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:
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