ORDER NO. 30798 ABANDON, VACATE AND DISCONTINUE 15 FT. RESERVE STRIP AND PORTION OF CHURCH STREET Came to be heard this the 14th day of April, 2008, with a motion made by Commissioner Williams, seconded by Commissioner Baldwin. The Court unanimously approved by vote of 4-0-0 to: Authorize the abandonment, vacating and discontinuance of the 15 ft. reserve strip (Vol. R, Pg. 212) and that portion of Church Street that lies within the Tomm property, located in Precinct 2. a v~g ~' ~.Jb COMMISSIONERS' COURT AGENDA REQUEST PLEASE FURNISH ONE ORIGINAL AND TEN COPIES OF THIS REQUEST AND DOCUMENTS '` TO BE REVIEWED BY THE COURT. MADE BY: Leonard Odom, Jr. OFFICE: Road & Bridge MEETING DATE: April 14, 2008 TIME PREFERRED: SUBJECT: (PLEASE BE SPECIFIC): Consider, discuss, and take appropriate action to abandon, vacate and discontinue a 15 ft. reserve strip (Vol R, Pg 212) and the portion of Church Street that lies within the Tomm property, Pct. 2 EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON) NAME OF PERSON ADDRESSING THE COURT: Leonard Odom ESTIMATED LENGTH OF PRESENTATION: 10 minutes IF PERSONNEL MATTER -NAME OF EMPLOYEE: Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter 551 and 552, government Code, is a follows: Meeting scheduled for Mondays: 5:00 P.M. previous Tuesday THIS REQUEST RECEIVED BY: THIS REQUEST RECEIVED ON: (~ All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be appreciated and contribute towards your request being addressed at the earliest opportunity. See Agenda Request Rule Adopted by Commissioners' Court. regl tomm property ,~~,'f E 0 y ~ Oo~~ ~ Kerr County Road & Bridge 4010 San Antonio Hwy Kerrville, Texas 78028 TO: COMMISSIONERS COURT FROM: LEONARD ODOM DATE: April 4, 2008 RE: Abandon, Vacate & Discontinue a 15 ft. Reserve Strip and the Portion of Church St That lies within the Tomm Property, Pct. 2 There is a 15 ft. reserve strip filed in Vol. R, Page 212 that goes from Swayze Street in Center Point to the river that is totally within Ms. Lynn Tomm's property. Church Street (a County maintained road) continues 157.68 ft. into the property and terminates. Ms. Tomm has asked the Court to abandon, vacate & discontinue both the easement and that portion of Church Street past the Swayze Street intersection. By doing this it will make the 3 parcels totaling 6.5 acres a contiguous lot and she can gate the entrance to her property. Road & Bridge has no need for the reserve strip and feels the traffic flow would be safer without the dead end portion of the road. Th church Tomm r ., .. ~, ~,,.. KERR COUNTY ATTORNEY REX EMERSON COUNTY COURTHOUSE, SUITE BA-lO3 7OO MAIN STREET KERRVILLE, TEXAS 78028 February 27, 2008 County Judge and Commissioners RE: February 25'~ Agenda Item 1.2/ Easement & Road Abandonment Dear Judge and Commissioners: The issue as I understand is two fold: whether the fifteen foot easement is to the County, and if so, the proper procedures for disposition abandoning the easement. The 1895 warranty deed attached as backup "reserves 15 ft. off of this lot on eastside 382 ft. long for a street for the of Center Point Texas." Based on the information available it is my opinion that the fifteen foot street reservation is a public roadway easement. it is also my understanding that Ms. Tomm owns all real property associated with the 15' easement and the requested abandonment of approximately 158 feet of Church Street. The general provisions for sale or lease of real property owned by the County are contained in Local Government Code Section 263. There are three statutes addressing the disposition of abandoned county road right of way. The statutes are Local Government Code Section 263.002, Local Government Code Section 272.001, and Transportation Code Section 251.058. I know this will amaze you, but there are substantial irreconcilable conflicts between the statutes. First, I compared 263.002 and 272.001 of the Local Government Code. The A.G. in 1969 determined that, ~`as between the statutory predecessors of these two statutes, the statutory predecessor of section 263.002 prevailed. See AG Op. No. M-524. The opinion pointed out that 263.002 is special law that pertains to counties and thereby takes precedence over section 272.001. I then compared Transportation Code section 251.058 to Local Government code section 263.002. Bath statutes apply to the disposition of abandoned county roads and while 263.002 states that the County must sell the interest, 251.058 states that once a county abandons its interest, title automatically vests in abutting property owners. Thus they are irreconcilable and we must look to the later enacted statute as our guide. While 263.002's predecessor was enacted in 1953, section 258.058 was not enacted until 1989. Section 251.058 ofthe Transportation Code, being the later enacted statute, thus prevails. MAIN NUMBER (830) 792-2220 HOT CHECKS (830) 792-2221 Fax (830) 792-2228 Website: http://www.co.kerr.tx.us/attorney Transportation Code Section 251.051 establishes the general authority of Commissioners Court to establish and close r©ads including discontinuing, .abandoning, m~ vacating or altering them. A unanimous vote of the commissioners court is required to close, abandon, or vacate a public road or alter a public road, except to shorten it from end to end. Transportation Code Section 251.058 addresses Closing, Abandoning, and Vacating Public Road. a) A property owner may not enjoin the entry or enforcement of an order of a commissioners court, acting at request of any person or on its initiative, to close, abandon, and vacate a public road or portion of a public road unless the property owner is entitled to an injunction because: 1) the person owns property that abuts the portion of the road being closed, abandoned, and vacated; or 2) the portion of the road being closed, abandoned, and vacated provides the only ingress to egress from the person's property. b) Title to a public road or portion of a public road that is closed, abandoned, and vacated to the center line of the road vests on the date the order is signed by the county judge in the owner of the property that abuts the portion of the road being closed, abandoned, and vacated. A copy of the order shall be filed in the deed records of the county and serves as the official instrument of conveyance from the county to the owner of the abutting property. c) This section does not deprive a person whose property abuts the road at a point other than the portion of the road being closed, abandoned, and vacated of a right to seek compensation for damages caused by: i) any depreciation in the value of the property; or 2) any impairment to the property owner's right of ingress to or egress from the property. Considering that the 158' of Church Street and 15' easement lead to the river, I would recommend that the County check the subdivision records and "eyeball" the i5' easement to ensure that adjoining property owners have not relied on this river access. Should you have any questions or concerns please give me a call. ex Emerson '~~ ~~°~ ~a~ wiz ~ - - i FIELD NOTE DESCRIPTION 0.203 ACRE Being a tract of land containing 0.203 acre situated in the J.W. Laren Survey No. 48, Abstract No. 224, Kerr County, Texas; being composed of the extension of Church Street north of it's intersection with Swayze Street, and 15 foot wide reserve strip of record in a deed of record in Volume "R", Page 212 of the Deed Records of Kerr County, Texas; and being more particularly described by metes and bounds as follows: BEGINNING at a'/z" iron rod found at the intersection of the north right of way line of said Swayze Street and the west right of way line of said Church Street for the southwest corner of the subject tract; said iron rod being the southeast corner of a certain 1.59 acre tract called Tract Two in a deed of record in Volume 1647, Page 461 of the Official Public Records of Kerr County, Texas, and the south end of the west line of said 15 foot reserve strip; THENCE with the east line of said 1.59 acre tract, with the west line of said 15 foot wide reserve strip and the west line of said Church Street, N.00°35'30"W. at a distance of 187.42 feet passing a'/z" iron rod found on the high bank of the Guadalupe River, and continuing, for a total distance of 364.18 feet to an »n+rarked point at the south waters edge of the Guadalupe River for the northwest corner of the subject tract; THENCE with the waters edge of said Guadalupe River, and with the northerly line of the subject tract, N.62°17'59"E., a distance of 17.03 feet to an unmarked point for the northeast corner of the subject tract; said point located at the north end of the east line of said 15 foot wide reserve strip, and being the northwest cornea of a certain 6.50 acre tract called Tract One in a deed of record in Volume 1647, Page 461 of the Official Public Records of Kerr County, Texas; THENCE with the east line of said reserve strip, and with the west lines of said 6.50 acre tract, as follows: S.00°35'30"W., a distance of 214.11 feet to a'/z" iron rod found for a reentrant corner; now leaving the east line of said 15 foot wide reserve strip, and continuing with the west lines of said 6.50 acre tract; S.89°24'30"E., a distance of 19.94 feet to a 6" fence corner post found for a northeast corner; and S.00°08'38"E., a distance of 157.68 feet to a'/z" iron rod set for the southeast corner of the subject tracty THENCE cxossing said Church Street, S.89°51'22"W., a distance of 36.96 feet the POINT of BEGINNING, and containing 0.203 acre within these metes and bounds. Prepared this the 30h day of January 2008, and being a companion to a Plat of Survey dated May 6, 9 and 11, 2005. All iron rod set by this firm on this survey are '/z" re-bar with orange plastic caps stamped "GUADALUPE SURVEY CO". fy Charles Digges, RP.L.S. Texas Registration No. 4061 08011001@nas/doc/rik 2.63 9CRES VOL. 95, PG. 39, D.R.F.C. N 62°17'59"E 17.03' NO PORK F WNO OR SEA ®FAGE OF W A'FER R~~ER PE U~~~ U GSA QS~ O QO\~~ ~~ P ~~- / ,, ~ - ~ ~ 2 ACRCS ~7 VM. "0". PG. 191, T D.R.K.C. \IT' S\R ®\81.4'Y m 17 ON N\GH BPNK OF n / _~:' e S 89°24'30"E `d RNER ',. S 7 9.94' 1.59 ACRES V{I 1 TRACT TWO o :~ ~~ x- VOL. 1647, PG. 461, N r + O.P.R.K C "~ . . p B' FCP ENO OF FF34CE Z .. :p A /5'a JR2' RESERVE STRIP I.~. o ACCORDING TO VOL 'R", ~ PC. 212, D.R.K.C. I IY ~~ m x I p ' m V 1 % P.0.6. \Iz F\R ~~ i ~ .v ~___ __ N BS°46'16"i 19~a ~- 1 \IT' S\R _ I ~~x-- S 89°51' 22"W I I II 36.96' x I ~x _~ x ACRE STry1(E / / ~ / / %~/,, ' . / .~ REVMS•-. 04 Cl0 FENCE ~d I.SA' n.1tl,~WATER EO.'E ~/ . / I I 4Q " ~ ~ 1~6- T 6.`p R~ ~~ i a