Creek erosion pits Arlington homeowner against school district

Kellye Scism has been trying to get the Arlington school district to address erosion issues behind her house, but the district says it has immunity under state law.
Kellye Scism has been trying to get the Arlington school district to address erosion issues behind her house, but the district says it has immunity under state law. Star-Telegram

Standing at the gate of her backyard fence in southwest Arlington, Kellye Scism has a clear view of Martin High School, towering trees and the gurgling Kee Branch.

But she watches her step. Three feet beyond the fence, the grass disappears into a roughly 12-foot drop off an eroding creek bank.

With every big rain, she says, Kee Branch swells, the grassy perimeter gets narrower and the bank gets closer.

And she gets madder at her neighbor, the Arlington school district, which owns the land and Kee, a Rush Creek tributary, up to her property line.

“What is so frustrating is the school district won’t maintain its own property,” said Scism, who bought the home and half-acre lot nine years ago with her husband, Tim, when “you could drive a truck between our fence and the creek.”

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School officials say their hands are tied. The district has no legal obligation to shore up the bank because of its immunity under state law, said school district attorney Dennis J. Eichelbaum.

To spend tax dollars to benefit Scism would amount to a “gift of public funds,” a violation of state law, he said.

School Trustee Bowie Hogg, a former board president, said he believes that the district has the desire to help.

“I wish we could,” he said. “I feel for her 100 percent, but we follow legally what we have to do.”

Scism, who first asked the district for help in 2013, was unmoved by the sentiment.

“Because of their immunity,” she said, “they don’t have to be a responsible property owner.”

‘A tough situation’

On Wednesday, Scism met briefly with state Rep. Tony Tinderholt, R-Arlington, at her home near Kelly Elliott Road north of Interstate 20.

Tinderholt was surprised when he took his first look at the creek since his last visit two months ago.

“Holy cow!” he said. “It’s eroding at a very, very fast rate.”

He and Scism are taking aim at a specific provision in state law — Section 101.051 of the Texas Tort Claims Act — that extends immunity for school districts and junior college districts well beyond the protection afforded cities, counties and other state governmental entities.

Tinderholt said the “long-term solution” is to require all jurisdictions to “maintain their property the same as individual citizens do.”

But Eichelbaum that goal should not include scrapping the immunity provision.

“The consequences of altering 101.051 would be catastrophic,” he said. “Schools, which are currently underfunded, would have to budget millions of dollars for litigation and potential liability, money which is currently earmarked to educate children.”

He said those higher costs would further threaten budgets for extracurricular activities.

Tinderholt and Scism have enlisted Arlington Mayor Jeff Williams in their cause. Williams said he has seen the erosion behind her house and found it distressing, but he said there are many others facing major erosion problems around the city.

Under a policy dating back at least to 1993, the city has limited itself to implementing flood-control projects and leaving homeowners responsible for creek erosion problems on private property — even though flooding creeks cause much of the erosion. City officials have said creeks running between private properties belong to those property owners.

But recently, citing the huge costs of erosion repair, Williams and the City Council have been considering providing financial support for homeowners who want to undertake such projects.

“It’s really a tough situation,” Williams said, “because these are very expensive problems to solve, and many are very complicated. The city historically has not paid for that.”

City takes on flooding

The concept being discussed, Williams said, is to establish a fund that residents can apply to for help with erosion repairs. Depending on the availability of funds, cases of erosion that threaten multiple private properties or public infrastructure, such as roads and bridges, would be higher priorities, Williams said.

He also urged people planning to buy homes to beware.

“They do need to be conscious that when near creeks you might have to do an erosion repair,” Williams said. “Or when you buy homes with retaining walls — those walls don’t have an indefinite life.”

The city said it has stepped up its campaign against flooding. Spending $59 million since 2009, the program has “alleviated 358 flooding problems,” a city official said recently.

Some of that work has been in the area of Kelly Elliott south of I-20, where many homes have flooded.

Scism said she believes the city has done other drainage work in her area, including installing concrete banks along Kee Branch to the Woodside Drive bridge. It’s the only way she can explain a drastic increase in the rate of erosion of the natural creek bank at her property.

City officials were surprised to hear that. They said that the concrete banks were installed at least 30 years ago, possibly by a developer, and that the city has made no other drainage improvements that would have affected water flow in the creek.

Scism said she and her husband recall seeing “some kind of work going on” along the creek in recent years.

“Well, the water is coming from somewhere,” she said. “Not only has the amount of storm water increased greatly, but it greatly increased the flow, which has exacerbated the erosion. “I would say it has tripled how fast it has eroded.”

But, she said, she was never upset at the city. “The city is working to find a resolution while the school district is just holding up their hands, saying, ‘We have immunity. Not our problem.’ 

An ongoing problem

District officials first spoke with Scism about her erosion complaint in 2010, and again in 2011, said district spokeswoman Leslie Johnston. School officials contracted an engineering firm to evaluate the creek. The engineers estimated that lining both sides of the creek in that area with gabion rock baskets would cost $273,000.

“However, state law prohibits the AISD from utilizing public funds in what is a private matter,” Johnston said in an email.

With the heavy rains last spring, the erosion “became critical,” Scism said. “It took a large pecan tree, and I knew my fence was going to be next.”

In June the district sent her an email that included a formal, lengthy review of state statute and case law on the immunity issue, prepared by Eichelbaum.

For the district to be liable in Scism’s case, she would have to prove the district caused the erosion, such as by developing the property for school use, according to the document. Such “modification” of the mostly greenbelt land between Woodside Drive and Scism’s fence isn’t likely, a school official said.

The email ended with an option for Scism: “While the AISD cannot give a gift of public funds, …. [the district] is willing to place the property on the market for her to purchase, after which she can make any adjustments to the property she chooses. ...”

Scism’s response: “Why in the world would we want to buy their problem?”

“They’re trying to ignore me and hope I go away,” she added. “I’m not going away.”

Robert Cadwallader: 817-390-7186, @Kaddmann_ST