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13. Request to Purchase Encroachment Easement - Dr. Daniel AbbottCity of Kalispell Charles A. Harball office of City Attorney City Attorney 312 First Avenue East P.U. Box 1997 Kalispell, MT 5 9903 - 1997 To: SUBJECT: MEETING DATE: MEMORANDUM Mayor Pamela B. Kennedy and Kalispell City Council Charles Harball, City Attorney James H. Patrick, City Manager Tel 406.758.7708 Fax 406.758.7771 charball@kalispell.com Request to Purchase Encumbrance Easement from City on Buffalo Hills Golf Course Monday, December 4, 2000, Regular Meeting BACKGROUND: Dr. Daniel Abbott owns a home on Juniper Bend adjacent to the Buffalo Halls Golf Course. Last year he constructed an addition on to his home that encroaches upon the 20-foot setback requirement from the city owned golf course and in the process failed to obtain the necessary building permits for the construction. The City cited him for these violations and he entered into a stipulation in the Municipal Court in which he agreed to pay a $1, 500 fine and to correct the violations. Dr. Abbott is now requesting that the City sell an easement to him to correct the encroachment violation and he has offered an appraisal opining that the value of the easement is $3, 500. Councilman Herron currently has a motion on the table to set the price of the easement at twice the appraised value or $10, 000, whichever is greater. Dr. Abbott, through his attorney, William Astle will be presenting an easement for Council consideration. RECOMMENDATION: The City staff is not recommending that the City Council agree to sell an encumbrance easement to Dr. Abbott. It would be very difficult, if not impossible, for the Council to distinguish this agreement to sell from the next request that comes in seeking to build closer to the golf course or any other municipal property. Council certainly couldn't use hardship as an acceptable reason given that this particular "hardship" was self-imposed by Dr. Abbott. Council should move and act on a motion to sell, or not sell, the encumbrance easement proposed by Dr. Abbott. If Council approves the sale, it must also agree upon a sales price as well as a reasonable rationale for setting that price. FISCAL EFFECTS: Undetermined. Respectfully m'tted, Charles Harball, City Attorney Ja es H. Patric ,City Manager EASEMENT The City of Kalispell, a Montana Municipal Corporation [hereinafter "City"], for good and valuable consideration, the receipt of which is hereby acknowledged, does hereby grant, bargain, sell and convey a non-exclusive Easement to Daniel D. Abbott [hereinafter "Abbott"], the description, purpose and limitation of said Easement are set forth as follows: City Property: The description of the real property owned by the City upon which is located the Easement is described on Exhibit "A", attached hereto and by this reference incorporated herein. [Exhibit "A" - Description of City Golf Course property] Abbott Property: The description of the real property owned by Abbott, contiguous to the property owned by the City which the Easement herein will benefit is described on Exhibit "B", attached hereto and by this reference incorporated herein. [Exhibit "B" - Description of Abbott property] Easement Description : The description of the Easement is an area approximately 15 feet by 27-48 feet containing approximately 406 square feet, all of which is more particularly shown on Exhibit "C ", attached hereto and by this reference incorporated herein. [Exhibit "C" - Description of Easement area] Easement Purpose: The purpose of this Easement is expressly limited to use of the easement area as a zoning set back area for the existing structure on the Abbott property, which structure consists of a garage with a Second story addition and attached corridor to the existing residence, inclusive of the overhanging roof. rat f E m nt: The City hereby grants, bargains, and sells unto Abbott, his heirs and assigns, a non-exclusive Easement for the express and limited purpose set forth hereinabove as Easement Purpose located on City property as more particularly described hereinabove. This Easement shall run with and be appurtenant to the Abbott property, provided that the Easement is subject to the Golf Course use and the Grantee assumes the risk for any damage to the structure for which this set back Easement is granted. Re tricti n on-..Uqg of Easqmg.nl Area. This Easement does not permit or authorize any access whatsoever for Abbott, his heirs or assigns, to the City property, nor does this Easement convey any right or authority whatsoever to Abbott, his heirs or assigns, to place, construct, or locate anything whatsoever above, on, over, or under the City property and the City expressly reserves the absolute right to locate a fence anywhere in the Easement area that the City may elect at its sole discretion. DATED this day of CITY OF KALISPELL By: ,20