Does the City Deal Honorably?
City Hall Shows History of Arrogance
by Alden Nellis
I must tell a personal story to illustrate City Hall's history of arrogance.
Several years ago, the City asked landowners along Buffalo Creek to donate land so they could build a walkway along the creek. After the donation the city could do what they wanted to with the land. We own two parcels of land adjoining Buffalo Creek, on the South side of the Westhill on Walnut Street (directly across from Hulen Park), and on the North side in the 600 block. We declined to donate land.
To make a point perfectly clear, our property extends to the middle of Buffalo Creek. The City nor any other entity has any easement whatsoever along the creekbank.
Then the City decided to build the walkway along Buffalo Creek anyway. They published and distributed maps showing the walkway site, including a walkway along our property and our neighbors' property on the South side. They stated publicly in meetings that all the property owners were in agreement, even enthusiastic about the project. At this point they had not contacted us, nor I believe the other property owners south of Westhill. I learned of it by attending 4B meetings. The other property owners were unaware of it until I informed them.
I spoke publicly at 4B meetings stating that we and the other property owners would not grant easements. Then-mayor Tom Hazlewood told me privately that if we didn't grant an easement, they would take the property by eminent domain. We declined to give an easement. So did the other property owners on South Walnut south of Westhill.
During this publicity campaign by the city saying they were going to build a walkway along the creek along South Walnut, trespassers increased on our land along the creek. Sometimes we would come home to find people in our yard within a few feet of our house. Items were stolen, people brought lawn chairs and fishing equipment, drank beer and camped on our creekbank in open view. It was obvious they thought it was public land. This was in large part the city's fault. Then our house was burglarized and we suffered a substantial loss. The thieves came in the back way along the creekbank.
Our neighbors on the South end of Walnut along the creek erected a fence down to the water's edge to try to keep trespassers off. Mysteriously, city equipment kept knocking down the fence, opening up the entire creekbank to public traffic.
Assistant City Manager Adam Miles stated publicly in a 4B meeting that they had decided to make the walkway going East and West along the bridge on the South side of Westhill. He told the 4B board that he would meet with us and make the agreement to our satisfaction. He scheduled the matter to come before the City Council in about 3 days. I waited for his call that never came. I called him and he didn't call back. I drafted a document telling the City Council it was not OK with us, that they had never proven they had an easement, and that we were opposed to a tourist walkway along the side of our yard.
Mr. Miles apparently told the Mayor and City Council that we were in total agreement. When it came before the Council and I spoke against it, Mayor Ted Reynolds and Council members were surprised that we opposed. The Council voted to approve the project but instructed the City to explore alternate sites for the walkway, such as on the North side of the bridge where the City already owns the property necessary for the walkway. Mayor Reynolds and Councilman John Warren both came to me privately and told me the City was not going to bowl over us on this issue, that they would work something out that suited us.
We submitted an Open Records Request to the City asking for a copy of any easements they had along our property. They did not provide copies of any easements along the side of our yard. We resubmitted the request, and also requested some other documents. They furnished the other documents, but not copies of any easements. (By law, a government entity has 10 days to provide documents requested in Open Records requests.) I called Adam Miles several times and he did not return my calls. Finally I caught him in the office. He told me that he had given me copies of everything he was going to give me. He said he did not have copies of an easement. I asked him to send me a statement to that effect. He informed me that there is no way he was going to send a statement like that.
In a copy of the contract between the city and the contractor was a map showing that the City claimed it had an 8 foot easement along the bridge.
At that point, I had a choice of filing a complaint with the Attorney General against the City for violating the Open Records Act by not responding to the request. That is still an option.
Meanwhile, we placed Posted - No Trespassing signs at three places on our property, easily visible, and outside the City's alleged 8 foot easement. We sent the City a Notice of Posted Property, and specified that the Notice was to the City and to any and all of its employees and/or contractors. We sent a copy of the Notice to the contractor who was awarded the bid for construction of the walkway.
This contractor later failed to perform and the City cancelled the contract.
The 4B Board did not discuss the design of the project further. I have no evidence that they ever considered an alternate route.
Nothing happened until Monday, October 23, 2006. I went home at around 3 p.m. to find two surveyors tramping all over our property putting up survey stakes. I asked them for a business card. They purported to work for Recer & Fox, Inc. contracted by the City. My neighbor across the street also witnessed the surveyors trespassing.
Not only did they survey the City's purported 8 foot easement along the bridge running East and West, but they also surveyed a section along the creekbank running North and South on our property. This is a section where the City has never even claimed to have an easement.
I sent formal NOTICE to the City and to Recer & Fox that they had committed Criminal Trespass according to Texas Penal Code 30.05 and sent them a copy of the law. I Noticed them that we would file criminal trespass charges against the City and any employees or contractors who violated our property rights and came onto the property. I personally delivered the Notices to Mayor Ted Reynolds and City Manager Chester Nolen at the City Council meeting October 24. My delivery was verbally noted in "Citizens Comments" at this meeting. I sent Notice to Recer & Fox by certified mail.
On Thursday, October 26, my wife Micki was driving along Westhill and saw a backhoe working on the ground on the North side of Westhill along the creek. There was a pickup and a two-man construction crew watching. She stopped and asked them for a business card which identified the lead man as J. Perez of General Contractors of North Texas LLC. She then told them that the property on the South side of Westhill was posted, that the City had Notice of the posting, and that if they came on our property we would file criminal trespass charges against them.
Mr. Perez called the City and put City Engineer David Escovel on. Mr. Escovel in essence told her that the City would call the police and that construction would continue. She told him that the City had already committed criminal trespass on October 23 by sending two surveyors who tramped all over our land, and that there were two witnesses to it. She left after repeating to both Escovel and the construction supervisor that criminal trespass charges would be filed if they put their bodies or their equipment on our land.
I took Mr. Perez a copy of the Notice to the city and a copy of the Penal Code 30.05 for criminal trespass.
When I went home I saw a man with a bobcat type loader parked in front of our place looking at the electric pole which sits squarely in the middle of the city's purported 8' easement. There was no way he could get his bobcat inside the city's purported easement without entering through our land in plain sight of the No Trespassing sign. My neighbor across the street witnessed two construction workers looking at the pole for a long time. The workers eventually left with the bobcat driven by one, and later I saw the bobcat operator talking to Mr. Perez on the North side of the bridge.
Later on the 26th, the contractor pushed dead logs, brush and tree trimmings that were under the bridge onto our property. At 7:30 a.m. on the 27th, I called the Cleburne Police Department and asked them to come investigate the brush. Officer L. M. Wright came and had the contractors remove the brush and informed them that they could not come on our property or throw anything onto it or have their equipment on it. Officer Wright emphasized to them that they would be charged with criminal trespass if they did.
Does the City deal honorably?
First of all, the City has never produced a copy of an easement along the bridge adjoining our yard. Second, no one from the City has ever requested or held a meeting with us to work anything out to our satisfaction. What the City has done is violate the Open Records laws, proceed with their plans regardless of ours and other property owners' rights, and hire at least two firms to work on our land, apparently telling them it was okay to ignore the Posted signs and No Trespassing signs and go on our land.
The City purports to have an 8' easement along the bridge adjoining our land. They plan to build a 6' sidewalk within that 8'. We have been told by more than one construction person that there is no way they can build a 6' sidewalk within an 8' space without coming on our land.
I will point out that the City's arrogant actions started long before I recorded the Librarian and Chester Nolen in regards to the banning of the Cleburne Eagle from the Library. Possibly Nolen's undisguised anger at me after I put the lie to the City's claims that they never banned the Eagle speeded up the events, but the plans and pattern of arrogance were long in the making before this incident.
Does the City deal honorably? Next time they may decide to put a recreational walkway through your yard.