6. Resolution 4233 - Kinshella Ave Vacation and AbandonmentRESOLUTION NO. 4233
A RESOLUTION TO ABANDON A STREET ADJACENT TO LOTS 5-6, LIBERTY
VILLAGE SUBDIVISION, MORE PARTICULARLY DESCRIBED AS KINSHELLA
AVENUE (JUSTICE STREET).
WHEREAS, on July 21, 1995, the City of Kalispell received a
petition from O.H. Whitecarver, the owner of record of
Lots 5-6 of Liberty Village, adjacent to Kinshella Avenue
(Justice Street), requesting that the City of Kalispell
vacate the Easterly 30' of said street pursuant to S 7-
14-4114, MCA, and
WHEREAS, notice of said petition was published in the Daily Inter
Lake, a daily newspaper, published in Kalispell, Montana
on August 13, 1995, and
WHEREAS, on August 23, 1995, the City Council of the City of
Kalispell held a public hearing to hear proponents and
opponents on the closure and to further determine arty
action, that would serve the public interest, and
WHEREAS, it was determined that the petition hereinbefore
mentioned was properly presented to the Council, and
WHEREAS, it was determined at said public hearing that the closure
of the Easterly 30' of said street adjacent to Lots 5-6,
Liberty Village Subdivision would be in the public
interest.
NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL, MONTANA, AS FOLLOWS:
SECTION I. That the Easterly 30' of Kinshella Avenue
(Justice Street), adjacent to Lots 5-6,
Liberty Village Subdivision, is hereby vacated
and the same is no longer required for public
use and the public interest will be served by
its vacation.
SECTION II. That this Resolution shall take effect 30 days
from and after its passage by the City
Council.
0
PASSED AND APPROVED BY THE CITY COUNCIL AND MAYOR OF THE CITY OF
KALISPELL, THIS 21ST DAY OF AUGUST, 1995.
Douglas D. Rauthe - Mayor
Attest:
Debbie Gifford, CMC
Clerk of Council
i.
RESOLUTION NO. 4233 2
PETITION TO ABANDON STREET
TO: City of Kalispell, City Council
FROM: Undersigned Property Owner
DATE: July , 1995
RE: Street Vacation or Discontinuance
The undersigned, being the owner of record of lots adjacent to
the Easterly 30' of Kinshella Avenue fronting on Lots 5-6 of
Liberty Village, hereby requests the City of Kalispell, Montana, to
vacate or discontinue said street pursuant to Section 7-14-4114,
MCA.
0.H. �Wfh�itesca ver
STATE OF MONTANA )
• ss
County of Flathead )
On the Za day of , 1995, before me, the
undersigned, a Notary Public for the State of Montana, personally
appeared 0. H. WHITESCARVER, known to me to be the person whose
name is subscribed to the within inst_zment and acknowledged to me
that he executed the same.
IN WITNESS WHEREOF, I have he unto set my hand and affixed my
Notar}al Seal the day and year fir t above wr' t
Notary P lic, t te. of Montana
Residing at: it 4-
My Commission Expires: a e
L
Patrick M. Springer
ATTORNEY AT LAW
P.O. sox 1112
KALISPELL. MONTANA 59901
April 3 1995
Attn: Bruce Williams
City of Kalispell
P.O. Box 1997
Kalispell, Mt 59903-1997
Re: Whitescaver, O.H.
Liberty Village
Dear Mr. Williams:
OFFICE: (406) 257.9777
HOME: (406) 257.4380
OF COUNSEL:
LEONARD A. VADALA
I have been asked by Mr. Whitescarver to review the record of the
above -referenced subdivision, and the propriety of the provision
requiring the developer to dedicate an additional thirty (30)
feet of right-of-way for what might some day become Kinshella
Street. This obviously became a necessity for the developer when
the adjacent landowner would not participate. I understand that
the City was aware of that problem, yet made it a condition of
approval.
I have had preliminary discussions with City Attorney Neier, and
have reviewed most of the records of the city with respect to
this subdivision. In addition, I have reviewed the current status
of the law concerning regulatory taking and inverse condemnation
arising out of the application of the "takng clause" of the Fifth
Amendment to the United States Constitution, and Section 17 of
Article II of the 1972 Montana Constitution. In addition, I have
reviewed the financial impact of the dedication on the economic
feasibility of the developers original plans.
A recent U.S. Supreme Court case, Dolan v. City of Tigard (Or.),
114 S.Ct. 2309 (1994), would appear to be on point. The Court in
Dolan found that a municipality violates the Federal Constitution
when it requires a dedication of land as a condition to a land
use permit, unless it makes an individualized determination that
there is a roughly proportional relation, both in nature and
extent, between the required dedication and the impact of the
development. The Court put the burden of that determination on
the municipality to show the extent of impact and to show the
dedication would, rather than could, off -set that impact. I would
suggest that such a determination was not properly made with
respect to the Liberty Village 30-feet, and that there has been a
wrongful taking.
I I 1� U11 U1 NdOpUl
Incorporated 1892
Telephone (406) 758-7700
FA'" -406) 758-77S8
Pa' ice Box 1997
zip , Y9034 "7
April 14, 1995
Mr. Patrick Springer.
Attorney at Law
Post Office Box 1112
Kalispell, MT 59903-1997
Dear Mr. Springer:
I am in receipt of your April 3, 1995 correspondence regarding
U.S. Supreme Court Case Dolan v. City of Tigard and its
application to Whitescarver Liberty Village Subdivision.
I am aware of the Dolan v. City of Tigard case and believe
that in light of the ruling, I have asked City Attorney Neier
to review the Whitescarver record and provide me with his
opinion concerning a wrongful taking of the 30 foot dedicated
strip involved with the Liberty Village preliminary plat
. roval.
I appreciate your client bringing this matter to our atten-
tion, and we will work toward resolving this matter as soon as
possible.
Sincerely,
Bruce Williams
City Manager
BW/ksk
p.c.: Glen Neier
Mayor and City Council
Brian Wood
John Parsons
Douglas Ftauthe
Mayor
Bnme Willlar
City Manager
City Council
Members:
Gary W. NysW
Ward I
Cliff Collins
Ward I
Barbara Moses
Ward N
Dale Haarr
Ward u
Jim Atkinson
Ward III
Lauren Granmo
Ward III
Pamela B. Kennedy
Ward IV
M. Duane Larson
Ward IV