History of the McElwreath Subdivision Landowner’s Association
April 2017
Since the creation of the name, McElwreath Subdivision Landowners’ Association (MSLA) in 2000, there has continued to be confusion from various landowners about what the entity described by that name is and what role it plays in their lives. The properties involved in the MSLA extend along Sand Hills Road, from its intersection with Red Rock Ranch Road to its dead end under LCRA powerlines, and those properties whose frontage is on Sandy Creek Road, Hill Top Road and Fealy Road. The total distance for these access roads adds up to 4.25 miles. This road system was originally set up as private roads, as there were no binding county rules at that time to mandate that they meet any standards. There are approximately 87 parcels of land that lay in this area, and about 76 individual property owners. To clarify issues about the MSLA that continue to arise, this history of the McElwreath property has been prepared.
In 1979, Don McElwreath, a real estate developer working out of Austin, Texas bought a tract of land in southern Bastrop county that was known as the Steiner Ranch, comprised of about 1311 acres. With the filing of the deed to this property, Mr. McElwreath also filed two other documents, entitled “Declaration of Landowners Association”(Declaration) and “Restrictions, Uses, Covenants”(Restrictions). His intent was to subdivide the ranch into smaller tracts for sale and these documents were intended to be conveyed to buyers of the land to establish their rights, restrictions and obligations that came with the purchase of land. Original buyers of the land from Mr. McElwreath were provided copies of these documents to accompany their deeds at closing. Over the years since, properties have been resold and various title companies have not exercised due diligence in researching the property histories and so new landowners have sometimes not been informed of these documents being a binding part of the legal framework for their property ownership. Though not all landowners were presented these documents at closing, they do represent a legally binding obligation to all landowners in the area of the MSLA.
These documents define the fact that all landowners are members of a landowners association, as described in Article 1 of the Declaration, as follows, “Each owner purchasing a tract or tracts within the hereinafter described property shall automatically become a member of the Association…” The primary role of the Association is described in Article 2 as “The Association shall be the governing and administrative body for all owners for the maintenance of all roads…” Each landowner is legally required in Article 3 to “be bound and obligated to pay and agrees to pay as assessments are made, the per acre proportionate share of the expenses for maintenance.” This road assessment fee was originally stipulated as $2/acre and Mr. McElwreath was to serve as Trustee of the Association and collect fees, due annually on November 1, and he would administer those funds and be responsible for maintenance of the roads.
In practice, in the years up to 2000, Mr. McElwreath never made any efforts to collect the road fees due annually, so it was a voluntary act for landowners to submit payments to him. The reality of his situation is that he paid for all road materials and maintenance as it was needed. It worked out that when the condition of the roads became too bad, owners would call him and eventually he would respond with contractors who did the work. There were various emergency situations during that time period with washouts and potholes from rain and one time a collapse of the 3-culvert bridge over Sandy Creek, and he responded with such responses as were necessary to keep the road passable. For original buyers of land from Mr. McElwreath there was an implication that Bastrop County would eventually assume responsibility for the roads and they would become county roads.
Around 1990, Mr. McElwreath met with Bastrop County Precinct 3 Commissioner Pat Meuth to see if there was a way the county could assume maintenance and upkeep of the roads in the MSLA. Under advice from the commissioner, Mr. McElwreath made a considerable investment in hiring a contractor to apply base to the roads, up to 8” deep, install multiple culverts and address drainage and any other issues deemed to be relevant to bring the road up to a higher standard. For reasons never made clear, as this was a gentleman’s agreement, and no legal documents were signed, the road was never transferred to county control. This was the last effort to attempt a road upgrade to enable the roads to be taken over by the county.
In January 2000 construction began on a cell phone tower at the very end of Sand Hills Road under the LCRA high-tension power lines that run from the Fayette County Power Plant to Lytton Springs. Heavy construction equipment was driving Sand Hills Road to access the construction site, which was not situated on McElwreath Subdivision property but on adjoining property owned by the McReynolds family. The McReynolds had gained access to Sand Hills Road by acquiring a 20’ right-of-way to their property sold by a McElwreath Subdivision resident off the edge of their property. As Article 1 of the McElwreath Subdivision Restrictions forbids commercial use of properties in the subdivision, this use of the subdivision road was in violation of the property rights agreement assented to by all owners of property in the subdivision.
Confronted with the fact that they were using a private road without permission for purposes not allowed in the property rights agreement, the owners/builders of the cell tower, GTE, decided to pull their construction traffic off Sand Hills Road and access the tower site through the McReynolds ranch roads instead. During this legal wrangling, Mr. McElwreath was informed of the problem confronting the subdivision and asked for his advice and possible help in resolving the matter. Mr. McElwreath divulged that he was suffering from terminal cancer and could not spare the energy to get involved and he asked to be relieved of his Trustee duties and pass them on to one or more resident subdivision members. He said he would no longer be able to maintain the road and that responsibility would now fall on the landowners themselves. Kimberly McCutcheon was the person in communication with Mr. McElwreath, so he appointed her and James Harris as the first Trustees to act in his stead. The two new trustees accepted their new responsibilities and formed a legal entity called the McElwreath Subdivision Landowners Association (MSLA).
Meetings were held with residents and discussions followed, centering at first on the effects of the cell tower construction on our roads. GTE did pay for some road repairs, but the work accomplished little in long term improvement of the roads and they did not offer any long term support in recompense for their use of the road. Discussions were held at meetings about organizational plans for the MSLA, including the necessity of raising adequate funds to maintain the road and whether to continue with the trustee arrangement or instead set up an organization modeled on homeowner’s associations with elected officers and a set of bylaws governing the organization. Mr. McElwreath donated an old road maintainer to the community and it was used for some early road work, run by community volunteers. The $2/acre road fee assessment was found to be very inadequate as far as establishing a fund for paying for machine maintenance and road materials, as it would only bring around $2000 a year if every member paid their fees. Many subdivision landowners did not pay their fees so the actual funds collected were less than half the amount if all fees were paid.
Mr. McElwreath succumbed to his illness so any support he may have offered was now gone. After a couple of year as trustees, the initial trustees suffered burnout and new trustees were appointed by them in January 2003, to include Chris Erlon, Michael Collier and Craig Chapman. Craig soon moved away and the vacancy was filled by Linda Laughinghouse. Discussions at meetings led to proposals for organization with new bylaws, and preliminary documents were proposed, but these were never followed up on, as legal advice was decided to be needed and there were no funds to pay for those legal fees. Instead members worked on a set of revisions to the existing McElwreath Declaration and Restriction documents (historical and current versions can be seen here). These changes set up a process for amending the governing documents and a process for establishing quorums for meetings that would allow landowners to vote for actions to take regarding the roads and their maintenance and for amending the existing Declarations and Restrictions, if needed. Residents were presented with a ballot to vote on and the changes were approved by a majority of landowners in 2006-7 (certification of approval).
Since it was realized the original funding process was inadequate, after long consideration, it was decided to change the road fee assessment from $2/acre to a simple of fee of $120/year per landowner, whether that landowner owned one parcel of land or multiple parcels and whether landowners owned the minimum lot size of around 5 acres or larger acreages. The principle established was that everyone owning land needed access to their land and all landowners would pay the same amount, not based on acreage owned, but on the fact that every landowner had an equal need for road access to their land. The funding formula was changed and submitted by ballot to a vote by the landowners and approved in 2010 (certification of approval + revised declaration).
Over a few years, the maintainer given by Mr. McElwreath became impossible to keep running as it suffered severe hydraulic leaks, then needed engine work and was basically worn out. Subsequently, various options of renting road maintainer equipment were utilized and the community tried to keep up with the maintenance needs of the roads. However, inadequate funding meant always playing a catchup game, often having to react to severe road damage following heavy rains. Without the full yearly funding of about $10,000, which would be realized from full payment of road fees by all landowners, the MSLA did the best it could, never receiving more than about half of payments due.
After the severe Bastrop Fire of 2011, the Laughinghouse and the Erlon landowners moved out of the subdivision and new trustees Joe Dickson, Ed Dupnick, Reza Pouragabher, and Jim Williams were appointed by the previous trustees and took on the MSLA management duties. Severe flooding rains in the spring of 2015 further damaged the bridge, or 3-culvert overpass, at Sandy Creek and subsequently the local garbage truck, in passing over the bridge, broke through the top. It was found that the underside of the bridge was severely eroded, culverts were rusted through and the bridge was literally starting to fall apart. Several consultants, from Bastrop County and TXDOT were asked to look at the damage and offer suggestions. Their advice was to replace the bridge. Extra diligence by several community members ended up with a contractor who rebuilt the bridge with new culverts and a reinforced concrete shell over and around the culverts that should prove much more durable than what was in place. The repairs were an unanticipated expense and exhausted the MSLA treasury, costing about $18,000 in the summer of 2015.
Efforts are now ongoing as the Trustees try to get compliance from all landowners to pay up on past due road fees and to have full participation of the community in funding their shared road. The MSLA has the legal right to enforce liens against landowners with unpaid road fees. Efforts to date to get any assistance for the bridge repair or to have the county take over maintenance of the road or offer any partial support have been unsuccessful. State law forbids the county to use its resources on any private property and that has left the community with no option but to depend on the efforts of volunteers to keep up the road and to depend on the money collected from landowners as the source of funding all necessary road expenses, including buying any materials and hiring road maintaining equipment and operators. This process is inadequate to produce a road up to any current standards used by a community or required by the county, but since the subdivision was founded a bit less than 50 years ago under existing laws and standards in place at that time, it is “grandfathered” in the legal sense and cannot be made to comply with existing laws and standards.
The bottom line is that our only option at this time is gain full compliance of road fee payments so there is available the full amount of funding under existing MSLA governance to keep up with the road needs. With this level of funding, the road will never be able to be fully rebuilt, but addressing potholes, washouts and a minimum of repairs/maintenance can be done a couple of times a year. With road base priced at about $300/load and equipment rental well over $50/hour, the road fund is easily used up in “catchup” work and major improvements in the road are not possible.