City Right of Way Agent Greatly Misrepresented Project To Gain Construction Access

[Burt L.]

I have a Colorado fourplex and met with both a city ROW agent and the project engineer at the property as they need to replace a 60 year old street drainage pipe that runs along the easement at the east edge of the property. To do that they need to remove my 6 ft fencing on that edge and will replace it, which isn’t in question. A larger storage building (10X 12 tall barn style) is in the easement and I was told they would move it and move it back, at their cost.

The access to the two rear units will be obstructed and damaged by the heavy equipment and the tenants will be upset and don't have another place to park their 4 cars. It may effect lease renewals.  The Construction Agreement says they have access for 6 months and can extend up to 12 months. I was told when we met at the property that I would receive monetary compensation. I was told they would have a surveyor place surveyor pins that show where the property line is but there still are none. As its a metes and bounds area, the best quote I’ve received to have it surveyed myself is $4K.

Most importantly, the property backs to a city greenbelt and homeless people will camp out there and scare the daylights out of my tenants. A creek runs through it and so I extended my north fencing up to that creek and there is still old fencing there, where it has been done before. The ROW agent said he would give me a revocable license agreement to continue this use but that if they ever need to do work back there that I wouldn’t receive compensation as it is their property. I had the sense to record the conversation with himself and the project engineer and the audio quality is quite good.

When I received the Construction Agreement they want me to sign, none of this is included. There is no compensation, I am responsible for moving the storage building, there is no mention of repairing my asphalt driveway, and most importantly they state the north fencing will be taken down and not replaced as it is encroaching on their property. He had specifically said he’s okay with the north fencing and knows its to keep the homeless campers out, and who the police are very slow to remove.

I have absolutely no intention of signing this document though know they will have some recourse to enforce the easement if need be. As said, I have the entire meeting on audio tape. I”m sure the ROW agent is evaluated/promoted on how much he can get done for the city at the lowest cost. To stand on a person’s property and blatantly misrepresent to gain access is most agitating. At first he wanted to do an informal Letter of Agreement, but I declined.

I have an appointment with a land attorney late this week and now will be getting a significant legal bill out of all this as it will turn into much more than the cost of a consultation.

What might BP Nation be able to suggest in this situation. I suspect I’m not the first person the ROW agent has sought to take advantage of. He acted like a used-care salesman - trying to be my best friend at the meeting. My apologies for the length of this!

[Dennis McNeely]

You can have a discussion with the city ROW agent and the project engineer @Burt L and let them know of your previous conversations, etc. - which I suspect you're already inclined to do.

You can also investigate various methods of pipe replacement / renewal that involve trenchless technologies, such as pipe lining, pipe bursting, or directional drilling. In many urban situations, one of the trenchless technologies will be less expensive than dig and replace pipe renewal.

Best of luck dealing with the city!

[JD Martin]

I ran a utility district for many years and we ran into these situations all the time. If you have encroached on a public ROW or dedicated public easement, you are out of luck. When I say " you", that includes your predecessor owners. There's no real right of possession for public property in any state that I know of, and in most places they can remove your items without compensation and forebidding their return. 

If I were you, I would arrange to have your materials removed before they get there to work because city guys are pretty rough on stuff they have to move.

We occasionally found issues like the corner of houses built in the easement and sometimes on top of a water or sewer line. We would try to find solutions for issues as best as possible as long as there wasn't any cost or disadvantage to the utility. Sometimes that might mean we'd accept a new easement or ROW that was better for the homeowner and still ok for us, as long as we didn't incur survey or recording costs and the homeowner would be responsible for overage, or if the water line work cost $100k on the existing spot and $150k in an alternate spot the homeowner would be responsible for the $50k overage.

[Chris Seveney]

Quote from @Burt L.:

I have a Colorado fourplex and met with both a city ROW agent and the project engineer at the property as they need to replace a 60 year old street drainage pipe that runs along the easement at the east edge of the property. To do that they need to remove my 6 ft fencing on that edge and will replace it, which isn’t in question. A larger storage building (10X 12 tall barn style) is in the easement and I was told they would move it and move it back, at their cost.

The access to the two rear units will be obstructed and damaged by the heavy equipment and the tenants will be upset and don't have another place to park their 4 cars. It may effect lease renewals.  The Construction Agreement says they have access for 6 months and can extend up to 12 months. I was told when we met at the property that I would receive monetary compensation. I was told they would have a surveyor place surveyor pins that show where the property line is but there still are none. As its a metes and bounds area, the best quote I’ve received to have it surveyed myself is $4K.

Most importantly, the property backs to a city greenbelt and homeless people will camp out there and scare the daylights out of my tenants. A creek runs through it and so I extended my north fencing up to that creek and there is still old fencing there, where it has been done before. The ROW agent said he would give me a revocable license agreement to continue this use but that if they ever need to do work back there that I wouldn’t receive compensation as it is their property. I had the sense to record the conversation with himself and the project engineer and the audio quality is quite good.

When I received the Construction Agreement they want me to sign, none of this is included. There is no compensation, I am responsible for moving the storage building, there is no mention of repairing my asphalt driveway, and most importantly they state the north fencing will be taken down and not replaced as it is encroaching on their property. He had specifically said he’s okay with the north fencing and knows its to keep the homeless campers out, and who the police are very slow to remove.

I have absolutely no intention of signing this document though know they will have some recourse to enforce the easement if need be. As said, I have the entire meeting on audio tape. I”m sure the ROW agent is evaluated/promoted on how much he can get done for the city at the lowest cost. To stand on a person’s property and blatantly misrepresent to gain access is most agitating. At first he wanted to do an informal Letter of Agreement, but I declined.

I have an appointment with a land attorney late this week and now will be getting a significant legal bill out of all this as it will turn into much more than the cost of a consultation.

What might BP Nation be able to suggest in this situation. I suspect I’m not the first person the ROW agent has sought to take advantage of. He acted like a used-care salesman - trying to be my best friend at the meeting. My apologies for the length of this!

 As a former planning board member as well as having done a lot of development both residentially and commercially - I agree with JD. If their is a public easement and there are temporary structures within this easement - the city can come in and remove them. While its frustrating as you were told something different, it does not overwrite existing laws

I live in a street that has an easement for the first 15 ft of driveway and we have had several neighbords put in gated entry and brick walls which is in the easement. If the city ever wants to add sidewalks or run utilities underground, those homeowners will be out of luck.

PS: I have never seen a juridisction pay to remove items in an easement or compensated owners for performing work in an easement. The only thing I have seen is if it blocks their ability to access their property they would need to provide access

[Burt L.]

Thank you so far! I should clarify a couple of things - the city is abandoning their current drain line as its undersized and installing larger pipe next to it so can't be a trenchless pipe but would have been nice. 

I would be happy to have them move the large storage shed and its whatever contractor provides an acceptable bid rather than city employees doing the work. As there is only a one lane asphalt driveway that goes between the building and the east property line the contractor will have to operate his heavy equipment there and will hurt tenant access and definitely damage the asphalt. This reduction in access is what the compensation was to be for and tenant complaints will be many and with creative language. 

[Jay Hinrichs]

Quote from @Chris Seveney:

Quote from @Burt L.:

I have a Colorado fourplex and met with both a city ROW agent and the project engineer at the property as they need to replace a 60 year old street drainage pipe that runs along the easement at the east edge of the property. To do that they need to remove my 6 ft fencing on that edge and will replace it, which isn’t in question. A larger storage building (10X 12 tall barn style) is in the easement and I was told they would move it and move it back, at their cost.

The access to the two rear units will be obstructed and damaged by the heavy equipment and the tenants will be upset and don't have another place to park their 4 cars. It may effect lease renewals.  The Construction Agreement says they have access for 6 months and can extend up to 12 months. I was told when we met at the property that I would receive monetary compensation. I was told they would have a surveyor place surveyor pins that show where the property line is but there still are none. As its a metes and bounds area, the best quote I’ve received to have it surveyed myself is $4K.

Most importantly, the property backs to a city greenbelt and homeless people will camp out there and scare the daylights out of my tenants. A creek runs through it and so I extended my north fencing up to that creek and there is still old fencing there, where it has been done before. The ROW agent said he would give me a revocable license agreement to continue this use but that if they ever need to do work back there that I wouldn’t receive compensation as it is their property. I had the sense to record the conversation with himself and the project engineer and the audio quality is quite good.

When I received the Construction Agreement they want me to sign, none of this is included. There is no compensation, I am responsible for moving the storage building, there is no mention of repairing my asphalt driveway, and most importantly they state the north fencing will be taken down and not replaced as it is encroaching on their property. He had specifically said he’s okay with the north fencing and knows its to keep the homeless campers out, and who the police are very slow to remove.

I have absolutely no intention of signing this document though know they will have some recourse to enforce the easement if need be. As said, I have the entire meeting on audio tape. I”m sure the ROW agent is evaluated/promoted on how much he can get done for the city at the lowest cost. To stand on a person’s property and blatantly misrepresent to gain access is most agitating. At first he wanted to do an informal Letter of Agreement, but I declined.

I have an appointment with a land attorney late this week and now will be getting a significant legal bill out of all this as it will turn into much more than the cost of a consultation.

What might BP Nation be able to suggest in this situation. I suspect I’m not the first person the ROW agent has sought to take advantage of. He acted like a used-care salesman - trying to be my best friend at the meeting. My apologies for the length of this!

 As a former planning board member as well as having done a lot of development both residentially and commercially - I agree with JD. If their is a public easement and there are temporary structures within this easement - the city can come in and remove them. While its frustrating as you were told something different, it does not overwrite existing laws

I live in a street that has an easement for the first 15 ft of driveway and we have had several neighbords put in gated entry and brick walls which is in the easement. If the city ever wants to add sidewalks or run utilities underground, those homeowners will be out of luck.

PS: I have never seen a juridisction pay to remove items in an easement or compensated owners for performing work in an easement. The only thing I have seen is if it blocks their ability to access their property they would need to provide access

Agreed .  this is why one needs to really research easements affecting their properties prior to purchase.  I suspect the ROW did not want to get in an argument with you and just kind of went along with your thought process all the while knowing there is no way they are going to agree to your terms in writing.  ON my latest subdivision I built we have a 15 foot right of way for the major sewer line on one lot and we let the owners know that they may want to do just light landscaping or just bark dust it/ or out east I guess its pine straw.  Also have easements for fire truck turn around. I know this sucks for the tenants etc however I am sure this easement was shown on the title report prior to purchase..

[Matt Devincenzo]

Site Civil and land use planning....I've been in the conversations for major clients that have both pursued an eminent domain against adjacent owners and have had takings due to eminent domain. Agreed with the above that the ROW agent likely went along with you because it kept you from getting your defenses up, and also that there is little to no reason they need to compensate anything here. 

That said, keep your emotions out of it and simply respond to his offer with a VERY polite "thank you so much and I'd love to sign this for you today, but there were a few terms we discussed that I think may have been overlooked....those are XXXX". Most people get an aggressive tone and become confrontational, so those that don't really do stand out. There is a remote possibility that he is willing to resend with some items included. I wouldn't get my hopes up as he really has no obligation to, but if he sees a $5K item he can offer and forcing the legal aspect would cost $5K as well, he just might go with path of least resistance...

The other aspect is you should 100% figure out exactly what the cost for you to take care of your items would be. It may be worth trying to get more 'tenant access/compliant' money and just taking care of the encroachments yourself. For the ROW agent that fits with what he's allowed to do better than giving you items that someone else could criticize his agreeing to. You may need to spend every cent they offer on moving things out and back in, but that a small price to pay if after this is done you have your property back in the condition it was when you started.

[Burt L.]

There seems to be a belief throughout this thread that its alright for a city employee to come onto your property and simply lie about item after item and then send a written agreement in direct contrast expecting you to sign and return it. The city can do whatever they want I I have to lean forward and take it. 

At time of purchase I had a couple of engineers over to look at a couple of things. My side of the street has no curb and gutter, the other side of the street has gutter only while only  that side of the street is getting sidewalks as part of this project. All the water from the crown of the road floods onto my property and I was informed its illegal to discharge water onto anothers property and that the engineers could apply pressure to the city to have curb and gutter installed. As part of the project, the only existing drain on my side of the street is being sealed over with concrete and even that will be lost. I had to do an elaborate french drain system with multiple pumps as the lower level units would get water with hard rains. 

Perhaps the land attorney can use this lack of curb and gutter as incentive in negotiations, which the engineers were quite confident they would be successful with. Of course I was aware there was no curb and gutter at time of purchase and that there was an easement in place, and which hadn't been exercised since year the properties construction in year 1960. 

The ROW agent volunteered everything - I didn't ask for any of it and just let the meetings topics go where they went. If nothing else I'd like his supervisor to hear the audio and understand how his agent is conducting himself in representing the city. The important issue is the revocable license agreement to continue my fencing of the back yard that keeps the homeless campers out of the back yard. I put it up 4 years ago and there was part of old fencing in the same place. 

[Burt L.]

@Matt Devincenzo posted while I was posting and of course adds good points. I'm obviously and pretty rightly eby the ROW agents approach. Thats a good reason to bring in no longer help myself in person to person negotiations on it.

When I mention a revocable license agreement to continue use of the are in back, that is what the agent offered of his own accord and it and was explained to mean that if they were to need to do work there  I would not be compensated. Everything was volunteered and not extracted from the agent. 

[Burt L.]

Apologies for the typos of the last post - BP doesn't allow modifications anymore.  The missing words are pretty intuitive though.