A tree easement
was formally attached to a tract of land near Watters Road and Bray Central Drive (by restrictive covenant), which is
now ready for development. The terms of
that tree easement are not compatible with the proposed residential development
and can only be lifted by action of the Allen City Council. In order to understand how this easement came
into being, the following background provides a summary of events over time.
A zoning
ordinance for the Aspens at Twin Creeks Senior Living (ATC) Development Project
required that "the east-west tree line on the northern property boundary shall
be protected by a separate restrictive covenant." Consequently, the ATC Ordinance Concept Plan
depicted a 7.5-ft easement on its northern boundary.
Pursuant to this
requirement of zoning, the property owner at the time, Bossy Boots Holdings,
filed the required restrictive covenant (attached), which encumbered a total
15-ft width tree easement, centered on the property line. At the time, property north and
south of the subject tree row was under the same ownership. The restrictive covenant grants the City Council the
authority to remove the easement. The closing paragraph of the restrictive
covenant has language that states in part, "This Dedication shall be perpetual
and may not be amended or terminated without the prior approval of a majority
of the City Council of the City of Allen, Texas."
A current
development project, adjacent to and north of the tree row and ATC, called The
Village at Twin Creeks Phase III (VTC), is commencing and has started grading. Unlike the zoning for ATC, the zoning
ordinance for VTC does not acknowledge or require the easement. The VTC project
has obtained approval for a final plat from the Planning & Zoning Commission
and needs the ability to re-grade property and construct improvements for
single-family backyards. The City's Urban Forester has visited the site and is of the opinion that the limited number of scrub trees in the easement to be abandoned are expendable. Because this
easement cannot be abandoned by simple action at platting, but requires
specific City Council action, staff is recommending the Allen City Council pass
a resolution to abandon the easement. The elimination of this restrictive covenant from future homeowner
backyards is appropriate given the adjacent uses on either side of the
property line. At the time it was established,
the zoning for the property allowed non-residential adjacency to the ATC
development. Currently, a wrought iron
fence exists between the ATC and VTC properties. The VTC project will be constructing an 8-ft
masonry wall between the VTC and vacant tract.
Based on guidance
from legal counsel, only the northern 7.5-ft of the easement can be
abandoned with this action. Abandonment of the southern 7.5-ft of the easement
cannot occur without a corresponding zoning action, because the southern half
of the easement is a requirement of the original ATC zoning, and would require
a corresponding zoning modification. Abandonment of the southern half of the easement is not required at this
time anyway, but may be considered if a zoning ordinance comes before the City
for consideration on the vacant tract that will remain, south of the tree line,
but east of ATC.