Authority of Commissioners Court

Similar documents
LEGAL PITFALLS OF RIGHT OF WAY : DELAYS IN ACQUISITION. Darby F. Venza, ROW Attorney

3.004 Regulations and Legal Issues: Associated with Rights of Way

6. The entity proposing to take your property must make a good faith offer to buy the property before it files a lawsuit to condemn the property.

Lesson 5: Encumbrances. Encumbrances. Real Estate Principles of Georgia. Encumbrances. Financial vs. Non-financial

IN THE COURT OF APPEALS OF IOWA. No / Filed February 23, Appeal from the Iowa District Court for Wapello County, Michael R.

COUNTY SUBDIVISION REGULATION IN TEXAS CHANGING TIMES BY: J. GREG HUDSON INTRODUCTION

LIST OF CHAPTERS. Chapter 2 MECHANICS OF A QUIET TITLE ACTION QUIET TITLE ACTIONS AGAINST THE FEDERAL GOVERNMENT

NEVADA EMINENT DOMAIN LAW AND PROCEDURES

` Office of the. 1 Montgomery County Engineer

Case Law and Disputes Over Railroad Right of Way October 23, 2015

DATE ISSUED: 11/5/ of 5 UPDATE 98 CDB(LEGAL)-B

Texas Land Trust Conference March 6, 2015

Road Rights of Way And Obstructions

2/9/2018. Highway Rights of Way: Creation, Use and Expansion. Creation of Highway Rights of Way. Creation of Highway Rights of Way

RESOLUTION NO

Lake Road End Basics, 2016

Drafting and Negotiating Commercial Leases. John H. Hawthorne Partner, Protorae Law PLLC June 1, 2015

IC Chapter 7. Real Property Transactions

Commonwealth of Kentucky Court of Appeals

Park Acquisition Opportunity Fund Grant Rules Adopted by the Metropolitan Council on May 28, 2014 as an Amendment to 2030 Regional Parks Policy Plan

PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and Powell, JJ., and Russell, S.J.

MSPA ( , MCA) (1)(A), MCA A

ARTICLE 2: General Provisions

Pipelines & Eminent Domain THE PROPOSED KINDER MORGAN PERMIAN HIGHWAY PIPELINE OCTOBER 29, 2018 JIM BRADBURY JAMES D.

BLUEPRINT REAL ESTATE POLICY

ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT LAND DIVISION - UNIFORM ENVIRONMENTAL COVENANTS PROGRAM DIVISION 335-5

Bill of Rights. Cities of 5,000 or more population; adoption or amendment of charter

Laws Passed in the 2017 Legislative Session Effective on or Before July 1, 2017

Welcome to the Easement Webinar Call-In Number for audio: Conference Code:

c. elimination as encumbrance 1) express release 2) review of specific facts with underwriter (general description)

ARTICLE XX THE COUNTY BOARD OF MERCER COUNTY, ILLINOIS RESOLUTION AMENDING THE MERCER COUNTY ZONING ORDINANCE SOLAR ENERGY FACILITIES

LEGISLATIVE COUNSEL'S DIGEST

ACQUISITION. Real Property Acquisition For Kansas Highways, Roads, Streets and Bridges

Municipal Procurement

Deed restrictions. Lis Pendens. Easements. Encroachments

NO IN THE SUPREME COURT OF THE STATE OF MONTANA 1996

Summary of Private Streets and Street Easements not Maintained by Bexar County. January 12, 2016

Acquiring Real Property for Federal and Federal-Aid Programs and Projects

SOUTH DAKOTA BOARD OF REGENTS. Budget and Finance ******************************************************************************

REAL ESTATE CONTRACT (SHORT FORM)

CTAS e-li. Published on e-li ( January 21, 2018 Greenbelt

What is a land trust? Their mission is to preserve land via conservation easements and/or acquisition.

In The Court of Appeals Fifth District of Texas at Dallas. No CV

LETTER TO COMPANY - DRAFT CITY OF LONDON LAW SOCIETY LAND LAW COMMITTEE CERTIFICATE OF TITLE (7 TH EDITION 2016 UPDATE)

CITY OF AUSTIN S ORIGINAL PETITION AND REQUEST FOR PERMANENT INJUNCTION

In the Missouri Court of Appeals Western District

Present: Carrico, C.J., Compton, Stephenson, Whiting, 1 Hassell, and Keenan, JJ.

LCRA BOARD POLICY 401 LAND RESOURCES. Sept. 21, 2016

Ch. 253 ENVIRONMENTAL COVENANTS ACT CHAPTER 253. ADMINISTRATION OF THE UNIFORM ENVIRONMENTAL COVENANTS ACT

Ohio Township Association

Mineral Ownership Title Issues

CHAPTER House Bill No. 733

SERVICE PLAN FOR RIVER VALLEY VILLAGE METROPOLITAN DISTRICT[S] CITY OF THORNTON, COLORADO. Prepared [NAME OF PERSON OR ENTITY] [ADDRESS] [ADDRESS]

CHARTER OF THE TOWN OF HANOVER, N.H.

PETITION APPLICATION PROCEDURE

CHAPTER 2 RELATIONSHIP WITH OTHER LAWS.

2005 Texas Local Government Code CHAPTER 422. PUBLIC UTILITY AGENCIES FOR PROVISION OF WATER OR SEWER SERVICE

S14A1055. KELLEY et al. v. RANDOLPH et al. This case arises out of a dispute regarding title to property located in the

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 15, 2007 Session

6/16/2010 SELLING MUNICIP SELLING

Chapter VIII. Conservation Easements: Valuing Property Subject to a Qualified Conservation Contribution

Title Transfer. When the title changes hands, this is called alienation.

PRESENT: Keenan, Koontz, Kinser, Lemons, Goodwyn, and Millette, JJ., and Carrico, S.J.

Party Walls. Institutional Repository. University of Miami Law School. Mark S. Berman. University of Miami Law Review

EXAM SPECIFICATIONS FOR REAL ESTATE LAW

PONDS. A. Definitions.

Grant Agreement - End Grant for the «1» Project

H 7816 S T A T E O F R H O D E I S L A N D

Anatomy Of An Appraisal

H 7816 AS AMENDED S T A T E O F R H O D E I S L A N D

Senate Eminent Domain Bill SF 2750 As passed by the Senate. House Eminent Domain Bill HF 2846/SF 2750* As passed by the House.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

They may not represent the best practice for your Council, which should be determined by consultation between the Council s officers and Auditor.

Certiorari not Applied for COUNSEL

EMINENT DOMAIN Educational Series

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM v. CASE NO. 5D

OFFICE OF REAL ESTATE

Adding Ancient Roads to the General Highway Map Understanding How Act 178 of 2006 and Parts of V.S.A. Title 19 Work An Ancient Road Practicum

WISCONSIN LEGISLATIVE COUNCIL INFORMATION MEMORANDUM

Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ.

IN THE SUPREME COURT OF TEXAS

Chapter 6 Summary Control of Land Use: Control of Land Use

DISCLAIMER: Copyright: 2014

Charter Township of Plymouth Zoning Ordinance No. 99 Page 331 Article 27: Nonconformities Amendments: ARTICLE XXVII NONCONFORMITIES

IC Application of chapter Sec. 1. This chapter applies to each unit having a commission. As added by P.L (ss), SEC.18.

WAYNE COUNTY, UTAH SUBDIVISION ORDINANCE

Annexation Issues and SB 6

"What is the amount of just compensation the [plaintiff(s)] [defendant(s)] [is] [are] entitled to recover from the [plaintiff]

H.329. It is hereby enacted by the General Assembly of the State of Vermont: (a) Land which has been classified as agricultural land or managed forest

Real Estate Law for Planners. APA National Conference New York, NY May 9, 2017

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT JACKSON COUNTY

No January 3, P.2d 750

An easement is an incorporeal hereditament, an interest which does not give the owner right to physical possession.

HOUSE BILL lr1125 A BILL ENTITLED. St. Mary s County Metropolitan Commission Fee Schedule

ELEMENTS OF REAL PROPERTY

~ Indiana ~ Easements and Rights of Way ~ ~ ~ IRWA Chapter 10 Annual Law Day. Indianapolis, Indiana. October 18, Presented by Gary R.

APPLICATION FOR LOT SPLIT

JAMES M. RAMSEY, JR., ET AL. OPINION BY v. Record No JUSTICE CLEO E. POWELL APRIL 16, 2015 COMMISSIONER OF HIGHWAYS

New and renewal leases for shellfish cultivation; termination of leases issued prior to January 1, (a) To increase the use of suitable

Litigation of Surveying Court Cases. Daniel Duyck

Transcription:

-County Roads- A primer for newly elected officials By Robert T. Bob Bass Allison, Bass & Magee, LLP Austin, Texas 78701 1/6/15 1 Authority of Commissioners Court Make and enforce all reasonable and necessary rules and orders for the construction and maintenance of public roads except as prohibited by law. Chapter 251, Transportation Code. Lay out and establish, change and discontinue public roads and highways and to exercise general control over all roads, highways, ferries and bridges in their counties.. Chapter 251, Transportation Code. 1/6/15 2 County Roads-Acquisition of Right of Way 1

Systems of Road Maintenance I. Commissioner-Elected Commissioner Responsible for Road Maintenance- Default system. 251.004 Transportation Code. II. III. Ex Officio System-Does not appear to differ from Default system, but, should be adopted and reflected in the minutes. 252.001 Transportation Code Commissioner System-Appointed commissioner for a road district. More than one commissioner can be appointed. Rarely seen option. IV. Voluntary Unit System- 252.201-Road Superintendent, 2 year term, unless removed for cause. V. Referendum Unit- 252.301-Engineer/Administrator for indefinite term unless removed for cause. 1/6/15 3 Additional Comments Regarding Commissioners Court Authority Individual Commissioner has no authority to establish a county road-but often does. Roads should be classified as 1 st, 2 nd or 3 rd Class Road. (Sec. 251.007 Transportation Code)-but rarely are, or at odds with facts on ground.. Court may change status of county road-within statutory limitations (only higher class). Platting duties do not require acceptance of dedicated roads in subdivision-common error. 1/6/15 4 County Roads-Acquisition of Right of Way 2

Limitations Upon Authority County cannot maintain a private road. Godley v. Duval County, 361 S.W.2d 629 (Tex.App. San Antonio, 1962). County labor, materials and equipment cannot be used on private property. Op. Atty. Gen. JM-200. Vital to have clear authority for maintenance on all roads in County inventory. (Indictments often occur.) 1/6/15 5 Public Roads Belong to State Even if full fee simple title is conveyed to County, the road actually is held in trust for the State. State v. Malone, 168 S.W.2d 292 (1943). WW-870 (mineral interests are leased by the Land Commissioner) Public road does not necessarily equal county road. Public can acquire an interest in road, but county must assume responsibility for maintenance to be a county road. Maintenance by county equals county road. County is not required to maintain any road, and can refrain from the assumption of maintenance. Mere dedication does not require maintenance, but is merely an offer until formerly accepted by the county by minute order, or my actual assumption of maintenance. 1/6/15 6 County Roads-Acquisition of Right of Way 3

A Public Road Remains A Public Road v Even if a previously maintained road is no longer maintained by county, the landowner may not fence the road. v The landowner has no duty to maintain the public road however. v Traffic hazards due to poor maintenance may threaten safety, but County has no right to repair road. v Mere use by school bus is not enough. 1/6/15 7 Attorney General Opinion JC-0503 May 15, 2002 v Absent clear basis for determination of public status, a county commissioners court may not maintain a road that has not been officially established as a public road. v Large counties (over 50,000) the Comm. Ct. may make a self-determination of public status, but smaller counties may not make such a determination. v The County may bring a suit for declaratory judgment. 1/6/15 8 County Roads-Acquisition of Right of Way 4

Legislative Changes of 1981 (Chapter 281, Trans. Code) Counties of 50,000 population or less under law After 1981, these small counties may acquire interest in roads only By purchase (contract of sale and deed) By condemnation (eminent domain) By dedication of fee owner in writing By final judgment of adverse possession under prior law, based on common-law doctrines in effect prior to 1981. Negates prior common law doctrines of prescription and implied dedication to acquire right of way. 1/6/15 9 Prescriptive Rights to Road To establish easement by prescription claimant must show that use of alleged servient estate was open, notorious, hostile, adverse, uninterrupted, exclusive and continuous for period of more than ten years, predating 1981. Davis v. Carriker, 536 S.W. 246. See also Sec. 251.059, Texas Transportation Code. Maintenance by County is some evidence of public use, but must be established by clear evidence of uninterrupted use prior to 1981. Prescriptive right applies to beaten path of road as well as sufficient land to maintain the road, i.e. maintenance easement. Allen v. Keeling, 613 S.W.2d (Tex. 1981) 1/6/15 10 County Roads-Acquisition of Right of Way 5

Implied Dedication Similar to Prescription, but less demanding standard. Required evidence of affirmative acts of landowner (longstanding use by public, maintenance by county) that would lead to implied dedication. There should be something more than mere acquiescence, i.e. request for maintenance, fencing, signage, etc. 1/6/15 11 Why Was Chapter 258 Necessary? Counties under 50,000 cannot acquire rights by prescription after 1981 Proof necessary for establishing prescriptive rights prior to 1981 dying out with time. Cost of litigation prohibitive. Mechanism of establishing presumptive right of prescription necessary. 1/6/15 12 County Roads-Acquisition of Right of Way 6

What the Bill Did-Now Expired Provided a method for County to establish a legal claim to long maintained roads. Required County to Prepare a Map of County Roads. Provide Notice to Land Owners affected by proceeding. Provide Opportunity to Protest Road Status Imposes a Period of Limitations (2 yrs.) 1/6/15 13 Limitation/Litigation After the Road Map is adopted, the public right to use a road, and the right to spend public money on road is conclusively established. Party wishing to contest inclusion of road on map must file suit in a District Court not later than the second anniversary of date road map is adopted. Burden of Proof upon Party after two year limitations expire. In addition, 16.003 and 16.024 of Civil Practice and Remedies Code establish 2 and 3 year periods of limitation that may apply to road disputes. 1/6/15 14 County Roads-Acquisition of Right of Way 7

Tax Abatement Private right, title or interest, other than minerals, held by a person owning land burdened by road established by this procedure is exempt from ad valorem taxation by any taxing entity. (Must apply for exemption). If County ceases to maintain a road in future, exemption ceases and ad valorem taxes may be assessed after reversion of road maintenance. County must provide an Order from County stating that maintenance has ceased. 1/6/15 15 Express Dedication Person making dedication must have legal ability to do so; fee simple title. Dedication must serve a public purpose. Owner must make an express offer of dedication. County must accept the offer, usually by Order of the Commissioners Court, but at least by actually taking up maintenance. 1/6/15 16 County Roads-Acquisition of Right of Way 8

Acceptance of Dedication Mere dedication imposes no duty to maintain upon County. Langford v. Kraft, 498 S.W.2d 42, (Tex.App. Ft. Worth, 1973), Comm. Ct. v. Jester, 199 S.W.2d 1004 (Tex.App.-Dallas, 1948). Acceptance should be reflected in an Order which specifically describes the road to be accepted for public maintenance. 1/6/15 17 Sub-Standard Subdivision Roads Chapter 253 of Transportation Code provides for County authority to improve roads in sub-division. Election of Property Owners required. Owners can be assessed for initial costs. But, County thereafter responsible for road maintenance. 1/6/15 18 County Roads-Acquisition of Right of Way 9

Subdivision Regulation Chapter 232 Local Government Code. Mere platting of a public road does not obligate County to maintain road. Acceptance of Plat does not mean acceptance of roads dedicated in plat. Separate acceptance necessary, and that acceptance should be very specific. 1/6/15 19 Chapter 232, Local Government Code Plat required if: Land is outside of municipality. Divided into two or more parts. If a subdivision of the tract or lots provides for streets, alleys, squares, parks, or other parts of the tract intended to be used by the public, or for the use of purchasers of the lots. Plat must be filed of record in accord with law. 1/6/15 20 County Roads-Acquisition of Right of Way 10

Exceptions to Plat Requirements Land does not provide for streets or other common areas. Land use for agricultural purposes as defined by Article VIII, Section 1-d, Texas Constitution. Land is sold to family members. Land contains more than ten (10) acres, and contains no streets, etc. All lots are sold to veterans. 1/6/15 21 Subdivision Regulations May require standards for roads and drainage. May require a bond to insure compliance. May not require a higher standard than standards county imposes upon itself in the construction of new roads. May require groundwater standards if ordinance is already in place. 1/6/15 22 County Roads-Acquisition of Right of Way 11

Opening a New Road Residents of a precinct may apply for a new road, or a change in an existing road by petition: Eight property owners required for new road. One property owner may request a change of route. Dedication still required of landowner burdened by road. Petition should specify beginning and ending points of road. Notice of Intent required before filing petition with Commissioners Court. 251.052, Transportation Code. 1/6/15 23 251.054 Repealed, Must Now Use Eminent Domain Condemnation Procedures Chapter 21, Property Code Procedures followed after receipt of Petition Disclosure of planned use to owner Owner my disclose prior appraisals Bill of Rights Statement County Court at Law or District Court venue Special Commissioners appointed by Court to determine damages 1/6/15 24 County Roads-Acquisition of Right of Way 12

Condemnation Award Property owner is entitled to compensation for: Value of land taken by road, plus. Decrease in value to remainder of land bisected by road. Award of Damages appeal able, but opening of road is not. 1/6/15 25 Abandonment of Road, per se Abandoned by law when use so infrequent that property owner encloses road under fence for 20 years. (May not include a gate) Does not include road to cemetery. Access road necessary to reach adjoining property. 1/6/15 26 County Roads-Acquisition of Right of Way 13

Abandonment of Maintenance Commissioners Court may, by Order, cease public maintenance of road. No statutory requirements for notice and hearing, but recommended. See Section 251.051 Transportation Code for conditions applicable to discontinuation of a road. (vacated or unused for three years, alternative route). 1/6/15 27 Closing Public Road A road established by jury of view must be closed by notice and hearing. Other types may be closed without notice and hearing. A property owner may not enjoin closure unless: He owns property which abuts the road, or. Road being closed provides the only access to his property. Others may seek damages arising from closure, but not injunction. 251.058 Transportation Code. 1/6/15 28 County Roads-Acquisition of Right of Way 14

Utilities and the County Right of Way v Utilities Code provides authority to use public right of way for gas ( 181.005), electric ( 181.041), telephone ( 181.082) and cable television ( 181.101) lines. v Water Code provides authority for public and private water supply corporations to use right of way. ( 49.220) 1/6/15 29 County Cannot Deny Use of Right of Way to Public Utility v Authority to designate location of utility (not telephone). v If County required to relocate a Utility, prior notice to the Utility is require. Timelines differ by Utility. v Dig Statute ( 251.156 Utilities Code) permits routine maintenance that does not exceed 24 inches depth. Replacing culverts, etc. may be routine, but it is recommended that any deep maintenance follow notice to State Notification Center. 1/6/15 30 County Roads-Acquisition of Right of Way 15

Examples of Sub-Standard Utility Installation 1/6/15 31 Steps If Demand for Damages Made 1 st : Carefully document the location: Photos with a frame of reference. (Yard Stick) 2 nd :Obtain legal counsel 3 rd :Formally Deny claim, with a copy of 251.156 Local Government Code and photos of insufficient installation provided to utility. Legislation will be proposed this session to address this problem. 1/6/15 32 County Roads-Acquisition of Right of Way 16

Where to Get More Information Attorney General s Office- 1-800-252-5476 Brooks, Vol. 35-36, Texas Practice Series Texas Association of Counties 512/478-8753 1/6/15 33 Or Call Allison, Bass & Magee, LLP-Austin, Tx Contact: Allison, Bass & Magee, LLP 1-800-733-0699 Voice 512/480-0902 Fax Law@Allison-Bass.com 1/6/15 34 County Roads-Acquisition of Right of Way 17