AGENDA MEMORANDUM

Meeting Date:           April 9, 2007

From:                          Fred A. Morrison

Subject:                      Railroad Right of Way Encroachment

Staff Recommendation:

Staff recommends authorizing  the filing of an action for ejectment against P & C Thompson Bros. Construction Co.  for the purpose of clearing up an encroachment into the railroad right of way purchased by the City from CSX Transportation and the Trust for Public Lands, so the property can be used for trail purposes as anticipated.

Analysis:

As you are aware, the City acquired a substantial portion of the abandoned CSX Transportation railroad right of way with the assistance of the Trust for Public Lands. As part of that process the entire right of way was surveyed to identify encroachments onto the right of way from adjacent lands in private ownership. One such encroachment was located on the property west of Canal Street owned by P & C Thompson Bros. Construction Co. A map showing the encroachment is attached to this Memorandum.

In other instances where such encroachments existed, the City has approached adjacent property owners and negotiated a sale of the affected portion of the right of way to the adjacent owner from whose property the encroachment originates. However, Mr. Perry Thompson has been unreceptive to these overtures and insists that the improvements on his property do not encroach into the City’s right of way.

Although the bulk of the railroad right of way was acquired using grant funds, the City had to buy those portions where there were encroachments using local funds, and is attempting to recoup those expenditures through the sale process alluded to above. If an owner, such as Mr. Thompson, is unwilling either to remove the encroachment or purchase the affected area, the City is left only with its legal remedies. The proper course of action would be to file a suit in ejectment against Thompson Bros. Construction Co., which is a legal action asking the Court to order the removal of any encroachments and to determine the proper boundary between the lands of the City and those owned by Thompson Bros.

The Commission is being asked to approve the filing of such an action, however if I am authorized to proceed, I would give Mr. Thompson one final notice, informing him of the Commission’s decision and offering once more to sell the affected area to him, before suit is actually filed. You should be aware that taking no action could result in the City losing title to the land affected by the encroachment, without recouping its investment in the property, through the legal doctrine of adverse possession.

Options:        

1. Authorize the filing of a suit in ejectment against P & C Thompson Bros. Const. Co., or

2. Such alternative  action as the Commission  may deem appropriate.

Fiscal Impact: 

If suit is filed, the City will incur legal fees and related expenses, and may have to retain the services of a professional surveyor to act as an expert witness at trial. Those expenses could range from two to three thousand dollars if the suit is settled amicably early in the process, to in excess of $25,000.00 if it goes to a full trial. Taking no action would avoid this expense but would have adverse consequences including the loss of the City’s investment in the property, and establishment of an unfavorable precedent which has the potential to affect the ability of the City to negotiate the sale of other railroad right of way on which encroachments exist, because the owners would see that the City has made an affirmative decision to allow the Thompson Bros. Encroachments to remain in place. Thus the revenue at risk extends beyond what would be received just for the sale of the property to Thompson Bros.

Submission Date and Time:    4/5/07 4:11 PM____

Department: ____City Attorney__ Prepared by:  Fred A. Morrison                Attachments:  Yes_X__   No ______ Advertised:   ____Not Required ___X__ Dates:   __________________________                      Newspapers: _________________________________                                                      _________________________________            Revised 6/10/04

Reviewed by: Dept. Head ________ Finance  Dept. __________________                                    Deputy C.M. ___________________                                           Submitted by: City Manager ______rs_____________

Account No. _001-1241-514-31-10___ Project No. __ 310081____________ WF No. _____65420 Job 8________ Budget  _____ $208,000__________ Available ____ $136,000__________

RESOLUTION NO._______

A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF LESBURG, FLORIDA, AUTHORIZING THE FILING OF AN ACTION FOR EJECTMENT AGAINST P & C THOMPSON BROS. CONST. CO. IN CONNECTION WITH AN ENCROACHMENT INTO THE CITY’S LAND ORIGINATING ON THAT COMPANY’S PROPERTY; AND PROVIDING AN EFFECTIVE DATE.

BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF LEESBURG, FLORIDA:

THAT the City Attorney is authorized to file an action for ejectment against P & C Thompson Bros. Construction Co., to clarify boundaries between City land and the property of that company and to eliminate encroachments into the City’s property which originate on the property of that company. .

THIS RESOLUTION shall take effect upon its passage and adoption according to law.

PASSED AND ADOPTED at the regular meeting of the City Commission of the City of Leesburg, Florida, held on the        9th     day of                         April                , 2007.

                                                                                    THE CITY OF LEESBURG, FLORIDA

                                                                                    BY:

                                                                                                MAYOR

Attest:

            CITY CLERK