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Home My WebLink AboutBig Sky regarding 360 ranch BIG SY LA\I7 CO\ LTI\G,PLLC Mr. Andy Epple 17,D ; n �i7 c_., Planning and Community Development City of Bozeman 20 East Olive .1 IIS a (- Bozeman, Mt. 59771-1230 = - r G ANL)Com:.',_i,; !u_VELOPMENT Re: 360 Ranch/J &D Family Realignment Survey December 31, 2008 Dear Mr. Epple: Please allow this letter, application and supporting documentation serve as the Notice of Intent to Appeal and the Documented Appeal. I received your letter dated December 24 on December 27, as the letter is postmarked December 26tH The subject parcel, strip or sliver you have referred to has been a tract of record since the year 1919. This parcel of land changed ownership at least 6 different times since 1919. Several of those deeds are attached and clearly depict no language indicating that the intended use or implied use be for utility or public right of way. Your Ietter implies that the easement created the parcel and its intent is for right-of-way or a utility site. I have attached the definition of a tract of record outlined in 76-3-103 MCA. Your letter implies that the use of the parcel being in fee simple cannot be changed due to its present use. The Valley West Annexation #A-9703, attached and as recorded in Film 180 Page 22 through page 98 of Gallatin County Clerk and Recorders office does not include this parcel for right-of-way nor does it imply a use or restriction. The only documentation in the annexation for this strip was deeded next to it to the west by Mr. Norton who was not the owner of the 41 foot parcel at the time. I further cannot find any language in Bozeman Municipal Code or Montana Code Annotated that restricts a parcel from being realigned when part or any of the parcel has an easement encumbering it. The exemption you stated under 18.10.010G of the BMC and 76-3-201(1)(h) MCA( attached and highlighted) is clearly used for creating a parcel for utility site or right-of- way which I concur with. This exemption has nothing to do with the subject parcel however. Your letter implies that the 41 foot parcel was created for a utility site or right-of-way. If this exemption did apply you or I would find a Certificate of Survey of record using such exemption as its purpose. The public records clearly show no Certificate of Survey, right-of-way deed or utility site language exists. The recorded document# 2027895 attached and recorded in 2001 which depicts the 41 foot parcel, grants to the city an easement not the parcel in fee simple. This easement was provided to the city in 2001 by the 360 Ranch on a no cost voluntary basis. The easement is not a right-of-way in fee simple but rather an encumbrance to the property. The easement language does not restrict enhancement to property or realignment. The easement does not restrict the enjoyment by the owner of its "bundle of rights"to the property. 5530 Burnt Road • Belgrade, MT 59714 • 406-581-2760 • 284-9992 (fax) BIG 5 , 'Y • LAND CON LT1\G,PLLC The implied use of utility site or right of way runs contrary to the use being taxed and the present zoning in place, the proposed realignment actually provides for an existing parcel to become in compliance with the present zoning. The exemption requested is 18.10.020A. and 76-3-207(a) MCA.( attached and highlighted). This exemption is to realign existing parcels outside a subdivision. Montana Code 76-3-207(e) states that a restriction or requirement on the original platted lot or original unplatted parcel continues to apply to those areas. This would also apply to the easement in place, and would continue to be in place and applied even in 18.10.020A. BMC and 76-3-207(a)MCA. Montana Code 76-3-201 and 18.10.020A. BMC do not specify what shape size or tract use may be realigned. Montana Code and Bozeman Municipal Code clearly stay away from the use or encumbrance to limit an exemption claim. The 41 foot parcel although under a street easement is still a parcel. This parcel is being taxed as an individual tract and is assessed as a residential property. I have attached the current assessment also. I truly believe if the argument is used that the tract may only be used for the easement and the land owner does not have a right to the exemption claimed, then this should be considered a taking of property rights. I do not believe all the rights of the owner was dissolved with the granting of an easement or the City of Bozeman would have obtained ownership of the parcel. We need to remind ourselves of the purpose of the Subdivision and Platting Act,one of the stated purposes is to"protect the rights of the property owners",please see highlighted attachment. Bozeman Municipal Code 18.10.070B(4)(a) states: "The Planning Department determines that the documentation submitted according to this section does not support the stated reason for the relocation, or an additional parcel is created." I believe your review and reasoning has gone well beyond this scope as we are not creating an additional parcel and we clearly are realigning existing parcels for more desirable parcels. I have attached a copy of this page and highlighted applicable language from the Bozeman Municipal Code. Mr. Riley mentioned during a phone conversation that this parcel should have been given or been dedicated to the City during annexation, although the parcel existed some 80 years prior to the easement or annexation. I do not see any intent with the creation of the parcel as for it to be right-of-way. This realignment allows both owners to have more desirable parcels, while at the same time not taking any land off of the tax role situation. Most realignment surveys are for the purpose of future development or building and are typically done to enhance the property. This proposed realignment is no different. The tracts have not gone through any prior exemptions or series of realignments. The existing parcels or the proposed relocated boundary parcels have no structures on them. Any future improvement or development to the property would be reviewed by the City for impacts or for compliance. 5530 Burnt Road • Belgrade, MT 59714 • 406-581-2760 • 284-9992 (fax) BIG S /'Y LAND CON - LTING,PLLC -, We request that the proposed survey as submitted be reconsidered and approved. I appreciate your efforts in processing this appeal application. Do not hesitate to contact me with any question you may have. Best Regards, i Thomas M. Henesh, PLS Big Sky Land Consulting, PLLC Cc: J&D Limited 360 Ranch Attach Application Deeds Exhibits A-N 5530 Burnt Road • Belgrade, MT 59714 • 406-581-2760 • 284-9992 (fax)