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Pecan Valley-AG021112AGENDA REQUEST FORM ITEM CAPTION: T N[ C I T Y O! COPPELL ~ * S' ~ T , O e x A b , 0 9 DEPT: Engineering DATE: November 12, 2002 ITEM #: 9/F Consider approval of an ordinance abandoning aone-foot wide strip of an alley easement as dedicated by the Pecan Valley Subdivision, with the retention of the underlying area as a utility easement; and authorizing the Mayor to sign. APPROVED BY CITY COUNCIL ON ABOVE DATE ,~ o to Approve # 2002-1020 Vote - 6-0 York Absent M -Tunnel) 5 -Peters Abandonment of the one-foot portion of the existing alley easement to the Pecan Valley Home Owners Association will allow the legal construction of a privacy fence along the south and east side of Pecan Valley. Retaining the underlying surface as a utility easement will allow existing city and franchise utilities in the area to continue to exist in the same location. Staff recommends approval of the abandonment ordinance and will be available to answer questions at the Council meeting. FINANCIAL COMMENTS: a., «a.•, w .h•..M JMM M: c+4n °' ~ CM REVIEW: "~~ DIR. REVIEW: ~ FIN. REVIEW: ,~~: ~~"' m~ o..: _ ~ ~,,.~ 13:IO.N _ _ anro' ~ v.me .: Agenda Request Form -Revised 09/02 Document Name: #eng3-IAR )~ aa~bos9 3730089 f15.00 Oeea 02/20/03 AN ORDINANCE OF THE CITY OF COPPELL, TEXAS ORDINANCE NO. ,~iOO2, ~/OZD AN ORDINANCE OF THE CITY OF COPPELL, TEXAS, ABANDONING A ONE FOOT WIDE STRIP OF AN ALLEY EASEMENT AS DEDICATED BY THE PECAN VALLEY SUBDIVISION VOLUME 91226, PAGE 4392 AND MORE. PARTICULARY DESCRIBED IN EXHIBITS "A" AND `B" ATTACHED HERETO IN FAVOR OF THE PECAN VALLEY HOME OWNERS ASSOCIATION; PROVIDING THAT THE ONE FOOT WIDE ABANDONED AREA OF THE ALLEY EASEMENT SHALL BE RETAINED AS A UTILITY EASEMENT; PROVIDING THAT SUCH ABANDONMENT SHALL BE IN THE INTEREST WHICH THE CITY MAY LEGALLY AND LAWFULLY ABANDON; PROVIDING THAT SAID ORDINANCE SHALL CONSTITUTE A QUITCLAIM DEED THAT MAY BE RECORDED WITH THE COUNTY CLERK OF DALLAS COUNTY TEXAS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Coppell has determined that aone-foot wide strip of the existing alley easement along the south and east sides of the Pecan Valley Subdivision, more particularly described in Exhibits "A" and "B" attached hereto, is no longer needed for the purposes of which it was dedicated; and WHEREAS, the ownership of the common areas of the Pecan Valley Subdivision, i.e., the Pecan Valley Home Owners Association, desires that said one-foot wide portion of the alley easement be abandoned; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS: SECTION 1. That the City Council of the City of Coppell, Texas has determined that aone-foot wide strip of alley easement located along the south and east side of Pecan Valley, an Addition to the City of Coppell, Texas, and more particularly described in Exhibits "A" and "B", attached hereto and made a part hereof for all purposes, is no longer needed or necessary for the purposes of which it was dedicated and should be, and is hereby, abandoned in favor of the Pecan Valley Home Owners Association. SECTION 2. That the City of Coppell, Texas shall retain the abandoned alley easement as a utility easement. 2003035 03781 ~,~ ~~~ ~j ~~ ~ SECTION 3. That this abandonment ordinance shall constitute a Quitclaim Deed in favor of the Pecan Valley Home Owners Association for the alley easement, with the City retaining the underlying azea as a utility easement and access thereto, and a certified copy of the same may be filed in the Deed Records of Dallas County, Texas, to indicate such abandonment. SECTION 4. That the abandonment provided for herein shall extend only to the public right, title and interest which the City of Coppell, Texas, may have in and to said alley easement, and shall be construed to extend only to such interests that the governing body of the City of Coppell, Texas, may legally and lawfully abandon and that the abandoned portion of the alley easement shall be retained by the City of Coppell, Texas as a utility easement. SECTION 5. That this ordinance shall become effective from and after its passage as the law and charter in such case provide. DULY PASSED by the City Council of the City of Coppell, Texas, this the ~1lf/ day of ~Q?~_, 2002. ATTEST: . ~~ LIBBY B TTY SECRETARY APPROVE AS 0 FORM: ~~ ROBERT E. HALE CITY ATTORNEY zoo3035 03782 2 OBIT A BOUNDARY DESCRIPTION BEING a 1.00 foot wide strip of land situated in the Alfred Logsdon Survey, Abstract No. 783 in the City of Coppell, Dallas County, Texas and also being part of Pecan Valley, an addition to the City of Coppell as recorded in Volume 91226, Page 4392 of the Deed Records of Dallas County, Texas and being more pazticulazly described as follows: BEGINNING at a point being on the east line of said Pecan Valley, said point also being the southeast comer of Lot 12 in Block "A" of said Pecan Valley; THENCE S. 00° 21' S 1" W., 608.11 feet along the said east line of Pecan Valley to a point for corner, said point being the southeast corner of said Pecan Valley; THENCE S. 88° 17' 12" W., 813.64 feet along the south line of said Pecan Valley to a point for comer; THENCE N. 00° 10' 23" E., 1.00 feet to a point for corner; THENCE N. 88° 17' 12" E., 812.64 feet to a point for comer; THENCE N. 00° 21' S 1" E., 607.15 feet to a point for corner, said point being on the south line of said Lot 12, Block "A"; THENCE S. 89° 38' 09" E., 1.00 feet along the said south line of Lot 12 to the Point of Beginning and containing 1420 square feet of land. 2oo~t~35 03783 POINT OF BE31NN1N0 O O 12 13 14 IS W O M ~, BEAVER 00. 21'sl" W, 608. II' _: , 00.2 I"S~' f 00 7. 15' EXIST. IS' ALLEYL 16 ~ I7 I IB I 19 BLO K "A" RAN DRIVE 20 EffiBIT B PECAN VALLEY - VOL. 91226 .4392 ~ ~ c0 21 N M ~ ~ ~3'~#=_'i~ ~ 11Tf~ I~kl~ Y~?'s~#A~ ~; ~~~ >~~ 0 ~ ~?~ iD W q 3 30 N .. N } - BLOCK "A" J ti ti a ao m .~' in ~ ~ ~ 3 I - Z N !` v~i C1 PARK X '~ W VALLEY cT. I.r~ BOUNDARY PLAT c, CITY OF COPPELL ALFRED LOGSDON SURVEY ASST. NO. 783 33 32 ~ DALLAS COUNTY TEXAS LODGE ROAD DOWDEY ,ANDERSON & ASSOCIATES ,INC. 68Y6 ~llagv ~,owle Dtrivv Suite 80o nA'~: SEPT. 19, 2002 sc.-LF:: 1" = 100: (978) 991-0~* Aarto 7azw 760&9 JOB NUMBER: SBLEO SE(~EOOa ~~!~~~ 2003 FEt3 20 AM 1 t ~ 05 ~ro p^~vl:ia„ 1 Iu ~/ Gl.tKt~ !~ tEcsablel~dei end causMe o~'i~roai sale, hMN. COUN ~ 1 f^ OUNT Y OF TENS al law, 01 or Baca ls°~u~1Olp~ fl~~,l~,s l N~mp d~ !~Y this inst lnvaly w •ts o~n~,m~ record o 0!!as ~c rob°d7~ A'~ sa <<~$ rePN ~ 20 2003 o„H,~,~ ` ` ~G c~ ahas~t; ~1'G ~~ ~K Dallas Gounry~ tee gg f ~ n„ n,_ ~~k ~' r a.u-~ ~ ' ~r ~,.,rG~-~a MEMORANDUM FROM THE DEPARTMENT OF ENGINEERING To: Mayor and City Council From: Kenneth M. Griffin, P.E., Dir. of Engineering/Public Works Date: November 12, 2002 RE: Consider approval of an ordinance abandoning aone-foot wide strip of an alley easement as dedicated by the Pecan Valley Subdivision, with the retention of the underlying area as a utility easement; and authorizing the Mayor to sigl-. During the development of the Pecan Valley Subdivision in the early 1990's, the developer constructed a wooden privacy fence along the south side of the Pecan Valley Subdivision. It was the developer's opinion that the privacy fence was necessary to separate the Pecan Valley Subdivision from the property to the south (Hitchcock property) for marketing purposes. Since that time, the fence has fallen in disrepair and has been cited by the City of Coppell Code Enforcement Department. The Home Owners Association (HOA) embarked upon the removal of the existing fence with the intention of installing a new fence. During the course of that construction, there was discussion among members of the Pecan Valley HOA as to whether or not HOA funds could be expended to construct a fence that was technically not in a common area. The language within the Pecan Valley HOA bylaws states that HOA dues can only be used to maintain common areas. Representatives of the Pecan Valley HOA met with members of city staff to discuss alternatives to resolve the issue of the construction of the fence within the alley easement. Several alternatives were discussed such as: doing nothing, providing a license agreement or abandoning a portion of the alley. The "do nothing" alternative was not seriously considered because the property owners along the southern side of Pecan Valley had an expectation when they purchased their property that there would be a fence along the back side of the alley not only to sepazate the property but for security reasons. With the license agreement, the City would have allowed the fence to be built within the alley easement; however, the by- laws of the HOA still would not have allowed the HOA to expend monies because it would not technically be a common area. After much discussion, it was determined that abandonment of a one-foot strip along the south and east side of the Pecan Valley Subdivision would allow the HOA to accept the abandonment as a common azea and therefore expend funds to construct the fence along the south side. They're unsure if they will construct the fence along the east side at this time. The one-foot area would be contiguous with another common area at the southwest corner of Pecan Valley Subdivision. Retention of the abandoned alley easement as a utility easement is necessary because of several utilities that cross through the area. The City of Coppell has a sewer line and several drainage structures and there could be franchise utilities in the area also. Abandonment of the azea, while retaining a utility easement, would not cause any hardship to the City of Coppell as faz as maintenance of the alley and/or the sewer line and drainage systems that currently exist. "CITY OF COPPELL ENGINEERING -EXCELLENCE BY DESIGN" The only ramification of the abandonment would be that because the azea would no longer be an alley easement the property developed to the south would not have a legal right to access the existing alley when it develops. The property to the south is partially made up of the Rejoice Lutheran Church and what is referred to as the "Hitchcock" property. City Council may recall that in the past there have been several developments brought forth for the "Hitchcock" properly of which none showed an alley along the common boundary line with Pecan Valley. But again, the abandonment of the one-foot portion of the alley would preclude future houses along the north side of the "Hitchcock" property from accessing the existing alley within Pecan Valley. It is staffls opinion that the abandonment of the one-foot strip of the existing alley easement to the Pecan Valley HOA as a common azea, with the retention of the underlying area as a utility easement, is a good compromise which satisfies the issues and concerns of both parties. Staff recommends approval of this ordinance and will be available to answer questions at the Council meeting. "CrrY OF COPPELL ENGINEERIIYG -EXCELLENCE BY DESIGN" PECAN VALLEY HOMEOWNERS ASSOCIATION P.O. BOX 964 COPPER, TEXAS 750 7 9 October 21, 2002 Mr. Clay Phillips Deputy City Manager City of Coppell 255 Parkway Coppell, Texas 75019 Dear Mr. Phillips: Thank you again for the time that you and other City officials have spent with our neighborhood association as we have worked through the various issues relative to the fencing surrounding our homeowners association. On Thursday, October 17, 2002, the Pecan Valley Homeowners Association met to vote upon the City's offer to abandon the portion of property upon which the original fence was erected, on the southern and eastern boundaries of our neighborhood, and for ownership of that same property to revert to the PVHOA. In accordance with our governing documents (By-Laws and Declaration of Covenants, Conditions, and Restrictions) the vote passed, with an affirmative vote of 66 and 2/3 of the homeowners. As such, the purpose of this correspondence is to formally request that the City of Coppell abandon said property, secure the necessary Council approval, and file any required paperwork with applicable government agencies. Upon confirmation from the City that such actions have been completed, we will complete the reconstruction of our neighborhood fence along our southern boundary. Again, we are appreciative of the efforts that you have put forth in aiding our resolution of this difficult issue. sincere y, ..~/ dt Lee Tanner President Pecan Valley Homeowners Association BOARD OF DIRECTORS: LEE TANNER, PRESIDEM' MARK MOSLEY, VICE PRESIDENT BRUCE SIERBA,TREASURER BARBARA MERCER, SECRETARY '._~~~; ~'B C__91!1C I9:ci8 FF. NII_HOLS JNCKSOhJ DILLN4 9E~5 018 Tv 972304'=570 NICHOLS, IACKSOhi, DILLARD, HAGER & SMTTH, L.L.P. Robert E. Hader F.-mail: rhagerC~nidhs.com ROBERT L. DILLARD, JR. f+9+}2000} N. ;~w5 NiCMOLS LAWRENCE W. JAGK$QN OG COUNSEL Attorneys dt Counselors at l.aw 1800 Lincoln Plana 500 Nosh Akard Dallas. 7ezas 75201 1214}965.9400 Fax (214) 965-0010 E-mail NJDHS@NJDHS.com August 28, 2002 Mr. Ken GrifTin City Engineer City of Coppell 27> Parkway Boulevard P.O. Box 478 Coppell, Texas 75019 VIA FACSIMILE 9'12-304-3570 RE: Pecan Valley Subdivision Iaear Ken; You have requested as a follow-up to give you more information on the consequences of a City abandoning rights-of--way or a utility easement. P . E~9; ~3 As set forth in our precious letter after the City receives a dedication of public right-of- way by way of a grant from a property owner by a dedication deed or a dedication as a result of subdivision plat approval. As previously opined, a dedication gives ttte City superior right of possession, custody and control of those portions of land that were dedicated for public use. Llpon abandoning such use and the extinguishment of the City's right, the land would revert to. the ownership of either the adjacent property owner. or in the case of a common area dedicated a~ a 1?nblic street, would revert back to the ownership of the common lot owtler(s). In the case of the Pecan Valley Subdivision, the grant of ownership of the common areas to the homeowners association included the streets and alleys as depicted on the plat subject to the City's superior llglrt of control over the same land as the dedicated public right-off way. If the City were to abandon or extinguish its interest in the streets or alleys or other rights-of--way that are depicted on the plat, those would xevext back to the common ownership as common areas subject to deed restrictions, covenants, and homeowners association control. As a result of the preceding, it is our opinion that should the City extinguish its right-of- way dedication to any streets, alleys or rights-of--way as depicted on the Pecan Valley Subdivision Plat, the ownership of those lands would revert to the homeowners association as conunon areas. Those tuea; would then be controlled by the applicable deed covenants, restrictions, and homeowners association bylaws which govern the maintenance and control of con~n,on areas. i;i_I ~ 9 2t~il~_ 1 E : E9 FR tJ I CHOLS JHCKSOhJ D I LLR4 9E5 EL 1 © TU 9723E4E57F~ F' . 83%F~3 Mr. Ken Griffin August 28, 2002 Page 2 If you have any further questions in this regard, please feel free to call on us at your convenience. Very truly yours, NICHOLS, JACKSON, DII,LARD, HAGER & H L.L By: Robert E. Hager REH~cdb cc: Clay Phillips (VIA FACSIMILE 972-304-7063) Gary L. Sieb (VIA FACSIMILE 972-304-7092) NICHOLS, JACKSON, DILLARD, HAGIrR & SMITH, L.L.P. soieo ~%~~~ TQTAL PRGE.LJ3 Mw NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P. Attorneys & Counselors at Law 1800 Lincoln Plaza 500 North Akard Dallas, Texas 75201 (214)965-9900 Fax (214)965-0010 E-mail NJDHS@NJDHS.com August 26, 2002 Ken Griffin City Engineer City of Coppell 255 Parkway Boulevard P.O. Box 478 Coppell, Texas 75019 RE: Pecan Valley Subdivision Dear Ken: ROBERT L. DILLARD, JR. (1913.2000) H. LOUIS NICHOLS LAWRENCE W. JACKSON OF COUNSEL VIA FACSIMILE 972-304-3570 AND U.S. FIRST CLASS MAIL You've asked us to provide you with a written legal opinion concerning the rights and legal consequences of dedication ofright-of--way. In answering this question, one must first have a complete discussion of what legal effect of an easement and its relationship to the primary ownership of the property upon which the easement is given. As our understanding, the following facts are undisputed: 1. That the Pecan Valley Subdivision is a plated. subdivision within the City of Coppell, Texas. 2. That the dedication language on the plat reserved common ownership of certain areas of land within the subdivision which depicted on recorded plat. 3. That the City was dedicated those streets, alleys and easements depicted on the plat. The legal consequences of dedication of public right-of--way is nothing more than an easement. An easement is classically defined as the right of one person to go onto the land in possession of another and to make use thereof. In the immediate situation, it is clear that land was owned or dedicated by plat to the common ownership of a homeowners association. That right of ownership was then thereafter limited by the dedication of easements to the City of Coppell for the streets, alleys and rights-of--way as depicted on the plat. Thus, any street or alley is in effect an easement in gross, which by legal definition is the right to occupy and use the area dedicated and gives stewardship to maintain and control to the City of Coppell, which is superior to the homeowners association. The rights that are defined by such easement are to make whatever reasonable use of the surface and subsurface estate which are reasonably necessary to discharge the City's public right to use. Thus, at the time of conveyance, the common areas which are depicted as alleys and streets or other rights-of--way were dedicated to the City. The City as the easement holder, or owner of the right-of--way has the unabated right to make reasonable use thereof subject to its police power. This would include the maintenance and 50026 Mr. Ken Griffin August 26, 2002 Page -2- control of the surface estate and such of the subsurface estate of which the City would reasonably use in order to accomplish its public purpose. Those words of dedication appear on the plat and establish aright-of--way in favor of the City. The legal consequences of this dedication of public right-of--way is to create an easement against whatever ownership is conveyed to others. As a result, the common area as streets and alleys have been conveyed to the homeowners association as tenants in common subject to the superior right in favor of the City. Hence, the City through its police power may control whatever part of the surface and subsurface which reasonably we would use in order to administer to the general public. In the immediate circumstances an easement dedication has been made in favor of the City for the streets and alleys and other public purposes. Thus, in the Pecan Valley Subdivision the homeowners association are owners of common area in which the lot owners have an undivided common interest in the estate subject to the dedication of public street, alley, and rights-of--way. As previously opined, this ownership is subservient to the City's right to control, utilize and maintain streets, alleys, and other dedicated right-of--way. After reviewing the dedicatory language and plat of the Pecan Valley Subdivision it is our studied opinion that the developer granted to the homeowners association the common areas which depicted as streets and alleys subject to the dedication to the City of Coppell. Hence the City of Coppell would for all practical purposed be declared to be the owner and regulator of the surface and subsurface estates for the purposes of maintaining streets, alleys, public thoroughfare, installation of signage, maintain of drainage and the placement of appropriate utilities within the areas depicted on the plat as street, alleys, and places of public use. As a result, no building and/or other obstructions may be placed within these streets, alleys, and areas subject to the public easement (right-of--way). The permitting of obstructions within the public right-of--way would create and defeat the very intent of the developer in making the dedication and impair the public purpose in requiring such right-of--way. Hence a property owner may not place any obstruction or to commit any act which would violate the terms of this easement. The City's right of control and utilization of the right-of--way would, in effect, be superior to the ownership among the lot owners in the subdivision. It is, therefore, our opinion that the City of Coppell has a superior right of control over the depicted streets, alleys and areas that are dedicated to the common public stewardship of the City. Thus the homeowners association or private owner may not revoke or defeat the City's superior right of control without the consent of the appropriate municipal authority. As a result thereof, and for statutory reasons under the TEXAS Local. GOVERNMENT CODE, the City Council as the steward in administering these easements, would have to relinquish, abandon or extinguish its rights or otherwise license those to private interests in order for such interests to utilize any of the area covered by the easement. As a result, the City would have to affirmatively take an action to abandon or license the use of the easement. Thus, the mere fact that a prior use may 50026 Mr. Ken Griffin August 26, 2002 Page -3- have encroached on the easement over a period of time cannot be act as an extinguishment or a release of the easement rights. We hope this has been instructive and sets forth the City's dominant right to control and exercise dominion over the public streets and alleys and its relationship to private ownership and common ownership in a subdivision. Very truly yours, NICHOLS, JACKSON, DILLARD, HALER &f3'iGIITH. L.L.P. By: Robert E. REH/ev/cdb cc: Clay Phillips (VIA FACSIMILE 972-304-7063 and U.S. First Class Mail) Gary L. Sieb (VIA FACSIMILE 972-304-7092 and U.S. First Class Mail) 50026 NICHOLS, JACKSON, DILLARD, HALER & SMITH, L.L.P.