Legal Opinions on the Problematic Provisions by Gary Werley and Frank Newman
on Paul Bounds's Dock Ordinance Proposal Released June 16, 2010
(Gary Werley – Attorney for Michael Dallas)
July 8, 2010
You requested my legal opinion of the proposed Lake Worth dock ordinance. We discussed the Texas Supreme Court decision of Mayhew v. Town of Sunnyvale and its review of regulations that unreasonably interfere with property as to cause a loss of anticipated gain or potential future profit, such as to impact reasonable investment backed expectations. In the current times it is not uncommon for the proceeds from the sale of a home to be a critical part of retirement or nursing home considerations. As will be shown, this proposed ordinance, in my opinion, does indeed make that type of impact.
A summary of the easement conveyed in the deeds is an easement for water recreational purposes, for ingress and egress, construction, maintenance and use of piers, docks, and boathouses, including storage of boats. The only impediment to the use of the entire easement, or size of the structure, is the restriction not to interfere with access of adjoining property owners.
I believe the proposed ordinance constitutes a “taking” of portions of the easement in excess of 1500 square feet, Sec. 18-20(a). As a “taking” there must be payment. The “set-back” lines are a “taking” of something that has been in existence for decades, Sec. 18-20 (b). The ordinance generally defines “Dock, Pier, or Boathouse” as a structure in Sec. 18-16, and then prohibits “Enclosed Structures” in Section 18.21 (a), another taking (note inconsistency with Sec. 3610). With no grandfather clause, there will be a taking when the first attempt is made to rebuild, modify, or make significant repairs to the current structure.
Since the 100-foot or more walkway is included in the 1500 sq. ft., it leaves very little to construct to hold a boat of any size and have some convenience.
Section 18-25 (c) and (d) on dock removal does not allow for any due process.
The dock ordinance as a whole would not appear to substantially promote health, safety, morals and general welfare for the common good. It is for a specific group of people, in a specific place. The owners around the lake bought the property to be on the lake and its use, any restrictions such as these would impact future use and sales price; thereby affecting anticipated gain or profit from the investment.
S. Gary Werley
306 W. 7th Street, Suite 508
Fort Worth Club Building
Fort Worth, Texas 76102
Litigation and General Business Law
(Frank Newman – Real Estate Attorney and resident on Lake Worth shoreline)
NEWMAN & SUMMERS, P.C.
ATTORNEYS AND COUNSELORS AT LAW
601 PENN STREET
FORT WORTH, TEXAS 76102
FRANK M. NEWMAN, JR.
BOARD CERTIFIED – COMMERCIAL AND RESIDENTIAL REAL ESTATE
July 9, 2010
6138 Camp Bowie Blvd.
Fort Worth, TX 76116
Re: “Dock Ordinance”
I have reviewed the materials that you provided to me, which include the easement applicable to all owners and lessees of lake front property; some documents from previous meetings and discussions regarding the “Dock Ordinance” negotiations; previous drafts and the latest proposal from the City. I understand that the City intends this to be some sort of administrative procedure or policy in lieu of an actual ordinance. Apparently, the City proposes to operate under the “Policy” until an actual ordinance is adopted (Paul Bounds Email dated June 14, 2010).
Mr. Werley has dealt with the “taking” issue and I agree with him completely. I would like to add some other observations.
First, I doubt that any representative of the City of Fort Worth has the right to administratively impose restrictions on the use of private property with complete disregard for existing building codes, zoning ordinances or any other properly adopted laws. This would seem to me, from a legal perspective, to be an unconstitutional denial of due process. The current proposed policy would apparently have the weight of law while skipping over the legal process that governs adoption of ordinances, modification of building codes and changes in zoning.
I mention zoning because it occurs to me that restrictions on the type and size of an improvement are usually addressed by the zoning ordinances. The building code would be applicable as to the materials used, engineering report and other construction aspects of the proposal. Changes to either of these categories of City governance would require the city to proceed through the various applicable committees at which the public would be allowed to comment and then to the City Council where, again, public comment would be allowed and the Council’s decision would be subject to appeal to the District Courts.
Further, I have a general concern regarding the City of Fort Worth taking any restrictive action relative to the existing easements. The easement in question applies to all of the privately leased or privately owned property on the lake. It was granted by the City long ago and was part of the bargain that lead lessees and buyers to lease or buy their properties. The location and size of the easement is clearly defined and the uses of the easement are clearly described. Many docks and associated improvements have been built based on the easement’s language and in compliance with its terms. Those lessees or owners who have not yet built a dock but intend to do so would now be told that their plans would be in violation of the proposed “policy”. While this observation is somewhat of a restatement of the “taking” theory covered by Mr. Werley, I wanted to restate it from a common sense perspective. In Texas a deal is a deal. Not living up to the “deal” is always the cause for sanctions whether by publicity, litigation, voting or just by way of reflection on a person’s reputation for honesty and integrity. A buyer or a leasee bought or leased some real property with the reasonable assumption that a deal had been made with the City and now it is proposed that the City of Fort Worth is considering not living up to their side of the deal
Another consideration is that the rationale for adoption of a “policy” is not logical. It suggests that because some individuals want to build docks that are less than 1500 square-feet and meet the other standards and requirements that are dictated by the “policy”, the dock construction on the entire lake should be reduced to these individuals’ intended docks. We do not know any facts upon which these requested docks are based. They may be a matter of personal taste, limited by the finances of the owner/lessee, or a matter of location, but it is clear that a binding ordinance or policy should not be reduced to the lowest common denominator of docks when there are existing larger docks; others may intend to build larger docks and the easement purchased by new owners or lessees has no such restrictions.
The development and future value of Lake Worth and surrounding property is directly at risk by the proposed “policy”. The City would be contradicting and undermining its own expressed intentions as to Lake Worth by the use of this “policy”. The City of Fort Worth has spent substantial sums on studies for the development of the property around Lake Worth. I agree with some, but not all of the proposed uses but it is clear that one purpose of the development is to raise the values of the land around Lake Worth with an eye to increased real property tax revenues. It is contrary to that goal to restrict owners to docks that will not significantly contribute to the value of their real property value. It should be clear that the amount of money a homeowner will invest in a home or a lot is going to be determined in part by the extent to which they are going to be able to build a dock for the purpose of enjoying their access to and use of the lake itself. There might be some who would spend substantial sums for a home knowing that they would be limited to a relatively small dock or maybe not even have a dock, but I think the vast majority of people would invest higher purchase prices only if they were assured that they could construct a dock that would be commiserate with their house in terms of size, utility and style.
The attitudes of these potential buyers will likewise affect the attitudes and decisions of potential developers of land included within the Lake Work study. An inappropriate restriction on the size, design and use of docks is going to directly affect the amount of money people will pay for the house or land. The value of the land and the houses existing or intended will directly affect the interest of developers of adjoining land. In effect a “policy” or subsequent ordinance as proposed by the City will establish a much lower ceiling on the potential value of lake front property and adjoining developed or undeveloped land. Based on approximately 35 years of working in real estate matters involving everything from litigation over rights, to construction, to buying and selling of residential and commercial real estate and representing developers, I believe that any developer or real estate professional would agree with this analysis.
Please let me know if I can further assist in any way in this continuing debate.
Frank M. Newman, Jr.