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11. Astle Letter re: Greenacres AnnexationDecember 16, 1996 AGENDA ITEM 11 - LETTER FROM MR. ASTLE DATED DECEMBER 11 REGARDING GREENACRES ANNEXATION Mr. Neier will address this item with the Council at the meeting. ASTLE and ASTLE ATTORNEYS AND COUNSELORS AT LAW 705 MAIN STREET KALISPELL, MONTANA 59901 DAVID L. ASTLE December 1 1 1996 TEL. (406) 752-7393 WILLIAM E. ASTLE + FAX 1406) 257.3268 Mayor Doug Rauthe Kalispell City Council City Hall Kalispell, MT 59901 Re: Greenacres Annexation Dear Mayor Rauthe and Council Members: Please be advised that I represent the South Woodland/Greenacres Coalition consisting of property owners within the Greenacres annexation (Resolution of Intent 4294), adopted by the Kalispell City Council December 2, 1996. The purpose of this letter is to respectfully request that you formally reconsider and rescind the Greenacres annexation at your regularly scheduled meeting Monday, December 16, 1996. The basis of this request is that the formal notice of the adoption of the Resolution of Intent, Resolution 4294, as both published in the Daily Inter Lake and mailed to property owners failed to comply with Montana law (copy of newspaper publication marked Exhibit "A" attached hereto and copy of letter to property owners marked Exhibit "B" attached hereto). Section 7-2-4313 Montana Code Annotated relating to the requirement of notice of annexation required of you reads as follows: Contents of notice - protest period. The notice must state that: (1) the resolution has been duly and regularly passed; and (2) for a period of 20 days after the first publication of the notice, the city clerk shall accept written comments approving or disapproving the proposed extensions of the boundaries of the city of the first class from real property Mayor Doug Rauthe Kalispell City Council December 1 1 , 1996 Page 2 ------------------------------ owners of the area proposed to be annexed. (emphasis supplied) A reading of the enclosed newspaper publication (Exhibit "A") and the letter to the property owners (Exhibit "B") erroneously confines and limits the solicited written comments to those "approving" the proposed annexation and omits the statutory language of Section 7-2-4313 MCA that requires the Notice to also solicit comments "disapproving" the proposed annexation. As a courtesy to the Council and a gesture of good faith on behalf of my clients, it is respectfully requested that the Council, through the reconsideration process rescind the recently passed Greenacres Annexation Resolution for failure to comply with the mandatory notice provisions under Montana Annexation Law. It is my hope that the Council will affirmatively act by rescinding the Greenacres Annexation and avoid the necessity of my clients requesting the Flathead District Court to grant a Writ of Mandamus declaring the Greenacres Annexation invalid and mandating the Council follow the express notice requirements of Section 7-2-4313 MCA together with the award of costs of suit and reasonable attorney fees to my clients. I respectfully await your decision. Very truly yours, ASTI F A ASTI F -32 WEA/slp cc: Glen Neier, Kalispell City Attorney Clarence Krepps, Kalispell City Manager s No. 9631 CITY OF KALIS- PELL NOTICE NOTICE IS HERE- BY GIVEN that the City Council of the City of Kalis- pell on September 23, 1996, !#passed Resolution No. }4294, declaring an intention to annex certain real prop- erty to be known as the Greenacres Annexation No. 276, located in Flathead County, Montana. which is ',more particularly described .in Exhibit 'A attached hereto thereby made a part bereot. . Said Resolution No. 4294 declared -that it is in the best interest of the City of Kalispell and the inhabit- ants thereof that said prop - arty be annexed to the City of Kalispell and recom- mended that the property be zoned in accordance with the Kalispell Zoning Ordi- nance, Ordinance No. 1175, as amended. NOTICE is further lrven that for a period of enty (20) days after No- vember 3, 1996. that date being the first day of publi- }cation of this notice in the jDaify Inter Lake,the City *Clerk of Council of the City of Kalispell will receive ex- lipresaions, in writing, of ap- proval of the proposed an- nexation from the real prop- rorly owners within the area proposed to be annexed. The City Council of the City of Kalispell shall on December 2, 1996 hold hearing, at 7.00 o'clock P.M. in the Council Cham- bers. City Hall, City of Ka- lispell on the proposed an- nexation at which time the City Clerk Council shall lay all communications re- ceived by said Clerk con- Cemm9 said annexation be- fore the Council for the Council's examination. 11 otter considering the same the Council shall duly and regularly pass and adopt a resolution to that effect, the boundaries of the City of Kalispell shall be extended to so as to embrace and in- clude said properly as de- scribed in Exhibit A'. and the time when the same shall go into effect shall be lied by said resolution Said territory it on. nexed shall be known as Greenacres Annexation No. 276. WDebbie Gifford, CMC Debbie Gifford Clerk of Council CITY OF KALISPELL NOTICE IS HEREBY GIVEN that the City Council of the City of Kalispell on September 23, 1996, passed Resolution No.4294, declaring an intention to annex certain real property to be known as the Greenacres Annexation No. 276„ located in Flathead County, Montana, which is more particularly described in Exhibit "A" attached hereto thereby made a part hereof. Said Resolution No. 4294 declared that it is in the best interest of the City of Kalispell and the inhabitants thereof that said property be annexed to the City of Kalispell and recommended that the property be zoned in accordance with the Kalispell Zoning Ordinance, Ordinance No. 1175, as amended.. NOTICE is further given that for a period of twenty (20)days after November 3, 1996, that date being the first day of publication of this notice in the Daily Inter Lake,the City Clerk of Council of the City of Kalispell will receive expressions, in writing, of approval of the proposed annexation from the real property owners within the area proposed to be annexed. The City Council of the City of Kalispell shall on December 2, 1996 hold hearing, at 7:00 o'clock P.M. in the Council Chambers, City Hall, City of Kalispell on the proposed annexation at which time the City Clerk Council shall lay all communications received by said Clerk concerning said annexation before the Council for the Council's examination. If after considering the same the Counicl shall duly and regularly pass and adopt a resolution to that effect, the boundaries of the City of Kalispell shall be extended to so as to embrace and include said property as described in Exhibit "A'; and the time when the same shall go into effect shall be fixed by said resolution. . Said territory if annexed shall be known as Greenacres Annexation No. 276.. Publish: November 3, 1996 November 10, 1996 .1 CUP ��I• *