DD # 1 GIVES COB "LICENSE" TO BUILD BIKE TRAIL IN THE BARRIO: COST TO BE BORNE BY LOW-INCOME RESIDENTS

By Juan Montoya
A 'licensing" agreement between the City of Brownsville and Cameron County Drainage District #1 signed back in September 2013 allows the city to take over some of its drainage easements in the barrio and pass the cost on to low-income Southmost residents.

The drainage district produced the agreement after it was told that the city "is in the process of developing a linear park known as the Rails to trails project, which tracts of real property is located in Cameron County, Texas."

The agreement signed by then-DD #1 manager Carlos Ayala and Mayor Tony Martinez that is "grants a license to Brownsville for the exclusive purpose of establishing a hike and bike trail"...and that the city "agrees to construct and install, at Brownsville's sole expense, and maintain exclusive control over the hike and bike trail on or over the district property in conformance with construction plans which must be pre-approved by the district engineer and be solely responsible for the operation and maintenance of the hike and bike trail on the ...property in which it is installed."

The city also acknowledges that the district mows and maintains its right-of-ways, easement and drainage ditches utilizing tractors and other heavy equipment weighing at least 78,000 pounds. The agreement calls for the district to be held harmless for any damage caused by its personnel or equipment during maintenance, construction, or excavation activities..."

Click on link to read entire agreement: https://mail.google.com/mail/u/0/?ui=2&ik=643034ff4a&view=att&th=1643cf24781fca9d&attid=0.1&disp=inline&realattid=ded03a4d636b4776_0.1&safe=1&zw

In return, the city gets a license to use part of the real property, consisting of fee-owned property, rights-of-way and easements held by the district which either lies adjacent to or is part or is anticipated to be part of a continuum of the...linear park..."

But while the drainage district and the city are protected by the agreement, no one told the property owners who live along the drainage district easements that they would be responsible for removing their fences, sheds, trailers, or other structures that might be located in the district's expanded drainage easements.

It wasn't until June 4 that at least 17 residents along the District's drainage easements on Gloria Street in the Southmost area received letters from the city giving them notice that they were encroaching on the city's easement and that unless they complied with its directive to remove obstructions, they would be cited and taken to court.

This came as a rude surprise to the residents, many elderly and on fixed incomes.

When they bought their properties, they knew there was a 50 to 100-foot easement running parallel to the backside of their properties that was deeded to the drainage district

For years, the district crews used the utility road on the easement to clean and dredge the ditch of weeds and debris. Knowing the limits that the district used the easement, they built their homes, fences, and sheds and parked their trailer homes respecting them.

Now it appears that their once tranquil existence is about to be shattered and that many will end up losing use of their property and structures like sheds and trailer homes. In some cases, their homes will have to be moved smack up to the property lines along Gloria Street with scant feet left for a backyard.

No one ever thought that the easement on their deeds to the drainage district would be turned over for use to the city for a hike and bike trial since their deeds specified it would be used for drainage.

The first inkling the residents had was a letter signed by Drainage District 1 Chairman Ernesto Gamez and Interim City Manager Michael Lopez advising them that the city was "planning the construction and extension of its Hike and Bike Trail System (the Trail) along the plated easement (Easement) held by the Cameron County District No. 1.

"The City of Brownsville and the District currently have an agreement for the purposes of building a Trail on the District's easement," a sentence reads.

"The city discovered a portion of the backyard fence and/or storage unit on your property is encroaching on the easement, making it impossible to build the Trail without the removal of the obstruction of your property. The drainage easement will continue to be utilized for drainage and maintenance purposes.

"As property owner, you are responsible to identify all easement boundaries and corners prior to constructing any improvement, and to make sure that fences and/or other improvements are not built within any dedicated easements. Please remove the obstruction to said easement to ensure proper space for the construction of the Trail within its License Area." (Click on letter to enlarge)

Then, the iron fist in the velvet glove:

"You will be granted 90 days from the date of this notice to remedy the encroachment. Code enforcement officers will begin issuing warnings at 60 days and citations once the 90 days have elapsed from the date of this notice."

Alarmed resident have turned to local elected officials citing the hardship and costs imposed upon them by the city and drainage district to remove fencing, sheds, and in one case even a trailer home that is within the prescribed area.

"There are some elderly people, including one on dialysis, that have no way to comply with this," said one of the Gloria Street residents. "They're on fixed incomes and can't afford to pay anyone to relocate their fences of tear down their sheds. When we first spoke to the city guys, they denied that there was going to be a trial built here."

The distance that the easement reaches into their properties vary since the drainage ditch curves (see graphic above). In some cases, as much as 30 to 40 feet of their properties will be affected. If the land grab goes through, some may lose a large part of their back yard and have a fence a few feet from their homes.

District 1 City Commissioner Ricardo Longoria has promised some of the residents that he will act to protect their interests, but give the personal relationship between him and DD #1 board chair lawyer Ernesto Gamez  his political supporter – may doubt that there is anything Longoria can do on their behalf.

A local real-estate attorney said the licensing agreement was preferred by the city rather than an assignment for the properties because "some were easements, some were rights of way, etc., which is why they made it a license agreement rather than an assignment....it all depends on the actual type of easement or right of way and the particular language in it."

Another said that the "easement or right of way exists for drainage purposes, I don’t think it can be converted to another purpose without either owner permission or some type of declaration by the city. Otherwise, it’s a taking."

The agreement – signed September 11, 2013 – ends September 11 , 2018, with automatic annual one-year renewals after that. The participants agreed to give one another notice a six-month written notice to terminate.

The 90-day period when a citation will be issued after the June 4 warning letter is September 2, nine days before the end of the original agreement.