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DR8902-CS 901019October 19, 1990 A ~ TO: Alan D. Ratliff, City Manager llY/J ~f FROM: Steven G. Goram, Director of Public Wo~ RE: Drainage Problem Adjacent to Jones' Progerty; / Meeting with Homeowners Along Drainage/Stream G6 Attached is a memorandum from Acting City Engineer Sh~ ~re Daneshmand outlining for you the meeting City Staff and the City Attorney's office had regarding Don Jones' retaining wall. Additionally addressed in the memorandum Shohre explains her meeting with the property owners along the drainage/stream G6. Also attached is a copy of the letter sent you from the City Attorney's office addressing the legal aspects of Don Jones' retaining wall. After evaluating the attached documentation, Staff would recommend the following: First, the retaining wall is in violation of City ordinance. Second, because of the present litigation and since the wall is completed, Staff recommends the issue of violation be held off until such time legal counsel feels it would not jeopardize the case. Third, Albert H. Half, Associates, Inc., consulting engineers, has indicated the retaining wall will not be part of the ultimate solution to the area drainage problem, and therefore the retaining wall would have to be removed. Staff reco~ends that no action be taken to initiate the removal of the retaining wall until such time that a thorough survey and construction plans are prepared to clearly indicate the placement and construction of improvements. Finally, City Staff has performed maintenance on the drainage easement south of Jones' property and on City property but has not maintained north of the box culvert structure on Bethel School Road (see attached). If you wish to discuss this matter, please let me know. SGG/sm cc: Bruce Stockard, City Attorney's office Shohre Daneshmand, Acting City Engineer Wes Kilcrease, Fire Chief Dale Jackson, Chief Building Official Per Birdsall, Street Superintendent SALLINGER, NICHOLS, JACKSON, KIRK & I)ILLARD ALFRfO S^LLINGER (Formerly Saner, Jack, S:dlinger & Nichols) ROBERT D, HEIviPHILL LAWREi'4CE W JAC½$Ofl Attorneys & Counselors at Law ROSER~ E HAG(Cfi T,. g~Rg 1800 Lincoln Plaza .ETeR G. St41TH .JOHN PIERCE GRIFFIN ~OaCRT C. OILL^RO HI 500 N. Akard o^vlv .. eER.AS ROBERT L, DILLARD. JR, Dallas, Texas 75201 JOHN F. ROEHM Ill "LOUIS NICHOLS (214) 954-3333 snucE A. STOCKARO or COU.SEL Facsimile (214) 954-3334 October 17, 1990 OCT I 9 [990 : i". Mr. ~lan D. Ratliff City Manager City of Coppell P.O. Box 478 Coppell, Texas 75019 Re: Drainage Problem Adjacent to Jones Property Dear Mr. Ratliff: You have asked us to assess the various problems surrounding the drainage channel adjacent to the Don Jones property and assess the City's various legal options regarding this area. Specifically, you have asked whether the City has acquired a drainage easement in the area; if so, whether the newly constructed retaining wall Jones has constructed is in the city's drainage easement, whether the construction of the wall is in violation of the City's retaining wall ordinance, the City's legal options regarding the removal of such wall, and finally, whether the removal of the wall will be required as contemplated by the drainage study by Albert Halff. The first question to be addressed is whether the wall constructed by Jones is a violation of the ordinance regulating retaining walls within the City of Coppell. The retaining wall ordinance requires a permit to be issued for any wall that is over four feet in height. The height of the lower wall is approximately 5 1/2 feet and the second wall above the lower wall is approximately 4 1/2 feet. No permit has been issued for this wall. Assuming these facts are true, Jones is in violation of the City ordinance. Another issue to be addressed is the question of whether the City has accepted the drainage easement which was dedicated to the city in the subdivision plat. I have learned that subsequent to that dedication, the City staff accepted improvements and easements regarding this particular subdivision. However, under state law, before a city is saddled with the responsibility of an easement, it Mr. Alan D. Ratliff Page 2 October 17, 1990 must accept the easement through an actual appropriation of the dedicated parts by entry, use, or improvement. The Local Government Code goes on to say that the approval of a plat is not considered an acceptance of a proposed dedication and does not impose on the municipality any duty regarding the maintenance or improvement of any of the dedicated parts until such physical acceptance occurs. In our particular case, the City has not entered onto the dedicated part, thereby creating the easement. If we stop here, it appears the city has not accepted the easement and therefore has no responsibility for the drainage channel at this particular time. However, it is my understanding that further down the channel the City has entered into the channel and made improvements. I am not aware at this time whether this entry onto the channel was an entry onto the dedicated easement which appears on the subdivision plat. If so, then the city has accepted the easement and is therefore responsible for improvement and maintenance of its easement. If the entry and improvement on the section downstream was not an entry onto the dedicated easement, then the city has not accepted the easement and therefore has no responsibility at this time. Accordingly, assuming for the moment that the City has accepted the easement, the next question is whether the retaining wall built by Jones extends into the drainage easement. I have consulted with various staff members and it is their unanimous conclusion that the retaining wall does extend into the city's easement, assuming the City has accepted the easement. As such, although the law is murky on this issue, it is probably the City's right and duty to remove the retaining wall. But, to complicate things further, Deborah Burleson, who represents the City in the Jones litigation, advises against any such action by the City while the litigation is ongoing. The third question to be addressed is whether the Albert Halff study of drainage in the City would call for the removal of the Jones retaining wall when the actual improvements and construction by the City takes place. The Albert Halff study clearly calls for the removal of the retaining wall in order to construct and improve the drainage channel in that particular location. Consequently, the City will eventually have to remove the retaining wall one way or the other. Another issue which arises is the damage which could possibly occur if the retaining wall is allowed to remain in place for the indefinite future. Because the wall now extends into the drainage channel, it is probable that, after a heavy rain, the water flow will be diverted from the course which it previously took. It is unclear how much damage or erosion would occur because of this diversion. With the diversion taking place, subsequent erosion Mr. Alan D. Ratliff Page 3 October 17, 1990 would probably occur which would result in the widening of the creek channel. A worse case scenario would be that water would be diverted in such a manner that damage to adjoining property owners would take place. However, this is pure speculation at this time. In conclusion, we have ascertained as follows: First, it appears doubtful that the city has accepted the drainage easement under the parameters set forth in the Local Government Code. (Although we may have accepted by our action further downstream). Second, the construction of the retaining wall by Jones violated a City ordinance because no permit was obtained from the City. Third, assuming that the City has accepted the easement, it is the City's feeling that.the retaining wall is across the line and into the City's drainage easement area. The City probably has a legal right to remove the wall. Four, the city's litigation counsel in the Jones litigation recommends against any such removal at this time because of the risk of exposure to liability in a jury trial. Five, the Halff study contemplates removal of the retaining wall. Because of the above findings, the first task is to determine whether the City's entry downstream constituted an entry onto the dedicated easement. If that entry did not occur onto this particular easement area, then the City has no leqal obligation or right to improve or maintain the drainage channel. However, the lack of duty and responsibility must be balanced by the concern for the diversion of water by the Jones wall during a heavy rain and potential further erosion and property damage to other property owners. On the other hand, if the city does have a responsibility for the easement, the exercise of the City's legal right and duty to remove the retaining wall is balanced by the concern for the Jones litigation. In either situation, the City will be faced with a difficult choice. If you want to discuss any of these questions further or more at length, please do not hesitate to call. Very truly yours, SALLINGER, NICHOLS, JACKSON, KIRK & DILLARD Bruce A. Stockard BAS/gh cc: Mr. Steve Goram COPPEr.]'. PUBLIC NORKS HF. HORANDUH DATE: October 15, 1990 ~ TO: Alan D. Ratliff, City Manager VIA: Steve Goram, Director of Public Worl Daneshmand, Acting City Engineer~{~~_~ FROM: Shohre RE: Retaining Wall on Don Jones' Property/NLWD East (Tickler 10/16/90) Don Jones' Retaining Wall: After receiving comments and evaluations from Walter Skipwith of Albert H. Halff & Associates, Steve and I met with Bruce Stockard, City Attorney, and Dale Jackson, Building Official, on October 10, 1990. Basically, per Halff's evaluation, the subject timber retaining wall can not be considered as part of drainage improvement on Stream G6. This retaining wall appears to be constructed within the City's 40 feet drainage easement. According to Walter, the use of timber retaining walls should be avoided in areas subject to inundation because of their history of failure. We provided the available information to Bruce Stockard, City Attorney, and he will review and comment as related to the Don Jones' litigation with the City of Coppell. Northlake Woodlands East/Weed Complaint and Drainage/StreamG6: - Walter Skipwith of A.H. Halff & Associates and I met with Mrs. Morek and Mrs. Shafer along with a few of their neighbors, on Thursday, October 11, 1990 at Mrs. Morek's residency on 642 Meadowview. The following residents attended the meetings Name Address Telephone David and Sandra Greer 641 Briarglen Dr. 462-0738 T. C. Shafer 400 Hawk Court 393-2600 Stuart Myers 500 Hawk Court 462-9418 Pat (Mrs. Ben) Morek 642 Meadowview Ln. 393-1660 Memo to Steve Goram October 15, 1990 Page 2 Generally, they indicated that their back yards are wet throughout the year regardless of rainy seasons, and that it is difficult to mow the grass in the channel area. The following specific comments were made: - Mrs. Morek indicated that when she bought her house several years ago, nobody was allowed to do anything in the open area behind said houses, namely Stream G6. But there has been some types of encroachments in the recent years, referring to houses along Hawk Lane and Court, etc. - Mrs. Morek indicated that the existing channel swell in her back yard has been altered because of different activities upstream and downstream of this reach, and also some of existing trees are dying. - Mr. David Greer indicated that some areas, west and east of Moore Road, are draining to their back yards and City shouldn't have allowed this. He is suggesting that this natural earthen channel be concrete lined or pilot channel and the path of drainage be well identified and fixed by the City of Coppell; then affected home owners will maintain such improvement. - Other residents basically expressed their concerns indicating that this area needs more attention since lots of trees and grass are dying, and standing water, marsh-like conditions and high water flooding are getting worst year after year. Their property lines are somewhat being altered. They also indicated that throughout the year their back yards are wet and cannot be maintained properly; and that they are getting warning citations from Fire Department and on the other hand, they are told by the City not to disturb the earthen channel. - Walter and I indicated to the affected residents that we will look at every alternative, and added that a concrete channel may not be the best solution, and that no matter what improvement takes place, maintenance is extremely important to keep the system functioning properly. It is important to note that there may be no guaranteed solutions if high water table is migrating thru this area. The evaluation of the problem is as important as the solution, and Walter Skipwith will be investigating this problem in the field and will be reviewing all possible alternative solutions. The result of his findings will be included in the final report. Please let us know if you have any questions. RETAINW.MSD