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Home My WebLink About11-21-24 Public Comment - R. Mattick - Letter to City of Bozeman re Comments by Middle Creek Ditch Company re Range 5 Site Plan - Application 23306From:Dineen Ross To:Bozeman Public Comment Cc:Ryan K. Mattick; Kevin Haggerty Subject:[EXTERNAL]66110-010 Letter to City of Bozeman re Comments by Middle Creek Ditch Company re Range 5 SitePlan - Application 23306 Date:Wednesday, November 20, 2024 4:15:44 PM Attachments:2024-11-20 - Letter to City of Bozeman re Comments.pdf Importance:High CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Good afternoon: Please see the attached letter outlining comments by Middle Creek Ditch Company regarding Range 5 Site Plan, Application 23306 for your review. Please confirm receipt. Thank you. Dineen M. Ross Paralegal to Jennifer Farve and Ryan Mattick Cusick, Farve, Mattick & Michael, PC 517 S. 22nd Avenue, Suite 5 Bozeman, MT 59718 (406) 587-5511 – main (406) 587-9079 – fax dineen@cmrlawmt.com – email Mailing: P.O. Box 1288 Bozeman, MT 59771-1288 NOTICE: This e-mail (including any attachments) is confidential, may be protected by Attorney-Client or other privilege, and is intended only for the use of the individual or entity names above. If this e-mail was sent to you in error, please notify us immediately either by reply e-mail or by phone at 406-587-5511, then delete it. Do not use, disseminate, retain, print or copy this e-mail or its attachments. Thank you. 66110-010/20255 Michael J. L. Cusick Jennifer L. Farve Ryan K. Mattick Jeremy A. Michael THE LAW OFFICE OF CUSICK, FARVE, MATTICK & MICHAEL, P.C. 517 S. 22nd Avenue, Suite 5 Bozeman, MT 59718 Mailing: P.O. Box 1288 Bozeman, MT 59771-1288 Email: office@cmrlawmt.com Phone: (406) 587-5511 Fax: (406) 587-9079 November 20, 2024 Via Email Only: comments@bozeman.net City of Bozeman Department of Community ATTN: Community Development Application 23306 P.O. Box 1230 Bozeman, MT 59771-1230 Re: Range 5 Site Plan – Application 23306 Public Comment Our File No.: 66110-010 Dear Community Development Department: Please accept this letter as public comment in opposition to the above referenced application on behalf of my client, Middle Creek Ditch Company (“MCDC”). I represent MCDC in several negotiations with developers whose developments infringe MCDC’s long established ditch easement and/or secondary easement rights. With regard to Application 23306 – Range 5 Site Plan, there are two MCDC’s ditch easements that are a burden on the 2B Holdings’ – Range 5 property. The first ditch is depicted on the site plans on existing ditch lateral – MCDC. The second ditch runs along the ease side of Fowler Lane. There is also an existing ditch that is part of the off-site improvements to this project that does not even show up on plans. §70-17-112, MCA requires any person who proposes to interfere with or infringe upon an existing ditch easement must receive written permission to do so. The Montana Supreme Court has determined that “the prevailing view is that the owner of the servient estate may not erect any structures that encroach on a right-of-way…servient owners cannot pursue a development plan that encroaches upon a right-of-way even if the dominant owner still has an unobstructed passageway. If the improvement is temporary and easily removed, it is generally not unreasonable. The more expensive the improvement or the more difficult its removal is likely to be, the more likely the conclusion that the improvement is unreasonable interference with the easement.” Musselshell Ranch Co., vs. Seidel- Joukova, 2011 MT 217 ¶26 (internal citation omitted). All of the proposed development plans will permanently impair and infringe upon MCDCs ditch easements and secondary easement rights to inspect, maintain, and clean its ditches. The existing irrigation ditch lateral – MCDC is almost entirely being preserved through the proposed park land of Phase 1. However, this project proposes to utilize a ditch culvert under the extensions of Bennett Boulevard and Apex Drive. However, no details are provided of the size and capacity of the City of Bozeman November 20, 2024 Page 2 of 2 66110-010/20255 culverts. Additionally, these culverts are the exact type of permanent obstruction that the Supreme Court found in Musselshell Ranch, to require written permission. MCDC has not granted the applicant written permission to permanently infringe upon its easement and secondary easement rights. MCDC tried to contact the applicant prior to submittal and was generally rebuffed in reaching a resolution before submittal. Pursuant to the city code, developers must receive permission before final approval can be granted. Such permission has not been and will not be granted without additional detail and requirements for the culverts under Bennett Boulevard and Apex Drive. The other MCDC ditch affected on the applicant’s property is the ditch that runs the entire length of the east side of Fowler Lane. Applicant proposes to completely fill in this segment of MCDC’s ditch. MCDC opposes this plan to completely remove MCDC’s ability to convey water to the east side of Fowler Lane Ditch. The applicant’s plan is based on the false notion that MCDC abandoned this ditch as part of the Buffalo Run Development. The notion is false because the agreement between MCDC and Buffalo Run was only to fill in that portion of the east side ditch along Buffalo Run’s property, not to abandon the entire ditch easement north of the Buffalo Run property. Nothing in the agreement abandons MCDC’s existing easement rights outside of Buffalo Run’s property. The applicant is not a party or third-party beneficiary to that agreement. Additionally, as part of that agreement, the historic culvert was replaced that takes water from the west-side ditch back to the east-side ditch above, or south of the applicant’s property where MCDC then conveys water back along the east-side ditch all the way to Stucky Road. Applicant’s plan assumes filling in the ditch but does not provide for how to convey water back to west side of Fowler at applicant’s property. Applicant assumes MCDC will agree to filling in ditch with no ability to convey water along Fowler. MCDC opposes filling in its ditch on applicant’s property. As such, the applicant’s plan must be denied. Off-Site Ditch Applicant proposes off-site improvements to 27th Avenue. However, no consideration for MCDC’s existing irrigation ditches along 27th Avenue are noted or considered in the plans. The proposed 10’ asphalt widening will completely infringe upon MCDC’s ditch on both sides of 27th Avenue and MCDC’s secondary easement rights to repair, maintain, and clean its ditch. Applicant fails to establish required setbacks for the proposed work. The application doesn’t even note the existence of MCEC’s ditches, in violation of application requirements. MCDC does not consent to these direct infringements of its ditch and secondary easement rights. For the foregoing reasons, MCDC requests the Planning Department deny applicant’s proposed development. Thank you. Sincerely, /s/ Ryan K. Mattick Ryan K. Mattick RKM/dmr cc: Client (via email only)