4. Resolution 4612 - Annexation/Utility Ruledw I
of
Post Office Box 1997 . Kalispell, Montana 59903-1997 • Telephone (406) 758-7700 • FAX (406) 758-7758
MEMORANDUM
TO: Honorable Mayor and City Council
FROM: PJ Sorensen, Zoning Administrator
Chris Kukulski, City Manager
MEETING DATE: May 21, 2001
RE: Annexation/Utility Rule
BACKGROUND: There are approximately 450 properties located outside the city limits
which receive water and/or sewer service from the City. A significant number of those properties
are in Village Greens. As you are aware, that area will become part of the City on November 1 of
this year. Another significant number are located in the Greenacres area. The remaining 50 or so
lots are scattered around the fringes of the City.
Bringing lots using city services into the City is a key aspect of a long-range annexation
plan you have previously discussed. In certain areas, such as was the case with Village Greens,
enough consents to annex have been recorded for annexation to occur. In other areas, it does not
appear that consents to annex were executed.
Prior to several recent Whitefish annexations, the Whitefish Council passed a utility rule.
The rule allows the City to require a property owner's consent to annexation as a condition of
continued sewer and/or water service. The rule gives the owner a period of time to consent to
annexation or make firm arrangements to discontinue service. If neither action is taken, the
owner's consent is impliedly given. It is important to note that it is only after a decision is made
to require the consent, and notice is provided, that the rule takes effect. Otherwise, the service
continues to be provided as it has been.
The property owners in Whitefish filed a lawsuit seeking to block the annexations. One of
the issues was the implied consent created by the utility rule; the rule is not specifically provided
for in the Montana Code. The District Court ruled in favor of the City on that issue, holding that
implied consent to annex can be given under such a rule. The case is subject to continuing
litigation, so the matter is not necessarily settled. Nevertheless, as it presently stands, the local
District Court has upheld the rule.
.,
We are looking into proposing the same rule, with a few minor alterations. First, under
the Whitefish rule, the "City" has the discretion to require the consent. Under our proposal, the
City Manger would have that discretion. The change helps clarify the procedure and leaves the
ultimate decision of whether or not to annex in the bands of the Council. Second, a fixed number
of days (30) is used as a time frame in the rule. The Whitefish rule contained a "reasonable period
of time." When they implemented the rule, they started at ten days, but eventually used 30.
RECOMMENDATION:
FISCAL EFFECTS:
ALTERNATIVES:
Respectfully submitted,
PJ Sorensen
Zoning Administrator
Move to recommend approval of the Resolution.
There are few immediate fiscal effects, but the Resolution would
create the potential for future annexations.
As suggested by the Council.
Cj,!N A,
Chris Kukulski
City Manager
Report compiled May 11, 2001
RESOLUTION NO. 4612
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF KALISPELL, MONTANA,
CREATING A UTILITY RULE REQUIRING A PROPERTY OWNER'S CONSENT TO
ANNEXATION AS A CONDITION OF CONTINUED SEWER AND/OR WATER SERVICE.
WHEREAS, the City has extended sewer and/or water service to
various property owners located outside of the City
limits; and
WHEREAS, the City has obtained signed waivers of protest from
many, but not from all, of such utility customers located
outside of the City limits; and
WHEREAS, from time to time the City Council determines that it is
in the best interests of the City to annex the property
owned by either individual utility customers, or groups
of utility customers, and bring them within the corporate
limits of the City; and
WHEREAS, in 46 Op. Att'y Gen. No. 12 (1995), the Montana Attorney
General ruled that a city or town may adopt a rule for
the operation of its municipal sewer and/or water utility
requiring a property owner's consent to annexation as a
condition of continued sewer and/or water service;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL, MONTANA, AS FOLLOWS:
SECTION I. The City may, at any time, require a property
owner's consent to annexation as a condition of
continued sewer and/or water service. When the City
Manager, in his discretion, determines to require
such consent from a particular property owner, the
City may notify the property owner, in writing,
that the City seeks such consent, and that if such
consent is not given, the City will require that
the property owner discontinue receiving sewer
and/or water service. The property owner may notify
the City in writing of his or her consent to
annexation.
If within thirty (30) days of the date that the
property owner is mailed such notice, the property
owner contacts the City and makes firm
arrangements, in writing, to discontinue the
applicable service (s), then the City shall not
further pursue obtaining the property owner's
consent. If, however, the property owner has not,
within such time period, made firm written
arrangements to discontinue the applicable
service(s), then the City shall be entitled to
treat the property owner as having consented to
annexation of his or her property upon the
expiration of the time period. The failure by the
property owner to respond in writing within the
thirty (30) day period shall entitle the City to
treat the property owner as having consented upon.
the expiration of the time period.
If the property owner consents to annexation under
any of the methods described above, the property
owner may not thereafter withdraw his or her
consent to any proposed annexation of his or her
property. If the property owner consents to
annexation under any of the methods described
above, then the City shall be entitled to disregard
any protest that such property owner makes to a
proposed annexation of his or her property.
Nothing herein shall prevent the City from seeking
consent even if the City has previously obtained a
waiver of protest from such property owner or from
his or her predecessor in interest.
SECTION II. This Resolution, and the utility rule created
hereunder, shall become effective immediately upon
its passage by the City Council and approval by the
Mayor.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF
THE CITY OF KALISPELL, THIS 4TH DAY OF JUNE, 2001.
Wm. E. Boharski
Mayor
ATTEST:
Theresa White
City Clerk