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HomeMy WebLinkAbout08-25-17 Public Comment - S. Swimley, Attorney at Law - Links Appeal SUSAN B . SWIMLEY 1807 West Dickerson, #B Bozeman, MT 59715 Attorney and Counselor At Law Phone: (406) 586-5544 Facsimile: (406) 586-3130 August 25, 2017 Bozeman City Commission P.O. Box 1230 Bozeman, MT 59715 RE: Appeal of Administrative Decision—Project 17365 for the Links Condominiums—site application 16374 Dear City Commission: This firm represents Golf Course Partners as the owners of the property upon which the Links Condominium site plan is proposed. Please uphold the administrative decision approving the site plan application 16374, application for residential development at 2411 Birdie Drive- Links Condominiums. The appellant's interpretation of the Bozeman Municipal Code (BMC) is in error and the approval, as issued, is in compliance with all applicable codes and guidelines. The appeal erroneously seeks for have the City of Bozeman force a street, as defined by the BMC, through the approved lot for the benefit of the appellant Bridger Center, LLC and to the detriment of the project. Bozeman City staff correctly analyzed the application and the BMC finding that no such requirement exists. Appellant Bridger Center, LLC 1 mis-reads and mis-applies the BMC when Mr. Murphy alleges that the BMC requires a street to Bridger Center, LLC's county property. The BMC does not require such a burden on the present property. The planned unit development subdivision was approved in 1999. It was at that time that the street layout and traffic impacts were analyzed. To impose such a non-required condition now, would not only reduce the density and cause a needless reconfiguration of the site but would also put Golf Course Partners in violation of the recorded condominium declaration. Street layout and construction requirements are normally associated with subdivision review criteria. The current application is not a subdivision application. The current application for development is site plan approval for condominiums units, which are exempt from subdivision review pursuant to MCA §76-3-203. As the appellant acknowledges there was no requirement in 1999 to extend a street to appellant's property. The streets and impacts of traffic did not and do not include any projection of traffic from appellant's land. To impose such a burden on an existing approved subdivision lot could cause safety issues. Please note that the appellant was aware in 2013 at the time of purchase that its property did not have access to a municipal street. To its own detriment, Golf Course Partners has provided a full utility easement to appellant's land. During the review process, City Engineering commented"Although not required, the ' Golf Course Partners does not agree that Bridger Center,LLC is an aggrieved party under the BMC and further does not agree that Bridger Center,LLC has standing to bring this appeal,as the property is not annexed into the City of Bozeman. utility easement should be a water and sewer easement from Boylan Road....". In fact, Golf Course Partners secured both a water and a sewer easement over, across and under the lands of Bridger Creek Subdivision in the location recommended by the City Engineer. This full utility easement is attached hereto as Exhibit A. In order to entice Bridger Creek Subdivision Owners Association (HOA)to grant said utility easement, Golf Course Partners was required to surrender any right it may have had to require the HOA to grant easements. Thus, Mr. Murphy's, member and representative of appellant, suggestion on page 5 of the appeal (page 249 of the City packet information) is in error. While the validity of enforcing such a declarant reservation was in question from the beginning, what is now clear is that Golf Course Partners does not possess such authority. Also worthy of note is that obtaining the utility easement delayed submission of the site plan application for six (6)months during which time the HOA, the City Attorney and the undersigned negotiated acceptable terms of the easement, which solely benefits the appellant. Also clear is that Golf Course Partners has worked to provide to Mr. Murphy's Bridger Center, LLC property every accommodation that could possibly be made, even if those accommodations delayed the Links project and even if the accommodations were not required by the BMC. The BMC does not require reconfiguration of the project to provide Mr. Murphy's Bridger Center, LLC property a second access to a public street so that Mr. Murphy can maximize the density of development of the property, when and if the property is annexed to the City. Please uphold the correct administrative decision to approve the site plan application for the Links Condominiums and allow this fully compliant development to move forward. Thank you. Sincerely, Susan B. Swimley Attorney for Golf Course Partner/The Links Encl. Page 2 of 2 After Recording return to City of Bozeman City Clerk PO Box Ixar Boze 2584906 man,Orr sore-lx3o Page: 1 of 4 07/07/2017 11:24:08 PM Fees $38.00 Charlotte Mtlls - Gallatin County, MT MISC Ill llllilINN11111MIIIIIIN 111111111111111111011111111111111 UTILITY EASEMENT Bridger Creek Subdivision Community Association,Inc.with address of P.O.Box 4592, Bozeman,Montana 59771 as GRANTOR, in consideration of S 1.00 and for other and valuable considerations,receipt of which is acknowledged,grants,subject to the restrictions stated herein, to the City of Bozeman,a municipal corporation of the State of Montana,with address of 121 North Rouse Avenue, Bozeman, Montana 59715, GRANTEE, its successors and assigns, a utility easement for the use by the Tract being approximately 12 acres depicted and described on Certificate of Survey 885,in Section 31,Township I South, Range 6 East,Gallatin County Montana, (benefited property) in, through, and across a parcel of land situated in Gallatin County,Montana,to be located on the following described real property commonly known as Private Park within Bridger Creek Subdivision Phase I in the specific locations depicted on the attached exhibits.The easement is more particularly described on the attached Exhibit A,which by this reference is made a part hereof. This easement shall not become valid and effective until such time as the benefited property has received final site plan or final subdivision plat approval from the City of Bozeman. The acceptance by the Grantee of this easement may not be construed as approval of any site plan or subdivision on the benefitted property. Grantor grants to Grantee the right to utilize Thirty(30)feet in width,fifteen(15)feet on each side ofthe centerline described above,for purposes ofconstructing,maintaining and repairing a water pipeline and sanitary sewer pipeline. Following construction referred to herein, Grantee shall cause to be removed from the above-described property,all debris,surplus material,and construction equipment,and cause such property to be left in a neat and presentable fashion,and cause the area disturbed to be restored to its original condition.After construction of the pipelines,Grantee shall be responsible for the repair,maintenance,and upkeep of the pipelines. In addition,Grantee acknowledges that the easement crosses a drainage swale. As such,Grantee shall not take any action that will permanently and adversely impact either the quality or the flow of any surface or subsurface water. In all respects,Grantee shall comply with all applicable laws when constructing the pipelines. Grantee shall cause a weed management plan to be implemented and all disturbed areas to be re-seeded. Grantee shall cause all permits and licenses necessary for the construction of the pipelines. Grantor shall not take any action or allow the construction of any improvement that would inhibit the use of the water pipeline and sanitary sewer pipeline from the stated purpose of this easement, l 2584906 Page 2 of 4 07/07/2017 11:24:08 AM The perpetual easement granted herein shall be for repair,maintenances and replacement, as necessary. Neither party may modify the size,scope or location of the easement without the prior written consent of both parties.Grantor is specifically not granting an easement to Grantee for ingress or egress,or any other purpose other than the pipelines described herein. If Grantee disturbs the surface(including,but not limited to paving)of the real property underlying the easement during the maintenance or repair of the pipeline,Grantee shall cause the disturbed area to be restored to its original condition.Grantee shall be responsible for obtaining all permits and licenses necessary for the maintenance and repair of the pipeline. Grantor recognizes Grantee may require the owner of the benefitted property to assume Grantee's responsibilities under this easement. The GRANTOR states that it possesses the real property described above and that it has a lawful right to grant an easement thereon. The GRANTOR further agrees that the GRANTEE may peaceably hold and enjoy the rights and privileges herein granted without any interruption by the GRANTOR The terms,covenants,and provisions of this easement shall extend to and be binding upon the heirs,executors,administrators,personal representatives,successors,and assigns of the parties hereto. DATED this X day of_,V,*�2017. GRANTOR Bridget C ubdivisio mmunity Association,Inc By: Sharyn alt,President STATE OF MONTANA ) :SS. County of Gallatin ) On this(P day of.1u�2017,before me,the undersigned,a Notary Public for the State of Montana,personally appeared Sharyn Anhalt,the President of Bridger Creek Subdivision Community Association,Inc.known to me to be the person whose name is subscribed to the within instnunent,and acknowledged to me that she did execute the same on behalf of the corporation. IN WITNESS WHEREOF,I have hereunto set my hand and affixed my Notarial Seal the day and year first above written G (SEAL-) � Notary Public fo State o (Printed Name) .. .dr'"' KARIN M JENNINGS Notary Publc =k�'Z10YANrAt pNc for the State of Montana * SEAL.:, Residing at: uj - >�9 . . My Commission Expires: September 07,202o 2 2584906 Page 3 of 4 07/07/201 7 1 1:24:08 AM ACCEPTED; CITY OF BOZEMAN BR©?� by • •. 1 City Manager(tvt e Att— ATTEST: ;U• �{ �' City C1erI {• i 883 t .• c .�9rrN co.rs°�•-•. STATE OF MONTAN 4' •.) .. :ss. County of Gallatin ) On this 0-4— — day of . ,� Qom,2017,before me,a Notary Public for the State of Montana,personally appeared C#'ht -5 M.TK4LO Land ROBIN CROUGH,known Vj tM to m�City Manager and City Clerk,respectively,of the City of Bozeman and the persons whose'names are subscribed to the within instrument,and acknowledged to me that they executed the same for and on beha►f ofthe City of Bozeman. IN WITNESS WHEREOF,I have hereunto set my hand and affixed my Notarial Seat the day and year first above written. (SEAL) C',,KEN ALICiAKENht[DY No Pubhe ort ate Mon a NOTARY PUBLIC Wt te (Printed NamSTATE OF MONTANA (Printn at Reskong at Bozeman,Montane gMy Fxpkm My Commission Expires !t_L _C20�µ°•' August 04,207g r 3 2584906 Page 4 of 4_07/07/2017 11:24:08 AM EXHIBIT A A UTILITY EASEMENT,30 FEET WIDE,OVER AND ACROSS PRIVATE PARK OF BRIDGER CREEK SUBDIVISION PHASE 1, SITUATED IN THE SETA OF SECTION 31,TOWNSHIP I SOUTH,RANGE 6 EAST, PRINCIPAL MERIDIAN,GALLATIN COUNTY,MONTANA. PRIVATE PARK -——————————— 0 C.O.S.885 \ \ POINT OF BEGINNING 8"DRAIN PIPE LEGAL DESCRIPTION A Utility Easement 30 feet wide,over and across Private Park of Bridger Creek Subdivision Phase 1,situated in the SEI/4 of Section 31,Township 1 South,Range 6 East,Principal Meridian, Gallatin County,Montana,the centerline of which is more particularly described as follows: Commencing at the Northeast comer of Certificate of Survey No. 885,thence S33*24'03"E a distance of 237.00 feet along the Northeast line of Certificate of Survey No.885 to the Point of Beginning being the centerline of said Utility Easement thence N43*0&6WE a distance of 104.37 feet across the Private Park of Bridger Creek Subdivision Phase I to the Southeasterly R1W of Boylan Road;from which the point of curvature of the Southeasterly R/W of Boylan Road bears S46'59127'E a distance of 71.87 feet, CERTIFICATE OF SURVEYOR 1,Jon C.Wilkinson,Montana Professional Land Surveyor License No. 16411 LS,hereby certify that I conducted this easement survey Basis of Beating is Montana Dated thi.__TLa Lday of_tj4f:!���2017. """"'NZ State Plane Zom 2500 T A Jon C.Wilkinson,PLS,CFedS MT Reg.#16411LS -0 &': Morrison-Materle,Inc, No.1 1 01 C. vo, 60 30 0 60 SCALEIN: FEET EMIBITA ornson52s=Too m.T-.yB,N,d Wool —DWW tfwy and BOZEMAN MONTANA APPP-"; JW FIVAIZ WVSER Maierle DATF--OMI-7 UTILITY EASEMENT FIG. I