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Bandera's so-called 'Alley Wars' heats up

By Judith Pannebaker BCC Editor

A series of pre-trial hearings portend a coming jury trial in the case of The State of Texas vs. James McGroarty, or - as it's become known around town - "Bandera's Alley Wars."

For the record, the next pre-trial hearing will likely take place in August or September.

The first skirmish came during a pre-trial hearing on Friday, June 22, with Bandera Municipal Judge Lynn Holt presiding. Most of the time was taken up by protracted - and unfortunately out-of-earshot - wrangling between municipal attorney Barbara Boulware-Wells and McGroarty's lead attorney Allen Cazier of San Antonio. McGroarty is also being represented by former county attorney KH "Kerry" Schneider.

The latest brouhaha began when Boulware-Wells sent McGroarty a letter - hand-delivered on April 24 - addressing building code violations and encroachments on an alleyway inside his entertainment venue, the 11th Street Cowboy Bar, 307 11th Street. In the letter, Boulware-Wells referenced "various buildings built either by you or on your behalf (that) are encroaching on the public alleyway that is between Mr. Hart's property and the property formerly owned by Mr. Arizola and now apparently owned by you."

According to Boulware-Wells, city code permits had not been issued for construction of various buildings within the 11th Street complex. She continued, "You have indicated that you had been given a document(s) indicating you did not need to obtain permits, but to date you have yet to provide such documentation."

Eventually, City Manager Mike Cardenas issued a total of 10 citations to McGroarty - four for alleyway obstruction, four for violating setback distances and two for failing to obtain building permits.

Failure to comply with city codes results in a maximum fine of $500 per day per violation. Boulware-Wells' letter continued, "... you are required to appear in court and answer why you should not be found guilty of violating the City's ordinance." She added, however, that if McGroarty complied with the city's building codes' permits and removed the buildings "encroaching on the public alleyway" within 14 days, the complaints would be dismissed.

McGroarty's attorney responded with motions to quash all citations issued by the City of Bandera.

On May 10, Cazier also sent Boulware-Wells a Notice of Claim for Inverse Condemnation, stating that the public alley the city claimed was transecting his client's property had, in fact, been purchased by McGroarty earlier that year.

According to Cazier, McGroarty had purchased the property from brothers Alfredo V. Arizola and Domingo Arizola Jr. The Arizolas, it appears, had acquired title to the property by the means of adverse possession and a Final Judgment in Suit to Quiet Title from the 216th District Court in Bandera.

According to http://quiettitlex.com, "an action to quiet title is resorted to when various individuals or parties claim conflicting rights to the same piece of property. To settle the allegations and quiet all other false claims, this impartial legal action is brought to the court to resolve the title of a parcel of land in question. The court resorts to a quiet title action to prevent multiplicity of cases for all claimants and interested parties to one such specific property."

On Nov. 2, 2011, presiding Judge Stephen Ables signed the Final Judgment in Suit to Quiet Title order, allowing ownership of the property to revert back to the Arizolas, who apparently had used the property for decades. This "adverse possession" came about after a failed attempt to locate heirs of Charles Gersdorf and Frances Gersdorf. A legal term, adverse possession refers to "circumstances under which one may lawfully lay claim to ownership of property not origianlly one's own."

Extensive research of the property showed that the Gersdorfs had apparently filed the only deed extant on the property in the 1880s. The attempt to find the descendants of the original owners was accomplished by running four consecutive legal notices in two publications beginning in August 2011.

After obtaining ownership of the property by adverse possession, the Arizolas sold it to McGroarty. First American Title Insurance Company issued McGroarty an owner's title after attorney Susan Sims, president of Western Title of Bandera, Inc. reviewed the title history. McGroarty also relied on information supplied by a June 30, 2011 survey by Garry T. Allen, registered professional land surveyor.

According to Cazier, the title commitment and policy, survey and historical knowledge from persons familiar with the property point to the fact that "there is not and never has been a public alley or passageway through the property in question." He also wrote, "The mistaken belief that such an alleyway exists is based upon an error made in a deed's legal description well over 100 years ago, long before Bandera was an incorporated city."

Documents show McGroarty paid $137,000 in cash and a note secured by a grantee Ken Finley, trustee, for two alleyways and a center section located within the 11th Street Cowboy Bar complex. The deed is dated March 14, 2012.

A city spokesman said, "Nevertheless, Mr. McGroarty remains liable for setback violations and not securing required building permits."

Additionally, the Arizolas are purportedly responsible for payment of five years of back taxes on the property.

Cazier considered the citations filed by the City of Bandera as "an unlawful taking," noting that the conservative estimate of potential damage and loss to his client's property, leasehold and ongoing business at a minimum of $1 million.

Cazier even cited case law pertaining to his contention - State V. BP American Production Company. If a governmental unit acts intentionally, it is deprived of governmental immunity when that government takes property - even if it believes it has title to the property.

The coming court case will be discussed in an executive session of Bandera City Council on Thursday, July 5.

The saga of Bandera's Alley Wars will no doubt be continued, so stay tuned.