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City wants Glen Cove lawsuit dismissed
By JENNIFER NORRIS
League City has filed a motion for dismissal of a lawsuit over the removal of the Seminole Drive Bridge.
The city’s attorney Bill Helfand said he is awaiting the final deposition requested by the plaintiffs, that of former Mayor Jerry Shults, and then the matter will go for a hearing before 212th District Judge Susan Criss on the dismissal of charges. He filed the motion for dismissal on June 13.
The plaintiffs, a group of residents from the Glen Cove subdivision of League City, say the city broke a promise to rebuild the subdivision’s connecting bridge over what was formerly a Texas Genco cooling canal, did not follow correct legal procedure in signing over the canal property to developer MB Harbour and violated the open meetings act by not informing the Glen Cove residents that the bridge was being demolished.
Since filing the lawsuit, the plaintiffs claim they have also found evidence that the bridge itself actually belonged to the residents of Glen Cove.
Paul Smith, one of the plaintiffs, said in a 1928 plat of the bridge area and adjacent streets the then property owner, Owen Smith, wrote about the property, “[I] do hereby dedicate for use by property owners only all boulevards, streets, parks, and playgrounds shown thereon.”
Smith, the plaintiff, said the bridge area and adjacent streets have never been re-platted since 1928 and should still be considered the private property of the Glen Cove residents, making it illegal for the city to give it away or demolish it.
But Helfand said that charge does not hold any water legally. According to Texas real estate law, Helfand said property owners own all the land under and in front of their homes, including half of the street in front of their yards, but only the land under the actual concrete or pavement of the street.
“Real property is the actual dirt, and that’s what the homeowners own,” Helfand said, “Anything on top of that dirt is considered an improvement, such as a street, and the city owns and maintains the streets.”
This law applies to bridges built over waterways, which are considered to be improvements owned and maintained by the local government, even if the water and land underneath the bridge is owned by the residents, he said.
So, Helfand said, a city government can come and tear up any street or bridge that is city property, and it’s all legal, as long as the city does not take away from the homeowners the actual property under the street.
Although Helfand said he doesn’t believe the plaintiffs could prove that the bridge was private property, even if they could, their case would fall apart, he said.
The plaintiff’s first charge is that the city broke its promise to residents that it would rebuild the bridge with Texas Department of Transportation funds, but if it could be proved that the bridge was privately owned, it would be illegal for the city or TxDOT to use public funds for repairing it, Helfand said.
Residents would also have been unable to continue to use the bridge even as private property, since it was closed in August 2003, three years before it was demolished, because it was “dilapidated” and had been condemned by TxDOT, Helfand said.
He also said a “promise” to rebuild is not the same as a legal contract and therefore the city cannot legally be held liable for breach of contract.
The plaintiffs’ attorney, Michael Nassif of Sugar Land, could not be reached for comment.
The city’s attorney Bill Helfand said he is awaiting the final deposition requested by the plaintiffs, that of former Mayor Jerry Shults, and then the matter will go for a hearing before 212th District Judge Susan Criss on the dismissal of charges. He filed the motion for dismissal on June 13.
The plaintiffs, a group of residents from the Glen Cove subdivision of League City, say the city broke a promise to rebuild the subdivision’s connecting bridge over what was formerly a Texas Genco cooling canal, did not follow correct legal procedure in signing over the canal property to developer MB Harbour and violated the open meetings act by not informing the Glen Cove residents that the bridge was being demolished.
Since filing the lawsuit, the plaintiffs claim they have also found evidence that the bridge itself actually belonged to the residents of Glen Cove.
Paul Smith, one of the plaintiffs, said in a 1928 plat of the bridge area and adjacent streets the then property owner, Owen Smith, wrote about the property, “[I] do hereby dedicate for use by property owners only all boulevards, streets, parks, and playgrounds shown thereon.”
Smith, the plaintiff, said the bridge area and adjacent streets have never been re-platted since 1928 and should still be considered the private property of the Glen Cove residents, making it illegal for the city to give it away or demolish it.
But Helfand said that charge does not hold any water legally. According to Texas real estate law, Helfand said property owners own all the land under and in front of their homes, including half of the street in front of their yards, but only the land under the actual concrete or pavement of the street.
“Real property is the actual dirt, and that’s what the homeowners own,” Helfand said, “Anything on top of that dirt is considered an improvement, such as a street, and the city owns and maintains the streets.”
This law applies to bridges built over waterways, which are considered to be improvements owned and maintained by the local government, even if the water and land underneath the bridge is owned by the residents, he said.
So, Helfand said, a city government can come and tear up any street or bridge that is city property, and it’s all legal, as long as the city does not take away from the homeowners the actual property under the street.
Although Helfand said he doesn’t believe the plaintiffs could prove that the bridge was private property, even if they could, their case would fall apart, he said.
The plaintiff’s first charge is that the city broke its promise to residents that it would rebuild the bridge with Texas Department of Transportation funds, but if it could be proved that the bridge was privately owned, it would be illegal for the city or TxDOT to use public funds for repairing it, Helfand said.
Residents would also have been unable to continue to use the bridge even as private property, since it was closed in August 2003, three years before it was demolished, because it was “dilapidated” and had been condemned by TxDOT, Helfand said.
He also said a “promise” to rebuild is not the same as a legal contract and therefore the city cannot legally be held liable for breach of contract.
The plaintiffs’ attorney, Michael Nassif of Sugar Land, could not be reached for comment.
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Reader Comments
MattRobleaux wrote on Aug 11, 2008 9:48 PM:
" Mr. Hagen is the plaintiff, also known as a complainant,
who initiated a lawsuit before a court....
If a normal taxpaying citizen goes to League City Hall and
ask any question that includes the phrase "Glen Cove",
you are told, access denied, pending litigation.
Mr. Hagen complains too much. As a common taxpaying
citizen of League City, I am quite tired of his complaints.
I am the one that is paying the cost of the defense lawyer,
Bill Helfand, yet I am not allowed to talk with him because
of Mr. Hagen.
Please settle this in county court, not the media. "
who initiated a lawsuit before a court....
If a normal taxpaying citizen goes to League City Hall and
ask any question that includes the phrase "Glen Cove",
you are told, access denied, pending litigation.
Mr. Hagen complains too much. As a common taxpaying
citizen of League City, I am quite tired of his complaints.
I am the one that is paying the cost of the defense lawyer,
Bill Helfand, yet I am not allowed to talk with him because
of Mr. Hagen.
Please settle this in county court, not the media. "
JeffHagen wrote on Aug 9, 2008 12:16 AM:
If Helfand is working on behalf of the city as defense attorney in this case, who authorized such an expenditure of city funds? The only known action of city government to authorize involvement on behalf of the city in this matter of an attorney other than the official city attorney was a March 27, 2007 action requesting an audit of the city's actions in the matter by the Texas Municipal League to be paid for out of the city's insurance policy with TML. Just who does Bill Helfand really work for and who directs his actions in this case?
Bill Helfand's actions in light of the 3/27/07 agenda raise the following questions:
Does the act give authorization to hire or pay for his services out of city funds?
Does this authorization allow for the services in question to include legal defense representation of the city, or is it limited to conduct of an independent investigation or audit?
Who does this action obligate for payment of these services and who does it authorize to make payment for these services?
Who has responsibility and who has authority to direct the actions of this attorney?
This newspaper is challenged to investigate these and other questions related to this individual who has been called "the city's attorney", but who is not the city attorney.
Is it possible that Bill Helfand is actually making unauthorized expenditures and decisions on behalf of the city?
The 3/27/05 council agenda minutes referred to above are quoted below:
(Found at: http://tx-leaguecity.civicplus.com/Archive.asp?ADID=1233)
G. Consider and take action to direct staff to hire an independent attorney to audit the Glen Cove issues (City Administrator)
Mr. Barber made a motion to direct staff to hire an independent attorney to audit the Glen Cove issues.
MOTION: Mr. Barber
SECOND: Mr. Samuelson
Mr. Barber amended his motion to request TML Risk Pool Attorney to proceed with investigation despite their normal policy of waiting until a suit is filed.
MOTION: Mr. Barber
SECOND: Mr. Samuelson
VOTE: 4 For (Mr. Barber, Mr. Keeney, Ms. Sanborn, Mr. Samuelson)
1 Opposed (Mr. Cones)
1 Out of Room (Mr. Tad Nelson) "