1 Alan F. McCormick Elena J. Zlatnik 2 GARLINGTON, LOHN

Transcription

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Alan F. McCormick
Elena J. Zlatnik
GARLINGTON, LOHN & ROBINSON, PLLP
199 West Pine • P. O. Box 7909
Missoula, MT 59807-7909
Telephone (406) 523-2500
Telefax (406) 523-2595
[email protected]
[email protected]
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Attorneys for Plaintiff/Petitioner
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By
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MONTANA FOURTH JUDICIAL DISTRICT COURT
MISSOULA COUNTY
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NEIGHBORHOODS BY
DESIGN, LLC
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Plaintiff and Petitioner,
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v.
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CITY COUNCIL OF THE CITY
OF MISSOULA
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Dept. No.1
Cause No. DV-07-1721
PLAINTIFF AND PETITIONER'S
BRIEF IN SUPPORT OF MOTION
FOR PARTIAL SUMMARY
JUDGMENT ON STATUTORY
CLAIMS
Defendant and Respondent.
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Plaintiff and Petitioner Neighborhoods By Design, LLC ("NBD"), hereby
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files this brief in support of its Motion for Partial Summary Judgment on Statutory
Claims. This Brief addresses NBD's claims that the Missoula City Council's
actions to impose Conditions No. 12, 15, 17 and 19 on the Clark Fork Terrace No.
2 Subdivision (the "Subdivision") violated the Montana Subdivision and Platting
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Act. These claims are brought pursuant to Montana Code Annotated § 76-3-625.
In a separate motion and briefNBD addresses its claims that the Missoula City
Plaintiff and Petitioner's Brief in Support of Motion for Partial
Summary Judgment on Statutory Claims
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Council's actions amount to a taking of private property without just compensation
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in violation of the Montana and U.S. Constitutions.
I.
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INTRODUCTION
This is a lawsuit about government excess. It is a lawsuit about governing
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by opportunity rather than adherence to principles of law and regulatory
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safeguards. As noted in NBD's separate brief in support of its motion for partial
summary judgment on its takings claims, the U.S. Supreme Court has established
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certain principles governing development exactions. Such exactions are proper
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only ifthere is an essential nexus between the required exaction and the
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development's impacts and only if the extent of the exaction is roughly
proportional to the amount of impact. Nollan v. Cal. Coastal Commn., 483 U.S.
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825, 831 (1987); Dolan v. City o/Tigard, 512 U.S. 374 (1994).
The Montana Legislature has incorporated these governing principles into
the Montana Subdivision and Platting Act (the "Act"). That Act prescribes the
subdivision review process and sets forth the criteria for local governments to
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judge the merits of each application. A local governing body may impose
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conditions on a subdivision approval so long as the condition is designed to
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reasonably mitigate potentially significant adverse impacts. At the end of the
subdivision review process, the governing body is required to issue a written
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statement explaining the government's decision. This statement must identify the
regulations and statutes the governing body used in reaching its decision to impose
conditions on the subdivision along with the facts and conclusions it relied upon to
make its decision.
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NBD's Subdivision application proposed 33 residential lots on 47.38 acres
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east of Deer Creek Road and adjacent to the Clark Fork River in the Hellgate
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Canyon east of Missoula. The City Council approved NBD's Subdivision subject
to 36 conditions. Most of these conditions are typical for subdivision approvals
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and acceptable to NBD. Four of them are neither typical nor acceptable. Simply
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because of the Subdivision's location, the City Council adopted two conditions
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requiring NBD to provide public easements for future trails through NBD's
property, trails which have no relevance to any impact created by the Subdivision
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or any requirement in the City ' s subdivision regulations. The City also imposed a
condition converting all of the Subdivision's common area into public access areas
without articulating a basis for this obligation. Finally, the City imposed a
condition requiring building envelopes to restrict dwelling locations, but readily
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acknowledges a total lack of purpose for the restriction.
The City Council's written decision for NBD's Subdivision application
demonstrates the Council's failure to abide by the fundamental governing
principles for development exactions. It further demonstrates the Council's failure
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to meet its duties under the Act. The City's Answer attempts to raise alternative
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explanations for its actions, but Montana case law prohibits such after-the-fact
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justifications. Further, such justifications only serve to highlight the fact that the
City Council failed to conduct the proper analysis when it was required to do so.
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Had the City Council properly applied the governing principles and addressed its
obligations under the Act, it would have recognized the challenged conditions were
improper.
This brief demonstrates that NBD is entitled to summary judgment on its
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challenge to Conditions No. 12, 15, 17 and 19 of the City Council's preliminary
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plat approval for the Subdivision. The City Council imposed these conditions in
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violation of the requirements of the Act. The conditions of approval were imposed
arbitrarily, capriciously and unlawfully. The conditions were not intended to
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provide mitigation of potentially significant adverse impacts as required by the
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Act. Further, the purpose for imposing the conditions was urunotivated by the
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Subdivision itself. Rather, the motivation was simply a function of opportunity
because the Subdivision happens to be in a location where the City would like to
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establish a public trail. While no one would argue the general value of public
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trails, the City Council cannot require a landowner to provide public facilities
simply because the opportunity presents itself. Doing so clearly fails to meet the
minimum requirements of the Act to support each condition with property
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authority and relevant facts.
Because the City's subdivision decision must be based upon the record of
the proceedings and reduced to writing, the underlying facts are known to the
parties and not in dispute. Thus, the legality of the imposed conditions can be
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determined as a matter oflaw. NDB has designated this motion as a Motion for
Partial Summary Judgment because it is dividing the liability issues from the
amount of damages arising from the City's liability.
II.
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The following facts are matters of public record and are undisputed. Only
the key facts to establish jurisdiction are included here. Additional facts are
included within the Argument section.
1.
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STATEMENT OF UNDISPUTED FACTS
NBD owns property within Missoula County for which NBD sought
annexation into the City of Missoula and subdivision approval for a subdivision to
be known as Clark Fork Terrace No.2.
2.
NBD is the "subdivider" for purposes of the Act (Montana Code
Annotated, Title 76, Chapter 3).
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3.
with jurisdiction and power as prescribed by law, and is the "governing body" as
that term is defined for purposes of the Act and § 76-3-625.
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Defendant City Council is the governing body of the City of Missoula,
NBD submitted a subdivision application to the City of Missoula to
create 33 residential lots on 47.38 acres east of Deer Creek Road and adjacent to
the Clark Fork River. The Missoula Office of Planning and Grants certified the
subdivision application as complete on February 5, 2007, and accepted it for
purposes of review on August 13,2007. The Subdivision application met all
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requirements set forth in the City of Missoula Subdivision Regulations for
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pedestrian facilities, and exceeded the Montana Subdivision and Platting Act and
City of Missoula Subdivision Regulations requirements for parkland dedication as
the Subdivision was proposed by NBD. See Ex. 1 at 11 (Conclusion of Law, ~ 12)
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("Access to the subdivision meets City standards with the condition for the
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improvement of Deer Creek Road as imposed."); see Ex. 1 at 13 (Parks &
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Recreation, Conclusion of law,
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11) ("The proposed subdivision exceeds the
parkland dedication requirement in Subdivision Regulations Article 3-8(3).")
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5.
On November 26,2007, the Council voted to approve the Subdivision
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subject to 36 conditions. The Council's vote adopted the Conditions of Approval
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and Findings of Fact and Conclusions of Law contained within the Missoula Office
of Planning and Grants staff report analyzing the subdivision. See Ex. I : 1.
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6.
Pursuant to Montana Code Annotated § 76-3-620(2), the Council is
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required to issue a written statement that "identifies the regulations and statutes
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that are used in reaching the decision to deny or impose conditions and explains
how they apply to the decision to deny or impose conditions."
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7.
By its letter dated December 21,2007, the Missoula Office of
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Planning and Grants issued a written statement purporting to satisfy the
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requirements of the Act. This letter contains three sections: (1) a cover letter
announcing the decision and stating a portion ofthe rights to appeal a governing
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body's decision on a subdivision application; (2) the Conditions of Approval which
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must be satisfied by NBD to obtain final approvals for the Subdivision (dated
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November 26, 2007); and (3) the Findings of Fact and Conclusions of Law (dated
November 26, 2007) which the City Council adopted in support of its decision to
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approve the Subdivision application and impose conditions. See Ex. 1: I, 3. 8.
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III.
A.
ARGUMENT
The Standard of Review for Summary Judgment
Summary judgment fosters judicial economy by eliminating unnecessary
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litigation. See Abell v. Travelers Ins. Co., 204 (1983), Mont. 156, 159,663 P.2d
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335,337. Summary judgment is mandatory when "the pleadings, depositions,
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answers to interrogatories, and admissions on file, together with the affidavits, if
any," demonstrate no issue of material fact and that the moving party is entitled to
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judgment as a matter oflaw. Mont. R. Civ. P. 56(c). The moving party must
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establish both the absence of genuine issues of material fact and entitlement to
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judgment as a matter of law. Had/ardv. Credit Bureau a/Havre, Inc., 1998 MT
179, ~ 14,289 Mont. 529, ~ 14,962 P.2d 1198, ~ 14.
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As the moving party, NBD has the initial burden of establishing the absence
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of genuine issues of material fact and its entitlement to jUdgment as a matter of
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law. Carelli v. Hall, (1996),279 Mont. 202, 206-207, 926 P.2d 756, 759 (citation
omitted). Once NBD has met that burden, the burden shifts to the Council to
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present evidence raising a genuine issue of material fact or disputing NBD's
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entitlement as a matter of law. Carelli, 926 P.2d at 759-760. Interlocutory
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summary judgment may be, as NBD requests here, issued solely on the question of
liability. Mont. R. Civ. P. 56(c).
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In this case, the facts are known to the parties and not in dispute because the
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City Council's decision on NBD's Subdivision application must be based upon the
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record of the proceedings. Further, the decision must be put into a written
statement containing statutorily prescribed information. Therefore, there are no
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genuine issues of material fact and this case is appropriate for summary jUdgment.
B.
The Subdivision Review Process, Appeal Procedure and Standard of
Review
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The subdivision review process is governed by the Act. (Montana Code
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Annotated Title 76, Chapter 3). Even local governments with self-governing
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powers, like the City of Missoula, are nevertheless bound to follow all statutes
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regulating planning and zoning. Mont. Code Ann. § 7-1-114 (2007).
Part 6 of the Act sets out the required local review procedure. A subdivider
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submits an application which must be certified as complete and sufficient by the
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local government. Mont. Code Ann. § 76-3-604 (2007). Agencies and members
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of the public are given an opportunity to comment, both in writing and during
public hearings. Mont. Code Ann. § 76-3-605 (2007). In Missoula, a staff planner
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with the Office of Planning and Grants prepares a staff report evaluating the
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proposed subdivision in light of the statutory requirements, review criteria, local
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regulations and agency and public comments. In this case, the Missoula
Consolidated Planning Board held a public hearing and forwarded a
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recommendation to the City Council. The City Council held a public hearing on
the proposal and also considered the Subdivision application at a number of
meetings with the Council's Plat, Annexation and Zoning Committee.
Local governments are required to review a subdivision in accordance with
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the criteria set out in Montana Code Annotated § 76-3-608(3) (in relevant part):
A subdivision proposal must undergo review for the following primary
criteria:
(a) .... , the impact on agriculture, agricultural water user facilities,
local services, the natural environment, wildlife and wildlife habitat, and
public health and safety;
(b) compliance with:
(i) the survey requirements provided for in part 4 ofthis chapter;
(ii) the local subdivision regulations provided for in part 5 of this
chapter; and
(iii) the local subdivision review procedure provided for in this part;
(c) the provision of easements for the location and installation of any
planned utilities; and
(d) the provision ofJegal and physical access to each parcel within
the proposed subdivision and the required notation of that access on the
applicable plat and any instrument of transfer concerning the parcel.
A local government is not permitted to attach conditions to a subdivision
approval simply because it desires a different design or to serve some other
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preferences. Rather, a local government's ability to attach conditions is both
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enabled and restricted by Montana Code Annotated § 76-3-608(4):
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The governing body may require the subdivider to design the proposed
subdivision to reasonably minimize potentially significant adverse
impacts identified through the review required under subsection (3).
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If the governing body chooses to impose such mitigation, it is required to "issue
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written findings to justify the reasonable mitigation .... " Mont. Code. Ann. § 763-608(4). Moreover, when the mitigation involves the extension of any capital
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facilities, such as public roads, sewer and water lines and storm drains, the costs
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"must reasonably reflect the expected impacts directly attributable to the
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subdivision." Mont. Code Ann.
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76-3-510 (2007).
When the governing body reaches its conclusion to approve, deny or
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conditionally approve the subdivision, it is required to issue a written statement.
Section 76-3-620 specifies the minimum requirements for this statement:
Review requirements -- written statement. In addition to the
requirements of 76-3-604 and 76-3-609, following any decision by the
governing body to deny or conditionally approve a proposed
subdivision, the governing body shall prepare a written statement that
must be provided to the applicant, that must be made available to the
public, and that:
(1) includes information regarding the appeal process for the denial or
imposition of conditions;
(2) identifies the regulations and statutes that are used in
reaching the decision to deny or impose conditions and explains how
they apply to the decision to deny or impose conditions;
(3) provides the facts and conclusions that the governing body
relied upon in making its decision to deny or impose conditions and
references documents, testimony, or other materials that form the
basis of the decision; and
(4) provides the conditions that apply to the preliminary plat approval
and that must be satisfied before the final plat may be approved.
(Emphasis added). These requirements are in addition to the requirement in §
76-3-608(4) to issue written findings to justify the reasonable mitigation
imposed on a subdivision proposal.
The written statement of a governing body's decision on a subdivision
application is critically important. The governing body's failure to properly issue
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the written statement can lead to a court overturning the government's decision.
Kiely Constr., LLC v. City of Red Lodge, 2002 MT 241, ~ 67,312 Mont. 52,
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57 P.3d 836, ~ 67. Minutes of council meetings are not the equivalent and cannot
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be used as a substitute for the required written statement. Kiely Constr.,
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96.
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Most importantly, "post decision" statements regarding the reasons for taking
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certain actions with respect to a subdivision application are not admissible because
they are not properly part of the record. Kiely Constr.,
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97.
NBD filed this action, in part, pursuant to § 76-3-625, which provides two
relevant causes of action:
(I) A person who has filed with the governing body an application for a
subdivision under this chapter may bring an action in district court to sue
the governing body to recover actual damages caused by a fmal action,
decision, or order of the governing body or a regulation adopted
pursuant to this chapter that is arbitrary or capricious.
(2) A party identified in subsection (3) who is aggrieved by a decision of
the governing body to approve, conditionally approve, or deny an
application and preliminary plat for a proposed subdivision or a final
subdivision plat may, within 30 days after the decision, appeal to the
district court in the county in which the property involved is located. The
petition must specify the grounds upon which the appeal is made.
Mont. Code Ann. ~~ 76-3-625(1), (2) (2007).
Pursuant to subsection (2), the district court is vested with broad "discretion to
determine what relief is appropriate based on the facts and circumstances of each
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appeal." Kiely Constr.,
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75.
The proper standard of review for a challenge pursuant to § 76-3-625(2) is
the same standard of review applied to decisions of administrative agencies:
whether the record establishes that the governing body acted arbitrarily,
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capriciously, or unlawfully. Kiely Constr.,
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Town of Ennis, 2000 MT 15, ~ 30, 298 Mont. 91,
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30, 994 P.2d 1098, ~ 30).
"When a district court or this Court reviews an action under the
"arbitrary and capricious" standard, a reversal of the appealed ruling is
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not permitted "merely because the record contains inconsistent
evidence or evidence which might support a different result. Rather, the
decision being challenged must appear to be random, unreasonable, or
seemingly unmotivated, based on the existing record. '"
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Kiely Constr.,
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335,852 P.2d 671, 675.
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The following section demonstrates how the conditions of approval NBD
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challenges in this action are arbitrary, capricious and unlawful, thus entitling NBD
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to summary judgment on its claims.
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C.
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The City Council Acted Arbitrarily, Capriciously and Unlawfully By
Imposing Conditions No. 12, 15, 17 and 19 on the Preliminary Plat
Approval
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The appropriate relief in this action is to strike Conditions No. 12, 15, 17 and
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19 from the conditions of preliminary plat approval for the Subdivision. These
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conditions were imposed arbitrarily, capriciously and unlawfully in violation of the
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plain requirements of the Act, thus entitling NBD to the only appropriate relief that
will correct the City Council's errors. Kiely Constr.,
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75. These conditions are
unlawful because the City Council failed to specify any statutes, regulations or
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other authority that would entitle it to adopt the condition to mitigate some
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potentially significant adverse impacts. The imposition ofthe conditions were
clearly motivated based on the City Council's desire to further a public trail
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system. While a laudable goal, there is no basis or justification in this case to
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require a public trail system as a quid pro quo for an approval of the Subdivision
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proposal. The application merely presented an opportunity to take what the City
could otherwise obtain only via just compensation. This is unlawful.
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The criteria for evaluating a subdivision application are fairly straight
forward. They are spelled out in § 76-3-608 as previously noted. In this case, the
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Subdivision must comply with the City of Missoula subdivision regulations, must
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provide proper legal and physical access, and must comply with utility and survey
requirements. Additionally, the City Council was required to evaluate the
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Subdivision's impact on agriculture, agricultural water user facilities, local
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services, the natural environment, wildlife and wildlife habitat, and public health
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and safety. Under § 76-3-608(4), if the Subdivision application did not comply
with the City's subdivision regulations, legal and physical access requirements, or
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utility and surveying requirements, the City Council may impose conditions to
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ensure compliance. Further if any potentially significant adverse impacts are
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identified, the City Council may impose conditions to mitigate such impacts.
A finding of some potentially significant adverse impact is a fundamental
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prerequisite to imposing conditions. Mont. Code Ann. § 76-3-609(4) (2007).
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Absent some potentially significant adverse impact, any condition imposed by the
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City Council is necessarily imposed simply because of some preference or desire
for some change to the subdivision application, not because of Subdivision and
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Platting Act has never contemplated that a local government could impose
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conditions on a subdivision proposal in the absence of some impact to justify the
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condition.
What is most striking in this case is that the City Council admits that
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Conditions No. 12, 15, 17 and 19 were not imposed to mitigate any potentially
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significant adverse impacts. In Paragraph Nos. 20, 26, 30 and 34 ofNBD's
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Second Amended Complaint, NBD points out that the City Council failed to
identify a single impact arising from the Subdivision which these Conditions were
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intended to mitigate. The City Council answers NBD's allegations by specifically
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disclaiming that the purpose of the Conditions was ever intended to be mitigation
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of any impacts.
For instance, with respect to Condition No. 15, the trail easement along the
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river, the City denies "the City was requiring mitigation as described or assumed
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by NBD" and further asserts that "[s]ubdivision conditions may be imposed that
are not addressing mitigation." Ans. to 2d Amend. Compl. & Pet. Jud. Rev.
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(July 1,2008). Further, the city boldly states that "NBD erroneously assumes the
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purpose of the complained about trails, easements or public access along lots with
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river frontage is intended mitigation of potentially significant adverse impacts."
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Ans. to 2d Amend. Compl.
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19. The City Council's acknowledgement that the
Conditions were not intended to mitigate adverse impacts is all that is necessary to
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grant summary judgment to NBD. Pursuant to the plain language of § 76-3-
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608(4), the City can only require changes to the design ofthe Subdivision when it
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has identified potentially significant adverse impacts. Because the City Council
failed to specifY any adverse impacts which would justifY imposing mitigation -
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and admitted it - the conditions are plainly unlawful.
The specific facts demonstrating why each Condition must be stricken from
the Conditions of [preliminary plat] Approval are outlined below. As noted
previously, § 76-3-608(4) and § 76-3-620 require the City Council to (I) identifY
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the regulations and statutes used in reaching the decision to impose this Condition
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and explain how they apply to the decision; (2) provide the facts and conclusions
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the City Council relied upon in imposing this Condition along with references to
documents, testimony, or other materials that form the basis ofthe decision; and
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(3) issue written [mdings to justifY reasonable mitigation. One need only examine
the City Council's written decision to recognize that the City failed to meet these
requirements.
1.
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Condition No. 12, a public easement along the southern boundary
of the subdivision, is arbitrary, capricious and unlawful.
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Condition No. 12 requires NBD to provide to the public an easement for a
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future trail along the entire length of the southern boundary of the Subdivision,
paralleling the Burlington NorthemIMontana Rail Link right-of-way and railroad
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tracks. The text of Condition No 12 is:
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The final plat shall include a 20' wide Conditional Public NonMotorized Access Easement (NMAE) along the southern border of the
subdivision. This easement shall be activated in the event that no
alternative acceptable trial easement is acquired south of the subdivision
within two years of [mal plat approval. The easement may be terminated
if an acceptable trial easement is acquired within two years of [mal plat
approval. Language referring to the terms and scope of the Conditional
Public NMAE shall be included on the face of the plat and in the
covenants, to be reviewed and approved by Parks and Recreation prior to
final plat approval. If the easement is activated, plans for an 8' wide
asphalt trail within the easement shall be reviewed and approved by City
Engineering and Parks and Recreation subject to an improvements
guarantee. Subdivision Regulations Article 3-2(15) (E), 3-6 and Parks
and Recreation recommendation.
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Ex. 1 at 4:
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12. The written statement in support of the imposition of Condition
No. 12 cites Article 3-2(15)(E) and Article 3-6 of the City of Missoula Subdivision
Regulations and a recommendation from the Parks and Recreation Department as
authority. Article 3-2(15)(E) of the City of Missoula Subdivision Regulations
(amended Aug. 6, 2007) states as follows:
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Non-motorized transportation facilities shall be continuous and provide
access to a11lots within the subdivision and access to adjoining
developments unless exempted by these regulations, and shall provide
circulation linkage or safe access to bus stops, schools, playgrounds,
shopping, transportation, parks, common areas or open space, other lots,
or non-motorized transport facilities and community facilities, which are
existing or reasonably anticipated.
The City Council made no attempt to suggest that the Subdivision proposal
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failed to meet this requirement - assuming it even applied - as NBD proposed the
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Subdivision. Thus, to justify adding additional burdens, the City would need to
provide some statement demonstrating how the proposed Subdivision failed to
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meet this requirement. Only then would the Council be justified in imposing a
condition to mitigate the non-compliance. But as NBD has already demonstrated,
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the City Council specifically disclaims the idea that this Condition was imposed to
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mitigate any potential impact.
If the Condition was not required for mitigation, what was the purpose of it?
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In its Answer, the City Council belatedly suggests the Condition may be
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addressing "travel efficiency, lessening of congestion, interconnectivity within the
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subdivision as well as adjacent lands, health and safety, etc., type of subdivision
features." Ans. to 2d Amend. Compl.
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26. This is an odd statement. Nowhere in
the written statement of the decision does the City Council suggest that the
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Subdivision created travel inefficiencies, congestion, or failed to provide proper
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interconnectivity. If there are no impacts, no inefficiencies, no congestion and no
problem with interconnectivity, what could possibly justify the imposition of the
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Condition?
In reality, the Subdivision fully complied with Article 3-2(15)(E) because it
provided sidewalks along all roadways in accordance with the subdivision
regulations. No one ever suggested the Subdivision failed to meet these
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requirements. Moreover, Article 3-2(15)(E) does not provide some blanket,
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independent authority for requiring additional non-motorized trails. Rather, it
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merely provides the criteria for meeting non-motorized trail requirements imposed
by other portions of the ordinance.
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The Condition is unlawful and the decision to impose it was arbitrary and
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capricious. The decision was clearly unmotivated by the record before the City
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Council. No attempt was made to show how the Condition mitigated any impact
or was required for any purpose other than the fact that the government wanted it
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and had the opportunity to take it. The Condition must be removed.
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Condition No. 15, a public easement along the Clark Fork River,
is arbitrary, capricious and unlawful.
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Condition No. 15 requires NBD to provide to the public an easement for a
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future trail along the entire length of its frontage along the Clark Fork River. The
text of Condition No 15 is:
Plans for the location of a 20' wide Public Non-motorized Access
Easement (NMAE) across Lot 33 from the north property boundary
adjacent to 1-90 to the south property boundary, to be located outside of
riparian area and parallel to the Clark Fork River behind Lots 16-30 shall
be reviewed and approved by City Engineering and Parks and
Recreation prior to final plat approval. The easement shall be shown in
the approved location on the final plat. The easement location shall
include signage in at least two locations indicating the trial is closed to
the public until such time as a trial is completed within the easement.
The terms and scope of the easement shall be included on the plat and be
reviewed and approved by Parks and Recreation and the City Attorney's
Office prior to final plat approval. Maintenance within the easement
shall be limited to weed control and be the responsibility of the
Homeowners Association until such time as a trail is constructed within
the easement by City Parks and Recreation. The covenants shall be
amended to include this information, to be reviewed and approved by
Parks and Recreation and OPG prior to final plat approval. Subdivision
Regulations Article 3-6, Fish, Wildlife and Parks and City Engineering
recommendation.
Ex. 1 at 4:
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15. The sole regulation or statute cited in the written statement in
support of the imposition of Condition No. 15 is Article 3-6 of the City of
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Missoula Subdivision Regulations. The written statement also indicates the
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Montana Department ofFish, Wildlife and Parks and City of Missoula Engineering
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Department recommended a trail along the Clark Fork River.
Article 3-6 of the City of Missoula Subdivision Regulations (amended
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Aug. 6, 2007) provides in relevant part as follows:
Easements shall be provided for utilities, drainage, watercourse, channel,
ditch, stream, vehicular, or pedestrian access. Easement locations and
widths shall be recommended by the appropriate utility or agency.
Page 15
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Easements shall be reviewed and approved by Public Works. Backslope
easements shall be provided where road construction may extend outside
of the rights-of-way.
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This regulation does not provide enabling authority for taking trails from
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landowners. By its plain language it merely requires a landowner to provide
easements for existing or proposed facilities. There is no possible way this
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regulation can form the basis of power for a local government to simply take a
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public trail from a landowner with no other justification. As noted, the City
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Council has already acknowledged that this Condition is not intended to mitigate
any impacts attributable to the Subdivision.
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What are the facts the City cites in support of this Condition? The written
statement simply notes that an "onsite investigation revealed potential for a
continuous river bank trail" and that City Engineering commented on the lack of
public access across a portion of the Subdivision along the river front. See Ex. 1 at
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12: ~ 10. It also notes that the Montana Department ofFish, Wildlife and Parks
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"encourages the building of a trail along the Clark Fork River." In other words, the
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only cited authority for requiring a trail is a regulation that merely requires
easements for existing facilities and the only supporting factual basis is the fact
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that two governmental agencies recommended a trail.
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capricious. The decision was clearly unmotivated by the record before the City
Council. Absolutely no attempt was made to show how the Condition mitigated
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any impact or was required for any purpose other than the fact that the government
wanted it and had the opportunity to take it. The Condition must be removed.
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Page 16
1
3.
Condition No. 17, requiring public access to all common areas, is
arbitrary, capricious and unlawful.
2
Condition No. 17 requires NBD to convert all common areas within the
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Subdivision to a public access easement. The text of Condition No 17 is:
All the common areas on the final plat shall include Public Access
Easements to be reviewed and approved by OPO and City Engineering
prior to final approval. City Engineering recommendation.
See Ex. 1 at 4: ~ 17. The written statement in support of this Condition simply says
"City Engineering Recommendation." Thus, on its face, this Condition violates §
76-3-620(2) because it fails to cite any statute or local regulation giving authority
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to impose the Condition. Further, the written statement contains zero facts in
support of the Council's decision to impose the condition in violation of § 76-3620(3). The City Council also specifically denies that the purpose of this
Condition was to mitigate any impacts. Therefore, it does not meet the
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requirements of § 76-3-608(4) to address some potentially significant adverse
impacts.
capnclOus. The Condition must be removed.
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15
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4.
Condition No. 19, requiring restricted building envelopes for
certain lots, is arbitrary, capricious and unlawful.
Condition No. 19 requires NBD to provide specific building envelopes
prohibiting any residential dwellings outside of the building envelopes. The text of
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Condition No 19 is:
The building envelopes shown on the plat and explained in the legend
shall reference a section of the covenants detailing building restrictions,
including the prohibition of residential dwellings outside the designated
building envelopes. Accessory structures are allowed outside the
building envelopes on all lots except for Lot 33, which is pennitted to go
through re-subdivision via the subdivision review process. Subdivision
Regulations Article 3-1(4,9) and OPG recommendation.
Page 17
1
2
Ex. 1 at 5:
~
19. The italicized language ofthis Condition contains the sole
citations to regulations and statutes the Council used in reaching its decision.
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5
Article 3-1(4, 9) contains general requirements for mitigating environmental
impacts and preserving the character and natural terrain of the land. However, the
Findings of Fact in the required written statement include no factual statements
demonstrating that any of the lots with suggested building envelopes contain
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environmental hazards, issues of natural terrain, or other characteristics intended to
be addressed by Article 3-1 (4, 9). A finding of some such hazard or issue is a
prerequisite to the regulation even applying. In fact, the Findings of Fact
specifically state that the Parks and Recreation Department confirmed that the Lots
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were sufficiently set back from the river to protect riparian resources and provide
an adequate wildlife corridor. There is no basis for imposing this Condition. NBD
placed building envelopes on the preliminary plat simply to indicate a desire on
NBD's part to control the location of dwellings, not to satisfY a requirement of the
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City of Missoula Subdivision Regulations. NBD, therefore, maintains the
flexibility to relocate or remove the building envelopes as it desires.
capricious. No attempt was made to show how the Condition mitigated any impact
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or was required for any purpose. In fact, the Findings of Fact demonstrate that the
condition has no basis and must be removed.
IV.
CONCLUSION
Condition Nos. 12,15,17 and 19 ofthe City Council's preliminary plat
18
approval for the Subdivision must be stricken from the list of required conditions.
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The City Council imposed these conditions in violation of the Montana
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Subdivision and Platting Act. The Conditions of Approval were imposed
arbitrarily, capriciously and unlawfully. As demonstrated, the City Council failed
21
to (1) identifY the regulations and statutes used in reaching the decision to impose
Page 18
1
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the Conditions and explain how they apply to the decision; (2) provide the facts
and conclusions the City Council relied upon in imposing the Conditions along
with references to documents, testimony, or other materials that form the basis of
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4
5
the decision; and (3) issue written fmdings to justify reasonable mitigation.
The City Council readily admits the Conditions were not intended to provide
mitigation of potentially significant adverse impacts as required by the Act. By
itself, this admission is sufficient to grant NBD summary judgment. Further, the
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purpose for imposing the conditions was unmotivated by the record before the
Council. Instead, the motivation was simply a matter of opportunity because the
Subdivision happened to be in a location where the Council desired to exact
conditions as an unjustifiable quid pro quo. The City Council made no attempt to
9
show how the Conditions mitigated any impact or were required for any purpose
10
other than the fact that the government wanted them and had the opportunity to
11
take them. The Conditions are unlawful and the decision to impose them was
arbitrary and capricious. NBD is entitled to summary judgment on its claims and
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the appropriate relief is to remove the Conditions.
DATED this it'day of September, 2008.
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Attorneys for PlaintiffJPetitioner:
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GARLINGTON, LOHN & ROBINSON, PLLP
199 West Pine· P. O. Box 7909
Missoula, MT 59807-7909
Telephone (406) 523-2500
Telefax (406) 523-2595
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BYAl.~~ /
Alanv·r Mc'Cormick
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Page 19
CERTIFICATE OF SERVICE
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I, the undersigned, of GARLINGTON, LOHN & ROBINSON, PLLP,
Attorneys for PlaintifflPetitioner, hereby certify that on this
2q~day of
September, 2008, I delivered a copy of the foregoing Plaintiff and Petitioner's
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Briefin Support of Partial Summary Judgment on Statutory Claims, to the
following persons:
Jim Nugent
Keithi Worthington
City Attorney
City of Missoula
435 Ryman
Missoula, MT 59802
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Page 20
MISSOULA
M
C
MI'
-'ULA OFFICE OF PLANNING & GR '
COUNTY ....
435 RymaD
TS
~
MISSOULA MT 59802-4292
MISSOULA
PHONE: (406) 258-4657
&~'L:i.-A. l-.J f, p . f)/.:}c /:; 7-
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S&'t hil
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i'''ld,i '"")():/O'l-
J
December 21. 2007
Neighborhoods by Design. LLC
c/o Bob Brugh
25685 Nine Mile Road
Huson. MT 59846
RE: Claril Foril Terrace No.2
Dear Bob:
AI its regularly scheduled meeting of November 26. 2007 the Missoula City Council
voted to approve Claril Foril Terrace No.2 subject to the 36 conditIons in the attached
document entitled "Conditions of Approval". The reasons for the decision to approve the
subdivision. including the imposition of any condition of approval. may also be found in
the attached document entitled "Findings of Fact and Conclusions of Law."
As part of this action. the City Council took action on the following variance:
1. THAT the request to vary from Article 3-2(13) to permit a cul-de-sac length in excess
of 600 feet be conditionally approved based on the findings of facl in the staff
report.
If you wish to appeal this decision you must follow the procedure established by M.CA
§76-3-625(2) which states as follows:
A party .. . who is aggrieved by a decision of the goveming body to approve.
conditionally approve. or disapprove a proposed preliminary plat or final subdivision plat
may . within 30 days after the decision, appeal to the district court in the county in which
the property involved is located. The petnion must specify the grounds upon which the
appeal is made.
The statute includes within the definition of an aggrieved party the applicant. If you
have any questions or concems with regard to this matter, please do not heSitate to
contact us at 258-4657.
The deadline to submit for final plat approval is November 26, 2009. You must submit
the final plat by this date or request an extension to the effective period of plat approval.
If you have further questions, please contact me at 258-4794 or email me a\
[email protected].
Exhibit I - I
Sincerely,
Tim Worley
Planner II, OPG
cc:
Nick Kaufman, WGM Group, Inc.
Mary McCrea, OPG
Lettie Hunnakko, OPG
Casey Wilson, OPG
Kevin Siovarp , City Engineer
Steve King, Director of Public Works
Doug Harby, City Engineering
Bob Hayes, City Engineering
Bob Rajala, City Fire Marshal
Missoula Consolidated Planning Board
Exhibit I -- 2
CONDITIONS OF APPROVAL
CLARK FORK TERRACE NO.2
November 26. 2007
Roads
1. Plans for installing curb/gutter and paving Drouillard Drive and Ordway Lane to a 32'
width from back-of-curb to back-of-curb shall be reviewed and approved by the City
Engineer prior to final plat approval. The offsite portion of Drouillard Drive shall be
dedicated as public right-of-way on the final plat. Subdivision Regulations Article 32(3), 3-2(9),3-2(14) and City Engineering recommendation.
2. The RSID waiver shall be amended to include Drouillard Drive, Ordway Lane and
Deer Creek Road subject to review and approval of OPG prior to final plat approval.
Subdivision Regulations Article 3-2(3)(E) and DPG recommendation.
3. Plans for improving Deer Creek Road to a 24' surface width from Drouillard Drive to
the boundary of Canyon River Phase II with adequate surfacing and storm drainage
facilities shall be reviewed and approved by CHy Engineering prior to final plat
approval. Subdivision Regulations Articles 3-2(1)(G)(3-4/), 3-4(1)(B) and City
Engineering recommendation.
4. The developer shall waive the right to protest future improvements to the Speedway
AvenuelHighway 200 intersection, with language on the plat to be reviewed and
approved by City Engineering prior to final plat approval. Subdivision Regulations
Article 3-2(1)(E) and City Engineering recommendation.
5. If an addHional utility lot access is necessary, plans for paved road access to the Utility
Lot adjacent to residential Lot 1. including any reqUired easements shall be reviewed
and approved by City Engineering prior to final plat approval. Subdivision Regulations
Article 3-6 and City Engineering recommendation.
6 . A plan for street lights at road intersections wHhin the subdivision shall be reviewed and
approved by City Engineering prior to final plat approval. Subdivision Regula/ions
Article 3-2(2)(E) and City Engineering recommendation.
7. A road signage plan in conformance wHh the Manual on Uniform Traffic Control
Devices, including provisions for temporary signage during construction. permanent
signage including stop signs where appropriate, and cost of installation to be the
responsibility of the subdivider, shall be reviewed and approved by City Engineering
prior to final plat approval. Subdivision Regulations 3-2(2)(F) and County Public
Works recommendation.
8. The developer shall present evidence of pe@oning the subdivision into the Missoula
Urban Transportation District prior to final plat approval. Subdivision Regulations Article
3-1 (6) and Mountain Line recommendation.
Driveways
9. A final plan for access and grading of Lot 11 shall be reviewed and approved by City
Engineering prior to building permit approval. Subdivision Regulations Article 32(1)(1) and City Engineering recommendation.
10. Driveway plans for Lot 31 shall be reviewed and approved by City Fire and CHy
Engineering prior to building permH approval. Subdivision Regulations Article 32(16)(E) and OPG recommendation.
Non-motorized Facilities
11 . Plans for installation of S' sidewalks with 7' boulevards on both sides of Drouillard
Drive and Ordway Lane shall be reviewed and approved by the City Engineer prior
Exhibit I - 3
to final plat approval. Subdivision Regulations Article 3-2(15)(A-C) and OPG
recommendation.
12. The final plat shall include a 20' wide Conditional Public Non-Motorized Access
Easement (NMAE) along the southern border of the subdivision. This easement shall
be activated in the event that no a~ernative acceptable trail easement is acquired south
of the subdivision within two years of final plat approval. The easement may be
terminated if an acceptable trail easement is acquired wnhin two years of final plat
approval. Language referring to the terms and scope of the Conditional Public NMAE
shall be Included on the face of the plat and in the covenants, to be reviewed and
approved by Pari<s and Recreation prior to final plat approval. If the easement is
activaled, plans for an B' wide asphalt trail wHhin the easement shall be reviewed and
approved by City Engineering and Pari<s and Recreation subject to an imprOVements
guarantee. Subdivision Regulations Article 3-2(15)(E), 3-6 and Parks and Recreation
recommendation.
13. A provision for maintenance of all trails shall be included in the subdivision
covenants to be reviewed and approved by City Engineering prior to final plat
approval. City Engineering recommendation.
14. Plans for installation of an S' wide asphalt walkway adjacent to a minimum 10' wide
boulevard or other green space area along the eastern side of Deer Creek Road
from Drouillard Drive to the farthest northem property boundary, in a location to
provide a connection to Phase II of Canyon River, shall be reviewed and approved
by City Engineering prior to final plat approval. Subdivision Regulations Article 32(15)(E) and City Engineering recommendation.
15. Plans for the location of a 20' wide Public Non-Motorized Access Easement (NMAE)
across Lot 33 from the north property boundary adjacent to 1-90 to the south property
boundary, to be located outside of riparian area and parallel to the Clari< Fori< River
behind Lots 16-30 shall be reviewed and approved by City Engineering and Pari<s and
Recreation prior to final plat approval. The easement shall be shown in the approved
location on the final plat. The easement location shall include signage In at least two
locations indicating the trail is closed to the public until such time as a trail is completed
within the easement. The terms and scope of the easement shall be included on the
plat and be reviewed and approved by Pari<s and Recreation anil the CHy Attomey's
OffICe prior to final plat approval. Maintenance within the easement shall be limited to
weed control and be the responsibility of the Homeowners Association until such time
as a trail is constructed within the easement by City Pari<s and Recreation. The
covenants shall be amended to include this information, to be reviewed and approved
by Pari<s and Recreation and OPG prior to final plat approval. Subdivision Regulations
Article 3-6, Fish, Wildlife and Parks and City Engineering recommendation.
16. Plans for installation of street-tree plantings shall be reviewed and approved by City
Pari<s and Recreation prior to final plat approval. Subdivision Regulations Article 32(15)(8) and OPG recommendation .
17. AII common areas on the final plat shall Include Public Access Easements to be
reviewed and approved by OPG and City Engineering prior to final plat approval. City
Miscellaneous
1B. Cluster mailboxes or other central mail facility shall be installed in this subdivision in a
location subject to review and approval by City Engineering prior to final plat approval.
Subdivision Regulations 3-2(15)(J) and City Engineering recommendation.
Exhibit I -- 4
19. The buildin9 envelopes shown on the plat and explained in the legend shall reference
a section of the covenants detailing building restrictions, including the prohibition of
residential dwelUngs outside the designated building envelopes. Accessory structures
are allowed outside the building envelopes on all lots except for Lot 33, which is
permitted to go through re-subdlvision via the subdivision review process. Subdivision
Regulations Article 3-1(4, 9) and OPG recommendation.
Utilities
20.The final plat shall include a public sewer easement extending from Ordway Lane
south in the vicinity of Lot 32 and 33 in a location to be reviewed and approved by C~y
Engineering prior to final plat approval. Subdivision Regulations Article 3-6 and City
21 . Plans for road construction across the Yellowstone Pipeline shall comply with
Yellowstone Pipeline Company (YPL) Encroachment Guidelines and shall be
reviewed and approved by YPL prior to final plat approval. If required by YPL a
signed and executed Encroachment Agreement shall be returned to the utility, and
appropriate development provisions shall be included on the final plat and in the
subdivision covenants. Subdivision Regulations Article 3-1(2) and Yellowstone
Pipeline Company recommendation.
22, The following note shall be shown on the final plat and reference the 10· highpressure petroleum line: •Approximate location of 10· high-pressure petroleum line.
Prior to any construction near the line, the developer or lot owner(s) shall locate the
10" high-pressure petroleum line and contact the utility company for its exact
location. See covenants for any applicable rules and guidelines conceming the
petroleum line." Subdivision Regulations Article 3-1 (2) and OPG recommendation.
23. Plans for an appropriate utility easement for the 10" high-pressure petroleum line
easement shall be reviewed and approved by YPL prior to final plat approval.
Subdivision Regulations Article 3-6 and Yellowstone Pipeline Company
recommendation.
24 . Proposed road and utility plans for the subdivision shall be reviewed and approved
by BPA prior to final plat approval. Subdivision Regulations Article 3-1(2) and BPA
recommendation.
25. Lots adjacent to BPA overhead power lines shall submit a Land Use Agreement to
BPA, to be reviewed and approved by BPA prior to building permit approval.
Subdivision Regulations Article 3-1(2) and BPA recommendation.
26. The following note shall be included on the final plat, to be reviewed and approved by
OPG prior to final plat approval:
"The Bonneville Power Administration (BPA) imposes certain conditions on the
portions of these lots encumbered by its high voltage transmission line right-<lf-way.
BPA does not allow access to be btocked to any transmission facilities. Anyactivtty
that is to occur wilhin the right-of-way needs to be permitted by BPA prior to
installation or construction. Information regarding the permitting process for
proposed uses of the right-<lf-way may be addressed to BPA Real Estate Field
Services at (406) 751-7821 ." Subdivision Regulations Article 3-1 (2) and BPA
recommendation.
FirelEmergency Response
27.A fire hydrant plan shall be reviewed and approved by the City Fire Department prior
to building permit approval. Fire hydrants shall be installed prior to combustible
construction as required by the City Fire Department approved hydrant plan.
Exhibit I -- 5
Subdivision Regulations Article 3-2(2)(G), 3-7 and City Fire Department
recommendation.
Grading. Drainage, Erosion Control and Floodplain
28 . Prior to final plat approval the developer shall provide sufficient evidence to the
Office of Planning and Grants demonstrating that lowest floors . including basements,
mechanical equipment, and ductworll will be 2' above the base flood elevation on all
lots OR pre-construction elevation certificates shall be submitted at the lime of
Zoning Compliance Permit documenting the lowest floor and utility elevations with
post-construction elevation certificates submitted upon building completion.
Subdivision Regulations Article 3-1 (1 )(B) and Floodplain Administrator
recommendation.
29. Prior to final plat approval, the developer shall provide sufficient evidence to the
Office of Planning and Grants demonstrating that lowest floors, Including basements
and all mechanical equipment, will be 2' above the base flood elevation on all lots
OR language shall be included in the Covenants prior to final plat approval and a
note shall be placed on the final plat that states the following: "The lowest floor
elevation, including basements, mechanical equipment, and ductworll shall be a
minimum of 2' above base flood elevation. Pre-construction elevation certificates
shall be required at the time of Zoning Compliance Permit submittal documenting the
lowest floor and utility elevations, with post-construction elevation certificates
submitted upon building completion: Subdivision Regulations Article 3-1(1)(8) and
Floodplain Administrator recommendation.
30.A Storm Water Pollution Prevention Plan (SWPPP) shall be submitted to and
approved by City Engineering prior to final plat approval. Separate SWPPPs shall be
required of Lots 16 and 33 prior to building permit approval for each lot. Final plans
for grading , drainage and erosion control shall be reviewed and approved by City
Engineering prior to final plat approval. Subdivision Regula/ions 3-1(1)(8) and City
Common Areas/Areas of Riparian Resource
31. Plans for improvements of all common area, including trails, shall be reviewed and
approved by Parks and Recreation and the City Engineer prior to final plat approval.
Subdivision Regulations Articles 3-8(I)(F), 3-8(9) City Parks and Recreation and
City Engineering recommendation.
32. The Area of Riparian Resource adjacent to the Clark Fork River shall be indicated
on the plat as an "Area of Riparian Resource/No-Improvement Zone - see
covenants for more Information: and the Area of Riparian Resource shall be
expanded west of Lol 30 to the property boundary along 1-90, to be reviewed and
approved by City Parlls and Recreation prior to final plat approval. The Riparian
Resource Management Plan shall be amended to reflect this expansion and be
recorded with the subdivision covenants, to be reviewed and approved by OPG prior
to final plat approval. Subdivision Regulations Article 3-13(4) and Parks and
Recreation recommendation.
Reveoetation Plan
33 .A Revegetation Plan for disturbed siles shall be submitted to and approved by the
Missoula County Weed Board prior to final plat approval. Subdivision Regulations
Arlicle 3-1(I)(F).
Covenants
34. Article XI ("Amendment") shall be amended to include the Riparian Resource
Management Plan/Riparian Areas, Conditional Public Non-Motorized Access
Exhibit I -- 6
Easement, Trail Maintenance, and High-Pressure Petroleum Line development
provisions (if applicable) as sections of the covenants that may not be amended
without Goveming Body approval. Subdivision Regulations Articles 3-1(2), 3-1(10)
and OPG recommendation .
Planning Board-New Conditions
35. A 60-foot public access easement shall be dedicated between the west end of
Ordway Lane to Deer Creek Road . The approximated location shall be shown on
the Clark Fork Terrace No. 2 final plat. Planning Board recommendation.
36. Improvements within the Ordway Lane Public Access Easement, subject to the City
Public Works Director or Public Works Department, shall be affected within 4 years or
as required by Clark Fork Terrace No. 1 Subdivision, whichever comes firs\. Planning
Board recommendation.
Exhibit) -7
FINDINGS OF FACT AND CONCLUSIONS OF LAW
CLARK FORK TERRACE NO.2
November 26. 2007
I. SUBDIVISION FINDINGS OF FACT
A.) ZONING AND COMPREHENSIVE PLAN COMPLIANCE
Findings of Fact:
a) Zoning Compliance
1. The 47.38 acre parcel is currently zoned C-RR1. The applicant requested to annex the
property Into the city and the City Council has applied the city zoning of RLD-I to the
enlire acreage.
2. The property was zoned the comparable city zone of RLD-I upon annexation. The
maximum residenlial density in Ihe RLD-I district is one dwelling unit per acre and
the minimum lot size is 40,000 square feet per single-family dwelling.
3. The proposed subdivision will have a density of one dwelling unit per 1.44 acres.
4. Lot sizes and lot width may vary through subdivision review in the RLD-I zoning
district to allow flexibility in site planning and project design. Proposed lots sizes
range from 12,457 square feet to 847,034 square feet (19.45 acres).
5. The required front and rear-yard setbacks in the RLD-I district are 25 feet. Side-yard
setback requirements in the RLD-I district are 15 feet. Building height is IimHed to 30
feet.
b) Comprehensive Plan Compliance
6. The 1998 Missoula Urban Comprehensive Plan Update ("Plan") is the applicable plan
for this property. The recommended land use designation is Residential, with a
maximum residential density of up to two dwelling unHs per acre, and Parks and Open
Space. The Parks and Open Space land use deSignation comprises the majority of the
property. This .property is in the Urban Growth Area (UGA).
7. The applicant proposes 33 lots on 47.38 acres for a residential density of one dwelling
unit per 1.44 acres.
8. The Plan encourages compatibility with surrounding land uses, as well as preservation
and enhancement of the diversity, integrity. and unique values of neighborhoods,
communities and rural areas. Development in the area includes open space
associated with the former ranch, a shooting range and the Canyon River golf course
and associated development.
9. The development pattern of the subdivision is residences clustered in the center of the
parcel surrounded by common area to the south and west and a portion of Lot 33 that
is not intended for residential development, but may be a candidate for a conservation
easement.
10. The Plan states that "within the urban growth area, residential, commercial, public, and
other forms of development should be encouraged at urban densities (p.63):
11. Residential land use goals stated in the Plan include the following: "Establish
development standards to encourage smaller lots and more flexible use of tand (p.
80):
12. The residential density for the subdivision is proposed at less than urban (two
dwelling units per acre) denSity.
13. The Parks and Open Space designation is used for large. publicly-owned recreation
areas such as Blue Mountain, the Pattee Canyon Recreation Area and the
Rattlesnake Recreation Area. Also included are areas where environmental
Exhibit I -- 8
constraints such as slope, floodplain, wildlife hab~at or public values such as open
space, utility corridors, etc. make development inadvisable.
14. Limited development is recommended for the Parks and Open Space designation.
Development should only be undertaken when Plan goals and policies can still be
achieved.
15. Most of the proposed development area is w~hin the Parks and Open Space land
use designation. Open space has been preserved in the form of 8.99 acres of
common area. Some open space is preserved on a portion of Lot 33 by a
designated building envelope located near the Ordway Lane cul-de-sac. This
allows most of the riverfront area in the subdivision to remain open but In private
ownership, and would therefore be potentially subject to re-subdivision.
16. Floodplain constraints have been partially mHigated by homesijes outside of the
FEMA 1OO-year floodplain.
Conclusions of Law:
1. The proposal is consistent with the approved zoning for the property.
2. The proposal is consistent with some residential land use goals in the Urban Area
Comprehensive Plan with a diversity of lot sizes and connection to sewer in this
UGA location.
3. The proposal does not comply with Parks and Open Space goals to limit
development on the parcel, but does provide some open space corridors through
common area dedication and building envelopes.
B.) PRIMARY CRITERIA COMPLIANCE
CRITERION 1: EFFECTS ON AGRICULTURE AND AGRICULTURAL WATER USER
FACILITIES
Findings of Fact:
1. The property is part of a former working ranch that has not been in production for
some time .
2. Soils on the property include ·the Desmet loam, 0 to 2 percent slopes, and Moiese
gravelly loam, 0 to 2 percent slopes. The Desmet soil map unit is classified as prime
farmland if irrigated, and the Moiese gravelly loam is considered farmland of local
importance.
3. The property has some relict ditches from the time the property was part of a larger
working ranch. These are no longer used and were never part of a formal ditch
district.
Conclusion of Law:
1. The subdivision will result in the loss of classified farmland with the subdivision as
approved.
2. No impacts to agricultural water users or agricultural water user facilities are
anticipated.
CRITERION 2: EFFECTS ON LOCAL SERVICES
Roads
Findings of Fact:
Drouillard Drive and Ordway Lane
1. The property is located east of Deer Creek Road and adjacent to the Clark Fork
River. Drouillard Drive and Ordway Lane are proposed to access lots in the
subdivision.
Exhibit
J --
9
2. Proposed Street sections show a 32' width (back-of-curb to back-of-curb) for onsite
roadways and the offsite portion of Drouillard Drive that connects to Deer Creek
Road . City Subdivision Regulations Article 3-2(3) requires a 26' width for these
roadways.
3. A condition of approval requires review and approval of final plans for Drouillard
Drive and Ordway Lane. The condition requires dedication of the offsite portion of
Drouillard Drive as public right-of-way.
4. Drouillard Drive provides access from Deer Creek Road to the subdiviSion. The
on site portion of this road connects with Ordway Lane, which terminates with cul-desacs on both ends. The western end of Ordway Lane is proposed to connect with
the Clark Fork Terrace No.1 development proposed to the west as indicated by a
60' right-of-way that extends to the western property boundary. Ordway Lane is
proposed to connect to Deer Creek Road with the adjacent subdivision.
5. City Subdivision Regulations Article 3-2(12) requires temporary cul-de-sacs to be
provided until such time as through streets are connected. The plat shows a
temporary cul-de-sac easement at the western end of Ordway Lane. Right-of-way
extends from the temporary cul-de-sac easement to the western property boundary.
6. Drouillard Drive exceeds 600' without a cul-de-sac and therefore requires a variance
from the subdivision regulations, which is supported by staff because of the planned
completion of a looped road network.
7. A condition of approval requires dedication of a 60-foot public access easement
between the west end of Ordway Lane to Deer Creek Road, with the approximated
location to be shown on the Clark Fork Terrace No.2 final plat. A separate condition
requires Ordway Lane improvements to be affected within 4 years or as required by
the Clark Fork Terrace No.1 Subdivision, whichever comes first.
8. City Engineering recommends a plan for street lighting at inlersections, which is
required in a condition of approval.
Offsite Access, Connections and Impacts
9. Traffic from this city subdivision will primarily use Deer Creek Road north of the
Drouillard Drive Intersection, through the Canyon River Subdivision and eventually to
the Speedway Avenue/Highway 200 intersection. A limited number of subdiviSion
residents may choose to tum left at the Deer Creek Road/Speedway Avenue
intersection.
10. The plat contains an RSID/SID waiver for future improvements to the streets within
this subdivision. Subdivision streets are not cited in the waiver, and Deer Creek
Road also has not been included. A condition of approval requires the two onsite
roadways to be included in the RSID/SID waiver statement.
11 . Glen Cameron of the Montana Department of Transportation, in his comments on
the subdivision, noted the Canyon River Subdivision requirement to redesign and
reconstruct the Highway 200 Intersection so that the two roadways intersect at a 90
degree angle .
12. Kevin Siovarp, City Engineer, notes that reconstruction has not commenced
although funding to improve the Speedway Avenue/Highway 200 intersection is
available. He recommends that the developer of Clark Fork Terrace No. 2 waive the
right to protest future Improvements to this intersection, which is required in a
condition of approval.
13. Deer Creek Road north of the Drouillard Drive Intersection is composed of a millings
material that does not meet city road standards. Roads that provide a connection to
city subdivisions are required to meet city road standards.
Exhibit 1 -- 10
14. City Engineering recommends that Deer Creek Road be built to a 24' width with
adequate surfacing and drainage facilities from Drouillard Drive north to Phase II of
Canyon River, where the city roadway currently ends. This is required in a condition
of approval.
Driveways
15. Lot 11 has a building envelope proposed across an area with slopes greater than
25%. City Engineering recommends a final access and grading plan for this lot,
which is required in a condition of approval.
16. The driveway for Lot 31 must cross Lot 32 in order to access Ordway Lane . The
length of this driveway cannot be determined prior to home construction on Lot 31.
17. Dead-end driveways in excess of 150 feet in length require approved turnarounds
for fire apparatus, and must meet particular horizontal and vertical clearance
requirements. This information is contained in the covenants.
Grading, Drainage and Erosion Control
18. The submittal includes a storm water plan with sumps. The City-County Health
Department does not object to sumps, but does encourage detention basins or
vegetated swales as an option .
19.A Storm Water Pollution Prevention Plan (SWPPP) is required by City Engineering
for each subdivision but has not been included for Clark Fork Terrace NO.2. City
Engineering also recommends separate SWPPPs for Lots 16 and 33 at the time of
building permit review. Both aspects of SWPPP requirements are outlined in a
condition of approval.
Other
20. County Public Works recommends a road signage plan for Ihe subdivision, which is
a required condition of approval.
21 . Steve Earle of Mountain Line reviewed the subdivision proposal , and stated that the
property is currently within the Missoula Uriban Transportation District and is served
by Route 4. He recommends that the property owners involved petition into the
Urban Transportation District, which is required in a condition of approval.
22 . City Engineering recommends cluster mailboxes for this subdivision . The developer
would prefer the potential for an a~emative central mail facility. Plans for clusler
mailbox locations or other central mail facility are required in a condition of
subdivision approval.
Conclusions of Law:
1. Access to the subdivision meets City standards with the condition for the
improvement of Deer Creek Road as imposed.
2. Drouillard Drive and Ordway Lane meet required public road standards with the
conditions as adopted .
Pedestrian Access
Findings of Fact:
1. The developer is proposing 5' sidewalks with T boulevards along both sides of
Drouillard Drive and Ordway Lane, which complies with the Missoula City
Subdivision Regulations. The Improvements would also connect with Deer Creek
Road on the offsite portion of Drouillard Drive .
2. Pedestrian facilities are not proposed on the east side of Deer Creek Road with this
subdivision, but are planned with the construction of Clark Fork Terrace No. 1
subdivision, which is adjacent to Deer Creek Road. Walkway plans for Clark Fork
Terrace No. 1 show a meandering trail within a 10' common area along the eastern
Exhibit J -- J J
side of Deer Creek Road. City Engineering recommends a walkway extending from
Drouillard Drive northward to the Canyon River development with this subdivision to
ensure that walkway improvements are not dependent on a subdivision that Is yet to
be reviewed.
3. A condition of approval requires construction of an 8' wide asphalt walkway adjacent
to a minimum 10' wide boulevard or other green space area along the east side of
Deer Creek Road from Drouillard Drive to Phase" Canyon River.
4. City Subdivision Regulations Article 3-2(15)(8) requires shade trees to be planted on
average 30' centers within boulevard areas. A condition of approval requires City
Parks and Recreation to review and approve plans for street tree plantings.
5. The subdivision location near the Old Milwaukee railroad grade presents an
opportunity for trail connections that would extend beyond the subdivision, both easl
and west of the subdivision and connecting with a trail along Deer Creek Road.
6. Dave Shaw, City Parks and Recreation, recommends a 20' wide Conditional Public
Non-Motorized Access Easement (NMAE) on the south border of the subdiviSion. A
condition of approval requires a 20' Conditional Public Non-Motorized Access
Easement (NMAE) be shown on the plat north of and adjacent to the south em
property boundary, In the event that an altemative acceptable trail easement is
acquired south of the subdivision, the on-site easement would not be acted upon. In
the event the easement is activated, an 8' wide asphalt trail would be required to be
built within the easement. These provisions are included in the condition of
approval, which also requires the Conditional Public NMAE infonmation to be
included on the plat and in the covenants.
7. City Engineering recommends an 8' hard surface trail within SUbdivision common
areas. One common area that appears to be designed for a pedestrian connection
lies between Lots 23 and 24.
8. A condition of approval requires review and approval of all common area
improvements, including trails (see Parks and Recreation section). The width of
trails will be evaluated by City Engineering and Parks and Recreation at the Plan
Review stage.
9. City Engineering recommends that all common areas include Public Access
Easements, which is recommended in a condition of approval.
10. City Engineering commented on the lack of public access across the riverfront lot
(33), and recommends a Public Non-Motorized Access Easement parallel to the
river. City Parks and Recreation comments on the need to permit the potential for
non-motorized access across Lot 33 in the event that most of this area becomes part
of a conservation easement. An onsite investigation revealed potential for a
continuous river bank trail that is below the pre-graded elevation of most subdivision
lots.
11. A condition of approval requires this easement to be shown on the final plat, with
location to be reviewed and approved by City Engineering and Parks and Recreation
prior to final plat approval. The easement is to be located outside of the riparian
area, parallel to the river behind Lots 16-30. The easement location shall include
signage in at least two locations indicating the trail is closed to the public until such
time as a trail Is completed within the easement. The terms and scope of the
easement are to be shown on the plat and reviewed and approved by City
Engineering and City Parks and Recreation. The Homeowner's Association will be
required to conduct weed maintenance within the easement until City Parks and
--Exhibit I - 12
Recreation construcls a trail. After trail construction City Parks and Recreation will
assume weed control responsibility.
Conclusions of Law:
1. Wijh the recommended conditions as adopted, Ihe proposed subdivision will meet
the required standards for non-motorized pedestrian facilities.
Water & Sewer Systems
Findings of Fact:
1. The proposed subdivision will be served by Mountain Water.
2. The developer proposes to connect all lots to City sewer.
Conclusions of Law:
1. Review of water and sewer systems is under the jurisdiction of state and local heaHh
authorities under the Montana Sanitation in Subdivision Act.
Parks and Recreation
Findings of Fact:
1. The applicant is proposing 8.99 acres of common area, or 26% of the net lotted area
of the subdivision.
2. Jackie Corday, City Parks and Recreation, supports the dedication of 8.99 acres of
common area conditioned upon a plan for common area improvements, which is
required in a condition of approval. The condition requires any common area trails to
be reviewed by Parks and Recreation and City Engineering.
3. The subdivision includes a 0.07 acre common area strip between Lots 23 and 24.
This appears to be a pedestrian connection, bul tenninates at an undeveloped
portion of Lot 33.
4. City Engineering recommends public access for all common areas as indicated by
designated Public Access Easements. This is required in a condition of approval.
5. Required public access easements across common areas do not appear to conflict
with common area restrictions in the covenants, which grant the right of the
Homeowner's Association to grant easements across common area .
Conclusion of Law:
1. The proposed subdivision exceeds the parkland dedication requirement in
Subdivision Regulations Article 3-8(3).
2. The subdivision meets Parks and Recreation reqUirements with the conditions of
approval as adopted .
Schools
Findings of Fact
1. The applicant estimates that 33 elementary and 25 secondary school-aged children will
be added to the Missoula County Public School District wiijh this subdivision.
2. Hellgate High School students have a bus stop at the Speedway Avenue/Highway 200
intersection. Bonner School picks up elementary school-aged children at the comer of
Speedway and Deer Creek Road.
3. Rachel Vielleux, Missoula County Superintendent of Schools, did not comment on
the subdivision.
Conclusions of Law:
1. No adverse impacts on schools requiring mitigation have been identified.
Exhibit 1 -- 13
Fire Department
Findings of Fact:
1. Upon annexation, the subdivision will be located w~hin the jurisdiction of the Missoula
Fire Department.
2. Missoula City Subdivision Regulations Article 3-7 establishes options for fire protection
purposes, including residential sprinkler systems and fire hydrants. The applicant is
proposing lire hydrants for the subdivision.
3. The City Fire Marshall commented on the requirement for fire sprinklers in the homes
based on the original proposal for wells. The developer has since requested extension
of Mountain Water lines to the subdivision and is proposing hydrants.
4. A cond~ion of approval requires a fire hydrant plan approved by Missoula City Fire
prior to final plat approval, with placement of hydrants required prior to building permit
submittal.
5. The City Fire Marshal comments that address signs shall be viSible from the street.
This requirement is included in the covenants, with requirements for signs visible in all
light conditions, visible from the street, with address numbers placed on a contrasting
background with the numbers being at least 6 inches in size. A condition requires City
Fire review of plans for address signs.
Conclusions of Law:
1 . Fire service is available to the subdivision with the conditions as adopted.
Law Enforcement
Findinos of Fact:
1. Upon annexation, the subdivision will be located within the jurisdiction of the Missoula
Police Department.
2. The Missoula City Police Department provided comment via a CPTED Analysis
(Crime Prevention Through Environmental Design). They recommend general
design strategies that include natural access control, natural surveillance and
territorial reinforcement.
Conclusions of Law:
1. Law enforcement service will be available to the subdivision.
CRITERIA 3 AND 4: EFFECTS ON THE NATURAL ENVIRONMENT AND WILDLIFE
AND WILDLIFE HABITAT
Findings of Fact:
1. The property is located adjacent to the south bank of Clark Fork River in the general
vicinity of Bandman Flats.
2. Riparian vegetation associated with the river is documented in a Riparian Resource
Management Plan (RRMP). The RRMP describes a steep river bank area that flattens
out about 20 feet above the ordinary high water mark.
3. The RRMP documents plants within a Douglas fir/red osier dogwood community type.
Onsite vegetation includes juniper, western redcedar, quaking aspen, Rocky Mountain
maple and chokecheny.
4 . River lots appear to be set back a minimum of 140 feet from the edge of the river. The
RRMP shows a minimum Area of Riparian Resource and buffer width of about 80 feet.
5. Jackie Corday of City Parks and Recreation confirms the river lots are sufficiently set
back from the river and provide an adequate wildlife corridor. She recommends that
the area be noted as an "Area of Riparian Resource/No Improvement Zone - see
covenants for more infonnation." This requires the RRMP to be recorded with the
Exhibit I -- 14
covenants. Jackie Corday also recommends expansion of the Area of Riparian
Resource and the buffer to an area west of Lot 30. These requirements are contained
in a condition of approval.
6. Building envelopes are shown on the plat. but specific information about what is
permitted within the envelopes or prohibited outside them is lacking. A condition of
approval nequires the building envelopes shown on the plat and legend to be explained
in the covenants and restrict dwellings to the building envelopes. Accessory structures
are permitted outside the envelopes on every lot but Lot 33. which is permitted to go
through re-subdivision via the subdivision review process.
7. The County Weed district recommends a revegetation plan to address site
disturbance. This is required in a condition of approval.
8. The County Weed District recommends weed control language that has been included
in the subdivision covenants.
9. Montana Fish. Wildlife and Parks (FWP) notes that the subdivision lies within whiletailed deer winter range. and is likely visited by black bears and mountain lions.
Montana FWP supports the proposed riparian setbacks along the Clark Fork River and
their function in supporting bird and mammal species.
10. Montana FWP encourages the building of a trail along the Clark Fork River.
FaCilitating pedestrian connection along the river could begin with the deSignation of a
pedestrian easement. which is required in a condition of approval.
11. Montana FWP encourages the recording of covenants that help landowners minimize
problem encounters with area wildlife. This information is contained in the subdivision
covenants.
Conclusions of Law:
1. Impacts to the natural environment. wildlife. or wildlife habitat will be minimized with the
conditions as adopted.
CRITERION 5: EFFECTS ON PUBLIC HEALTH AND SAFETY
Findings of Fact:
General
1. The City of Missoula Fire Department will serve the property. The Missoula Police
Department will provide law enfort:ement services.
2. This subdivision is within Ihe Missoula Wastewater Treatment Plant Service Area
(MWTPSA). It is the applicant's intent to connect to city sewer.
3. The property is located within the Air Stagnation Zone. The City-County Health
Department comments that all new driveways must be paved 20' back from the edge
of the pavement or right of way boundary. whichever is greater.
4. The City-County Health Department comments that the EPA has designated
Missoula County as having a high radon potential and recommends that all new
construction incorporate radon resistant construction features. This information is
included in the covenants.
5. The City-County Health Department comments that the covenants should allow for
the possibility of solar panels as approved by the architectural control committee.
The covenants appear to allow for certain limited forms of solar panels.
Floodplain
6. The plat includes a dashed line indicating the 1DO-year flood plain delineation per FIRM
panels 1220 and 1485. This line indicates that the 100-yearflood elevation is on the
steep river bank of the Clark Fork River's south side.
Exhibit I -- 15
7. The 100-yearfloodplain as delineated by FEMA is outside of platted lots with the
exception of Lot 33. This lot has a designated building envelope south of the Ordway
Lane cul-de-sac which is not w~hin the floodplain.
8. The building envelopes of all subdivision lots are located outside the 100-year
floodplain, but the Floodplain Administrator comments that the developer will need to
verify that all lots have basements 2' above the Base Flood Elevation (BFE) or pre-and
post-construction elevation certifications will be required on a lot-by-Iot basis at the lime
of Zoning Compliance Permil submittal. An additional condition requires infomnation on
the plat and in the covenants if elevation certifications are the chosen method of
elevation determination.
Yellowstone Pipe Line
9 . Yellowstone Pipeline (yPL) comments that a 10" high-pressure products pipeline
crosses the property. It is largely contained within common area, but will be crossed
by Drouillard Drive and the eventual extension of Ordway Lane.
10. 1t will be necessary for the developer to enter In to an encroachment agreement with
YPL. This agreement will specify requirements, liabilities and costs incurred
regarding development near the pipeline. This is required in a condition of approval ,
which also requires that plans for road construction across the pipeline be reviewed
and approved by YPL. The utility will a/so require that their right-ol-way
development provisions be recorded with the final plat, which is required in a
condition.
11 .An additional required condition of approval requires a note on the plat indicating the
pipeline location. This note is also required to be in the covenants.
12. The plat shows the products pipeline within a 50' easement, but YPL comments that
they have not agreed to the easement as shown . A condition of approval requires
an appropriate utility easement to be reviewed and approved by YPL prior to final
plat approval.
13. The Bonneville Power Administration (BPA) has a 250' wide transmission line rightof-way that crosses the subdivision. Certain restrictions apply to land underneath
BPA power lines.
14. BPA recommends a note on the plat outlining restrictions related to their right-ofway, which is required in a condition of approval. They further recommend that
developers of lots adjacent to the lines submit to a SPA Land Use Agreement prior
to building permit approval, which is required in a condition of approval. Another
condition also requires SPA review of proposed road and utility plans .
Conclusions of Law:
1. Emergency services, water, and san~ation are available to the subdivision.
2. Adverse effects on public hea~h and safety as a result of this subdivision may be
mitigated with the conditions as adopted.
c.) COMPLIANCE : This subdivision complies with:
1) SURVEY REQUIREMENTS
Findings of Fact
1. The Seal of a Professional Land Surveyor or Engineer is required on all final plals,
which states that the subdivision complies with part 4 of M.CA 76-3.
Conclusion of Law:
1. This proposal meets the survey requirements.
"Exhibit I -- 16
2) SUBDIVISION REGULATIONS
Findings of Fact
1. Subdivisions are required to comply with the local subdivision regulations provided for
in part 4 of M.CA 76-3.
2. A condHion of approval requires elimination of three subdivision lots in order to
accommodate a dike maintenance easement.
Conclusions of Law:
1. The developer has submitted a plat which complies wHh the requirements of local
subdivision regulations or condftions have been required that will bring the plan into
compliance.
3) REVIEW PROCEDURE
Findings of Fact
1. Subdivisions are required to comply with the local subdivision review procedure
provided for in Article 4 of the Missoula City Subdivision Regulations.
2. Notice of public hearing of this major subdivision was published in the Missoulian on
October 21" and 28"', 2007. Certified letters were mailed to adjacent property
owners on October 18th, 2007 . A poster was placed on the property boundary on
October 19th, 2007.
3. The Missoula Consolidated Planning Board held a public hearing on the subdiviSion
on November 6"', 2007.
4. The Missoula City Council held a public hearing on the subdivision on November
26th , 2007. The 60-day deadline is October 7'h, 2007. The developer has granted
an extension to November 26, 2007.
5. A decision of the goveming body rejecling or approving a proposed subdivision may
be appealed to the district court within thirty days of such deCision. The application
shall specify the grounds upon which the appeal is made. An appeal may be made
by the subdivider, a contiguous landowner, an owner of land w~hin the City of
Missoula who can establish a likelihood of material injury to property or its material
value, or the City Council. In order to file an appeal, the plaintiff must be aggrieved
by the decision, demonstrating that a specific personal and legal interest, as
opposed to a general interest, has been or is likely to be specifically and injuriously
affected by the decision.
Conclusion of Law:
1. This subdivision proposal has followed the necessary application procedure and has
been reviewed within the procedures provided in Article 4 of the Missoula City
Subdivision Regulations .
D) PROVISION OF EASEMENTS FOR UTILITIES:
Findings of Fact:
1. Northwestem Energy provides electricfty to the subdivision. Owest provides telephone
service.
2. Public utility easements are located within the Drouillard Drive and Ordway Lane rightsof-way.
3. Numerous util~ easements cross the property, including an 80' wide easement for a
161 KV power line, a 250' wide BPA easement for the main Hot Springs-Anaconda
transmission lines and two separate 70' easements for separate sets of 161 KV lines.
4. A 50' easement is shown for the 10' YPL products pipeline. A condHion of approval
requires YPL review and approval of an appropriate easement per their request.
Exhibit 1 - 17
5. City Engineering recommends a sewer line easement to be extended south of the
Ordway Lane cul-de-sac in order to potentially serve other properties in the future.
This is required in a conclijion of approval.
6. The proposed lift station for this subdivision is located on a utility lot adjacent to Lot 1
on Drouillard Drive. City Engineering requires legal access for this lot. which is
required in a condition of approval if deemed necessary by City Engineering.
7. A 20' utility easement crosses Lot 32, on the southem end of the subdivision, forthe
benefit of Lot 31.
Conclusions of Law:
1. The provision of easements for utilities will be met by this subdivision with the
conditions as imposed.
E) PROVISION.OF LEGAL AND PHYSICAL ACCESS:
Finding of Fact:
1. Drouillard Drive and Ordway Lane provide legal access to subdivision lots.
2. Lot 31 will have access to the Ordway Lane cul-de-sac via a 20' wide private access
easement.
3. A sewer lift station is proposed adjacent to Drouillard Drive and Lot 1. This lift
station may be accessible by Drouillard Drive, but City Engineering comments that
paved road access may be necessary. This is addressed in a condition of approval.
4. Required Public Access Easements will allow for legal non-motorized access of
subdivision common areas as recommended by City Parks and Recreation.
Conclusion of Law:
1. The proposal meets physical and legal access requirements.
Exhibit
J -- J 8

1 Alan F. McCormick Elena J. Zlatnik 2 GARLINGTON, LOHN

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