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HomeMy WebLinkAboutTemp. Occupancy Comments~ i MERIDIAN CITY COUNCIL MEETING: January 21,1997 APPLICANT: ALBERTSONS INC. ITEM NUMBER; 10 REQUEST: DISCUSSION OF TEMPORARY OCCUPANCY AGENCY CITY CLERK: CITY ENGINEER: CITY PLANNING DIRECTOR: CITY ATTORNEY: CITY POLICE DEPT: CITY FIRE DEPT: CITY BUILDING DEPT: MERIDIAN SCHOOL DISTRICT: MERIDIAN POST OFFICE: COMMENTS ~~~5 had k,a ~~,~° ~ ~S'~ l~ ' 5:~+~ ~ ~ ADA COUNTY HIGHWAY DISTRICT: ~~ ~~ ADA COUNTY STREET NAME COMMITTEE: CENTRAL DISTRICT HEALTH: NAMPA MERIDIAN IRRIGATION: SETTLERS IRRIGATION: IDAHO POWER: US WEST: INTERMOUNTAIN GAS: BUREAU OF RECLAMATION: OTHER: All Materials presented at public meetings shall become property of the City of Meridian. MeulemanMiller&Cummings 1 LAW OFFICES ~~Ir F,M N,~MII,LER & CUMMING,~1.L~ 960 BROADWAI' AVE., SUITE Q00 POST OFFICE BOX 95S BOISE, IDAHO 83701 1[lMBBRLYJ. SLAS• R(ffURD A. CUt-aMtNrx MlCHBLBL. BNCBL'*• tCIMRAt L. COwLAND QUBNTIN M. !(N/PIr""~ C$OAARBYJ.1-~cCONNELL•'•• {yArNB V MBUI.&MiW XOBHRT L. M1t.LBR RICHARD w, MOLl.L1tUP TELSPHONB tJ03J 3~/J~066 TBI,BAAx(soBJ 336-9712 *uC&NSED JN1DA!!O AND NBvADA «*LlCBNSBD IN (DANO AND UTAH ••'•1ICBNSBD IN IDAHO ANA wASXINCTON ••••LlCBN3'BD 7N 1DAH0 AND CALlPnRNIA January 16, 1997 Mr. Will Berg City Clerk City of Meridian 33 B. Idaho Meridian, Idaho $3642 Re: Albertson's Store, Tcn Mile Rd and Cherry Lane; Dear Will: As you are aware, this fum represents Albertson's, Inc. in connection with the above mferenced store. At the City Council meeting on September 3, 1996, the Council agreed to issue a 90 day temporary Certificate of Occupancy subject only to resolving the issue of the easements for sewer and water between Albertson's and Mr, Lovan, the adjacent property owner. The temporary Certificate of Occupancy was issued on November 7, 1996. The Conditions/Comments section of the certificate states "This is a 94 day Temporary Occupancy pending easement agreements." Albertson's hereby requests to be placed on the agenda of the City Councit meeting on 1liesday, January 21, 1997 for the purpose of requesting that the condition be removed and a permanent Certificate of Occupancy be issued. Thank you for your cooperation. ly you , Richard W. M emp RWM: uis cc: Mikc Baldner Bob Banks Bil! Arnold JAN 16 '97 16 47 1 PAGE.02 Jan-16-97 04:41P MeulemanMiller&Cummings 1 . - - L.~W OFFICES ~~ ~~Yi~N M ~ CU~1~1~I ~ LLP_ 960 BROAD tYAY AVE., s~ .goo POST OFFICE BOX 99S SOISc`. IDAHO 83701 WIC_~3.: 301~p-- 7pLP~:1X (20tj 3J697a RiG`WtD A. C ~@1CS p,Mgry ~ COOVl.1ND GCIFMY ~ I~tP'E•-• KlC~*/SID LYIDASO AND :!E'/ADA OCCFFAE7,• ~a:OIRyEL-.'"' _ ~'LI~~cD Qf IDA80 AND llllS t'01~Y,YE y WfiLL''°t.+~N »71C~V~D ~I B7ASQ AND ~AS14~Y .. N ROBERT V W1L'~ +»IlC..IV3Z~D aV IDARO AND GlLLiOltaY7A RICiARA'R HCi1.~l.i' 3'ELE ~ ~Y COVEZt LETTE$ J 1~ T0: ~ 'U c_'_, FAX N0: ~ ~~ _ - ~- ~ - FROM: _.. 6~ ~c ~ V1 cc r ~, 1 ~~ Frz.E: DATE: _ ~ (S~, - ~.~ Z~VtE: This traasmitta.[ consists oc ~/ pages inciudiug this co~r: sheet. DOCL'ME.r'TS 1'R~~1'Si1-IITTED : ~a r rc G ~r d ~ ~~ ~~` -` NOTES: ~ ~ c~ G S~r~-n~ t l.~• C~ S aK 7~ ~/,. u..c c~- _ IF YOU DO NOT RECEI~~E ALL OF T"r~ PAGES, PLF.~SE CALL US BdCK AS SOON AS POSSIBLE AT (308) 342-6066 CONFT~_E~u~ NOT,[ THE O~FOA.M.-TmN CONT,iBYE3) Cl TFIIY F~rcr*m a ~ CCNFmENTu IIvFORrlAr.O.`1 OA .~7'1'OaNbY A-OR1C pgODVC' oR 8o'iH.~ND IS Faa THE ~'SC;JSNE USS OF't7~ L`r1E`Tp® REC'~~i T LLS'iED R80VS. ~iN;f i£.~AQYG. DLSQ.OS[rR~ I~OA R~l80DUCTiDN OE THLS CO WrrtJY1Ca1TON OT*~ THAN 3Y'"I~ IM'EtVDF~.I RFC:F~NT 4T PROH~tIED. ~ YOU FJI-vg RED TIDS Gp~NUMC:l.?ION QV rZLAOA. ?L.- A56 YQTII-'Y US 8Y CGLL~CT TEI~3'HONB C.~i.:. II~~17(JITELY AtNl&IURN TES GObQIrt1SMG'IION T~0 (ts VL4 U. S N.~a. Original m Follow: Yes No JAN 16 '97 164? 1 PAGE.01 Jan-21-97 03:45P MeulemanMi l lerB~Cummings • 1 MEULEMAN, MT[.LER & CUN1MllVGS LLP 9G0 Broadway Avenue -Suite 400 Post OtTice Box 955 Boise, Idaho 83701 ~tECEiVED JAN 2 1 ]997 TF.t,F,RAX C.QVER SHEET CITY OF MERIDIAN DATE: January 21, 1997 TO: Will Burg FAX NO, 887-4813 COMPANY: Meridian City Clerk CC TO: Wayne Crookston, Jr. FAX NO. 888-3969 Michael E. Baldner FAX N0.385-6888 FROM: Richard W. Mollerup R~: Albertson's Certificate of Occupancy Albertson's Store located at Ten Mile & Cherry Lane; Meridian, TA (MM&C #125,372) TOTAL NUMBER OF PAGES SENT tincludvigwvereAeo(): 7 TIME SENT: 3:50 p.m. SENT BY: Brandi IF YOiJ DO NOT RECEIVE ALL TkiE FAGES, PLEASL CALL US BACK AS SOON AS POSSIBLE -- PHONE 208-342-6066; TL-LEFAX 208-336-9712 DOCUMENTS TRANSMITTED: January 21, 1997, Memorandum. MESSAGE: Please present this Memorandum at tonight's Council meeting, CONFIDBNTIAUIY NOTTC'F. THF, INFORMATION C:ONTatNF.l) iN THIS FACS(Mit,l> I5 C't)NI~U)LN'11AL INI~U)tMATCON OR ATTORNEY WORK PRODUCT Ok b(Yrtt ANt) IC lYJlt'CI Ui lXCLUSIYL USI: UI~ 'lllis WI7:NDN:t) I(CCIl'IENr LISTED ABOVE. ANY READAIG, DISCLOSURR, USP. OR RP.PRt>htl(:'llt)N Vl~ 77115 CO1vIIviUMCATION O'IF>FR THAN BY THE IIJ[ENDED REC i'~NT iS PROHIRITP.1). IF Yr)I1 11A V Ii WSCLIYIiU 77IiS CONII~dUMCATION iN ERROR, PLEASE NOTIFY US F)Y C:OI.t.P.(:'f'fN.IrrH()NK (:ar.t. tMM1i111A'I GLY AMA RETI.iRN T!ffi COMIvlLTNICATiON T'O US Ylw tlNrlrn a'1 n"PF.S MAU.. JAN 21 '97 15 51 1 PAGE.01 MeulemanMiller&Cummings 1 LAW QFFICFS • MEULEMAN, MILLER ~ CUMMINGS LLP RUSINhS.S LAW • REAI. ESTATE LAW • t:C)NSTRUC'rION LAW KtMtiERLY J. BLAS• MrCI~E~E L BUYD•• 960 DRC)At)wAYwVE„ SUITE +00 R1(:! WLD A. LvMMlA1Gg pC~ST OFFICE e0X 955 KIMRAL L. C:C)arLwND QIJENTtN M. KNIt'E••• BOISE. IUA11U H.STOI OEOfFREY ). McC'C)NNELL••^ WAYNfi v MEULEMAN RQBERT L MILLER RLC,HARD Vv. MOLLkR(:P MEMORANDUM TO: City of Meridian FROM: Richard W. Mollerup Counsel for Albertson's, Inc. DATE: January 21, 1997 (208)341.6066 EAX (IOS)336r91)2 •LK~TLSFn IN 1M1 W at NEYAUt\ ••I.K1TI3[DpJ10AFIn! IjTAH •••LICEN~ W WAiK~ a, ~ASft4+t:fC1N °»LKtraFOlN ru~twauutvw+La SUBJECT; Certificate of Occupancy Albertson's store located at the intersection of Ten Mile Road and Cherry Lane; Meridian, Idaho ("Albertson's Store") This Memorandum is given in support of Albertson's request for a permanent Certificate of Occupancy for Albertson's Store. ISSUE The sole issue addressed in this Memorandum is whether the City should remove the condition for "pending easement agreements" from the 90-Day Certificate of Occupancy issued November 7, 1996, under Permit No. 15788. AppI,1CABLE CITY ORDIN~,~C~F,S The City has required that Albertson's construct sewer and water lines across its property to the property adjacent on the west owned by Mr. Lovan. The City's position was based upon Sections 5-1?~ and 7-517 of Meridian City Ordinances which read as follows: "All proposed !ex?~siQns of the municipal water,~ystem to serve undeveloped areas...shall comply with existing water system extension policies and the overall master plan for City's municipal water supply system. The cost for all extensions to any property shall be the responsibility of that property owner or his agent. The cost for water service extensions within the property for which the extension is requested shall also be the responsibility of the owner or his agent. ...such water JAN 21 '9? 15 52 1 PAGE.02 MeulemanMi l ler&Cummings 1 MEMORANDUM TO; City of Meridian FROM: Richard W. Mollerup Counsel for Albertson's, Tnc. January 21, 1997 Page 2 line extensions, public or private, shall be extended to the farthest boundary of the property." Section 5-124 Meridian City Ordinance. t~ The owner or developer of a new subdivision or a development whether subdivided or not shall, at his expense, construct the ~ extensions of t_he public sewer,~vstem to provide public sewer facilities for each lot or building area in a subdivision; additionally, the owner or developer shall have the responsibility, at his expense, of installing the main sewer line to the boundary of his development which is farthest away from the point at which the initial connection is made to the present city sewer main. Section 7-517 Meridian City Ordinance. The proper ordinance regarding sewer i believe should be Section 7-527 rather than 7-517. The above portion of City Ordinance 7-517 (which has been quoted by the City Attorney) is one paragraph of a five paragraph ordinance and deals with required use of sewers, not sewer line extensions. The thrust of 7-517 is that the owner or occupants of houses, buildings and other property situated in the City which abut or have a permanent right of access on a street or alley in which there is located a public sewer are required to cease other methods of sewage disposal. Section 7-527 is the sewer ordinances that corresponds to the water ordinance Section 5-124 and reads as follows: "All proposed extensions of the municipal sew,~raae svstem to serve undeveloped areas ...shall comply with the overall master plan for the City's municipal sewerage system. The costs for al! extensions which lie outside the boundary limits of the property for which the extension is requested shall be the responsibility of the property owner or his agent. Costs for sewer extensions within the property for which the extension is requested shall also be the JAN 21 '97 15 52 1 PAGE.03 MeulemanMi l ler&Cummings 1 • MEMORANDUM TO: City of Meridian FROM: Richard W. Mollerup Counsel for Albertson's, Inc. January 21, 1997 Page 3 responsibility of the owner or his agent. Sewer extensions shall be required to extend to the farthest boundary of the development ...." Meridian City Ordinance Section 2-527. FA T On May 9, 1996, the City of Meridian issued a Stop Work Qrder citing (i) size and grade of sanitary sewer line, and (ii) Albertson's failure to provide water service to the Lovan property. At that time, asix-inch sewer line was being installed in front of the Albertson's Store and the City had requested an eight-inch line. During a meeting between the City Engineer, Mayor, Scott Edens of Albertson's, Inc., and Albertson's Engineer on May 9, ] 996, the City approved the installation of a six-inch sewer line in front of.Albertson's Stare. That approval was confirmed by letter dated May 14, 1996, to Mr. Gary Smith, City Engineer, from Craig Slocum of CSIiQA Architects. On June 17, 1996, the City issued a Stop Work Order prohibiting work on the fire hydrant until a decision was made on the 11/2 inch service. By field order dated July I i, 1996, Albertson's was directed to proceed with the installation of a 1'/z inch domestic service line to the i.ovan parcel adjacent to the west and the Stop Work Order dated June 17, 1996, was repealed. Although Albertson's did not believe it was IegaUy required to install sewer and water lines to Mr. Lovan's property or grant easements under Meridian City Ordinances, in the spirit of cooperation, Albertson's agreed to do so. On September 3, 1996, the undersigned appeared before the Meridian City Council on behalf of Albertson's to request the Council's approval of a Sewer Easement from Albertson's to the City, a Water Easement from Albertson's to the City and a Late Comer Agreement to obtain reimbursement for a portion of its construction costs pursuant to Meridian City Ordinance Sections 5-124(b) and 7-527(b). During the Council meeting on September 3, 1996, it was the City's position it could not accept the above easements or the above sewer and water ]fines for maintenance due to the size of the lines, As a result, the Council requested that Albertson's grant sewer and water easements directly to Mr. Lovan. Since the City Engineer had testified that he had reviewed the easement forms and they appeared to be in the same format as standard easement forms and, therefare, acceptable, Albertson's stated that they would be willing to grant Mr. Lovan the same easements they intended to grant to the City; JAN 21 '97 15 53 1 PAGE.04 MeulemanMiller&Cummings 1 MEMORANDUM TO: City of Meridian FROM: Richard W. Mollerup Counsel for Albertson's, lnc. January 21, 1997 Page 4 provided, however, Albertson's would not require Mr. Lovan to assume all maintenance obligations as the City would have been required to do, but would agree to share the maintenance obligation4. Councilman Roundtree stated, "My concern is that we are pursuing easements for ourselves and willing to accept the terms and conditions, why would we expect anything different or would we be negotiating for Mr. Lovan if the casements were in the City. Would he have bccn made a part of the negotiations of those easements." After some discussion of the reasonableness of A]bertson's in offering the easements to Mr. Lovan, the Council passed a motion authorizing the issuance of a 90-Day Certificate of Occupancy to Albertson's, which could only be terminated in the event the Council determined that Albertson's was unreasonable in its negotiations with Mr. Lovan regarding the easements. Councilman Morrow stated that, "Once the effort has taken place, if there is no willingness on [Mr. Lovan'sJ part to participate, then very candidly our staff goes back to the City and says `This is where we are and there is no desire on Mr. Lovan's part to negotiate' and from that point on we make the decision as a Council as to where we want to go and were off and gone." On September 23, 1996, Albertson's submitted a draft Grant of Water and Sewer Easements and Maintenance Agreement ("Lovan Easement") to Mr. Lovan's counsel. On October 22, 1996, a follow-up letter was sent to Mr. Lovan's counsel requesting comments to the draft Lovan Easement. As of this date, no comments have been received from Mr. Lovan or his attorney regarding the Lovan Easement and the only communication with Mr. Lovan has been an offer from him to sell his property to Albertson's. 1. Meridian City Ordinan~,~s 5-124 and 7-527 are not at~nlicable in this instance and c 4titLte an unc n~titL Tonal to ing, It has always been Albertson's position that the above-quoted City Ordinances do not apply to the construction of Albertson's Store. Both City Ordinances are premised on extensions of the municipal systems to serve undeveloped areas. The construction of Albertson's Store does not extend the municipal system for either water or sewer. Existing water and sewer was located in the right-of- way for Ten Mile Road at the time of the construction of Albertson's Store. The construction of Albertson's Store contemplated only connection to the existing municipal systems and did not require the expansion of either system. The ordinances appear to contemplate an expansion of the municipal systems within the public right-of--way. No JAN 21 '97 15=53 1 PAGE.05 Jan-21-97 03:47P MeulemanMillerBCummings 1 • MEMORANDUM TO: City of Meridian FROM: Richard W. Mollerup Counsel for Albertson's, Inc. January 21, 199"7 Page 5 provision in either ordinance contemplates an easement be granted for such extension lines. Had the drafters of the ordinances contemplated the construction of expansion of municipal water and sewer lines on private property, the requirement to grant easements for those lines would have been included in the ordinances. in short, since there was no "extension" as contemplated by the Ordinances, Albertson's never had the obligation to further extend the utility lines to the property boundary. Further, even if an extension took place, the Ordinances do not permit the City to acquire an easement across private property without compensation, let alone permit the City to require an easement to be granted to a third party without compensation. 2. The City has bee~„placed in the position of mediating a contract between ap roes. Through a series of circumstances, the City has been placed in an untenable position of mediating or orchestrating private contract rights between individuals. The sole condition contained in the current 90-Day Certificate of Occupancy is "pending easement agreements" between Albertson's and Mr. Lovan. Use of its governmental authority to force private contract rights is not a proper use of that authority. 3. Albert4on's has been more than reasonable in its offer of easements to Mr_ L.nvan. The Lovan Easement was carefully drafted to contain the same terms and conditions as the water easement, sewer easement and late comer agreement which appear to be acceptable to the Council during the Council meeting on September 3, 1996. Meridian City Ordinances 5-124(b) and 7-127(b) entitle Albertson's to reimbursement of "all or a portion of the costs" of extending those lines from property owners who will benefit from such extension who have otherwise not paid or contributed their proportionate share to the construction costs. The actual additional costs of Albertson's construction of additional water and sewer lines to Mr. Lovan's property was approximately $5,500.00. .Albertson's should be entitled to reimbursements for all of that cost since Mr. Lovan's property will derive the sole benefit of that additional cost. Nonetheless, Albertson's agreed to prorate the costs of the construction of the water and sewer lines on a square footage basis and the Lovan Easement requires only that he reimburse Albertson's $563,50 at the time the owner or occupant connects to the water line and $2,692.62 at the time the owner or occupant of the Lovan property connects to the sewer line for a total of $3,256.12. In addition, the maintenance provisions of the Lovan Easement have been changed from the easements offered to the City. The easements offered to the City JAN 21 '9? 15 54 1 PAGE.06 MeulemanMiller&Cummings 1 • ML• MORAN~DUM TO. City of Meridian FROM: Richard W. Mollerup Counsel for Albertson's, inc. January 21, 1997 Page 6 required the City to perform and pay for all maintenance of both the sewer and water line. Under the Lovan Easement,lvLr. Lovan would only be obligated to reimburse Aibertson's for 17.05 percent ofthe actual cost of such maintenance. 4. Mr Lovan has refused to cooperate or ngg~tiate with Albertson'$. The Lovan Easement draft has been in Mr. Lovan's possession for four months and at no time during that four months have any comments to the substance of that easement been received by Albertson's. By his refusal to communicate with Albertson's, Mr. Lovan has refused to negotiate any reasonable resolution to this issue. The City should remove its condition to Albertson's 90-Day Certificate of Occupancy and issue an unconditional permanent Certificate of Occupancy. I reiterate Councilman Morrow's convnent on September 3, 1996, "Once an e1I'ort has taken place, if there is no willingness on [Mr. Lovan's] part to participate, then very candidly our staff goes back to the City and says `This is where we are and there is no desire on Mr. Lovan's part to negotiate' ...." I respectfully submit that this is where we are. The City should remove itself from a position of negotiating private contract rights and issue the Certificate of Occupancy without further delay. RWM:bIg JAN 21 '97 15 54 1 PAGE.O? • DECEIVED JAN 2 1 1997 qTY OF 1~ER1D~t~~ January 29, 9997 Mayor & City Council Members City of Meridian 33 E. Idaho Meridian, ID 83642 Re: A/bertson's at Ten Mile & Cherry Lane Store Dear Sirs Please postpone Item # 10 on tonight's City Council agenda concerning Albertsorf's discussion of the temporary occupancy permit. This concerns an agreement between them and myself and we haven't come to that agreement as of yet. After discussing this issue with my attorney (Howard Manweiler), we are asking for this delay due to the lateness of receiving the information from Richard Mollerup which you received via faxed to you this afternoon. Thank you for your consideration. Sincerely Wally Lb an ** TX CONFIRMATION REPORT ** AS OF JAN 21 '9?'18 02 PAGE.01 CITY OF MERIDIAN DATE TIME TOiFROM 06 01121 17 57 2083450365 MODE MIhVSEC PGS CMDti STATUS EC--S 04'59" 011 180 OK MERIDIAN CITY COUNCIL MEETING;__ January 21.1997 APPLICANT: ALBERTSONS INC. ITEM NUMBER; 10 REQUEST: _ DISCUSSION OF TEMPORARY OCCUPANCY AGENCY COMMENTS CITY CLERK: CITY ENGINEER: CITY PLANNING DIRECTOR: CITY ATTORNEY: ~~ CITY POLICE DEPT: / ~~ CITY FIRE DEPT: ~~ ~ja'~ CITY BUILDING DEPT: ~ n MERIDIAN SCHOOL DISTRICT: MERIDIAN POST OFFICE: ADA COUNTY HIGHWAY DISTRICT: ADA COUNTY STREET NAME COMMITTEE: CENTRAL DISTRICT HEALTH: NAMPA MERIDIAN IRRIGATION: SETTLERS IRRIGATION: IDAHO POWER: US WEST: INTERMOUNTAIN GAS: BUREAU OF RECLAMATION: OTHER: All Materials presented st public meetings shall become property oTthe City of Meridian.