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4. Ordinance 1339 - Zone Change - Sneed - 2nd ReadingCity of Kalispell Post Office Box 1997 • Kalispell, Montana 59903-1997 • Telephone (406) 758-7700 • FAX (406) 758-7758 REPORT TO: Honorable Mayor and City Council FROM: Chris A. Kukulski, City Manager SUBJECT: Ordinance 1339 - 2nd Reading MEETING DATE: November 15, 1999 BACKGROUND: William and Rebecca Sneed have requested a zone change on approximately 1.64 acres on the southwest corner of 8th St. W. and 12th Ave. W. At the last meeting, Narda Wilson indicated the property should have been zoned R-4 originally and Council passed the ordinance on first reading. No changes have been made between first and second reading. RECOMMENDATION: The City Council approve Ordinance 1339 on second reading changing the property from RA-1 (Low Density Residential Apartment) to R-4 (Two -Family Residential). FISCAL EFFECTS: None. ALTERNATIVES: As suggested by Council. Respectively submitted, Chris A. Kukulski City Manager Report compiled November 12, 1999 ORDINANCE NO. 1339 AN ORDINANCE TO AMEND SECTION 27.02.010, OFFICIAL ZONING MAP, CITY OF KALISPELL ZONING ORDINANCE, (ORDINANCE NO. 1175), BY ZONING CERTAIN REAL PROPERTY DESCRIBED ON EXHIBIT "A" (PREVIOUSLY ZONED RA-1, LOW DENSITY RESIDENTIAL APARTMENT) TO R-4 (TWO FAMILY RESIDENTIAL), IN ACCORDANCE WITH THE CITY -COUNTY MASTER PLAN, AND TO PROVIDE AN EFFECTIVE DATE. WHEREAS, William and Rebecca Sneed, the owners of property described above, petitioned the City of Kalispell that the zoning classification attached to the above described tract of land be changed to R-4, Two Family Residential, and WHEREAS, the property as described exists as property surrounded to the North by Duplex dwellings, R-4 Zoning, to the East by Senior apartment housing, RA-1 Zoning, to the South by County R-1 Zoning (Single family homes), and to the West by County R-1 Zoning (Single family homes), and WHEREAS, the petition of William and Rebecca Sneed was the subject of a report compiled by the Flathead Regional Development Office, #KZC-99-5, dated October 4, 1999, in which the Flathead Regional Development Office evaluated the petition and recommended that the property as described on Exhibit "A" be zoned R-4, Two Family Residential as requested by the petition, and WHEREAS, the Kalispell City -County Planning Board and Zoning Commission adopted the FRDO report and recommended the property as described be zoned R-4, Two Family Residential, and WHEREAS, after considering all the evidence submitted on the proposal to zone the property as described R-4, Two Family Residential, the City Council adopts, based upon the criterion set forth in Section 76-3-608, M.C.A., and State, Etc. v. Board of County Commissioners, Etc. 590 P2d 602, the findings of fact of FRDO as set forth in Report No. KZC-99-5. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL AS FOLLOWS: SECTION I. Section 27.02.010, of the Official Zoning Map of the Kalispell Zoning Ordinance, (Ordinance #1175) is hereby amended by designating the property described in Exhibit "A" as R-4, Two Family Residential. SECTION II. The balance of Section 27.02.010, Official Zoning Map, City of Kalispell Zoning Ordinance not amended hereby shall remain in full force and effect. SECTION III. This Ordinance shall be effective thirty (30) days from and after the date of its final passage and approval by the Mayor. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL AND SIGNED BY THE MAYOR THIS DAY OF NOVEMBER, 1999. Wm. E. Boharski Mayor ATTEST: Theresa White City Clerk Flathead Regional ]Development Office 723 5th Avenue East - Room 414 Kalispell, Montana 59901 Phone: (406) 758-5980 Fax: (406) 758-5781 REPORT TO: Kalispell Mayor and City Council FROM: Narda Wilson, Senior Planner Chris A. Kukulski, City Manager SUBJECT Sneed Zone Change From RA-1 to R-4 MEETING DATE: November 1, 1999 BACKGROUND: This is a zone change request on approximately a 1.64 acre site from an RA-1, Low Density Residential Apartment zoning district to R-4, a Two Family Residential zoning district. The property proposed for rezoning is located on the southwest corner of Eight Street West and 12th Avenue West in Kalispell. Currently this property is zoned RA-1, a Low Density Residential Apartment zoning district which allows duplexes and single family homes as permitted uses and low density apartments as a conditional use. The minimum lot size requirement for this zoning district is 6,000 square feet plus 3,000 square feet for each additional unit beyond a duplex. The property owner is requesting that this property be rezoned from RA-1 to R-4. The minimum lot size requirement for both zoning districts is 6,000 square feet. However, the lot width is 60 feet in RA-1 and 50 feet in R-4. The property owner would like to sell this property which would then be developed as a residential subdivision intended primarily for single family dwellings. The reduced lot width requirements allows more flexibility in subdivision design. There is good potential for the subdivision of this property since there are existing City right-of-ways in the area as well as access to water and sewer facilities. Currently this property is undeveloped and lies on the western boundaries of the city limits. RECOMMENDATION: A motion to adopt the ordinance on first reading granting the zone change from RA-1 to R-4 would be in order. FISCAL EFFECTS: None. ALTERNATIVES: As suggested by the city council Narda Wilson Chris A. Kukulski Senior Planner City Manager Report compiled: October 18, 1999 Attachments: Transmittal letter FRDO Report KZC-99-5 w/application materials Draft minutes of the 10/ 12/99 planning board meeting Providing Community Planning Assistance To: • Flathead County • City of Columbia Falls • City of Kalispell • City of Whitefish • Flathead Regional Development Office 723 5th Avenue East - Room 414 Kalispell, Montana 59901 October 18, 1999 Chris Kukulski, City Manager City of Kalispell P.O. Box 1997 Kalispell, MT 59903 Phone: (406) 758-5980 Fax: (406) 758-5781 Re: Sneed Zone Change from RA-1 to R-4 in the Kalispell Zoning District Dear Chris: The Kalispell City -County Planning Board met on October 12, 1999, and held a public hearing to consider a request by William and Rebecca Sneed for a zone change from RA-1, Low Density Residential Apartment, to R-4, Two -Family Residential, on approximately 1.64 acres located on the southwest corner of Eighth Street West and 12th Avenue West in Kalispell. Narda Wilson, representing the Flathead Regional Development Office, presented a staff report that evaluated the proposal in accordance with the required criteria. She noted that this would allow subdivision of this property with 50 foot lots rather than 60 foot and would not effect the overall density. Staff recommended approval of the requested zone change. At the public hearing Kris Jackola, representing the applicants, spoke in favor of the petition stating that this zone change fits with the neighborhood and the owners' vision for the property. The planning board discussed the zoning in the area and zone change proposal. A motion was made and seconded to adopt staff report KZC-99-5 as findings of fact and forward a recommendation to approve the zone change from RA-1 to R-4. The motion passed by unanimous vote. Please place this matter on the agenda for the November 1, 1999 regular city council meeting. Please contact this board or Narda Wilson at the Flathead Regional Development Office if you have any questions regarding this matter. Board Providing Community Planning Assistance To: • Flathead County • City of Columbia Falls • City of Kalispell • City of Whitefish • Sneed Zone Change October 18, 1999 Page 2 JJ/NW/tl Attachments: FRDO Report #KZC-99-5 w/application materials Draft minutes of 10/ 12/99 planning board meeting c: w/Att: Theresa White, Kalispell City Clerk c: William 8s Rebecca Sneed, 280 McMannamy Drive, Kalispell, MT 59901 Jackola Engineering, P O Box 1134, Kalispell, MT 59903 H: \FRDO\TRANSMIT\KALISPEL\ 1999\KZC9905.DOC comprehensive_ plan of the remaining phase plans. The applicant agrees with the conditions as amended by the staff. No one else wished to speak and the public hearing was closed. BOARD DISCUSSION Heinecke asked and was answered that the parking lot on the north side of Sunnyview will eventually be lost to the hospital but not until lot 6 or 7 is developed. The hospital will have to make up the deficit parking at that time. Heinecke also questioned whether there is a new road going in along lot 35, and Wilson answered that right now as much as it may be needed she does not foresee it happening either by donation or condemnation. Greer added that the hospital at some point would like to add a road but at this time there is not a 60-foot width along lot 35 to allow for a road. MOTION Heinecke moved and Hines seconded to adopt staff report KPP- 99-3 as findings of fact and, based on these findings, recommend that the request for preliminary plat approval be granted subject to the conditions as amended by staff. On a roll call vote all members voted Aye. The motion to recommend approval of the preliminary plat subject to amended conditions passed unanimously. SNEED ZONE CHANGE A request by William and Rebecca Sneed for a zone change from RA-1 to R-4 on approximately 1.64 acres located on the southwest corner of Eighth Street West and 12th Avenue West in Kalispell. STAFF REPORT Narda Wilson of the Flathead Regional Development Office gave a presentation on staff report KZC-99-5 in which staff recommends that the requested zone change be granted. She stated that she believes this to be an ideal location for this proposal. The minimum lot requirement is 1 dwelling per 3,000 square feet, so there is no density gain or loss with this zone change. She stated that this proposal is consistent with the neighborhood character. PUBLIC HEARING The public hearing was opened to those in favor of the petition. PROPONENTS Chris Jackola spoke in favor of the petition stating that this proposal fits with the neighborhood and the owners' vision for this property. OPPONENTS No one else wished to speak and the public hearing was closed. BOARD DISCUSSION Johnson stated that a real estate agent had the zone changed on this property previously, but he agrees that an R-4 zoning makes the best sense for this property. MOTION Garberg moved and Sipe seconded to adopt staff report FZC-99- Kalispell City -County Planning Board October 12, 1999 Meeting Minutes Page 2 of 5 5 as findings of fact and, based on these findings, recommend to the Kalispell City Council that the requested zone change from RA-1 to R-4 be granted. On a roll call vote all members voted Aye. The motion to recommend that the zone change be granted passed unanimously. SALVATION ARMY A request by the Salvation Army for a conditional use permit to CONDITIONAL USE allow a multi -family development in an H-1 to construct a 12- PERMIT unit apartment complex for senior and disabled persons in the north part of the Salvation Army parking lot. STAFF REPORT Narda Wilson gave a presentation on staff report KCU-99-8 in which staff recommends that the conditional use permit be granted subject to five conditions. She stated that the Salvation Army wishes to convert the north lot to modest apartments for seniors and the disabled. She added that this parking displacement does not impact the required parking under zoning. The parking requirement for multi -family for seniors and the disabled is one space per five dwellings, and this proposal includes one space per dwelling, which is far more adequate. This would have a relatively minimal impact on the area and services. This fits in well with the mix in the area. Johnson asked about fire department requirements and Wilson stated that the condition, as written, leaves this to the Fire Department and would be worked out at site review. Stevens asked about condition four, deed restrictions, and Wilson stated that this would be flexible enough to allow for future use by other than seniors if allowable parking were met. PUBLIC HEARING The public hearing was opened to those in favor of the petition. PROPONENTS Lt. Monte Jones, 216 Glenwood Drive, spoke in favor of the petition stating that the Salvation Army's goal is to meet human needs without discrimination. They want to meet that need with this low-income apartment complex. During this process they have met with the neighbors and have addressed a lot of the concerns, the Salvation Army's idea is to meet their demands where possible. This unused parking lot is not good stewardship and an apartment complex to meet human needs is good stewardship. OPPOSITION Michael Ober, 54 Buffalo Hill Drive, spoke against the proposal based on the fact that this will reduce his property values, and increase traffic, noise and congestion. Bob Windauer, 75 Claremont Street, questioned the petition asking about landscaping and plans for Bountiful Drive, and the problems with vagrants etc. He asked how that end of the property will be managed. Kalispell City -County Planning Board October 12, 1999 Meeting Minutes Page 3 of 5 WILLIAM AND REBECCA SNEED ZONE CHANGE REQUEST FROM RA-1 TO R-4 FLATHEAD REGIONAL DEVELOPMENT OFFICE STAFF REPORT #KZC-99-5 OCTOBER 4, 1999 A report to the Kalispell City -County Planning Board and the Kalispell City Council regarding a zone change request from RA-1 to R-4. A public hearing has been scheduled before the Kalispell City -County Planning Board for October 12, 1999 beginning at 7:00 PM in Kalispell City Council Chambers. A recommendation from the Planning Board will be forwarded to the Kalispell City Council for final action. The applicants are proposing to amend the Kalispell Zoning Map by rezoning an approximate 1.64 acre site from an RA-1, Low Density Residential Apartment zoning district to R-4, a Two Family Residential zoning district. A. Petitioner and Owners: William and Rebecca Sneed 280 McMannamy Draw Kalispell, MT 59901 (406) 755-1148 B. Location and Legal Description of Property: The property proposed for rezoning is located on the southwest corner of Eight Street West and 121h Avenue West in Kalispell. The property can also be described as Assessor's Tract 3, Government Lot 3 located in Section 18, Township 28 North, Range 21 West, P.M.M., Flathead County, Montana. C. Existing Zoning: Currently this property is zoned RA-1, a Low Density Residential Apartment zoning district which allows duplexes and single family homes as permitted uses and low density apartments as a conditional use. The minimum lot size requirement for this zoning district is 6,000 square feet plus 3,000 square feet for each additional unit beyond a duplex. D. Nature of Request and Proposed Zoning: The property owner is requesting that this property be rezoned from RA-1, Low Density Residential Apartment, to R-4, Two Family Residential on approximately 1.64 acres. The minimum lot size requirement for both zoning districts is 6,000 square feet. However, the lot width is 60 feet in RA-1 and 50 feet in R-4. The property owner would like to sell this property which would then be developed as a residential subdivision intended primarily for single family dwellings. The reduced lot width requirements allows more flexibility in subdivision design. E. Size: The area of the parcel proposed for rezoning contains approximately 1.64 of an acre. There is good potential for the subdivision of this property since there are existing City right-of-ways in the area as well as access to water and sewer facilities. F. Existing Land Use: Currently this property is undeveloped. G. Adjacent Land Uses and Zoning: This property is in an area which has a mix of single family residences and duplexes in the immediate area. It is residential in character and lies on the western boundaries of the city limits. North: Duplex dwellings, R-4 zoning East: Senior apartment housing, RA-1 zoning South: Single family residential, County R-1 zoning West: Single family residential, County R-1 zoning H. General Land Use Character: The general land use character of this area is residential. This is on the urban fringes of Kalispell in addition to it being very near the 100 year floodplain associated with Ashley Creek which has limited development potential. It can be described as a transition area between the urban area of Kalispell and the more rural areas of the county. I. Utilities and Public Services: Sewer: City of Kalispell Water: City of Kalispell Refuse: City of Kalispell Electricity: Flathead Electric Co -Op Inc Telephone: CenturyTel Schools: School District #5 Fire: Kalispell Fire Department Police: City of Kalispell J. Relation to Zoning Requirements: With regard to lot size, the area proposed for rezoning meets the minimum lot size requirements of 6,000 square feet for both zoning districts. Subdivision potential would be good because of the size of the parcel and the availability of public services to the site. A notice of public hearing was mailed to property owners within 150 feet of the subject property approximately 15 days prior to the hearing. At the writing of the staff report, no comments had been received from the public regarding this proposal. The statutory basis for reviewing a change in zoning is set forth by 76-2-205, M.C.A. Findings of fact for the zone change request are discussed relative to the itemized criteria described by 76-2-203, M.C.A. The Kalispell City -County Master Plan map designates this area as Urban Residential. The proposed zoning would be in general compliance with this master plan map designation. 2 Currently, the area proposed for rezoning has several potential residential development sites. The rezoning would not generally change the number of allowable lots and reducing them slightly, hence there would not be a net difference in the congestion in the streets which might be created once these lots are fully developed. Water and sewer mains, fire hydrants and new paved roadways would be required to be installed to serve new lots thereby securing safety from an emergency situation. Building codes will insure that the fire codes are met during the construction of the buildings. Rezoning will not effect the risk and safety factors which might be associated with this property. •' '• .' -• •.••- • •••• - •' •' • ..•• •-•Em - The change in zoning would further the general health and welfare of the community by providing the potential development of property on affordable lots served by municipal services in an area that would be compatible and conducive to the type of development anticipated for the site. Adequate light and air would be provided both by the density in the district and the setback requirements for structures. The minimum lot size for the R-4 zoning is similar to the RA-1 currently in place. Generally there would be no increase to the overall density of the area that would result with the proposed R-4 zoning on this property and may in fact reduce the density allowed for the site. Most public services and facilities are available in close proximity to this site such as fire protection, police protection, schools, parks and recreation and a good transportation system along with municipal water and sewer service. Adequate services can be provided to accommodate the development of this property. Currently this property is zoned for multi family residences. The change in zone will not change the allowable uses on the property since the R-4 and RA-1 are both residential, the difference being that the R-4 zoning district requires less lot 3 width and does not allow multi -family dwellings. Additionally, the setbacks in R-4 are reduced from the ten feet required under RA-1 to five feet. The requested zone gives adequate consideration to the suitability of the property for single family residential uses. The character of the area is single family residential and duplexes with the exception of the senior housing project immediate to the east. The requested zone is consistent with the uses in the area since it is intended for residential uses. •- . •�• -• ••- •• -r - •- - • . • •• The value of buildings in the area would be generally unaffected by this change in zoning. The uses planned for these lots are residential which would be consistent and compatible with other buildings in the area which are primarily single family homes and duplexes. 11. Will the requestei zo7ce -• • . TMFiiii throughout the jurisdiction? The master plan designates this area for urban residential development. The zoning in the area and the requested zoning are consistent with that land use designation. The zoning is used as a tool to implement the master plan thereby encouraging the most appropriate use of land throughout the planning jurisdiction. The net effect of the request for a zone change would be minimal with regard to impacts in the area since the overall density would be modestly reduced. In exchange the lot width requirements and setback requirements are also reduced. Most of the lots in the area have been developed in accordance with the R-4 zoning and the subject property is one of the few zoned for apartments in the area. Allowing the property to be rezoned to R-4 would allow more flexibility in designing and developing lots intended for this property. Staff recommends that the Kalispell City -County Planning Board adopt FRDO staff report #KZC-99-5 as findings of fact and, based on these findings, recommend to the Kalispell City Council that the requested zone change from RA-1 to R-4 be granted. H\99\.. \KZC99-5.RPT E APPLICANT: FRDO FILE #: CERTIFICATION WILLIAM & REBECCA SNEED (RA-1 TO R-4) KZC-99-5 I, the undersigned certify that I did this date mail a copy of the attached notice to the following list of landowners within 150 feet of the property lines of the property that is the subject of the application. Date. Assessor's S-T-R Lot/Tract No. No. SEE ATTACHED LIST Property Owner & Mail Address APPLICANT WILLIAM & REBECCA SNEED 280 MCMANNAMY DRAW KALISPELL MT 59901 TECHNICAL PARTICIPANT JACKOLA ENGINEERING PO BOX 1134 KALISPELL MT 59903 ADJACENT OWNERSHIP TRACT 3, SECTION. 18, T.28N., R.21 W. Flathead County, Montana SECTION LOT & ASSESSOR'S TOWNSHIP TRACT PROPERTY OWNER AND NUMBER RANGE NO. MAILING ADDRESS ASHLEY ADDITION AMD L7-12 $ LK 3 0968399 S18, T28N, R21W LOT 1A 0968400 S18, T28N, R21 W LOT 24 0968401 S18, T28N, R21 W LOT 3A 0968402 S18, T28N, R21 W LOT 4A KEN -WAY ADDITION 0969117 S18, T28N, R21 W LOT 4 0969118 S18, T28N, R21 W LOT 5 0969119, S18, T28N, R21 W LOT 6 KEN -WAY NO.2 ADDITION FRANCESI.BEKKEDAHL 1235 8TH ST. W. KALISPELL, MT 59901 IVAN & CONNIE LORENTZEN 354 BLUE SPRUCE LN. KALISPELL, MT 59901 CRAIG & CONNIE DE NMAN KENT MEYER SUSAN & WILLIAM R. SCHOTTE ELKORB IVAN & CONNIE LORENTZEN 354 BLUE SPRUCE LANE KALISPELL, MT 59901 SUSAN & WILLIAM R. SCHOTTELKORB DONALD PRINCE & HELEN E. PRINCE 1235-3RD AVE EAST KALISPELL, MT 59901 BROOK & JENNIFER FREUDENBURG 716 11TH AVE WEST KALISPELL, MT 59901 TAMMEY J. STREMEL P.O. BOX 8805 KALISPELL, MT 59901 KEN NARDINGER & WAYNE A. JENSEN C/O KEN -WAY DEVELOPMENT 1128 KENWAY KALISPELL, MT 59901 0971355 S18, T28N, R21W JENSEN-NARDINGER 1128 KEN WAY KALISPELL, MT 59901 0343380 S18, T28N, R21W TRACT 4A JOE & BARBARA SWARTZENBERGER 904 WALLACE AVE KALISPELL, MT 59901 0150040 S18, T28N, R21W TRACT 4AA MARILYN CLEMENTS 854-12TH AVE WEST KALISPELL, MT 59901 0054480 S18, T28N, R21 TRACT 4 KENNETH M. & BETTY A. SHARP 1300-8TH STREET WEST KALISPELL, MT 59901 ASHLEY BLK 3 0034725 S18,T28N, R21W LOT 1 TERRY L. & PATRICIA K. BAKER LOT 2 1739 FOYS LAKE ROAD LOT3 KALISPELL, MT 59901 0880244 S18, T28N, R21W LOT 4 ERIK J. ANDERSON 1228 T7TH ST WEST KALISPELL, MT 59901 0054450 S18, T28N, R21W LOT 5 PHILIP E. BOYCE LOT 6 270 BRUNNER RD. C. FALLS, MT 59912 ASHLEY BLK 4 S18, T28N, R21 LOT 1 MARSH FAMILY TRUST OSS8800 LOT 2 954 N. MERIDIAN ROAD KALISPELL, MT 59901 0709050 S18, T28N, R21W TRACT 8A HENRY M. & MARY M. WIERSMA 701 S. MERIDIAN ROAD KALISPELL, MT 59901 0054481 S18, T28N, R21W TRACT 813 FRANCES I. BEKKEDAHL 1235 8TH STREET WEST KALISPELL, MT 59901 4PPROVED 9 NOTICE OF PUBLIC HEARING KALISPELL CITY -COUNTY PLANNING BOARD AND ZONING COMMISSION Kalispell Zone Change from RA-1 to R-4 on the SW corner of 81h St West and 12th Ave. West Salvation Army Conditional Use Permit for 12 Senior / Disabled Housing Preliminary Plat Approval for Buffalo Commons Phases 3, 4 and 5 - 27 Lot Subdivision The regular meeting of the Kalispell City -County Planning Board and Zoning Commission is scheduled for Tuesday, October 12, 1999, beginning at 7:00 PM in the Kalispell City Council Chambers, Kalispell City Hall, 312 First Avenue East, Kalispell. During the regularly scheduled meeting of the planning board, the board will hold public hearings and take public comments on the following agenda items. The board will make recommendations to the Kalispell City Council who will take final action: A request by William and Rebecca Sneed for a zone change from RA-1, Low Density Residential Apartment, to R-4, Two Family Residential, on approximately 1.64 acres located on the southwest corner of Eight Street West and 12th Avenue West in Kalispell. The property can also be described as Assessor's Tract 3, Government Lot 3 located in Section 18, Township 28 North, Range 21 West, P.M.M., Flathead County, Montana and as further described in attached Exhibit A. 2. A request by the salvation Army for a conditional use permit to allow a multi -family development in an H-1, Health Care, zoning district. The applicants propose to construct a 12 unit apartment complex for senior and disabled persons which would consist of four units; two duplex units, one tri-plex unit and one five plex unit. These would be constructed in the north part of the Salvation Army property, which is now part of their parking lot. This property is located at 110 Bountiful Drive and can be further described as Lots 1 and 2, Highland Park, lst Addition located in Section 6, Township 28 North, Range 21 West, P.M.M., Flathead County, Montana. 3. A request by Northwest Health Care for preliminary plat approval of a 27 lot subdivision on approximately 36 acres which is known as Buffalo Commons, Phases 3, 4 and S. This is a commercial subdivision that is zoned as part of the Buffalo Commons Planned Unit Development located east of Highway 93 and north of Sunnyview Lane in Kalispell. Lots range in size from approximately one half acre to approximately four acres. This property can be described as Assessor's Tract SABM and portions of Assessor's Tracts 7ET+ and 7ETH+ located in Section 6, and Assessor's Tract 2DCE located in Section 13, Township 28 North, Range 21 West, P.M.M., Flathead County, Montana. Documents pertaining to these agenda items are on file for public inspection in the Flathead Regional Development Office, 723 Fifth Avenue East, Room 414, Kalispell, MT 59901, and are available for public review during regular office hours. Interested persons are encouraged to attend the hearings and make their views and concerns known to the Board. Comments in writing may be submitted to the Flathead Regional Development Office at the above address prior to the date of the hearing or you may contact Narda Wilson, Senior Planner, for additional information. r Thomas R. Jentz Planning Director Exhibit A Sneed Zone Change from RA-1 to R-4 Legal Description That portion of the Northwest 1/4 of the Southwest 1/4, Section 18, Township 28 North, Range 21 West, Flathead County, Montana, described as follows: Beginning at the Southeast corner of the Town of Ashley; thence; South 0050'15" West, a distance of 261.40 feet; thence South 47° 10'23" West, a distance of 28.70 feet; thence South 88°34'46" West, a distance of 233.55 feet; thence North 1128'20" East, a distance of 286.76 feet to the South line of Eight Street West; thence along the South line of the Street, East, a distance of 250.98 feet to the Point of Beginning. -�a L�_1t 7ABA 7AC SDwA y 5 21 " z , = 15Dy ABAA 50" 3 7A Hcu- BBA g 1A 1 2 1A I —c- If A + A�! C ALD"Ll �101N 7 9 1 AF .6 3 3 2 9 9A 5 2 11 3 10 4 4 3 10 77FH ST 'W 5 765 41 1 2 1 6 5 4 3 2 1 AS 1H i Ev I � m �Z:z 7 12 8A 1A 2A jA 4A 8 TH We ........ . ................... 1 AE . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . 4 . .... ... No vil m 4AA8 � 1 2 Mr. VICINITY MAP WILLIAM & REBECCA SNEED REQUEST FOR A ZONE CHANGE FROM RA-1, LOW DENSITY RESIDENTIAL APARTMENT, To R-4, TWO FAMILY RESIDENTIAL KALISPELL ZONING DISTRICT PL40T DATE:9/22/99 KZC-99-5 SCALE 1" = 250' H:\&\ztite\KZC99-5.dwg Flathead Regional Development Office 723 51h Ave. East Room 414 Kalispell, MT 59901 Phone: (406)758-5980 Fax: (406)758-5781 _ PETITION FOR ZONING AMENDMENT CITY OF KALISPELL can 1�y9 William and Rebecca Sneed 1. NAME OF APPLICANT: 2. MAIL ADDRESS: 280 McMannamy Draw, Kalispell, Mt 59+90i 3. CITY/STATE/ZIP: Kalispell, Mt. 59901 PHONE: 406-755-1148 4. INTEREST IN PROPERTY: Owner 5. ZONING MAP AMENDMENT: x ZONING TEXT AMENDMENT: IF THE REQUEST PERTAINS TO AN AMENDMENT TO THE TEXT OF THE ZONING REGULATIONS, PLEASE COMPLETE THE FOLLOWING: A. What is the proposed zoning text amendment? IF THE REQUEST PERTAINS TO AN AMENDMENT TO THE ZONING MAP, PLEASE COMPLETE THE FOLLOWING: A. 0 Address of the property: South West corner, 8th Street West 12th Ave West Lot 3 Gov Lot 3 Leal Description: (Lot and Block of Subdivision; Tract #) S18-T28-R21 y 7 ;Ue�.tJ �11i� TVVl�liSbli Range) (Slttach sheet.'Lor metes and bounds) C. The present zoning of the above property is: RA-1 D. The proposed zoning of the above property is: R-4 E. State the changed or changing conditions that make the proposed amendment necessary: Proposed use of the property will be a 10 Lot residential subdivision. With RA-1 zoning and a minimun 60 foot Lot width the property will not accomodate this plan. With R-4 zoning and a 50 Foot Lot width subdivision wll fit. 1 HOW WILL THE PROPOSED CHANGE ACCOMPLISH THE INTENT AND PURPOSE OF A. Promoting the Master Plan Consistant with Master Plan. B. Lessening congestion in the streets and providing safe access Adequate access from existing city streets from proposed internal street and alleys. C. Promoting safety from fire, panic and other dangers Appropriate water supply and fire access. D. Promoting the public interest, health, comfort, convenience, safety and general welfare Consistant with surrounding R-4 Zoning and allowing smaller lot size with more affordable housing. E. Preventing the overcrowding of land Consistant with R-4 zoning and master plan. F. Avoiding undue concentration of population Consistant with R-4 zoning and Master plan. G. Facilitating the adequate provision of transportation, water, sewage, schools, parks and other public facilities All available H Giving reasonable consideration to the character of the district Consistant residential use. 2 T. Giving consideration to the peculiar suitability of the property for particular uses As the site plan shows the property more than adequately provides a location with good access to all necessary services, good trafic flow, adequately parking and a facility whoes density is appropriate for the site. J. Protecting and conserving the value of buildings The proposed development will consist of single family developments. Nice land scaping, paved parking, porches, side walks and yards. K. Encouraging the most appropriate use of land by assuring orderly growth The property is currently an unused vacant lot which tends to collect undesirable elements. The proposed change will provide needed low density affordable attractive high quality housing. The signing of this application signifies approval for F.R.D.O. staff to be present on the property for routine monitoring and inspection during approval process. 9 %V9 (Applicant) (Date) 3 Petition for Zone Change As primary and majority land owner in the RA-1 zoning district, I undersigned do petition to change the zoning of all the parcels indicated as RA- I, including Lot 3 Gov Lot 3 on the Zoning map from RA-1 to R-4. Signed, Rebecca Sneed J TICOR TITLE INSURANCE 27 5270 107 00001687 Policy of Title Insurance American Land SUBJECT TO THE EXCLUSIONS FROM Title Association COVERAGE, THE EXCEPTIONS FROM Lo `n Policy COVERAGE CONTAINED IN SCHEDULE B (10-17-92) AND THE CONDITIONS AND STIPULATIONS, TICOR TITLE INSURANCE COMPANY, a California corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the amount of insurance stated in Schedule A, sustained or incurred by the insured by reason of: 1. Title to the estate or interest described in Schedule A being vested other than as stated 8. therein; 2. Any defect in or lien or encumbrance on the title; 3. Unmarketability of the title. 4. Lack of a right of access to and from the land; (a) arising from an improvement or work related to the land which is contracted for or commenced prior to Date of Policy; or (b) arising from an improvement or work related to the land which is contracted for or commenced subsequent to Date of Policy and which is financed in whole or in part by proceeds of the indebtedness secured by the insured mortgage which at Date of Policy the insured has advanced or is obligated to advance; The invalidity or unenforceability of any assignment of the insured mortgage, provided the assignment is shown in Schedule A, or the failure of the assignment shown in Schedule A to vest title to the insured mortgage in the named insured assignee free and clear of all liens. The Company will also pay the costs, attorneys' 5. The invalidity or unenforceability of the lien of fees and expenses incurred in defense of the title the insured mortgage upon the title; or the lien of the insured mortgage, as insured, 6. The priority of any lien or encumbrance over but only to the extent provided in the Conditions the lien of the insured mortgage; and Stipulations. 7. Lack of priority of the lien of the insured This policy shall not be valid or binding until mortgage over any statutory lien for services, countersigned below by an authorized signatory labor or material; of the Company. Issued by: ALLIANCE TITLE AND ESCROW CORP. 45 2ND STREET EAST P.O. BOX 879 KALISPELL, MT 59903-0879 (406) 752-7606 A ohzed Signatory TICOR TITLE INSURANC OMPANY ff,-- Z-Z' 0"« President � Secretary JJJJJJJJJJJJJJJJJJ JJ�J�JJJJJJJJJJJJJJJ JJJJJJ ALTA LOAN POLICY (10-17-92) Reorder Form No. 8936 r-musions rrom Coverage The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien, or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) ,created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy (except to the extent Conditions and Stipulations 1. DEFINITION OF TERMS The following terms when used in this policy mean: (a) "insured": the insured named in Schedule A. The term "insured" also includes (i) the owner of the indebtedness secured by the insured mortgage and each successor in ownership of the indebtedness except a successor who is an obligor under the provisions of Section 12(c) of these Conditions and Stipulations (reserving, however, all rights and defenses as to any successor that the Company would have had against any predecessor insured, unless the successor acquired the indebtedness as a purchaser for value without knowledge of the asserted defect, lien, encumbrance, adverse claim or other matter insured against by this policy as affecting title to the estate or interest in the land); (ii) any governmental agency or governmental instrumentality which is an insurer or guarantor under an insurance contract or guaranty insuring or guaranteeing the indebtedness secured by the insured mortgage, or any part therfof, whether named as an insured herein or not; (ii t) the parties designated in Section 2(a) of these Conditions and Stipula- tions. (b) insured claimant": an insured claiming loss or damage. (c) "knowledge" or "known": actual knowledge, not constructive knowl- edge or notice which may be imputed to an insured by reason of the public records as defined in this policy or any other records which impart construc- tive notice of matters affecting the land. (d) "land": the land described or referred to in Schedule A, or in Schedule C if not provided for in Schedule A, and improvements affixed thereto which by law constitute real property. The term "land" does not include any property beyond the lines of the area described or referred to in the applicable Schedule, nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing herein shall modify or limit the extent to which a right of access to and from the land is insured by this policy. (e) "mortgage": mortgage, deed of trust, trust deed, or other security instrument - that this policy insurers the priority of the lien of the insured mortgage over any statutory lien for services, labor or material); or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage. 4. Unenforceability of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the inability or failure of any subsequent owner of the indebtedness, to comply with applicable doing business laws of the state in which the land is situated. 5. Invalidity or unenforceability of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law. 6. Any statutory lien for services, labor or materials (or the claim of priority of any statutory lien for services, labor or materials over the lien of the insured mortgage) arising from an improvement or work related to the land which is contracted for and commenced subsequent to Date of Policy and is not financed in whole or in part by proceeds of the indebtedness secured by the insured mortgage which at Date of Policy the insured has advanced or is obligated to advance. 7. Any claim, which arises out of the transaction creating the interest of the mortgagee insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on: (i) the transaction creating the interest of the insured mortgagee being deemed a fraudulent conveyance or fraudulent transfer; or (i i) the subordination of the interest of the insured mortgagee as a result of the application of the doctrine of equitable subordination; or (i i i )the transaction creating the interest of the insured mortgagee being deemed a preferential transfer except where the preferential transfer results from the failure: (a) to timely record the instrument of transfer; or (b) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. (I) "public records": records established under state statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without knowledge. With respect to Section 1(a)(iv) of the Exclusions From Coverage. "public records" shall also include environmental protection liens filed in the records of the clerk of the United States district court for the district in which the land is located. (g) "unmarketability of the title": an alleged or apparent matter affecting the title to the land, not excluded or excepted from coverage, which would entitle a purchaser of the estate or interest described in Schedule A or the insured mortgage to be released from the obligation to purchase by virtue of a contractual condition requiring the delivery of marketable title. 2. CONTINUATION OF INSURANCE (a) After Acquisition of Title. The coverage of this policy shall continue in force as of Date of Policy in favor of (i) an insured who acquires all or any part of the estate or interest in the land by foreclosure, trustee's sale, conveyance in lieu of foreclosure, or other legal manner which discharges the lien of the insured mortgage; (ii) a transferee of the estate or interest so acquired from an insured corporation, provided the transferee is the parent or wholly -owned subsidiary of the insured corporation, and their corporate successors by oper- ation of law and not by purchase, subject to any rights or defenses the Com- pany may have against any predecessor insureds; and (iii) any governmental agency or governmental instrumentality which acquires all or any part of the estate or interest pursuant to a contract of insurance or guaranty insuring or guaranteeing the indebtedness secured by the insured mortgage. (b) After Conveyance of Title. The coverage of this policy shall continue in force as of Date of Policy in favor of an insured only so long as the insured retains an estate or interest in the land, or holds an indebtedness secured by a purchase money mortgage given by a purchaser from the insured, or only so long as the insured shall have liability by reason of covenants of warranty made by the insured in any transfer or conveyance of the estate or interest. This policy shall not continue in force in favor of any purchaser from the insured of either (i) an estate or interest in the land. or (ii) an indebtedness secured by a purchase money mortgage given to the insured. Fcrm - 1992 4W LOAN POLICY File No.: 20600746 Policy Number: 275270107001687 Date of Policy: December 18, 1998 1. Name of Insured: Valley Bank of Kalispell Amount of Insurance: $63, 429.82 Premium Amount: $248.25 Time of Policy: 4:02 PM 2. The estate or interest in the land which is encumbered by the insured mortgage is: Fee Simple Estate 3. Title to the estate or interest in the land is vested in: William L. Sneed, III and Rebecca Sneed, as Joint Tenants 4. The insured mortgage and assignments thereof, if any, are described as follows: A DEED OF TRUST to secure an indebtedness in the amount shown below: Amount: $63,429.82 together with interest and any other obligations secured thereby Dated: December 17, 1998 Trustor/Grantor: William L. Sneed III and Rebecca Sneed, as Joint Tenants Trustee: Alliance Title & Escrow Corp. Beneficiary: Valley Bank of Kalispell Recorded: December 18, 1998 Recorder's Fee No.: 1998-352-1602-0, records of Flathead County, Montana 5. The land referred to in this Policy is described as follows: (Continued) This Policy valid only if Schedule B is attached. File No.: 20600746 Legal Description (Continued) Policy Number: 275270107001687 That portion of the Nortbwest 1/4 of the South.st 1/4, Section 18, Township 28 North, Range 21 West, Flathead County, Montana, described as follows: Beginning at the Southeast carper of the Taal of Ashley; thence South 0050115" West, a distance of 261.40 feet; thence South 47010'23" West, a distance of 28.70 feet; thence South 88034146" West, a distance of 233.55 feet; thence North 1028120" East, a distance of 286.76 feet to the South line of Eight Street West; thence along the South lime of the Street, East, a distance of 250.98 feet to the Point of Beginning. Parcel B, Certificate of Survey No.-10314. File No.: 20600746 Policy No.: 275270107001687 EFPS COVERAGE This policy does not insu e against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: PART I (1) Rights or claims of parties in possession not shown by the public records. (2) Encroachments, overlaps, boundary line disputes, and any other matters which would be disclosed by an accurate survey or inspection of the premises in- cluding, but not limited to, insufficient or impaired access or matters con- tradictory to any survey plat shown by the public records. (3) Easements, or claims of easements, not shown by the public records. (4) Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. (5) (a)Unpatented mining claims; (b)reservaticns or exceptions in patents or in Acts authorizing the issuance thereof; (c)water rights, claims or title to water, whether or not the matters excepted under (a), (b) or (c) are shown by the public records. (6) Taxes or special assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments or notices of such proceedings, whether or not shown by the records of such an agency or by the public records. 7. General taxes for the second half of 1998, which are due and payable. 8. Taxes, charges and assessments not yet certified to the County Treasures for collection.. 9. EXCEPT all minerals in or under said land including, but not limited to, metals, oil, gas, coal, stone and mineral rights, milling rights and easement rights or other matters relating thereto, whether expressed or implied. 10. The effect of terms and oorxhtiens of restrictions contained in Certificate of Subdivision Plat Approval, State of Montana, recorded with Certificate of Survey No. 10314, records of Flathead County, Montana. (Continued) SCIWUL,E S File No.: 20600746 Policy No. 275270107001687 Special motions (Cocitinued) 11 An Easement for the purpose shown belpw and rights incidental. thereto, as set forth in a document: Granted to: The Montana Power Company Purpose: to construct, operate, maintain, replace and remove a pipeline Recorded: April 11, 1995 Reception No: 95-101-1432-0, records of Flathead County, Montana. 12. Right -of -Way for 8th Street West ( Crook Ave) . 13. Effect of Resolution No. 4133 recorded Oc-1ober 29, 1993 under Recorder's Fee No. 93-302-10570, records of Flathead County, Montana. (i) the Amount of Insurance stated in Schedule A; (ii) the amount of the principal of the indebtedness secured by the insured mortgage as of Date of Policy, interest thereon. expenses of foreclosure, amounts advanced pursuant to the insured mortgage to assure compliance with laws or to protect the lien of the insured mortgage prior to the time of acquisition of the estate or interest in the land and secured thereby and reasonable amounts expended to prevent deterioration of improvements, but reduced by the amount of all payments made; or (iii) the amount paid by any governmental agency or governmental instru- mentality, if the agency or instrumentality is the insured claimant, in the acqui- sition of the estate or interest in satisfaction of its insurance contract or guar- anty. 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT The insured shall notify the Company promptly in writing (i) in case of any litigation as set forth in Section 4(a) below, (ii) in case knowledge shall come to an insured hereunder of any claim of title or interest which is adverse to the title to the estate or interest or the lien of the insured mortgage, as insured, and which might cause loss or damage for which the Company may be liable by virtue of this policy, or (iii) if title to the estate or interest or the lien of the insured mortgage, as insured, is rejected as unmarketable. If prompt notice shall not be given to the Company, then as to the insured all liability of the Company shall terminate with regard to the matteror matters for which prompt notice is required; provided, however, that failure to notify the Company shall in no case prejudice the rights of any insured under this policy unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice. 4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED CLAIMANT TO COOPERATE (a) Upon written request by the insured and subject to the options con- tained in Section 6 of these Conditions and Stipulations, the Company, at its own cost and without unreasonable delay, shall provide for the defense of an insured in litigation in which any third party asserts a claim adverse to the title or interest as insured, but only as to those stated causes of action alleging a defect, lien or encumbrance or other matter insured against by this policy. The Company shall have the right to select counsel of its choice (subject to the right of the insured to object for reasonable cause) to represent the insured as to those stated causes of action and shall not be liable for and will not pay the fees of any other counsel. The Company will not pay any fees, costs or expenses incurred by the insured in the defense of those causes of action which allege matters not insured against by this policy. (b) The Company shall have the right, at its own cost, to institute and prosecute any action or proceeding or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest or the lien of the insured mortgage, as insured, or to prevent or reduce loss or damage to the insured. The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable hereunder, and shall not thereby concede liability or waive any provision of this policy. If the Company shall exercise its rights under this paragraph, it shall do so diligently. (c) Whenever the Company shall have brought an action or interposed a defense as required or permitted by the provisions of this policy, the Company may pursue any litigation to final determination by a court of competent juris- diction and expressly reserves the right, in its sole discretion, to appeal from any adverse judgment or order. (d) In all cases where this policy permits or requires the Company to prose- cute or provide for the defense of any action or proceeding, the insured shall secure to the Company the right to so prosecute or provide defense in the action or proceeding, and all appeals therein, and permit the Company to use, at its option, the name of the insured for this purpose. Whenever requested by the Company, the insured, at the Company's expense, shall give the Com- pany all reasonable aid (i) in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement, and (ii) in any other lawful act which in the opinion of the Company may be necessary or desirable to establish the title to the estate or interest or the lien of the insured mortgage, as insured. If the Company is prejudiced by the failure of the insured to furnish the required cooperation, the Company's obligations to the insured under the policy shall terminate, includ- ing any liability or obligation to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such cooperation. 5. PROOF OF LOSS OR DAMAGE In addition to and after the notices required under Section 3 of these Condi- tions and Stipulations have been provided the Company, a proof of loss or damage signed and sworn to by the insured claimant shall be furnished to the Company within 90 days after the insured claimant shall ascertain the facts giving rise to the loss or damage. The proof of loss or damage shall describe the defect in, or lien or encumbrance on the title. or other matter insured against by this policy which constitutes the basis of loss or damage and shall state. to the extent possible, the basis of calculating the amount of the loss or damage. If the Company is prejudiced by the failure of the insured claimant to tion to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such proof of loss or damage. In addition, the insured claimant may reasonably be required to submit to examination under oath by any authorized representative of the Company and shall produce for examination, inspection and copying, at such reason- able times and places as may be designated by any authorized representative of the Company, all records, books, ledgers, checks, correspondence and memoranda, whether bearing a date before or after Date of Policy, which reasonably pertain to the loss or damage. Further, if requested by any author- ized representative of the Company, the insured claimant shall grant its per- mission, in writing, for any authorized representative of the Company to exam- ine, inspect and copy all records, books, ledgers, checks, correspondence and memoranda in the custody or control of a third party, which reasonably pertain to the loss or damage. All information designated as confidential by the insured claimant provided to the Company pursuant to this Section shall not be disclosed to others unless, in the reasonable judgment of the Com- pany, it is necessary in the administration of the claim- Failure of the insured claimant to submit for examination under oath, produce other reasonably requested information or grant permission to secure reasonably necessary information from third parties as required in this paragraph, unless prohibited by lawor governmental regulation, shall terminate any liability of the Company under this policy as to that claim. 6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS: TERMINATION OF LIABILITY In case of a claim under this policy, the Company shall have the following additional options: (a) To Pay or Tender Payment of the Amount of Insurance or to Purchase the Indebtedness. (i) to pay or tender payment of the amount of insurance under this policy together with any costs, attorneys' fees and expenses incurred by the insured claimant, which were authorized by the Company, up to the time of payment or tender of payment and which the Company is obligated to pay; or (ii) to purchase the indebtedness secured by the insured mortgage for the amount owing thereon together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of purchase and which the Company is obligated to pay. If the Company offers to purchase the indebtedness as herein provided, the owner of the indebtedness shall transfer, assign, and convey the indebted- ness and the insured mortgage, together with any collateral security, to the Company upon payment therefor. Upon the exercise by the Company of either of the options provided for in paragraphs a(i) or (ii), all liability and obligations to the insured under this policy, other than to make the payment required in those paragraphs, shall terminate, including any liability or obligation to defend, prosecute, or con- tinue any litigation, and the policy shall be surrendered to the Company for cancellation. (b) To Pay or Otherwise Settle With Parties Other than the Insured or With the Insured Claimant. (i) to pay or otherwise settle with other parties for or in the name of an insured claimant any claim insured against under this policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay; or (ii) to pay or otherwise settle with the insured claimant the loss or damage provided for under this policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay. Upon the exercise by the Company of either of the options provided for in paragraphs (b)(i) or (ii), the Company's obligations to the insured under this policy for the claimed loss or damage, other than the payments required to be made, shall terminate, including any liability or obligation to defend, prose- cute or continue any litigation. 7. DETERMINATION AND EXTENT OF LIABILITY This policy is a contract of indemnity against actual monetary loss or dam- age sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described. (a) The liability of the Company under this policy shall not exceed the least of: (i) the Amount of Insurance stated in Schedule A, or, if applicable, the amount of insurance as defined in Section 2 (c) of these Conditions and Stipulations; (ii) the amount of the unpaid principal indebtedness secured by the insured mortgage as limited or provided under Section 8 of these Conditions and Stipulations or as reduced under Section 9 of these Conditions and Stipulations, at the time the loss or damage insured against by this policy occurs, together with interest thereon; or b,' In the event the insured has acquired the estate or interest in the manner described in Section 2(a) of these Conditions and Stipulations or has c:;n- veyed the title, then the liability of the Company shall continue as set form in Section 7(a) of these Conditions and Stipulations. (c) The Company will pay only those costs, attorneys' fees and expenses incurred in accordance with Section 4 of these Conditions and Stipulations. 8. LIMITATION OF LIABILITY (a) If the Company establishes the title, or removes the alleged defect, lien ,or encumbrance, or cures the lack of a right of access to or from the land, or cures the claim of unmarketability of title, or otherwise establishes the lien of the insured mortgage, all as insured, in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have fully performed its obligations with respect to that matter land shall not be liable for any loss or damage caused thereby. (b) In the event of any litigation, including litigation by the Company or with the Company's consent, the Company shall have no liability for loss or dam- age until there has been a final determination by a court of competent jurisaic- tion, and disposition of all appeals therefrom, adverse to the title or to the lien of the insured mortgage, as insured. (c) The Company shall not be liable for loss or damage to any insured for liability voluntarily assumed by the insured in settling any claim or suit without the prior written consent of the Company. (d) The Company shall not be liable for: (i) any indebtedness created subse- quent to Date of Policy except for advances made to protect the lien of the insured mortgage and secured thereby and reasonable amounts expended to prevent deterioration of improvements; or (ii) construction loan advances made subsequent to Date of Policy, except construction loan advances made subsequent to Date of Policy forthe purpose of financing in whole or in part the construction of an improvement to the land which at Date of Policy were secured by the insured mortgage and which the insured was and continued to be obligated to advance at and after Date of Policy. 9. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF LIABILITY (a) All payments under this policy, except payments made for costs, attor- neys' fees and expenses, shall reduce the amount of the insurance pro tanto. However, any payments made prior to the acquisition of title to the estate or interest as provided in Section 2(a) of these Conditions and Stipulations shall not reduce pro tanto the amount of the insurance afforded under this policy except to the extent that the payments reduce the amount of the indebtedness secured by the insured mortgage. (b) Payment in part by any person of the principal of the indebtedness, or any other obligation secured by the insured mortgage, or any voluntary partial satisfaction or release of the insured mortgage, to the extent of the payment, satisfaction or release, shall reduce the amount of insurance pro tanto. The amount of insurance may thereafter be increased by accruing interest and advances made to protect the lien of the insured mortgage and secured thereby, with interest thereon, provided in no event shall the amount of insur- ance be greater than the Amount of Insurance stated in Schedule A. (c) Payment in full by any person or the voluntary satisfaction or release of the insured mortgage shall terminate all liability of the Company except as provided in Section 2(a) of these Conditions and Stipulations. 10. LIABILITY NONCUMULATIVE It is expressly understood that the amount of insurance under this policy shall be reduced by any amount the Company may pay under any policy in- suring a mortgage to which exception is taken in Schedule B or to which the insured has agreed, assumed, or taken subject, or which is hereafter executed by an insured and which is a charge or lien on the estate or in- terest described or referred to in Schedule A, and the amount so paid shall be deemed a payment under this policy to the insured owner. 11. PAYMENT OF LOSS (a) No payment shall be made without producing this policy for endorse- ment of the payment unless the policy has been lost or destroyed, in which case proof of loss or destruction shall be furnished to the satisfaction of the Company. (b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage shall be payable within 30 days thereafter. 12. SUBROGATION UPON PAYMENT OR SETTLEMENT (a) The Company's Right of Subrogation. Whenever the Company shall have settled and paid a claim under this policy, all right of subrogation shall vest in the Company unaffected by any act of the insured claimant. The Company shall be subrogated to and be entitled to all rights and remedies which the insured claimant would have had against any person or property in respect to the claim had this policy not been issued. If requested by the Company, the insured claimant shall transfer to the Company all rights sue, curnprumise or seine in ine name or the insured claimant and to u:,e the name of the insured claimant in any transaction or litigation involving these rights or remedies. If a payment on account of a claim does not fully cover the lass of th> insured claimant, the Company shall be subrogated to all rights and remedies of the insured claimant after the insured claimant shall have recovered its principal, interest, and costs of collection. (b) The Insured's Rights and Limitations. Notwithstanding the foregoing, the owner of the indebtedness secured by the insured mortgage, provided the priority of the lien of the insured mortgage or its enforceability is not affected, may release or substitute the personal liability of any debtor or guarantor, or extend or otherwise modify the terms of payment, or release a portion of the estate or interest from the lien of the insured mortgage, or release any collateral security for the indebtedness. When the permitted acts of the insured claimant occur and the insured has knowledge of any claim of title or interest adverse to the title to the estate or interest or the priority or enforceability of the lien of the insured mortgage; as insured, the Company shall be required to pay only that part of any losses insured against by this policy which shall exceed the amount, if any, lost to the Company by reason of the impairment by the insured claimant of the Compa- ny's right of subrogation. (c) The Company's Rights Against Non-insured Obligors. The Company's right of subrogation against non-insured obligors shall exist and shall include, without limitation, the rights of the insured to indem- nities, guaranties, other policies of insurance or bonds, notwithstanding any terms or conditions contained in those instruments which provide for subroga- tion rights by reason of this policy. The Company's right of subrogation shall not be avoided by acquisition of the insured mortgage by an obligor (except an obligor described in Section 1(a)(ii) of these Conditions and Stipulations) who acquires the insured mort- gage as a result of an indemnity, guarantee, other policy of insurance, or bond and the obligor will not be an insured under this policy, notwithstanding Sec- tion 1(a)(i) of these Conditions and Stipulations. 13. ARBITRATION Unless prohibited by applicable law, either the Company or the insured may demand arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the insured arising out of or relating to this policy, any service of the Company in connec- tion with its issuance or the breach of a policy provision or other obligation. All arbitrable matters when the Amount of Insurance is $1,000,000 or less shall be arbitrated at the option of either the Company or the insured. All arbitrable matters when the Amount of Insurance is in excess of $1,000,000 shall be arbitrated only when agreed to by both the Company and the insured. Arbitra- tion pursuant to this policy and under the Rules in effect on the date the demand for arbitration is made or, at the option of the insured, the Rules in effect at Date of Policy shall be binding upon the parties. The award may include attomeys' fees only if the laws of the state in which the land is located permit a court to award attorneys' fees to a prevailing parry. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. The law of the situs of the land shall apply to an arbitration under the Title Insurance Arbitration Rules. A copy of the Rules may be obtained from the Company upon request. 14. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT (a) This policy together with all endorsements, if any, attached hereto by the Company is the entire policy and contract between the insured and the Com- pany. In interpreting any provision of this policy, this policy shall be construed as a whole. (b) Any claim of loss or damage, whether or not based on negligence, and which arises out of the status of the lien of the insured mortgage or of the title to the estate or interest covered hereby or by any action asserting such claim, shall be restricted to this policy. (c) No amendment of or endorsement to this policy can be made except by a writing endorsed hereon or attached hereto signed by either the President, a Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company. 15. SEVERABILITY In the event any provision of this policy is held invalid or unenforceable under applicable law, the policy shall be deemed not to include that provision and all other provisions shall remain in full force and effect. 16. NOTICES, WHERE SENT All notices required to be given the Company and any statement in writing required to be furnished the Company shall include the number of this policy and shall be addressed to the Company at Ticor Title Insurance Company, Claims Department, P.O. Box 2233, Los Angeles, California 90051. ffjfs:j<�jffflf)tt�LIff.fLr.1(.! (T(l(.gn-! (gam (> = r %Ifllflf(fi crygr. r�4%(t;f