HOUSTON — On a Friday night in August, Diane and Ted Simpson got home from work to find a certified letter from the Harris County Flood Control District notifying them that a portion of their backyard was in a public right of way.
The Houston Chronicle reports a fence and an old brick shed, both of which came with the Spring Branch home they bought in 2001, sat on the other side of the line, and they had until the middle of September to remove them. If they didn’t, the district would do it for them — with or without their permission.
The couple took a week off from work to build a new fence 30 feet closer to their house and spent $1,500 to hire a company to tear down and haul away the shed.
In the coming years, thousands of other Harris County property owners will be getting their own certified letters telling them to remove their encroaching structures as the district begins to work its way through hundreds of construction and maintenance projects, many of which are related to the $2.5 billion flood infrastructure bond passed last year. If they ignore the order, the district may remove the structures for them. And if the district does the removal, depending on what it spends, it could take the property owner to court to recover its costs, thanks to a new state law meant to streamline the process and clarify the district’s property rights.
The Flood Control District is prepared to spend what is expected to be hundreds of millions of dollars each year on improvements to the county’s drainage systems and conveyance channels following a voter-approved flood bond that came a year after Hurricane Harvey inundated more than 200,000 homes and apartments in Harris County. The projects will require removing encroachments so the district’s contractors can access the channels. Structures in the right of way must be removed permanently so the district can reclaim the sites for future access.
“We’re not the encroachment police, but when we do projects — and we are doing an exponentially higher number of projects now than this time last year and way more than two years ago — we enforce encroachments as needed,” said Matt Zeve, deputy executive director of the Flood Control District.
These encroachments are common, but usually are not discovered until a project is about to start. It is only then that many owners realize there are mistakes in the survey that show a property’s boundaries and easements or that they’ve built in a restricted area.
“Most people don’t do it with malicious intent,” Zeve said. “They do it because they just see some open land and want to claim it to make their yards nicer or bigger or what have you.”
Still, confusion and conflicts are certain to occur.
Landowners could argue that the encroaching property predated the easement, said Matt Festa, a professor specializing in land use and property law at South Texas College of Law Houston. And property records could be unclear and hard to track.
“I’m sure there have been situations where a landowner looks down at the bayou, nothing’s there and (they) sort of assume they can do stuff with it. But that’s very different when a landowner does own the land but somewhere on the books there’s a right of way never previously enforced,” Festa said. “With all these projects going up, it could be surprising to landowners who in good faith did not realize what the rules were.”
For engineering and maintenance projects planned over the next six months, the district has identified roughly 400 encroachments through onsite inspections and surveying. Over the next decade, that number is expected to grow twentyfold. That includes at least 4,000 encroachments for new projects and another 4,000 for routine maintenance, such as mowing.
Even more properties could be flagged as projects move forward, Zeve said.
The district aims to spend as much as $400 million each year on these improvements, Zeve said, up from $60 million annually pre-Harvey. Of the 241 projects on the books for the coming years, work has started on more than 180, many of which are still in the design phase.
Among the projects the district is undertaking are upgrading channels to improve stormwater conveyance and removing sediment and silt from bayous and creeks. Each bond-funded project is expected to be substantially underway within the next decade. And each can come with dozens of encroachments.
In addition to the bond projects, new encroachments are being identified as the district conducts maintenance. The Simpson’s house, for example, backs up to an enclosed sewer system that was built in 1985 but hasn’t been regularly maintained, up until now.
The couple knew the day would come when they could lose some of their yard. When they bought the house in a private transaction, the owner told them the district would come back to reclaim it someday. But after almost two decades, they had gotten used to the extra space. They had a large garden and plenty of room for the dogs they used to foster.
Many of their neighbors also had encroachments. Some still have their deconstructed fences piled in heaps in their backyards.
The Simpsons got two estimates from professional companies to rebuild their fence. The lowest was $1,600 so they decided to do it themselves.
“We’re all just very average working people. We don’t have all this money to fix things we didn’t do in the first place,” Diane Simpson said.
Over the past six months, the district has mailed 80 encroachment letters — 31 related to bond projects and 49 for maintenance.
While fences are the most common types of encroachments, larger structures are sometimes built in the right of way. The district has identified several swimming pools behind homes that back up to a drainage channel in a northwest Houston neighborhood. Officials declined to cite their exact locations because the owners have not yet been notified.
The notice sent to Candy Palazzo arrived less than a month after she and her family closed on their two-story, four-bedroom home in the city of Spring Valley Village. The certified letter came in the mail saying their backyard fence encroached on a flood control easement.
Their stone and stucco home _ one of the newer houses in their Memorial-area neighborhood of newbuilds and ’50s-era ranches _ backs up to a concrete-lined creek that’s slated for repairs early next year, part of the district’s stepped-up efforts to prevent flooding in the wake of Harvey.
The Palazzos, who moved here over the summer from Colorado, didn’t know their fence encroached when they bought the house.
“After being here three weeks, I found out I may have to move my whole back fence,” Palazzo said.
Putting further pressure on homeowners is a law that went into effect Sept. 1 allowing the Flood Control District to sue to recover the cost of removing an encroachment. It also authorizes a court, if a suit is brought by a property owner over the district’s removal of property, to deny a request for relief against the district and to issue a ruling allowing the district to remove the property.
House Bill 3782, authored by Rep. Sam Harless and sponsored by state Sen. Carol Alvarado, sought to address the costs and times associated with encroachments. Gov. Greg Abbott signed the bill into law in June.
Though pricey — it can cost an estimated $2,700 to complete a fence removal and as much as $14,000 to remove a swimming pool or other permanent structure, according to district data — litigating with the district can result in hefty legal bills.
Zeve said the district won’t bring cases to court recklessly and will always try to resolve problems before they escalate. Currently, he said, there is no set amount that would trigger a lawsuit, though “it would have to be more than a fence, for example.”
Should a case go to court, the home or business owner could assert a claim of what’s called adverse possession, a legal principle where one party occupies land that another party owns and claims it as their own after a period of consistent use.
“It would be the obvious defense for them to assert if they could prove it,” Festa said.
The district spends about $1.8 million a year to remove encroachments, costs that can be passed along to property owners. There are indirect costs too. Property values can fall if channels aren’t maintained or their infrastructure collapses, the district said. Repairs left undone can increase risk for erosion, sinkholes and damaged infrastructure.
The district has never sued to recover costs, but encroachment disputes have ended up in court before.
The district lost an August 2017 lawsuit where it sued the owner of an apartment complex off the Gulf Freeway over a parking lot that infringed on an easement along a tributary of Berry Bayou where improvements were planned.
“We had to redesign it and rebid the project,” Zeve said. “It was a project that should have been done by now and we’re a year away or more.”
Zeve said that part of Harris County is a “high-need area,” citing a history of flooding.
“That case put a very high emphasis on the Flood Control District trying to get something (legislative) done in Austin,” he said.
Oftentimes though, property owners don’t put up a fight.
Palazzo, who watched nervously as the water rose behind her house during Tropical Storm Imelda in September, said she’s encouraged the county is making improvements to drainage in the area.
“After the flooding, I’m like, OK, maybe this is going to be a really good thing because the water got so high,” she said shortly after Imelda dumped more than 40 inches of rain in some parts of southeast Texas. “It’s going to continue to rain, and the more moist the soil is the more erosion that’s going to happen, so it’s going to be a great thing in the long run. But there will be some pain getting through it.”
Palazzo’s letter said she must relocate her fence by Jan. 15, at which time the project is expected to start. If it’s not moved at the time of construction, a contractor would take it down and place it outside the district’s right of way. The district would not be responsible for damages or replacement cost.
Palazzo still isn’t sure why she was never made aware her fence was in district’s way when her family was buying the house and plans to have a discussion with her surveyor to see why the encroachment wasn’t identified.
Meanwhile, she’ll have to put off some of the changes she’s been planning to make to the backyard.
Until the district brings its surveyor over, she said, “we’re kind of in this holding pattern.”
About the photo: In this Tuesday, Oct. 8, 2019 photo, Ted Simpson stands in a right of way behind his house that was recently expanded in a project by the Harris County Flood Control District holding a picture of the small alley of green that used to comprise the right of way, in Houston. Simpson’s yard, and those of his neighbors, had reached around 30 feet into the right of way on his side of the neighborhood before the project forced neighbors to tear down their existing fences. (Mark Mulligan/Houston Chronicle via AP)
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