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  1. #1
    Join Date
    Jun 2010
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    Default Erosion Control and Utility Easement Access

    I am a homeowner of a home in a platted subdivision in Oklahoma. I have owned the home for nine years.

    The rear boundary of my lot borders a natural creek and greenbelt owned by the municipality. That boundary also includes a utility easement from my property line 10' into my property. There is also a semi-permanent structure in that easement which existed at the time I purchased the home and is shown on the survey of the property done at the time of purchase. I do not know the exact year that it was built; the home was built in 1978. There are overhead utility lines (electricity, telephone and cable TV) that run within 1' of my property line (on the municipal property) more or less parallel with my property line. It's also important to note that my lot slopes down front-to-back toward this border and drops about 2' in 100' from the front but another 3' in the last 10' approaching the creek, and there is an existing fence along my property line which is also noted on the survey. It may be important to note that I may or may not be in a flood plain because of the proximity of my lot to the creek. Neither of my neighbors are, or so they claim, but I supposedly am, according to the municipality -- though my mortgage company does *not* require me to carry flood insurance, and my house actually sits higher than *both* my neighbors by about 18". However, the back of my lot is lower than both of theirs, and performing this action would raise that part of my lot to a minimum of the same level as theirs.

    Last year, the municipality ordered a clearing of the land around the creek for various reasons and ordered that certain types of trees be removed (cottonwoods, most specifically). The work was carried out by city crews, and where there was once a fairly thick growth of trees both large and small as well a groundcover-type vegetation there is now largely nothing but dirt.

    As a result of the clearing, my neighbors and I have begun to experience moderate to serious erosion of our lots, especially in the back where the ground-cover vegetation was completely destroyed. It is proceeding to a point that there is damage to the semi-permanent structure due to the ground subsiding due to the erosion as well as the fencing that borders the creek/greenbelt area, and I am becoming concerned about the likelihood that there could be damage to my home's foundation if it is left unchecked. Already there has been several inches of topsoil from my lot that has been washed away in the past year that was not affected in the previous eight years that I have lived here, and the effects are creeping closer to the house. I have installed some erosion-control measures in my yard, but what I think will be eventually required as a permanent solution is a retaining wall along the back of my property and some moderate-to-major earthmoving to reshape my lot to stop the erosion while still draining the lot properly.

    Here is my major concern (and I apologize for the length, but I feel the detail is both necessary and important to communicate). Due to the path of the creek, the layout of my lot and the adjacent lots and previously-existing fencing, any work that is done on a single utility pole adjacent to my property (but not on it) requires access through my yard. There is no way for the utility companies to get equipment through the municipality-owned property, as the slope into the creek behind me is too steep and too narrow for them to bring any equipment on. This was confirmed at the beginning of this year when said utility pole broke off just below ground level during a storm an had to be replaced; the utilities sent several crews out to survey and assess the work before informing me that they *had* to come through my yard because it was the only access they had to replace that pole.

    So -- if I decide to proceed to build a retaining wall to control the erosion, can I legally build it on the existing fence line (which was confirmed by the survey at the time of purchase), or would I need to come in to the border of the 10' utility easement? The utility companies would still have access, though it could see a horizontal level change of anywhere from 1 to 3 feet from the current level of my lot, depending on where they were standing on my lot at the time. I would be erecting a replacement fence on top of the retaining wall as well to replace the existing fence. Local codes do not require that I obtain a permit to replace the existing fence. I would be raising the level of the fence somewhat, technically, with the installation of the retaining wall, but will be within what the municipality would allow for a replacement fence without a permit. It's the retaining wall and its location that is the real issue for me. As long as it's on or within my property line and is installed so as to control erosion and prevent damage to my home, does the utility or the municipality have any right to object? Would it fall under 'landscaping' and simply be ignored, or would I open myself up to legal issues because of its position in relationship to the utility easement?

    I apologize for the length, but as I said I think all of the details are germane, and I appreciate feedback. Thank you.

  2. #2

    Default Re: Erosion Control and Utility Easement Access - Oklahoma

    Your concerns sound very similar to the type of issues I deal with regularly. First, let me answer what sounds like your main question or concern. As far as constructing a retaining wall within an easement, you should definitely consult the with your local municipality or view the ordinance/law relating to setbacks and easements. In the municipality I work, we forbid any permanent structures to be erected within an easement. Many municipalities forbid this also, but there may be some that would ALLOW you to build a structure within an easement, but if access is needed within the easement, then the property owner would be responsible for the cost to remove the structure.

    The other issue I wanted to comment on is the issue with erosion you are experiencing that appear to be a direct result of the clearing of land along the creek. Depending on the classification of the creek/stream, there may be state and/or federal statues (related to Clearwater Act) that may govern activities performed along jurisdictional streams. At the very least, since trees play an important part in the stabilization of creek banks, they should have replanted some kind of ground cover to prevent erosion. You may want to consult with your state's water quality or natural resources department to inquire about oversight of the work done by the City.

    Hope this helps and I would be curious to know what you find out.

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