HAVE THE HIKE-AND-BIKE FOLKS READ U.P. DEED TO COUNTY?

By Juan Montoya
As word spreads that the installation of Eddie Treviño, the newly-elected Democratic Party nominee for Cameron County Judge for the November general election will not happen until the results are in, those of his supporters allied with the group advocating a hike and bike trail for the abandoned Union Pacific Railroad right-of-way, might be feeling a little edgy.
What if a vote is taken by the county commissioners today – or before the November general election – deciding that they will go ahead and build the planned road or a combination road hike and bike trail?
Once a decision has been taken and the plans are drawn up (perhaps they are already for the bidding process) it'll be very difficult, even with a legal challenge, to take the authority the deed gives the county commission to do as it pleases with the 100-foot wide, eight-mile easement that Union Pacific has granted the county.
In Government 101, our teachers inculcated in us that government is a process of give and take and compromise. However, given the stridency demonstrated by some hike and bike trail supporters, compromise may be out of the question and a battle might be in the offing.
That battle, however, has to take place within the parameters of the deed without warranty that the Union Pacific Railroad conveyed to Cameron County. Included in the deed are several restrictions that pretty much tie up the grantee's ability to do much with that stretch of land.
In the deed, conveyed to the county August 5, 2015 and accepted by Cameron County Judge Pro-Tem Pct. 2 commissioner Alex Dominguez, the county "accepts this deed and agrees for itself, its successors and assigns, to be bound by the covenants herein."
Dominguez said that U.P., in trying to shield itself from any liability of people coming into contact with any potential hazardous substance contamination that has accumulated on the land after more than 100 years of its cars and engines hauling dangerous substances and chemicals, was reluctant to yield on the county's wish to include a hike and bike trail option in the deed. Union Pacific did not want it originally but grudgingly accepted its inclusion when the county insisted.
Here are some of those covenants:

1. Union Pacific retains all mineral rights and prohibits such exploration by the county. If any such exploration is performed, it will have to be 500 feet below the surface of the property.

2. The county – within 180 days – agreed to remove railroad trackage and track appurtenances or it would be in a breach of the covenants contained in the deed.

RESTRICTIONS:

1. The county may use the property for hike and bike trail purposes (including, but not limited to, structures constructed on paved ground that support the trail use, such as water fountains, restrooms, and benches), for roadways, or for any other use not consistent with the terms...

2. The property must not be used for any of the following purposes:
1.) residential
11.) lodgings or accommodations (including, without limitation, hotels, boarding houses, dormitories, hospitals, nursing homes,, or retirement centers) or
111.) Cultural, educational, or child-care facilities (including without limitation, schools, kindergartens, day-care centers, gymnasiums, athletic fields, picnic grounds or parks). Notwithstanding any other provisions herein, the term "picnic grounds" and "parks" expressly do not prohibit structures being constructed on paved ground that support hike and bike trail use as described herein.

If the county decides it wants to do remediation ($$$$$$), it is authorized to do it at its own expense to the extent required by the Texas Commission on Environmental Quality. Until the county complies with the TCEQ rules, regulations, ordinances, laws and other requirements, and obtains a Certificate of Completion, it may request the UP release the restriction on the prohibited uses.
When and if it does that, UP may (or may not) issue the release.

And even if the TCEQ does not require remediation, the county cannot just go ahead and use the property as it wishes. Its request to remove the uses restriction has to be accompanied with analytical data and other evidence satisfactory to UP. Only when UP determines, at its sole discretion, that the data is sufficient to warrant unrestricted use of the property will it release its uses restriction.

U.P. made sure it would incur no liability for potential chemical contamination making the transfer in an "as is, where is" condition and states that the county acknowledges that it accepted the land on the basis of its own investigation of the "physical and environmental conditions of the property, including the subsurface conditions and  (it) assumes the risk that adverse physical and environmental conditions may not have been revealed by its investigation."

Likewise, U.P. required that the county release it from "all claims, suits, actions, causes of action, demands, rights, damages, costs, expenses, penalties, fines or compensation whatsoever, direct or indirect, which (the county) now has or which (it) may have in the future on account of of or in any way arising out of or in connection with the property (including, without limitation, "ANY CONTAMINATION IN, ON, UNDER OR ADJACENT TO THE PROPERTY BY ANY HAZARDOUS OR TOXIC SUBSTANCE OR MATERIAL), OR ANY FEDERAL, STATE, OR LOCAL LAW, ORDINANCE OR REGULATION APPLICABLE,...INCLUDING, WITHOUT LIMITATION, THE TOXIC SUBSTANCES CONTROL ACT, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, THE TEXAS SOLID WASTE DISPOSAL ACT AND THE TEXAS WATER CODE..." EXISTING, NEW, OR CHANGES IN EXISTING LAWS THAT WOULD "IMPOSE ON (UP) ..NEW LIABILITIES FOR ENVIRONMENTAL PROBLEMS AFFECTING THE PROPERTY..., REGARDLESS OF ANY NEGLIGENCE OR STRICT LIABILITY OF (U.P.) ITS EMPLOYEES, AGENTS, OFFICERS, SUCCESSORS OR ASSIGNS."

We're not lawyers here, but that seems to pretty much exclude nature trails or any park or structure that is not built on a cap of asphalt. Taking into consideration that millions have already been spent by the county, the state and the federal government to build a boulevard, it is highly unlikely that the county can now decide it will end up repaying the money it has been awarded to plan for the road (even if it is not a toll road).

How about it? Give and take? Compromise?
Or a useless battle which will be governed by the restrictions in the deed that conveyed the property from Union Pacific to Cameron County.

There are more complications. The deed that covers the rail switching yards abutting Fronton Street also came from Union Pacific. That's where the City of Brownsville has agreed to enter into an agreement with Sam Marasco's San Diego, Calif., LandGrant Development's plans for a railroad switch yard deal to build a tax-funded downtown revitalization district. The "facilitator" for this little money maker is none other than Ambiotec's (and United Brownsville cum OP 10.33) Carlos Marin.

According to the presentation, the area envisioned for the project is bounded between East C. Street and East Fronton Street and between South 11th Street and East Fourth and the land bounded by Sam Perl Blvd. and the Rio Grande and between the B&M Bridge and the Gateway Bridge."

The company presented the Feasibility Recommendation Plan (FRP) and the Riverfront and the Railroad Reuse Plan (RRUP). Marasco also made a presentation before the city and the port of Brownsville commissioners. Marasco's plans have been approved at public hearing and incorporated into the Foundational Development Agreement between LandGrant and the city.

But if the restrictions on the property are similar to the county's deed on the right-of-way and are respected, it is hard to imagine hotels, nature trails or any other purposes that might put people (especially the elderly, pregnant women or children) in contact with the potentially contaminated ground.

And if the city agreed to these plans for the switching yards (which will be deeded to the Port of Brownsville by the county eventually) is it willing to put up the big bucks to remediate the potential contamination? Or did it enter the agreement without considering the deed restrictions on the land?