Ground had not been broken at 4th Street and the alley on December 6,2020, the date I took this photo and the day before I told the City and District that an ordinance was required. There was time for all involved to stop and pass an ordinance.
I ended this post, City Gym, mentioning that there were no documents supporting the closure of the alley that the new gym sits on. I will flesh that out a bit more here.
As a reminder, this photo shows that the gym sits on part of the alley, shown by the yellow line, that initially extended the distance between 4th and 5th streets.
Page 1 of this document, an agenda item request made by Superintendent Ray DeSpain to the City of Mertzon before anything was closed, shows that the District knew it needed the alley for the placement of the gym. This page also shows, however, that the actual request was for only the closure of 4th Street, not the alley. Consistent with that, page 2 of the document, the agenda item showing the City's closure, likewise is worded only to "abandon and vacate" 4th Street and makes no mention of the alley. (Note that this "abandon and vacate" language tracks the language of the statute.)
And, to drive this point home, when you closely read the MOU and the affidavit what you will see is that only 4th Street was "released". There is no mention anywhere that the alley was released or closed...or abandoned and vacated.
Why?
One plausible answer is that the City and the District (both represented by lawyers) had decided they were never going to receive written approval required by the statute from the landowners whose property is abutting the alley. So, they chose to ignore the statute. They created a legal fiction in the MOU and release of easement, and they commenced with the build out. If they had sought written approval from the landowners, it would have brought attention to the fact that they did not have legal authority to close the alley. In other words, they chose to build now and ask for forgiveness later. (Thus, the title of this post, Alley Oops, as in "Oops! Did we violate the law?! So sorry! I guess the new gym is here to stay!")
Ignoring the statute (Texas Transportation Code 311.008) was a terrible solution. First, it hyper alienated the District's next door neighbors. Second, it is not legally effective. The legal character of 4th Street and the alley are unchanged to this day. An unlawfully abandoned or vacated street and alley leave behind a street and alley still owned by the City. Their legal status and location as street and alley hasn't changed. Granted, they have a huge gym on top of them. And, in traditional property law a building is considered an attachment to the real property and owned by the property owner, so one could even argue that the City now owns that portion of the gym on top of the street and alley. ("City Gym" is what I like to call it.) In addition, it is not as if the District can claim adverse possession of the street and alley were the City Council to get wise and one day ask for the land back. Adverse possession laws do not apply to land put to a public use that is owned by our government, so the District will never be able to claim that it is theirs. (See Texas Civil Practices and Remedies Code 16.030(b)). So, doing this MOU thing didn't accomplish a thing, and instead likely created some chinks in the City's and District's sovereign immunity armor. (Remember this sovereign immunity chink when I start putting up the images and videos of flooding in our community.)
And, third, ignoring the statute sends a terrible message to the ICISD students. It tells young people that their school and city will sacrifice the law in order to have athletic facilities, even when those facilities flood the football stadium. (No classrooms were built with bond funds.) This is a twisted set of values to communicate to young people our community is educating! Hopefully, though, this site will whet some appetites for more sunshine among our younger citizens. (Tip of the day to any sun worshiping ICISD students: 1. there is no minimum age to attend a public meeting like a school board or city council meeting, you just can't be disruptive; and 2. there is no minimum age to send a public information request, and if you can't afford the cost you can ask to just look at the documents for free.)
Can the City's MOU be challenged? I believe so, and there's no statute of limitations. The City Council's act of approving the MOU was void at the time it occurred because an ordinance is mandated by law, and there is a statute in the Local Government Code that tosses out the usual three year statute of limitations to bring an action when an act was void at the time it occurred.
All Mertzon property owners need to be aware that an MOU and a release of easement affidavit are not an acceptable methods to abandon a street or alley. The City Council will be tempted to use these methods as a precedent for future actions if none of us are educated on the law. This site is about more than storm water runoff and waste of taxpayer dollars. It's also about you learning how to protect your property from government overreach.
Alley Oops! Be good to your neighbor.
Related post: City Gym is a must read if you want to know why an ordinance is required to close a street or alley.