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Public Comments/CossittCERTIFIED yq}} �ppy i iitt+1 t `I !it�������� iei40F5.0312 D.ktbie Pierson. Flathgsd Cauntr MT by NC 81117D17 3-04 DM James K. Cossitt (Mont. 4773) PO Box 1889 Kalispell, MT 59903-1889 Tel: 4o6-752-5616 Email: ' c�cvssi lay.vm ATTORNEY FOR PLA.TIdTIFF l'WvA County 01 F %5t'j.! .j t Qbq r!t(nsttllt7sr, rrt to which Ce cete i� ; :`•ix', ,S a true, CcrrEGt 3t i compared co,, of the Original , Of the Clerk at a Dienccn file m ti,e er.•,, County �duJ of F PEG L Ate J day of 20 . gY °t f7' Court Dep ctedc r- ,ALAS III,S0' , MONTANA ELEVENTH DISTRICT COURT : �� �. • , e FLATHEAD COUNTY James H. Cossi", Plaintiff(s), vs. James Hammond; Veronica Hammond, Defendant(s) Cause # 15- oil� ;. ROBERT B ALLISON LIS PENDENS COMES NOW Plaintiff, pursuant to § 70-19-102, MCA, and hereby gives notice to all whom it may concern: 1. This action affects thr t e`or rinht oh� f possession of real property. 2. The names of the parties to this action are set forth in the caption. 3. The st_r ,et &ddiess of the affected real estate is 1221 6Lh Street West, Kalispell, MT 599oi. 4. The legal description of the affected real estate is: Cossitt v, Hammond, et al. Case x DV-i5 U Lis Pendens Page i of 3 I�IIiIIlli�i�1111v11111q�111�I�I1111111 20Ia°212 re�ftx: ♦s oa 0/312015 3:04 PH LEGAL DESCRIPTION A tract of find situated to Government Lot 2 of Section 18, Township 29 Norm, Range 21 west, P.M.,M., Flathead County, Montana, described as follows: Beginning at the Sovthwest corner of Lot 8, Block 12, western Addition to Kalispell, Montana; thence in a Westerly direction an a tine parallel with the North boundary of Sixth Street, Kalispell, Montana, a distance of 19 feet to a paint; thence Soto" on a line pamilef with the Western boundary of the alley in Lot 12, Western Addition to Kalispell, Montana, a distance of 13 feet to a point; thence in a Westerly direction ctt a tine parallel to the North boundary of Stith Street, Kalispell, Montana, a distance of 373 feet 10 a paint; wltiul point is the beginning of the description of the bad at land to be described; thence Northerty at a right angle parallel to the West botvtdary of Tenth Avenue West, Kalispell, Montana, a distance of 346 feet to a point; thence Westerty at right angle on a line parallel to the South boundary of Fifth Street, Kalispell, Montana, a distance of 126 feet to a point; thence southerty at a right angle on a line parallel to the West boundary of Tenth Avenue West, Kalispell, Montana, a distance of 346 feet to o point; thence Easttdy at a right angle on a line parallel to the North boundary of Sixth Street, Kalispell, Montana, a distance of 125 feel to the Place of Beginning. EXCEPTING THEREFROM that certain tract deeded to Gustav A. Anderson S Emma S. Anderson, recorded in Book 385 at page 140, records of Flathead County, Montana, described as follows: Commencing at the Southwest comer of Lot 6, Block 12 Western Addition to Kalispell, according to the plat thereof on file in the office of the County Clerk and Recorder of Flathead County, Montana; thence in a Westerly direction on a tine parallel with the North boundary of Bah Street West of Kalispell, a distance of 1 a feet to a point; thence t Southerly point; then line ce m a Westerly dire:Gor, n as line paralof llel toey in said Block 12 of Western Adclillon a distance the North boundary of bah streets West of Kalispell, at9 feet to a po distance of 378 feet to a point; thence Northerly at a right angle, parallel to the West boundary of 14th Avenue West of Kahspetl, a distance of 1T3 feet Io a point which is the place of beginning; thence trom said place of beginning Northerly and parallel to the West boundary of 10th Avenue West of Kalispell, a distance of 173 feet to a point; thence Weslefly at a right angle a distance of 126 feet to a point; thencc Southerly at a right angle a distance of 173. feet to a paint; thence Easterly at a right angle a distance of 126 feet to the place of beginning. ALSO EXCEPTING TI EREFROM page 50thar ds porn conveyed Rath dtCounty,theCity of on Montana. by Grant Deed and Dedication reca(ded may 15, t95 Book 51 Pursuant to § 70-19-102(2), the fil;n of this notice is Constructive nc�3t'ce of the pendency of this action. Dated: August 3, 2015 ' ,lames H. Cossitt, P.C. Attorney for Plaintiff Page 2 Of g Cnssitty. Hainmond, ct al, Casc x DV'15 {—) Lis Pendens Public comments by James H. Cossitt, owner of 1231 & 1229 6th Street West, Kalispell MT 59901 (260-6969) (email: jim.cossitt@gmaii,com) submitted at public Gearing on 6/14/16 with respect to: REQUEST FOR A CONDITIONAL USE PERMIT KALISPELL PLANNING DEPARTMENT STAFF REPORT #KCU-16-03 May 19, 2016 This is a report to the Kalispell City Planning Board and Kalispell City Council regarding a request for a conditional use permit for the construction of four townhouse units at 1221 6th Street West. A public hearing on this matter has been scheduled before the Planning Board for June 14, 2016, beginning at 6:00 PM, in the Kalispell City Council Chambers, The Planning Board will forward a recommendation to the Kalispell City Council for final action. A. BACKGROUND INFORMATION: Owner/Applicant: Angela Cahoon 1272 Wildcat Drive Columbia Falls, MT 59912 (406) 212-0726 A. Applicant is straw man, acting on behalf of an undisclosed 3rd party, Cahoon Enterprises, LLC and / or Mark Cahoon. Lacks good faith and candor. Applicant has no experience ? Not the actual developer ? Bare legal title only for other Darty. Location: The subject property is located at 1221 6th Street West. The property can be legally described as Tract 5DT in Lot 2 of Section 18, Township 28 North, Range 21 West, P.M.,M., Flathead County, Montana. Size: The subject property is approximately 19,700 square feet or .45 acres in size. Summary of Request: A request for a conditional use permit to construct four (4) townhomes within the R-4 (Residential) Zoning District per Section 27.07.030 of the Kalispell Zoning Ordinance. The R-4 Zoning District allows single-family, duplex and townhouse development limited to two (2) attached units as a permitted use. Three (3) or more attached townhouses require a conditional use permit to analyze the compatibility with the surrounding neighborhood. Currently, the property is developed with a single-family residence and detached garage. Developing the property would include the demolition of the existing residence and garage. The property owner will need to connect to city sewer and water, which are in the vicinity of the property. Individual service line extensions are required in order to serve the townhomes. Site plan is illegible even when blown up to 200% or more. Fails to meet minimum due process standard of imparting meaningful notice to interested parties of intended governmental action. Figure 1: Site Plan Existing Land Use and Zoning: The property is developed with a single-family residence and detached garage. Figure 2: Existing Residence P" The property is located within the R-4 (Residential) Zoning District. The Kalispell Zoning Ordinance describes the intent of this district: "This district is comprised of primarily single-family and duplex dwellings. Development within the district will require all public utilities, and all community facilities. This zoning district would typically be found in areas designated as urban residential on the Kalispell Growth Policy Future Land Use Map." Adjacent Zoning: The existing zoning and land uses of the land surrounding the subject property are as follows: West: R-4 North: R-4 East: R-4 South: R-4 Adjacent Land Uses: West: single-family homes (including townhomes) and multi -family North: sing e- ami y omes East: single-family homes (,including townhomes) South: single-family homes Relation to the Growth Policy: The subject property is within the Urban Residential land use category, which is the basis for the R-4 Zoning, The Growth Policy 2020 states that townhomes are an anticipated form of housing vrithin the Urban Residential land use category where adequate services and facilities are available. City services including, sewer, water and streets are in the vicinity and available to the subject property. Utilities/Services: Sewer service: City of Kalispell Water service: City of Kalispell Solid Waste: City of Kalispell Electric: Flathead Electric Cooperative Phone: CenturyLink Police: City of Kalispell Fire: City of Kalispell Schools: School District #S, Kalispell B. EVALUATION OF THE REQUEST This application has been reviewed in accordance with the conditional use review criteria in the Kalispell Zoning Ordinance. A conditional use permit may be granted only if the 3 27.33.090: Burden of Applicant. The burden of proof for satisfying the aforementioned criteria considered for approval shall rest with the applicant and not the City Council. The grafting of the Conditional Use Permit is a matter of grace. resting in the discretion of the Cite Council ...... proposal, as submitted, conforms to all of the following general conditional use permit criteria, as well as to all other applicable criteria that may be requested: 1. Site Suitability: B. i. What are the setback requirements ? Structures may meet the setbacks, what about trees ? 2. B. 2.c: Does it? Given the: 1. congestion at the W end of 6th due to cluster and excessive amount of high density units west of 1221; 2. the high traffic to FHS in AhI & PM from September to May; 3. bend in 61h St W and on street parkin 4. trash dumpsters on 6th Street NA' remove usable space from street; 5. intended tise of 1233 & 1235 by Flathead Industries a. Adequate Useable Space: The minimum lot area required in the R-4 Zone is 6,000 square feet. The R-4 Zoning allows for 2 attached townhouses as a permitted use. Accordingly, four units as proposed would require a minimum of 12,000 square feet (2 units per 6,000 square feet). The subject property is approximately 19,700 square feet meeting the minimum lot size required for the number of units being proposed. The property also has flat topography leaving the entire site buildable. b. Height, bulk and location of the building: Building height will not exceed the R-4 height restriction of 35' tall from bottom of finished floor to roof ridgeline. The structures will also meet the minimum required setbacks and lot coverage requirements for development within the R-4 Zone. The R-4 Zone requirements give due consideration to the height, bulk and location of the proposed tommhomes. C. Adequate Access: The to-Amhomes will be gaining their access via 6th Street West. 61h Street West is an improved City street providing adequate access to the to,,Amhomes. There is also an improved City alleyway located north of the property that can be used for access purposes. d. Environmental Constraints: There are no known environmental constraints, such as steep slopes, streams, floodplains, or wetlands, on the property which could affect the proposed use. Appropriate Design: a. Parkins: Scheme/Loading Areas: Each townhome unit will have two off- street parking spaces as required by Chapter 27.24 of the Kalispell Zoning Ordinance. b. Lighting: Chapter 27.26 of the Kalispell Zoning Ordinance sets standards for all outdoor lighting for residential structures. C. Traffic Circulation: The townhouses will gain their access from 6th Street West, an improved city street. 61h Street West connects to a network of streets in the vicinity, providing adequate traffic circulation. d. Open Space: The proposed townhouses -,&rill meet the setbacks and lot coverage requirements of the R-4 Zone, which provides for open spaces around the units. No additional open space is required for the proposed project. B. 1.d: Agree, not required ijer 27.34.060: ])N ellings, Multi -family. However. «Ith cramming 4 LI11its on this parcel combined vN ith the other high density Uses In this area. make it conditional on more space or the other criteria of 27. 34.060(2). B. 2. e: "may be affected" ? Total failure by applicant to sustain the burden of proof.27.33.090. Pending lawsuit, not disclosed by applicant, alleges trees are a trespass and nuisance. No consideration of CUP until lawsuit disclosed by applicant and resolved. Failure to disclose lawsuit & lis pendens = lack of good faith by applicant. e. V- enein Screenin Landsea in : The landscaping will be ass/sod. There ar existing mature trees on the property that may be affected by the new cons c ion. encing or e uni s w ave o comp y with Section 27.20.040 of the Kalispell Zoning Ordinance. f, Si ngna e: There will be no signage associated with the townhomes. 3. Availability of Public Services/Facilities: a. Police: Police protection will be provided by the Kalispell Police Department, No unusual impacts or needs are anticipated from the proposed single- family use. b. Fire Protection: Fire protection will be provided by the Kalispell Fire Department. There is adequate access to the property from the public road system and the townhouses will be constructed to meet current building and fire code standards for building and access. C. Water: City of Kalispell water infrastructure is within 6th Street West south of the subject property. The developer will be required to pay the cost for additional service line connections for the each of the four units. d. Sewer: City of Kalispell sewer infrastructure is located within the alleyway north of the subject property. The developer will be required to pay the cost for additional service line connections for the each of the four units. e. Storm Water DrainajZe: Storm water runoff from the site shall be managed and constructed per the City of Kalispell Construction and Design Standards. Prior to receiving a building permit the developer will need to submit a construction storm water management plan to the Public Works Department. This plan will need to show how storm water will be treated and where it will be directed during construction activities. f. Solid Waste: Solid waste pick-up will be provided by the City of Kalispell. g. Streets: The proposed townhomes front 6th Street West, which is an improved public street. 61h Street West connects to a network of city streets that provide adequate circulation to and from the property. h. Sidewalks: No sidewalks exist along 6th Street West in front of the property. Sidewalks will be required to be constructed per the City of Kalispell Construction and Design Standards along 611, Street West the length of the property. Schools: This site is within the boundaries of School District #5. A very minor impact to the district may be anticipated from the proposed townhouses depending on the demographics of the residents. On average 5 B. 4. a: Given the intensive development to the west and the FI intended uses of 1233 & 1235- See above, superficial conclusion of adequacy of "width and quality" overlooks: 1) high density units to west that lack adequate parking mean much more congestion to the west right at the curve; 2) street size is impaired due to on street presence of garbage dumpsters; 3) curve in road to west obstructs vision; 4) FHS race track from September to May, AM and PM and a much higher % of newbie drivers LWU G� B. 4(a): see comments at 2c above. B. 4.b & e. On both 6/7/16 (hammer & demo) and 6/9/16 (chainsaw) construction started at 0625. KPD advises ordinance violation if not limited to 0700-2200. j. Parks and Recreation: There should be no significant increase in demand on the parks and recreation programs and facilities as a result of this use. No additional parkland is required form the proposed townhomes. Neighborhood impacts: a. Traffic: Four townhomes will not have a significant impact on the traffic generated in the area. It is anticipated that each of the four residential units will produce approximately 9.57 trips ends/day (Per ITE trip generation model). The four units would generate approximately 29 net (already one residence of property) trips per day. The width and quality of 6th Street West is more than adequate to handle the additional traffic load. b. Noise and Vibration: Other than during construction, the townhomes will not create any objectionable noise and vibration beyond what would normally be associated with a single-family residence. C. Dust Glare and Heat: Other than during construction, the townhomes will not create any objectionable dust, glare, and heat beyond what would normally be associated with a single-family residence. d. Smoke Fumes Gas or Odors: Other than during construction, the townhomes will not create any objectionable smoke, fumes, gas, or odors beyond what would normally be associated with a single-family residence. e. Hours of Operation: Hours of operation does not apply to this project since it is for townhomes. If a home based occupation were to occur the residents would have to comply with the home based occupation section of the zoning B. 5. Historical use patterns show more space between structures, West garage wall at 1221 is 15 feet from lot line. East side of 1229 is 9.5 feet from lot line. Add condition for more 10-15 feet side yard setback to maintain historical use patterns. S. Consideration of historical use patterns and recent changes: The area is a mix of single-family residences including townhouses and multi -family developments on small lots. The subject property is developed as more of a ranch home on a large lot compared to others in the vicinity. Development of the property with the four townhomes would be more in line with the surrounding developments. More intensive townhouse development exists directly to the west and east of the property. The R-4 Zoning of the project site and the Urban Residential land use designation anticipates this kind of townhouse development. 6. Effects on property values: Currently, the existing residence is in disrepair and will be demolished. Replacing the existing structure with four (4) new units will create more value to the property than the existing residence. Accordingly, it is anticipated that property values will increase with the development of the 0 Applicant misrepresentation. failure to disclose pending lawsuit. Staff failed to check land records for unpaid taxes and legal claims, staff report has poor analysis and wrongly concludes that applicant has met the B/P on all the the applicable criteria. Do not adopt the report at this time and require more intensive fact finding better analysis and see if the staff even comes to the same conclusion. City on constructive notice of lawsuit and fails to even mention it. Deny CUP uintil lawsuit concluded. C. RECOMMENDATION The staff recommends that the Planning Board adopt staff report #KCU-16-03 as findings of fact and recommend to the Kalispell City Council that the conditional use permit be approved subject to the following conditions: CONDITI_ONS OF APPROVAL 1. Impossible 1 That commencement of the approved activity must begin within 18 months from due to non PP ty gi disclosure of the date of authorization or that a continuous good faith effort is made to bring the lawsuit. project to completion. Cannot get financing 2. Final designs for storm water management, water service, water meter placement, without and sanitary sewer service for each townhouse that comply with Kalis ell's resolution of P S p same. Inability Standards for Design and Construction shall be submitted for review and approval to complete by the City of Kalispell Public Works Department prior to construction. financing. 3. Each townhouse unit is required to have individual sewer and water service line 6. Related to connections. The sewer and water service lines shall be reviewed and approved lawsuit. by the Kalispell Public Works Department prior to construction. City permits New condition: side yard required for driveway and service connections within the public right-of-way setbacks be shall be obtained prior to construction. set at 10-15 feet per 4. Sidewalks, curb and gutter shall be constructed p spacing to er the City of Kalispell existing Construction and Design Standards along 6u' Street West the length of the ro maintain property. ty. historical use pattern. 5. A letter from the Kalispell Public Works Department shall be submitted to the Kalispell Building Department stating that all new infrastructure has been accepted by the City of Kalispell. 6. Prior to any work within the public right-of-way, the property/owner will work with the Parks Superintendent to establish tree protection zones and file a permit for any tree removals with the Parks and Recreation Department. ISummary & overall conclusions: multiple problems regarding good fiaith, fair dealing, adequate disclosure in the application 1. Angela is a straw person; undisclosed real owner is Mark ?; 2. No disclosure of the lawsuit by the applicant; 3. Applicant has no ability to get financing with lawsuit and lis pendens, feasibility and condtion of approval #1 cannot be met; 4. City staff failed to note lawsuit impact even though City has constructive notice via recorded lis pendens; 5. Item 2(e) and approval condition #6 are subjects of the lawsuit; 6. Sale via false notary calls into Q legal effect of the deed recorded on 4/22/16; 7. Lis pendens recorded 813/15 has priorty over current owner's title, she took subject to the lis pendens since JHC has a senior interest via the Lis Pendens, City has constructive notice of the senior interest and JHC must consent 8. At time of purchase, false promises and no follow through on responsibility for clean up of property, conspiracy with Hammonds to avoid responsibility to address lawsuit and clean up property; 9. clean up now, end trespass, conclude lawsuit and then come back for CUP. L�. James H. Cossitt (Mont. 4773) Rlt CC'Ur.;�. PC Box 1889 %616 :/RT 31 Kalispell, MT 59903-z889 Tel: 406-752-56]6 FILE Email: jhc@cossittlaw.com ATTORNEY FOR PLAINTIFF `'`—MONTANA ELEVENTH DISTRICT CO FLATHEAD COUNTY James H. Cossitt, Plalntiff(s), Vs. James Hammond; Angela Cahoon; City of Kalispell, Defendant(s) Cause # 15-693(B) Robert B. Allison ist AMENDED & SUBSTITUTED COMPLAINT COMES NOW Plaintiff(s), James H. Cossitt ("Cossitt"), and pursuant to MRCP 15(a)(1)(B), files this 1st Amedned and Substituted Complaint, and state(s): JURISDICTION, VENUE & PARTIES 1. The Montana District Court has original jurisdiction of this matter pursuant to § 3-5-302 MCA. 2. Venue is proper in Flathead County pursuant to § 25-2-121, MCA. 3. Plaintiff James H. Cossitt ("Cossitt" or "Plaintiff') is a natural person who: Cossitt v. Hammond, et al. Case # DV-�5-693(B) Page i of 6 v,1 Amended & Substituted Complaint James H. Cossitt (Mont. 4773) PO Box 1889 Filed 6/9/i6 Kalispell, MT 59903-1889 Tel: 4o6-752-5616 Email: (h0a',cossittlaw.com ATTORNEY FOR PLAINTIFF MONTANA ELEVENTH DISTRICT COURT FLATHEAD COUNTY James H. Cossitt, Plaintiff(s), Vs. Angela Cahoon, City of Kalispell, Defendant(s) Cause # 15-693(B) Robert B. Allison DV 1st AMENDED & SUBSTITUTED COMPLAINT COMES NOW Plaintiff(s), James H. Cossitt ("Cossitt"), and pursuant to MRCP 15(a)(1)(B), files this 1st Amedned and Substituted Complaint, and state(s): JURISDICTION, VENUE & PARTIES 1. The Montana District Court has original jurisdiction of this matter pursuant to § 3-5-302 MCA. 2. Venue is proper in Flathead County pursuant to § 25-2-121, MCA, 3. Plaintiff James H. Cossitt ("Cossitt" or "Plaintiff") is a natural person who: Cossitt v. Hammond, et al. Case # DV-25-693(B) Page i of 6 ill Amended & Substituted Complaint a. resides at 1231 6t1, Street Nest, Kalispell; and b. owns real estate located at both 1229 and 1231 6th Street West. 4. Defendant James Hammond (hereafter "Hammond") is a natural persons who, with his wife Veronica, was the former owner of the real estate located at 1221 6th Street West which is described as: LEGAL DESCRIPTION A tract of land situated in Government Lot 2 of Section 18, Township 28 North, Range 21 West, P.M. jA_ Flathead County, Montana, described as follows; Beginning at the Southwest corner of Lot 6, Block 12, Western Audition to Kalispell, Montana-, thence in a Westerly direction on a line parallel with the North boundary of Sixth Street, Kalispell, Montana, a distance of 16 feet to a point; thence Southerly on a line parallel with the Western boundary of the alley in Lot 12, Western Addition to Kalispell, Montana, a distance of 13 feet to a point: thence in a Westerly direction on a line parallel to the North boundary of Sixth Street, Kalispell, Montana, a distance of 378 feet to a point; which point is the beginning of the description of the tract of land to be described: thence Northerly at a right angle parallel to the West boundary of Tenth Avenue West, Kalispell, Montana, a distance of 346 feet to a point; thence Westerly at a right angle on a line parallel to the South boundary of Fifth Street, Kalispell, Montana, a distance of 126 feet to a point; thence Southerly at a right angle on a line parallel to the West boundary of Tenth Avenue West, Kalispell, Montana, a distance of 346 feet to a point; thence Easterly at a right angle on a line parallel to the North boundary of Sixth Street, Kalispell, Montana, a distance of 126 feet to the Place of Beginning_ EXCEPTING THEREFROM that certain tract deeded to Gustav A. Anderson & Emma S. Anderson, recorded in Book 385 at page 140, records of Flathead County, Montana, described as follows: Commencing at the Southwest corner of lot 6, Block 12 Western Addition to Kalispell, according to the plat thereof on file in the office of the County Clerk and Recorder of Flathead County, Montana; thence in a Westerly direction on a line parallel with the North boundary of bah Street West of Kalispell, a distance of 16 feet to a point, thence Southerly on a line parallel with the West boundary of the alley in said Block 12 of Western Addition a distance of 13 feet to a point; thence in a Westerly direction on a line parallel to the North boundary of 6ah Street West of Kalispell, a distance of 378 feet to a point -,thence Northerly at a right angle, parallel to the West boundary of 10th Avenue West of Kalispell, a distance of 173 feet to a point which is the place of beginning; thence from said place of beginning Northerly and parallel to the West boundary of 10th Avenue West of Kalispell, a distance of 173 feet to a point, thence Westerly at a right angle a distance of 126 feet to a point; thence Southerly at a right angle a distance of 173 feet to a point; thence Easterly at a right angle a distance of 126 feet to the place of beginning. ALSO EXCEPTING THEREFROM that portion conveyed to the City of Kalispell by Grant Deed and Dedication recorded May 15, 1955 in Book 387, page 500, records of Flathead County, Montana. 6. Defendant Angela Cahoon (hereafter "Cahoon") is a natural person and is the present owner of 1221 6th Street West. Cossitt -%-. Hammond, et al. Case # DV-15-693(B) Page 2 of 6 ist Amended & Substituted Complaint 6. The City of Kalispell, Montana, is a legal subdivision of the State of Montana and, as it relates to this matter, acts through it's City Council and / or Planning Department and / or City Planning Board and Zoning Commission. ALLEGATIONS COMMON TO ALL COUNTS 7. On 8/3/15, Cossitt caused a Lis Pendens to be recorded with the Clerk and Recorder as document # 2015 0000 17412. 8. James and Veronica Hammond conveyed their interest to Cahoon via a Warranty Deed recorded on 4/22/16 as document # 2016 0000 7642. 9. On or about 5/5/16, Cahoon filed an Application for a Conditional Use Permit ("CUP") with the City of Kalispell, Planning Department. 10. The CUP application contains false statements, omissions of material facts, a false certification and fails to disclose the existence of either the Lis Pendens or this lawsuit. 11. Cossitt's interest in the property, via the Lis Pendens, is senior to any interest acquired by Cahoon Nria the Warranty Deed. 12. As the holder of a senior interest in the property, Cossitt must either join the CUP application or consent to it as a condition precedent to consideration of the CUP by the City of Kalispell. 13. Hammonds and Cahoon have failed to maintain and / or allowed the real estate to fall into disrepair, become a nuisance and to trespass onto Cossitt's property as folloNt'S : a. allowed trees to encroach / trespass the property boundaiy between 1221 and 1229 61h Street Westbv Cossitt v. Hammond, et al. Case * DV-15-693(B) Page 3 of 6 ill Amended & Substituted Complaint i. encroaching and growing onto the property at 1229; and I encroaching and groNNring into the fence itself and damaging the fence; iii. encroaching and trespassing into the airspace above 1229; iv. shedding debris onto the ground at 1221. b. allowed trees to encroach into the public roadway of 61h Street West, resulting in large amounts of tree debris / waste accumulating on the roadway and walkway; and C. have failed to mow the entire yard or portions of the yard at 1221 during 2015; and d. allowed deep piles of leaves, branches, brush, dead grass and other piles of flammable yard waste to accumulate at 1221; and e. left abandoned appliances (yard grill and other items) at 1221; and f. left an abandoned and unused Aljo trailer in the backyard; g. allowed discarded auto parts, auto tires, debris, old oil filters and other garbage to accumulate at 1221; h. conducted construction operations starting @ 0625 in the morning. COUNT I / TRESPASS 14. Plaintiff(s) replead(s) TT 1-13. 15. Hammond and Cahoon have allowed their trees to enter on to or above, remain on or above and damaged Cossitt's property and use of his property as set forth in 1113 above. This conduct constitutes trespass. 16. As a result of the trespass, Plaintiff has been damaged and the use of his property is impaired. Cossitt v. Hammond, et al. Case # DV-i5-693(B) Page 4 of 6 i°" lAmended & substituted Complaint WHEREFORE, Plaintiff(s) demand(s) judgment against Defendants Hammond and Cahoon as follows: a. for declaratory and injunctive relief to prevent future trespass, to prevent past or ongoing conduct and to restrain future conduct; b. for monetary damages to compensate for the losses resulting from the trespass; and c. for such other and further relief as is just and equitable. COUNT II % NUISA.NCE 17. Plaintiff(s) replead(s) IT 1-16. 18. Hammond and Cahoon have engaged in a wide range of intentional or reckless conduct described above that is either injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of Cossitt's life or property, and that constitutes a nuisance. 19. The conduct set forth in 1113 above constitutes a nuisance. 20. As a result of the nuisance conduct, Plaintiff has been damaged. WHEREFORE, Plaintiff(s) demand(s) judgment against defendants Hammond & Cahoon as follows: for declaratory and injunctive relief to prevent past or ongoing nuisance conduct and to restrain future conduct; b. for monetary= damages to compensate for the losses resulting from the nuisance, including damages for emotional distress and punitive damages; and C. for such other and further relief as is just and equitable. COUNT III / INJUNCTION 21. Plaintiff(s) replead(s) ¶¶ 1-20. Cossitt v, Hammond, et al. Case # Dv-15-693(B) Page 5 of 6 1.1 Ainended & Substituted Complaint 22. As a result of the trespass and nuisance conduct, Plaintiff has been damaged and has no adequate remedy at law or in damages. WHEREFORE, Plaintiff(s) demand(s) judgment againit all defendants a s follows: a. for declaratory and injunctive relief to prevent past or ongoing trespass or nuisance conduct; and b. for such other and further relief as is just and equitable. Dated: June 9, 2o16 /ill Ay:tw 77', &"G& James H. Cossitt (Bar #4773) James H. Cossitt, P.C. ATTORNEY FOR PLAINTIFF Cossitt v. Hammond, et al. Case # DV-15-693(B) Page 6 of 6 izi Amended & Substituted Complaint Tom Bentz From: Jim Cossitt tjim.cossitt@gmail.com> Sent: Wednesday, June 15, 2016 1:13 PM To: Tom Jentz Cc: Michelle Anderson; Jeff Clawson; Charlie Harball Subject: Re: File # KCU-16-03, Cahoon conditional use permit, 12216th Street W Attachments: 2016-06-14 - Staff report JHC.pdf; 2015-08-03 - Lis Pendens conformed.pdf Charlie, I filed the attached amended complaint naming the city and the gravamen of my beef with the City is on paras. 7-12 and relief sought is in Count III. As the Planning Board moved forward last night, I will likely file another amended complaint and get the City served per MRCP 4(l-} unless you or the City Clerk will accept service. The amended complaint is attached to the file labeled "2016-06-14 - Staff Report JHC". Please let me know if you have any questions or thoughts on how we might get the city out of my squabble with these folks. I've reached out to both them and the prior owners on multiple occasions and get no meaningful responses whatsoever. They seem to be "damned the torpedoes, full speed ahead" so unless the city puts the brakes on this, I will be ramping it up via litigation but simultaneously reaching out to the applicant for cutting a deal. Tom, I have attached in PDF format the materials I submitted at the Planning Board meeting last evening. I think you folks got sandbagged by this applicant and, in order to avoid this type of snafu going forward, the city might want to consider amending your C T and other application process to require the applicants to provide a title report or obtain consents of everyone in the chain of title or with liens, claims or interests. I BTW, the title work I obtained on this showed a bunch of unpaid property taxes and Judgments on this real estate. The city should require any applicant to have all the taxes paid In full as a condition of any applications much like the Secretary of State requires to terminate a corp or LLC, a certificate from the MD©K With respect to the parking concern, I neglected to mention and ask that Planning Department staff take into consideration: that in 2000, when I bought 1231, I added another off street parking space with city permission. The Flathead Industries folks who recently bought 1233 & 1235 have advised me they intend to add more off street parking. Clearly, those of us who live the congested "hood" of the 6th Street W (with 2 more 4 plexes, one at 1230 and another one on the corner of 6th St W & Meridian) have concluded on our own that 2 spaces / unit is not adequate. This maybe a permitted use in the R 4 zone when viewed in the isolated context of the CUP for a single project. However, when this CUP is viewed in conjunction with the existing high density already allowed to the W of the CUP project, and the loss of all on street parking at this CLIP, it is clearly a topic on which reasonable mends can differ. Nothing in this email should be construed as a modification of my position: Cossitt's interest in the property, via the Lis Pendens, is senior to any interest acquired by Cahoon via the Warranty Deed. Z As the holder of a senior interest in the property, Cossitt must either join the CUP application or consent to it as a condition precedent to consideration of the CUP by the City of Kalispell. In any event, please add the attached to the record for this public hearing. Thank you for your responses to my earlier inquiries. AM COS5ittr 1231 6th Street W, Kalispell MT 59901-4238 USA Cell: 406-260-6969 1 Work: 406-752-5616 1 www.cossittlaw.com "Integrity is doing the right thing, even when no one is watching." CS Lewis "The last and greatest human freedom: the ability to choose one's own attitude in any given situation." Elie Wiesel On Thu, Jun 2, 2016 at 5:47 PM, Tom Jentz <tjentz(G'kalispell.com> wrote: Jim - i have addressed your concerns below. Let me know if you need any additional assistance. - Torn Jentz From: Michelle Anderson Sent: Wednesday, June 01, 2016 7:28 AM To: Tom Jentz; Jeff Clawson Subject: FW: File # KCU-16-03, Cahoon conditional use permit, 1221 6th Street W Importance: High Torn and Jeff, Could we work together on getting this information to the requestor. I already have the application materials and staff report on the website and the link to the Zoning Ordinance would be easy as the Ordinance is on the website as well. I need clarification on the additional information he is asking for. 3 Thanks, Michelle From: Jim Cossitt mailtoJim.cossittC&gmail.com] Sent: Wednesday, June 01, 2016 5:57 AM To: Michelle Anderson Cc: JHC, PC Subject: File # KCU-16-03, Cahoon conditional use permit, 1221 6th Street W Dear Planning Department: I received the Notice of Public Hearing related to the above. In accordance with the Montana Public Records Law, Title 2, Chapter 6, Part 10, MCA, please: 1. provide a citation or link to the R 4 zoning and Kalispell Zoning ordinance; http://www.1�abspeU.com/t)lann'ma/docun-ients/C-LiryentOrdinanceA r oved3-21-16 Page 44. 2. provide PDF copies of all staff analysis, memorandum, recommendations and comment on the request (emails, letters, work papers, any records) (I located the one posted on the website, if there are more records, drafts, preliminary versions, this request seeks those); 4 There are no additional files, recommendations or information other than what is already posted on the web site. 3. provide a citation or link to the factors / criteria / considerations used by either the Board & Commission or staff to "analyze the compatibility with the surrounding neighborhood". Chapter 27.33 Kalispell zoning ordinance — CONDITIONAL USE PERMITS. Specifically section 27.33.080 http://www.kahspefl.conVplannin!Lr/documents/C-LirrentOrdinance A pproved3-21-16 If there is any cost associated with this request, please advise me in advance what those costs are, how calculated and basis therefor. No cost assessed or required. Where or in what department would I be able to access the building pen -nit requests associated vvith this project ? The Kalispell Building department �Totild be the appropriate office. Note that -we do not have a building pen -nit application in the office at this time. We are in the early review process. A building permit application would normally be submitted sometime after the conditional use permit was approved thus justifying the expense of the applicant to finalize building plans for the project. We do have i exterior faqade drawings as shown in the application materials. What other approvals, if any, are required by the City for approval of this project ? Which departments have jurisdiction for that purpose ? If the conditional use pen -nit application is approved, the applicant would normally move forward with construction drav"Migs and site preparation. The applicant will. be required to get a Storm -water development permit (administrative process from public works); a R/W pen -nit to address the construction of new curb cuts, sidewalk work and dn'vew-ads accessing across the public R/W (administrative issued by Public Works); and a building permit (administrative process issued by building department). Thank you. JiM COSSittj, 1231 6th Street W, Kalispell MT 59901-4238 USA Coll: 406-260-6969 1 Work: 406-752-5616 1 www.cossittlaw.com 11 "Integrity is doing the right thing, even when no one is watching." CS Lewis "The last and greatest human freedom: the ability to choose one's own attitude in any given situation." Elie Wiesel CERTIFIED CERTIFIED i�IIIIIitlIlllfllIIIIIIIIIIIINill!IIIII IIICIII II�IIIIIIIIINIICII illy Page:s5 f 3Fees.12 00 Debbie Pierson. Flathead county MT by NC 8/31 MIS 3:04 PM James H. Cossitt (Mont. 4773) PO Box 1889 Kalispell, MT 59go3-t889 Tel: 4o6-752-5616 Email: ihc@cossittlaw.= A'ITORNEY FOR PLAINTIFF County Of F'Wnead SS t t 9 et>y cc�h'� ';,1e the Instnsmsrrt to which li:is certificate is-:iyr;ri ;s a true, correct and compared COP' 0, the original cn fite in the or•,za of tine Clerk of a3 Disfrict COurt of FI�rBgd COtrriy day of �k��:+�., 24"t""� . PING L AWSOW n_i�,. n _ — , . MONTANA ELEVENTH DISTRICT COURT--` Nc, FLATHEAD COUNTY •; , M �'`: d James H. Cossitt, Plaintiff(s), Vs. James Hammond; Veronica Hammond, Defendant(s) Cause # i5- ROBERT B AWSON �.� i, � ��►��:. LIS PENDENS COM ES NOW Plaintiff, pursuant to § 70-19-102, MCA, and hereby gives notice to all whom it may concern: 1. This action affects the title or right of possession of real property. 2. The names of the parties to this action are set forth in the caption. The street address of the affected real estate is 1221 6th Street West, Kalispell, MT 599ol. 4. The legal description of the affected real estate is: Cossitt v. Hammond, et al. Case * DV-i5- U Lis Pendens Page 1 of 3 ��f�[��iw�U[Illwwl[1(fw�llwfl�lMlll�fU! 201S°M174i2 Ferns. *5 . to e/31201$ 3'. 4 PM LEGAL DESCRIPTION A tract of land situated in Government Lot 2 of Section 18, Township 28 North, Range 21 Wost, P.M.,M., Flathead County, Montana, described as follows: Beginning at the Southwest Conner of Lot 6, Block 12, Western Addition to Kalispell, Montana; thence in a Westerly direction on a line pastel with the North boundary of Sixth Street, Kalispell, Montana, a distance of 16 feet to a pant; thence Southerly on a line parallel with the Western boundary of the alley in Lot 12, Western Addition to Kalispell, Montana, a distance of 13 feet to a point; thence in a Westerly direction on a line parallel to the North boundary of Shah Street, Kafisped, Montana, a distance of 378 feet to a point; which point is the beginning of the description of the tract of lard to be described; thence Northerly at a right angle parallel to the West boundary of Tenth Avenue West, Kalispell, Montana, a distance of 346 feet to a paint; thence Westerly at a right angle on a line parallel to the South boundary of Fifth Street, Kalispell, Montana, a distance of 126 feet to a point; thence Southerly at a right angle on a line paraffel to the West boundary of Tenth Avenue West, Kalispell, Montana, a distance of 346 feet to a point; thence Easterly at a fight angle on a line parallel to the North boundary of Sixth Street, Kalispell, Montana, a distance of 126 feet to the Place of Beginning, EXCEPTING THEREFROM that certain tract deeded to Gustav A. Anderson b Emma S. Anderson, recorded M Book 385 at page 140, records of Flathead County, Montana, described as follows: Commencing at the Southwest comer of Lot 6, Block 12 Westem Addition to Kalispell, according to the plat thereof on file in the Office of the County Clerk and Recorder of Flathead County, Montana; thence in a Westerly direction on a fine parallel with the North boundary of bah Street West of Kalispell, a distance of 16 feet to a point; thence Southerly on a line parallel with the West boundary of the alley in said Block 12 of Western Addition a distance of 13 feet to a point; thence in a Westerly direction on a tine parallel to the North boundary of 6ah Street West of Kalispell, a distance of 378 feet to a point; thence Northerly at a right angle, parallel to the West boundary of 10th Avenue West of Kalispell, a distance of 172 feet to a point which is the place of beginning; thence from said place of beginning Northerly and parallel to the West boundary of 10th Avenue West of Kalispell, a distance of 173 feet to a point thence Westerly at a right angle a distance of 126 feet to a point; thence Southerly at a right angle a distance of 173 feet to a point; thence Easterly at a right angle a distance of 126 feet to the place of beginning. ALSO EXCEPTING THEREFROM that portion conveyed to the City of Kalispell by Grant Deed and Dedication recorded May 15, 1955 in Book 3811, page 500, records of Flathead County, Montana. 5, Pursuant to § 70-19-102(2), the filing of this notice is constructive notice of the pendency of this action, Dated: August 3, 2015' James H, Cossitt, P.C. Attorney for P�aintiff Cossitt V. Hammond, et al. Case # DV-15- (_} Page 2Of3 Lis Pendens 2025.OW1 30fl7412 po" Feew ".00 81:312015 3;" P" State of Montana County of Flathead This instrument was acknowledged before me on August 3, 2015 by James 1-1. Cossitt. PEG L AUJSON GInk for the State of Montana Wng at: commission expires; U-\aicnts\123I - ffilmmond\2015.08-03 - W pendensdwx Cossitt v. Hammond, et al, Case # DV- i5-_(—) Lis Pen dens Re%-Lk,d8j3/)5 JHC Ila& 3 of 3 STATE 4F MONTANA) COUNtY OF F ATHM) 1, Debbie Plerson County dark and Recorder, in and For sold county of Flathead, State of Montana hereby certify the annexed and foi+ow,ng to be a fall, tru and correct copy of a cenai�,1% ' together with the endorsement therefor as the sarne appears of record in this office, witness my hand, and seal of said Flathead County, Mont na, affixed this . r^ _ day or 1�6i A.©.� J ```Q'N- m Cp(f�ir,�. By: s jL� DEPUTY