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CC - Applicant Letter 9-16PLANNING SERVICES P.O. Box 405 Boise, ID 83701 208.908.1609 MEMORANDUM TO: Mayor Simison and Meridian City Council CC: William Nary, City Attorney FROM: Penelope Constantikes DATE: September 16, 2021 RE: HORSE MEADOWS SUBDIVISION PRELIMINARY PLAT DEVELOPMENT AGREEMENT MODIFICATION The City Council requested that the applicant and project team return on September 28, 2021, with additional information to address concerns expressed by the Council. Please find attached a letter prepared by Chris Kronberg, Esq., in response to Council's concerns with the Development Agreement Modification Application. Please do not hesitate to contact me if you have questions. Thank you! LAND USE PLANNING •DUE DILIGENCE •INDIVIDUAL ASSESSMENTS August 27, 2021 Penelope Constantikes Riley Planning Services 300 W. Myrtle Ave. Boise, Idaho 83702 Sent via email: penelope a�rileyplanning.com Re: Black Cat 30, LLC Development agreement Modification Dear Ms. Constantikes: You have asked me to determine a solution to the access easement issue plaguing the Development Agreement Modification you have filed with the city of Meridian regarding development of a subdivision on the Black Cat 30, LLC parcel ("the Property") located at 710 N. Black Cat Road. As I understand the situation, an access easement created in 1990 extends east from North Black Cat Road across properties owned by Black Cat 30, LLC, the Alexanders, the Morgans and the Caseys. The access easement terminates at the eastern property boundary of the Morgan and Casey properties. The 1990 "Easement" deed created the express access easement for the purpose of "establishing aAs easement for ingress and egress as well as for the repair and maintenance of the private road know as `Quarter Horse Lane."' The Easement deed locates the access easement on each of Parcels A, B, C and D, and that location appears to be reflected on the Easement Holder diagram you provided to me, a copy of which is attached hereto. Development of a subdivision on the Property requires construction of a yet unnamed public road on the property extending south from W. Pine Ave until it reaches the current access easement. The new public road then follows a portion of the access easement westward until it turns north through the Property towards W. Pine Ave., ending in a c&de-sac. The public road is shown on the subdivision pre -plat diagram you also provided to me, a copy of which is attached hereto. As part of the development of the parcel, that portion of the access easement west of the new public road and located entirely on the Property will be closed. The plan to date has been to obtain consent from the Alexanders, the Morgans and the Caseys to relinquish their interests in that portion of the access easement west of the new public road to its terminus at N. Black Cat Road. That portion of the access easement could then be permanently closed to traffic. Those landowners would then use the remaining portion of the access easement to get to the new public road to access W. Pine Ave. ck.idaholau��gmail.com I (208) 600 2200 I PO Box 9637 I Boise. ID 183707-4637 Black Cat 30, LLC Development Agreement Modification August 27, 2021 Page 2 of 3 However, the Caseys have been unwilling to relinquish their interest in that portion of the access easement west of the new public road. Apparently, the city of Meridian has been unwilling to grant the modification of the development agreement because of the Caseys' refusal. One suggested solution has been to place a gate across the access easement just west of the new public road, allowing only the Caseys to use that portion of the access easement. The city of Meridian has yet to agree to that solution, perhaps out of fear that it will be drawn into litigation. The resolution to this issue is for Black Cat 30, LLC to simply relocate the access easement on its property to the same location as the proposed public road that extends to W. Pine Ave. Idaho law specifically allows for any access easement that is less than a public dedication to be moved by the person owning or controlling the land across which the easement is located. Where, for motor vehicle travel, any access which is less than a public dedication, has heretofore been or may hereafter be constructed across private lands, the person or persons owning or controlling the private lands shall have the right at their own expense to change such access to any other part of the private lands, but such change must be made in such a manner as not to obstruct motor vehicle travel, or to otherwise injure any person or persons using or interested in such access. Idaho Code § 55-313. A situation very similar to your client's arose in the case of Statewide Corrstf•uctio», Inc. v. Pieh•i, 150 Idaho 423 (2012). Therein, the plaintiff, Statewide Construction, Inc., owned a 15 acre parcel and obtained a conditional use permit (CUP) from the county to create a subdivision. The CUP required Statewide Construction, Inc. to build a public road on its property to serve the subdivision. Seven parcels adjacent to the Statewide Construction, Inc. parcel had a deeded ownership interest in an express access easement across the Statewide Construction, Inc. parcel to a public road. Without obtaining the consent of the easement owners, Statewide Construction, Inc. moved the access easement by dedicating a new access easement and then constructed a public road on it to serve the proposed subdivision. The new access easement was located 300 feet away from the original access easement, but still connected to the public road. In Statewide Consh•crctio», Inc. v. Pieh•i, the Idaho Supreme Court made three important holdings in interpreting I.C. § SS-313. First, the court held that the statute allows the landowner across whose property the easement lies (servient estate) to move an express access easement that connects to a public roadway. Second, the court held that the servient estate landowner can move the express easement without obtaining the consent of the property owner(s) who has an ownership interest in the access easement (known as the dominant estate). Third, the court held that allowing the servient landowner to move the express access easement without the consent of the dominant estate owner does not violate the U.S. Constitution or the Idaho Constitution. In other words, the dominant estate landowner has not suffered a taking of property when the access easement is moved. In reference to the provision in I.C. § 55-313 requiring that the access "must be made in such a manner as not to obstnict motor vehicle travel, or to otherwise injure any person or persons using or interested in such access", the court stated that it "should consider whether the relocation of Black Cat 30, LLC Development Agreement Modification August 27, 2021 Page 3 of 3 the Original Easement to the New Easement location has impaired the ability of the [dominant estate holders] to access their property (the purpose for which they hold their easement)." The court rejected the argument that a slightly longer drive to access the dominant estate property was an injury under I.C. § 55-313. The fact that the New Easement would be a public road was also not considered to be an injury to the dominant estate holders' property. Further, the court rejected the argument that the New Easement was less safe because it was more difficult to see oncoming traffic at its intersection with the public road than at the Original Easement location. The court believed that the grant of a CUP for the New Easement location indicated that the county did not believe the New Easement location was unsafe. Applying the holding of Statetivide Constr•t�etion, Inc. v. Pietr•i to the Black Cat 30, LLC parcel, I do not see that the Caseys would suffer any injury to their property if the access easement is moved to the location of the proposed public road. Rather, it appears that moving the access easement to that new location would be a benefit to the Caseys. As I understand it, the current access easement intersects with N. Black Cat Road at a place where it is difficult to see oncoming traffic and successfully enter travel lanes. Additionally, the Caseys would not need to expend any resources maintaining that portion of the access easement located where the new public road will be built. If there are as yet some unknown minor inconveniences that may befall the Caseys upon relocation of the access easement, the court in Stateivide Construction, Inc. v. Pietri made clear that minor inconveniences would not be adequate to cause injury or damage to the dominant estate pursuant to I.C. § 55-313. Because Black Cat 30, LLC can unilaterally relocate the access easement that is on its land, the city of Meridian should be much more comfortable with modifying the development agreement. Of course, we cannot stop the Caseys from taking legal action against Black Cat 30, LLC if it moves the easement, but based on what information I have at this point, I do not see that such legal action would have merit. Please feel free to contact me if you or your client have any questions. 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