Loading...
03/24/99 Kaufman/Floodplain ViolationLAW OFFICES OF LEONARD L. KAUFMAN TELEPHONE JAMES E. VIDAL 406-755-5700 DANIEL W. HILEMAN 22 SECOND AVENUE WEST, SUITE 4000 JAMES M. RAMLOW P. O. BOX 728 FAX ANGELA M. VANINETTI KALISPELL, MT 59903-0728 406-755-5565 TIA R. ROBBIN or 406-755-5783 SHELLY R BRANDER E-MAIL ADDRESS kvhlaw@digisys.net March 24, 1999 Glen Neier, City Attorney City of Kalispell City Hall Kalispell, MT 59901 Re: Floodplain Violation / Hampton Inn Dear Glen: Pursuant to my discussions with you several weeks ago and with P.J. recently, this letter is Springcreek Development's response to the letter issued by your office on January 25, 1999 and addressed to Tim Stulc. I apologize I did not get this to you last week, but was out of town and was unable to get my client's approval until Monday. As I indicated to you on the phone, in view of the circumstances surrounding this matter, I suggest your letter and the threats contained are out of order and untimely. Our brief response will address the practical aspects of the entire situation and the administrative/ bureaucratic situation surrounding applications and denial thereof. 1. Practical Aspects: Glen, there is absolutely no question engineering wise that the impact, if any, on the flood zone in the area of concern is directly and absolutely caused by the City's unpermitted installation of the culvert on the north side of the Zauner complex (Zauner conduit). This culvert was installed in 1985. At installation it was and remains in complete violation of existing City ordinance, County regulation, State law, and FEMA regulations. Not only was the installation administratively illegal, i.e., a violation of the various rules, regulations and requirements in existence and continuing in existence, the installation procedure was inept. The profiles indicate the bottom of the culvert is over 1.7 feet higher than the normal stream bottom flow and the top of the culvert is substantially above the stream flow. The natural result of this inappropriate installation is that in any heavy runoff it acts as a dam. In addition, brush barriers placed in front of the culvert act as additional dams rather than protecting the culvert from the impact of floating debris. This improper installation has created a backup situation during the course of extremely high water. Any impact on the floodplain development area is directly relevant to and caused by this conduit. You have in your possession engineering studies by Morris Glen Neier March 24, 1999 Page 2. and Marilee, Jay Billmayer, and even findings by Mark Sawyer from the Flathead Regional Development Office that the impact of this illegal conduit is significant. Likewise, engineering studies delivered to your office conclusively establish that the Hampton Inn conduit has no impact on the existing flood situation. 2. Administrative Matters: At considerable cost to my clients, I have attempted to do a comprehensive time line review of the correspondence and activities of the City, County, FEMA, and Springcreek Development in regard to this issue. Pursuant to this study, I have reviewed aerial photographs of the property involved back to 1961. These photographs encompassing from 1961, 1974, 1977 and 1979 reflect the ongoing development and alterations to the creek drainage ponds, etc. in the area. I have reviewed the 1983 analysis done by engineer Hafferman. As indicated above, in 1985 the Zauner conduit was installed by the City. In 1990, when the initial development of the property owned by Ron Pack was commenced, Ron made application to modify the floodplain impact on the properties involved in the development. That application was approved by FEMA. In 1995 Springcreek Development, L.L.C. acquired the property for the purposes of development of the Hampton Inn. In October 1995, upon application by Ron Pack, the Flathead Conservation District approved the installation of the conduit now designated as the Hampton Inn conduit. It was installed. It appears that little occurred from that point until sometime in April of 1996. In 1996 the City, in a letter to Pack, discussed floodplain developments, referred to the April visit by FEMA, and this seems to be the start of an administrative permitting problem. Ron Pack then made an application for the additional permit. In April of 1997 Tim Stulc of Springcreek Development wrote and sent a detailed history of the situation to Virginia Motoyama with exhibits. In May of 1997 a very important letter was issued from the City of Kalispell. It gave certain options and made express commitments to my clients. I call your attention to the second page of that letter. That letter provides, "If there is no negative impact by the Hampton Inn conduit and the City has data, a floodplain development permit will be issued." I have enclosed a copy of this letter with this paragraph highlighted. On June 3, 1997, in response to the June 4 deadline, the application for a County/City floodplain permit was received. On June 6, 1997, the City issued a letter requesting some materials and engineering information pertaining to the area, which was forwarded to Dianna Harrison, Zoning Administrator of the City, and Tom Jentz, Floodplain Administrator, by Jay Billmayer of Billmayer Engineering on July 15, 1997. At some point in and about this period, information was required to be sent to FEMA. On August Glen Neier March 24, 1999 Page 3. 19, 1997, the FEMA forms were sent to FEMA. On August 6 Mr. Jensen gave public notice regarding the permit. It is important to note at this time that comprehensive engineering studies reflected that there was no negative impact by virtue of the installation of the Hampton Inn conduit. Jay Billmayer certified that under the condition existent there was no impact. Therefore, by virtue of the City's representation to Springcreek Development in its letter of May 29, 1997, the ep rmit should have been issued. On September 2, 1997, the Flathead Regional Development Office, under a letter issued over signature of Mark Sawyer, requested that further evaluations be made. He requested information as to what the Hampton conduit impact would be, if any, "without consideration of the Zauner conduit impact. " This engineering data should have been the responsibility of the City -- not the Hampton Inn developers. Hampton Inn was working with a known situation. Their project had "no impact." On September 18 Tom Jentz, acting on behalf of the County Flood Administrator, denied the submitted floodplain request per a denial letter. On October 1, 1997, the City (contrary to their express and written representation) denied the permit request. On October 2, 1997, Jay Billmayer, engineer for my clients, appealed to the County. On October 6, 1997, the County responded and stated that requests for more study had gone unanswered. At that point then, it appeared that little transpired until April of 1998, when Morrison and Marilee appeared to be hired by the City. On March 20, 1998, Dianna Harrison wrote what she designated was an update letter to my clients. She indicated the City was engaging in certain studies. She indicated that they were hoping the studies would hold off enforcement until all could understand what was going on. She indicated that the City and my clients would have to address the issue then and coordinate. In short, by virtue of this letter, my clients were advised in March of 1998 to "hold off" until the City could resolve its situation and determine where it was going to resolve the problem created by the City. Glen, I can advise you at this time that Ron Pack, Jay Billmayer and Tim Stulc will tell you that through other casual conversations post March, 1998, there were other references to hold off action pending some sort of cooperative effort to meet compliance with FEMA. The next document we received is your letter of January 25, 1999 threatening my clients with three potential penalties and demanding immediate removal of the conduit. As a result of that letter, I have obtained the January, 1999 letter from FEMA. It is further my understanding that there have been telephonic communications between my clients and FEMA. Glen Neier March 24, 1999 Page 4. The City had committed to issue the permit if there was negative impact. Engineering evaluation established negative impact and in conversation with Billmayer on March 4, 1989, he repeated this point. FEMA, in their letter, did not demand resolution as your office dictated. Rather, FEMA suggested alternatives. The resolution of this problem does not include suing on the performance bonds, revoking certificates of occupancy, or pursuing criminal charges. Resolution of this problem to the regulation, law and satisfaction of FEMA requires joint cooperation. Making a scapegoat out of my clients does not address the real problem affecting people and properties in that area. In this regard, I invite immediate coordination of your office, my office, and engineers in an effort to resolve this problem to the satisfaction of FEMA without further ado. Best regards, [ILEMAN, P.C. LLK: jlb Enc. cc: William Boharski, Mayor, City of Kalispell Craig Kerzman, Builidng Official Jim Hansz, Public Works Director R J. Sorensen, Zoning Administrator Eric Mulcahy, Flathead Regional Development Office Virginia Motoyama, Federal Emergency Management Agency Ronald Pack Tim Stulc