construction fencing on their property to help us complete the construction.
it still sits out there today.
>> okay.
>> what needs to take place is that needs to be removed and the new privacy fence put up.
who put that privacy fence up is what the dispute is about.
>> okay.
but clearly we have a responsibility to remove the temporary fencing.
>> yes, sir.
>> but we want to remove it when the permanent fencing has been settled and in place.
>> we do want to maintain that secure environment for them, yes.
>> okay.
yes, sir.
>> you want to go first.
>> first, let me clarify the spelling of my minors it's been kind of confusing, it's wenzlaff.
it's quite a bit different on the agenda.
>> thank you, I noticed that in the backup that we just received.
we got close, though, didn't we.
>> I'm going to let michael do most of the speaking because he has the detailed information.
>> I'm michael lavery, the last one that steve was talking about.
i hope you don't mind my glasses, they are for medical issues because of these lights here.
at the
>> [indiscernible] agreement on 1-18-06 that steve refers to.
two representatives of t.n.r.
came to a meeting at my house that we were organized.
while we were waiting the turn to sign and had the agreement notarized, one representative that I worked for in many years was explaining to me that the fence being built immediately was a temporary fence and in quotes as states understand the license agreement and that number 3 under conditions in the license agreement meant that my fence would be built at the real property line when they were finished using what we had licensed for them to use for their construction area.
we had -- in essence, we loaned them our property in consideration this is what we had back.
i believe this to mean that in return for signing this license I would once again be getting a fence installed or we believed that we would once again be getting a fence installed on the property line by the county.
in my case one has that had previously been given up in the purchase agreement on a earlier date in 2004 because the county at that time had agreed to use fill dirt, beveling and retaining walls that would allow all of the homeowners to build a rock wall that would be level with the roadway.
as it is right now, many of the yards are three, four, five feet below the roadway f.
we put in a fence -- if we put in a fence that was 8 feet, it would only be three or four feet above the road.
it wouldn't do us any good for privacy or security.
that's why we had that discussion with the county, that was agreed upon prior to me just signing the purchase agreement and that's the reason that I signed it that way.
and to my way of thinking, this license agreement supercedes that purchase agreement on this point and taking with the temporary fence clause and the statements that were made to me by the t.n.r.
representative, explanations and answers to my questions, led me to believe that I would be getting my own fence again.
why else would a sign a license agreement for which I would receive no permanent consideration that returned me to my original property line.
if the t.n.r.
represents were coming up to this meeting to tell us there would be no retaining wall, no fill dirt and leveling, as the memo to the director of the t.n.r.
dated 10-22-08 states, then again I would ask why would I sign a license that did not give me a permanent fence and my true property line?
i would have no incentive.
by not having the fill dirt and everything there, this negated the 8-foot wall that we had all negotiated, contracted on, not with the county, but privately, because most of them would be four feet down.
i had organized this meeting that everyone came to and convinced the folks to come and sign this agreement based upon previous comments and statements of fill dirt, leveling and retaining wall.
without this license the county's contractor would not be able to use the additional room and this would hamper their construction and increase their costs and they do need all of us to sign.
in our -- in our June 4th, 2008 meeting with this Commissioner daugherty, we walked away with the belief that we would get a greater slope with a much smaller retaining wall than was previously envisioned and our 8-foot fence on our property line.
i would like to read the letter from our agent, our hoa president, that refers to that.
mr.
daugherty, first I want to thank you for hosting the homeowners and county reps on June 4th, 2008 in our office.
our discussion regarding the new construction on anderson mill road and how it impacts the residents was a productive gathering.
attending from Travis County were
>> [indiscernible], greg tigo,
>> [indiscernible], steve manila, renting the homeowners were michael, myself, jim wins slow and representing the ama were tom
>> [indiscernible] and gerald mcgreedy the president of the hoa.
whereas anderson mill was built differently than it was supposed we now have a viable concern of safety and security that needs to be addressed by Travis County as we explained as the meeting we understood that the retaining wall was going to be built on the homeowner's property line at the highest that we could build a fence on top of that.
however, Commissioner daugherty, we appreciate your offer to use the fill dirt to raise the height of the property line to the road level.
as we understood it, the fence the county would then build a fence on the property line at the road height.
we believe that fully addressed the matters of security and safety this might work, especially if this is an 8-foot fence with reinforced vertical poles like they have been doing.
in some places after smaller retaining wall than previously envisioned might be needed to be built behind the property line in order to keep the grading of the slope from getting too close to the swim knowledge pools and houses -- swimming pools and houses, however this would be much less than originally proposed.
we understand your concern to keep the costs as low as possible.
we believe this would be a much more conservative approach and help the county reach a fair and equitable solution to all parties involved.
as stated at this gathering, homeowners must agree to the county's request that the county have access or permanent easement to maintain the greatest slope into the homeowners's yard.
um ...
let's see.
and even the director acknowledged in one of his letters that -- that on --
>> media, can you correct that humming noise?
>> is that me?
>> no.
>> does that help?
nope.
>> media, can you correct the humming noise?
>> the director of t.n.r., on June 30th --
>> [indiscernible]
>> after our --
>> turn that mic towards you there.
that may help, he says.
>> can you hear me now?
>> yes.
>> okay.
on June 30th, steve had -- had sent out a letter again qualifying or stating that what gerald stated at the meeting, I think that I gave you copies of the pages.
on the second page, he states that -- that the redesign, reduce the height of the roadway, which eliminate the need for retaining wall at several locations, including the anderson mill estates.
however, the roadway and sidewalk remain several feet above existing ground and the issue of loss of privacy and security still exists.
so that is why when they came out here and asked for the additional license agreement, it was my assumption as it was being explained to me, that the fence, the wood fence for myself came back into play.
jim also -- believed that -- qualified all of us that they were talking about an 8-foot fence that would replace the temporary fence on our property, but it would be -- the real property line, not five feet back like this one is, so that they could use it.
we would request that the county give -- further down the line, we would request that the county they installed the other fences that they have done so far at 8-foot.
we are not sure whether that was what was called for in the contracts or not.
if it wasn't, then we request that our -- in order to be fair and equitable, ours be the same height.
however, if their contract states an 8-foot fence, we would request we be given an 8-foot fence, also, and pay the difference.
that would be fair and equitable.
i personally -- I want to keep the temporary fence, I saw the cost of removing it at $400.
and I think that's unnecessary.
i would prefer to keep the temporary fence and use it as a further buffer between us and the road so that that would mean no further expense to the county for it.
>> thank you.
>> so for the -- for the property owners whose appraisal included new fencing, what kind of fencing was provided?
>> generally, whatever is out there
>> [indiscernible] for the most part it was six foot.
but in some cases because the road was elevated we did accommodate requests to go to eight foot.
so that they could sustain the level of privacy as best they could after the project was completed.
>> okay.
we contracted with a fence builder.
>> yes, sir.
>> okay.
what compensation was provided for our temporary use of property to facilitate construction?
>> none that I recall.
greg?
>> that's correct.
>> none.
>> for the temporary construction.
>> it was -- the project was a little -- quick little background history.
the project was redesigned considerable-- with considerable changes to accommodate wishes of not just the residents in this area of the project but all up and down anderson mill road to -- to as best as possible kind of shoe horn it in to minimize the right-of-way acquisition that would be required for the project.
this was done over a period of -- with a lot of public meetings and the county Commissioner for that precinct, there were two or three -- well, two county Commissioners involved at different points over the years.
to just minimize the negative impact of traffic on the residential structures all up and down the roadway.
as a result of that redesign and the decrease of the right-of-way width, there were certain elevation changes that were required.
and costs incurred by the county.
and the -- the mix of discussion and negotiation with every individual property owner was -- was tremendous.
everything was a case by case, situation by situation basis.
so I -- you know, there was a -- I bring that up because there were costs associated.
one of the reasons for the need for the temporary construction easement areas was because of the fact that there was a smaller right-of-way footprint for the roadway.
>> is there a problem with leaving the temporary fence where it is?
>> no, not if they would like that.
that would be fine.
how will that connect with adjacent fences if they are up at the property line?
>> that they kind of ted into other property owner's fences, there's a little side wall that teed in so it's all secure.
>> anything else that either of you would like to add.
>> if I may go over just a few statements.
i agree with everything mr.
lavery said.
i have statements from three different documents.
i wanted to repeat what he said.
little appraisal states existing privacy fence replaced by Travis County to a new right-of-way line.
purchase contract makes no mention of the fence except what we mentioned for as a chain link fence for a dog pen and the license agreement for temporary construction area states improvements will require entering on to the property for the purpose of construction of improvements to include the erection of a temporary fence.
and another statement is the temporary construction area will be restored to substantially the same condition which existed prior to the construction activities.
i take that to mean the fence would be on the property line and
>> [indiscernible] from the property line.
>> okay.
the facts for the three are different.
>> mr.
wenzlaff and ms.
porter's situation is pretty much the same.
there was no mention of the privacy fence in their purchase contract.
mr.
lavery, however, his -- his special provision in his purchase contract is very specific about him being responsible foreplans the fence.
but -- for replacing the fence.
regardless of what that said, when we came back to him for a temporary construction easement, he took that to mean the negotiation were still open, he was going to get his fence back at our expense rather than his.
>> if we included the costs of -- of permanent fence replacing, replacement, in mr.
lavery's agreement, does that set forth basically what amount is provided for fencing?
>> I don't -- could you restate that please.
>> our position today is that in our agreement with mr.
lavery, we included an amount to cover a permanent fencing.
>> we did in the purchase contract, but it's not clear in the purchase contract that privacy fencing is part of that number.
i'm sorry for lavery, it is, correct.
>> for mr.
lavery it's very clear.
specifically addresses the privacy fencing, it states that the property owner, the seller, is responsible for all costs associated with anything to do with fencing on his property.
this is property --
>> what's your response to that, mr.
lavery.
>> that was in 2004.
in 2006 when I came back and negotiated the license agreement to use our land, the way it was explained to me the consideration for using that land for some period of time was that I was going to get -- my fence came back into play and it would be put at the real property line once they were done with it.
>> okay.
>> that was the number 3 --
>> mr.
lavery's claim is for how much?
>> we have put together in the backup memo a breakdown of the costs using unit rates that we would pay our contractor to do.
for mr.
lavery, the total would come to $2,860 using our unit rates.
>> minus the removal, so actually --
>> he says that he wants to leave threat.
>> so included in that was $260 for removal.
>> my question that I was going to get to is -- if we disagree with you that we in fact owe you the full cost of permanent fencing because we have already paid for it but we have an interest in resolving the matter, getting it behind us, behind you and behind us, also, is -- is a compromise of say 50% of your claim acceptable?
if the court were inclined to do that?
i'm just asking that question hypothetically.
they are saying our agreement basically contains information where we paid you a specific sum of money for permanent fencing.
we later came back and said, we need a temporary fence in order to facilitate construction and you and some other neighbors work with us.
your interpretation of that action by us was that not only had we paid for you permanent fencing, but we would then turn around and erect it.
i guess that I'm having a hard time agreeing with that.
but I can see how you would interpret it if you were the homeowner.
my question, though, is what is the middle line for you and the county on that.
you have been paid for permanent fencing once.
there is a disagreement on that?
>> no, judge, there isn't.
but when they came back two years later, three years later and I wouldn't say renegotiated that part of it, but asked for further things, without consideration, and we did -- we did the land and everything.
>> they are saying none of the residents got consideration except for a new, improved road built to more specifications than initially, I guess.
>> we did change the design to reduce the impact of the road.
actually it was going to be sitting much higher in locations, so -- so the folks were -- when we did go through the process of negotiating with many of the property owners, they raised the issue I'm going to lose privacy because of the road sitting up above my fence now.
that was taken into consideration in the compensation that we ultimately agreed for.
when we redesigned it, we actually lowered the road.
so it wasn't sitting as high as what people were thinking it was going to be sitting at at the time we were negotiating for this compensation for their parcels.
actually, in -- in one sense they were better off.
but mr.
lavery and a group down near his end of the road were counting on the road being higher because that would have required a retaining wall on our part and they were counting on being able to put a fence on top of that retaining wall.
all of that went away when we lowered the grade of the road to save cost and reduce impact to the property owners.
>> judge, may I make one point?
>> yes, sir.
>> this may shed a little light on this.
t.n.r.
staff views the license agreement that was signed considerably after the purchase of the property as a binding agreement between the county and the property owner.
however, the property that is addressed in that license agreement is not the same property as what was addressed in the purchase contract.
the purchase contract addressed the purchase of land.
the land area.
strip of land.
the county bought that land.
the license agreement several years later --
>> but did we buy that land and also pay mr.
lavery for the fence.
>> yes.
>> that's what's before it today.
>> we bought that land and paid him for relocation of his fence according to the contract.
>> the document will show that which we will see with our lawyers in executive session.
mr.
lavery, though, seems to agree that there's no question that initially we paid you for the fence.
>> yes, sir.
>> we later came and asked for a temporary easement, though, for the --
>> over a piece of property that is not the same property as what was purchased.
>> okay.
>> that's my point.
that's all it wasn'ted to -- that's all that I wanted to --
>> mr.
laugh's opinion today is when -- mr.
lavery's opinion today is when we came and asked for the easement -- that language makes reference to restoring the property to the original condition.
>> the property being the licensed agreement property area.
>> well, he's interpreted it to be before we arrived there when the permanent fence was still standing, right?
that's the problem.
and I guess we're back to my question.
i don't know that in fairness we can pay you 100% for a fence that we have already paid for and the document clearly shows it.
at the same time, though, we did get temporary use of your property to complete the project and it seems to me that since the language is susceptible to misinterpretation, I for one would be favorable to trying to reach some sort of compromise where, you know, sort of middle of the road where the county is kind of half satisfied and you are, too.
is my view.
on the other, though, it is not clear that we actually paid for the -- for a permanent fence, right?
>> it's not clear in the purchase contract, judge.
>> so we would have to chat with lawyers on the others but if your position is all or nothing, we would just have to deal with that.
but if in the spirit of let's do what's fair we reach some sort of compromise and I would recommend to the court probably 50/50, that whatever your claim totals, that we pay you half of it.
so it's a kind of half win, half win or half lose, half lose, depending on how you look at it, for both of us.
i'm just speaking my thoughts.
you know how this works, right?
we chat with our lawyers, but actually we have to take a formal vote.
whatever three of us decides to do, three or more, is actually the formal action of the court.
you know, typically in situations like this, we try to do what's fair.
like I say, I prefer to be fair and equitable all the way through here on both sides of it.
it's -- I would not agree with your solution to it.
but between a rock and a hard place, I don't have a lot of choice.
i would prefer that you vote for the whole thing for the interpretation of what we saw it as.
but like I said, it comes down to a rock and a hard place and, you know, I have to end up going to court, it would cost me more, you know, I would be amenable to discussing some type of settlement.
i -- you know, if it came to that, I would prefer that it be like the other ones and an 8-foot fence that would be done, I think we all request that it be done by whoever the county is hiring now, before it was h and h, but apparently they are not their primary one now.
>> that's right, we have two fencing contractors under contract.
the primary fence contractor who we would go to if we were to go out and do fencing today.
if he's not available, then we have a secondary contract with h and h, which happens to be the same firm that did all of the fencing up and down anderson mill.
these guys have seen his work and are comfortable with it.
they had mentioned that.
i said, well, if that's who you want to do the fence work, put it in your request and I will take it to the court and see what we can do.
i have talked with purchasing about that.
they would prefer that if at all possible, if the court decides to settle with these folks, that it be a cash payment to them.
if that doesn't work, then they would prefer to use their primary contractor, which is not h and h.
i don't think that would be a deal killer for these guys.
>> not if the build the fence according to the same way.
because they are using the county builders, they would know where the right-of-way is and everything.
you know, the fence wouldn't -- so I would prefer that it not come down to that.
but between a rock and a hard place I don't have a lot of choice.
>> do we have mr.
lavery's purchase agreement that we can look at when we go into executive session.
>> yes.
>> with the other two individuals the language is not so clear but we have legal that has looked at it and will be able to consult with us in executive session today.
>> yes, sir.
>> okay.
>> I'm just a little fuzzy here on the fence heights and the grade.
has the grade at the location of the final permanent fence changed from what it was -- what it was at the beginning?
in other words, when a six-foot replacement fence was contemplated, was that on the same grade level as it ended up being?
or did the grade change such that the eight-foot fence is more desirable.
>> the original design, that was what all of the original negotiations were based upon, had the road sitting up higher.
so the fence is down here, the road is sitting up five feet high, the effective height of the fence is only two or three feet.
what we did after we bid the project the first time, came back too high.
we redesigned it and lowered the road.
in some cases the additional height went away totally.
in some days it just dropped maybe one or two feet.
but the effective fence height if it's only six feet it's still only four feet.
so we did accommodate that and added another two feet to it in some locations.
in some places, the property owners took the initiative themselves and put in an eight-foot fence.
we compensated them for it.
they went out and did it all theirselves.
in this case with these folks they have kind of hoping like I said that we had the higher elevations and have a retaining wall and put a fence on top of it.
some of the property owners did that themselves at their own costs.
i'm not sure exactly how each one of these guys land lays out.
i think mr.
lavery is down towards the end where the heightened part of the road dropped down to almost nothing.
it may be part of his property is higher, part of it shouldn't have changed at all.
some of the these other ones, the farther down the road you go, it goes up and down.
>> anything else today?
it will probably be -- take us 20 to 25 minutes to go into executive session, we have a couple of other matters in open court.
we will be in executive session anywhere I would guess from 30 to 45 minutes.
in my view, you are looking at 11:30 or 12:00 before we can come out and take action on this.
you are welcome to stay here and be present or let staff notify you of what action we take.
your choice.
>> thank you, judge.
>> any final words today?
>> like I said, my first choice would be to -- the eight-foot fence fence with the county.
but if it becomes a rock and a hard choice, what you think is fair and equitable there.
i would request, if you come back from executive session and we're here, do we still get to talk back and forth or are we done at that point?
>> typically, when we come back out, we are ready to take action.
>> okay.
>> so we will be taking motions.
>> we both have to get back to work and we have left our number with gary.
to get in touch with us.
so is -- if you need -- do you need our bodies here?
>> I don't think we need you.
typically we chat with our lawyers, we remember each and every word you spoke today.
and we supplement that and when we come back out, we normally either take action or we postpone it if there is some reason that we are not ready, but I would think on something like this, we would be ready to take action one way or the other.
i think we request the preference really is to try to get the fence erected, if possible.
and leave the temporary fence for mr.
lavery.
and if we save money doing that, then we factor that into whatever we think a fair settlement is.
is that -- don't you think?
>> uh-huh.
>> I mean I -- so in response to your question, you are welcome to wait.
but if you don't and we have your phone number, we can let you know what action we take.
and I will go out on a limb and say we will take that action before noon today.
>> you're optimistic.
>> [laughter]
>> not on this, I'm talking about the length of the agenda.
>> all right.
>> thank you.
>> thank you.
>> we will go into executive session on this item under the consultation with attorney exception at the appropriate time.
The Closed Caption log for this Commissioners Court agenda item is provided by Travis County Internet Services. Since this file is derived from the Closed Captions created during live cablecasts, there are occasional spelling and grammatical errors. This Closed Caption log is not an official record the Commissioners Court Meeting and cannot be relied on for official purposes. For official records please contact the County Clerk at (512) 854-4722.
Last Modified:
Tuesday, January 5, 2010 2:30 PM
