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Frampton to Council/Sewer System Waiver06/12/2009 16:43 14068629611 MORRISON&FRAMPTON PAGE 01/03 $RAN S. FRAMPTON SHARON M. MORRISON RYAN D. PURDY DOW $COTTT To: Fax: From: Date: Re: Pages: Message: MORRISON & .F AMPTON. FRANK LLOYD'WRIGHT BUTLOING 341 CENTRAL AVENUE WHITEFISH, MONTANA 19937 TELEPHONE (4c6) 86x-9600 PAC'RTM1LE (406) 862-9611 PLLP FRANK B. MORRISON, JR, ('W - w6) FORMrA MONTANA SUPREME COURTIVWCP. FACSIMILE TRANSMITTAL SKEET KALISPELL CITY COUNCIL (406) 758-7758 Sean S. Frampton Morrison & Frampton, PLLP June 12, 2009 Cottonwood Estates 3 (including cover skeet) :PLEASE COPY AND DISTRIBUTE TO EACH COUNCIL MEMBER FOR MONDAY'S COUNCIL MEETING. THANK YOU VERY MUCHM The information contained in this faosimilc mcssagc is sttorney privileged and confidential information intended only for the use of the individual or entity named above. if the reader of this message is not the intended recipient oT the cmployec or agent responsibtc to deliver it to the intended recipient, please do not disseminate, distribute or copy this communication, if you havo roccivod this communication in error, please immediately notify us by telephone, and return the original mcssagc to us st the shove address via the U, S. postal Service, We will reimburse you for the prKtagc and telephone COStS. IF YOU DO NOT RECEIVE ALL OF THE PAGES, PLEASE CALL OUR OFFICE AT THE ABOVE TELEPHONE NUMBER AS SOON AS POSSIBLE ( ) O1riginal. Will Follow ( ) Original Will Not Follow 06/12/2009 16:43 14068629611 MORRISON&FRAMPTON SLAN S. FRAMPTON SHARON M. MORRISON DOUGLAS SGOTTI'� RYAN D, PURDY 2il MORRISON & FRAIV PTON, FRANK LLOYD WRIOHT BUILDINO 341 CENTRAL AVENUE W HITErism, MONTANA 59937 TEL£PfIONE (doh) 86:g-000 FACSIMILE (4a6) 862-96Tc June 12, 2009 VIA U.S. MAIL, Kalispell City Council Kalispell City Hall 201 First Avenue East Kalispell, Montana 599D1 RE: Cottonwood Estates Dear Council Members: P L L P FRANK B. M0RRTSON, jR. (1937'4e06) FMFMCR MONTANA$1JOQaMECOURTIVST10E * Licensed aIte in State, of Louisiana I represent Cottonwood Estates and its principals. At Monday's City Council meeting on June 15, 2009, the Council will address a request from Cottonwood Estates for a waiver of the City of Kalispell's sewer standards. i will be unable to attend the meeting Monday evening and am therefore presenting my clients' position to you in writing. My clients may also personally appear and speak in addition to my comments. On October 11, 2005, Cottonwood Estates received preliminary plat approval from the Board of County Commissioners, Condition 6 of that approval provides that, "Public sewer service shall be provided to the subdivision lots by either the Evergreen Sewer District the [sic] City of Kalispell. This agreement must be in place prior to final plat approval." As you are well aware, the City of Kalispell and the Evergreen Sewer District have an Interlocal Agreement which provides for the delivery and treatment of sewer from the Evergreen area. My clients have been dealing with both Evergreen and the City of Kalispell for over three and a half years on obtaining sewer services. The preliminary plat is valid for three years with a one-time extension of one year. My clients have requested that extension and their preliminary plat will expire on October 11, 2009, unless they can get their sewer approved by the DEQ and have a bond in place for its installation. Thus, time is of the essence for my clients to receive approval for its sewer from Evergreen and the City of Kalispell so it can then apply to the DEQ. Receiving DEQ approval is a lengthy process and even ding at this date could be questionable about whether Cottonwood Estates would receive approval prior to October 11, I have only been recently engaged in this matter to help insure that Cottonwood Estates does not lose its final plat approval. Since the time i was engaged, it has become apparent that the cause of the delay for sewer approval has not been the fault of my clients but rather has been the lack of cooperation between the Evergreen Sewer District and the City of Kalispell on what would be an acceptable sewer design. My clients are not taking a position on what system is better — they only want cooperation between the entities so they can receive approval. The November 2007 Interlocal Agreement provides that "the City and the District agree to work 06/12/2009 16:43 14068629611 MORRISON&FRAMPTON PAGE 03/03 Page 2 of 2 June 12, 2009 cooperatively to provide a reasonable opportunity for those properties seeking urban density development and located within such proximity to the District's collection system to be served by the City's wastewater treatment plan." My clients ask that you grant the waiver requested as a means of working cooperatively with the Evergreen Sewer District. As to the specific request before you, I understand that Paul Burnham has requested that Cottonwood Estates request this waiver from the City standards. Mr. Burnham's request follows a meeting that we had a few days ago between the engineers, City staff, my clients and myself, for the purpose of seeing if we can work this matter out. I also understand from our engineers that the City does not have standards which prohibit E1 grinder systems. In City Resolution 5104, signed March 27, 2006, regarding Cottonwood Estates, LLC, the City of Kalispell authorized Cottonwood Estates to connect to the Evergreen Sewer District so long as the landowner agreed to construct the sewer infrastructure in compliance with City standards. Therefore, even though Mr. Burnham has requested that we ask the City for a waiver of its sewer standards, it appears that Cottonwood has already been granted permission for this connection and that permission should not be denied unless the City standards prohibit E1 grinder systems. Nevertheless, in the spirit of cooperation, my clients have complied with Paul Burnham's request for a waiver of the City standards, Finally, I would like to point out that my clients have been cooperative with the City's requests for the past three and a half years. Even though my clients' subdivision is out in rural land, they have had no objection to complying with City standards for lights, sidewalks, etc. This is a very large expense to the development itself and it seems that my clients' good faith effort to comply with all City subdivision standards warrants them receiving like treatment in the approval of their sewer system. Also, my clients have invested a substantial amount of money in this development, including carrying costs for the past three and a half years while the City and Sewer District could not reach an agreement on the proposed sewer. i would ask that you take their investment into consideration because they stand to lose everything if they do not receive immediate approval from the City of Kalispell so the matter can proceed to the DEQ. Thank you for your consideration of this matter. Very truly yours, Sean S. Fra pton Morrison & Frampton, PLLP SSFIww cc: Charles Harball