Drainage easement (property question)

[eichh]

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

[herm]

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.....

[The Architect]

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. 

[eichh]

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. 

[MendoDave]

Then I wouldn't sweat it too much.

[ducatiz]

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.

[lauramonster]

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!

[RAT900]

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

[eichh]

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.

[The Architect]

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.

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! 

[akmnstr]

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.   

[ducatiz]

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."

[dropstharockalot]

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.

[B.Rock]

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?

[The Architect]

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.