ORDER N0.28518 Michon Drive encroachment Came to be heard this the 9th day of February 2004 with a motion made by Commissioner Baldwin, Seconded by Commissioner Letz, the Court unanimously approved by a vote of 4-0-0, to refer the removal of a fence encroachment of right-of--way on Michon Drive to the County Attorney. .~ ~ ~ ~~' COMMISSIONERS' COURT AGENDA REQUEST _. PLEASE FURNISH ONE ORGINAL AND NINE COPIES OF THIS REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT. MADE BY: Franklin Johnston, P.E. OFFICE: Road & Bridge MEETING DATE: February 9, 2004 TIME PREFERRED: SUBJECT: (PLEASE BE SPECIFIC) Consider referring_to the Count~Attorney a fence encroachment on right-of--way on Michon Drive for removal EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON) NAME OF PERSON ADDRESSING THE COURT: Franklin Johnston P.E.. ESTIMATED LENGTH OF PRESENTATION: 10 minutes ...... 'F 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. Franklin Johnston, P.E. County Engineer Kerr County Road & Bridge 4010 San Antonio Hwy Kerrville, Texas 7802$ Telephone: 830-257-2993 Leonard Odom, Jr. Road Administrator Truby Hardin, Coordinator FAX: 830-896-8481 EmaiL• kcroads@ktacom TO: COMMISSIONERS COURT FROM: FRANKLIN JOHNSTON, P.E., KERR COUNTY ENGINEER DATE: February 2, 2004 ~ RE: Consider referring to the County Attorney a fence encroachment on right-of--way on Michon Drive, for removal. We have a fence built in the right-of--way on Michon Drive, about 24" from the edge of the pavement at one point. We talked to the landowner, Laura Moore, before the fence was built and sent her a letter to keep fence 25' from centerline of road. She went ahead and built the fence. We wrote a second letter with no response. We feel legal action may be required. Franklin Johnston, P.E. County Engineer Kerr County Road & Bridge 4010 San Antonio Hwy Kerrville, Texas 78028 Telephone: 830-257-2993 Leonard Odom, !r. Road Adnvnistrator Truby Hardin, Coordinator January 8, 2004 Laura Moore 130 Michon Dr. Kerrville, TX 78028 Dear Ms. Moore, FAX: 830-896-8481 Email: kcroads®.ktc.com As you know Michon Drive is a county maintained road, which includes the area of travel, and the shoulder "cleaz zone." Citizens have the right to use the shoulder fortravel-related activities only. There can be no obstructions placed in the right-of--way, except mail boxes, road signs, and the like. Use of the right-of--way is controlled by Commissioner's Court orders, other County regulations, and the Transportation Code. We have noticed you are installing a new fence in the county right~of--way in front of your house on Michon. Please alter the fence location on the corner as I outlined to your contractor. The County Road and Bridge Department has the responsibility for safe travel under the authority of the laws and regulation mentioned above. Attached is a "Memorandum" for a similaz situation. Call us if you have any questions. Sincerely, Franklin Jo stop, PE Kerr County CC: Commissioners Court Memorandum To: Commissioner Baldwin From: David Motley Subject: Tom's Right of Way Concern Date: May 2, 2003 County roads include the area of travel, the safety shoulder and any sidewalks located on the right of way. A citizen has the right to use the shoulder for travel-related activities, such as entering and exiting a vehicle, crossing same to cross the road or to access sidewalks. An individual cifizen's right to use the right of is not paramount to the citizenry at large. The right to use the right of way maybe controlled by Commissioners' Court orders or regulations, which may also set speed limits and control parking. The Court may also allow certain non-hazardous uses of the right of way. The roads in the area mentioned by Mr. ~ are generally county-maintained roads and likely date back to a time when the right of way was initially acquired by easement as opposed to fee simple absolute and as such, the land on which the right of way easement exists is _ encumbered with the road and related usage. By this, I mean, the use of the land as right of way rules over all other uses which may interfere with the roadway use. If parking of vehicles along the right of way shoulder is a hazard, the Commissioners' Court may regulate such activity by order and the placement of appropriate signage. If a citizen seeks to control parking and use of the right of way on his own by placement of obstructions which would hinder such parking and related uses, that would likely constitute a safety hazard along a curvy road and should be discontinued. Such activity may well be so hazardous that the Sheriff's Department may assure removal under the authority of the Transportation Code or Penal Code without the Commissioners' Court regulating the same beforehand. The County Road & Bridge Department may also remove such impediments to safe travel under the authority of either the Transportation Code or any applicable Commissioners' Court order or regulation on point. I am directing my "response" to Mr.'s letter to you because, as you are aware, my duty to provide civil advice and opinions is not to the public but instead, to the elected and appointed County officials. DM/s cc: Commissioner Baldwin file Court Administrator Road & Bridge Department Sheriff's Department ~. Franklin Johnston, P.E_ County Engineer Kerr County Road & Bridge 4010 San Antonio Hwy Kerrville, Texas 78028 Telephone: 830-257-2993 Leonard Odom, Jr. Road Administrator Truby Hardin, Coordinator January 27, 2004 Laura Moore 130 Michon Dr. Kerrville, TX 78028 Dear Ms. Moore, FAX: 830-896-8481 Email: kcroads(c~ktc.com I wrote you on January 8, 2004, concerning your fence encroachment into the right-of--way on Michon Drive, and I thought we had an agreement that you would move it back 25' from the centerline of Michon Drive to provide sight distance around the curve at your property. As you recall, you only had the posts set and the fence was not built. Today we received a call from one of the residents that the Post Office would no longer deliver mail to their houses (3 or 4) because of the restricted sight distance and no shoulder created by your fence. I went by the site and found you constructed the fence in its original location. You have left us no alternative but to refer this to the County Attorney for legal action. You are endangering the safety of the public by your actions. This items will be on the Commissioners Court Agenda February 9, 2004. If you have not moved the fence by that date to alleviate the dangerous right-of--way encroachment, it will become a legal matter and you will be dealing with the County Attorney. Sincerely_ Franklin Kerr Cot CC: Commissioners Court County Attorney Post Master Page 1 of 1 Franklin Johnston, P.E. From: "David Motley" To: "Franklin Johnston, P.E." Sent: Friday, January 30, 2004 7:01 PM Subject: RE: Encroachment in Right-of--Way on Michon Drive Franklin: Thanks! Motley -----Original Message----- From: Franklin Johnston, P.E. [mailto:kcengr@ktc.com] Sent: Wednesday, January 28, 2004 10:39 AM To: David Motley Cc: kerrcoZ@ktc.com Subject: Encroachment in Right-of-Way on Michon Drive David We have a fence in our right-of-way on Michon Drive. I talked to owner, Laura Moore, before the fence was built but she went ahead and put in in ROW. Post Office now refuses to deliver mail to 3 -4 homes because oncoming traffic cannot see them stopped on road. I am putting it on agenda Feb. 9, 2004 to have it referred to you. Copy of Letter and photos attached. Frank 2/2/04