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DeJana to Council/Phase II Final PlatRichard DeJana & Associates PLLC RICfIARD DEJANA, Esq. 126N. Meridian Rd.. P. 0. Box1757 Kalispell, MT 59903 Phone 4067524120 Email rdejanagdigisys.net Fax 406-752.5015 To: Mayor Pamela B. Kennedy and The Kalispell City Council From: Richard DeJana, attorney for KRDS and J& F Construction (Developers) RE: Phase II, Northview Heights Phase II (Formerly the Island) Date of Meeting: July 6, 2004 Madam Mayor and Members of the Council: This memorandum with the accompanying documentation will be submitted to you as a summary of the comments made by me during the portion of the Council meeting with the public interest you. I have previously delivered to the City Attorney a memorandum regarding this matter and I assume that memorandum is attached to your packets. In any event, I have attached a copy hereto. Tonight you do not face an issue of denial or acceptance of a final plat, but rather the issue of the extent of the bond which you will require for the completion of certain improvements. You have a memorandum from the City Manager and City Attorney, unfortunately that memorandum is inaccurate and misstates the facts before you. Therefore, I want to take an opportunity to review the history of this issue and discuss with you a lot relating to the same. On April 15th 2002, an application and preliminary plat were presented for review. The subdivision was to be developed in three phases. Those phases were designated on the plat, not in a time related manner, but by specific geographic area. That is the first point we need to make. Irrespective of what order the phases were developed, they still retain their phase designation. Nothing in the application or the approval makes the phasing time related. The application for the subdivision is attached as Exhibit 1. It provides in the Phasing Discussion on page 1 of its attachment. " PHASE III.• 13 lots would include the looping of the water to Three Mile Drive and Garland street, a sewer main extension to Three Mile Drive and Garland Street, curb, gutter, sidewalk and adding sidewalk, curb and gutter to North Riding Lane from Phase I -II to Three Mile Drive. " The phasing was shown on page 2 of the preliminary plat. (See the phasing portion of that plat, Exhibit 2.) 2 Staff report KPP-02-2 recommended approval without any reservations about the phasing. The Planning Board did the same on May 14, 2002. On May 23, 2002, the Planning Board submitted it favorable report. (Exhibit 3). The Preliminary Plat and the "application" were approved on June 3, 2002. (Exhibit 4). As you are aware, once a preliminary plat is approved there can be no additional conditions placed on the developer in order to secure the final plat. (76-3-610, MCA). Your Kalispell Subdivision Regulations, at Section 2.07(B), require that if phasing is desired, the developer must propose, as part of the application process and as "part of the preliminary plat approval", the phases and a phasing plan. That was done and the preliminary plat and application were approved. Included in the phasing plan has to be various designated phases and the public improvements that were to be completed before final approval of each phase. As you are aware, the demand for roads and alike to be provided by the developer are what is known as an extraction. There must be an essential nexus between the development and the extractions sought by the city. The extractions must be related to the impact of the subdivision on the city. If not, then the extraction is subject to challenge as a taking and potentially a violation of due process and here a violation of equal protection. Contrary to the implication created by the City Attorney and the City Manager, the road at issue meets the requirements of the city for the number lots produced for Phase I and Phase II. It was planned that way. Should the developers of gone broke at the conclusion of Phase II and Phase I, the road at issue would meet the needs of the city with respect to those lots. (See: Construction Standards, City of Kalispell, SD-1, SD-2 and SD-3). Here, Phase III was later split off to one of the original applicants. It was not and still is not developed in accord with the plans for Phase III. The minutes of your December 16, 2002 meeting reflect the approval final approval of Phase I and a final approval for a plat for Bitterroot Heights which contains Phase III. (See Exhibit 5). During the review of the subdivision, the planning office sent a letter attached as Exhibit 6 to the developers' engineer. That letter specifically recognizes that the proposed subdivision included Phase III. (Item 1, page 1). It further recognizes that upon development of the subdivision, the requirements as found in the application for Northview would apply. (Item 3, page 2). Staff Report KWP-02-3 acknowledges in Section D on page 2 that the improvements necessary -- forming the essential nexus -- for the subdivision will be satisfied by the filing of the final plat for Northview Heights Phase I. Thus, contrary to the memo from the City Attorney and City Manager, Kalispell has already recognized that Phase III was included in The Bitterroot Heights Subdivision. Thus, the assumption of renumbering based on time approval has been shown to be incorrect. Further, the needs and the impact of Phase I, Phase II, and Bitterroot have been by the city's own admission been adequately met. So what is the problem? On August 4`h 2003, you approved a subdivision known as Raven Rock under Resolution 4822. (Exhibit 7). (the Preliminary Plat and then the "revised plat" are attached as Exhibit 8). You required that "[t]he proposed two accesses onto North Riding Road be consolidated into one access that aligns with the undeveloped subdivision road that lies immediately to the west in 3 Northview subdivision." (Condition 7). Thus, after the separation of Bitterroot and with the at least imputed knowledge that North Riding was only to the standards needed for Phase I and Phase H, you approved adding demand requirements to that road. The need — essential nexus — for the Phase III work does not exists in relation to Northview as it stands but rather Raven Rock as you approved it, having already separated Phase III and determined that the road meets the standards needed for that property. To request a bond and a completion of improvements that do not correspond to the nexus or the preliminary plat before granting final plat approval to Phase II, is an extraction not related to the impact of the Northview, but rather to the impact that the City knowingly caused because of Raven Rock. That is not an appropriate extraction. Based on the forgoing, about which you will get more detail, it is respectfully submitted that you cannot and more importantly should not impose the Phase III conditions on this final plat of Phase II.