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WPOA-BMA Settlement Agreement

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WPOA-BMA Settlement Agreement Powered By Docstoc
					WPOA-BMA Settlement Agreement
Background & Summary of Key Provisions

Background
1912-1917 1925 Medina Valley Irrigation Company acquires rights in Medina Lake flood zone through condemnation and voluntary conveyances BMA incorporated [Peaceable possession by private landowners] 2000-2001 Nov. 2002 March 2003 June 2003 Oct. 2003 BMA discusses ―how to get its property back‖ BMA sends threatening letters to 20 Wharton’s Dock families BMA files suit against Wharton’s Dock landowners BMA proposes Medina Lake Policy stating that BMA owns Contour Zone, intends to regulate land use and impose fees BMA contracts with URS for $16,000 to audit Bandera County and Medina County septic permits, begins compiling information on landowners

Background (cont’d)
Jan 22, 2004 March 2004 May 13, 2004 May 27, 2004 June 14, 2004 June 17, 2004 Sept. 10, 2004 Nov. 24, 2004 Dec. 1, 2004 WPOA files suit against BMA BMA Board sends letter to irrigators: ―The District’s most valuable asset is its ownership of the land comprising Medina Lake‖ President of BMA explains that BMA owns all the lakefront property, calls occupants squatters Hearing, BMA concedes venue proper in Bandera County, Judge Ables reserves judgment on whether individual WPOA members must join WPOA files Third Amended Petition, 26 individual Members join the lawsuit Judge Ables orders parties to mediation First mediation session BMA Board approves settlement WPOA Board approves settlement

WPOA-BMA Settlement Agreement
Summary of Key Provisions

EXCHANGE OF DEEDS
To the Participating WPOA Member: • Perpetual Easement, granting ownership rights and guaranteeing rights of use and control over Contour Land and Lakefront To BMA: • Deed Without Warranty, subject to and reserving Perpetual Easement

WHO IS ELIGIBLE TO PARTICIPATE
• Any WPOA Member who:
– Is a qualified member of WPOA, as determined by WPOA – Is a ―waterfront property owner‖ – Signs the Settlement Agreement by March 1, 2005

• Land does not qualify if it is:
– Used primarily for commercial purposes, or – Being held for the primary purpose of subdividing into more than 3 tracts for sale to the public

PERPETUAL EASEMENT
• Ownership of estate in land forever • Runs with the land, inures to benefit of heirs and assigns • Any future conveyances by BMA are subject to the Perpetual Easement • BMA gives no warranty of title (no promise of good title) • BMA gives no guarantee that third parties will not assert claims to the land • Titles intended to be insurable (but BMA gives no guarantee) • Form: Exhibit B(1)

DEED WITHOUT WARRANTY
• Deeded to BMA, subject to and reserving Perpetual Easement • Member gives no warranty of title (no promise of good title) • BMA not liable for damages for flooding up to Elevation 1084 • Form: Exhibit B(2)

DEEDED LAND, CONTOUR LAND AND LAKEFRONT Deeded Land = the land described in the landowner’s deed
– No affect on lands above Elevation 1084

Contour Land = Deeded Land below Elevation 1084, if any Lakefront = the land between the landowner’s lakeside boundary and the edge of the water

LAKEFRONT BOUNDARIES
• If lakeside boundary at or near Elevation 1072: – Extend side lot lines straight into the Lake until they reach the water’s edge, another boundary line, or the centerline of the channel • If lakeside boundary at or near Elevation 1084: – Extend side lot lines to nearest point on Elevation 1072, then straight into the Lake until they reach the water’s edge, another boundary line, or the centerline of the channel • Modified where necessary to allow lake access: – Lines must be modified to prevent blocking a waterfront property owner’s access to the Lake (survey or metes and bounds must be attached to deed)

RIGHTS IN LANDS BELOW ELEVATION 1084
Rights extend to water’s edge no matter how far:
• RIGHT TO OCCUPY, USE, ENJOY & BUILD (subject to restrictions on buildings below Elevation 1084) • RIGHT TO TRANSFER, DEVISE, LEASE, RENT, MORTGAGE AND ENCUMBER the land (but Contour Land and Lakefront may not be severed from Deeded Land) • RIGHT TO ACCESS MEDINA LAKE regardless of the level of the Lake • RIGHT TO USE WATER FROM THE LAKE without waste for domestic, livestock, landscape and garden purposes • RIGHT TO FENCE AND EXCLUDE OTHERS (subject to restrictions on fences) • RIGHT TO NON-COMMERCIAL USE OF THE LAKE AND LAKEFRONT FOR RECREATIONAL PURPOSES, including but not limited to fishing, boating, swimming and diving

OBLIGATIONS RE: LANDS BELOW ELEVATION 1084 • Member must maintain Contour Land and Lakefront in good condition and free of pollutants (Exhibit C) • Structures below Elevation 1084 must not be a hazard to navigation as determined by TDPW • Docks and piers installed or replaced after 10/15/04 must comply with agreed-upon guidelines (Exhibit E)

EXHIBIT C
Definition of ―Pollutant‖– Tex. Water Code §26.001(13)
―Pollutant‖ means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, filter backwash, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into any water in the state.
The term: (A) includes: (i) tail water or runoff water from irrigation associated with an animal feeding operation or concentrated animal feeding operation that is located in a major sole source impairment zone as defined by Section 26.502; or (ii) rainwater runoff from the confinement area of an animal feeding operation or concentrated animal feeding operation that is located in a major sole source impairment zone, as defined by Section 26.502; and (B) does not include tail water or runoff water from irrigation or rainwater runoff from other cultivated or uncultivated rangeland, pastureland, and farmland or rainwater runoff from an area of land located in a major sole source impairment zone, as defined by Section 26.502, that is not owned or controlled by an operator of an animal feeding operation or concentrated animal feeding operation on which agricultural waste is applied.

EXHIBIT E DOCK/PIER CONSTRUCTION GUIDELINES
1. A boat dock or pier must be located in front of the property belonging to the dock’s owner, unless the owner has permission from another landowner to locate the dock or pier in front of that landowner’s property. 2. A boat dock must be located as close as practicable to the shoreline. A boat dock or pier must not create a hazard to navigation as determined by the Texas Department of Parks and Wildlife or successor agency. 3. A boat dock or pier must be constructed with environmentally safe materials. Containers that previously stored pesticides, herbicides, or any other toxic chemicals may not be used in the construction of a boat dock or pier. 4. A boat dock or pier must be fabricated of materials manufactured or suitable for marine use, and must not use metal barrels for flotation. 5. A boat dock or pier must be securely anchored to prevent its detachment and becoming a floating hazard during times of high water. 6. A boat dock or pier must have a durable tag or label permanently affixed that states the owner’s name and address. 7. The water side(s) of a boat dock or pier must be well marked by reflective devices.

BUILDINGS AND STRUCTURES BELOW ELEVATION 1084
• Building = ―a structure having a roof and intended for shelter, housing or enclosure of persons, animals or materials‖ • No new buildings to be built below Elevation 1084 • Buildings existing or under construction as of 10/1/2004 are grandfathered • List of non-commercial structures permitted below Elevation 1084 (no prohibition of structures) • Restriction on fill and excavation below Elevation 1084

GRANDFATHERED BUILDINGS BELOW ELEVATION 1084
• Existing or under construction as of 10/1/2004 • ―Under construction‖ = ―substantial preparations to build, such as drawing of architectural plans, obtaining building permits, or site preparation‖ • May be ―completed, repaired, maintained, restored, renovated, or replaced, but not enlarged so as to increase living space.‖
– But ―a building that is not permanently affixed to the earth so as to prevent the structure from becoming dislodged during a flood‖ may not be replaced

• Member must provide written description and photo or video of building by 3/1/2005 • Member must provide survey of buildings below Elevation 1084 by 9/1/2005 (if survey not provided, Member pays reasonable cost of obtaining survey to BMA)

LIMITS ON FENCES
• No new fences built below Elevation 1072 (except for electrical fences up to 36 inches in height for animal containment) • New fences built between Elevation 1084 and Elevation 1072 must either be electrical or built mainly out of rock, brick, concrete, stucco, mortar or masonry • Right to exclude subject to governmental powers to enter and inspect (e.g., TCEQ’s right to inspect for pollutants adjacent to Medina Lake)

STRUCTURES ALLOWED BELOW ELEVATION 1084
A Member may build any of the following structures below Elevation 1084 for private use, not commercial or public use (unless potential hazard to navigation according to TDPW):
• • • • • • • • • • • • • • Patios BBQ pits Fireplaces Walkways Gardens Arbors Curbing Walls Driveways Parking lots Decks Docks Ramps Watercraft launch/storage systems • • • • •
• • • • • • • •

Bulkheads Piers Swimming pools Sport courts or fields Benches or picnic tables (covered or uncovered) Gazebos Lighting Rain catchment systems Solar panels Windmills and wind power units Fences (as permitted) Structures to prevent erosion Landscape irrigation systems

FILL AND EXCAVATION BELOW ELEVATION 1084
Member may not fill or excavate below Elevation 1084, except to the extent necessary to:
– prevent erosion – restore soil removed by floodwaters after 10/1/2004 – remove soil or debris deposited by floodwaters – secure docks or other allowable buildings and structures – build upon the property

LAKEFRONT ASSESSMENT
• $1 per linear foot of lake frontage per year
– Amount fixed, never increased – Due on April 15 – If not received by May 1–notice of past due assessment – If payment not received within 30 days of sending notice, BMA may sue to recover • Rights not conditioned on payment • No contractual lien, no mandatory arbitration

INSPECTION OF SEPTIC SYSTEMS
• Members must provide copy of inspection of septic systems to county agency and BMA by 9/1/2005 • Only applies to systems located in whole or in part below Elevation 1084 • Member must correct non-compliance within 60 days • BMA has 6 months to seek a re-inspection if: – Inspection was not performed in a proper manner by a qualified inspector, or – Report is not accurate or reliable • Prevailing party recovers cost of re-inspection

BOAT DOCKS, PIERS AND RAMPS
• Fee exemption: One dock, pier and/or ramp per lot are exempt from any fees or other charges if owned or installed by Members on or before 10/15/2005 – Applies to private use, not commercial or public use – Applies to replacement docks, piers and ramps – No agreement to pay fees – Member must maintain proof that exemption applies (such as a postmarked photograph or notice filed on or before 11/1/2005) • Dock/Pier Construction Guidelines: Any dock or pier installed or replaced after 10/15/2004 must be constructed and maintained in accordance with agreed-upon guidelines (Exhibit E)

INDEMNIFICATION
If a person is injured while using the land of a Member, and BMA is sued for damages, the Member agrees to indemnify, hold harmless and defend BMA, but:
– Does not apply if and to the extent BMA was at fault – Does not apply if the person injured is an agent or employee of BMA who came upon the land without the Member’s consent

PROPERTY TAXES
• Members continue to pay property taxes as assessed by the tax assessor
– But if there is an assessment of taxes against BMA caused by the Agreement, Member will pay or reimburse. – BMA responsible for property taxes assessed against it if liability not caused by the Agreement (e.g., taxed because property not within BMA boundaries).

DISPUTE RESOLUTION
• Notice of violation required
– A party (BMA or Member) must give notice of violation within 6 months of the date the party knew or should have known about the violation – Party alleged to be in violation has 30 days to cure

• Mandatory non-binding mediation • Mandatory binding arbitration, limited to:
• Re-inspection of septic systems • Correct length of lake frontage for purposes of Lakefront Assessment • Payment or reimbursement of property taxes

– Parties can submit other issues to arbitration by agreement – If no agreement on arbitrator, court will appoint

• Prevailing party gets attorneys fees and costs

MEDINA LAKE COORDINATING COMMITTEE • Advisory body of 2 each from WPOA & BMA • Liaison and forum for communications, administration of Agreement, coordination of clean-up and other lake improvement projects, etc. • Complies with OMA and PIA to extent practicable

MISCELLANEOUS PROVISIONS
• Rights and obligations are permanent—Rights and obligations run with the land and bind and insure to the benefit of heirs and assigns (applies to any transferee through sale, gift, inheritance, etc.) • No effect on lands above Elevation 1084—Nothing in Agreement defines, limits or expands rights in lands above Elevation 1084 • Adequacy of property descriptions—Intention that all property descriptions satisfy the Statute of Frauds—court directed to reform or modify a property description if necessary • No admission that BMA has extraterritorial power—No admission that BMA has power under chapter 51 of the Texas Water Code or other law to regulate water quality, land use, or other matters outside its territorial boundaries • Titles insurable—Parties’ intend that estates in property be insurable, but BMA makes no guarantee • Venue clause—For purposes of court disputes, venue in the county where the land is located

CLOSING PROCEDURES
• March 1, 2005 Deadline for Members to join and sign settlement • April 1, 2005 Deadline for WPOA to rescind approval if fewer than 150 WPOA Members participate • April 10, 2005 Consent judgment must be presented to Court • April 15, 2005 All closings must be completed (unless extended)

KEY IMPLEMENTATION DATES
Oct. 1, 2004 Grandfather date for buildings existing or under construction below Elevation 1084 Members may fill below Elevation 1084 to restore soil removed by floodwaters after this date. Docks and piers installed after this date must be constructed and maintained in accordance with agreed-upon guidelines WPOA provides signatures of Participating WPOA Members Members with buildings below Elevation 1084 will provide written description and photo or video WPOA may rescind approval of the Agreement by this date if fewer than 150 WPOA Members participate Consent judgment must be presented to Court for signature All closings must be completed by this date (unless extended) Lakefront Assessments for 2005 due Surveys of buildings below Elevation 1084 due Inspection reports for septic systems below Elevation 1084 due Last day for parties to dispute length of lake frontage Grandfather date for exemption from fees for one dock, pier and ramp per lot Members must file notice of exempt docks, piers and ramps

Oct. 15, 2004 March 1, 2005 April 1, 2005 April 10, 2005 April 15, 2005 Sept. 1, 2005 Oct. 15, 2005 Nov. 1, 2005

Frequently-Asked Questions

Where did BMA get its property interest in the Contour Lands?
• In the 1910’s and 1920’s, landowners sold the land to the Medina Valley Irrigation Company, BMA’s predecessor • Purpose was to avoid paying flood damages • Mostly pursuant to condemnations • Deeds differ, but all convey some type of interest to BMA • For example, see Wright Deed

Wright to MVICO
Volume D-1, Page 353 October 22, 1912
… H.C. Wright and M.J. Wright, his wife, and Granville Wright and Dora Wright, his wife … for and in consideration of the sum of Five Thousand two hundred ($5200.00) DOLLARS, cash, to us in hand paid by the Medina Valley Irrigation Company … have granted, sold and conveyed and by these presents do grant, sell and convey unto the said THE MEDINA VALLEY IRRIGATION , COMPANY, all of those certain tracts parcels of land lying and being situated in the County of Bandera, State of Texas, and being more particularly described as follows: [Survey No. 30]

Wright Deed—Habendum clause
To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging, unto the said MEDINA VALLEY IRRIGATION COMPANY, its successors and assigns forever.

Does BMA have the right to regulate land use around Medina Lake?
• BMA does not have power to enforce antipollution statutes outside its boundaries (Wallace case) • BMA claims to have powers under Texas Water Code Chapter 51 based on its property interest in the Contour Lands • Issue of whether BMA has extraterritorial powers under Chapter 51 has not been decided.

Chapter 51 Powers
Section 51.121 A water control and improvement district … may provide for: (1) the control, storage, preservation, and distribution of its water and floodwater and the water of its rivers and streams for irrigation, power, and all other useful purposes;

…

(4) (5)
(6)

the navigation of its coastal and inland water; the control, abatement, and change of any shortage or harmful excess of water; the protection, preservation, and restoration of the purity and sanitary condition of water within the state; ….

Chapter 51 Powers (con’t)
§ 51.122. ADOPTING RULES AND REGULATIONS A district may adopt and enforce reasonable rules and regulations to: … (2) (3) (4) preserve the sanitary condition of all water controlled by the district; prevent waste or the unauthorized use of water controlled by the district; regulate privileges on any land or any easement owned or controlled by the district;

….

Chapter 51 Powers (con’t)
§ 51.127. ADOPTING RULES AND REGULATIONS A district may adopt and make known reasonable regulations to: … (4) regulate residence, hunting, fishing, boating, and camping, and all recreational and business privileges on any body or stream of water, or any body of land, or any easement owned or controlled by the district.

Title Insurance
• We expect that titles issued will be legally insurable (do not yet know how exceptions will be worded) • We are providing information about the Settlement Agreement to title insurers • We are developing a list of title insurers who will insure titles • List will be posted on the website

Cost of Legal Document Preparation
  You are free to use any attorney you wish $500 flat fee for preparation of Perpetual Easement and Deed Without Warranty Additional legal services at standard hourly rates



Surveys and Septic Inspections
• WPOA is assembling a list of surveyors and septic system inspectors who are familiar with the requirements of the Settlement Agreement • Lists will be posted on the website

What if BMA conveys its interest to another entity?
―Any conveyance by BMA of its interest in Contour Land or Lakefront, including any transfer by BMA of its rights to any successor or assign, shall be subject to a Member’s Perpetual Easement.‖

If I already have a survey of my land below Elevation 1084, do I need to get a new survey?
Existing survey is acceptable if it shows location of buildings below Elevation 1084.

Will I need to pay a surveyor to draw my Lakefront boundaries?
• Always preferable to have a survey, but: • If standard methods set out in the Agreement are used, we don’t believe you will need a survey to have an adequate property description. • If standard method is not used, you will probably need to have a survey.

What will happen to landowners who don’t join the Settlement?
• Land titles and rights to use land will continue to be subject to challenge by BMA • Our hope is: The Settlement Agreement will become a template for the future (but individual landowners may not be able to negotiate equally favorable terms)

How can I join?
• Make sure your WPOA membership is current • Read the Settlement Agreement carefully and make sure you understand it (consult legal counsel if necessary) • Notify the WPOA as soon as possible and provide the requested information • Sign on to the Agreement, preferably no later than February 1, 2005

Stephan B. Rogers srogers@hfhslaw.com (210) 734-3444


				
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