The back of my property ends in the middle of a creek. The creek has a 60' drainage easement as stated on our survey. The city wants to put a bike path along the creek which would require them to cross the creek to our side because its the only flat spot along it and go through my yard which would require them to remove a lot of my trees. My question is how do I get ahead of this to stop it they got funding from the state but they are waiting for winter to do their final survey due to the amount of poison ivy. Im not sure if I should get a lawyer or wait till they have the final plans done, im prety sure I need someone else to get my back rather than me telling them I dont want them to distroy my wooded property. If it matters the creek goes over its banks whenever we get a heavy downpour which I believe would create an erosion issue where ever the culverts are placed. Dont they have to change it from a drainage easement to something else to build in it? Any ideas or suggestions?
Thanks
You need to talk to a lawyer or (not sure how it works where you come from) a Licensed Surveyor. If it's a drainage easement it is only for the purposes of maintaining drainage. If they want to build a cycle path they need a right of carriageway easement or something to that affect. Don't take this as gospel if you are in America, but definitely see someone.
Speak to a local surveyor or Civil Engineer first (they cost less) then going to an attorney. Make sure they are not working for the city first. Dig up your deed, the easement should be noted on it or attached to it. Also dig up any surveys you have of your property.
The easement may be very specific; the easement is only for drainage purposes, access to the river, etc. Or it may be vague which might allow them to do anything.
Keep in mind there's always eminent domain. But we won't go there. ;)
I have all of the original plans and they say drainage easement. Would I go to the firm that I got the plans from originally just to get verification? Once I verify that what can I do with that information?
If your backyard is large enough;
1) obtain a micro-brewery permit.
2) set up a biergarten next to the bike path
3) sell 'Radler' by the Maß (1 liter glass mug)
http://en.wikipedia.org/wiki/Shandy#Radler (http://en.wikipedia.org/wiki/Shandy#Radler)
QuoteThe Radler ("cyclist") is a Biermischgetränk that has a long history in German-speaking regions. It consists of a 50:50 or 60:40 mixture of beer and German-style soda pop or lemonade.
The invention of the Radler has been widely attributed to the Munich gastronomer Franz Xaver Kugler in 1922. However, the recipe for the Radler had been mentioned as early as 1912.[1] Nowadays the Radler is drunk not only in Bavaria but in all of Germany, Austria, and the Czech Republic.
The ones I tried in München that were made with lemonade, were actually quite good, 7-Up or Spite not so good to me.
stand on ur property with a shot gun and a keg and randomly pop shots off while playing polo with dirt bikes.
Call EPA....tell them you saw rare-looking critters in the creek....Demand a Federal Environmental Impact Study...that should gum up their plans for a few centuries
I have no clue what the codes are but I thought you had to allow them put public walkways on your property? In my city there are some houses that don't have sidewalks in front of their house because the people didn't want it so the sidewalk stops halfway down a block. Kinda odd...
If you really don't want the path there, let them build their bike path, then put a pine tree next to it once they're done. The roots will tear that make the beast with two backser up and they're have to waste a shitload of money to fix it and give up. :P
Quote from: RAT900 on November 25, 2010, 10:09:14 AM
Call EPA....tell them you saw rare-looking critters in the creek....Demand a Federal Environmental Impact Study...that should gum up their plans for a few centuries
You could always hire a Botanist to find some rare & endagered
whatever but beware that it doesn't come back to bite you inthe butt later on when you want to further improve your property. On second thought don't call a Botanist you will live to regret it. Same goes with the EPA. Go with the Surveyor, they wont charge you to talk about your situation, and they have to know property law anyway.
I sent an email to the county conservation folks and the Army core of engineers pleading the erosion and disrupting the natural flow of water case hopefully someone responds back.I like the EPA idea that area is down in an area I would never change I just mow it, the deer use it more than I do its just the fact I paid for it and now someone wants to distroy the peaceful wilderness I paid to own. If it doesnt work out and it does go in I will wreak havok upon it.
Don't say I didn't warn you about the EPA.
If I dont hear back from the others I will look into them (epa). Mean time I will get a copy of the easement from the recorders office so its all official if someone does decide to help out. Ive worked with the dude from the engineering firm many times so I will pick his brain as well for ideas, I dont think he can do anything but he may know who might.
Easements have a purpose.. But it also depends on the type of easement.
i.e... "in gross" "appurtenant" or "prescriptive"
The language will not say, but the type will be defined by the language used.
If the easement states for drainage purposes, that sounds like an easement in gross -- are you paying taxes for that portion of the land? or does the city do it?
Without seeing the description and language it is hard to tell what kind you have, but if it is limited in language to "drainage" then there is little room to wiggle. They will have to take the other property from you to use it for another purpose.
Municipal drainage easements are not uncommon, esp in suburban areas, but they are completely limited to the specific purpose of providing drainage and nothing else. Obviously property access to repair or inspect is included, but certainly not putting in a bike path!
You need a lawyer.
Another thought... How big is this creek? It sounds like you don't have a back fence to your yard. I would imagine that the completion of this path would cause you to want a fence due to infringement on your privacy.
I think a lot of your issue depends on what state and county you are in and what the local laws are. Talking with a surveryor first is the best thing to do. Then see what the local land use laws are. If you are classed as residential and they want to build on your property then there will be issues. If you live in the country and the drainage easement is part of a wetlands then you may be protected by federal laws. But that being said it usually makes your property valueless when its time to sell as no one can do anything with it.
When I owned my farm we had a somewhat wet area of a couple of acres and it was overgrown with berry bushes. To preserve that area I designated it a sanctuary and approached the national wildlife federation. The area proposed provided food ,shelter ,water and a place to raise young which are the requirements. As soon as it was agreed they sent me a nice tin sign saying that was now a wildlife area and that kept folks away. You may also want to do an environmental impact study on the area which is expensive.
I am a master gardener and like all plants and the such and protecting wetlands is a very important thing for plants(especially native plants which are becoming more and more extinct as we encroach on land and use it incorrectly)You could always say as it is so wet ( if it is) you have geese there on their way through to starbucks in Canada as well as other wildlife.The animals were their first and in my book we have to share the land and be good stewards of it.. Another thing to do is contact your local extension service office ( master gardeners) and explain to them that you have a wetland area and garner some info about land use protection( they will not get involved politically) but they will identify plants and usually where they are located at the local office there is usually local watershed folks that will be happy to give you some info. The extension service is run by volunteers funded by your tax dollars and your local state university.
www.wsu.edu/hortsense (//http://). I think thats the link for Wa State where the Master Gardener programme originataed. WSU was also the first land grant university in the nation. WSU Rocks!
Best wishes with your conservation project.
BGB.
Architect, good call I stopped into the surveyors office who did my work and they had a copy of the original deeds and plats for my subdivision (3 houses). They were cool enough to give me a copy and according to them I can they cannot come on my property as the way it reads unless I give them permission or they buy it from me. So good news there, they mentioned to talk to a lawyer just to cover my bases so that call was put out but nobody was in today hopefully I hear from them tomorrow or Monday. Hopefully I can put this out of my mind soon cuz it gets me pissed of everytime I think of it.
Thanks guys
be prepared for the possibility that they will "buy" it from you, which is another way of saying that they will use imminent domain to take the land that they need, and compensate you in some way.
i am still in the middle of a similar issue with the state i live in. they took some land to create better road drainage.....
It's very rare to have an open ended or vague easement. Easements typically have a use associated with them and tend to be specific; to be used for access by so ans so, drainage, utilities, natural buffer, etc.
Before speaking to an attorney try to get as much of the facts as you can. I would try to find out how serious the City is about putting in a bike path. It might be legit or might might be the wish of a few citizens. Any of the City's plans should be available to the public.
Well here's the long version of the story. About 3 years ago at a car show I met the developer that we going to put houses on the other side of the creek he mentioned how him and the city were going to put in a bike path only on his side. Now 3 years later I read in the paper they were applying for funding from the state to put the bike path in but was described as being on my side of the creek. A few weeks later they got the funding to totaling $600,000. So I went down to the village hall and set up a meeting with the engineer and some guy from the village. I found out he developer has gone under so I believe what ever permission or agreement they had is over. So the engineer is telling me how its going to go from that side to this side and back again and they will only remove "scrub trees" not any of the large oaks unless they are leaning. Anyway I mention how "my" plans call it a 60' drainage easement and they just shut up the dude from the village seemed oddly surprised and said they have to look that up. What is bothering me is did they not know that was a drainage easement? Perhaps it wasn't a drainage easement on the other side of the creek due to the steepness of the property (2:1 slope). And when the developer went under they figured they would see if I would grant the same permission? But like the surveyor I spoke to yesterday said they cannot put the bike path in that easement the original paperwork has no amendments it is what it is. The survey also said if I refuse them they could take it before a judge but it costs them a bunch of money and most villages wont for something so small especially if there are other ways to do what they are trying to do they said Judges are often on the land owners side unless there are no alternatives.Which there are we have no sidewalks in front of the property. So in a nut shell they had some sort of plan applied for funding got funding meanwhile the plans fell through so now they need a new plan.
Then I wouldn't sweat it too much.
You need to sweat it. If they already have plans then they are going to try. You need to talk to an attorney.
You can send a letter and provide a copy of the easement and indicate that you wil get a c&d and have them in court if they try to violate the termms of their easement.
Do not expect them to just wake up and obey the document. Once its built it becomes a fact on the ground. And far hardee to undo regardles of the easement's language.
very good defense. Now for offense:
take pictures of the property. Note the size of the trees. Our local laws way that if someone takes down another's tree, they pay xnumber of dollars per boardfoot according to the diameter of the tree at a prescribed height. I hope you don't need the information, but it's a good leverage tool when the revised plans come along.
Good luck!
hmmmmm a paved path into a stand of trees on your property....
I see trash, litter, dumped mattresses and lots of broken beer bottles and crushed cans in your future if this goes through
I spoke to the lawyer yesterday and that wasn't encouraging at all. He also said if I pay him to speak on my behalf that will send up red flags and the fight may begin due to their unlimited resources. So from what I got from it is dont fight the bully or they will hurt you worse than if you just sit there. I made another plea to the village guy and wrote a polite letter asking if there is anyway to go on the unoccupied side and that we really dont want it to go through our yard and so on. Maybe the guy will listen to reason but im pretty sure their going to get whatever it is they want. I will wait to hear back from the village guy but I may need to speak to a differant lawyer. Does anyone know if they sell poison ivy seeds? I tried a search but didnt come up with anything.
I feel for you man. It wouldn't hurt to speak to another attorney. Try a real estate attorney. I wouldn't be surprised if he doesn't give you the same recommendation.
Hiring an attorney is a red flag for sure, everyone involved will behave differently and the city will immediately get their attorney's involved. The bad part is that they have an unlimited legal budget. Do you? I would hire an attorney to consult you on your next moves but try to keep his or her name out of it until they think it's best to get involved. The attorney may have a different approach, they are the experts and that's what your paying for. We have run into an attorney whose interest was his next car payment. They are rare but do exist, get recommendations.
Worst case scenario (keep in mind i do not know your local rules and regulations, that's where the attorney comes in,) the city keeps moving forward with the project, you fight them, they get tired of fighting, the city deems the project necessary for the public good and they buy the land from you. The right-of-way will make it easier for them to buy the property since you can't use the land anyway.
Best case scenario, you meet with the planners and have a nice civilized meeting, show them reasons why it's better not to come onto your property, explain to them the wonderful natural views the riders will have from the other side of the river if your property is not disturbed, the legal nightmare of the easement, etc and they build the path across the river.
Quote from: RAT900 on November 29, 2010, 11:23:32 PM
hmmmmm a paved path into a stand of trees on your property....
I see trash, litter, dumped mattresses and lots of broken beer bottles and crushed cans in your future if this goes through
RAT, you're such a New Yorker!
Easements are a pregnant dog. I have easements on a portion of my land that dates back to the 1940s. The language was so vague that I couldn't determine where it was on the ground. In the end I got a lawyer and that helped a great deal.
I understand how you feel about the trail but I'm going to present an alternate argument. Ignore or consider if you wish. When I lived in Anchorage the city also had plans to build trails along creeks and the Cook Inlet frontage. The trail on the inlet was to pass through some of the most expensive properties in the city. The land owners fought the trail but lost. The result is a high use trail and increased recreation opportunities and land values of the land owners. The natural vegetation along the trails are maintained now by the city and volunteers. The trash problem also did not materialize due to the efforts of volunteers.
Unless you have the worst attorney in the world and a judge who is on the take, a "Drainage Easement" cannot reasonably be construed to allow the holder of the easement to use it for another purpose. Period.
I am an attorney and I would take this in a minute and ask for a summary judgment based on the language of the easement. Unless there is case law in your jurisdiction which basically allows cities/counties to ignore easement language, there should not be an issue.
"Your honor, I move for a summary judgment on grounds that this "Drainage Easement" states specifically what its purpose is and the city's proposed use cannot reasonably be construed to have been included as a function of "drainage." The language says what it means and means what it says."
Quote from: The Architect on November 30, 2010, 06:02:28 AM
The bad part is that they have an unlimited legal budget.
Uh, no. The muni I work for budgets about $500K per year for the entire Town's legal expenses - police, liability in our parks, ordinance enforcement, general advice regarding ordinance writing and procedures... out of an 11mil / year total budget, it's not small but it's by no means unlimited. I routinely have to make decisions as Planning & Building Director as to what I will and won't pursue based on what I think it will cost to fight it out in court. Munis are also typically risk-averse... if it looks like we could lose (or even if it looks like there will be a bad fight that we'd win), I usually have to back off. So don't fear the "bully" on the basis of the perception of unlimited funds.
General Comments:
Ducatiz is on target with his easement discussion. The rights assigned to that easement are listed somewhere â€" either on the deed itself, or established by a larger county- or state-wide statutory act (ex, here in Indiana not every plot plan will include the full easement text of a typical Regulated Drainage easement, but each County establishes minimum default Regulated Drainage easement language that applies in the event of language being omitted from the plot plan). That's the critical point here, as it determines what the muni can and can't do at this time. From what you posted, it sounds like the muni got ahead of itself and assumed a right of access it didn't have. Negotiating that right of access pro-actively may be a better alternative than forcing them to chase the access through Eminent Domain â€" you can sell the right of access subject to restrictions (no lighting, no benches, no fountains, no trash baskets, tree removal only w/ your consent, etc…).
Eminent Domain is a real possibility. If they go that route, they will eventually buy your property for the average price as determined by three independent appraisals. The only thing that really stops an E.D. land acquisition is a loss of municipal willpower… lawsuits drag the final outcome out but eventually fail, so if E.D. comes into play your only hope is to get the politicians to stop the process. If E.D. does happen, make sure you have legal counsel â€" lots of munis do play fast and loose with how they apply E.D. rules. I've seen property owners left with ownership of sliver parcels that are essentially useless because the muni was careless or inept. Remember, you're dealing with the government here â€" we'll do the bare minimum necessary to keep our cushy jobs and leave a big mess for you to clean up if it means less effort on our part.
Forget about the EPA or some other group riding in to the rescue. If the muni has obtained Fed funding, then they've had to subject the proposed trail layout to all sorts of environmental analysis already. The Feds shouldn't have committed $$$ if there was a rare species, Indian burial ground, wetland, etc… That should all be resolved before the grant is handed out. You can go down that road and comb the grant app with a magnifying glass, but don't expect much in return for your efforts.
I'd work on the history of the development approval across the stream â€" most of the time, when a developer is seeking an approval from a Muni and offers up a trail connection (or other public improvement) as part of the approval process, the requirement for the provision of that improvement runs with the land. The Muni maintains an entitlement regardless of the solvency of the developer… depending on the phase of the process (ie: was it something discretionary, like a zoning change, or 'ministerial', like a subdivision plat?). So while the developer may be kaput, the Muni may still have a claim to the access to that land. You may have some luck convincing the Muni that they'd rather initiate E.D. proceedings against an insolvent developer (who really can't fight back) that already committed to access as opposed to a solvent, rabble-rousing tax-paying property owner that fully intends to litigate. If the developer did commit to the access as a part of the entitlement or development process, it could ultimately lessen the cost to the muni as well â€" property that's committed to a public use through a valid public process will sometimes appraise for less (as it no longer has full value as developable land).
Finally, I'd ask you to consider if you really want to prevent the trail from crossing your property. Central Indiana has several very successful rail-to-trail projects that have demonstrated a positive impact on the property values of abutting properties (ex: The Monon Trail, The B&O Trail). Concerns about higher rates of property crime due to the presence of the trails have proved unfounded over time, with the properties not seeing any increases after trail construction (if you're looking for the way criminals get to your property… it's the same road you drove there on). Concerns about litter and dumping have proven to be unfounded as well, and we've seen retailers and community organizations adopting stretches of trail for maintenance and beautification purposes. Our trails here have become the anchors of cultural and nightlife districts, and offer an alternative means of transportation linking the suburbs to the central city â€" there's a dedicated cycle-commuter contingent that hauls ass south from Carmel to Indy every day that it isn't snowing, making for fewer cars on the road. Me personally, I'm about three or four years away from having a trail from my house located west of Indy all the way to the Indianapolis Motor Speedway â€" I'm really looking forward to my dad and kids and I pedaling from our place to IMS for MotoGP (hey, no DUI tickets on the trail!) . I'm all for you enjoying your property undisturbed, but you may be in a position to give up a little so that a lot of people can gain quite a bit.
Quote from: dropstharockalot on November 30, 2010, 07:34:59 AM
Forget about the EPA or some other group riding in to the rescue. If the muni has obtained Fed funding, then they've had to subject the proposed trail layout to all sorts of environmental analysis already. The Feds shouldn't have committed $$$ if there was a rare species, Indian burial ground, wetland, etc… That should all be resolved before the grant is handed out. You can go down that road and comb the grant app with a magnifying glass, but don't expect much in return for your efforts.
Many times projects will get federal funding without NEPA clearance. Getting the NEPA clearance is such an ordeal that they'll need the funding first.
What I'd do - aside from notifying them that it's a drainage easement - is check the status of the environmental clearance. Is it in the General Plan as such? If not they'll need a specific environmental document for the project, with bio, noise, etc studies, and public meetings. It wouldn't be ministerial and shouldn't be a negative declaration if it's actually in a creek bed, it's almost guaranteed to be Waters of the US and subject to Corps of Engineers oversight. See if it's been circulated.
I'm surprised they're putting it along a 2:1 slope. That's asking for lots of walls.
I'm guessing what happened was that the developer's plans falling through eliminated a dedication they were going to have to make to the municipality as a condition of subdividing and that's why they're looking at your side.
Honestly I'd be kind of stoked though. Trails are cool. Make them build you a fence and call it good maybe?
Quote from: dropstharockalot on November 30, 2010, 07:34:59 AM
Uh, no. The muni I work for budgets about $500K per year for the entire Town's legal expenses - police, liability in our parks, ordinance enforcement, general advice regarding ordinance writing and procedures... out of an 11mil / year total budget, it's not small but it's by no means unlimited.
We know the city's legal budget is not unlimited but compared to the average homeowner who doesn't plan for a legal expense every year it feels unlimited.
The village guy wrote back saying him and the engineer will walk the route this Thurs. to see what they can do. I'm going to keep an eye on the village meeting bulletin board to attend any meetings. The conservation guy wrote back and said he can come out to the site for $75. I will hold off on that until I find out if the village will do me the favor of going on the other side. Don't get me wrong I run on the I&M trail once or twice a week but my property is a 2.5:1 slope and the only flat spot to play volley ball or have a gathering without people tumbling down the hill is right where they want to go. To be honest I will use the path if it goes in but this was my picture perfect dream house built the way I wanted it and I developed the land the way I wanted it and I just don't like the thought of someone molesting it. So hopefully he will write back on what they came up with on Friday, he seems like a good guy but the engineer came off as a arrogant ass. Is it illegal to bribe a city person or is it just illegal for them to accept it? Just curious. Meanwhile I will be looking into the things you guys just suggested to see if they are doing things proper.
You should quickly have a septic tank put in right next to the proposed path. And a huge LPG tank...
Quote from: eichh on November 30, 2010, 03:55:06 PM
Is it illegal to bribe a city person or is it just illegal for them to accept it? Just curious.
Both.
However, rules about what an elected official can and can't accept are pretty darn loose.
The village guy wrote me back and said they came up with 3 ideas. First is to put it on the other side of the street in front of my house which would be awesome. Second is to put it in my front yard which is not as good but still fine and the third is to go in back where it may go on my side or the other. He said they are submitting the proposal to IDOT for approval. What puzzles me is that Illinois is about bankrupt but they gave out something like 88 million for bike paths and parks and what not. But they gave the money to our town and the town had no set plan on how it was going to use it wtf? Im pretty sure I couldnt tell the village or a bank that I want to build a house and im going to just wing it. They almost denied my occupancy permit because I didnt have my slop sink bolted to the floor in my garage bathroom it took me promising him I would as soon as I unpacked my tools. Im at least relieved more options are on the table.
link to spending: http://www.dot.state.il.us/opp/2010ITEPProjects.pdf (http://www.dot.state.il.us/opp/2010ITEPProjects.pdf)
The $ was probably a Federal grant and it was a use it or lose it kind of deal.
Let your local gov't know what option you'd prefer, and if they choose that option you'd support it. I have a friend who's a civil engineer for a local gov't and they'd rather work with the land owners than have to fight them every step of the way. Stay involved, and get regular updates on the project.