06. Presentation - Annexation & Zoning - Ashley Heights LLCCity of Kalispell
Planning Department
17 - 2"d Street East, Suite 211, Kalispell, Montana 59901
Telephone: (406) 751--1850
Fax. (406) 7 51-1 S 5 S
Wehsite: kalispellplanning. com
REPORT TO: Kalispell Mayor and city Council
FROBE, Sean Conrad, Senior Planner
James H. Patrick, City Manager
SUBJECT. Ashley Heights LLC -- ann.exation and initial zoning of R-2, Single
Family Residential, and preliminary plat request for Ashley
Heights subdivision
MEETING DATE: August 6, 2007
BACKGROUND: The Kalispell city Planning Board met on July 10, 2007 and held a
public hearing to consider a request by Ashley Heights LLC for annexation and initial
zoning of R-2 , Single Family Residential, and prebmin.ary plat approval to create a 26
lot residential subdivision on approximately 8.5 acres. This property is currently
zoned in the county as R- 1, Suburban Residential, which has a minimum lot size of
one acre.
The property proposed for annexation and preliminary plat approval is located at the
western end of Bismark Street and is bordered on the north by Sunnyside Drive and
on the west by the future Highway 93 Bypass. The site is generally triangular in shape
and contains approximately 11.1 acres, approximately 9 acres of which is developable
land as the westerly 2.1 acres of this site would be part of the future Highway 93
Bypass upon acquisition by MDT. The property can be described as a portion of Tract
10 lying within Government Lot 1 in the NW4 of the NWT- of Section 19, Township 28
North, Range 21 West, P.M.M. , Flathead county, Montana.
Sean Conrad of the Kalispell Planning Department, presented staff report #KA-07-11
and #KPP-07-07 recommending the planning board consider approving the initial
zoning of R-2, Single Family Residential, and the 26 lot subdivision as proposed
subject to the 28 listed conditions. Mr. Conrad added that the planning board should
consider recommending that. a Parks Maintenance District be formed for this
subdivision. This recommendation would require the lots be incorporated into the
district, at the time the city took over the maintenance of the homeowner's park, and a
fee would then be assessed to the lots within the subdivision for the cost of the park
maintenance. This recommendation is based on additional discussions with the Parrs
and Recreation Department after the staff report was sent to the planning board. The
purpose of the Parks Maintenance District would be to provide a mechanism to
maintain the parkland in this subdivision if the homeowners association were to
disband or no longer tax themselves to maintain the park area.
At the public hearing Hubert Turner, manager of Ashley Heights LLC, spore in favor of
the subdivision. The planning board also heard from three people spearing against
the proposed project. Those spearing against the project cited concerns with the
density of the project under the proposed R-2 zoning and the associated traffic
impacts the subdivision would have on Sunnyside Drive. They respectfully requested
the planning board consider the R-1, Suburban Residential, zoning district be placed
on. the I I acre site to address their concerns.
After the public hearing the board discussed the proposed R-2 zoning. In discussing
the proposed R- 2 zoning for the property the board felt that it was appropriate for this
area. However, some board members added that a zoning district between the one
acre minimum i m__um lot size of R-1 and the 9,600 square foot lot size of R- 2 should be
considered to be added to the city's zoning ordinance to address development in areas
with existing rural residential development. A motion was made to recommend the
city council approve the R-2 zoning upon annexation of the property. The motion
passed unanimously.
The planning board then considered the preliminary plat request. A motion was made
to adopt the staff report as findings of fact and recommend to the city council that the
proposed subdivision, Ashley Heights, be approved subject to the conditions listed in
the staff report, as amended by staff. The motion passed unanimously.
RECOMMENDATION: A motion to approve an initial zoning of R- 2, Single Family
Residential, and a motion to approve the preliminary plat for Ashley Heights with the
29 conditions as recommended by the planning board would be in order.
FISCAL EFFECTS: Positive impacts once fully developed.
ALTERNATIVES: As suggested by the City Council.
Respectfully sub ' ted,
Sean Conrad
Senior Planner
Report compiled July 24, 2007
Attachments: Transmittal letter
Exhibit A (conditions)
Staff reports #KA-07-11
Draft Minutes 7/ 10/07
c: Theresa White, Kalispell City Clerk
.. . ........
----'" es . Pa
City Manager
and #KPP-07-7 and application materials
plann, g board meeting
Ashley Heights, LLC
Cost of Services Analysis (Residential)
Once annexed to the City, full City services will be made available to the property owner.
Any necessary infrastructure associated with this development will be required to be
constructed in accordance with the City of Kalispell's Design and Construction standards
and any other development policies, regulations or ordinances that may apply.
Number of Dwelling Units pLoposed to be annexed
26 single family houses
Estimated Increase in To
j2ulation: (based on US Census Figure of 2.2 per household)
57
Cost of Services
Per capita costs
■ Fire: $68.84 per person per year.
Additional costs to the fire department
• Police: $110 per resident per year.
Additional costs to the police department
■ Administration: $39.48.
Additional cost to administration
■ Solid waste:
Additional cost to solid. waste
* Roads: $193.56 per dwelling unit
Additional cost in road maintenance
57 x 68.84 = $ 3,923
57 x 110.00 = $ 6,270
57 x 39.48 = $ 2,250
(none for five years) _ $ 0
26 x 193.56 = $ 5,032
• Water: $221.21 per ERU (Equivalent Residential Unit)
Additional cost in crater line maintenance 26 x 221.21 = $ 5,751
• Sewer: $329.64 per ERU
Additional cost i n sewer maintenance
• Stonriwater: $72.68 per ERU
Additional cost in storm maintenance
Total Antic. ted Cost of Services.
Anti ci to d Revenue Gene rate d
26 x 329.64 = $ 8,570
26 x 72.68 = $ 1,889
33 685
1. Assessments based on square foo e
Average sguare_ foot.per lot: 10,875 square feet
1
• Storm sewer assessment $0.004480 per square foot (capped at 1/2 acre for
residential)
Revenue from storm serer assessments 26 x 10,875 x $0.004480 = $ 11266
• Street maintenance assessment $0.0101 per square foot (capped at 1/2 acre for
residential
Revenue from street maintenance assessments 26 x 10,875 x $0.0101 = $ 2,855
• Urban forestry assessment $0.00135 per square foot (capped at $150 for residential)
Revenue from urban forestry assessments 26 x 10,875 x $0.00135 = $ 381
• Special Assessments: There are no special assessments. = $ 0
• Light maintenance assessment $0.003 per square foot (no cap)
Revenue from light maintenance assessment 26 x 10,875 x $0.003 = $ 848
Total Anticipated Revenue From Assessments: 5 350
2. Tax revenue:
• Assessed value per property: $ 250,000/louse
Total assessed value: 26 x 250,1000 = $ 61,500,000
Total taxable: 6,500,000 x 0.03543 = $ 230,295
• Total additional general revenue based on 170 mill levy:
$ 230,295 x 0.170 = 39,150
3, bnlqct fees ■
• Water system impact fee $2,155 per residence
Revenue from water system impact fee 26 x $2,155 = $ 567030
• Wastewater impact fee $2,433 per ERU (A single family home is (1) ERU)
Revenue from wastewater impact fee 26 x $2,433 = $ 63,258
• Stormwater impact fee $1,092 per ERU (A single family home is (1) ERU)
Revenue from stormwater impact fee 26 x $1,092 = $ 28,392
• Police impact fee $43 per unit (single family residential)
Revenue from police impact fee 26 x $43 = $ 1,118
• Fire impact fee $533 per unit (single family residential)
Revenue from fire impact fee 26 x $533 = $ 13,858
Total Anticipated Revenue From Impact Fees: = $162,656
Total Revenue Generated to the City (Items 1 and 2) $44,0500
One Time Impact Fee Payment to the City (Item 3) $162,656
2
Net Revenue to the City Per Year (Total anticipated cost of services -Total anticipated
revenue from assessments and taxes): 109815
NOTE: This information is based upon assumptions regarding wilding valuations and
does not take into consideration the build -out time or changes in methods of assessment
and estimated costs associated with services. This information can only be used as a
general estimate of the anticipated cost of services and revenue.
City of Kalispell
Planning Department
17 -- 2' Stream Fast, Suite 211, Kalispell, .Montana 59901
Telephone: (406) 751-1850
Fax: (406) 751-185 S
website: kalispellplanning. com
July 24, 2007
James H. Patrick, City Manager
City of Kalispell
P.O. Box 1997
Kalispell, MT 59903
Re: Ashley Heights LLC annexation and initial zoning of R-2, Single Family
Residential, and preliminary plat request for Ashley Heights subdivision
Dear Jim:
The Kalispell City Planning Board met on July 10, 2007 and held a public hearing to
consider a request by Ashley Heights LLC for annexation and initial zoning of R-2,
Single Family Residential, and preliminary plat approval to create a 26 lot residential
subdivision on approximately 8.5 acres. This property is currently zoned in the
county as R-1, Suburban Residential, which has a minimum lot size of one acre.
The property proposed for annexation and preliminary plat approval is located at the
western end of Bismark Street and is bordered on the north by Sunnyside Drive and
on the west by the future Highway 93 Bypass. The site is generally triangular in shape
and contains approximately 11.1 acres, approximately 9 acres of which is developable
land as the westerly 2.1 acres of this site would be part of the future Highway 93
Bypass upon acquisition by MDT. The property can be described as a portion of Tract
10 lying within Government Lot 1 in the Nw4 of the Nw4 of Section 19, Township 28
North, Range 21 west, P.M.M. , Flathead County, Montana.
Sean Conrad of the Kalispell Planning Department, presented staff report #1fA--07-11
and #KPP--07 -07 recommending the planning n g board consider approving the initial
zoning of R-2, Single Family Residential, and the 26 lot subdivision as proposed
subject to the 28 listed conditions. Mr. Conrad added that the planning board should
consider recommending that a Parks Maintenance District be formed for this
subdivision. This recommendation would require the lots be incorporated into the
district, at the time the city took over the maintenance of the homeowner's park, and a
fee would then be assessed to the lots within the subdivision for the cost of the park
maintenance. This recommendation is based on additional discussions with the Parks
and Recreation Department after the staff report was sent to the planning board. The
purpose of the Parks Maintenance District would be to provide a mechanism to
maintain the parkland in this subdivision, if the homeowners association were to
disband or no longer tax themselves to maintain the park area.
At the public hearing Hubert 'I umer, manager of Ashley Heights LLC, spoke in favor of
the subdivision. The planning board also heard from three people speaking against
the proposed project. Those speaking against the project cited concerns with the
density of the project under the proposed R-2 zoning and the associated traffic
impacts the subdivision would have on Sunnysi.de Drive. They respectfully requested
the planning board consider the R-1, Suburban Residential, zoning district be placed
on the 11 acre site to address their concerns.
After the public hearing the board discussed the proposed R-2 zoning. In discussing
the proposed R_2 zoning for the property the board felt that it was appropriate for this
area. However, some board members added that a zoning district betvveen the one
acre minimum lot size of R--1 and the 9,600 square foot lot size of R-2 should be
considered to be added to the city's zoning ordinance to address development in areas
with existing rural residential development. A motion was made to recommend the
city council approve the R-2 zoning upon annexation of the property. The motion
passed unanimously.
The planning board then considered the preliminary plat request. A motion was made
to adopt the staff report as findings of fact and, recommend to the city council that the
proposed subdivision, Ashley Heights, be approved subject to the conditions listed in
the staff report, as amended by staff. The motion passed unanimously.
Please schedule this matter for the August 6, 2007 regular Kalispell City Council
meeting. You may contact this board or Sean Conrad at the Kalispell Planning
Department if you have any questions regarding this matter.
Sincerely,
Kalispell City Planning Board
--;6rye--
Bryan H . Schutt, i
President
Attachments:
Exhibit A
Staff reports # KA--07-11 and #KPP-07-07 and application
materials
Draft Minutes 7/ 10/ 07 planning board meeting
c w/ Att: Theresa white, Kalispell City Clerk
c w/o Att: Ashley Heights, LLC
3300 Hwy 2 Nest
Kalispell, MT 59901
2
IT A
ASHLEY HEIGHTS SUBDIVISION
CONDITIONS OF APPROVAL
AS RECOMMENDED BY THE KALISPELL CITY PLANNING BOARD
JULY 10, 2007
The Kalispell City Planning Board recommends to the Kalispell City Council that the
preliminary plat for Ashley Heights subdivision be approved subject to the following
conditions:
General Conditions:
1. That the development of the site shall be in substantial compliance with the
application submitted, materials and other specifications as well as any
additional conditions associated with the preliminary plat as approved by the
city council. (Kalispell Subdivision Regulations, Appendix C - Final Plan
2. The preliminary plat approval shall be valid for a period of three years from the
date of approval. (Kalispell Subdivision Regulations, Section 2.04) .
3. Prior to ,any excavation or earthwork, a City Stormwater Management Permit
shall be approved and issued from the Kalispell Public Works Department. In
accordance with Ordinance 1600, the permit shall include a permit application,
site map, narrative describing the best management practices to be used and a
completed checklist. In addition to the City Stormwater Management Permit
the developer shall submit a copy of the State General Construction Stormwater
Discharge Permit Notice of Intent (NDI) and Stormwater Pollution Prevention
Plan (SWPPP). At the time of final plat, the project engineer shall certify that the
development is in compliance with the approved City Stormwater Management
Permit. (Ordinance 1600 and Findings of Fact Section C)
Prior to final lat:
4. A noise study shall be completed prior to the final plat approval. The noise
study shall show how a noise level of 60 d3A at the 'western property boundary
of the subdivision can be achieved. The proposed mitigation measures
contained in the noise study shall be reviewed and approved by city staff and
implemented prior to final plat approval.
Note: This condition may result in the loss of one or more of the proposed lots
shown on the preliminary plat. Reasonable bike and pedestrian access shall be
provided from the subdivision site to the bike path located along the future
highway bypass and not be impaired by sound mitigation measures chosen.
(Findings of Fact Section A)
3
5. A letter from the Montana Department of Transportation shall be provided
stating that the bypass right-of-way shown on the preliminary plat is adequate
for the construction of the future highway bypass.
Note: The location of the highway bypass right--of-way may effect the western
boundary line of the proposed subdivision, which may in turn effect the number
of proposed lots. (Findings of Fact Section D)
6. New infrastructure required to serve the subdivision shall be designed and
constructed in accordance with the City of Kalispell's Standards for Design and
Construction and Montana Public Works Standards and shall be certified in
writing by an engineer licensed in the State of Montana. The new
infrastructure includes the internal access roadway serving the lots within the
subdivision and the approximately 110 feet of frontage along Sunnyside Drive.
All design work shall be reviewed and approved in Writing by the Kalispell
Public Works Department prior to construction. This infrastructure shall
include but not be limited to streets, street lighting, street signage, curb, gutter,
boulevard and sidewalks. (Kalispell Design and Construction Standards,
project proposal)
7. Water and sewer main extensions shall be designed and constructed in
accordance with the City of K lispell's Standards for Design and Construction
and Montana Public Works Standards. The water and sewer main extension
plans shall be reviewed and approved by the Kalispell Public Works
Department. Prior to final plat, a certification shall be submitted to the Public
Works Department stating that the water and sewer mains have been built as
designed and approved. (Kalispell Design and Construction Standards)
8. The developer shall submit to the Kalispell Public Works Department for review
and approval, a stormwater report and an engineered drainage plan that meets
the requirements of the current City standards for design and construction.
Prior to final plat, a certification shall be submitted to the Public Works
Department stating that the drainage plan for the subdivision has been
installed as designed and approved. (Kalispell Design and Construction
Standards)
9. A letter from. the Kalispell Public Works Department shall be submitted stating
that all new infrastructure has been accepted by the City of Kalispell or a
proper bond has been accepted for unfinished work. (Kalispell Design and
Construction Standards)
10. An additional 60-foot wide public road and utility easement shall be dedicated
to the City of Kalispell on the south end of lot 3 from the edge of the road right-
of-way of the internal city street east to the eastern boundary of the subdivision
site. (Findings of Fact Section D)
11. An additional 10-feet of road right-of-way shall be dedicated to the City of
Kalispell for the area adjacent to Sunnyside Drive requesting annexation. This
0
length is approximately 780 feet of frontage as shown on the preliminary plat.
(Findings of Fact Section D)
12. The developer shall clarify the purpose of the 60-Moot private road and utility
easement located on the eastern portion of lot 4 and determine whether lot 4
can legally use the portion of the easement. If lot 4 cannot legally use the
easement, they shall either terminate that portion of the easement or otherwise
place a barrier fence, minimum of 4 feet high, along the property boundaries of
lot 4 within the easement to prohibit use of the easement to access the eastern
portion of lot 4. (Findings of Fact Section A)
13. The following requirements shall be met per the Kalispell Fire Department and
so certified in writing by the Fire Department: (Kalispell Subdivision
Regulations, Section 3.20).
a. Water mains designed to provide minimum fire flows shall be installed per
City specifications at approved locations. Minimum fire flows shall be in
accordance with International Fire Code (2003) Appendix B.
b. Fire hydrants shall be provided per City specifications at locations approved
by this department, prior to combustible construction.
c. Fire Department access shall be provided in accordance with International
Fire Code (2003) Chapter 5.
d. It shall be noted on the face of the plat that hazardous weed abatement shall
be provided in accordance with City of Kalispell Ordinance 10-8.
e. Street naming shall be approved by the fire department.
f. Roadways between 26 feet to 32 feet wide shall be posted on one side of the
road as "no parking fire lane."
14. A letter shall be obtained from the Kalispell Parks and Recreation Director
approving a landscape plan for the placement of trees and landscaping
materials within the landscape boulevards of the streets serving the
subdivision. The approved landscape plan shall be implemented or a cash in
lieu payment for installation of the street trees and groundcover provided to the
Kalispell Parks and Recreation Department. (Kalispell Subdivision Regulations,
Section 3.11 )
15. A bike/pedestrian right-of-way, 15-feet wide, shall be shown on the final plat in
the area of lots 20 and 21 and within the park area.
a. A bike/ pedestrian path shall be constructed from the edge of the
sidewalks along the internal subdivision road and extend crest to the
western boundary of the subdivision and are ultimately intended to
connect to the bike path adjacent to the Highway 93 bypass.
b. The bike J pedestrian path shall be a minimum width of 10 feet (asphalt)
or 8-feet (concrete).
C. The bike/pedestrian path shall be included in the infrastructure plans
reviewed by the Public Works Department. (Findings of Fact Section H
and Kalispell Subdivision Regulations Section 3.07.13)
10. The parkland dedication requirements shall be met by a combination of parkland
5
dedication. and payment of cash in lieu of parkland equal to 0.71 acres of land.
The parkland shall be a minimum of 0.198 acres (8,624 square feet) in the area
shown on the preliminary plat. The remaining 0.51 2 acres shall be in the form
of improvements to the subdivision park such as an irrigation system, grass
seeding and tot lot play equipment with any remaining money put into
improvements at existing parks in the area. The ultimate improvement design
of the parr would be reviewed and approved by the Parks and Recreation
Department. The 0.512 acres of cash in lieu payment shall be based on the fair
market value of undivided, unimproved land.
Note: The bike/pedestrian path will not count towards the overall park
improvements due to the fact that a bike i pedestrian path is needed in this area
of the subdivision to break up the excessively long block length. (Kalispell
Subdivision Regulations, Section 3.1.9 and Findings of Fact Sections D and H).
17. The road within the subdivision shall be named and signed in accordance with
the policies of the Kalispell Public works Department and the Uniform Traffic
Control Devices Manual and be subject to review and approval of the Kalispell
Fire Department. A letter shall be obtained from the Kalispell Public works
Department stating the naming and addressing on the final plat have been
reviewed and approved. (Kalispell Subdivision Regulations, Section. 3.09)
1.8. All existing and proposed easements shall be indicated on the face of the final
plat. Utility easements for City water and seater shall be provided to allow for the
logical extension of utilities from this subdivision to adjoining properties. A letter
from the Kalispell Public works Department shall be obtained stating that the
required easements are being shown on the final plat. (Kalispell, Subdivision
Regulations, Section 3.18)
19. Prior to filing the final plat a letter from the US Postal Service shall be included
stating the Service has reviewed and approved the design and location of the
mail delivery site. The mail delivery site shall be installed or bonded for prior to
final plat. In addition, the mail delivery site and improvements shall also be
included in the preliminary and final engineering plans to be reviewed by the
Public works Department. The mail delivery site shall not impact a sidewalk or
proposed boulevard area. (Kalispell Subdivision Regulations, Section 3.22)
20. Street lighting shall be located within the subdivision and shall have a full
cutoff lens so that it does not intrude unnecessarily onto adjoining properties.
(Kalispell Subdivision Regulations Section 3.09(L))
21. The following statement shall appear on the final plat: "The undersigned hereby
grants unto each and every person, firm or corporation, whether public or private,
providing or offering to provide telephone, telegraph, electric power, gas, cable
television, crater or sewer service to the public, the right to the joint use of an
easement for the construction, maintenance, repair, and removal of their lines
and other facilities, in, over, under, and across each area designated on this plat
as "Utility Easement" to have and to hold forever."
0
Developer's Signature
(Kalispell Subdivision Regulations, Section 3.18(E))
22. A homeowners association for the subdivision shall be created that includes a
provision for the maintenance of the bike paths, stormwater facilities, parkland,
noise mitigation (i.e. sound wall or earth berm) and the open space areas within
the subdivision.. The maintenance provisions in the homeowners association
shall include mowing or trimming the grasses within the common area to
reduce the fire hazard and spread of noxious weeds. (Findings of Fact Sections
A, C, D and H)
23. The following note shall be placed on the final plat: "Property owner(s) are
responsible for the boulevard, strip for the length of their property boundaries.
Responsibilities include watering and mowing of the grass within the boulevard.
Removal of grass or trees within the boulevard is prohibited unless approved by
the Kalispell Department of Parks and Recreation."
24. The following note shall be placed on the final plat: "Property owner(s) shall
waive their right to protest the creation of a special improvement district for
road upgrades in the area to City standards which are impacted by this
subdivision." (Findings of Fact Section D)
25. Lot 5 shall be reconfigured to be brought into compliance with section 3 . o6 . G of
the subdivision regulations. (Kalispell Subdivision Regulations, Section 3.0 (G)
and Findings of Fact Section H)
26. That a minimum of two-thirds of the necessary infrastructure for this
subdivision shall be completed prior to final plat approval. (Findings of Fact
Section A)
On izoine conditions:
27. All utilities shall be installed underground. (Kalispell Subdivision Regulations,
Section 3.17)
28. All areas disturbed during development shall be re --vegetated with a weed -free
mix immediately after development.
29. A park maintenance district shall be formed incorporating all the lots within the
Ashley Heights subdivision. The park maintenance district shall not be effective
until such time as any open space or parks are accepted by the city in which
case the taxes levied within the maintenance district shall be determined by the
Parks and Recreation Department with approvals by the Kalispell City Council.
7
City of Kalispell
Planning Department
17 - 2nd Street East, Suite 211, Kalispell, Montana 59901
Telephone: (406) 751-1. 854
Fax: (406) 751- 1858
PETITION FOR ANNEXATION AND INITIAL ZONING
NAME OF APPLICANT: Ashley Height, LLC
MAIL ADDRESS: 3300 Hwy..2 West
CITY/STATEIZIP: Katispell PHONE: 25 7-1682
INTEREST IN
PROPERTY -.-Owner
Other Parties of Interest to be Notified:
PARTIES OF INTEREST: Sands Surveying
MAIL ADIDRESS: 2 Village Loo
CITY/STATE/ZIP: Kalispgll PHONE: 755-6481
INTEREST IN PROPERTY:
PLEASE COMPLETE THE FOLLOWING:
Address of the property: 1204 Snnr side Drive
Legal Description.- Government Lot I Assessor Tract 10 Section 19 Township 28N R.an e 21 W
(Lot and Block of Subdivision; Tract#)
Land in project (ac) 1 [ .1. Acres
The present coning of the above property is: Westside County R-1
The proposed zoning of the above property is: City R-2
State the changed or changing conditions that make the proposed amendment necessary:
Annexation and rezoning is necessary for the preliminary plat application of Ashley.,Heights Subdivision It
is our wish to annex the provegy and extend ci services.
The signing of this application signifies that the foregoing information is trine and accurate based upon the
best Mnformation available and further grants approval for Kalispell Planning staff to be present on the
property for routine inspection during the annexation process.
It . ................ 22
(A `cant) (Date)
APPLICATION PROCESS
APPLICABLE TO ALL ANNEXATION AND INITIAL ZONING APPLICATIONS
1. Pre -Application Meeting:
A discussion with the planning director or designated member of staff must precede -filing of this
application. Among topics to be discussed are: the application procedure, compatibility and
compliance with the Growth Policy, and compatibility of the proposed zoning with surrounding zoning
classifications.
2. Completed application form.
3. Completed Petition to Annex and Notice of withdrawal from Rural Fire District form, including an
Exhibit A, legal description of the property.
4. A list of all property owners within 150 feet of the subject property (excluding public streets and right of
sways) with mailing. addresses. See example below & attached notice from. County Plat Room.
Assessor# Sec -Twn- Eotf Fract No Prgpg y Owner & Mailing, Address
5. Annexation and Initial Zoning Fee made payable to the Kalispell Planning Department.
6. Fee Schedule:
Annexation (includesinitial zoning)
$250 plus $2(}/acre
7. A bona fide legal description of the property from a recent surrey, title report or deed which accurately
describes the property to be annexed.
6
Return to. -
Theresa white
Kalispell City Clerk
P.O. Box 1997
Kalispell, MT 59903
PETITION TO ANNEX
AND
NOTICE OF WITHDRAWAL FROM RURAL FIRE DISTRICT
The undersigned hereinafter referred to as Petitioner(s) respectfully petition the City Council of
the City of Kalispell for annexation of the real property described below into the City of
Kalispell.
The Petitioner(s) requesting City of Kalispell annexation of the property described herein and
further described in Exhibit A hereby mutually agree with the City of Kalispell that immediately
upon annexation of the land all City of Kalispell municipal services will be providers to the
property described herein on substantially the same basis and in the same manner as such services
are provided or made available to other properties within the rest of the municipality.
Petitioner(s) hereby state that there is no need to prepare a Municipal Annexation Service Plan for
this annexation pursuant to Section 7-2-46I4, M.C.A. since the parties are in agreement as to the
provision of municipal services to the property requested to be annexed.
The Petitioner(s) further herein express an intent to have the property as herein described
withdrawn from the Kalispell Rural Fire District under the provisions of Section 7-33-2I27,
Montana Code Annotated; and that incorporated into this Petition to Annex is the Notice
requirement pursuant to said Section; and that upon proper adoption of an ordinance or resolution
of annexation by the City Council of the City of Kalispell, the property shall be detracted from
said district.
In the event the property is not immediately annexed, the Petitioner(s) further agree(s) that this
covenant shall run to, with, and be � binding upon the title of the said real property, and shall be
binding upon our heirs, assigns, successors in interest, purchasers, and any and all subsequent
holders or owners of the above described property.
This City hereby agrees to allow Petitioner(s) to connect and receive the utilities from the City of
Kalispell.
This City hereby agrees to allow Petitioner(s) to connect and receive all available utilities from
the City of Kalispell excluding solid waste services. FICA 7-2--4736 prohibits the city from
providing solid waste services to this property for a minimum of 5 gears from date of annexation.
Y
Petitioner/ caner Date
Petitioner/Owner Date
MOTE: You must attach an Exhibit A that provides a bona fide legal description of
the property to be annexed.
STATE OF MONTANA )
ss
County of Flathead County
Can this t- day ofa7, before me the undersigned,a Notary Public for
the State of Montana, personally appeared known
to me to be the person NA "W is subscribed. to the foregoing instrument and acknowledged
to me that he/she 1�als 50�
,.*V.,
IN WIT ES i � 1�� 'here to set my hand and affixed my Notary Seal the day and
year in this cZtifivat first above iAAttei
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N Public, State o Montana
esiding at
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too*** N My Commission ex ies: / 0
OF M& 'xN
I�rt1 �t �l1tl
STATE OF MONTANA
: ss
County of Flathead County
on this day of , before me, the undersigned, a Notary Public for
the State of Montana., personally appeared known
to me to be the person whose name is subscribed to the foregoing instrument and acknowledged
to me that he/she executed the same.
fN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notary Seal the day and
year in this certificate first above written.
Notary Public, State of Montana
Residing at
My Commission expires:
STATE OF MONTANA )
ss
County of Flathead
On this day of _, , before me, the undersigned, a Notary Public for
The State of Montana, personally appeared and
the and
respectively, of the
corporation that executed the foregoing instrument, and the persons who executed said instrument
on behalf of said corporation, and acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notary Seal the day and
year in this certificate first above written.
Notary Public, State of Montana
Residing at
My Commission expires
3
DESCRIPTION:
A TRACT OF LAND, SITUATED, LYING AND BEING 1N GOVERNMENT LOT 1 OF SECTION 19, TOWNSHIP 28 NORTH,
RANGE 21 WEST, P.M.,M., FLATHEAD COUNTY, MONTANA, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS TO
WIT:
BEGINNING at the southeast corner of Government Lot 1 of Section 19, Township 28 North, Range 21 west, P.M.,M., Flathead County,
Montana, which is a found iron pin; Thence along the south boundary of said Gov't Lot 1 S88°56'57"W 133.35 feet to a found iron pin on
the easterly R/W of the Proposed Kalispell Bv-pass; Thence along said R/W N3 S° 16'45"w 119.64 feet; Thence N2.2° 15'2f"w 852.92 feet;
Thence N08a00'03 "E 203.22 feet to the southerly R/W of a deeded county road Known as Sunnyside Drive; Thence along said R/W
N8804734"E 110.59 feet; Thence S01°12'26"E 137.87 feet; Thence EAST 177.76 feet; Thence S01°16'38"E 366.27 feet to a found iron
pin; Thence N88'44'29"E 167.70 feet to a found iron pin; Thence SO 1 °23'01 "E 59.03 feet to a found iron pin; Thence N88°50'03 "E 142.46
feet to a found iron pin on the east boundary of said Gov't Lot 1; Thence along said boundary S00°26 09"VAT 701.99 feet to the point of
beginning and containing 8.515 ACRES; Subject to and together with a 60 foot private road and utility easement as shown hereon; Subject
to and together with all appurtenant easements of record.
ASHLEY HEIGHTS, LLC
REQUEST FOR INITIAL ZONING OF R- 2, UPON ANNEXATION
STAFF REPORT #IAA--07-11
REQUEST FOR ASHLEY HEIGHTS SUBDIVISION
STAFF REPORT #KPP-07-7
I3ALISPELL PLANNING DEPARTMENT
JULY 3, 2007
A report to the Kalispell City Planning Board and the Kalispell City Council regarding
an initial zoning designation. of R-2 upon annexation to the city of Kalispell and a
subdivision to create 26 residential lots. A public hearing has been scheduled before
the Kalispell City Planning Board for July 10, 2007 beginning at 7:00 PM, to consider
appropriate zoning for the property to be annexed and the subdivision request. The
planning board will forward a recommendation to the Kalispell City Council for
consideration.
BACKGROUND INFORMATION
The planning board reviewed a previous initial zoning request for the project site at its
April 1 oth meeting. The owner was requesting the R-4, Two Family Residential, zoning
district and planning staff was recommending the R-3, Urban Single Family Residential
zoning district based on concerns with increased density in the area and associated
traffic, and allowing increased density in such close proximity to the future highway
bypass. The planning board recommended the R-2, Single Family Residential, zoning
district for the project site if it were annexed into the city limits. The planning board
cited concerns with density and character of the neighborhood as their- reasoning for
recommending the R--2 zoning district.
The council denied the annexation request at their May 2 1st meeting based on the
owners request for an R-3 or R-4 zoning upon annexation. The council could not
support either the R-3 or R-4 zoning districts based on concerns with the increased
density in the immediate neighborhood and associated traffic impacts in the area.
The owners have now re -applied for annexation and an initial zoning district of R-2 to
address the planning board and councils concerns. Along with the annexation and
initial zoning request they have requested approval of a preliminary plat, Ashley
Heights, to create 26 residential lots varying in size from 9,600 square feet to 17,880
square feet. The proposed subdivisions includes an 8.5 acre portion of the 11.1 acre site
requesting annexation and initial zoning of R-2. The remaining 2.6 acres outside of the
proposed subdivision includes an existing home site located in the northeast corner of
the 11.1 acre site and an area apprwdmately 2.1 acres in size shown as the future
highway bypass on the preliminary plat.
This staff report will address both requests, M* itial zoning and preliminary plat, that the
owner is requesting. Each request will be reviewed with a recommendation and a set of
conditions at the end of the report be...' ' g on page 14.
A, Petitioner and Ow ers: Ashley Heights, LLC
3300 Highway 2 west
Kalispell, MT 59901
(406) 257-1632
Technical Assistance: Sands Surveying, Inc.
2 Village Loop
Kalispell., MT 59901
(406) 755--6481
B. Location, and Legal Description. of Property: The property proposed for
annexation is located at the western end of Bisrnark Street and is bordered on
the north. by Sunnyside Drive and on the west by the future Highway 93
Bypass. The site is generally triangular in shape and contains approximately
11.1 acres, approximately 9 acres of which is developable land as the westerly
2.1 acres of this site would be part of the future Highway 93 Bypass upon
acquisition by MDT. The property can be described as a portion of Tract 10
lying within Government Lot 1 in the Nw4 of the Nw4 of Section. 19, Township
28 North, Range 21 West, P. M. M . , Flathead County, Montana.
C. Existing zoning: The property is currently in the County zoning, jurisdiction
and is zoned County R--1. The County R--1, Suburban Residential zoning
district, is primarily a single-family district with a minimum lot size requirement
of one acre. Areas with an R-1 zoning designation would typically be located in
rural areas away from concentrated urban development, typically not be served
by water or sewer services or in areas where it is desirable to permit only low -
density development (e.g. extreme topography, airport runway extensions,
floodplain, etc.).
D. Proposed Zoning: City R-2, Single Family residential, has been requested for
the property. The R-2 zoning district allows single --family residences as a
permitted use. The minimum lot size for the district is 9,600 square feet and a
minimum lot width of 70 feet with setbacks of 20 feet in the front, 10 feet in the
rear and 10 feet on the sides.
E. Size : The area proposed for annexation and zoning contains approximately 11.1
acres.
F. Faisting Land Use: The property contains an existing single family residence in
the northeast corner of the property adjacent to Sunnyside Drive and a shop with
a well located along the western boundary of the property.
G. Adjacent Land Uses and zoning: The property is located on the urban fringe of
the city. The western portion of the property is within the proposed Highway 93
Bypass / W . The north and northeast portions of the property abut large single
family residential lots in the 1 -- 2 12 acre range. The southeastern portion of the
site abuts City R-4 zoning and a mixture of single family and two unit townhouse
lots.
North: Large lot rural residential; County R-1 zoning
Bast: Large lot rural single-family homes -- County R-1 urban scale single
family and 2-unit townhouses - City R--4
South: Future Highway 93 Bypass; County R-1 zoning
West: Future Highway 93 Bypass; County R-1 zoning
H. General Land Use Character: This is a transitioning residential neighborhood
with the proposed property sandwiched between a federal highway bypass to the
west, large size rural residential lots to the north and east and urban scale
residential density to the southeast. Just 6 months ago, a 4 acre site at 60
Denver owned by the Violence Free Crisis Line just 300 feet to the east was
annexed into the city and granted an R-3 Single Family residential zoning
classification. In 2002 the city annexed and zoned the R-4 land immediately
southeast of the applicant's property. This annexation and zoning to R.-4 was the
subject of a lawsuit brought on by neighbors indicating among other things that
the density of the R-4 zone was out of character with the existing neighborhood.
The city did ultimately prevail in the suit but it does indicate a neighborhood
sentiment against higher density development.
I. Availability of Public Services and Extension of Services: Public services are
all generally available to the site. Specifically water and sewer are currently
available to the site via Bismark Street on the southeast corner of the property.
EVALUATION BASED ON STATUTORY GRITER T A
The initial zoning request includes an 11.1 acre property legally described as a portion
of Tract 10 lying within. Government Lot 1 in the Nw4 of the Nw4 of Section 19,
Township 28 North, Range 21 west, P.M.M. The 11.1 acre site includes an existing
home site, the 3.3 acre area in which the Ashley Heights subdivision is proposed, and
an approximately 2.1 acre area shown as the future highway bypass right-of-way.
The statutory basis for reviewing a change in zoning is set forth by 76-2-303, M. C.A.
Findings of fact for the zone change request are discussed relative to the itemized criteria
described by 76-2-304, M.C.A.
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1. Does the requested zone corn1 with the Growth Poll �)
The property is designated by the Kalispell Growth Policy 2020 as "Urban
Residential` which is defined as anticipating three to twelve dwellings per acre.
Because of the plans for the provision of public sewer and crater to the site, the
proposed R- 2 zoning designation could be considered to be in compliance with
the growth policy designation. The R-2 zoning district has a 9,600 square foot
mi_n�mum lot size, is limited to single family residential development and has a
typical maximum gross density of 3 -- 3.5 units/ gross acre. The R-2 zone does
comply with the 3-1 2 units per acre called out by the growth policy and would
provide a lager residential density to comply with the neighborhood character
and lessen the density along the future highway bypass.
2. Is the requested zone designed to lessen congestion in the streets?
It can be anticipated that the proposed development of the property that will be
associated with the zoning will increase traffic impacts in the area due to the
relatively low density of the area currently. The proposed zoning carries with it
the checks and balances, including the need for review, which will insure that
traffic flows and access are appropriately addressed. The potential densities
afforded by the R--2 zone would be from 250 to 300 vehicle trips per day based on
a range of possible development plans. The applicants do have a preliminary
proposal that would generate approximately 260 trips. This amount is not
significant enough to warrant additional upgrades to Sunnyside Drive at this
time.
3. Will the requested zone secure safety from fire panic and other dangers?
Adequate access and public facilities would be made available to the site in the
ease of an emergency. New construction will be required to be in compliance
with the building safety codes of the City which relate to fire and building safety.
All municipal services including grater and surer will be extended to the property.
'Where are no features related to the property which would compromise the safety
of the public.
4. will the requested zone promote the health andeneral welfare?
The R--2 zone can be found to promote the health and general welfare of the
neighborhood. It will insure that only single family residents are constructed in
this area. This would be compatible with the majority of the surrounding
properties. Additionally, the slightly larger lots and greater setbacks afforded by
the R-2 will help to mitigate the impacts associated with the traffic noise
generated by the Highway 93 Bypass as it abuts this site.
5 . will the re uested zone provide for ad e u ate light and air?
Setback, height, and coverage standards for development occurring on this site
are established in the Kalispell Zoning Ordinance to insure adequate light and air
is provided.
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6 . will the requested zone prevent the overcrowj�n of land*)
As previously noted, this area has been anticipated for residential development
based on the city's growth policy land use map. The anticipated densities of the
proposed zoning districts fall within the land use designation for the site. An
public services and facilities will be available to serve this property. An
overcrowding of land would occur if infrastructure were inadequate to
accommodate the development in the area. This is unlikely to occur.
7. will the re uested zone avoid undue concentration of eo le?
An increase in the number and concentration of people in the area will likely
result after this land has been converted from vacant land to a more intensive
residential use. The intensity of the uses of the property should be in direct
relationship to the availability of public services, utilities, facilities and adjoining
property character and use. In this neighborhood, the future presence of noise
from the Highway 93 Bypass, the adjoining large lot residential uses and the
substandard condition of Sunnyside Drive which provides one of the two primary
access roads all point to a less dense development pattern. The requested R-2
zoning would maintain the single-family residential character of the area; reduce
the number of allowable housing units on the property thereby decreasing the
associated traffic impacts in the immediate area.
8. will the re uested zone facilitate the adequate rovision of trans ortation water,
sewer; e schools arks and other public re uirements?
Public service, facilities and infrastructure would be made available to the
developer. The developer would need to extend the needed City services that are
not currently extended to the property at the developers' expense and in
accordance with the City's policies and standards. New improvements to the
property such as roads, water, sewer, parks and drainage would be installed '
accordance with City policies and standards at the developers' expense thereby
insuring that there is adequate provision of services to the site prior to
development. Fire, police and ambulance are adequate to accommodate potential
impacts associated with the development of this site. There will be impacts to
services that can be anticipated as a result of this proposal which can be met by
the City. All public services and facilities are currently available or can be
provided to the property. Development should be encouraged in areas where
these services are available.
9. Does the re uested zone 've consideration to the particular suitablliof the
propert for articular uses?
The property is generally level and developable. Its linear shape does limit
creativity in future subdivision design. Adequate water sewer, police, fire and
ambulance services are available. Given the sites characteristics and the larger
lot residential requirements of the R-2 zoning district, this site can be considered
suitable for residential development in the R-2 zoning district.
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10. Does the re uested. zone 've reasonable consideration to the character of the
district?
The proposed R-2 zoning district would provide for a development pattern that is
in keeping with the character with the surrounding neighborhood. The R--2
zoning district is a single family residential zone which would maintain the single
family residential character of the area. The R-2 district would also significantly
reduce the potential for higher development densities which would be out of
character for the immediate neighborhood.
11. Will the ro osed zone conserve the value of buildings?
City standards will ensure that there is high quality development that will ensure
the value of buildings and homes are protected, maintained and conserved. value
of the buildings in the area will be conserved because the zoning will promote
compatible and like uses on this property as are found on other properties in the
area.
12. Will there nested zone encourage the most a ro riate use of the land
throw out the munici ali ?
Urban -scale residential development should be encouraged in areas were services
and facilities are available such as is being proposed on this property. This area
is suitable for urban scale development. The proposed zoning district would
encourage higher density development within the city on municipal services while
also maintaining the character of the neighborhood and limiting the amount of
additional vehicle traffic on adjoining streets such as Sunnyside Drive.
II. REVIEW AND FUMINGS OF FACT FOR THE PRELI111IINARY PLAT OF
ASHLEY HEIGHTS
The proposed subdivision, Ashley Heights, is located on an 8.5 acre portion of
the 11.1 acre lot requesting annexation and initial zoning of R--2. The
approximately 2. 6 acres outside of the proposed subdivision include an existing
home site and an area reserved for the future highway bypass right-of-way.
The subdivision application is reviewed as a major subdivision in accordance
with statutory criteria and the Kalispell City Subdivision Regulations.
A. Effects on Health and Safety:
Fire: This subdivision would be in the service area of the Kalispell. Fire
Department once annexed to the city. The property is considered to be at low
I
risk of fire because the subdivision and homes within the subdivision would be
constructed in accordance with the .International Fire code and have access
which meets city standards. Hydrants will be required to be placed in
compliance with the requirements of the International Fire code and approved
by the fire marshal. The fire access and suppression system should be
installed and approved by the fire department prior to final plat approval. This
is necessary to prevent combustible construction from taking place prior to the
construction of adequate fire access and, therefore avert any associated
problems.
Flood According to the Flood Insurance Rate Map (FIRM) Panel. # 1815 dated
9 / 3 0 / 92 the site is located entirely in zone C which is not a flood prone area
and no special permits are required for development.
Access: Access is provided by Bismark Street on the south side of the
Subdivision and Sunnyside Drive on the north side of the subdivision. Bismark
Street is a city roadway built to city standards and currently serves lots within
the Sunnyside subdivision. and Lone Pine subdivision. Sunnyside Drive is a
county roadway and serves residential lots in both the city and county.
Sunnyside Drive begins at the southern end of 5th Street west and continues
merest across Burlington Northern's railroad right-of-way. After the railroad
Sunnyside Drive terminates into valley view Drive which directs traffic
primarily north to Foys Lake Road.
The proposed subdivision would extend Bismark Street, located in the
southeast corner of the subdivision site, north through the subdivision and
connect with. Sunnyside Drive. In addition, The Public works Department is
recommending that a F o-foot public road and utility easement be placed on the
southern portion of lot 3. This publicly dedicated road and utility easement
would allow the eventual connection between the internal subdivision street
and Sunnyside Drive via the existing 60-foot private road and utility easement
serving 4 tracts of land immediately east of the proposed subdivision.
The existing fro -foot private road and utility easement that extends southward
from Sunnyside Drive currently ends at the project site with a 30 -foot pride
portion of the easement located on proposed lot 4. The proposed subdivision
would not utilize the private easement for access to any of the proposed lots.
However, proposed lot 4 would have access to both the internal city street
serving the subdivision and the private road easement. As a recommended
condition of approval planning staff is recommending the owners clarify the
purpose of the 60-foot private road and utility easement and determine whether
lot 4 can legally use the portion of the easement located on the property. If
proposed lot 4 cannot legally use the easement the owner will be required to
either terminate that portion of the easement or otherwise place a barrier to
prohibit use of the easement to access the eastern portion of lot 4.
Noise: The future Highway 93 Bypass will be located on the west side of the
proposed subdivision. The property is currently vacant of any type of
residential housing. The proposed project would allow 26 dwelling units on the
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project site with a combination of single family lots and townhouse lots
proposed along the bypass right-of-way at this time.
The Montana Department of Transportation. has Commented on the potential
noise impacts the highway may have on future residences along the proposed
bypass. Cora Helm., Highway Traffic Noise Specialist, stated in a letter dated
October 23, 2006 that, "noise levels in excess of 65 dBA are regarded to be a
critical annoyance in much of the published research pertaining to traffic noise.
Speech is severely interfered with at these levels, so outdoor areas for homes
sitting near the 64 decibel contour line will not be functional unless protected
with a berm or barrier. Traffic will only increase on the bypass over the years,
and a 64 decibel location could quickly approach 67 dBA or more." The
Department of Transportation is required to mitigate the noise impact to
existing residences at the 67 dBA level. Note that MDT recommends
communities determine appropriate noise levels for types of development or
uses and provide guidance on preferred mitigation.. In recent discussions, the
Kalispell Planning Board, agreed that mitigation was necessary to maintain an
outdoor 60 dBA noise level along areas adjacent to the proposed future Highway
93 Bypass.
The owner has provided a copy of the preliminary plat map including noise
contours of 647 62 and 60 which indicated anticipated noise decibel levels that
would result from the proposed highway bypass. This information was provided
by the Montana Department of Transportation (MDT). The anticipated 60
decibel noise contour parallels the bypass and emends approximately 300 feet
onto the property. Over 2/3 of the lots within the proposed subdivision would
be within noise contours exceeding 60 decibels.
A follow-up letter dated February 22, 2007 and written by Ms. Helm on the
current project proposal states the following, "For the Kalispell Bypass, MDT
concluded that there are two locations where noise abatement would satisfy
much of the reasonableness and feasibility criteria for barriers, outside of
seeking public input. Those locations include the developments south of
Sunnyside and north of Three Mile Drive that were built or platted as of August
9, 2005. Developments that are platted after that August date, such as Ashley
Heights, would not be eligible for federal -aid noise abatement, such as barriers,
until such a time that the Kalispell Bypass would become a six -lane facility!"
One of the primary purposes of the Kalispell Subdivision regulations is to
promote the public health, safety and general welfare. Highway noise from the
future bypass has the potential to be detrimental to the future property owners
of the lots within Ashley Heights. Therefore, the planning department would
recommend the planning board consider including a condition on the plat
requiring a noise study be completed prior to the final plat approval. The noise
study will need to show how a noise level of 60 dBA can be achieved outside of
the future residential buildings, between the buildings and the future highway
right-of-way. The proposed mitigation measures contained in the noise study
shall be reviewed and approved by the city staff and implemented prior to final
plat of the development. Including this condition may result in the loss of one
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.... . .
or more of the proposed lots along the bypass and/or redesign of the
subdivision.
On -site Improvements: The City of Kalispell has required past subdivisions to
complete a um of two-thirds of the necessary infrastructure (water,
sewer, roads, etc.) prior to filing the final plat. The city staff recommends this
condition on each plat to insure that, prior to issuing a building permit on a
new lot, there is access which meets the fire department's minimum standards
as well as adequate water and sewer services. In the past, the city has allowed
subdivisions to file a final plat and subsequent home construction to begin
prior to a majority of the infrastructure installed. Problems have occurred
when new homes were occupied and there was insufficient water for fire
suppression and/or sewer mains were not working properly. Therefore, in
order to mitigate these potential impacts to the public's health and safety, staff
is recommending a condition requiring a minimum of two-thirds of the
infrastructure be installed prior to final plat.
B. Effects on Wildlife and. Wildlife Habitat: This area is highly urbanized with
little or no remaining wildlife habitat. There may be some migratory birds and
an occasional deer may visit the site, however, this area does not provide
significant habitat for wildlife due to the developed nature of the area.
C. Effects on the Natural Environment'.
Surface. and groundwater: This subdivision will be served by public water and
sewer thereby minimizing any potential impacts to the groundwater. As stated
previously, no portion of the site is within the 100 year floodplain as shown on
the (FIRM) panel, # 1815.
A Depth to Water Table map dated March. 13, 2006 indicates the grater table is
between 20-50 feet below the surface throughout the project site. Due to the
water table depth staff would not recommend any prohibitions on basements
within this development. Information in the Depth to water Table was provided
by the Flathead Lakers in consultation with the Flathead Lake Biological
Station.
Drainage: This site is relatively level and does not pose any unusual challenges
to site drainage. Curbs and gutters will be installed along the streets
throughout the subdivision and storm water will be conveyed south to a small
parr area located between lots 12 and 13. A condition of approval requires that
a homeowners association be created for the maintenance of the parr area
which includes the stormwater detention area. As part of the maintenance of
the parr area and storrnwater detention area the association would be required
to mow the area to reduce the fire hazard and reduce the spread of noxious
weeds in accordance with city codes.
The City of Kalispell recently adopted an ordinance to address erosion control
and stormwater pollution prevention. The new ordinance requires a developer
to obtain a city stormwater management permit and a State General
Construction Stormwater Discharge Permit Notice of Intent (NCI) and
Stormwater Pollution Prevention Plan (SWPPP) prior to any grading activities on
0X
the site. These plans provide for managing stormwater on the site and include
stab hzing the construction site through an approved revegetation plan after
site grading is finished.
D, Effects on Local Services:
Water and Sewer: Water and sewer service to the subdivision would be
provided by the City of Kalispell from an existing eight inch water main and
sewer main located within, the Bismark Street right-of-way. These mains will be
extended from Bismark Street, through the subdivision site to Sunnyside Drive.
The water and sewer system for the subdivision will be reviewed and approved
by the Kalispell. Public works Department as part of the development of the
subdivision.. There is adequate capacity within the city's water and surer
systems to accommodate this development.
Roads: As discussed in the Access section of this report, Sunnyside Drive and
Bismark Street provide the vehicular access to this site. In order to provide
legal and physical access to each of the lots within the subdivision the
developers would extend Bismark Street north to connect with Sunnyside Drive.
This new street extension would be built to current city standards including a
minimum 28--foot wide paved travel surface, curb, gutters, 5--foot landscaped
boulevard and 5-Moot sidewalk.
The owners have previously requested a more intensive zoning district for the
site, R-4, which would have permitted a minimum lot size of 6,000 square feet
and permitted either a single-family house or duplex on the 6,000 square foot
lot. One of the reasons for denying the requested R-4 zoning district was the
potential traffic onto Sunnyside Drive associated with the more intense
residential development. As part of the subdivision submittal the owners
provided a traffic impact study conducted by Abelin Traffic Services from
Helena, Montana.
At 26 lots the traffic impact study concluded that there would be 249 weekday
vehicle trips. without the bypass in place the traffic study indicates 40% of the
vehicle traffic will travel west on Sunnyside Drive to Foys Lake Road and 50%
will use Sunnyside Drive to travel east to 11th Street West. The remaining 10%
of vehicle trips will come to and from the south of the subdivision. via Denver
Avenue. Once the highway bypass is in place however 90% of the vehicle trips
to and from the subdivision will use Sunnyside Drive to travel east to 11 to
Street. The remaining 10% will continue to travel to and from the subdivision
from the south on Denver Avenue.
The traffic impact study concludes that the proposed subdivision traffic will
have little effect on the traffic conditions around the proposed subdivision. site.
Intersection operations will remain within acceptable limits and traffic volumes
will not exceed the limits of the functional classifications of any roadways. The
study states that when the Highway 93 Bypass is in place Sunnyside Drive will
effectively become a collector route. Once this occurs the functional
classification of Sunnyside Drive should be changed to match the increased
traffic the roadway will receive.
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Sunnyside Drive is currently a county roadway along the portion of the
proposed subdivision and adjacent 2.6 acres requesting annexation into the
city. Information provided by the developer indicates Sunnyside Drive has a
right-of-way width of 40 feet. With the increased traffic from this subdivision
and the increase in traffic Sunnyside will receive once the highway bypass is in
place the Public Works Department is recommending an additional 10 feet of
right-of-way be dedicated along Sunnyside Drive. This dedication would not
only include the portion of the subdivision fronting Sunnyside Drive but the
entire 750± feet of frontage the owners are requesting be annexed into the city.
The additional right-of-way would enable this portion. of Sunnyside Drive to
expand and upgraded to city standards.
Although the Public Works Department has recommended additional right-of-
way dedication along Sunnyside Drive, improvement to Sunnyside Drive to
current city standards will be limited to the 110± feet of frontage the
subdivision has along Sunnyside Drive. For future improvements to Sunnyside
Drive to offset traffic impacts associated with the proposed subdivision the
Public Works Department is recommending the lots within the subdivision
waive their right to protest a future road improvement district for the upgrading
of Sunnyside Drive.
The prelir=' ary plat has indicated the future highway bypass corridor
immediately west of the proposed subdivision site. The highway bypass design
plans received by the planning department in June of 2007 appear to reflect the
proposed Kalispell highway bypass shown on the prelimm* aryy plat. However, it
is important that the proposed subdivision location not interfere with the
proposed highway bypass design and associated right-of-way. Therefore, as a
recommended condition of approval, prior to final plat approval the developer
will need to provide proof, by way of a letter from the Montana Department of
Transportation., that the bypass right-of-way shown on the preliminary plat is
adequate for the construction of the future highway bypass. The location of the
highway bypass right-of-way may effect the western boundary line of the
proposed subdivision, which may in turn effect the number of proposed lots.
Schools: This development is within the boundaries of Kalispell School District
#5. The school districts could anticipate an additional 13 school aged children
might be generated by the subdivision at full build out. This number takes into
account pre --school aged children, home school education options and private
school education options. Not all of the children who live in the subdivision will
be attending public schools. This subdivision would have a potentially
significant impact on the district, particularly on a cumulative level with this
subdivision in addition to other developments pending within the district.
Parks _ and Open Space: The state and local subdivision regulations have
parkland / open space requirements for major subdivisions in the amount of
11% of the combined area of all land to be divided into lots 1'2 acre and smaller.
The area in lots is 6.49 acres creating an average lot sire of 10,870 square feet,
significantly less than 1/2 an acre. 11% of the combined area in lots will require
0.71 acres in park area or cash in lieu equivalent.
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The developer is proposing a small tot lot, approximately 8,600 square feet in
size, located in the southern portion of the subdivision., adjacent to the future
highway bypass. The park area would also serve as the stormwater detention
area for the subdivision.
The Kalispell Parks and Recreation Department is recommending the parkland
dedication be met by a combination of the proposed parkland as shown on the
preliminary plat and a cash in lieu payment. As stated above, the parkland
shown on the preliminary plat has an area. of 0.198 acres or 8,624 square feet.
The overall park requirements for the subdivision equal 0.71 acres. The
remaining 0.512 acres, the difference between the required parkland and the
proposed park within the subdivision., would be in the form of a cash in lieu
payment. The cash in lieu payment would be used for improvements to the
0.198 parkland within the Ashley Heights subdivision with any remaining
money put into improvements at existing parks in the area.
Improvements to the subdivision park would include, in part, an irrigation
system, grass seeding and tot lot play equipment. Also included within the
parkland would be a bike/pedestrian trail providing access from this
subdivision and surrounding lots to the bike path along the future highway
bypass. The bike/pedestrian path will not count towards the overall park
improvements due to the fact that a bike/pedestrian path is needed in this area
of the subdivision to break up the excessively long block length. The ultimate
design of the parkland would be reviewed and approved by the Parks and
Recreation Department. The parkland would be maintained and owned by the
Ashley Heights Homeowners Association due to its small size.
Police: This subdivision would be in the jurisdiction of the City of Kalispell
Police Department once annexed to the city. The department can adequately
provide service to this subdivision, however the cumulative impacts of growth
within the city further strains the department's ability to continue to provide
the high level of service the department is committed to.
Fire Protection: Fire protection services will be provided by the Kalispell Fire
Department once annexed to the city, and the subdivision will be required to
comply with the International Fire code. The fire department is also
recommending that access to the subdivision and the hydrants are in place
prior to final plat approval and / or use of combustible materials in construction.
Solid Waste: Solid waste will be handled by a private contractor for at least the
first five years and taken to the Flathead county Landfill. There is sufficient
capacity within the landfill to accommodate this additional solid waste
generated from this subdivision..
Medical Services: Ambulance service is available from the fire department and
ALERT helicopter service. Kalispell Regional Medical Center is close, less than
three miles from the site.
E. Effects on Agriculture and agricultural water user facilities: The site is in
12
an urbanized area at the fringes of the city limits. There will be relatively no
impact on agricultural uses within the valley due to the surrounding residential
and industrial development of the area and the relatively small size of the
property. No impacts on agricultural water user facilities are anticipated since
this property will be served by a public water system.
�'. Relation to the Kalispell Growth Policy: The Kalispell Growth Policy Map
designates this area as Urban Residential development, which anticipates a mix of
primarily single family and duplex dwellings with a density of three to 12 dwelling
units per acre. The proposed subdivision has a density of 3 dwelling units per
acre. This density is in compliance with the anticipated density for this area.
G. Compliance with Zoning: This property has been proposed to be zoned R-2, a
Single Family Residential district. The proposed lot sizes range from 9,600
square feet to 17,880 square feet. Therefore, the proposed lots would comply
with the requested R-2 zoning district.
H. Compliance with the Kalispell Subdivision Regulations: Section 3. o7.P of
the Kalispell Subdivision Regulations requires city blocks to not exceed 1,200
feet in length. The block along the western boundary of the subdivision., lots 12
through 26 including the parr lot, is approximately 1,370 feet in length.
Section 3.07. D of the Kalispell Subdivision Regulations requires a right-of-way,
not less than 15 feet wide, for pedestrian walks where deemed essential to
provide access to common facilities such as parks, playgrounds, streams, and
lakes, or when necessary to break up excessively long blocks.
The Montana Department of Transportation., as part of construction of the
highway bypass, will be constructing a bike path running the entire length of
the bypass. The planning department and parks and recreation department are
recommending that two pedestrian/bike paths be constructed as part of the
subdivision approval. one path would be located within the park area as
shown on the preliminary plat. The other bike/ pedestrian path would be
located raid -block, between lots 20 and 21. The bike/pedestrian path would be
located within a 15--foot right-of-way shown as common area on the plat and
located outside of the individual lots. The bike/pedestrian paths will need to be
either 10 feet wide if asphalt is used or 8 feet wide if concrete is used for
construction of the path. The paths would be constructed from the edge of the
sidewalk west to the western boundary of the subdivision. The purpose of the
paths is to ultimately provide a walking/bike connection between homes in this
and surrounding subdivisions to the future bike path along the highway
bypass.
As discussed under the Noise section of this report, a recommended condition
of approval would require the developer to complete a noise study and mitigate
future traffic noise associated with the highway bypass. This mitigation may
include the use of berms or sound walls. Access to the bike path along the
bypass would still be required as part of the conditions of approval in the areas
described above.
13
Staff is recomunen.di.ng the 15--foot bike/pedestrian right-of-way be located
within a common area of the subdivision and not as an easement on individual
lots in order to eliminate future problems with overall maintenance of the area.
Also, placing the bike pedestrian easement within a common area provides for a
greater separation between the bike path and future houses located to the
north and south on lots 20 and 21.
As part of the recommended conditions of approval staff is recommending a
homeowners association be established to maintain the common areas,
including the aforementioned bike / pedestrian path within the subdivision.
Section 3.06 . G of the Kalispell Subdivision Regulations states that no lot shall
have an average depth greater than three times its average width unless the
average lot width is greater than 200 feet. Proposed lot 5 has an average width
of 06 feet and an average depth of 249 feet. Therefore, lot 5 currently exceeds
the width to depth ratio as stated above by approximately 51 feet. As a
recommended condition of approval lot 5 would be required to be reconfigured
to be brought into compliance with section 3. 06. G of the subdivision
regulations.
RE ObU MENDATIONS
I. Staff recommends that the Kalispell City Planning Board and zoning
Conunission adopt staff report KA-07-11 and recommend that initial zoning of
the 11.1 acre site be R-2 on the zoning district map for the property.
lI. Staff recommends that the Kalispell City Planning Board and zoning
Commission adopt staff' report KPP-07 -7 as findings of fact and recommend to
the Kalispell City Council that the proposed subdivision, Ashley Heights, be
approved subject to the following conditions:
CONDITIONS OF APPROVAL
General Conditions:
1. That the development of the site shall be in substantial compliance with the
application submitted, materials and other specifications as well as any
additional conditions associated with the preliminary plat as approved by the
city council. (Kalispell Subdivision Regulations, Appendix C -- Final Plat)
2. The preliminary plat approval shall be valid for a period of three years from the
date of approval. (Kalispell Subdivision Regulations, Section 2.04) .
3. Prior to any excavation or earthwork, a City Stormwater Management Permit
shall be approved and issued from the Kalispell Public works Department. In
accordance with Ordinance 1600, the permit shall include a permit application,
site map, narrative describing the best management practices to be used and a
completed checklist. In addition to the City Stormwater Management Permit
14
the developer shall submit a copy of the State General Construction Stormwater
Discharge Permit Notice of Intent (NOI) and Stormwater Pollution Prevention
Plan (SWPPP). At the time of finest plat, the project engineer shall certify that the
development is in compliance with the approved City Stormwater Management
Permit. (Ordinance 1600 and Findings of Fact Section C)
Prior to final plat.-
4. A noise study shall be completed prior to the final plat approval. The noise
study shall shove hover a noise level of 60 dBA at the western property boundary
of the subdivision can be achieved. The proposed mitigation measures
contained in the noise study shall be reviewed and approved by city staff and
implemented prior to final plat approval.
Note: This condition may result in the loss of one or more of the proposed lots
shown on the preliminary plat. Reasonable bike and pedestrian access shall be
provided from the subdivision site to the bike path located along the future
highway bypass and not be impaired by sound mitigation measures chooser.
(Findings of Fact Section A)
5. A letter from the Montana Department of Transportation shall be provided
stating that the bypass right-of-way shown on the preliminary plat is adequate
for the construction of the future highway bypass.
Note: The location of the highway bypass right-of-way may effect the western
boundary line of the proposed subdivision, which may in turn effect the number
of proposed lots. (Findings of Fact Section D)
6. New infrastructure required to serve the subdivision shall be designed and
constructed in accordance with the City of Kalispell's Standards for Design and.
Construction and Montana Public Works Standards and shall be certified in
writing by an engineer licensed in the State of Montana. The new
infrastructure includes the internal access roadway searing the lots within the
subdivision and the approximately 110 feet of frontage along Sunnyside Drive.
All design work shall be reviewed and approved in writing by the Kalispell
Public Works Department prior to construction. This infrastructure shall
include but not be limited to streets, street lighting, street signage, curb, gutter,
boulevard and sidewalks. (Kalispell Design and Construction Standards,
project proposal)
7. Water and sewer main extensions shall be designed and constructed in
accordance with the City of Kalispell's Standards for Design and Construction
and Montana Public Works Standards. The water and surer main extension
plans shall be reviewed and approved by the Kalispell Public Works
Department. Prior to final plat, a certification shall be submitted to the Public
Works Department stating that the water and sewer mains have been built as
designed and. approved. (Kalispell Design and Construction Standards)
S. The developer shall submit to the Kalispell Public Works Department for review
and approval, a stormwater report and an engineered drainage plan that meets
15
the requirements of the current City standards for design and construction.
Prior to final plat, a certification shall be submitted to the Public Works
Department stating that the drainage plan for the subdivision has been
installed as designed and approved. (Kalispell Design and Construction
Standards)
9. A letter from the Kalispell Public Works Department shall be submitted stating
that all new infrastructure has been accepted by the City of Kalispell or a
proper bond has been accepted for unfinished work. (Kalispell Design and
Construction Standards)
10. An additional 60-foot wide public road and utility easement shall be dedicated
to the City of Kalispell on the south end of lot 3 from the edge of the road right-
of-way of the internal city street east to the eastern boundary of the subdivision
site. (Findings of Fact Section D)
11. An additional 10--feet of road right-of-way shall be dedicated to the City of
Kalispell for the area adjacent to Sunnyside Drive requesting annexation. This
length is approximately 780 feet of frontage as shown on the preliminary plat.
(Findings of Fact Section D)
12. The developer shall clarify the purpose of the 60-foot private road and utility
easement located on the eastern portion of lot 4 and determine whether lot 4
can legally use the portion of the easement. If lot 4 cannot legally use the
easement, they shall either terminate that portion of the easement or otherwise
place a barrier fence, m * m urn of 4 feet high, along the property boundaries of
lot 4 within the easement to prohibit use of the easement to access the eastern
portion of lot 4. (Findings of Fact Section A)
13. The following requirements shall be met per the Kalispell Fire Department and
so certified in writing by the Fire Department: (Kalispell Subdivision
Regulations, Section 3.20).
a. Water mains designed to provide minimum fire flows shall be installed per
City specifications at approved locations. Mlm*mum fire flours shall be in
accordance with International Fire Code (2003) Appendix B.
b. Fire hydrants shall be provided per City specifications at locations approved
by this department, prior to combustible construction.
c. Fire Department access shall be provided in accordance with International
Fire Code (2003) Chapter 5.
d. It shall be noted on the face of the plat that hazardous weed abatement shall
be provided in accordance with City of Kalispell Ordinance 10-8.
e. Street naming shall be approved by the fire department.
f. Roadways between 26 feet to 32 feet wide shall be posted on one side of the
road as "no parking fire lane."
14. A letter shall be obtained from the Kalispell Parks and Recreation Director
approving a landscape plan for the placement of trees and landscaping
materials within the landscape boulevards of the streets serving the
subdivision. The approved landscape plan shall be implemented or a cash in
16
lieu payment for installation of the street trees and groundcover provided to the
Kalispell Parrs and Recreation Department. (Kalispell Subdivision Regulations,
Section 3.11)
15. A bike/pedestrian right-of-way, 15 -feet wide, shall be shown on the final plat in
the area of lots 20 and 21 and within the park area.
a. A bike/ pedestrian path shall be constructed from the edge of the
sidewalks along the internal subdivision road and extend west to the
wrestern boundary of the subdivision and are ultimately intended to
connect to the bike path adjacent to the Highway 93 bypass.
b. The bike/pedestrian path shall be a minimum width of 10 feet (asphalt)
or 8-feet (concrete).
C. The bike/pedestrian path shall be included in the infrastructure plans
reviewed by the Public Works Department. (Findings of Fact Section H
and Kalispell Subdivision Regulations Section 3.07.D)
16. The parkland dedication requirements shall be met by a combination of parkland
dedication and payment of cash in lieu of parkland equal to 0.71 acres of land.
The parkland shall be a mu* u' rnum of 0.198 acres (8,624 square feet) in the area
shown on the preliminary plat. The remain* m' g 0.512 acres shall be in the form
of improvements to the subdivision park such as an irrigation system, grass
seeding and tot lot play equipment with any remaining money put into
improvements at existing parks in the area. The ultimate improvement design
of the park would be reviewed and approved by the Parks and Recreation
Department. The 0.512 acres of cash in lieu payment shall be based on the fair
market value of undivided, unimproved land.
Note: The bike/pedestrian path will not count towards the overall parr
improvements due to the fact that a bike/pedestrian path is needed in this area
of the subdivision to break up the excessively long block length. (Kalispell
Subdivision Regulations, Section 3.19 and Findings of Fact Sections D and H).
17. The road within the subdivision shall be named and signed in accordance with
the policies of the Kalispell Public works Department and the Uniform Traffic
Control Devices Manual and be subject to review and approval of the Kalispell
Fire Department. A letter shall be obtained from the Kalispell Public works
.Department stating the naming and addressing on the final plat have been
reviewed and approved. (Kalispell Subdivision. Regulations, Section 3.09)
18. All existing and proposed easements shall be indicated on the face of the final
plat. Utility easements for City water and sewer shall be provided to allow for the
logical extension of utilities from this subdivision to adjoining proper -des. A letter
from. the Kalispell Public works Department shall be obtained stating that the
required easements are being shown on the final plat. (Kalispell Subdivision
Regulations, Section 3.18)
19. Prior to filing the final plat a letter from the US Postal Service shall be included
17
stating the Service has reviewed and approved the design and location of the
mail delivery site. The mail delivery site shall be installed or bonded for prior to
final plat. In addition, the mail delivery site and improvements shall also be
included in the preliminary and final engineering plans to be reviewed by the
Public Works Department. The mail delivery site shall not impact a sideway or
proposed boulevard area. (Kalispell Subdivision Regulations, Section 3.22)
20. Street lighting shall be located within the subdivision and shall have a full
cutoff lens so that it does not intrude unnecessarily onto adjoining properties.
(Kalispell Subdivision Regulations Section 3.09(L))
21. The following statement shall appear on the final plat: "The undersigned hereby
grants unto each and every person, firm or corporation, whether public or private,
providing or offering to provide telephone, telegraph, electric power, gas, cable
television, water or sewer service to the public, the right to the joint use of an
easement for the construction, maintenance, repair, and removal of their lines
and other facilities, in, over, under, and across each area designated on this plat
as "Utility Easement" to have and to hold forever."
Developer's Signature
(Kalispell Subdivision Regulations, Section. 3.18(E))
22. A homeowners association for the subdivision shall be created that includes a
provision for the maintenance of the bike paths, stormwater facilities, parkland,
noise mitigation (i.e. sound wall or earth berm) and the open space areas within
the subdivision. The maintenance provisions in the homeowners association
shall include mowing or trimming the grasses within the common area to
reduce the fire hazard and spread of noxious weeds. (Findings of Fact Sections
A, C, D and H)
23. The following note shall be placed on the final plat: "Property owner(s) are
responsible for the boulevard strip for the length of their property boundaries.
Responsibilities include watering and mowing of the grass within the boulevard.
Removal of grass or trees within the boulevard is prohibited unless approved by
the Kalispell Department of Parks and Recreation.."
24. The following note shall be placed on the final plat: "Property owner(s) shall
waive their right to protest the creation of a special improvement district for
road upgrades in the area to City standards which are impacted by this
subdivision." (Findings of Fact Section D)
25. Lot 5 shall be reconfigured to be brought into compliance with section 3. o6.G of
the subdivision regulations. (Kalispell Subdivision Regulations, Section 3.06(G)
and Findings of Fact Section. H)
26. That a minimum of two-thirds of the necessary infrastructure for this
subdivision shall be completed prior to final plat approval. (Findings of Fact
Section A)
On going conditions:
UK
27. All utilities shall be installed underground. (Kalispell Subdivision Regulations,
Section 3.17)
28. All areas disturbed during development shall be re -vegetated with a weed -free
mix immediately after development.
19
City of Kalispell
Planning Department
17 - 2nd Street East, Suite 211, Kalispell, Montana 59901
Telephone: (406) 751-1850
Fax: (406) 751-1858
MAJOR SUBD]WISION PRELIMINARY PLAT APPLICATION
FEE SCHEDULE: FEE ATTACHED 3480
Major Subdivision (6 or more Tots)
$750 + $105/lot
Mobile Home Parks 8s Campgrounds (6 or more spaces)
$750 + $105/space
Amended Preliminary Plat
Amendment to Conditions Only
$350 base fee
Re -configured Proposed Lots
Base fee + $40/lot
Add Additional Lots or Sublots
Base fee + $105/lot
Subdivision Variance
$100 (per variance)
Commercial and Industrial Subdivision
$950 + $125/lot
SUBDIVISION NAME: Ashley Heiahts
owxEMs) of RECORD.0
Name Ashle Hei is LLC Phone 2 57 -1 C82
Mailing Address 3300 ILwy 2 west
City _Kalispell State Montana Zip9901
TECIiNICAL/PROFESSIONAL PARTICIPANTS (Surveyor/Designer/Engineer, etc):
Name & Address- Sands Survodng 2 villa e LogKalil ell Montana 59901
Name & Address 48 North En eerie
Name & Address
LEGAL DESCRIPTION OF PROPERTY:
Property Address 1204 Sunn side Drive
Assessor's Tract No(s)
10
Lot No(s)
Gov't Lot 1
1/4 Sec Section 19 Township 28N Range 21 W
GENERAL DESCRIPTION OF SUBI]MSION:
Number of Lots or Rental Spaces 26 'Total Acreage in Subdivision 8.515
Total Acreage in Lots 6.491- Minimum Size of Lots or Spaces 9.600 sf
Total Acreage in Streets or Roads 1.826 Maximum Size of Lots or Spaces _ 17,886 sf
Total Acreage in Parks, open Spaces and/or Common Areas 0.198
1
PROPOSED USE(S) AND NUMBER OF ASSOCIATED LOTS/SPACES:
Single Family 26 Townhouse Mobile Home Parr
Duplex Apartment Recreational Vehicle Park
Commercial Industrial Planned Unit Development
Condominium Multi --Family Other
APPLICABLE ZONING DESIGNATION 8& DISTRICT R- 2
ESTIMATE OF MARKET VALUE BEFORE IMPROVEMENTS $50,000 ner acre
IMPROVEMENTS TO BE PROVIDED:
Roads: Gravel Paved x Curb Gutter . x Sidewalks Alleys Other
Water System: Individual
Multiple User Neighborhood Public _ _ x _Other
Server System: Individual
Multiple User Neighborhood Public x Other
Other Utilities: Cable TV
xTelephone x Electric x Gas x Other
Sold Waste: Home Pick Up
xCentral Storage Contract Hauler Owner Haul
Mail Delivery: Central ^ x
Individual school District: _ 5
Fire Protection: Hydrants
xTanker Recharge Fire District:
Drainage System: -Drainage to be designed and installed according -to DEQ regulations
PROPOSED EROSION/ SEDIMENTATION CONTROL: Prior to construction a
SWIP will be submitted to the State of Montana and Public works for their
review. Mitijzation outlined in the SNIP will be implemented.
VARIANCES: ARE ANY VARL4ACES REQUESTED? no (yes/no) If yes,
please complete the information below:
SECTION OF REGULATIONS CREATING ELARDSHIP:
E"LAIN THE HAT211S.HIP THAT WOULD BE CREATED WITH STRICT COMPLIANCE
WITH REGULATIONS
PROPOSED ALTERNATIVE(S) TO STRICT COMPLIANCES WITH ABOVE
REGULATIONS:
PLEASE ANSWER THE FOLLOWING QUESTIONS IN THE SPACES PROVIDED
BELOW:
N
1. will the granting of the variance be detrimental to the public health, safety or
general welfare or injurious to other adj om' m* g properties?
2. will the variance cause a substantial increase in public costs?
3. will the variance affect, in any manner, the provisions of any adopted zoning
regulations, Master Plan or Growth Policy?
4. Are there special circumstances related to the physical characteristics of the site
(topography, shape, etc.) that create the hardship?
5. what other conditions are unique to this property that create the need for a
variance?
3
PLICATION CONTENTS: Al
The subdivider shall submit a complete application addressing items below to the
Kalispell Planning Department at least thirty five (35) days prior to the date of the
Planning Board meeting at which it will be beard.
l . Preliminary plat application.
2. 10 copies of the preliminary plat.
3. One reproducible set of supplemental information. (See Appendix A of
Subdivision Regulations for the city where the subdivision is proposed.)
4. One reduced copy of the preliminary plat not to exceed 11" x 17" in size.
5. Application fee.
6. Adjoining Property Owners List (see example below and attached notice
from County Plat boom}:
Assessor# Sec -Tram -Rai LotlTract No Pro a Owner & Maffing Address
I hereby certify under penalty of perjury and the laws of the State of Montana that the
information submitted herein, on all other submitted forms, documents, plans or any
other information submitted as a part of this application., to be true, complete, and
accurate to the best of my knowledge. Should any information or representation
submitted in connection with this application be untrue, I understand that any
approval based thereon may be rescinded, and other appropriate action taken. The
signing of this application signifies approval for the Kalispell Planning staff to be
present on the property for routine monitoring and inspection during the approval and
development process.
......................
Applicant)
(Date)
MM Montana Department of Transportation Jim Lvnch, Director
servirmffyou wimPrfde 2701 Prospect Avenue Bricn Scnwei�zer. Governor
FQ 3ox 20 1001
Keieno MT .579620- i 001
February 22, 2007 �7 9 5 T
�
10
�A
1 E
Sean Conrad
Senior Planner28 07
City of Kalispell
...
17-2nd St Fast, Suite 211 KR
#�PE'LFlo-ANNING + � -
Kalispell, NTT 59901
Subject: Ashley Heights Subdivision Ashlev Park Phase 9 and willow Creek
'S11hrii�inn
Dear Sean,
r am in receipt of three subdivision proposals adjacent to the proposed Kalispell Bypass. The willow
Creek Subdivision I comm ented on in October of last year. The comments in my last letter are still
relevant, and I will expand on some of my explanations here, and provide you with additional
information you may find useful.
You have now indicated that the developer is seeking the consultation of an acoustical consultant
because your office recommended the residential structures be at or within the 60 dBA contour line,
which was created along with other noise contours, when MDT analyzed noise along the Kalispell
Bypass as part of the environmental process. I agree that seeking the assistance of a noise specialist is
very beneficial. There are many building methods and materials that can be incorporated into new
construction to mitigate interior noise levels. If exterior noise levels are a concern, then mitigation in
the form of berms, barriers or setback distances is needed to be protective. Berms and barriers must be
designed to be effective, and vegetation alone cannot reduce noise levels unless it is sufficiently dense
and thick. The following quote is from a FHwA publication found on their website
(httT):/ www. fliwa. dot. c)rovlenvironnientlhtnoise.htrn):
Vegetation, if high enough, wide enough, and dense enough (cannot be seen through), can
decrease highway traffic noise. A ?00foot width of dense vegetation can reduce noise by 10
decibels, which cuts the loudness o� f `tra c noise in half. It is often impractical to plant enough
vegetation along a road to achieve such reductions; however, if dense vegetation already
exists, it could be saved. If it does not exist, roadside vegetation can be planted to create
psychological relief, zf not an actual lessening of traffic noise levels.
Much of what I said in my previous letter to you applies to these new proposed subdivisions. Perhaps
a good way to begin discussion of the proposals and any potential noise impacts that would result from
the bypass or other highways (such as Foys Lake Road); is to summarize MDT's policy on noise and
noise abatement.
MDT is required, through ? 3 CFI. 772 to conduct noise analyses for any federal -aid projects that
involve the addition of through travel lanes, or when the alignment of an existing facility is
significantly changed, or when anew road is built in anew location (like the Kalispell Bypass). If
noise impacts are predicted to occur, or are already occurring along the project corridor, then MDT is
required to evaluate noise abatement measures, which could include the construction of noise barriers
or berms, or shifting the ali anment to reduce or eliminate the impacts. Before such abatement
�nvironrnental .Serv+ces Bureau _ _ - =ngin rin Divisi ,n
Phone: (4061 4.44-7: tea" ice'_ (800) 335-7``02
measures can be incorporated into the project, they must be found to be reasonable and feasible. These
terms are defined in MDT's noise policy, but to summarize, feasibility pertains to the constructability
of the noise abatement. For example, can a noise barrier be built that will actually reduce noise
significantly, not be too tall, not cause a safety problem, or does not have some other "fatal flaw?"
Reasonableness is more subjective and involves a number of factors such as the cost and effectiveness
of the noise abatement, and number of residences benefited; whether the developments pre -date the
existing highway or not; what the opinions of the affected residents are; comparison of existing and
future noise levels; and ghat local governments are doing to ensure new noise impacts are not created
for developments adjacent to MDT' s roadways. NOT carefully weighs all these factors before
deciding on noise abatement. DTT "s noise policy is currently being re -written and will contain a
provision stating that local jurisdictions who are not incorporating noise compatible planning or noise
mitigated development requirements into their policies and regulations, may not qualify for- federal -aid
noise abatement on future EMT pro fects.
For the Kalispell Bypass, MDT concluded that there are two locations where noise abatement would
satisfy much of the reasonableness and feasibility criteria for barriers, outside of seeing public input.
Those locations include the developments south of Sunnyside and north of Three Mile Drive that were
built or platted as of August 9, 2005. Developments that are platted after that August date, such as the
ones you have forwarded to my office, would not be eligible for federal -aid noise abatement, such as
barriers, until such a time that the Kalispell Bypass would become a sixty -lane facilxtyi
I will draw your attention to the facts I presented in my last Leiter, pertaining to the line of sight and the
length a barrier must extend beyond homes to prevent wrap -around noise. The figures below illustrate
these concepts. The height a barrier must be to break the line of sight is dependent upon where the
noise barrier is located (edge of pavement versus property line), and the elevation difference between
the homes and the roadway.
The figure below illustrates the length a barrier must be to protect the end -of -row homes. For the
barrier proposed in the area south of Sunnyside Drive, the barrier length would have to extend a
distance of "4D" beyond the last residence that was modeled. It is likely then, that MDT's proposed
barrier will extend into the new proposed subdivisions (Ashley Heights and Ashley Park Phase 9), but
would not effectively block noise to those homes.
Roadway
Noise
71
N OLse-S eai6i-cave. Receivevt
MDT may entertain in the future, providing an encroachment pennit for a developer -built barrier, but
we currently have no policy in place to allow that. If there is a case that a developer proposes a barrier
to be contiguous with one on MDT right-of-way, it would have to match the existing barrier in
aesthetics and all specifications. An option to the " 4D" rule for barrier length, is to wrap the harrier
around the last receivers. This works fairly well, when properly designed, to protect the last homes on
a block when a continuous straight barrier cannot be constructed because of cross streets.
The City of Kalispell may consider approving developer --built barriers on the developed property if
recommended setbacks are not achievable. I recommend you refer to the report, "Traffic Noise m
Montana: Community Awareness and Recommendations for a Rural ,State" by Reiter et al, for some
examples of noise -mitigated development (Section 6.2 of that report) .
When looking at noise levels that are protective of human health, you can refer to the Traffic Noise
report I refer to above. A variety of noise levels are used around the country for establishing setbacks
that will protect the quality of life for residents along busy roadways. One thing to be conscious of,
and I mentioned this in the last letter, is the noise descriptor used. The Leq noise descriptor used on
the contour maps for the Kalispell Bypass is an average sound level recorded over a given amount of
time, for example, hourly. Highway noise impact studies are conducted for the worst --case hourly
noise level. So an Leq of 60 dBA would represent the worst hourly noise level we would expect on a
roadway at a certain distance. This works well if the worst case noise levels are during daylight hours.
However, on a roadway where trues are prevalent, such as a truck bypass, an Leq of 60 dBA may not
be protective of sleep. often, truck volumes increase in evening hours and can easily dominate the
noise mix on a highway. Another noise descriptor is used to represent 24 hour noise levels, the Ldn.
This descriptor takes nighttime noise into consideration, and is the descriptor used for airport and rail
noise. Ldn is the A --weighted equivalent sound level for a 24 hour period with an additional 10 dB
unposed on the equivalent sound levels for night time hours of 10 p.m.. to 7 am. If MDT constructs
noise contours in the future, we hope to use the Ldn descriptor to better represent nighttime and
daytime conditions, which should assist you in your planning efforts.
I hope this letter has clarified some of your questions. Please call me if you wish to discuss any of this
information further.
Sincerely,
Cora G. I4elm, P.G.
Highway Traffic Noise Specialist
406-444-7659/cohelm cc.mt.aov
copy: Dwane Dailey, MDT Missoula District Administrator
Preliminary Plat of:
Ashley Heights
18 (sov't Lot 19 See.19, T.28N., R.21W., P.M.,M.,
Flathead County, MonfanA
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_ Traffic Impact Study
Services Ashley Heights Subdivision
Residential Development
Kalispell, Montana
Prepared For:
Hubert Turner
3300 Hwy 2 West
Kalispell, MT 59901
May, 2007
Ashley Heights Subdivision Kalispell, Montana
Table of Contents
A.
Executive Summary.................................................................................... I
B.
Project Description.....................................................................................
I
C .
Existing Conditions ..................................................................................... I
Traffic Data Collection...........................................................................3
Levelof service.....................................................................................3
a.
Proposed Development.............................................................................. 4
E .
Trip Generation and Assignment ................................................................
5
F.
Trip Distribution.............................................................
. ............................ 8
G.
Traffic impacts Outside of the Development...............................................8
H .
Percent Entering Vehicles..........................................................................
9
.
Impact Summary & Recommendations....................................................1 o
List of Tables
Table 1 — 2006 Existing Traffic Level of Service Summary .....................................4
Table 2 —Trip Generation Rates.............................................................................6
Table 3 —Level of Service Summary With the Ashley Heights Subdivision ............ 9
List of Figures
Figure1— Vicinity Map ............................ ................................... ............................. 1
Figure 2 —Trip Distribution Without U.S. Highway 93 Bypass ................................. 7
Figure 3 —Trip Distribution With U.S. Highway 93 Bypass ...................................... 7
Ashley Heights Subdivision Kalispell, Montana
Traffic Impact Study
Ashley Heights Subdivision
Kalispell, Montana
A. EXECUTIVE SUMMARY
The Ashley Heights Subdivision will have little effect on the traffic conditions around the proposed
development site. Even if constructed at maximum density (41 units), intersection operations will
remain within acceptable limits and traffic volumes will not exceed the limits of the functional
classifications of any roadways.. when the Highway 93 bypass is constructed, Sunnyside Drive
wi11 effectively become a collector route and the functional classification of this roadway should be
changed to match this operating condition. This change in classification will be necessary regardless
of the construction of the Ashley Heights development. No intersection improvements or
modification will be required as part of this development.
B. Project Description
This document studies the possible effect on the surrounding road system from a proposed 8.5-acre
residential development located along Sunnyside Drive in Kalispell, Montana. The document also
identifies any traffic mitigation efforts that the development may require. The project site is located
south of Sunnyside Drive, outside the Kalispell City limits, and would be developed to include up to
41 residential units. See Figure 1 for a location map of the proposed development.
C. EXISTING CONDITIONS
The existing transportation system that would serve this site is a mixture of local, collector, and
minor arterial roadways. These roadways include.
Sunnyside Drive is an east --west local street located directly north of the proposed project site
and will provide direct access for traffic entering and exiting the subdivision. This roadway has
a posted 25 mph speed limit and serves both area residents and other commuters. Sunnyside
Drive is currently functioning as a bypass between the southern portion of Kalispell and Foys
Lake Road. Commuters can use Denver Avenue, Sunnyside Drive, Foys Lake Road, and
Meridian Road to bypass Highway 93 through downtown Kalispell. Sunnyside Drive currently
carries 2,100 VPD west of Denver Avenue.
51h Avenue South is a north -south, two-lane roadway classified as a collector roadway soLIth of
11 th Street west Street and a minor arterial route north of 11'I, Street west. The roadway has a
2.5 mph speed limit and currently carries 1,600 VPD north of Sunnyside Drive.
Abelin. Traffic Services I May 2007
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Abcii,ql Tra c ffScr-cic,s
i !V1 a y (10
Ashley Hei&hts Subdivision Kalispell, Montana
Traffic Data Collection
ATS obtained turning movement count data collected for the 2007 Kalispell Transportation Plan
from Robert Peccia & Associates. This data was collected in the summer of 2006_ ATS also
collected traffic data. along Sunnyside give and 5th Avenue west in May 2007 in support of this
project. This data is included in Appendix A of this report. The intersections analyzed for this
project include:
• Foys Lake Load & Valley view Road;
S unnyside give & Denver Avenue;
11 ffi Street west & 7th Avenue west;
• l VhStreet west & 51h Avenue west;
I I"' Street west & I" Avenue west; and
11 to Street west & Main Street (U.S. Highway 93).
Level of Service
Using the data co lected for this project, ATS conducted a Level of Service (LOS) analysis at the
intersections within the area of impact. This evaluation was conducted in accordance with the
procedures outlined in the Transportation Research Board's Hxgliway Capacity Manual (HC" -
Special Report 1.2.09 and the Highway Capacity Software (HCS) version 5.2. Intersections are
graded from A to F representing the average delay that a vehicle entering an intersection can
expect. Typically, a LOS of C or better is considered acceptable for peak -hour conditions.
Table 1 shows the existing Zoof LOS for the AM and PM peak hours without the traffic from
the Ashley Heights Subdivision. The LOS calculations are included in Appendix C. The table
indicates that all of the critical intersections in this area are currently functioning adequately. It
is likely that the intersection of 1 I th Street and Main Street will soon fall to LOS D if no
mitigation measures are taken. However, this issue will be resolved when the Highway 93
bypass is constructed and traffic congestion along U.S. Highway 93 should improve
considerably.
Abel z n `fir qffic Services 3 May ? 00/
Ashley Heights Subdivision Kalispell, Montana
Tahlp- I - 2006 Existina Traffic Level of Service (LOS) Summary
AM Peak Hour
INTERSECTION Del a Los vac
PM Peak Hour
Dela
LOS vlo
Fo s Lake Rd. & Valle View
Eastbound ThrulRight na
na
na
na
na
na
Westbound Left 8.5
A
0.06
7.7
A
0.06
Northbound Left/Right 13.9
B
o.5
1.1
B
0. 5
Sunn side Dr. & Denver St
ThrulRight na
na
na
na
na
na
Westbound Left 7.4
LEEEastbound
A
0.01
7.5
A
0.05
Northbound Left/Right 9.5 A 0.15
I I"' Street & 7t' Avenue
10.3 B o.13
Eastbound Left 7.5
A
0.00
7.6
A
0.00
Westbound Left 7.5
A
0.01
7.4
A
0.03
Northbound LeftfThru/Right 10.3
B
0.07
10.6
B
0.05
Southbound LeftlTh rulRig ht 11.3 B 0.08
11'n Street & 5h Avenue
11. 8 B 0.14
Eastbound Left 7.6
A
0.01
8.0
A
0.01
Westbound Left 7.6
A
0.01
7.5
A
0.02
Northbound Left/Thru/Right 11.7
B
0.18
11.2
B
0.11
Southbound LeftlThru/Right 14.1
B
0.18
23.3
C
0.56
II'h Street & I' Avenue
Eastbound Left/Thru/Right 12.5
B
na
17.9
C
na
Westbound LeftfThru/Right 10.0
B
na
13.4
B
na
Northbound Left/Thru/Right 13.6
B
na
21.5
C
na
Southbound LeftiThru/Right 11.0
B
na
17.7
C
na
# I th Street & Main Street 29.2
C
33.8
C
Eastbound LeftfTh rulRig ht 21.3
C
0.50
24.4
C
0.63
Westbound Left/Thru/Right 18.5
B
0.32
24.2
C
0.55
Northbound Left 18.4
B
0.38
35.7
D
0.55
Northbound ThrulRight 41.7
D
0.96
24.5
C
0.80
Southbound Left 11.9
B
0.05
12.1
B
0.08
Southbound ThrulRight 20.7
C
0.71
1 48.4
D
0.99
D. PROPOSED DEVELOPMENT
The development currently under consideration for this site includes 8.5 acres of land south of
Sunnyside Drive 0.2 miles west of Denver Avenue which would be developed into a residential
subdivision. The project site would have a secondary access to the east along Bismark Street.
Depending on the final zoning of the property, the development would have between 26 and 41
residential units.
1-I bei7 n 'Traffic Services 4 May ? 00/
AshI2 Hei fits Subdivision Kalispell, ell, Montana
The alignment of the U.S. Highway 93 bypass is currently planned to run along the western side of
the proposed development site. The bypass would have full movement grade separated interchanges
at both U.S. Highway 2 and Foys Lake Road. The bypass will also include an off -ramp for
northbound traffic at Sunnyside Drive, but not for southbound traffic and there would be no on -
ramps at Sunnyside Drive. This portion of the bypass is currently scheduled for construction by
MDT in 5-7 years, but is dependant on funding availability.
ft should be noted that the construction of a bypass off ramp onto Sunnyside Drive will effectively
turn Sunnyside Drive in a collector route. It is not typical to have accesses onto or from major
access --controlled highways onto local neighborhood streets. Sunnyside Drive should be
redesignated as a collector or minor arterial route with the construction of the northbound off ramp
onto Sunnyside Drive.
A.TS obtained traffic volume information for Sunnyside Drive from the traffic model produced by
the Montana Department of Transportation for the Kalispell Transportation Plan and analyzed the
data for this report. when analyzing model results, it is important to remember that computer traffic
models are not perfect. while traffic modeling can produce meaningful results, it is still a computer -
generated representation of a human activity and can sometimes compute results that observers
would consider illogical. Traffic models are based on predicted traffic flow patterns and travel
times. If two similar adjacent routes are modeled and one of the routes has a computed travel time
one second faster than the other route, 100% of the traffic will use the faster route. This obviously
would not happen in the real world. If conditions like this are observed, portions of the model must
be altered to reduce this effect.
Traffic models are calibrated to provide accurate traffic volumes on arterial and collector roadways.
Traffic volumes on low -volume local streets can be off considerably. One important example of this
is Sunnyside Drive. The calibrated traffic model for this road predicts existing traffic volume 60%
to 100% higher than the actual existing traffic volumes. This lower level of calibration on these
streets carries through to future traffic volume predictions. For these reasons, great care must be
taken when analyzing model results.
These traffic modeling results indicate that if no bypass is constructed in this area, then traffic
volumes along Sunnyside Drive will increase by only 10% by 2030. If the full bypass were
constructed, there the traffic model predicts that traffic volumes along Sunnyside Drive will increase
by 35% by 2030.
E. TRIP GENERATION AND ASSIGNMENT
ATS performed a trip generation analysis to determine anticipated future traffic volumes from the
proposed development. ATS used the trip generation rates contained in Trip Generation (Institute of
,Transportation .engineers, Seventh Edition). These rates are the national standard and are based on
Abeiin Ti-aff`e Services 5 fay ?007
Ashley Heights Subdivision Kalispell, Montana
the most current information available to planners. A vehicle "trip" is defined as any trip that either
begins or ends at the development site. Judging from field observations and the typical nature of
residential developments, ATS determined that the critical traffic impacts on the intersections and
roadways would occur during the weekday morning and evening peak hours. This analysis provides
data for each of the three separate possible development density scenarios. At full build -out the
proposed development would produce between 20 and 31 AM peak -hour trips, 26 and 41 PM peak -
hour trips, and 249 to 392 daily trips. The trip generation rates and totals are shown in Table 2.
Table 2 - Trip Generation Rates
AM Peak
Total AM
PM Peak
Total PM
Hour Trip
Peak
Hour Trip
Peak
Weekday
Total
Ends per
Hour Trip
Ends per
Hour Trip
Trip Ends
Weekday
Land Use
Units
Unit
Ends
Unit
Ends
per Unit
Trip Ends
Fes --Single Family
25
0.75
20
1.01
26
9.57
249
Residential
R3-Single Family
35
0.75
25
1.01
35
9.57
335
Residential
LR4-�Singie Family
4.1
0.75
3'1
1.01
41
9.57
392
esidential
F. TRIP DISTRIBUTION
The traffic distribution and assignment for the proposed subdivision was based upon the existing
ADT volumes along the adjacent roadways and the peak -hour turning volumes. Prior to the
construction of the U.S. Highway 93 bypass, traffic is expected to distribute 40% to/from the west
on Sunnyside Drive to Foys Labe Road, 50% to/from the east on Sunnyside Drive to I I th Street
West, and 10% to/from the south on Denver Avenue. Auer the Highway 93 bypass is constructed
the trip distribution patterns will change substantially. It is estimated that 10% of the traffic will still
distribute to/from the south on Denver Avenue, but the only other exit from the site will be along
Sunnyside Drive to I 1 'hAvenue which will need to accommodate 90% of the exiting Traffic. It is
likely that 10% of the traffic will be able to enter the site from the south from the bypass exit ramp,
but the remaining 80% of traffic will need to approach from the east on Sunnyside Drive. The trip
distribution for these two scenarios is shown graphically in Figure 2 & 3.
Abelln Traffic Services May 2007
Ashley Heights Subdivision Kalispell, Montana
40%
0%
Figure 2 -Trip Distributions Without U.S. Highway 93 Bypass
50%
3 Sunnyside Drive
C�
10%
Figure 3 -Trip Distributions With the U.S. Highway 93 Bypass
C
z..
G
10%
Sunnyside Drive
90%
Abeiin Traffic Services 7 May 2007
AshleE Het hts Subdivision Kalispell, Montana
G. TRAFFIC IMPACTS OUTSIDE OF THE DEVELOPMENT
Using the trip generation and trip distribution numbers, ATS determined the future Level of Service
(LOS) for the intersections within the area of impact. This analysis assumed full build -out of the
property at maximum density (41 units). The anticipated L OS at these intersections for full build -
out conditions with the proposed development is shown in Table 3. These calculations are based on
the projected model volumes included in Appendix B of this report.
Table 3 - Level of Service Summary
With The. Ashlev Heiahts Subdivision
AM Peak Hour PM Peak Hour
INTERSECTION De1a LO_S__T vic DeIaX LOS V/C
Fos Lame Rd. & Valley View
Eastbound ThrulRight na na na na na na
Westbound Left 8.5 A 0.06 7.7 A 0.07
Northbound Left/Right 14.3 B 0.28 12.2 B 0.16
Sunn side Dr. & Denver St.
Eastbound ThrulRight
na
na
na
na
na
na
Westbound Left
7.4
A
0.01
7.6
A
0.05
Northbound Left/Right
9.6
A
0.16
10.6
B
0.14
11 to Street & 7 h Avenue
Eastbound Left
7.5
A
0.00
7.6
A
0.00
Westbound Left
7.5
A
0.01
7.4
A
0.03
Northbound LeftlThrulRight
10.4
B
0.08
10.6
B
0.05
Southbound LeftlThru/Right
11.4
B
0.08
11.9
B
0.15
11 th Street & 5" Avenue
Eastbound Left
7.6
A
0.01
8.0
A
0.01
Westbound Left
7.6
A
0.01
7.5
A
0.02
Northbound LeftlThrufRight
11.8
B
0.20
11.2
B
0.11
Southbound Left/Thru/Right
14.5
B
0.18
23.3
C
0.56
11Tm Street & 1"' Avenue
Eastbound LeftlTh ru/Right
12.7
B
na
18.3
C
na
Westbound Left[Thru/Right
10.1
B
na
13.6
B
na
Northbound Left[ThrulRight
13.8
B
na
22.1
C
na
Southbound LeftlThru/Right
11.1
B
na
18..1
C
na
I " Street & Main Street
29.2
C
34.0
C
Eastbound LeftlThru/Right
21.5
C
0.51
24.5
C
0.63
Westbound LeftfThru/Right
18.6
B
0.32
24.4
C
o.57
Northbound Left
18.4
B
0.38
35.7
D
0.55
Northbound ThrulRight
41.7
D
0.96
24.6
C
0.80
Southbound Left
11.9
B
0.05
12.1
B
o.08
Southbound ThrulRight
20.7
C
0.71
48.6
D
0.99
,��belir� Traffic Se vIces 8 May 2007
AshI2 Hei h is Subdivision Kalispell, Montana
Table 3 indicates that all of the intersections within this area will continue to operate at acceptable
levels of service thought the construction of the Ashley Heights Subdivision. No intersection
mitigation measures would be required as part of this project.
The proposed development will increase traffic volumes along area roadways. Traffic volumes
along Sunnyside Drive will increase by 1.00 VPD both east and west of the development site.
Traffic volumes on 5th Avenue west will also increase by approximately Zoo VPD. However, total
traffic volumes along Sunnyside Drive will not exceed 3,000 VPD and traffic volumes along 5"h
Avenue west will not exceed 21,000 VPD. These volumes are within the limits of each of these
roadways based on their existing functional classifications. As a general rule traffic volumes on
local streets (Sunnyside Drive) should. not exceed 3,000 and traffic volumes on collector routes (5ffi
Avenue west) should not exceed 10,000 VPD. The traffic volume increase along Bismark Street
would be minimal.
When the Highway 93 bypass is ultimately constructed, the traffic patterns in this area will likely
change substantially. The total traffic on Sunnyside Drive will likely increase due to the direct
connection with the bypass (as described in section D) and Sunnyside Drive will effectively become
a collector route through this area. The traffic volumes on area roadways will remain at half of the
recommended limits for collector routes (3,500-4,500 VPD). It is possible that the construction of
the bypass will force more traffic onto 7 h Avenue west, however this roadway is also a designated
collector route and traffic volumes along the roadway should remain relatively law (less than 2,000)
VPD which is well within the limit of even a lower classification local street.
H, PERCENT ENTERING VEHICLES
ATS calculated the percent of the entering volume that would be directly attributed to the proposed
development at downstream intersections at full build -out. The percent increase in entering volumes
gives a goad indication of how a development will affect a roadway or intersection. The study
indicates that the development will increase the traffic volumes at area intersections between 1 % and
10% under the highest density development scenario. The increase in traffic volumes at each
intersection is shown in Table 4.
Table 4 - Percent Traffic Volume Increases
Intersection
Percent Volume
Increase
Fo
s Lake Road & Valley View Read
3%
Sunnyside Drive & Denver Avenue
10%
11
Street West & Avenue West
1 %
11
Street West & 5Avenue West
3%
11
Street West & 1$ Aven ue West
1 %
11th
Street West & Main Street
0.3%
Abciin Traffic Services 9 May ? 007
Ashley Heights Subdivision Kalispell, Montana
1, IMPACT SUMMARY & RECOMMENDATIONS
The Ashley Heights Subdivision will have little effect on the traffic conditions around the proposed
development site. Even if constructed at maximum density (41 units), intersection operations will
remain within acceptable limits and traffic volumes will not exceed the limits of the functional
classifications of any roadways. When the Highway 93 bypass is constructed, Sunnyside Drive
will effectively become a collector route and the functional classification of this roadway should be
changed to match this operating condition. This change in classification will be necessary regardless
of the construction of the Ashley Heights development. No intersection improvements or
modification will be required as part of this development.
A beli n Tra ffic Services 10 May ? 00
After Recording Please Return To:
Vincent G. Rieger
Law Office of Vincent G. Rieger, P.C.
4 Meridian Court
Kalispell, MT 59901
.DECLARATION
OF COVENANTS, -CONDITIONS
STRICTIONS AND EASEMENTS FOR
ASHLEY HEIGHTS
This Declaration of Covenants, Conditions, Restrictions and Easements for ASHLEY
HEIGHTS (the "Declaration") is made this day of , 2007, by
ASHLEY HEIGHTS, LLC, a Montana limited liability company (hereinafter the `Declarant").
ARTICLE I
STATEMENT AND PURPOSE AND IMPOSITION of COVENANTS
Section 1.1. Owner. The Declarant is the owner of the property in Flathead County,
Montana, more particularly described as follows (the "Property"):
ffffINSERT LEGAL DESCRIPTION]])]
Section 1.2. Purpose. The purpose of the Declarant in making this Declaration is to
create a development of single-family and town home sites known as Ashley Heights on the
Property (the `Project" or "Ashley Heights").
The Declarant further intends to ensure the attractiveness of the Property, including the
residences and other improvements constructed on it; to prevent any future impairment of the
Property and to guard against the construction on the Property of improvements of improper or
unsuitable materials or with improper quality or methods of construction; to protect and enhance
the values and amenities of the Property; to provide for the operations administration, use and
maintenance of the common areas within the Property; to preserve, protect and enhance the
values and amenities of the Property; and to promote the health, safety, and welfare of the
owners of the Property.
Section 1.3. .imposition of Covenants. To accomplish the purposes indicated above, the
Declarant hereby declares that from the date of recording this Declaration forward, the Property
will constitute a planned community known as Ashley Heights, and will be held, sold, and
conveyed subject to the following covenants, conditions, restrictions and easements (collectively,
these "Covenants"). These Covenants will run with the land and will be binding upon all
persons or entities having any right, title, or interest in all or any part of the Property (including
Declarant) and their heirs, successors, and assigns, and their tenants, employees, guests, and
invites. These Covenants will inure to the benefit of each owner of the Property.
ARTICLE II
DEFINITIONS
The following terms, as used in this Declaration, are defined as follows:
Section 2.1. "Annual assessment IN means the Assessment levied annually pursuant to
Section 9.3.
Section 2.2. "architectural Review committee IN
or "Committee " means the committee
formed pursuant to Article VI to maintain the quality and architectural harmony of
improvements in Ashley Heights.
Section 2.3. "articles IN
or "articles of Incorporation " means the Articles of
Incorporation of the Ashley Heights Homeowners' Association, Inc., a Montana non-profit
corporation, which have been filed with the Montana Secretary of State, as such articles may be
amended from time to time.
Section 2.4. "assessments " means the Annual, Special and Default Assessments levied
pursuant to Article IX to meet the estimated cash requirements of the Ashley Heights
Homeowners' Association.
Section 2.5. "'Default Assessment IN means the Assessment levied annually pursuant to
Section 9.5.
Section 2.6. "Bylaws " means the bylaws of the Ashley Heights Homeowners'
Association which establish the methods and procedures of its operation, as such bylaws may be
amended from time to time.
Section 2.7. "Ashley Heights Documents" means the basic documents creating and
governing Ashley Heights, including, but not limited to, this Declaration, the Articles of
Incorporation and Bylaws, the Design Guidelines and any other procedures, rules, regulations or
policies adopted under such documents by the Ashley Heights Homeowners' Association, all as
may be amended from time to time.
Section 2.8. "Ashley Heights Homeowners ' association IN
means the Ashley Heights
Homeowners' Association, Inc., a Montana nonprofit corporation, and any successor of that
entity by whatever name.
2
Section 2.9. "Ashley Heights Rules" means the rules and regulations adopted by the
Ashley Heights Homeowners' Association from time to time.
Section 2.10. "Common Area " means all of the areas shown as common areas or as a
park or as a bike path as depicted on the Final Plat of Ashley Heights, records of Flathead
County, Montana and any other property in which the Ashley Heights Homeowners' Association
owns an interest for the common use, benefit and enjoyment of the Members.
Section 2.11. "Common .expenses " means (1) premiums for the insurance carried by the
Ashley Heights Homeowners' Association under Article 11; (ii) all other expenses incurred by
the Ashley Heights Homeowners' Association in administering, servicing, conserving,
managing, maintaining, repairing or replacing the Common Area and any Improvements located
on it; (iii) all expenses expressly declared to be Common Expenses by the Ashley Heights
Documents; (iv) all expenses lawfully determined to be Common Expenses by the Board of
Directors; and (v) all expenses to be allocated among the owners as provided in Article IK.
Section 2.12. ".Declarant" means Ashley Heights, LLC, a Montana limited liability
company, or its successors or assigns, including any Successor Declarant.
Section 2.13. "Default Assessment" means any Assessment levied by the Ashley
Heights Homeowners' Association pursuant to Section 9.6. below.
Section 2.14. "'Design Guidelines " means the guidelines and rules published and
amended and supplemented from time to time by the Architectural Review Committee.
Section 2.15. "'Development Rights" is defined in Section 11.1.2.
Section 2.16. "Improvement(s) " means all buildings, parking areas, fences, walls,
hedges, plantings, lighting, poles, driveways, roads, ponds, trails, gates, signs, changes in any
exterior color or shape, excavation and all other site work, including, without limitation, grading,
road construction, utility improvements, removal of trees or plantings, and any new exterior
construction or exterior improvement which may not be included in the foregoing.
"Irnprovement(s)" does not include turf, shrub, or tree repair or replacement of a magnitude
which does not change exterior colors or exterior appearances. "Improvement(s)" does include
both original improvements and all later changes and improvements.
Section 2.17. "`Lot " means a parcel of land designated as a lot on any Plat of the
Property.
Section 2.18. "Maintenance Fund " means the fund created by Assessments and fees
levied pursuant to Article Ix below to provide the Ashley Heights Homeowners' Association
with the funds required to carry out its duties under this Declaration.
Section 2.19. "Member" means any person or entity holding membership in the Ashley
Heights Homeowners' Association.
Section 2.20. "Owner" means the owner of record (including Declarant, and including
the most recent contract purchaser, but excluding all contract sellers), whether one or more
persons or entities, of fee simple title to any Lot or, if the Lot is subject to one or more contracts
for deed, the owner of the purchaser's interest in the most recent contract for deed, but "Owner"
does not mean or refer to any person or entity who holds such interest merely as security for the
performance of a debt or other obligation, including a mortgage or trust indenture, unless and
until such person or entity has acquired fee simple title pursuant to foreclosure or other
proceedings.
Section 2.21. `Period of Declarant Control" means the period beginning on the date this
Declaration is first recorded in the office of the Clerk and Recorder of Flathead County,
Montana, and ending on the earlier of: (a) the date which is 10 years later, or (b) the date on
which the Declarant has sold 90% of the Lots.
Section 2.22. "Person" (whether or not in capitalized form) means a natural person, a
corporation, a partnership, a limited liability company, an association, a trust or any other entity
or combination of the foregoing.
Section 2.23. "Plat" means any survey or surveys of all or part of the Property, together
with such other diagrammatic plans and information regarding the Property as may be required
by applicable law, or as may be included in the discretion of Declarant, as each such survey may
be amended and supplemented from time to time, and all as recorded in the office of the Clerk
and Recorder for Flathead County, Montana.
Section. 2.24. "Property" means and includes the property described on section L I and
initially subjected to this Declaration, and also refers to any additional real property that may be
incorporated in the Project from time to time and made subject to these Covenants pursuant to
the provisions of this Declaration.
Section 2.25. "Special Assessment" means an Assessment levied pursuant to Section
Section 2.26. "Special Declarant .Rights" is defined as set forth in Section 11.1 below.
Section 2.27. "successor Declarant" means any party or entity to who Declarant assigns
any or all of its rights, obligations or interest as Declarant, as permitted by Section 16.7 and
evidenced by an assignment or deed of record in the office of the Clerk and Recorder of Flathead
County, Montana, designating such party as a Successor Declarant, signed by the transferor and
the transferee. Upon such recording, Declarant's rights and obligations under the Declaration
will cease and terminate to the extent provided in such document, and all such rights and
obligations shall be transferred to and assumed by the Successor Declarant to the extent provided
in such document.
ARTICLE III
EXPANSION AND PLAT
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Section 3.1. Development Rights. Declarant reserves the right to exercise all
Development Rights in connection with the Ashley Heights subdivision in accordance with
Article XI below.
Section 3.2. Declaration of Lot Boundaries. The boundaries of each Lot are delineated
on the Plat, and each Lot is identified by the number noted on the Plat.
Section 3.3. Flat. The Plat will be filed for record in the office of the Clerk and
Recorder of Flathead County, Montana. The Plat may be filed as a whole or as a series of Plats
from time to time.
ARTICLE IV
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS
Section 4.1. Membership. Every owner, by virtue of being an owner, and for so long
as he is an owner, will be a Member of the Ashley Heights Homeowners' Association.
Membership will be appurtenant to and may not be separated from ownership of any Lot. No
Owner, whether one or more persons, will have more than one membership per Lot owned, but
all of the persons owning each Lot will be entitled to rights of membership and of use and
enjoyment appurtenant to such ownership. The Declarant shall be considered an owner and
shall be a Member of the Ashley Heights Homeowners' Association with all of the same
privileges of the other owners and Members. For purposes of voting, the Declarant shall have
one vote for each Lot owned by the Declarant. For purposes of assessments, the Declarant shall
be exempt from all forms of assessments imposed pursuant to this Declaration.
Section 4.2. Transfer of Membership. An Owner may not transfer, pledge or alienate
its membership in the Ashley Heights Homeowners' Association in any way except upon the sale
or encumbrance of his Lot, and then only to the purchaser or Mortgagee of his Lot.
Section 4.3. Classes of Membership. The Ashley Heights Homeowners' Association
will have one class of voting membership, composed of all owners, including Declarant, except
that the Declarant shall have such additional rights and responsibilities as expressly provided in
this Declaration.
Section 4.4. Voting Rights. All Members will be entitled to vote on the Ashley Heights
Homeowners' Association matters on the basis of one vote for each Lot owned.
Section 4.5. Appointment of officers and Directors by Declarant. Until the expiration
of the Period of Declarant Control, Declarant will retain the exclusive powers to appoint, remove
and replace Directors and officers of the Ashley Heights Homeowners' Association.
Section 4.6. .Proof of Membership. An owner will not be entitled to notice or to vote
at any annual or special meeting of the Members unless the following requirements are first met:
4.6.1 Any person or entity, within fourteen (14) days of becoming an Owner,
will furnish to the Secretary of the Ashley Heights Homeowners' Association a photocopy of the
deed vesting that person or entity with an ownership interest. Other means of proving Lot
ownership shall be allowed at the sole discretion of the Ashley Heights Homeowners'
Association.
4.6.2 Within fourteen (14) days of becoming an Owner, the Owner or Owners
shall furnish in writing to the Secretary of the Ashley Heights Homeowners' Association one (1)
mailing address and one (1) telephone number, regardless of the number of owners, that shall be
utilized for all notices and all other Ashley Heights Homeowners' Association business.
ARTICLE Y
POWERS AND DUTIES OF ASHLEY HEIGHTS
HOMEOWNERS' ASSOCIATION
Section 5.1. Ashley Heights Homeowners' Association Management Duties. Subject to
the rights and obligations of Declarant as set forth in this Declaration, the Ashley .Heights
Homeowners' Association will be responsible for the administration and operation of Ashley
Heights. The Board of Directors will exercise for the Ashley Heights Homeowners' Association
all powers, duties and authority vested in or obligated to be taken by the Ashley Heights
Homeowners' Association and not reserved to Declarant or the other Members by this
Declaration, or by other applicable law.
Section 5.2. Common Area.
5.2.1. Conveyance by .,declarant. On or before the expiration of the period of
Declarant Control, Declarant will convey to the Ashley Heights Homeowners' Association, by
written instrument recorded with the Clerk and Recorder of Flathead County, Montana, the
Common Area located on the Property.
5.2.2. Use of Common Area. The Common Area generally is designated by this
Declaration for the common use, benefit and enjoyment of the Owners and their families,
tenants, employees, guests and invitees.
5.2.3. Ashley Heights Homeowners } Association's .Responsibility for Common
Area. The Ashley Heights Homeowners' Association, subject to the rights and obligations of the
Owners set forth in this Declaration, will be responsible for the management, maintenance and
control of the Common Area.
5.2.4. Association's Agreements Regarding common Area. The Ashley Heights
Homeowners' Association, acting through the Board of Directors, may grant easements, rights -
of -way, leases, licenses and concessions through or over the Common Area without the
independent approval by the owners. without limiting the generality of the foregoing, the
Ashley Heights Homeowners' Association may grant such rights to suppliers of utilities serving
the Project or property adjacent to the Project, and to developers or owners of property adj acent
on
to the Project for the purpose of accommodating minor encroachments onto the Common Area or
other purposes that do not unreasonably interfere with the use and enjoyment of the Common
Area by the Owners.
Section 5.3 Water and Sanitary Sewer Facilities.
5.3.1. Sanitary Sewer Service. Each Lot shall be served by the sanitary sewer
system of the City of Kalispell, Montana. Each Owner shall be responsible for the operation,
repair, maintenance, and replacement of all sewer facilities located on that Owner's Lot,
including but not limited to, the service Iine running from the house to the sewer main located at
or near the property line.
5.3.2. Water Service. Each Lot shall be served by the water system of the City
of Kalispell, Montana. Each Owner shall be responsible for the operation, repair, maintenance,
and replacement of all water facilities located on that Owner's Lot, including but not limited to,
the service line running from the house to the shutoff valve located at or near the property line.
Section 5.4. Delegation by Ashley Freights Homeowners ' Association.
5.4.1. Committees. The Ashley Heights Homeowners' Association may
delegate any of its rights, duties or responsibilities to any committee or other entity (in addition
to the Architectural Review Committee) that the Board may choose to form.
5.4.2. .Limitation. Any delegation by the Board under this Section is subject
to compliance with the Bylaws and the requirement that the Board, when so delegating, will not
be relieved of its responsibilities under the Ashley Heights Documents.
Section 5.5. Roads and Driveways. Ashley Heights shall be served by City of
Kalispell, Montana streets. Maintenance of the private driveways located on the Lots shall be
the responsibility of the Owners of the Lots.
Section 5.6. Books and Records. Upon being provided forty-eight (48) hours written
notice and at a scheduled appointment occurring during normal business hours, the Ashley
Heights Homeowners' Association will make available for inspection by Owners and
Mortgagees, current copies of the Ashley Heights Documents, and the boobs, records, and
financial statements of the Ashley Heights Homeowners' Association prepared pursuant to the
Bylaws.
Section 5.7. Reserve Account. The Ashley Heights Homeowners' Association will
establish and maintain an adequate Maintenance Fund from Annual Assessments levied pursuant
to Section 9.3. below for maintenance, repair or replacement of the private roads, parks and
landscaping or other Improvements located within the Common Area.
Section 5.5. Successor to Declarant. The Ashley Heights Homeowners' Association
will succeed to all of the rights, duties and responsibilities of the Declarant under this
Declaration upon termination of the Period of Declarant Control.
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ARTICLE VI
ARCHITECTURAL REVIEW COMMTTEE
Section 6.1. Committee. There is hereby established an Architectural Review
Committee, which will be responsible for the review and approval of all proposed Improvements
on the Lots.
Section G.Z. Committee .Membership. The Committee will be composed of three or
more persons. All of the members of the Committee will be appointed, removed, and replaced
by Declarant, in its sole discretion, until the expiration of the Period of Declarant Control or such
earlier time as Declarant may elect to voluntarily waive this right by notice to the Ashley Heights
Homeowners' Association, and at that time the Board of Directors will succeed to Declarant's
right to appoint, remove, or replace the members of the Committee.
Section 6.3. Purpose and General Authority. No Improvement will be erected, placed,
reconstructed, replaced, repaired or otherwise altered, nor will any construction, repair or
reconstruction be commenced until plans for the Improvements have been approved by the
Committee; provided.., however, that Improvements that are completely within a building may be
undertaken without such approval. The owner shall submit a site plan and elevations showing
the design, location, material, and exterior finish of proposed Improvements to the Architectural
Review Committee. All Improvements will be constructed only in accordance with approved
plans.
Section 6.4 .Design Guidelines. The Architectural Review Committee may publish
Design Guidelines which set forth the procedures and criteria for review of Improvements to be
constructed on any Lot, and for review of landscaping plans. Failure to follow procedures or
criteria set forth in the current published Design Guidelines shall form an adequate basis for
rejection of the submitted site plan and elevations; provided, however, that this requirement shall
not be construed as preventing the Declarant or the Architectural Review Committee, at their
option, from waiving or amending the Design Guidelines at any time or with respect to any
application. Failure to follow such procedures or criteria set forth in the Design Guidelines shall
also be deemed a breach of this Declaration by such owner and shall entitle the Association or
the Architectural Review Committee to exercise and pursue the rights and remedies provided
herein with respect to such breach.
Section 6.5. Failure to Act. In the event the Architectural Review Committee fails to
approve or disapprove such design, location, materials, and exterior finish within thirty days after
the detailed site plan and elevations have been submitted to it, approval shall not be required and
such owner shall be deemed *in compliance with this Article. Any plans, elevations and
proposals so approved, either expressly in writing or by the expiration of the thirty day period
hereinabove provided, shall then permit the owner to commence construction in accordance with
said plans and elevations, but any deviation from said plans and elevations which in the
judgment of said Architectural Review Committee is a substantial detriment to the appearance of
the structure or of the surrounding area shall be corrected to conform with the plans and
elevations as submitted.
►�
Section 6.6. Committee Discretion. The Committee will exercise its best judgment to
see that all Improvements conform and harmonize with any existing structures as to external
design, quality and type of construction, materials, location on the Lot, height, grade and finished
ground elevation, and the schemes and aesthetic considerations set forth in the Resign Guidelines
and the other Ashley Heights Documents. The Committee, in its sole discretion, may excuse
compliance with such requirements as are not necessary or appropriate in specific situations and
may permit compliance with different or alternative requirements.
Section 6.7. Binding affect. The actions of the Committee in the exercise of its
discretion by its approval or disapproval of plans and other information submitted to it, or with
respect to any other matter before it, will be conclusive and binding on all interested parties.
Section 6.8. Organization and Operation of Committee.
6.8.1. Term. The term of office of each member of the Committee will be one
year, commencing January 1 of each year, and continuing until his or her successor shall have
been appointed. Should a Committee member die, retire or become incapacitated, or in the event
of a temporary absence of a member, a successor may be appointed as provided in Section 6.2.
6.8.2. Chairman. So long as Declarant appoints the Committee, Declarant will
appoint the chairman. At such time as the Committee is appointed by the Board of Directors, the
chairman will be elected annually from among the members of the Committee by a majority vote
of the members. In the absence of a chairman, the party responsible for appointing or electing
the chairman may appoint or elect a successor, or if the absence is temporary, an interim
chairman.
6.8.3. Operations. The Committee chairman will take charge of and conduct all
meetings and will provide for reasonable notice to each member of the Committee prior to any
meeting. The notice will set forth the time and place of the meeting, and notice may be waived
by any member.
6.8.4. Voting. The affirmative vote of a majority of the members of the
Committee will govern its actions and be the act of the Committee.
Section 6.9. Other Requirements. Compliance with the Ashley Heights architectural
review process is not a substitute for compliance with City of Kalispell, Montana building,
zoning and subdivision regulations, and each Owner is responsible for obtaining all approvals,
licenses, and permits as may be required prior to commencing construction.
Section 6.10. Enforcement.
6.10.1 Inspection. Any member or authorized consultant of the Architectural
Review Committee, or any authorized officer, Director, employee or agent of the Ashley Heights
Homeowners' Association may enter upon any Lot at any reasonable time after notice to the
Owner, without being deemed guilty of trespass, in order to inspect Improvements constructed or
I
under construction on the Lot to determine whether the Improvements have been or are being
built in compliance with the Ashley Heights Documents and the plans and specifications
approved by the Architectural Review Committee.
6.10.2. Deemed Nuisances. Every violation of these Covenants is hereby declared
to be and to constitute a nuisance, and every public or private remedy allowed for such violation
by law or equity against Member will be applicable. Without limiting the generality of the
foregoing, these Covenants may be enforced as provided below.
(i) Fines for Violations. The Committee may adopt a schedule of
fines for failure to abide by the Committee rules and the Design
Guidelines, including fines for failure to obtain any required approval
from the Committee.
(ii) Removal of Nonconforming Improvements. The Ashley Heights
Homeowners' Association may, upon request of the Committee and after
reasonable time after notice to the owner, without being deemed guilty of
trespass, remove any Improvement constructed, reconstructed, refinished,
altered., or maintained in violation of these Covenants. The owner of the
Improvement will immediately reimburse the Ashley Heights
Homeowners' Association for all expenses incurred in connection with
such removal. If the owner fails to reimburse the Ashley Heights
Homeowners' Association within 30 days after the Ashley .Heights
Homeowners' Association gives the owner notice of the expenses, the
sum owed to the Ashley Heights Homeowners' Association will bear
interest at the maximum rate permitted under Montana law from the date
the expense was incurred by the Ashley Heights Homeowners'
Association through the date of reimbursement in full, and all such sums
and interest will be a Default Assessment enforceable as provided in
Article IX.
Section 6.11. Continuity of Construction. All Improvements commenced on the
Property will be prosecuted diligently to completion. If an Improvement is commenced and
construction is then abandoned for more than ninety days, or if construction is not completed
within the required twelve-month period described below in Section 7.7, then after notice and
opportunity for hearing as provided in the Bylaws, the Ashley Heights Homeowners'
Association may impose a fine of not more than $50.00 per day to be charged against the owner
of the Lot until construction is resumed, or the Improvements are completed, as applicable.
ARTICLE VII
PROPERTY USE RESTRICTIONS
Section 7.1. General Restriction. The Property will be used only for the purposes set
forth in these Covenants, as permitted by the applicable regulations of the City of Kalispell,
Montana Flathead County, Montana and the laws of the State of Montana and the United States,
10
and as set forth in the Ashley Heights Documents or other specific recorded covenants affecting
all or any part of the Property and no structure which fails to meet the following minimum
standards shall be erected, placed or allowed to remain on any Lot, and the Architectural Review
Committee shall have no power to approve any structure failing to at least meet these minimum
standards:
Section 7.2. Setbacks. All single family residences, town homes, garages, sheds,
kennels, swimming pools, outbuildings, and other structures of any kind or mature whatsoever
shall be constructed and located entirely within the setbacks as set forth in the current City of
Kalispell, Montana zoning regulations.
Section 7.3. Height, Size, etc. Upon obtaining the approval of the Architectural
Review Committee, one single-family residence or town home may be built on each Lot. No
structure shall be erected, altered, placed, or permitted on any such Lot other than a single-family
dwelling or town home not to exceed two -stories and thirty five (35) feet in height, including a
private garage, or outbuilding. For the purposes of these restrictions, `two -stories" shall mean
two -stories above grade on at least one overall dimension of the structure, except "split-level"
structures will be permitted. All single -story single-family residences shall contain at least 1,100
square feet on the main floor, exclusive of basements, porches, patios, and garages. All two-
story or split-level single-family residences shall contain at least goo square feet on the ground or
main floor and 300 square feet on the second or upper floor, exclusive of basements, porches,
patios, and garages. All single -story town homes shall contain at least goo square feet per unit,
exclusive of basements, porches, patios and garages. All two-story or split-level town homes
shall contain at least 600 square feet on the main floor and 300 square feet on the second or
upper floor, exclusive of basements, porches, patios and garages, per unit. Except as provided
below, all single family residences shall, at a minimum, have a two car garage measuring at least
576 square feet and all town homes shall, at a minimum, have a one car garage measuring at least
384 square feet per unit. The Architectural Review Committee may, in its sole discretion,
approve smaller garages if necessary due to specific site constraints located on a Lot. All single-
family residences and town homes must provide adequate off-street parking to meet the City of
Kalispell requirements. Upon obtaining the approval of the Architectural Review Committee,
outbuildings may be built on the Lots on the condition that they conform in appearance with the
single-family residence or town home.
Section 7.4. New Construction. All Improvements erected on any Lot shall be of new
construction, and no mobile homes, trailers, or old buildings shall be placed or moved onto the
Lots.
Section 7.5. Maintenance Free Exterior. All Improvements erected on any Lot shall
be sided with and have a low maintenance exterior. All siding must be primarily horizontal
siding. Siding, roofing and other exterior finish items must be approved by the Architectural
Review Committee.
Section 7.6. Roofing Materials. All improvements shall be roofed with roofing
materials rated as Class A or Class B by the National Fire Protection Association. wood shake
and metal roofing is not permitted.
11
Section 7.7. Completed Construction. No basement or structure on any Lot may be
used for dwelling purposes until after its area, as defined by the foundation, has been completely
enclosed according to the plans and until it has been substantially completed, with sanitary
facilities and utilities permanently installed. No tent, shack, or other outbuilding may be used as
a residence, temporarily or permanently. All construction must be completed within twelve
months from the commencement of construction. Except as provided below, all landscaping
must be completed within the same calendar year as completion of construction. If construction
is not completed by September I", the landscaping must be completed by July lit of the
following year.
Section 7.8. Satellite, 4ntennae, etc. Television, radio, satellite dishes, or other
antennae shall be permitted on the following condition that the location, height and size of such
dish and antennae must be approved in advance by the Architectural Review Committee. In
general, dishes or antennae shall be located on the rear of the residence or town home unless the
Architectural Review Committee approves otherwise for valid cause.
Section 7.9. .Fences. Fences, retaining walls and other types of screens shall not
exceed six feet in height. All fences must be constructed of maintenance free material. The
location, design, material and color of fences, walls and screens must be approved by the
Architectural Review Committee.
Section 7.10. Temporary structures. Trailers or other temporary living conveniences
shall not be kept on Lots during construction.
Section 7.11. Trash, Debris, etc. No trash, debris, or organic waste shall be permitted to
accumulate on any Lot or in any roadway adjacent thereto, and shall be promptly disposed of.
No vacant Lot shall be used as a dumping ground or burial pit. Trash incinerators are not
permitted. Outside trash and refuse cans and receptacles shall be screened from view by a
structure approved by the Architectural Review Committee.
Section 7.12. signs. Other than signs advertising Lots or residences for sale or rent or
signs of a type and size approved by the Architectural Review Committee displayed to identify
the address of the Owner or occupant of a residence, no sign, billboard or advertising structure of
any kind shall be erected, used or maintained on any Lot.
Section 7.13. outbuildings. All outbuildings, garages and secondary structures located
on any Lot shall match the external design of the primary structure.
Section 7.14. Outhouses. No outhouse or privy shall be permitted or maintained on any
Lot, except that a chemical toilet shall be permitted on a Lot during the time a residence is being
constructed.
Section 7.15. Wood Heat. No structure shall be constructed on any Lot wherein wood
heat is the primary heat source. No outdoor firewood stacks, piles or wood storage facility shall
be kept or maintained on any Lot unless it is screened from view.
12
Section 7.1 6. Hunting, etc. No hunting, trapping or the discharge of any rifle, shotgun,
pistol or other firearm shall be permitted on any Lot or in the Common Area.
Section 7.17. Animals. No swine, poultry, goats, horses, cows, livestock or other
animals, other than ordinary household pets, shall be raised, kept or cared for on any of the Lots.
No Owner shall raise or care for permitted pets on a commercial basis. No permitted pets shall
be allowed off of the Owner's Lot unless in the immediate company of their Owner or such
Owner's agents. No Owner shall have or keep any dog which barks or whines on a regular or
continuous basis, or which otherwise creates an ongoing disturbance for any other Owner. The
Board of Directors may at any time limit the number of ordinary household pets on any Lot, any
may withdraw permission for any ordinary household pet from any Owner who violates or
abuses the restrictions set forth in this paragraph.
Section 7.18. .landscaping, The layout, design and installation of all landscaping,
grasses, lawns or ground cover, except those in confined gardens or planters must be approved
by the Architectural Review Committee. Each owner shall plant and maintain at least one tree
in the front yard. A timed, underground sprinkler system shall be installed on each Lot that
irrigates the front yard and side yards to the midpoint of the primary structure. Sod or other
approved ground cover shall be installed in the front yard and to the mid point of the side yards
on each Lot. All yards and landscaping shall be maintained and shall not be allowed to become
unsightly. Lawns shall be mowed on a regular basis. Undeveloped Lots must be mowed at least
twice each year and may not be used as a dumping area for trimmings or grass clippings.
Section 7.19. Noxious Weeds. All weeds, including noxious weeds, shall be eradicated
or controlled by owners and -all Owners shall fully comply with state and local law regarding the
control and eradication of noxious weeds.
Section 7.20. Commercial Activity. Except as expressly provided herein, no Lot or any
building or Improvement erected thereon shall at any time be used for the purpose of any trade,
profession, manufacturing or business of any description. Owners may operate professional or
other low- u* npact home -based businesses from their Lot on the condition that it does not
materially increase traffic within Ashley Heights. No approved business operated from any Lot
shall employ or engage more than two non --resident employees or independent contractors.
Notwithstanding the foregoing, 'no Owner shall operate any daycare, pre-school or other child or
person care facility on their Lot.
Section 7.21. Nuisance. No noxious or offensive activities shall be carried on, nor shall
anything be done on any Lot that may become an annoyance or nuisance to the other Owners.
Section 7.22. Vehicles. No unlicensed, unsightly, or inoperative motor vehicles or
equipment, bodies or parts thereof shall at any time be allowed to remain in public view or the
view of adjoining Owners on any Lot or along the City of Kalispell streets or private roadways
located within the Property. All commercial vehicles shall be parked or stored in a garage or
outbuilding or otherwise screened from view.
13
Section 7.23. Fuel Tanks. No above or below ground fuel tanks shall be permitted on
any Lot.
Section 7.24. City Imposed Restrictions. All conditions or restrictions imposed by the
City of Kalispell during the subdivision process are hereby incorporated by reference.
Section 7.25. Natural Gas Service. All residences located on any Lot shall utilize
natural gas service from Northwestern Energy, or its successor.
Section 7.26. Telephone Service. All Owners shall obtain landline telephone service
from Centurytel, or its successor, within two (2) years from the completion of construction on
any Lot.
ARTICLE VU1
OWNER'S OBLIGATIONS FOR MAINTENANCE
Section 8.1. owner's Responsibility for Lot. All maintenance of a Lot and the
Improvements located on it will be the sole responsibility of the Owner of the Lot. The Ashley
Heights Homeowners' Association will, in the discretion of the Board, assume the maintenance
responsibilities of such Owner if, in the opinion of the Board, the level and quality of
maintenance being provided by such Owner is not satisfactory. Before assuming the
maintenance responsibilities, the Board will notify the Owner in writing of its intention to do so,
and if the Owner has not commenced and diligently pursued remedial action within thirty days
after the mailing of such written notice, then the Ashley Heights Homeowners' Association will
proceed. The expenses of the maintenance by the Board will be reimbursed to the Ashley
Heights Homeowners' Association by the Owner within thirty days after the Ashley Heights
Homeowners' Association notifies the Owner of the amount due, and any sum not reimbursed
within that thirty day period will bear interest at the maximum rate permitted under Montana law
from the date of the expenditure until payment in full.
Section 8.2. owner's Negligence. If the need for maintenance, repair or replacement
of any portion of the Common Area (including Improvements located on it) arises because of the
negligent or willful act or omission of an Owner or his family member, guest, invitee or tenant,
then the expenses incurred by the Ashley Heights Homeowners' Association for the
maintenance, repair or replacement will be a personal obligation of that Owner. If the Owner
fails to repay the expenses incurred by the Ashley Heights Homeowners' Association within
thirty days after the notice to the Owner of the amount owed, then those expenses will bear
interest at the maximum rate permitted under Montana law from the date of the advance by the
Ashley Heights Homeowners' Association until payment by the responsible Owner in full.
ARTICLE Ix
ASSESSMENTS
14
Section 9.1. Creation of Lien and Personal obligation for Assessments. Except as
otherwise provided by this Declaration, Declarant, for each Lot owned within the Property,
hereby covenants, and each Owner of any Lot, by accepting a deed for a Lot, is deemed to
covenant to pay to the Ashley Heights Homeowners' Association (1) the Annual Assessments
imposed by the Board of Directors as necessary to generally carry out the functions of the Ashley
Heights Homeowners' Association; (2) Special Assessments for capital improvements and other
purposes as stated in this Declaration; .and (3) Default Assessments which may be assessed
against a Lot pursuant to the Ashley Heights Documents for the owner's failure to perform an
obligation under the Ashley Heights Documents or because the Ashley Heights Homeowners'
Association has incurred an expense on behalf of or caused by the Owner under the Ashley
Heights Documents.
Notwithstanding the ownership of any Lot, the Declarant shall not be obligated to pay
any of the Assessments described in this Declaration.
All Assessments, together with fines, interest, costs, and reasonable attorneys' fees, will
be a charge on the land and will be a continuing lien upon the Lot against which each such
Assessment is made until paid.
Each such Assessment, together with fines, interest, costs, and reasonable attorneys' fees
and costs, will also be the personal and individual obligation of the owner of such Lot as of the
time the Assessment falls due, and two or more owners of a Lot will be jointly and severally
liable for such obligations. No owner may exempt himself from liability for any Assessments
by abandonment of his Lot or by waiver of the use or enjoyment of the Common Area. Suit to
recover a money judgment for unpaid Assessments and related charges as listed above may be
maintained without foreclosing or waiving the Assessment lien provided in this Declaration.
Section 9.2. Purpose of Assessments. The Assessments levied by the Ashley Heights
Homeowners' Association will be used exclusively to promote the recreation, health, safety, and
welfare of the owners and occupants of Ashley Heights.
Section 9.3. Annual Assessments.
9.3.1. Calculation of Annual Assessments. The Board of Directors will prepare a
budget before the close of each fiscal year of the Ashley Heights Homeowners' Association.
Annual Assessments for Common Expenses will be based upon the estimated net cash flow
requirements of the Ashley Heights Homeowners' Association to cover items including, without
limitation, the cost of routine maintenance, repair and operation of the Common Area; and
premiums for insurance coverage as deemed desirable or necessary by the Ashley Heights
Homeowners' Association; snow removal, landscaping, care of grounds and common lighting
within the Common Area; routine renovations within the Common Area; wages; common water
and utility charges for the Common Area; legal and accounting fees; expenses and liabilities
incurred by the Ashley Heights Homeowners' Association under or by reason of this
Declaration; payment of any deficit remaining from a previous Assessment period; and the
supplementing of the reserve fund for general, routine maintenance, repairs and replacement of
improvements within the Common Area on a periodic basis, as needed.
15
9.3.2. Apportionment of annual Assessments. Except as otherwise provided
herein, each owner will be responsible for that owner's share of the Common Expenses, which
will be divided equally among the Lots included in the Project under this Declaration from time
to time. Accordingly, at any given time, an owner's share of Common Expenses will be
determined as a fraction, the numerator of which is the number of Lots owned by the owner, and
the denominator of which is the number of Lots then platted and incorporated into the Project.
9.3.3. Collection. Annual Assessments will be collected in periodic installments
as the Board may determine from time to time, but until the Board directs otherwise, they will be
payable annually in advance on the date determined by the Board. The omission or failure of the
Ashley Heights Homeowners' Association to fix the Annual Assessments for any Assessment
period will not be deemed a waiver, modification, or release of the owners from their obligation
to pay the same.
Section 9.4. Special Assessments.
9.4.1. Determination by Board. The Board of Directors may levy, in any fiscal
year, one or more Special Assessments, applicable to that year only, for the purpose of defraying,
in whole or in part, the cost of any construction or reconstruction, repair or replacement of a
described capital improvement upon the Common Area, including the necessary fixtures and
personal property related thereto, or, after adopting and submitting a revised budget to the
Ashley Heights Homeowners' Association as may be required to make up any shortfall in the
current year's budget.
9.4.2. Apportionment and Collection o. f `special Assessments. The Board will
apportion Special Assessments among the Lots and collect payment according to the same
guidelines as set forth for Annual Assessments in Section 9.3.2
9.4.3. Notice. Notice of the amount and due dates for such Special Assessments
must be sent to each owner at least 30 days prior to the due date.
Section 9.5. Default Assessments. All monetary fines, penalties, interest or other
charges or fees (excluding Annual and Special Assessments) levied against an owner pursuant to
the Ashley Heights Documents, or any expense of the Ashley Heights Homeowners' Association
which is the obligation of an owner or which is incurred by the Ashley Heights Homeowners'
Association on behalf of the Owner pursuant to the Ashley Heights Documents, and any expense
(including without limitation attorneys' fees and costs) incurred by the Ashley Heights
Homeowners' Association as a result of the failure of an owner to abide by the Ashley Heights
Documents, constitutes a Default Assessment, enforceable as provided in this Declaration below.
Section 9.6. General Remedies of Ashley Heights Homeowners" Association for
Nonpayment of Assessment. Any installment of an Annual Assessment, Special Assessment or
Default Assessment which is not paid within 30 days after its due date will be delinquent. In the
event that an installment of an. Annual Assessment or Special Assessment becomes delinquent,
16
or in the event any Default Assessment is established under this Declaration, the Ashley Heights
Homeowners' Association, in its sole discretion, may take any or all of the following actions:
9.6.1. Assess a late charge for each delinquency at uniform rates set by the
Board of Directors from time to time;
9.6.2. Charge interest from the date of delinquency at the maximum rate
permitted under Montana law;
9. 6.3 . Suspend the voting rights of the Owner during any period of delinquency;
9.6.4. Accelerate all remaining Assessment installments for the fiscal year in
question so that unpaid Assessments for the remainder of the fiscal year will be due and payable
at once;
9.6.5. Bring an action at law against any Owner personally obligated to pay the
delinquent Assessment charges;
9.6.6. File a lien with the Flathead County Clerk and Recorder with respect of
the Lot and foreclose as set forth in more detail below.
The remedies provided under this Declaration will not be exclusive, and the Ashley
Heights Homeowners' Association may enforce any other remedies to collect delinquent
Assessments as may be provided by law.
Section 9.7. Assessment Lien. Any Assessment chargeable to a Lot will constitute a
lien on the Lot, effective the due date of the Assessment. To evidence the lien, the Ashley
Heights Homeowners' Association may, but will not be obligated to, prepare a written lien
statement with respect to the Lot, setting forth the name of the Owner, the legal description of
the Lot, the name of the Ashley Heights Homeowners' Association, and the delinquent
Assessment amounts then owing. Any such statement will be duly signed and acknowledged by
an officer or Director of the Ashley Heights Homeowners' Association and will be served upon
the Owner of the Lot by mail to the address of the Lot or at such other address as the Ashley
Heights Homeowners' Association may have i.n its records for the Owner. At least ten days after
the Ashley Heights Homeowners' Association mails the statement to the Owner, the Ashley
Heights Homeowners' Association may record the statement in the office of the Clerk. and
Recorder of Flathead County, Montana. Thirty days following the mailing of such notice to the
Owner, the Ashley Heights Homeowners' Association may proceed to foreclose the lien in the
same manner as provided for the foreclosure of mortgages under the statues of the State of
Montana.
Section 9.8. Successor's Liability far assessment. All successors to the fee simple title
of a Lot, except as provided in Section 9.9. will be jointly and severally liable with the prior
Owner or Owners thereof for any and all unpaid Assessments, interest, late charges, costs,
expenses, and attorneys' and legal assistants' fees against such Lot without prejudice to any such
successor's right to recover from any prior Owner any amounts paid by such successor.
17
Section 9.9. Exempt Property. The following portions of the Property will be exempt
from the Assessments, charges, and liens created under this Declaration.
9.9.1. Any easement or other interest in the Property dedicated and accepted by
the City of Kalispell or Flathead County and devoted to public use;
9.9.2. Any Lot owned by Declarant;
9.9.3. All utility lines and easements; and
9.9.4. Common Areas.
Section 9.10. statement of status of Assessments. The Ashley Heights Homeowners'
Association will furnish to an Owner or his designee or to any Mortgagee, within fourteen days
of request, a statement setting forth the amount of unpaid Assessments then levied against the
Lot in which the Owner, designee or Mortgagee has an interest.
Section 9.11. Failure to Assess. The omission or failure of the Board to fix the
Assessment amounts or rates or to deliver or mail to each Owner an Assessment notice will not
be deemed a waiver, modification, or a release of any Owner from the obligation to pay
Assessments. In such event, each Owner will continue to pay Annual Assessments on the same
basis as for the last year for which an Assessment was made until a new Assessment is made, at
which time any shortfalls in collections may be assessed retroactively by the Ashley Heights
Homeowners' Association.
ARTICLE x
PROPERTY RIGHTS OF OWNERS
Section 10.1. owner's Easements of Access and Enjoyment. Every Owner has a
perpetual, non-exclusive easement for ingress, egress and utilities to and from. his Lot and for the
use and enjoyment of the Common Area, which easement is appurtenant to and will pass with
the title to every Lot, subject to the provisions set forth in this Declaration.
Section 10.2. Easements of Record and of Use. The Property will be subject to all
easements shown on any recorded Plat and to any other easements of record or of use as of the
date of recordation of this Declaration.
LAX
SPECIAL DECLARANT RIGHTS
AND ADDITIONAL RESERVED RIGHTS
Section 11.1. General Provisions. Until the expiration of the Period of Declarant
Control, Declarant will have the following Special Declarant Rights;
18
11.1.1. Completion of Improvements. The right to complete infrastructure and
Improvements as indicated on any Plat filed with respect to the Property.
11.1.2.Development Rights. The right to exercise all Development Rights in
connection with the development of the Ashley Heights Project, including without limitation the
right or combination of rights hereby reserved by Declarant, as follows:
(i) The right to create Lots and Common Area on the Property.
The right to subdivide Lots and convert Lots into Common Area
on any part of the Property.
The right to withdraw real estate from Ashley Heights.
11.1.3. Sales Activities. The right to maintain sales and management offices,
signs advertising Ashley Heights and model residences on the Common Area and on Lots owned
by Declarant.
11.1.4. Easements. The right to use easements through the Common Area on the
Property for the purpose of making Improvements on the Property.
11.1.5. Association Directors and Officers. The right to appoint any officer or
Director of the Ashley Heights Homeowners' Association, as provided in this Declaration or the
Bylaws.
11.1.6. order of Exercise of Declarants Rights. Declarant mares no
representations and gives no assurances regarding the legal description of the boundaries of any
phase of the Property or the order or time in which the phases of the Property may be developed
or incorporated in Ashley Heights, or whether or to what extent any of the Property will be
developed or incorporated into the Project. Further, the fact that Declarant may exercise one or
more of Declarant's Development Rights or other Special Declarant Rights on one portion of the
Property will not operate to require Declarant to exercise a Development Right or other Special
Declarant Right with respect to any other portion of the Property.
Section 11.2. Supplemental Provisions Regarding .Declarant's Rights. without limiting
the generality of the foregoing, certain of these Special Declarant Rights are explained more
fully in this Article below. Further, Declarant reserves the right to amend this Declaration and
any Plat in connection with the exercise of any Development Right or any other Special
Declarant Right, and Declarant also reserves the additional rights retained for the benefit of
Declarant in this Article and in other provisions of this Declaration.
Section 11.3. Utility Easements. There is hereby created an easement upon, across,
over, in, and under the Common Area, the public roadways, the private roadways and the areas
designated on the final Plat of Ashley Heights as utility easements for the installation,
replacement, repair and maintenance of all utilities, including but not limited to water, sewer,
gas, telephone, electrical, television and other communications systems. By virtue of this
easement, it will be expressly permissible and proper for the companies providing utility services
to install and maintain necessary equipment on and under the Common Area, the private
roadways and the areas designated on the frnal Flat of Ashley Heights as utility easements and to
affix and maintain utility pipes, wires, circuits, conduits and other equipment under those areas.
Any utility company using this easement will use its best efforts to install and maintain the
utilities provided for without disturbing the uses of the Owners, the Ashley Heights
.Homeowners' Association and Declarant; will prosecute its installation and maintenance
activities as promptly and expeditiously as reasonably possible; and will restore the surface to its
original condition as soon as possible after completion of its work. Should any utility company
furnishing a service covered by the easement granted above request a specific easement by
separate recordable document, either Declarant or the Ashley Heights Homeowners' Association
will have, and are hereby given, the right and authority to grant such easement upon, across,
over, or under any part or all of the Common Area, the private roadways and the areas
designated on the final Fiat of Ashley Heights as utility easements without conflicting with the
terms of this Declaration. This easement will in no way affect, avoid, extinguish, or modify any
other recorded easement on the Property.
Section 11.4. Reservation for Expansion and Construction. Declarant hereby reserves
for itself and its successors and assigns and for owners a perpetual easement and right-of-way
for access over, upon, and across the Property for construction, utilities, drainage, ingress and
egress, and for use of the Common Area. The location of these easements and rights -of -way
may be made certain by Declarant or the Ashley Heights Homeowners' Association by
instruments recorded in Flathead County, Montana.
Declarant further reserves the right to establish from time to time, by dedication or
otherwise, utility, ingress and egress, and other easements over and across the Common Areas,
and to create other reservations, exemptions, and exclusions convenient or necessary for the use
and operation of any other property of Declarant.
Section 11.5. Reservation of Easements, Exceptions, and Exclusions for Utilities,
Infrastructure, and access. Declarant reserves for itself and its successors and assigns and
hereby grants to the Ashley Heights Homeowners' Association, acting through the Board of
Directors, the concurrent right to establish from time to time, by declaration or otherwise, utility
and other easements, permits, or licenses over the Common Area, for purposes including but not
limited to streets, paths, walkways, drainage, recreational areas and parking areas, and to create
other reservations, exceptions, and exclusions in the interest of the owners and the Ashley
Heights Homeowners' Association.
Section 11.6. Maintenance Easement. An easement is hereby reserved to Declarant for
itself and its successors and assigns and granted to the Ashley Heights Homeowners'
Association, and any member of the Board of Directors, and their respective officers, agents,
employees, and assigns, upon, across, over, in and under the Property and a right to make such
use of the Property as may be necessary or appropriate to make emergency repairs or to perform
the duties and functions which the Ashley Heights Homeowners' Association is obligated or
permitted to perform pursuant to the Ashley Heights Documents.
20
Section 11.7. Drainage Easement. An easement is hereby reserved to Declarant for
itself and its successors and assigns and granted to the Ashley Heights Homeowners'
Association, its officers, agents, employees, successors and assigns to enter upon, across, over,
in, and under any portion of the Property for the purpose of changing, correcting, or otherwise
modifying the grade or drainage channels of the Property so as to improve the drainage of water.
Reasonable efforts will be made to use this easement so as not to disturb the uses of the Owners,
the Ashley Heights Homeowners' Association and Declarant, as applicable, to the extent
possible; to prosecute such drainage work promptly and expeditiously; and to restore any areas
affected by such work to a sightly and usable condition as soon as reasonably possible following
such work.
Section 11.8. Declarant's Rights Incident to Construction. Declarant, for itself and its
successors and assigns, hereby retains a right and easement of ingress and egress over, in, upon,
under and across the Common Area and the right to store materials thereon and to make such
other use thereof as may be reasonably necessary or incident to the construction of the
Improvements on the Property or other real property owned by Declarant; provided, however,
that no such rights will be exercised by Declarant in such a way as to unreasonably interfere with
the occupancy, use, enjoyment or access to an Owner's Lot by that Owner or his family, tenants,
employees, guests, or invites.
Section 11.9. Easements Deemed Created. All conveyances of Lots hereafter made,
whether by Declarant or otherwise, will be construed to grant and reserve the easements
contained in this Article, even though no specific reference to such easements or to this Article
appears in the instrument for such conveyance.
ARTICLE XH
INSURANCE
Section 12.1. Authority to Purchase. All insurance policies relating to the Common
Area will be purchased by the Board of Directors or its duly authorized agent. The Board of
Directors and the Declarant will not be liable for failure to obtain any coverage required by this
Article or for any loss or damage resulting from such failure if such failure is due to the
unavailability of such coverage from reputable insurance companies, or if such coverage is
available only at demonstrably unreasonable costs.
Section 12.2. General Insurance Provisions. All such insurance coverage obtained by
the Board of Directors will be governed by the following provisions:
12.2.1. As long as Declarant owns any Lot, Declarant will be protected by all
such policies in the same manner as any other Owner.
12.2.2. The deductible, if any, on any insurance policy purchased by the Board of
Directors may be treated as a Common Expense payable from Annual Assessments or Special
Assessments (allocable to all of the Lots or to only some of the Lots, if the claims for damages
arise from the negligence of particular Owners, or if the repairs benefit only particular Owners),
or as an item to be paid from working capital reserves established by the Board of Directors.
21
Section 12.3. Physical Damage Insurance on Common Area. The Ashley Heights
Homeowners' Association will obtain insurance for such insurable Improvements and with such
coverages, limits, deductibles and other terms and conditions as the Board may determine from
time to time.
Section 12.4. .Liability Insurance. The Ashley Heights Homeowners" Association will
obtain a comprehensive policy of public liability insurance and property damage insurance with
such coverages and limits as the Board of Directors may from time to time determine, insuring
each member of the Board of Directors, the Ashley Heights Homeowners' Association, and the
respective employees, agents, and all persons acting as agents against any liability to the public
or the Owners (and their guests, invites, tenants, agents, and employees) arising in connection
with the ownership, operation, maintenance or use of the Common Area and streets and roads
within Ashley Heights and any other areas under the control of the Ashley Heights Homeowners'
Association. Declarant will be included in the coverage as an additional insured in Declarant's
capacity as an Owner or Director.
ARTICLE XHI
ENFORCEMENT of COVENANTS
Section 13.1. Violations .deemed a .nuisance. Every violation of this Declaration or any
other violation of the Ashley Heights Documents is deemed to be a nuisance and is subject to all
the remedies provided for the abatement of the violation. In addition, all public and private
remedies allowed at law or equity against anyone in violation of these Covenants will be
available.
Section 13.2. Compliance. Each Owner or other occupant of any part of the property
will comply with the provisions of the Ashley Heights Documents as the same may be amended
from time to time.
Section 13.3. Failure to Comply. Failure to comply with the Ashley Heights
Documents will be grounds for an action to recover damages or for injunctive relief to cause any
such violation to be remedied, or both. Reasonable notice and an opportunity for a hearing as
provided in the Bylaws will be given to the delinquent party prior to commencing any legal
proceedings.
Section 13.4. Who may Enforce. Any action to enforce the Ashley Heights Documents
may be brought by Declarant or the Board in the name of the Ashley Heights Homeowners'
Association on behalf of the Owners. If, after a written request from an aggrieved Owner, none
of the foregoing persons or entities commences an action to enforce the Ashley Heights
Documents, then the aggrieved Owner may bring such an action.
Section 13.5. Nonexclusive Remedies. All the remedies set forth herein are cumulative
and not exclusive.
22
Section 13.6. No Waiver. The failure of the Board of Directors, Declarant, or any
aggrieved Owner to enforce the Ashley Heights Documents in any one or more instances will not
be deemed a waiver of the right to do so for any subsequent violations or of the right to enforce
any other part of the Ashley Heights Documents at any future time.
Section 13.7. No Liability. No member of the Board of Directors, the Declarant or any
Owner will be liable to any other Owner for the failure to enforce any of the Ashley Heights
Documents at any time.
Section 13.8. Recovery of Costs. If legal assistance is obtained to enforce any of the
provisions of the Ashley Heights Documents, or in any legal proceeding (whether or not suit is
brought) for damages or for the enforcement of the Ashley Heights Documents or the restraint of
violations of the Ashley Heights Documents, the prevailing party will be entitled to recover all
costs incurred by it in such action, including reasonable attorneys' fees (and legal assistant's
fees) as may be incurred., or if suit is brought, as may be determined by the court.
ARTICLE xIV
RESOLUTION of DISPUTES
If any dispute or question arises between Members or between Members and the Ashley
Heights Homeowners' Association or relating to the interpretation, performance or
nonperformance, violation, or enforcement of the Ashley Heights Documents, such dispute or
violation may be subject to a hearing and determination by the Board in accordance with the
procedures set forth in the Bylaws.
ARTICLE xV
DURATION OF THESE COVENANTS AND AMENDN[ENT
Section 15.1 Term. This Declaration and any amendments or supplements hereto will
remain in effect from the date of recordation until the 30th anniversary of the date this
Declaration is first recorded in the office of the Clerk and Recorder of Flathead County,
Montana. Thereafter these Covenants will be automatically extended for five successive periods
of ten years each, unless otherwise terminated or modified as provided below.
Section 15.2. Amendment. Subject to Section 15.3. this Declaration, or any provision
of it, may be terminated, extended, modified or amended, or revoked as to the whole or any
portion of the Property as follows:
15.2.1. Prior to Sale of Lots. Prior to the sale of any Lot, the Declarant (including
a Successor Declarant) may terminate, extend, modify, amend or revoke this Declaration as to
the whole or any portion of the Property by recording in the records of Flathead County,
Montana, a document signed by the Declarant stating the action taken.
15.2.2. sifter Sale of Lots but During Period of Declarant Control. After the sale
of a Lot but before expiration of the Period of Declarant Control, Declarant (including any
Successor Declarant) may terminate, extend, modify, amend or revoke this Declaration as to the
23
whole or any portion of the Property. A copy of the document stating the action intended to be
taken by the Declarant and a notice of the owners' rights under this Section shall be mailed to
each owner by first class mail, postage prepaid, to the address of the owner on the records of
Ashley heights Homeowners' Association. Unless written objection is received by the
Declarant from the owners holding 80% or more of the votes within 30 days of the mailing of
the notice to the owners, the action proposed to be taken by the Declarant shall be considered
approved and shall become final. The Declarant shall then record in the records of Flathead
County, Montana, a document stating the action taken, together with a certificate certifying that
notice was given to the owners as required herein and that fewer than 80% of the owners
objected to the action.
15.2.3. After the Period of Declarant Control. After the Period of Declarant
Control, this Declaration, or any provision of it, may be terminated, extended, modified or
amended, or revoked as to the whole or any portion of the Property upon the written consent of
Owners holding 67% or more of the votes in the Ashley Heights Homeowners' Association.
Any document will be immediately effective upon recording in the records of Flathead County,
Montana, a copy of such executed and acknowledged by the necessary number of owners, or
alternatively, upon the recording in the records of Flathead County, Montana, of a copy of the
document together with a certificate signed by an officer of the Ashley heights Homeowners'
Association stating that the required number of consents of owners were obtained.
Section 15.3. Declarant's Approval. Notwithstanding the provisions of Section 15.2. no
termination, extension, modification or amendment of this Declaration will be effective in any
event during the Period of Declarant Control unless the written approval of Declarant is first
obtained.
Section 15.4. ,effect ref Amendments. Amendments made pursuant to this Section will
inure to the benefit of and be binding upon all owners, their families, guests, invitees and
employees, and their respective heirs, successors, and assigns. Joinder of the First Mortgagees
shall not be required in order to effect an amendment.
ARTICLE xVI
MISCELLANEOUS PROVISIONS
Section 16.1. Severability. This Declaration, to the extent possible, will be construed or
reformed so as to give validity to all of its provisions. Any provision of this Declaration found to
be prohibited by law or unenforceable will be ineffective to the extent of such prohibition or
unenforceability without invalidating any other part hereof.
Section 16.2. Construction. In interpreting words in this Declaration, unless the context
will otherwise provide or require, the singular will include the plural, the plural will include the
singular, and the use of any gender will include all genders.
Section 1 6.3. Headings. The headings are included only for purposes of convenient
reference, and they will not affect the meaning or interpretation of this Declaration.
24
Section 16.4. Waiver. No failure on the part of the Ashley Heights Homeowners'
Association or the Board to give notice or default or to exercise or to delay in exercising any
right or remedy will operate as a waiver, except as specifically provided above in the event the
Board fails to respond to certain requests. No waiver will be effective unless it is in writing and
signed by the President or Vice President of the Board on behalf of the Ashley Heights
Homeowners' Association.
Section 16.5. Limitation of Liability. Neither the Declarant, the Ashley Heights
Homeowners' Association nor any partner, officer or member of either the Declarant or the
Board will be liable to any party for any action or for any failure to act with respect to any matter
arising by, through, or under the Ashley Heights Documents if the action or failure was made in
good faith. The Ashley Heights Homeowners' Association will indemnify all of the officers and
Board members with respect to any act taken in their official capacity to the extent provided in
this Declaration and by law and in the Articles of Incorporation and Bylaws.
Section 16.6. Conflicts Between Documents. In case of conflict between this
Declaration and the Articles of Incorporation or the Bylaws, this Declaration will control. In
case of conflict between the Articles of Incorporation and the Bylaws, the Articles of
Incorporation will control.
Section 16.7. Assignment. Declarant may assign all or any part of the Special
Declarant Rights or any of Declarant's other rights and reservations hereunder to any successor
who takes title to all or part of the Property in a bulk purchase for the purpose of development
and sale. Such successor will be identified, the particular rights being assigned will be specified,
and, to the extent required, concomitant obligations will be expressly assumed by such successor,
all in a written instrument duly recorded in the records of the Clerk and Recorder of Flathead
County, Montana.
25
IN WITNESS WHEREOF, Declarant has signed this Declaration on the Date shown
above.
STATE OF MONTANA
:ss
County of Flathead
ASHLEY HEIGHTS, LLC
Joanna R. Holm., Manager
This instrument was acknowledged before me on this day of
, 2007, by Joanna R. halm as Manager of Ashley Heights, LLC.
Vincent C . Rieger
Notary Public for the State of Montana
Residing at Kalispell, Montana
My commission expires April 1, 2008
we
After recording return to:
Vincent G. Rieger
Law Office of Vincent G. Rieger, P.C.
4 Meridian Court
Kalispell, MT 59901
BYLAWS
of DRAFT
ASHLEY HEIGHTS HOMEEOWNERS'ASSOCIATION,, INC.
ARTICLE 1
NAME AND LOCATION -
The .name of the corporation is Ashley Heights Homeowners' Association, Inc. (the
"'Association"), a Montana nonprofit corporation. � -The principal ' affice and address of the corporation
is located at 3300 Highway 2 west, Kalispell, Flathead County, Montana.
ARTICLE II
DEFINITIONS, PURPOSES AND ASSENT
Section 2.01. Definitions. s. The definitions in the Declaration of Covenants, Conditions,
Restrictions and Easements for Ashley Heights, as amended from time to time and recorded in the
office of the Clerk and Recorder of Flathead County, Montana (the "Declaration"), will apply to these
Bylaws, and all defined terms in these Bylaws will have the same meaning as the defined terms used in
the Declaration, unless the defined terms in these Bylaws or the context of these Bylaws clearly
indicate otherwise.
Section 2.02. Purposes. The specific purposes for which the Association is formed are (i) to
provide for the maintenance, preservation, and control of the Common Area in the Ashley Heights
subdivision located in Flathead County, Montana; and (ii) to promote the health., safety, and welfare of
the Owners and users of Ashley heights.
Section 2.03. Assert. All present or future Owners, their families, present or future tenants,
and their guests and invitees, and any other person wing the facilities of Ashley Heights in any manner
are subject to the Ashley Heights Documents, including these Bylaws, and any rules adopted by the
Board of Directors. The acquisition or rental of any of the Lots in Ashley Heights or the occupancy of
l
any of the Lots will constitute ratification and acceptance of these Bylaws and an agreement to comply
with those rules.
ARTICLE III
Section 3.01 Membership. Every owner of a Lot, by virtue of being an owner,
and for so long as he is an owner, will be a Member of the Association, The Declarant shall be
considered an owner and shall be a Member of the Association with all of the same privileges of
the other owners and Members.
Section 3.02. .representation on Board oDirectors. If title to a Lot is held by a firm,
corporation, partnership, association, other legal entity or any combination thereof, or if any
individual or entity holds title to more than one Lot, then in either case, that individual or entity may
appoint, by a writing furnished to the Association, a delegate to represent each such Lot as a candidate
for, and if elected, as a member of, the Board of Directors. Such delegate will not vote as a member of
the Association unless such person is appointed by a proxy executed in conformance with these Bylaws
to cast the voting interest of the Lot which he represents.
Section 3.03. Responsibilities of Members. Any person, 10
.including Declarant, on becoming an
Owner, will automatically become a Member and be subject to these Bylaws; Such membership will
terminate without any formal Association action whenever such person ceases to own a Lot, but such
termination will not relieve or release any such former owner from any liability or obligation incurred
under the Declaration or 'n -any way connected with the Association during the period of such
ownership, or impair any rights or remedies which the Board of Directors or others may have against
such former owner arising out of ownership of the Lot and membership in the Association and the
covenants and obligations incident thereto.
Section 3.04. Classes of Membership. The Association will have one class of voting
membership, composed of all owners, including Declarant.
Section 3.05. Voting Pt ivileges. All Members will .be entitled to vote on Association matters
on the basis of one vote for each Lot owned.
When more than one person holds an interest in any Lot, all such persons will be Members.
The vote for such Lot will be exercised by one person or alternative persons as the owners among
themselves determine. If more than one of the multiple owners are present at a meeting in person or
by proxy, the vote allocated to their Lot may be cast only in accordance with the agreement of a
maj onty in interest of the owners. There is majority agreement if any one of the multiple owners
casts the vote allocated to his Lot without protest being made promptly to the person presiding over the
meeting by any of the other owners of the Lot.
Section 3.06. Proof ofMembersh'. Any person or entity, on bccaming an owner, will
furnish to the Secretary of the Association a photocopy of the deed vesting person or that entitywith an
ownership interest. An owner will not be deemed a Member of the Association in good standing and
will not be entitled to vote at or be entitled to notice of any annual or special meeting of the members
unless this requirement is first met. other means of proving Lot ownership shall be allowed at the sole
discretion of the Association.
2
ARTICLE IV
ASSOCIATION: MEETINGS, QUORUM, VOTING, PROXIES
Section 4.01. Place and Frequency of Meetings. Meetings of the Members will be held at
least once a year at such place, witbin or without the State of Montana, as the Board of Directors may
f
determine.
Section 4.02. Annual Meetings. The first annual meeting of the Members will be held in or
before , 200- . Each subsequent annual meeting of the Members will be held on a
date and at a time set by the Board of Directors. The purpose of the annual meetings is for the election
of the Board and the transaction of such other business of the Association as may properly come before
the meeting.
Section 4.03. Special Meetings. Special meetings of the Members may be called at any time
by the President of the Association, or by a majority of the Board of Directors, or upon written request
of the Members who are collectively entitled to vote at least 20% Of all of the votes in the Association.
Section 4.04. Notice ofMeetings. Written notice stating the .place, -day, and hour of the
meeting and the agenda for the meeting will be delivered not less than 10 nor more than 50 days before
the date of the meeting, personally or by mail or fax or otherwise as permitted by the Montana Non -
Profit Corporation. Act, by or at the direction of the President, or the Secretary, or the persons calling
the meeting, as provided in these Bylaws, to the registered mailing address for notice (as provided in
the Declaration) of each Member entitled to vote at such meeting.
Section 4.05. Quorum. A quorum is deemed present throughout any meeting of the
Association if Members entitled to cast (or proxies entitled to cast) 20% of the votes of the Association
are present at, the beginning of the meeting. If, however, such quorum is not present or represented at
the meeting, the Members entitled to vote at the meeting will have the power to adjourn the meetm"
g
from time to time,, without notice other than announcement at the meeting, until a quorum is present or
represented by proxy.
Section 4.06. Actions Binding on Members. A majority of votes cast by Members
constituting a quorum in person or by proxy will be sufficient to make decisions binding on all
Owners, unless a different number or method of voting is expressly required by statute or by the
Declaration, the Articles, or these Bylaws.
Section 4.07. Majority of Owners. As used in these Bylaws,- the -term "majority" will mean
those votes, owners, or other groups as the context may. indicate totaling more than 50 percent of the
total number.
Section 4.08. Voting by Mail. voting by mail is permitted for election of the Board of
Directors, amendment of the Articles, adoption of a proposed plan of merger, consolidation or
dissolution pursuant to the provisions of the Montana Nonprofit Corporation Act, each as amended
from time to time, or other questions that come before the Association. 'In the case of a vote by mail,
the Secretary will give written notice to all Members, which notice will include (i) a proposed written
resolution setting forth a description of the proposed action, (ii) a statement that the Members are
entitled to vote by mail for or against such proposal, (iid) a statement of a date not less than 20 days
after the date such notice will have been given by which all votes must be received, and (iv) the
specified address of the office to which all votes must be sent. Notes received after that date will not
be effective. Delivery of a vote in writing to the designated office will be equivalent to receipt of a
vote by mail at such address for the purpose of this section.
Section 4.09. ,Proxies. Any Member may cast such Member's vote in person or by proxy, but
no proxy will be valid if it is not dated or if it purports to be revocable without notice. Further, no
proxy will be valid after eleven months from the stated date of its execution unless otherwise provided
in the proxy or unless voluntarily revoked upon notice, amended., or sooner teated by operation of
law. Finally, no proxy will be valid unless filed with the Secretary of the Association at or before the
appointed time of the meeting at which the proxy will be voted.
Section 4.10. Designation of Voting Representative by Non -Individual Owners —Requirement
for Proxy. If the title to a Lot is held in whole or in part by a firm corporation, partnership,
association, or other legal entity, the voting privilege- appurtenant -to that ownership may be exercised
only by a proxy executed on behalf of such party or parties, filed with the Secretary of the Association,
and appointing and authorizing n.g one person or alternate persons to attend all annual and special
meetings of the Members and to cast the vote allocated to that Lot at the meeting.
Section 4.11. Designation of Voting Representative by Multiple Owners — Use of Proxy. If
title to a Lot is held by more than one Owner, each Owner may vote or register protest to the casting of
• votes by the other Owners of the Lot through a duly executed proxy. An owner may not revoke a
proxy given pursuant to this Section except by actual notice of revocation to the person presiding over
a meeting of the Association.
Section 4.12. Waiver of Notice. Waiver of notice of a meeting of the Members will be
deemed the equivalent of proper notice. Any Member may waive, in writing, notice of any meeting of
the Members, either before or after such meeting. Attendance at a meeting by a Member, whether in
person or by proxy, will be deemed waiver by such Member of notice of the time, date and place of the
meeting unless such Member specifically objects to lacy of proper notice at the time the meeting is
called to order. Attendance at a special meeting will also be deemed waiver of notice of all business
transacted at the meeting unless objection to the calling or convening of the meeting, of which proper
notice was not given, is raised before the business is put to a vote.
ARTICLE v .
BOARD Of D RECTORS; SELECTION; 'i'ERM OF OFFICE
Section 5.01. Number, Qualification and Initial Board. The affairs of this Association will
be managed by a Board of not less than three and no more than five Directors.. Except as provided
below regarding Directors appointed by Declarant, the Directors will be Members of the Association or
the delegates of Members appointed by proxy under Article Iv above. The number of the Board of
Directors will be established from time to time by amendment to these Bylaws.
The initial number of members of the Board of Directors will be three. The names and
addresses of the three persons who are to serve .on the initial Board of Directors until their Successors
are appointed are as listed below:
4
NAME
Tom Bowen
Hubert I Turner
Wesley W. Turner
ADDRESS
50 Spring Mountain Road
Kalispell, MT 59901
1053 Stillwater Road
Kalispell, MT 59901
103 Swiss Drive -
Y.alispell; MT 59901
Section 5.02. Directors During Declarant Control.' During the Period of Declarant Control
the Board of Directors will be selected by Declarant and will serve at the sole discretion of Declarant.
During the Period of Declarant Control, the Declarant may appoint or remove Directors by written
notice given to the Association. The Directors selected by Declarant need not be Members of the
Association. Unless Declarant directs otherwise, and subject to these Bylaws, the initial Board of
Directors named in the Articles will continue to serve throughout the Period of Declarant Control.
Declarant will surrender its right to select the Board of Directors upon termination of the period of
Declarant Control, as provided below.
Section 5.03. Election ofDirectors Directors After .Period of Declarant Control: Upon term M'ation of
the Period of Declarant Control in accordance with the Declaration, a special meeting of the
Association will be called, at which Declarant will turn control of the Association over to the
Members. The Members will elect a new Board of Directors, and any terms of Directors appointed by
Declarant that have not expired will terminate at that time. Subsequently, Directors will be elected by
the Members at each annual meeting of the Members. At the first general election of the Board by
Members and at subsequent elections, the Members may cast as many votes. as they are entitled to
exercise under the provisions of Section 3.06 above. voting for Directors will be by secret written
ballot.
Section 5.04. Term of Office or Directors After Period of Declarant Control. The term of
office for the initial Directors elected by the Members will be fixed' at the time of their election as they
themselves will determine in order to establish a system of three-year terms in which at least one-third
of the Board is elected each year, and the Board will identify xn which year the directorships for each
category of representation are subject to election. For example, if the number of Directors on -the initial
Board is set at three pursuant to Section 5.01 above, one Director will serve for a one-year term, one
Director will serve for a two-year term, and one Director will serve for a three --year term. At the
expiration of the initial term of office of each respective Director, a successor will be elected to serve
three years. Each Director will hold office until such Director's successor is elected by the Members
and qualified to take over the office.
Section 5.05. Removal of Directors. Any Director other than one appointed by Declarant
may be removed, with or without cause, at any regular or special meeting of the Members by two-
thirds of the votes of the Members voting in person or by proxy at a meeting at which a quonnn is
present. A successor to any Director removed may be elected at such meeting to fill the vacancy
created by removal of the Director. A Director whose removal is proposed by the Members will be
given notice of the proposed removal at least 10 days prior to the date of such meeting and will be
41
given an opportunity to be heard at such meeting. Any Director appointed by Declarant may be
removed, with or without cause, at any time by Declarant, and a successor to any Director so removed
may be appointed by Declarant.
Section 5.06. Vacancies.
(a) During period of .Declarant Control. Dig the Period of Declarant Control,
if a Director appointed by Declarant dies, becomes, disabled or resigns, Declarant will appoint a new
Director to serve the balance of the term of the resigning, disabled or deceased Director; and if a
Director elected by the Members dies, becomes disabled or resigns, the remaining Directors will
appoint a new Director from. among the members other than Declarant to ' serve the remainder of the
.term of the resigning, disabled or deceased Director representing Members other than Declarant.
(b) Following Period of .Declarant Control. After the expiration or termination of
the Period of Declarant Control, any vacancy occurring on. the Board may be filled by the affirmative
vote of a majority of the remaining Directors, though less than a quorum of the Board of Directors.
The tern of the Director so elected will be coincident with the term of the replaced Director.
Section 5.07. Compensation. No Director will receive compensation for any service rendered
to the Association. However, any Director may be reimbursed for actual expenses incurred in the
performance of his duties as a Director.
ARTICLE vI
MEETING OF DIRECTORS
Section 6.01. Regular Meetings. Regular meetings ofthe. Board of Directors will be held at
such regular times as set by the Board of Directors., at such- place and hours, as may be fixed from time
to time by resolution of the Board. - Should a regularly scheduled meeting fall upon a legal holidays
then that meeting will be held at the same time on the next .day which is not -a legal holiday.
Section 6.02. Special .Meetings. Special meetings of the Board of Directors will be held
when called by the President of the Association, or by any two Directors, after not less than three days'
notice to each Director.
Section 6.03. Qugrum. A quorum is deemed present throughout any meeting of the Board of
Directors if persons entitled to cast 50% of the votes on the Board are present at the beginning of the
meeting.
Section 6.04. actions Binding on Directors. Every action taken or decision made by a
majority of the Directors present at a duly held meeting at which a quorum is present will be regarded
as the act of the Board.
Section 6.05. Waiver ofNotice. Attendance of a Director at any meeting will constitute a
waiver of notice of such meeting, except when a Director attends a meeting. for the express purpose of
objecting to the transaction of any business because the meeting is not lawfully called or convened.
Before, at, or after any meeting of the Board of Directors, any member of the Board may waive in
writing notice of such meeting, and such waiver will be deemed equivalent to the giving of such notice.
Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in the waiver of notice of such meeting.
0
Section 6.06. Action Taken Without a .meeting. The Directors will -have the right to tape any
action which they could take at a meeting in the absence of a -meeting by obtaining the written approval
of all the Directors. Any action so approved will have the -same effect as though taken at a meeting of
the Directors.
ARTICLE VII
POWERS AND DUTIES OF THE BOARD OF DIRECTORS
Section 7.01. General. The Board of Directors will have the powers and duties necessary for
the administration of the affairs of the Association. Except as provided by these Bylaws. or the
Declaration, the Board of Directors may do all such acts and things which are not specifically required
to be done by the Members and may otherwise act in all instances on behalf of the Association.
Section 7.02. Specific Powers and Duties. without limiting the generality of powers and
duties set forth in Section 7.01 above, the Board of Directors will have the following powers and
duties, m each case subject only to applicable requirements of the Montana Nonprofit Corporation. Act:
(a) To administer and enforce the covenants, conditions; restriction, easements,
uses, 1=` tations, obligations, and all other provisions set forth in the Declaration.
(b) To establish., make, amend from dime to time, and enforce compliance with
such reasonable rules and regulations as may be necessary.for the operation,: use, and occupancy of
Ashley Heights, subject to the provisions of the Declaration. A. copy of such miles and regulations gill
be delivered or mailed to each Member promptly after adoption..
(c) To keep in good order, condition, and repair all of the Common Area and all
items of personal property, if any, used in the enjoyment of the Common Area. No approval of the
members is required for expenditures for these purposes, except as otherwise required by the
Declaration or these Bylaws.
(d) To fix, determine, levy, and collect the Annual Assessments to be paid by each
of the Members towards the gross .expenses of the Ashley Heights subdivision, and to adjust, decrease,
or increase the amount of the Assessments, and to credit any excess of Assessments over expenses and
cash reserves to the Members against the next succeeding Assessment period.
(e) To levy and collect Special Assessments whenever, in the opinion of the Board,
it is necessary to do so in order to meet increased operating or maintenance expenses or costs, or
additional capital expenses, or because of emergencies. All Special Assessments will be in statement
form and will set forth in detail the various expenses for which the Special Assessments are being
made.
} To levy and collect Default Assessments fbr'violation 'of the Association
Documents or because the Association has incurred -'an expense on behalf ofa-Member under the
Association Documents.
7
(g) To collect delinquent Assessments by suit or otherwise and to enjoin or seek
damages from an owner as provided in the Declaration and these Bylaws;, and to exercise other
remedies for delinquent Assessments as set forth *n the Declaration.
(h) To borrow funds in order to pay for any expenditure or outlay required pursuant
to the authority granted by the provisions of the Declaration and these Bylaws and to authorize the
appropriate officers to execute all such instrvaments evidencing such indebtedness as the Board of
.Directors may deem necessary; provided, however, that the Board will not borrow more than $10,000
or cause the Association to be indebted for more than $20,000 at any one- time without the prior
approval of a majority of votes of Members present and voting in person or by proxy on the issue.
(i) To enter into contracts within the scope of their duties and powers.
] To establish a bank account for the operating account of the Association and for
all separate funds as required or deemed advisable by the Board of Directors.
(k) To cause to be kept and maintained full and accurate.books and records
showing all of the receipts, expenses, or disbursements. Upon having been provided forty-eight (48)
hours written notice and an appointment scheduled, to permit examination of the books and records by
Members or their mortgagees.
l} To cause any and all access roads, parking areas, and roadways in and to the
Ashley Heights subdivision and across the property to be maintained to the extent those facilities are
within the jurisdiction or control of the Association, subject to the provisions of the Declaration.
gym} To cause the maintenance of the lawn, trees, shrubs, and other vegetation and
any sprinkler or other irrigation systems located on the Common Area for the benefit of the Members.
(n) To delegate to any other person or entity such of the Association's duties or
responsibilities as'may be more conveniently or efficiently performed by someone other t1m by the
Association, and to agree to assess to the Members a reasonable fee for such services, except that the
duties set forth in subparagraphs (d), (e), (f), (g) and (1) of this Section 7.02 and duties reserved to the
Board by law will not be so delegated.
Section 7.03. Accounts and Reports. The following management standards of performance
will be followed unless the Board, by resolution, specifically determines otherwise:
(a) A segregation of accounting duties should be maintained, and disbursements by
check in any amount greater than $1,000 will require two signatures. Cash disbursements will be
limited to amounts of $200 or less.
(b) Cash accounts of the Association will not be commingled with any other
accounts.
(c) No remuneration will be accepted by the Board of Directors from vendors,
independent contractors, or others providing goods or services to the- Association, whether in the form
of commissions, finder's fees, service fees, prizes, gifts, or otherwise. Anything of value received will
be for the benefit of the Association.
(d) Any financial or other interest that a member of the Board of Directors may
have in any firm (other than Declarant) providing goods or services to the Association will be disclosed
promptly to the Board of Directors.
(e) - Commencing at the end of the calendar quarter in which the first Lot is sold by
Declarant and closed, and continuing on at least an annual basis, financial reports will be prepared for
the Board of Directors containing the following:
(i) An income statement reflecting all income and expense activity for the
preceding three months;
(ii) A balance sheet as of the last day of the fiscal year; and
(I*ii) A delinquency report listing all Owners *ho,have been delinquent
during the preceding twelve- mo' nth period in � paying the periodic installments of
Assessments and who remain delinquent at the time of the report, and
describing the status of any action to collect such installments which remain
delinquent.
(f) A balance sheet as of the last day of the Association's fiscal year and an
operating statement for the fiscal year will be distributed to the Members at the Association's annual
meeting. At the written request of an Owner or mortgagee, such statements will be audited at the
requesting party's expense. Any such audited statements will be delivered to any Owner requesting the
report and to the Association upon payment of a reasonable fee for copying.
Section 7.04. ' Hearing Procedure. The Board will not impose a fine, suspend voting, or
suspend any rights of a Member or other occupant for violations of rules and regulations or of the
provisions of the Ashley Heights Documents unless and until the procedure bel6w is followed:
(a) Demand. written demand to cease and desist from the alleged violation will be
served upon the alleged violator specifying:
(l*) The alleged violation;
The action required to abate the violation-, and
(iii).A time period of not less than 10 days dosing which the violation may
be abated without further sanction, if such violation is a continuing one, or a
statement that any additional similar violation may result in the imposition of a
sanction after notice and hearing, if the violation is not continuing.
(b) Notice. At any time within. 12 months of such demand, if the violation
continues past the period allowed in the demand for abatement without penalty or if the same rule is
subsequently violated, the Board or its delegate will serve the violator with written notice of a hearing
to be held by
the Board. The notice will contain the following:
i} The nature of the alleged violation-
6
(ii) The time and place of the hearing, which time will not beless- than 10
days from the giving of the notice;
(iii) An invitation to attend the hearing and produce any statement,
evidence, and witness on the Member's behalf; and
(iv) The proposed sanction to be imposed.
(c) Hearing. The hearing will be held pursuant to the notice, affording the Member
a reasonable opportunity to be heard. Prior to the effectiveness of any sanction under these Bylaws,
proof of notice and the invitation to be heard will be placed in the minutes of the meeting. Such proof
will be deemed adequate if a copy of the notice, together with a statement of the date and manner of
delivery, is entered by the officer, director, or agent who delivered such notice. The notice requirement
will be deemed satisfied if the alleged violator appears at the meeting. The minutes of the meeting will
contain a written statement of the results of the hearing and the sanction, if any, imposed. Written and
oral evidence may be presented. The presenting party will provide copies of any written evidence to
the other party or parties. The decision of the Board will be final.
(d) AppeaL The Board may, in its discretion, appoint a Hearing Committee to
hear the matter. In such. event the above procedure will apply except that either party may appeal the
decision of the Hearing Committee to the Board by written notice to the Hearing Committee, the other
party and the Board. The Board will consider the minutes of the hearing and report the decision of the
Board within a reasonable period of time not exceeding 60 days after receipt of the notice. The
decision of the Board will be foal.
These above -described procedures will not be necessary in order to impose any sanction or penalty for
nonpayment of a delinquent Assessment.
ARTICLE V100[
OFFICERS AND THEIR DUTIES
Section 8.01. Enumeration of Officers. The officers of the 'Association will be a President,
Vice -President, Secretary and Treasurer, and. such other officers as the Board may from time to time
create by resolution.
Section 8.02. Election o, f ` Officers. The election of officers will take place at the first meeting
of,the Board of Directors following each annual meeting of the Members.
Section 8.03. Term. The officers of the Association will be elected annually by the Board,
and each will hold: office for one year or until his successor is duly elected and qualified, unless he
sooner resigns, or is removed, or is otherwise disqualified to serge.
Section 8.04. special Appointments. The Board may elect such other officers as the affairs of
the Association may require, each of whom will hold office for such period, have such authority, and
perform such duties as the Board may from time to time detennine .
Section 8.05. Resignation and Removal. Any officer may be removed from office with or
without cause by the Board. Any officer may resign at any time by giving written notice to the Board,
10
the President, or the Secretary. Such resignation will take effect on the date of receipt of such notice or
at any later time specified in the notice, and unless otherwise specified in the notice, the acceptance of
such resignation will not be necessary to make it effective.
Section 8.06. Vacancies. A vacancy in any office may be filled by appointment by the
Board. The officer appointed to such vacancy will serve for the remainder of the term of the officer
replaced.
Section 8.07. .multiple Offices. Any two or more offices. may be held by the same person.
Section 8.08. Duties. The duties of the officers are as follows:
(a) President. The President will preside at all meetings of the Association and the
Board of Directors; will see that orders and resolutions of the Board are carried out; will sign all leases,
mortgages, deeds, and other written instruments; will co-sign all promissory notes; cause to be
prepared and will execute, certify and record amendments to the Declaration on behalf of the
Association; and will exercise and discharge such other duties as may be required of the President by
the Board.
(b) Vice -President. The Vice -President will act in place and stead of the President
in the event of his absence, inability, or refusal to act, and will exercise and discharge such other duties
as may be required by the Board.
(c) secretary. The Secretary will record the votes and keep the minutes of all ,
meetings and proceedings of the Board and of the Members; keep the corporate seal of the Association
and place it on all papers requiring said seal; serve notice of meetings of the'Board and of the
Members; keep appropriate current recordslisting -the Members. together -with .their addresses; and
perform such other duties as required by the Board.
(d) D-eusurer. The Treasurer will receive and deposit in appropriate bank accounts
all monies of the Association and will disburse such funds as directed by resolution. of the Bgard of
Directors; sign all checks of the Association unless the Board specifically directs otherwise, and co-
sign all promissory notes of the Association.; keep proper books of account; at the discretion of the
Board, cause an annual audit of the Association books to be made by a public accountant at least once
even three fiscal years; and prepare an annual budget and a statement of income and expenditures to
be presented to the Members at their regular annual meeting, and deliver or make copies available of
each to the Members.
ARTICLE I
CONIl ITTLLS
The Board of Directors may appoint a Hearing Committee as described in Article VII above,
and other committees as the Board deems appropriate in carrying out its purposes. The Board of
Directors will also appoint the Architectural Review Committee.
11
ARTICLE X
INDEMNIFICATION
To the extent permitted by lave and consistent with the Articles of incorporation, the
Association will indemnify every member of the Board of Directors, 'and every officer, employee
and agent of the Association and every person who serves at the request of the Association as a
director, officer, employee, fiduciary, or agent of any other foreign or domestic corporation or of
any partnership, joint venture, trust or other enterprise or employee benefit plan against liability
asserted against or incurred by such person in such capacity or arising out of that person's capacity
as such. The indemnification permitted under this Article will not extend, in any event, to any act
or omission occunng prior to the date of incorporation of the Association. All liability, loss,
damage, cost and expense arising out of or in connection with the foregoing indemnification
provisions will be .treated and handled by the Association as a Common Expense.
ARTICLE xI
NONPROFIT CORPORATION
The Association is not organised for profit. No member of the association, member of the
Board of Directors, or person from whom the Association may receive any property or funds will
receive or will be lawfully entitled to -receive any pecuniary profit .from the operations of the
Association, and in no event will any part, of the funds or assets of the Association be paid as a
dividend or be distributed to, or inure to the benefit.of, any.member ofthe:Board of Directors.
Notwithstanding the foregoing, (i) reasonable compensation may,be paid -to any Member or Manager
acting as an agent or employee of the Association for services rendered in e'ffecti.ng one or more of the
purposes of the Association, (ii) any Member or Manager may, from time to time; be reimbursed for
actual and reasonable expenses incurred in connection with the administration of the affairs of the
Association, and any Director may be reimbursed for actual expenses incurred in the performance of
his duties.
ARTICLE
AMENDMENTS
These Bylaws may be amended, at a regular or special meeting of the Board, by a vote of a
majority of a quorum of Directors present %n person or by proxy, but amendment of Article V, x, XH
or any portion of those Articles will require approval of all Directors.
ARTICLE
MISCELLANEOUS
Section 13.01, Fiscal Year. The fiscal year of the Association will begin on the first day of
January and end of the 31" day of December every year, except that the first fiscal year will begin on
the date of incorporation.
Section 13.02. Corporate Seal. The Association will have a seal in circular form having
within its circumference the words: "Ashley Heights Homeowners' Association, Inc."
12
Section 13.03. Conflicts of .Documents. In the case 'of any conflict between the Articles of
Incorporation and these Bylaws, the Articles will control; and in the ease of any conflict between the
Declaration and these Bylaws, the Declaration will control.
The undersigned members of the initial Board of Directors have executed these Bylaws this
day of - - 2007.
Tom. Bowen
Hubert J. Turner
Wesley W. Turner
STATE OF MONTANA �
:Ss
DRAFT
County of Flathead
This instrument was acknowledged before me on this day of
,
20071 by Tom Bowen, Hubert J. Turner and Wesley W. Turner.
Notary Public for the Mate of Montana
Residing at Kalispell, Montana -
My commission expires: April 1, 2008
13
Section 12.3. Physical Damage .insurance on Common Area. The Ashley Heights
Homeowners' Association will obtain insurance for such insurable Improvements and with such
coverages, limits, deductibles and other terms and conditions as the Board may determine from
time to time.
Section 12.4. Liability Insurance. The Ashley Heights Homeowners' Association will
obtain a comprehensive policy of public liability insurance and property damage insurance with
such coverages and limits as the Board of Directors may from time to time determine, insuring
each member of the Board of Directors, the Ashley Heights Homeowners' Association, and the
employees, respective agents, and all persons acting as agents against any liability to the public
p
or the Owners (and thee* guests, invites, tenants, agents, and employees) arising in connection
with the ownership, operation, maintenance or use of the Oom non Area and streets and roads
within Ashley Heights and any other areas under the .control 'of the Ashley Heights Homeowners'
Association. Declarant will be include. in the coverage as an additional �asured iri Declarant s
capacity as an Owner or Director.
ARTICLE III
ENFORCEMENT OF COVENANTS
Section 13.1. Violations .Deemed a Nuisance. Every violation of this Declaration or any
other violation of the Ashley Heights Documents is deemed to be a nuisance and is subject to all
the remedies provided for the abatement of the violation. In addition, all public and private
remedies allowed at law or. equity against anyone in violation 'f these Covenants will be
available.
Section 13.2. Compliance. Each Owner or other occupant of any part of the Property
will comply with the provisions of the Ashley Heights Documents as the same may be amended
from time to time.
Section 13.3. Failure to Comply. Failure to Comply with the Ashley Heights
Documents will be grounds for an action to recover damages or for injunctive relief to cause any
such violation to be remedied, or both. Reasonable notice . and an opportunity for a hearing as
provided in the Bylaws will be given to the delinquent.party prior to commencing any legal
proceedings.
Section 13.4. 91ho may Enforce. Any action to enforce the Ashley Heights Documents
may be brought. by Declarant or the Board in the name of the Ashley Heights Homeowners'
Association on behalf of the Owners. If, after a written request from an aggrieved Owner, none
of the foregoing persons or entities commences an action to enforce the Ashley Heights
Documents, then the aggrieved Owner may bang such an action.
Section 13.5. ,nonexclusive Remedies. All the remedies set forth herein are cumulative
and not exclusive.
22
Section-13.6. No Waiver. The failure of the Board of Directors, Declarant, or any
aggrieved Owner to enforce the Ashley Heights D o currents in any one or more instances will not
be deemed a waiver of the right to do so for any subsequent violations or of the right to enforce
any other part of the Ashley Heights Documents at any future time.
Section 13.7. No .liability. No member of the Board of Directors, the Declarant or any
owner will be liable to any other Owner for the failure to enforce any of the Ashley Heights
Documents at any time.
Section 13.8. Recovery of Costs. If legal assistance is obtained to enforce any of the
provisions of the Ashley Heights Documents, or m' any'legal proceeding (whether or not suit is
brought) for damages or for the enforcement of the Ashley Heights Documents or the restraint of
violations of the Ashley Heights Documents, the prevailing party will be entitled to recover all
costs incurred by it in such action, including reasonable attorneys' fees (anal legal assistant's
fees) as may be incurred, or if suit is brought, as may be determined by the court.
ARTICLE NIV
RESOLUTION OF DISPUTES
If any dispute or question arises between Members or between Members and the Ashley
Heights Homeowners' Association or relating to the interpretation, performance or
nonperformance; violation, or enforcement of the Ashley Heights Documents, such dispute or
violation may be subject to a hearing and determination by the Board in accordance with the
procedures set forth in the Bylaws.
ARTICLE XV
DURATION OF TSB SE COVENANTS AND A IENDMENT
Section 15.1 Fern. This Declaration and any amendments or supplements hereto will
remi.am in effect from the date of recordation until the. 3Oth anniversary of the date this
Declaration is first recorded in the -office of the Clerk and Recorder of Flathead County,
Montana. Thereafter these Covenants will be automatically extended for five successive p erio ds
of ten years each, unless otherwise terminated or modified as provided below.
Section 15.2.. Amendment. Subject to Section 15.3. this Declarations yor an provision
of it, may be terminated, extended, modified or amended, or revoked as to the whole or any
portion of the Property as follows:
15.2.1. Friar to Sale of Lots. Prior to the sale of any Lot, the Declarant (*including
a Successor Declarant) may terminate, extend, modify, amend or revoke this Declaration as to
the whole or any portion of the Property by recording in the records of Flathead County,
Montana, a document signed by the Declarant stating the action taken.
15.2.2. after sale o f `Lots but During Period of Declarant CoritroL After the sale
of a Lot but before expiration of the Period of Declarant Control, Declarant (including any
Successor Declarant) may terminate, extend, modify, amend or revoke this Declaration as to the
23
whole or any portion of the Property. A copy of the document stating the action intended to be
taken by the Declarant and a notice of the Owners' rights under this Section shall be mailed to
each Owner by first class mail, postage prepaid, to the address of the Owner on the records of
Ashley Heights Homeowners' Association. Unless written objection is received by the
Declarant from the Owners holding 80% or more of the votes within- 30 days of the mailing of
the notice to the owners, the action proposed to be taken by the Declarant shall be considered
approved and shall become final. The Declarant shall then record in the ,records of Flathead
County, Montana, a document stating the action taken, together with a. certificate certifying that
notice was given to the Owners as required herein and that fewer than 80% of the Owners
objected to the action.
15.2.3. After the Period of Declarant Control. After the Period of Declarant
Control, this Declaration, or any provision of it, maybe terminated, extended, modified or
amended., or revoked as to the whole or any portion of the Property upon the written consent of
Owners holding 67% or more of the votes in the Ashley Heights Homeowners' Association.
Any document will be immediately effective upon recording in the, records of Flathead County,
Montana, a copy of such executed and acknowledged by the necessary number of Owners, or
alternatively, upon the- recording in the records of Flathead County, Montana, of a copy of the
� PY
document together with a certificate signed by an officer of the Ashley Heights Homeowners'
Association stating that the required number of consents of owners were obtained.
Section 15.3. Decl gran i s Approval. Notwithstanding the provisions of Section 15.2. no
termination, extension, modification or amendment of this Declaration will be effective in any
event during the Period of Declarant Control unless the, written .approval of Declarant is first
obtained.
Section 15.4. affect ofArncndmen ts. 'A.mendrnents made pursuant to this Section will
inure to the benefit of and be bindin upon all Owners their familiesguests, invitees and
employees, and their respective heirs, successors, and assigns. Joinder of the First Mortgagees
shall not be required in order to effect an amendment.
ARTICLE XVI
NUSCELLANEOUS PROVISIONS
Section 16.1. S'cvcrability. This Declaration, to the extent possible, will be construed or
reformed so as to give validity to all of its provisions. Any provision of this Declaration found to
be prohibited by law or unenforceable will be ineffective to the extent of such prohibition or
unenforceability without invalidating any other part hereof.
Section 16.2. Construction. In interpreting words in this Declaration, unless the context
will otherwise provide or require, the singular will include the plural, the plural will include the
singular, and the use of any gender will include all genders.
Section 16.3. Headings. The headings are iriGluded only for purposes of convenient
reference, and they will not affect the meaning or interpretation of this- Declaration..
24
Section 16.4. Waiver. No failure on the part. of the Ashley -Heights Homeowners'
Association or the Board to give notice or default or to exercise or to delay in exercising any
right or remedy will operate as a waiver, except as specifically provided above in the event the
Board fails to respond to certain requests. No waiver will be effective unless it is %n writing and
signed by the President or Vice President of the Board on behalf of the Ashley Heights
Homeowners' Association.
Section 16.5. Limitation of Liability. Neither the Declarant, the Ashley Heights
Homeowners' .Association nor any partner, officer or member of either the Declarant or the
Board will be liable to any party for any action or for any failure to act with respect to any matter
arising by, through, or under the Ashley Heights Documents if the action or failure was made in
good faith. The Ashley Heights Homeowners' Association gill indemnify all of the ' officers and
Board members - with respect lo any act taken in their official capacity to the extent provided in
this Declaration and by law and in the Articles of Incorporation and Bylaws.
Section 16.6. Conflicts .between .Documents. In case of conflict between this
Declaration and the Articles of Incorporation or the Bylaws, this Declaration will control. In
case of conflict between the Articles of Incorporation and the Bylaws, the Articles of
Incorporation will control.
Section 16- 7. Assignment. Declarant may assign all or an art of the Special
Declarant Rights or any of Declarants other rights and reservations hereunder to any successor
who tapes title to all or part of the . Property in � a bulk purchase for the pure o s e of development.
and sale. Such successor will be identif ed, .the particular rights being -assl ed will be specified,
and, to the extent required, concomitant obligations will be expressly assumed by such successor,
all in a written instrument duly recorded in the records of the Clerk and Recorder of Flathead
County, Montana.
25
IN WUNESS WHEREOF, Declarant has signed this Declaration on the Date shown
above.
JUST DIRT LTD.
DRAFT
Hubert I Turner, President
STATE of MONTANA
:ss
County of Flathead
This instrument -was acknowledged before me on this day of
20071 by Hubert J. Turner as President of Just Dirt Ltd.
Notary Public for. the State of Montana
Residing at Kalispell, Montana
My commission expires April 1, 2008
26
SECR.�'T.A��,�t�� STET
STATE OF IvIONTANA
BRAD JOHNSON
Montana Mate Capitol
PO Box 202801
Helena, MT 59620-2801
(406) -3665
hqp://www.sos.mt. _ v
LAW 0OF vINCENT G RIEGER PC
4 IER1 DLkN COURT
ALISPELL MT 59901 .
Febru 23 2007 _
,��,.
p ,g_
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$P
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�'-..S''"§' .�. ✓� � 4��3 -•g,�" �>rs��4 �i��r� SF`.' a`"�F�s' �fi.�'
,•r.: f.»a�.v+n�>�r.�..,: .x�r. .. �z..,'��- �>� �-w� .3£s=�"� ;Trsr ram. a...z ..:x-; 5;..:x� -z..YS'.;a-x:�.a��.s .�sF: r::,, ..�. q,. !i"•�'_ >. � .l
Dear MR. Rieger:
I've approved the filing of the documents for the above named entity. The document number
and filing date have been recorded on the original document. This letter serves as your
certificate of filing and should be maintained in your files for future reference.
Thank you for giving this office the opportunity to serve you. if you have any questions in this
regard, or need additional assistance, please do not hesitate to contact the Business Services
Bureau professionals at (406) 3665.
Sincerely,
BRAD JoHNSo
Secretary of State
You can correspond with our office via.facsimiie. -Our fax number is (406) 444-3976. You can now fax in
Your search, copy, and certificate requests.
After recording return to:
Vincent G. Rieger
Law Office of Vincent G. Rieger, P.C.
4 Meridian Court
Kalispell, MT 59901
ARTICLES OF INCORPORATION
NA,
- LED
RED 2 3 2007
EQfETARy OF
OF
A.SHLEY HEIGHTS HOMEOWNERS' ASSOCIATION INC.
Pursuant to'S ection 3 5 -2-202, MCA, of the Montana Non -Profit Corporation Act, the
undersigned corporation hereby adopts, in the manner prescribed by statute, the following
Articles of Incorporation.
ARTICLE I
The name of the corporation is "ASHLEY HEIGHTS HOMEOWNERS'
ASSOCIATION, INC."
ARTICLE 111,
The corporation shall have perpetual existence unless otherwise dissolved _:r conserj a pr
by operation of law. =NO
ARTICLE Ili
The purpose for which the corporation is organized is to operate a homeovmers'
association for the Ashley Heights subdivision in Flathead County, Montana, and for relatetp
.purposes. This corporation is and shall be a non-profit corporation, located in Flathead County,
Montana. This corporation is a mutual benefit corporation. The corporation shall have such
powers as may be necessary to carry out its above -stated purpose in addition to those permitted
and provided bylaw,
ARTICLE IV
This corporation shall not have or issue any shares of stock. No dividends shall be paid
and no part of the income or profit of this corporation shall be distributed to its members,
1
directors or off eers, except that the corporation shall be authorized and empowered to pay -
reasonable compensation for services rendered and to make payments and distributions in
furtherance of the purposes of the corporation. No substantial- part of the activities of the
corporation shall be the carrying on of propaganda or other ise ' attempting to influence
legislation. The corporation shall not participate *in or intervene in any political campaign on
behalf of any candidate for public office.
ARTICLE V
Upon dissolution of the corporation, the Board of Directors shall pay or make provision
for the payment of all the liabilities of the corporation and shall thereafter dispose of all of the
assets of the corporation exclusively in accordance with the purposes of the corporation. Any
such assets not so disposed of shall be disposed of by the district court of the country in which
the principal. office of the corporation is located for such purposes or -related purposes or- to such
organization or organizations as the, Court shall determine.
ARTICLE VI
The members of this corporation and the management of its affairs shall be vested in a
Board of Directors as prescribed in the Bylaws.
ARTICLE VII
The members of the corporation shall be the Owners of the -Lots which are .presently or
which may in the future be part of the Ashley Heights subdivision' as -provided in the Declaration
of Covenants, Conditions, Restrictions and Easements for, Ashley Heights to be recorded in the
office of the Clerk and Recorder of Flathead County, Montana, as amended from time to time
the "Declaration"). Capitalized terms used in these Articles of Incorporation shall have.the
same meaning in the Declaration.
ARTICLE VM
The address of the initial registered office of the corporation is 3300 Highway 2 1 West�,
Kalispell, Montana 59901, and -the name of its initial registered agent at such addreo4s Huber t.
Turner.
ARTICLE IX
The name and address of the incorporator of this corporation are as follows;;..:
Hubert J. Turner 1053 Stillwater Road
Kalispell, MT 59901.
2
DATED this �/aay of y �-���2007.
Hubert IAu'-'rm"er
STATE OF MONTANA
Iss
County of Flathead
This instrument was acknowledged before me on this day of
2007, by Hubert J. Turner.
. f
uu t,�s� r�,,l r f,
Notary Public for, c St�.t of Mon6na
��� G.
r
Residin at Kalispell, Montana
My commission expires: April 1,00
41
F i�[11VV�J'j\�`�i11
y
71
j
1
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3
JUL.17.2007 22:08 406 751 8210
FLATHEAD COUNTY PLANNING ZONING #6958 P.001r002
July 107 2007
Kalispell Planning Board
Rcf; Ashley Heights Subdivision,
My Name is Angic Kruckenberg
Thank you Scats for meeting with iii last
permission to develop another subdivisic
TFOLFFIC HAZARD
Sunnyside road cannot handle the 200 pl
want to develop. This road is still the n
when 1 was ► -child I iv ing i n this comrn111
D
l�, �.'��' r • rr
1116 Sunnyside 'Dr.
ight helping, us understand the agenda on this proposal for
. by the 'rumor Family dba Ashley 'HeightsLLC
Ls cars additional that these 26 projected lots the Turners
uTow 20 to 22 feet wide that it was more than 65 years ago
ity This NARROW Sunnyside has become the. HYPA�S±
Traffic here flows in and out from thou ds of houses in these developments between .,Airport Road
and Valley View Drive, PLUS from hun reds of people from subdivisions and areas around Foys
Lake., .K.11a, Ashley lake, Smith Valley, ajid Marian who use this BYPASS to get South of Kal' ell SP
1s it a lack of planning far enough ahead ror the road wrridors for the masses being annexed?
In their haste to be the biggest and the b , overzealous bureaucrats were totally blinded to the vital
arteries for traffic which should have ben planned for and provided BE,FOR.F. pushing the, density
they did.. what a free rule for the developers in this conununity# what hardships for those whom
they were building, for. Talk about running rampant, whole neighborhoods are now
subjected to the danger that is created fr rn a totally inadequate network, of rnai or roadways.
I sal leS ladies an
materialize by,enco
u
more. Do not create .j
BASIS.: REASON FOR TTJRNERS P1
As f see ita the proposed Bypass on the 1
0,18urners purchashig this very small piece
necessary .lt`edcra.l Road system is genera
has pushed a deal to really make more e
paid for land that is not filled with platir
on this smalI piece: of property is not iri I
those atTordable lining recipients. The
project t)q)e houses. Thus my encourdg1
Rural R l zoning or designation, There
allow hig la= addiflegg! 11LIamt oft C o
ban and Rural R-1 Sunnvside road. cannot handle
lis rcolnitudEt
RCHAS'ING THTS VERY SMAL1, PARCEL
t)utb side of this Ashley heights was the ma.irn thrust of the
of property. The Gamble to make big bucks from the very
# l y a goad gamble. I Iowever T feel that the Turners rcaltor
rmrni ssions for himself by encouraging higher prices being
im, gold and silver.. I believe that this land development
no best of interest of the future prospective buyers. Or
iurchase cost of the r-aw land was far too much to dcvclop
ment to tlis planning board to vote for a continua'.ce of
are people with families whodesire one acre home plots..
,A►LELIt Lt GROUND.
When we excavated for our basement, b>ulden were abundant and we had enough to go around a
large pt)rtion Of OLIt acre.. we poured th fc tings for our basement on top of hard alkali ground.
This is the type of soil that water does s alp into but will flow down the hill. l low much more water
run off and ut i I ity error runoff can those properties below this hill take. The flooding is tern ble
now. DO NOTALLOW LOW ANOTHER EVELOP TO ADD TO rt'.I. EIR DTSTRF.$S
If this development is aiiowcd under (A y R2, . are you wiling to held the city's lawsuits`
JUL.17,2007 22:49 406 751 8210
FLATHEAD COUNTY PLANNING ZONING #6958 P.0021442
T
VL a
�ALVSP L P � I yli,u1y 07
i
City of Kalispell Planning Commissioner & Panning Depanment
l 7-2"" Strcct T�4 ast, Suite 211, Kalispell, MT 51901 Fwx ' Fo both: 758-586 l & 75 l - l 858
Notice of Public Hearing, Kolispell City
A.%hlcy Hcigh6, .LLB.`.
bear planning: Commissioner,
Wc a;o against the proposed re -zoning of A.01
zoning petition- but do not object to annexatio
afti clef_ We object to the proposed zoning vK
Sunnyside subdivision is already too dcrtse an,
for '4.affordaOlc housing" should not be at th(.%,
excessivo density of housing and road (raf ic.
that is trying to incrcuc the density of their pr
The dins ityr of :his arc;j his bvet} an ongoing,
because cif the small lot sizcs, ove rcmwdi ng
safe ingress and egrvs�. As you are well a wai
the 01ty to lima the number oftwo family la
S'unnyside, there were significant problems tl
l a.wsuiL� filed eagidnrsl. Ow l .I.Xwelopment. we
current zoning of County R-1, as long its the
wrresponding degradation of smices to oth,
nafng Board and Zoning Commission .July 10, Z007 —
,y I leights LLC project. from R-i to R-2 or any other .re_
t. We live in the neighborhood and will be dimetl y
rigs requested from Ashley Heights, LLB' becau-�e
the Developers" desire to develop the pn)perty to allow
xpense of the rest of tht: ncrighborhood huvit)g to absorb
'he "'affordable housing," mantra is used by every developer
►ject and increase their profits_
roble.nm with Owl Development and other developer -
F duplexes and townhouses, and inadequate rakads to providc
although Owl Development rcae:hc'd an agreement with
as a condiiioit to receiving their final plat approved for
tt subseyuendy developed which resulted in several
b not object to the annexation of the property with
ity is con tident that it can provide. sorvices without a
resident-s of the community,
Wc; do not. need to create anotWr F*.mpim Est es situt#tiott with overcrowding by allowing Ashley
I leights. L LC to be .-vi nexed into the City of al ispell with the R-2, R-3 or R-4 two family residential-
zonutg. Single-family httimos would be accept kyle and consistent with ats current zoning. The 1 I - ache
par eI was initi-,ri iy (mrmark ed for ( l I ) one:-ac • ,-;ing,le-family homes_ With the future bypam car ni arked
to start any clay now, f petition the planning? d partment to not subject any more residents that tl cssary
to the noise Hail traff c that will come as a res It of the Bypass pnVeot.
I ,efs loam froni our lust mistakes from Sunn side, Empire Estates and officr overly dense communitic4s
by not approving this xoning change. Just driN c t.hrou&h Empire EMato to see how overly dense the
subdivision is with cats, trailers, boats, acid R 's parked un the: streets because the lots did not provide for
ctiough square f botaoe. to build adequate gara cs and driveways. Re -zoning under the guise of"aff"crdable
housin"I" aS 11101 iti the best interest of our com unities. The: lots are not being sold at any rcduccd price
1.hat i -s passed onto the buyers_ it is the develo rs and builders -that. are, capitalizing on the benefits o f ft
r .wning. lio ni c of the cornrr uni tics in Kai is 1) are bci ng allowed to develop the comrr,un iti cs to
resemble loNv-income housing* projectts fmmdn other cities and commonly referred to as "The Pruiel;t."
Respectfully su0mitted by:
C t'X V1
-.1
Jul 10 07 09 : 36p Mike Graf [ 4QG 1 75G - 921 G P.1
TIME SENSITIVE
July 9, 2007
City of Kalispell Planning Commissioner & Planning Department
17w-2"d Street East, Suite 211, Kalispell, MT 59901 Fax To both: 75 8-5 861 & 751- 18 5 8
_U: Notice of Public Hearing, Kalispell City Planning Board and Zoning Commission July 10, 2007 --
Ashley Heights, LLC.
Dear Planning Commissioner,
We are against the proposed rezoning of Ashley Heights LLC project from R- l to R-2 or any other re-
zoning petition, but do not object to annexation. We live in the neighborhood and will be directly
affected. We object to the proposed zoning change requested from Ashley Heights, LLC because
Sunnyside subdivision is already too dense and the Developers' desire to develop the property to allow
for "affordable housing" should not be at the expense of the rest of the neighborhood having to absorb
excessive density of housing and road traffic. The "affordable housing" mantra is used by every developer
that is trying to increase the density of their project and increase their profits.
The density of this area has bccn an ongoing problem with Owl Development and ether developers
because of the small lot sizes, overcrowding of duplexes and townhouses, and inadequate roads to provide
safe ingress and egress. As you are well aware, although Owl Development reached an agreement with
the City to limit the number of two family lots as a condition to receiving their final plat approved for
Sunnyside, there were significant problems that subsequently developed which resulted in several
lawsuits filed against Owl Development. We do not object to the annexation of the property with its
current zoning of County R- I , as long as the City is confident that it can provide services without a
corresponding degradation of services to other residents of the community.
We do not need to create another Empire Estates situation with overcrowding by allowing Ashley
Heights, LLC to be annexed into the City of Kalispell with the R--2, R-3 or R-4 two family residential -
zoning. Single-family homes would be acceptable and consistent with its current zoning_ The l l - acre
parcel was initially earmarked for (11) one -acre single-family homes. with the future bypass earmarked
to start any day now, I petition the planning department to not subject any mare residents than necessary
to the noise and traffic that will come as a result of the Bypass Project.
Let's learn from our past mistakes from Sunnyside, Empire Estates and other overly dense communities
by not approving this zoning change. Just drive through Empire Estates to see how overly dense the
subdivision is with cars, trailers, boats, and RV's parked on the streets because the lots did not provide for
enough square footage to build adequate garages and driveways. Re -zoning under the guise of `"afforrdable
housing" is not in the best interest of our communities. The lots are not being sold at any reduced price
that is passed onto the buyers. It is the developers and builders that are capitalizing on the benefits of the
rezoning. Some of the communities in Kalispell are being allowed to develop the communities to
resemble low-income housing projects found to other cities and commonly referred to as "The Project."
Respectfu{I submi d b
TIME SENSITIVE
July 9, 2007
City of Kalispell Planning Commissioner & Planning Department
17-2"d Street East, Suite 2111, Kalispell, MT 59901 Fax To both: 758-5861 & 751-I858
RE: Notice of Public Hearing, Kalispell City Planning Board and Zoning Commission July 10, 2007 --
Ashley Heights, LLC,
Dear Planning Commissioner,
We are against the proposed re -zoning of Ashley Heights LLC project from R-1 to R-2 or any other re-
zoning petition, but do not object to annexation. We live in the neighborhood and will be directly
affected. We object to the proposed zoning change requested from Ashley Heights, LLC because
Sunnyside subdivision is already too dense and the Developers' desire to develop the property to allow
for "affordable housing" should not be at the expense of the rest of the neighborhood having to absorb
excessive density of housing and road traffic. The "affordable housing" mantra is used by every developer
that is trying to increase the density of their project and increase their profits.
The density of this area has been an ongoing problem with Owl Development and other developers
because of the small lot sizes, overcrowding of duplexes and townhouses, and inadequate roads to provide
safe ingress and egress. As you are well aware, although Owl Development reached an agreement with
the City to limit the number of two family lots as a condition to receiving their final plat approved for
Sunnyside, there were significant problems that subsequently developed which resulted in several
lawsuits filed against owl Development. We do not object to the annexation of the property with its
current zoning of County R-1, as long as the City is confident that it can provide services without a
corresponding degradation of services to other residents of the community.
We do not need to create another Empire Estates situation with overcrowding by allowing Ashley
Heights, LLC to be annexed into the City of Kalispell with the R.-Z, R-3 or R-4 two family residential -
zoning. Single-family homes would be acceptable and consistent with its current zoning. The 1 I- acre
parcel was initially earmarked for ( 11 ) one -acre single-family homes. With the future bypass earmarked
to start any day now, I petition the planning department to not subject any more residents than necessary
to the noise and traffic that will come as a result of the Bypass Project.
Let's learn from our past mistakes from Sunnyside, Empire Estates and other overly dense communities
by not approving this zoning change. Just drive through Empire Estates to see how overly dense the
subdivision is with cars, trailers, boats, and RV's parked on the streets because the lots did not provide for
enough square footage to build adequate garages and driveways. Re -zoning under the guise of "affordable
housing" is not in the best interest of our communities. The lots are not being sold at any reduced price
that is passed onto the buyers. It is the developers and builders that are capitalizing on the benefits of the
rezoning. Some of the communities in Kalispell are being allowed to develop the communities to
resemble low-income housing projects found in other cities and commonly referred to as "The Project."
Respectfully submitted by:
U
07f 10/ 280? 10 : 48 4068377503 SWAN LAKE RD PAGE 01 / 01
TUVM SE2jal
Pp� lf.} S 4�kiE.��1 will tltk� i�ia.c
July 9,2007
City of Kalispell Planm`ng Comm issioner & Planning Department
17-2"4 Street East, Suite 211, Kalispell, MT 59901 Fax To both. 758-5 8b 1 & 751-1858
U-. Notice of Public Hearin$, Kalispell City Manning Board and Zoning Commission July 10, 2007 —
hley Heights, LLC.
.ear .Planning Commissioner,
We are against the proposed re -zoning of Ashley Heights LLC project from R-I to R-2 or any other re-
zoning petition, but do not object to annexation. We live in the neighborhood and will be directly
affected. We object to the proposed zoning change requested from Ashley Heights, LLC because
Sunnysidc subdivision is ally too dense and the Developers" desire to develop the property to allow
for "affordable housing" should not be at the expense of the rest of the Neighborhood having to absorb
excessive density of housing and road traffic, The "affordable housing" mantra is ugcd by every developer
that is trying to increase the density of their proj'cet and incrcase their profits.
The density of this area has been an ongoing problem with Owl Development and other developers
because of the small lot sizes, overcrowding of duplexes and townhouses, anal inadequate roads to provide
safe ingress and egress. As you are well aware, although Owl Development reached an agreement with
the City to limit the number of two family lots as a condition to receiving their final plat approved for
Sunnyside, there were significant problems that subsequently developed which resulted in several
lawsuits filed against Owl Development. We do not object to the annexation of the property with its
current zoning of County R-1, as long as the City is confident that it can provide services without a
corresponding degradation of servi= to other midents of the community.
We do not need to create another Empire Estates situation, with overcrowding by allowing Ashley
Heights, LLC to be annexed into the City of Kalispell with the R-2, R-3 or R--4 two family residential
zoning. Single-family homes would be acceptable and consistent with its current zoning- The I I- acre
parcel was initially earmarked for 01) one -acre single-family homes. With the future bypass earmarked
to start any day now, I petition the planning department to not subject any more residents than necessary
to the noise and traffic that will come as a result of the 3ypass Prgject.
Let's learn from our past mistakes from Sunnyside, Empire Estates and other overly dense communities
by not approving this zoning change. Just drive through Empire Estates to see how overly dense the
Subdivision is with cars, trailer,, boats, and .RV's parked on the streets because the lots did not provide for
enough square footage to build adequate prages and driveways. Re -zoning under the guise of "affordable
housing"7 Is not in the best intent of our communities. The lots are not being sold at any reduced price
that is passed onto the buyers_ It is the developers and builders that are capitalizing on the benefits of the
rezoning. Some of the communitiesin Kalispell arc being allowed to develop the communities to
resemble low-income housing projects found in other cities and commonly referred to as "The Project."
Respectfully submi y;
Kalispell Transmission R 406-75G- 7SS2 P i
f • +f
'007 S
TIME SENSITIVE
J u ly 1). 2007
City of KatlispelI P1$-Unniiig Commissioner & I"Itrnning I)cp,irtl»c:rtit
17-2" `i Street East, Suite 211, Kalispell, MT 59901 F'ax To both: 758-5861 & 75 l -18 58
R T., Not tee of Pu1)1 is 1.leari ng, Kalispell City P[a is iting Roard a nil Zoai it Coin tit issioit .1 uty 10, 2007 —
ry
Ashlety Heights, ALL .
Dear Planning Commissioner.
We are agai nit die proposed re-7.oning of Ashley I leI6hts 1,I.0 1)ro.je ;t fro R - I tc) R-? t)!• 4-6111y c)tIle (- t`t;-
zoning peotion, but d() n()t object. to annexation. We Irvc: iii I he 1)eItrllbo1-11ood -)IId wiII he cliI,kxII
affic0cd. wc: ob�Ic:ct to (lie proposcd zoning Oungt: rt.qucswd lroill As-hivy I.1�,;i��l�ts, i U.' bcc:,,,t1s- :
Sunnysidc subdivisiun is arlr(;atdy tuo dl ;nsc and the: 0(;vv:lol ere' divs ire to d4uOop Ifiv pi-np(;rry l« ;illow
for "at'-ordablc housing" should not be at the expense ol'th4 rest of'the Inc: ghbor-hood having to absorb
excessive density of housing, and road traffic. The %bal Ordiable hoLkiing.. 111aIItr,i is- used by every developer
that is trying to increase the dcrtsity oC their prcijec:t and inc;r•e4ase their prof Ls.
The density of this area has been ail ongoing, problem with Cowl DeveiOpment and other developers
�=usc ofthe mnall lest si7es,, overcrowding cif' duplexes :mil townhouses, and inadc gUILIte goads to 1)tx)vide
.;afc ingress and egr"s. As you are well aware, although Owl Developnle nt r•eac:heci at) agrLenacrt with
aie City to Iiinit. the number et`t.wo famiIV Iots 4as a Condition t.0 I`Cceiviiaf,; their 1i11:11 111at approvud 11)1`
Sunnyside. there were significant problems that sub,.seq teMly devclopc:tl whicli rc;sullcd in sevenil
Itswsuits riled against Cowl Development. we dot noL ob'jec;t (o thy~ minc xa(ion ol` (lie property with its
current zoning of County R--I, air long as the City is c onfident that it can pro v1de servic:es without a
c:om%,:;ponding degradation cif,c:rvices to othcr residents ol'tlw comiIILIIIIIY.
WG do not nee*d to creaw �inothc;r Empire: 1,�itatvs siIuOtion urovc.rci-wwJin1� by AaII()w111g Ash It;
I lei ghts, LLB' to be �ncxcd into tlic City oI` KaIispeII with the lbw?. ISM car R-4 1Wo (II III ily res. Idcntiatl-
zaning. Single--larnily homes would be acceptable and consistent with its current zoning. 'I'lle I I -- acre
parcel was initially c:ar-rnarkcd for (1 1) one -acre single- l-a mi Iy homes. with the future. bypass ear•mat l-ked
to start any day now, I petition the; planning departinunt to not Nr11).je.�ct ally more nnsiderats [hart nec:cssary
to the noise rind tnail is that will corneas a rCSLIII 01'111c 1�yp4-rss Pr'cfIC0.
Let's letani !tuns our past mistakes I1'om Sunnyside, Empirc: I,Lstaatcs and Wher- overiv dense c .sous-itinities
by not approving this zoning change. Just drive through I"'Impire 17sulte�i to see how overly denwtt the
subcliviwi,on is with cars. trstilu s, boats. <tra(I l�V's p:rr`fcc;tl onthe 4trtiet� I�c:c::lajwc` tl]e I�yts slid not provide I�ir'
enough squam ibot,,agc to build adetlwjte g:rniges .and drivc.w;iys. RC-Mt)Mg E11)(iCI' 111C �,PLWSe 01',1141i�r`c1.11)IC
housing,. is not; in the best interest of our "I'lle lefts ;arty, nol bcingl wales at tarry r educ-cd price
than is passed onto the buyers. it is the developers -and builiiers than are capitalizing on the benel'its 01` the
rezoning. Some ofthe commUnitics In Kalispell are being aallowed to dcvQ1op the communities to
resenible low-income housing pmjc:cts found in other cities and c oii) r)10r1ly 1'0Ic1'1-ed Lo as l'r'oitrCt."
U'Spect.tully subnllt ed by.
'UL 2007
Donald & Karen Cromwell
340 McGregor Lane, Marion, Montana 59925
(406) 858-2498
TIME SENSITIn
July S, 2007
City of Kalispell PI Comrmssioner & Flag Department
17-2"d street Eat, Suite 211
Kalispell, Montana 59901
�: Notice ofPublic Hearing, Kalispell City Planni'g Board and Zoning Comxission July
10, 2007 -- Ashley Heights, LLC,
Dear Planning COMMisSIonex,
We are a.gabw-t to the proposed re -zoning of Ashley Heights LLC project from R-1 to R 2 or any
other re -zoning petition, but do not object to annex,atioxn. We are the owncs of 702 Ashley
Driver Kalispell. our single family home is located on the western end of Bistnark Street and
AWey Drive.
We o bj ect to the proposed nm'g cbaaage rcqucsted from Ashley Heights, LLC because
S urmy side subdivision is alrcady too dense and the Devclopers' desire to develop the property to
allow for "'affordable housing" should not be at the expense of the rest of the neighborhood
having to absorb excessive dcnsity of housing and road tic. The "affordable housing" mantra
is used by every deveooper that is trym* & to increase the density of their project and increase their
profits*
The density of this area has been an ongoing, problem with Owl Development and other
developers because of the small lot sues, overcrowding of duplexes and townhouses, and
inadequate roads to provide safe ingress and egress. As you are well aware, although Owl,
Development reached an agreement with the City to Umit the number of two family lots as a
condition to receiving their final plat approved for Sunnyside, there werc significaat problems
that subsequently developed which resulted in several lawsuits tiled against owl Development.
We do not object to the annexation of the property with its current zoning of County R 1, as long
as the City is confident that it can provide sczvices without a corresponding degradation of
services to other residents of the eominu .ty,
We do not need to create another Empire Estates situation with overcrowding by allowing
Ashley Heights, LLC to be amexed into the City of K4i.spell with the R-2, R-3 or R-4 two
family residential -zoning* Singlo-fhnxily homes would be accepiable and consistent with its
current zo=9. The 11- acre parcel was initially earn awked for (11) one -acre single-farnlly
homes. with the future bypass earmarked to start any day now, i petition the plan�g
department to not subject any more residents than necessary to the noise and traffic c that will
come as a result of the Bypass Project.
Let's l earn from our past mistakes from Sunnysidc, Empire Estates and other overly dense
conmumdes by not approvwg this zoning change. gust drive through Empire Estates to see how
overly dense the subdivision is with cars, trailers, boats, and RV' s parked on the streets because
the lots did not provide for enough square footage to bu l.d adequate garages and driveways. Re--
zonmg under the guise of ""affordable housing" is not in the best interest of our communities. The
lots are not being sold at any reduced price that is passed onto the buyers~ 1t is the developers and
builders that are eapitalLzing on the. beneffia of the rezoning, Some of the communities in
Kalispell are being allowed to develop the communities to resernblc lover incomc houswg
projects found in other cities and commonly referred to a s " The project." Let's learn from the
expericnc-c and not let that contnue in the City of Kalispell.
RespcctfuJJy submitted,
Donald L. Cromwell
Karen. L. Cromwell
Cc: Planning Comirnissioner(s)
Fax: 758-5861
Cc: Scan Conrad, City Flanging Department
Fax; 751- I858
City of Kalispell
Planning Department
I - IndStreet East, Suite ? 1, Kalspel, Montana 59901
Telephone: (406) 751-2 850
Fax: (406) 751-1858
Website: kalispellplanning.com
16 Ir 4,--co-) 0�tz •�i
TO* Kalispell City staff
Other Interested. Parties
FR.OAL Sean Conrad, Senior Planner
R; �EJune 14thSite Review Committee meeting
DATE: June 6, 2007
The Planning Department has received the following applications for review:
A request by Montana Sky Networks to construct a tourer which exceeds the
permitted 40-Moot height limit in the H--1 (Health Care) zoning district. The
proposed tower would serve Montana Sky Networks, an intern.et provider, and
be 60 feet in height. Section 27.12.404 of the Kalispell zoning Ordinance
allows structures up to 60 -feet in the H-1 zoning district provided a conditional
use permit is first obtained. The proposed tower would be located on the south
end of the existing building located at 1286 Burns way, the current location of
Montana Sky Networks. The property can be legally described as lot 13 of
Highland Parr Professional. Subdivision located in section 6, Township 28
North, Lange 21 west.
A request by Touchstone LLC for annexation, initial zoning and preliminary plat
on a 7.5 acre tract of land located of of Three Mile Drive. The owner is
requesting to annex into the city of Kalispell and has requested. the R-3, Urban
Single Family Residential, zoning district. The owner has also applied for a
preliminary plat to create 19 lots ranging in size from 7,000 square feet to
approximately 15,600 square feet. The tract of land is located immediately east
of Mountain Vista Estates Phase 1 subdivision and can be legally described as
Assessor's Tract 1BFA located in section 2, Township 28 North, Range 21 'Nest.
A request by Ashley Heights, LLC for annexation and initial zoning on a 11.1
acre tract of land located on the south side of Sunnyside Drive approximately
500 feet west of the intersection of sunnyside Drive and Ashley Drive. The
owner is requesting the R-2, Single Family Residential, zoning district upon
annexation into the city of Kalispell. The owner has also applied for a
preliminary plat to create 26 lots ranging in size from 9,600 square feet to
approximately 17,880 square feet on an 8.5 acre portion of the 11.1 acre tract
of land. There is a currently a house, addressed as 1204 Surmvside Drive, and
a shop located on the 11.1 acre tract of land. The tract of land can be legally
described as Government Lot 1, Assessor's Tract 10 located in Section. 19,
Township 28 North, Range 21 west.
• A revised preliminary plat request by Wayne Turner to create 396 single family
residential lots and 184 condominii im units located within 17 multi -family
bujidings. The subdivision is proposed to be developed zn six phases and
includes a park and open space areas along Ashley Creek. The owner is also
requesting a growth policy amendment on a portion of the 140 acre site,
annexation and initial zoning of R--3, Urban Single Family Residential, and a
Planned Unit Development (PUD) overlay zoning district on the entire site. The
project site can be described as Tracts 7AB, 17 IF, IFA, IDA, ID, 1E, 1BB,
IBA, 1B, 1 FB , and 1 AI in Section. 13, Township 28 North, :Range 22 West.
If you need additional information regarding the above proposals please call me. Any
comments on the above projects should be in to the Planning Department by June
2 5 th. The Site Review Committee meeting is held at 10 : o o a.m. on Thursdays at the
Building Department located at 411 -- I st Avenue Nest in Kalispell. Thank you for
taldn.g the fume to review and comment.
c: w f attachments: Mike Baker, Parrs and Recreation Director
Paul Burnham, Civil Engineer
Frank Castles, Dep. Public Works Director f A.sst City Engineer
Jeff Clawson, Plans Examiner
Mark Crowley, Construction. Manager
Chad Fincher, Parks Superintendent
Jun Harnsz, Public works Director f City Engineer
Charles Harball, City Attorney
Roger gauss, Assistant Police Chief
Craig Kerzman, Chief Building Inspector
Jaynes Patrick, City Manager
F. Ray Ruffatto, Fire Department Inspector
P.J. Sorensen, Zoning Administrator
Susie Turner, Storm.water Engineer
Sandy wheeler, Community Redevelopment
c: w/ attachments: Agencies Jun Atkinson, Eagle Transit
James Freyholtz, MDT, Civil Engineering Specialist
B.J. Grieve, Assistant Director, Flathead County
Planning and Zoning
c: w/o attachments: Applicants
CERTIFICATION
APPLICANT: ASHLER' HEIGHTS, LLC
FILE NO: KA-07-11 & KPP-0 7'-07
I, the undersigned certify that I did this date mail via First Class Mail a copy
of the attached notice to the following list of landowners ad `o inio.g the
property lines of the property that is requesting annexation & initial zoning
and preliminary plat.
S-•T-R: 19-28-21
Tract/Lot: Gout Lt 1, Tr 10
Property Owners:
Ashley Heights, LL
3300 Highway 2 west
Kalispell, MT 59901
Sands Surveying
2 'Tillage Loop
Kalispell, MT 59901
48 North Engineering
P.O, Box 651
Whitefish, MT 59937
Date:_
AND ATTACHED LIST
Ashley Heights, LLC Sands surveying
3300 Highway 2 West 2 village Loop
Kalispell, MT 59901 Kalispell, MT 59901
Rubert & Lila Kruckenberg Winner Trust
1024 Sunnyside Drive 1116 Sunnyside Drive
Kalispell, MT 59901 Kalispell, MT 59901
View Partners LLC
Valley � Susan EisenhartChnsto her Vick
P.O. Box 1121 p
MT 59903 6 149 NE 194th Place
Kalispell, Kenmore WA 98028
Kathy Grace Dana Scranton
804 Ashley Drive P.D. Box 7114
Kalispell, MT 59901 Kalispell, MT 59904
Seth & Crystal Barrow Agnes Petz
722 Ashley Drive 718 Ashley Drive
Kalispell, MT 59901 Kalispell, MT 59901
Peter Martinez Patrick zerbst
3531 Boyager circle 706 Ashley Drive
San Diego, CA 92130 Kalispell, MT 59901
Deborah Pero Rev Trust Agree. Ethel Mast
410 Golf Haven Drive 318 Bismark street
whitefish, MT 59937 Kalispell, MT 59901
Mark & Rhonda From
Terry & Jeri O'Leary
791 Ashley Drive
705 Ashley Drive
Kalispell, MT 59901
Kalispell, MT 59901
Joel & Emily Marinaccio Renee Holbrook
713 Ashley Drive 717 Ashley Drive
Kalispell, MT 59901 Kalispell, MT 59901
Stephan & Maria Van Ekeren Thomas & Patricia Fulton
725 Ashley Drive 104 Heritage Drive
Kalispell, �VIT 599� 1 g
p Bozeman, MT 59715
Thor & Nancy Jackola
1120 Sunnyside Drive
Kalispell, MT 59901
Lance 8s Kara Neumann
Waldemar Neumann
15 Primrose Court East
Kalispell, MT 59901
Alice Barry
806 Ashley Drive
Kalispell, MT 59901
Mary Lannaghan
17538 E. Hawley Drive
Fountain. Hills, Az 85268
Imogene Soule'
714 Ashley Drive
Kalispell, MT 59901
Donald & Karen Cromwell
340 McGregor Lane
Marion, MT 59925
Aida & Luis Caro
P.O. Box 694
Kalispell, MT 59903
Brandon. 8& Jeana Bauldauf
709 Ashley Drive
Kalispell, MT 59901
Sarah & Michael Strandberg
721 Ashley Drive
Kalispell, MT 59901
Harvey Carroll
805 Ashley Drive
Kalispell, MT 59901
Kenneth 8, Marina Sunell Christopher & Amy Gendreau Beverlee Stuewe
807 Ashley Drive 809 Ashley Drive 311 Ashley Drive
Kalispell, MT 59901 Kalispell, MT 59901 Kalispell, MT 59901
Bruce Chadwick Joseph 8, Marlin Kauffman Appex 1, LLC
p 813 Ashley Drive 222 Goat Trail Norman Sanderson
Kalispell, MT 59901 Whitefish MIT 59 937 10 Roanoke Street, #S
p Seattle, WA. 98102
Guest FamilyTrust John &, Lois Hammett
WIG LP Gregory &.Paula Claridge
496 Valley View Drive 1215 sunn side Div 425 Valley View Drive
Kalispell, MT 59901 Y Drive Kalispell, MT 59901
Kalispell, MT 59901
Lyndal Sundt Dennis Pewitt Jeremy Reese
56 Loch.ness Road P.G. Box 9556 552 Kelly Road
Kalispell, MT 59901 Kalispell, MT 59904 Kalispell, MIT 59901
David & Sarah Ogle Dennis & Gayle le Gulbranson Tr Susan Frans
�
405 Valley ViewTheresa McStravlck Drive 32 Big Sky Blvd P.O.Kalispell, MIT 59901 Kalispell, MT 59901 Box 36
p p Geyser, MT 59447
Downey y Famil Trust City of Kalispell State of Montana 112 5 Sunnyside Drive Attn: pity clerk DGTP.G. Box 1997 P
Kalil ell MT 5 99 01 P.O. Box 2 01001
p Kalispell, MT 59903 Helena, MT 59620
City of Kalispell
Planning Department
17 - °d Street East, Suite 211, Kalispell, Montana 59941
Telephone: (406) 751-1850
Fax: (406) 751-1855
Website: kalispellplanning.com
You are being sent this notice because you are a property owner within 150 feet of the
proposed project noted below and will be most directly affected by its development.
You have an opportunity to present your comments and concerns at the meeting
noted below. You may contact this office for additional information.
NOTICE OF PUBLIC ARING
KALISPELL CITY PLANNING BOARD AND ZONING COMMISSION
JULY 10, 2007
The regular meeting of the Kalispell city Planning Board and zoning commission is
scheduled for Tuesday, July 10, 2007 beginning at 7:00 PM in the Kalispell city
Council Chambers, Kalispell City Hall, 312 First Avenue East, Kalispell. The planning
board will hold a public hearing and take public comments on the following agenda
items. The Board will make a recommendation to the Kalispell City council who will
take final action.
1. A request from Wayne Turner for a growth policy amendment from industrial to
suburban residential, annexation and initial zoning classification of R-3, Urban
Single Family Residential, on an approximately 24.5 acre portion of a 164.5
acre project site. In addition, the developer is requesting a Planned Unit
Development (PUD) overlay zoning district on a 140t acre portion of the 164.5
acre project site. The developers have also requested approval of willow creek,
a preliminary plat to create 322 single family lots, 74 townhouse lots and 6 Lots
which would accommodate multi -family buildings. A total of 17 multi -family
buildings are proposed over the 6 multi --family lots and would allow up to 184
condominium units. The property is in the county zoning jurisdiction and is
zoned R-1, Suburban Residential, and 1-2, Heavy Industrial. The property is
located on the north side of Foys Lake Road at the intersection of Foys Lake
Road and valley Vier Drive. The properties included in the overall project site
can be described as Tracts 1, 1 AI, 1 B, 1 BA, 1 BB, ID, 1 DA, 1 E, 1 F, 1 FA, 1 FB,
and 'CAB located within the N 1/2 of the N 1/2 of the. S 1/2 of Section 13, Township
28 North, Range 22 west.
2. A request by Ashley Heights, LLC for annexation and initial zoning on an 11.1
acre tract of land located on the south side of Sunnyside Drive approximately
500 feet west of the intersection of Sunnyside Drive and Ashley Drive. The
owner is requesting the R--2, Single Family Residential, zoning district upon
annexation into the city of Kalispell. The owner has also applied for Ashley
Heights, a preliminary plat to create 26 lots ranging in size from 9,600 square
feet to approximately 17,880 square feet on an 8.5 acre portion of the 11.1 acre
tract of land. There is a currently a house, addressed as 1204 Sunnyside
Drive, and a shop located on the I I A acre tract of land. The tract of land can
be legally described. as Government Lot 1, Assessor's Tract 10 located in
Section 19, Township 28 North, Range 21 West.
3. A request by Montana Sky Networks to construct a tower which exceeds the
permitted 40-foot height limit in the H-1 (Health Care) zoning district. The
proposed tower would serve Montana Sky Networks, an internet provider, and
be 60 feet in height. Section 27.12.404 of the Kalispell zoning Ordinance
allows structures up to 60-feet in the H- 1 zoning district provided a conditional
use permit is first obtained. The proposed tower would be located on the south
end of the existing building located at 1286 Burns way, the current location of
Montana Sky Networks. The property can be legally described as lot 13 of
Highland. Park Professional Subdivision located in Section 6, Township 28
North, Range 21 west.
4. A request by Touchstone LLc for annexation, initial zoning and preliminary plat
on a 7.6 acre tract of land located off of Three Mile Drive. The owner is
requesting to annex into the city of Kalispell and has requested the R--3, Urban
Single Family Residential, zoning district. The owner has also applied for
Mountain Vista. Estates, Phase 4, a preliminary plat to create 19 lots ranging in
size from 7,000 square feet to approximately 15,600 square feet. The tract of
land is located immediately east of Mountain Vista Estates Phase 1 subdivision
and can be legally described as Assessor's Tract 1BFA located in Section 2,
Township 28 North, Range 21 west.
5 _ A request by Craig -Craig Rentals, LLc for annexation and initial zoning of two
tracts of land that encompass 1.385 acres located on the southern end of
Kali.spell's commercial and industrial entrance corridor. The applicant is
requesting a B--2, General Business, zoning designation upon annexation. The
two properties proposed for annexation are located on the crest side of US
Highway 93 approximately three-quarters of a mite south of Kelly Road and
anew -third of a mile north of Lower Valley Road/ cemetery Road. The Fire Place
Center, which is currently on the property is addressed 2790 Highway 93
South, Kalispell, Montana 59901. The property can legally be described as
tracts 5Cc and 5CCD located in Section 20, Township 28 North, Range 21
West, P.M.M., Flathead county, Montana.
Documents pertaining to the agenda items are on fie for public inspection at the
Kalispell Planning Department, 17 Second Street East, Suite 211, Kalispell, MT 59901,
and are available for public review during regular office hours.
Interested persons are encouraged to attend the hearing and make their views and
concerns known to the Board. written comments may be submitted to the Kalispell
Planning Department at the above address, prior to the date of the hearing, or you may
call us at (406) 751--1850, or e-mail us at planninz@kalis-pell.com for additional
information.
11974
NOTICE OF PUBLIC
HEARING
KALISPELL CITY
PLANNING BOARD
AND ZONING COM-
MISSION
JULY 10, 2007
The regular meeting of
the Kalispell City Plan-
ning Board and Zoning
Commission is sched-
uled for Tuesday, July
10, 2007 beginning at
7:00 PM in the Kalispell
City Council Chambers,
Kalispell City Hall, 312
First Avenue' East, Ka-
lispell. The planning
board will hold a public
hearing and take public
comments on the follow-
ing agenda items. The
Hoard will make a rec-
ommendation to the Ka-
lispell City Council who
will take final action.
1. A request from
Wayne Turner for a
growth policy amend-
ment from industrial to
suburban residential,
annexation and initial
zoning classification of
R-3, Urban Single Fami-
ly Residential, on an ap-
proximately 24.5 acre
portion of a 164,5 acre
protect site. In addition,
the developer is re-
questing a Planned Unit
Development (PUD)
overlay zoning district
on a 140t acre portion
of the 164.5 acre project
site. The developers
have also requested ap-
proval of Willow Creek,
a preliminary plat to cre-
ate 322 single family
lots, 74 townhouse lots
and 6 lots which would
accommodate multi-
family buildings. A total
of 17 multi -family build-
ing: are proposed over
the 6 multi -family lots
and would allow up to
184 condominium units.
The property is in the
County zoning jurisdic-
tion and is zoned R-1
Suburban Residential,
and I-2, Heavy Industd-
aL The property is locat-
ed on the north side of
Foys Lake Road at the
intersection of Fovs
Lake Road and Valley
View Drive. The proper-
ties included in the over-
all protect site can he
described as Tracts 1,
1Al, 1 p, 1 BA, 1BB, I D.
11 DA, I E, 1 F, 1 FA, i FB,
and 7AB located within
the N 112 of the N 112 of
the S 1 !2 of Section 13,
ownship 28 North,
'range 22 Test.
}. A request by Ashlpv
�Pignts, LLC for annex.
r=rn and initial zoning
°n an 1 1.1 acre tract of
'Ci
:uth =tie �)unnvSide
r
Drive and Ashley Drive.
The owner is requesting
the R-2, Single Family
Residential, zoning dis-
trict upon annexation in-
to the city of Kalispell.
The owner has also ap-
plied for Ashley Heights,
a preliminary plat to cre-
ate 26 lots ranging in
size from 9,600 square
feet to approximately
17,380 square feet on
an 8.5 acre portion of
the 11.1 acre tract of
land. There is a current-
ly a house, addressed
as 1204 Sunnyside
Drive, and a shop locat-
ed on the 11 A acre tract
of land. The tract of land
can be legally described
as Government Lot 1,
Assessor's Tract 10 lo-
cated in Section 19,
Township 28 North,
Range 21 West.
3. A request by Mon-
tana Sky Networks to
construct a tower which
exceeds the permitted
40-toot height limit in
the H-1 (Health Care)
zoning district. The pro-
posed tower would
serve Montana Sky Net-
works, an internet pro-
vider, and be 60 feet in
height. Section
27.12.404 of the Kalis-
pell Zoning Ordinance
allows structures up to
60-feet in the H-1 zon-
ing district provided a
conditional use permit is
first obtained. The pro -
tower would be
sated on the south
end of the existing build-
ing located at 1286
Burns Way, the current
location of Montana Sky
Networks. The property
can be legally described
as lot -13 of Highland
Park Professional Sub-
division located in Sec-
tion 6, Township 28
North, Range 21 West.
4. A request by
Touchstone LLC for an-
nexation, initial zoning
and preliminary plat on
a 7.6 acre tract of land
located off of Three Mile
Drive. The owner is re-
questing to annex into
the city of Kalispell and
has requested the R-3,
Urban Single Family
Residential, zoning dis-
trict. The owner has al-
so applied for Mountain
Vista Estates, Phase 4,
a preliminary plat to cre-
ate 19 lots ranging in
size from 7,000 square
feet to approximately
15,600 square feet. The
tract of land is located
immediately east of
Mountain Vista Estates
Phase ! subdivision and
can be legally described
as Assessor's Tract
1 BFA located in Section
ship North .
RA I VVPST-
5. A request by Cra
Craig Rentals, LLC I
annexation and initi
zoning of two tracts
land that encompa;
1.385 acres located c
the southem end of Ki
lispell's commercial ar
industrial entrance con
dor. The applicant ;s rE
questing a B-2, Generc,
STATE OF MONTANA
Business, zoning desic
nation upon annexatio`r
The two properties pro
Posed for an n exati ol
FLATHEA
D C OUI`4 TY are located on the wes
side of US Highway 9i
approximately three
AFFIDAVIT OF ���I�A�,I quarters of a mice soutr
ON of Kelly Road and one.
third of a mile north oi
Lower Valley
I�,�.►E BI�E Road/Cemetery Road.
� � DULY The Fire Place Center
S WORN, DEPOSES AND SAY which is currently SAYS: THAT SHE IS THE ert i �' o n the
LEGAL CLERK OF THE DAILY �7 p y s addressed
� L�TLR I.,1A�E A 90 Highway 93
DAILY NE,GVSPAPEIFE South, Kalispell, Monta-
E�AL �I� ��LAT'I�N �na 59901. The property
PRINTED AND p LISHED ' can legally be described
� THE CITY OF as tracts SC C an
KALISPELL, IN THE �� d
TY OF FLATHEAD Son 2 located in sec -
STATE OF MONTANA �� a tran 20, Township 28
a THAT ��, I (C[74 North, Range 21 Yuest,
LEGAL AD VEIRTISMENT -'LET P.M.M., Flathead Coun-
P WAS ty, Montana.
RINTEI� A.I�D p�LISHED IN
E �E REGULAR ANTE Documents pertaining
ENTIRE ISSUE F SAID PAPER.,to the agenda items e
AND IN EACH ANIon file for are
.EVERY COPY THEREOF 0� lion Public inspec-
THE DATES �F at the Kalispell
JqAq,k, 2�4, Planning Department,
-17 Second Street East,
Suite 211, Kalispell, MT
A� THE SATE CHARGE 5r�901, and are availa-
D FOR THE ABOVE W$ for public review
PRINTING DOES NOT ECE tiring regular office
ED TLTE ��I�VIZT�I�I hours.
GOING RATE CHARGED TO
ANY ETHER Interested persons are
ADVERTISER FAR THE SAS encouraged to attend
E P�LIC.AT'I�I�, the hearingand make
'SET IN THE SAME SIZE TYPEtheir views and AND PUBLISHED con-
cerns THE SA-E NUMBER OF terns known to the
INSERTIONS. Board. Written com-
ments may be submit-
ted to the Kalispell Plan-
-- ning Department at the
above address, prior to
the date of the hearing,
Subscribed and swum to or you may call us at
(406) me this
51-�1850, or e-
mailB Before m a i l u s a t
��-�- �� �� planning @ kalispell.com
for additional informa-
tion.
Isl Thomas R. Jentz
Thomas R. Jentz
Planning Director
June 24, 2007
Notary Public for the State of
Montana
Residing in Kalispell
My Cernmzss.ort expires