HomeMy Public PortalAbout1996.12.11 VAC - Partial Vacation of a Public Right -of -Way - Stone Lane - BaconJim Stone
710 Whiterock Avenue
P.O. Box 2949
Crested Butte, CO 81224
(970) 349-1546
November 26, 1995
Mr. Steven J. Milleman
P.O. Box 1066
McCall, ID 83638
Dear Steven,
(HIL�.i *`21 a ,>,. t :
I recently spoke with Jim Bacon and we decided to put our "vacation / relocation"
document on hold.
He doesn't like losing some of his property to the required cul-de-sac. I don't
like the easement access to my property as opposed to the existing dedicated
road access.
I therefore am removing my approval from the "Stone Lane vacation / relocation"
document that you prepared in July 1995.
We may try again later, but for now please put this matter on hold.
I'm in Colorado for four months and don't have the Bacon's address or phone
number. Will you please forward a copy of this letter to them for me?
Sincerely,
Jim Stone
CITY OF MCCALL
AREA OF IMPACT PLANNING & ZONING COMMISSIONS
FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF DENIAL OF
PARTIAL VACATION OF A PUBLIC RIGHT-OF-WAY
The Commission finds that:
1. A petition for approval of vacation of a public right-of-way was presented for public
hearing on December 10, 1996 by Bill Killen, on behalf of James R. & Nancy S.
Bacon, owners of lots 17,18, 19 & 20, Ski Ranch Subdivision #2, Valley County,
Idaho. The application was considered under MCC 3-21-310, PROCEDURE FOR
APPROVAL OF VACATION OF PLATS, PORTIONS THEREOF, PUBLIC RIGHTS -
OF -WAY, OR EASEMENTS.
2. The public right-of-way in question is described as the westerly 200.58 feet of Stone
Lane as platted of record. The area to be vacated is identified by cross -hatching on
the attached exhibit "A".
3. The necessary notice was given to the public and to other public agencies and
entities.
4. The land in question lies in Zone A, as does the property to the north, east, and
south. The property to the west lies in Zone R-10.
5. Under MCC 3-21-030 (C), the Commission must consider present and future
development of the neighborhood. Because the applicants own all properties to the
north and south of the portion of Stone Lane in question, vacating the street will
have little impact on present development. However, future development of the
neighborhood will be negatively impacted, particularly properties to the west of the
proposed vacation.
6. MCC 3-27-020 (C) requires that every subdivision in excess of 5 acres provide at
least two points of access to public roads outside the subdivision, where practical,
and where through roads are not practical, shall provide stubbed -out roads to the
boundary of the subdivision at logical points. The westerly portion of Stone Ln.
allows Ski Ranch Subdivision #2 to comply with MCC 3-27-020 (C). Conversely,
vacating Stone Ln. will result in non-compliance.
7. In the original platting of Ski Ranch Subdivision #2, Stone Ln. was extended to the
western boundary of the property, facilitating future development. Vacating the
westerly portion of Stone Lane may result in future access and traffic circulation
problems.
8. Stone Lane must continue to the western boundary of Ski Ranch Subdivision #2 so
as to allow for future development of property to the west.
The Commission concludes that:
1. Upon reviewing the proposed vacation with regard to present and future
development of the neighborhood, as well as the interests of adjacent property
owners, as per MCC 3-21-310 (C.), the Commission concludes that the vacation
should be denied.
2. The proposed vacation would limit access and fail to protect the public health, safety
and welfare. Therefore, the vacation is not appropriate.
3. The proposed vacation should be denied pursuant to MCC 3-21-310.
Dated: December 11, 1996
Attest:
ew Loci=ff Planner
Jude Eddins, Chairman
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CITY OF MCCALL
AREA OF CITY IMPACT
PLANNING AND ZONING COMMISSION
Minutes
December 10, 1996
Attending: Julie Eddins, Chairman
Bill Erlebach
Barbara Knipe
Joe Johnson
Staff: Andy Locke, Staff Planner
Gary Shimun, City Manager
CALL TO ORDER & ROLL CALL:
Chair called the meeting to order at 7:34 p.m. and declared a quorum present.
MINUTES:
Johnson indicated an error on page 2 of the minutes. The minutes showed that Johnson
voted in the Drake Scenic Route decision, when in fact, he was not present at the meeting.
Johnson moved to approve the minutes as amended, seconded by Eddins. The motion
carried on an unanimous vote.
NEW BUSINESS:
Public Hearings:
Partial Vacation of a Public Right -of -Way - Stone Lane - Bacon
Chair declared a quorum present and opened the public hearing at 7:38 p.m.
Locke presented the staff report. Staff report focused on potential future uses of properties
to the west and possible solutions to ROW encroachment problems.
Chair sought testimony from the applicants. Bill Killen, representing the applicants, gave a
presentation. Killen raised the following primary issues:
• Road has not been built in the 30 years it has been platted.
• Vacation would eliminate ROW encroachment of existing structure.
• Utilities are of little concern.
• Valley County Road Department favors vacating the street in question, and
building a proper Cul-de-Sac.
Chair sought testimony from proponents.
James Bacon, applicant, spoke in favor of the application. Bacon cited movement of survey
monuments following construction of his residence. ROW was increased from 50 feet to 60
feet, with the entire 10 feet being subtracted from Tots 17 & 18.
Bill Kliewer, 1403 Stone Ln., spoke in favor of the application. Kliewer cited traffic and dust
concerns related to construction of a through street. Kliewer also asserted that he had
purchased the property because it was sited on a dead-end street, and that he would rather
see future roads go elsewhere. Kliewer noted that if future development were to take place
in the area, water availability may become a problem.
With no further proponents wishing to be heard, Chair sought testimony from opponents.
Tom Kerr, representing James Stone (abutting property owner to the west), spoke in
opposition to the application. Kerr cited the concerns over ability to develop the Stone
property, and asserted that the Planning & Zoning Commission had likely required Stone
Lane to be extended to the property boundary for the purpose of future development.
Chair asked if written comment had been submitted. Locke read 3 letters into the record.
Two letters were in support of the application (Bill & Kate Gust, 1411 Stone Ln.; Dean &
Patty Hovdey, 1401 Stone Ln.). The third letter was submitted by Leslie L. Ankenman,
Valley County Engineer, on behalf of the Valley County Board of Commissioners, Road
Superintendent, and himself. The letter neither supported nor opposed the application.
Chair offered the floor to Mr. Killen for rebuttal. Mr. Killen responded to future development
concerns.
With no further public comment, Chair closed the public hearing at 8:30 p.m.
Commission discussed the application, discussing intent of previous P&Z actions, and
ramifications of vacation.
Eddins moved to deny the application for a partial vacation of a public right-of-way, on the
grounds that future access should be maintained, and that if involved parties wish to alter
the street configuration, they may submit a full application to amend the plat. Johnson
seconded and discussion ensued. Locke called roll:
Erlebach - Aye
Johnson - Aye
Eddins - Aye
Knipe - Nay
The motion carried on a 3-1 vote.
Chair announced that the recommendation would be forwarded to the Valley County Board
of Commissioners with the findings of fact and conclusions of law. Chair also noted that the
applicants may appeal the decisions to that Board.
Because the P&Z Commission did not vote unanimously, and with considerable public
input, the Commission chose not to make a motion waiving a second public hearing before
the Valley County Board of Commissioners.
Variance - 1662 Forest Lawn Street - Peterschmidt
Chair declared a quorum present and opened the public hearing at 9:13 p.m.
Chair introduced the application and called for the staff report. Locke summarized the staff
report.
Chair sought testimony from the applicant. Andy Laidlaw, representing the applicant,
offered a brief presentation.
Chair sought testimony from proponents, then opponents. No persons wished to be heard.
Chair read the McCall City Code requirements for granting a variance (MCC 3-30-010 (B)).
Staff read one letter submitted by Leslie L. Ankenman, Valley County Engineer. The letter
neither supported nor opposed the application.
With no further public comment, Chair closed the public hearing at 9:35 p.m.
Discussion ensued over whether a variance was actually required. Staff indicated that the
situation was unclear, specifically regarding MCC 3-28-030 (B), which refers to damage
greater than 50% of the value of the structure. If the structure is damaged beyond 50%
value, the structure must come into conformance with all provisions of McCall City Code. If
damage is less than 50%, the structure may be altered providing the non -conformity is not
increased.
Johnson moved to declare that the cost of repairing the damaged portion of the structure is
less than 50% of the value, and thus a variance is not required. Knipe seconded the
motion. Locke called role:
Erlebach - Aye
Johnson - Aye
Eddins - Aye
Knipe - Aye
The motion carried on a 4-0 vote.
Agenda Items:
1. Minor changes to Section 1 (definitions) of Ordinance 701
Commission discussed changes. Eddins moved to approve the amendments to Ordinance
701. Knipe seconded and the motion carried unanimously.
ADJOURNMENT
Chair announced that no further business was scheduled and subsequently adjourned the
meeting at 10:15 p.m.
Respectfully Submitted, Attest:
Julie Eddins, Chair Andrew Locke, Staff Planner
William M. Killen
Law Offices of
William M. Killen, P.A.
200 Park Street
McCall, Idaho
Mailing Address:
P.O. Box AO
McCall, Idaho 83638
November 8, 1996
McCall Impact P & Z
City Hall
McCall, Idaho 83638
Re: Application for Partial Vacation
To Whom It May Concern:
Telephone: (208) 634-7118
Facsimile: (208) 634-5880
Please process the enclosed on behalf of my clients, Mr. and Mrs. Bacon. They would like to see
the it scheduled at the earliest possible time. If it is still possible to get the matter noticed in time
for the second meeting in November that would be greatly appreciated.
By copy of this letter we are sending the identical package to Les Ankenman, Valley County
Engineer, as provided by the governing ordinance. Further, it is my understanding the final action
on whatever the Impact P & Z recommends will be handled by the Valley County commissioners
inasmuch as the street in question lies within the McCall impact area.
Best regards,
William M. Killen
WMKIjd
enc. Check/Application/Exhibits A-E
cc: Mr. and Mrs. Bacon
», 4,
Applicant Name
Mailing Address
Application for ` PARTIAL VACATION
Public Right -of -Way
James R. & Nancy S. Bacon
date_/_/
P. 0. Box 725, McCall, Idaho 83638
Description of Requested Vacation That portion of Stone Lane (Ski Ranch
Sub. No. 2) lying between and abutting lots 17, 18, 19 and 20
Reason for Request Right-of-way has never hPPn aPSTPloped, epened
or used by the public since original plat vacation will eliminate
encroachments into right-of-way.
Attach the Following:
1. A written narrative statement attached
2. A complete legal description - The westerly 200.58 feet. of
Stone Lane as platted of record
3. An 8 1 /2 X 11 site location map of requested vacation area and
adjacent properties
- See Exhibit A attached
4. A larger scale area map (also8 1/2X 11) - Exhibit D attached
5. Names and mailing addresses of all property owners within 300 feet
otthe perimeter of the entire requested vacation - Exhibit E attached
A check for $125.00 made payable to the City of McCaII
Note: the applicant will be billed for the amount of publication and
$1.00 for each letter of notification mailed to owners
APPLICATION FOR PARTIAL VACATION OF
PUBLIC RIGHT-OF-WAY
1. A written narrative statement
Following the recordation of the final plat (Exhibit A) of Ski Ranch Subdivision
No. 2 the developers sold off certain of the lots by reference to the preliminary plat
(Exhibit B). Among those were lots 17 and 18, which lie immediately south and
abut a platted public right of way identified as Stone Lane on the plat. The
preliminary plat reflected a 50 foot right-of-way for Stone Lane which branched
off Paul Bunyan Road until its terminus on the westerly boundary of the
subdivision. The pins physically on the premises reflected the preliminary plat
layout. A home built by the purchaser of lots 17 and 18, Mr. and Mrs. Reinecker,
was built with reference to the property lines and pins establishing the 50 foot
right-of-way.
They in turn resold the property to a Mr. and Mrs. Jude in 1973. Subsequent to
that time the developer or his agents re -visited the subdivision and restaked it so as
to widen Stone Lane from a 50 foot to a 60 foot right-of-way to conform to the
recorded plat. At the time of the plat filing on September 11, 1967, the only extant
county regulation was that set forth in the Specifications and Standards for Roads
and Streets in Valley County (October 10, 1966); it includes both 50' and 60'
construction standards, the latter for "collector streets" and the former for "rural
minor roads." Presumably between the creation of the preliminary plat and the
final recorded plat the decision was made to expand Stone Lane from a 50 to 60
foot right of way. By neglect or inadvertence the plat maps provide to the initial
buyers (as well as the lot corner pins along the southeasterly boundary of Stone
Lane) were not conformed. By comparing the two that are attached here as
Exhibits A & B it can be seen that the additional 10 feet came from the south-
easterly tier of lots commencing with lot 1 and continuing through lots 2, 4, 6, 7,
9, 11, 15, 16, 17 and 18. The plat ultimately recorded reflects a 60 foot right of
way. In effect the original developers or their agents in selling lots apparently
were providing copies of the preliminary plat to prospective purchasers which
varied from the final plat in this particular.
Compounding the problem is the home had been built prior to the re -staking of the
right-of-way and thus the improvement on the lots in question, 17 and 18, actually
encroaches into the setbacks on Stone Lane and within 2 feet of the right-of-way
itself. Obviously none of these matters came to light until sometime subsequently
APPLICATION FOR PARTIAL VACATION - Page 1
because the roadway itself was never physically developed to its full length. A
roadway exists along the approximate route identified on the plat as Stone Lane
until the point where it turns from a southeasterly direction to a westerly direction.
In effect there has been no use, public or otherwise, beyond the line identified in
Exhibit A by cross -hatching, save and except for a limited turn around area and for
snow storage purposes. Presumably, if this vacation is granted, it will be necessary
to formally create a culdasac at that point to permit an adequate turnaround area
for emergency vehicles and other traffic. That could be readily accomplished since
the applicants are now the owners of lots 19 and 20 as well. Thus, if the property
were to be vacated, they would be the only affected property owners within the
subdivision.
The only other abutting owner is the owner of the property immediately to the
west, a Mr. James R. Stone, as Trustee of the James R. Stone Charitable
Remainder Unitrust u/t/d October 18, 1995. However, since the platted right of
way has never been opened or used in the cross -hatched area, pursuant to the
provisions of Section 50-1321, Idaho Code, (a copy as Exhibit D is attached) his
consent is not required.
No underground public or private utilities lie in the portion of the right-of-way
proposed to be vacated. Above ground power lines are present and would likely
have to be relocated only if the entire roadway were actually developed.
APPLICATION FOR PARTIAL VACATION - Page 2
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50-1321. Necessity for consent of adjoining owners — Acknowl-
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to order of vacation. — No vacation of a public street, public right of way
or any part thereof having been duly accepted and recorded as part of a plat
50-1322
MUNICIPAL CORPORATIONS 666
or subdivided tract shall take place unless the consent of the adjoining
owners be obtained in writing and delivered to the public highway agency '
having jurisdiction over said public street or public right of way. Such
public street or public right of way may, nevertheless, be vacated without
such consent of the owners of the property abutting upon such public street
or public right of way when such public street or public right of way has not
been opened or used by the public for a period of five (5) years and when
such nonconsenting owner or owners have access to his, her or their prop-
erty from some other public street, public right of way or private road:
However, before such order of vacation can be entered it must appear to the
satisfaction of the public highway agency that the owner or owners of the
property abutting said public street or public right of way have been served
with notice of the proposed abandonment in the same manner and for the
same time as is now or may hereafter be provided for the service of the .•
summons in an action at law. Any vacation of lands within one (1) mile of a
city shall require notification and consent of the city. [1967, ch. 429, § 239;
p. 1249; am. 1992, ch. 262, § 8, p. 778.]
Compiler's notes. Sections 7 and 9 of S.L.
1992, ch. 262 are compiled as §§ 50-1319 and
50-1324, respectively.
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PROPERTY OWNERS WITHIN 300'
NAME
Barbara Ady
Beverly B. Franklin
William Arthur Gust and
Kathleen Gust
Ray A. Woods and
Mayre E. Woods
Simpco Lands
Shirley A. Gehrig,
Life Estate, et al,
Bill M. Kliewer and
Billie D. Kliewer
John William McAnespie
Dean Stephen Hovdey and
Patricia Boydstun-Hovdey
Roy W. Christensen and
Irene P. Christensen
Roy W. Christensen and
Irene P. Christensen
Manchester Trust/M. Resorts, Ltd.
c/o Wm. E. Johnson
James R. Stone, Trustee
ADDRES S
1840 Ady Orchards
Fruitland, Idaho 83619
BoxAJ
McCall, Idaho 83638
Box AB
McCall, Idaho 83638
Box 1301
McCall, Idaho 83638
2601 Lake Earl Drive
Crescent City, California 95531
Box 329
McCall, Idaho 83638
Box 17
McCall, Idaho 83638
117 W. Cypress Avenue
Redlands, California 92373
Box 669
McCall, Idaho 83638
233 N. Val Vista #938
Mesa, Arizona 85213
233 N. Val Vista #938
Mesa, Arizona 85213
P. O. Box 1006
McCall, Idaho 83638
22825 Islamere Lane
Lake Forest, California 92630
EXHIBIT E
SUB. LOT/
LAND
#5
#6
#7
#8
#9
#10
#11
#12, 13,
#15, 16
#21, 22
#23
Shop
Office (208) 382-4257
Fax
(208) 382-4955
December 4, 1996
VALLEY COUNTY ROAD DEPARTmtNT
Box 672
Cascade, Idaho 83611
Andrew K. Locke, Staff Planner
City of McCall
P.O. Box 1065
McCall, ID 83638
Re: James R. and Nancy S. Bacon,
Vacation of a Portion of Stone Lane
in Ski Ranch No. 2 Subdivision.
Dear Andy;
Duane Petersen
Road Superintendent
Mobile 634-9618
Leslie L. Ankenman, P.E.
Engineer/Surveyor
(208) 382-4251
RECEIVED
DEC 0 9 1996
CITY OF McCALL
COMMUNITY DEVELOPMENT
McCALL PLANNING & ZONING
EXHIBIT
RECEIVED
The Board of County Commissioners, the Road Superintendent, and I reviewed the
request to vacate a portion of Stone Lane at the Board meeting on November 25, 1996. The
following comments are a result of that review:
1. It does not appear that public funds have ever been used by the County for
construction or maintenance of the subject portion of Stone Lane.
2. A portion of Stone Lane has been maintained at public expense by the Valley County
Road Department for many years. That portion is currently eligible for maintenance on a year
around basis according to Priority C of the "Policy for Maintenance of Roads and Highways in
Subdivisions in Valley County".
3. Public maintenance ends in a cul-de-sac in the vicinity of Lots 15 and 16. The turn
around is too small and the grading and surfacing need to be improved. It appears the cul-de-sac
encroaches on private property.
4. The County does not object to the proposal to vacate the portion of Stone Lane
described in the application. This may be a good opportunity to secure a proper legal right to the
cul-de-sac area. The County standard cul-de-sac has a radius of 45 feet but a radius of 60 feet
provides room for snow storage outside the roadway. Negotiations for the cul-de-sac will
certainly be pursued by the County.
I have the following recommendations:
A. There are provisions in Idaho Code for vacating public rights of way. One provision
that is often overlooked requires posting notice of the proposed action on the subject property.
CONTINUED
December 4, 1996
Andrew K. Locke, Staff Planner
City of McCall
Page 2
B. The County Commissioners want to know whether the cul-de-sac will be considered a
permanent terminus of the road or if extending the road to the south boundary of the subdivision
should be considered. Your Commission could make that recommendation as a result of their
public hearings.
C. If it is determined that this portion of road will be vacated then an amended plat of the
portion of the subdivision affected should be considered. That would provide the document for
vacating existing rights of way and easements, allocating ownership of the vacated property,
dedication of new rights of way and easements, and a basis for assigning new tax parcel numbers.
Lots 11 and 15 through 20 may be affected.
I hope this information will be helpful in considering this matter. If you need further
information please call.
Sincerely,
Leslie L. Ankenman, P.
Valley County Engineer
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December 6, 1996
McCall Impact Area Planning & Zoning Commission
Box 986
McCall, ID 83638
Dear Chairman,
We live at 1411 Stone Lane in McCall. We are opposed to any new road in the Ski
Ranch Subdivision. A new road would increase the traffic and noise in our primarily
unpaved area. Therefore, we are in favor of vacating the undeveloped portion of Stone
Lane.
Sincerely
Bill and Kate Gust
P.O. Box AB
McCall, ID 83638
(208) 634-7640
McCALL PLANNING & ZONING
EXHIBIT 3
RECEIVED
Wd0
0OV
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Itinvsmoo
io
RECEDE®
DEC 66 1966
CITY OF McGALL
COMMUNITY DEVELOPMENT
Friday, December 6, 1996
To Whom It May Concern:
We are writing to give our support to the proposed vacation of the
unused portion of Stone Lane as proposed by Jim and Nancy Bacon.
Please feel free to contact us should you have any questions.
Sincerely,
V
Dean and Patty Hovde
1401 Stone Lane
P.O. Box 669
McCall, ID 83638
McCALI PLANNING & LONING
EXHIBIT
RECEIVED
Publisher
STATE OF IDAHO
.SS
County of Valley
I, Leslie S. Freyer, being duly sworn and say, I am the receptionist of
The Central Idaho Star -News, a weekly newspaper published at McCall, in the
County of Valley, State of Idaho; that said newspaper is in general circulation
in the county of aforesaid and is a legal newspaper; that the LEGAL NOTICE, a
copy of which is enclosed hereto and is a part hereof, was published in said
newspaper once a week for one consecutive week in the regular and entire
issue of every number there of during the period of time of publication, and was
published in the newspaper proper and not in a supplement; and that publica-
tion of such noti9e began December 26, 1996 and ended December 26, 1996.
7 `.
s Affidavit of Publication
Subscribed
STATE OF
a orn •efor:%j e this the 9th day of January, 1997.
HO
COUNTY OF VALLEY
On this 9th day of January, in the year of 1997, before me, a Notary
Public, personally appeared Leslie S. Freyer, known or identified to me to be
the person whose name subscribed to the within instrument, and being by me
first duly sworn, declared that the statements therein are true, and acknowl-
edged to me that she executed the samei
ToGrote
Notary Public for Idaho
Residing at McCall, Idaho
Commission Expires: 1999
NOTICE OF PUBLIC HEARING 1
NOTICE OF PUBLIC HEARING
•MCCALL CITY COUNCIL
The McCall City Council will hold a public!
hearing.on January 23, 1997 at 7:15 p.m. (or as I
soon thereafter as the matter may be heard) At!
the McCall City Hall, 216 Park Street, lower'
level, McCall, Idaho. The hearing is for thel
purpose of receiving testimony from interested
persons regarding an application for partial!
vacation of a public right ofway, submitted by I
James R. & Nancy S. Bacon. Mr. & Mrs. Bacon
would like Valley County to vacate a portion of
Stone Lane. Permission for this vacation is'
required by MCC 3-21-310. I
The property with respect to which this
application was made is described as the west-
erly 200.58 feet of Stone Lane as platted of
record. Stone Lane lies within the Ski Ranch I
Subdivision of Valley County, located in the;
NE1/4 NW1/4 of Section 7, T. 19N.,R.3E.,
B.M.
As with all public hearings, the public is "
invited and encouraged to attend and/or make ,
written comment pfior to the hearing. I
. Dated: December 20, 1996 _
Andrew K. Locke, Staff Planner
Americans with Disabilities Act Notice:
The City Planning & Zoning Commission'
Room is accessible to persons with disabilities.?
If you need assistance, contact the Staff Plan-;
ner at (208) 634-7142. 1t12/26 _
og‘
Barbara Ady
1840 Ady Orchards
Fruitland, ID 83619
Ray & Mayre Woods
Box 1301
McCall, ID 83638
Bill & Billie Kliewer
Box 17
McCall, ID 83638
Roy & Irene Christensen
233 N. Val Vista #938
Mesa, AZ 85213
Les Ankeman
Valley County Engineer
P.O. Box 737
Cascade, ID 83611
Payette Lakes
Water and Sewer District
P.O. Box 1566
McCall, ID 83638
SITPA
555 Deinhard Lane
McCall, ID 83638
Idaho Department of Lands
555 Deinhard Lane
McCall, ID 83638
Beverly B. Franklin
Box AJ
McCall, ID 83638
Simpco Lands
2601 Lake Earl Dr.
Crescent City, CA 95531
John W. McAnespie
117 W. Cypress Ave.
Redlands, CA 92373
M Resorts, Ltd.
c/o Wm E. Johnson
Box 1006
McCall, ID 83638
Idaho Dept. of Fish & Game
555 Deinhard Lane
McCall, ID 83638
McCall Memorial Hospital
P.O. Box 906
McCall, ID 83638
Valley County Ambulance/McCall
P.O. Box 1227
M Call, ID 83638
McCall Rural Fire District
P.O. Box 1597
McCall, ID 83638
William & Kathleen Gust
Box AB
McCall, ID 83638
Shirley Gehrig Life Estate
Box 329
McCall, ID 83638
Dean & Patricia Hovdey
Box 669
McCall, ID 83638
James R. Stone, Trustee
22825 Islamere Ln.
Lake Forest, CA 92630
Valley County Assessor's Office
P.O. Box 758
Cascade, ID 83611
U.S. Forest Service
P.O. Box 1026
McCall, ID 83638
McCall Cemetary District
c/o Tom Kerr
P.O. Box 853
McCall, ID 83638
McCall School District
P.O. Box 944
McCall, ID 83638
Jan-02-97 03:11P Valley Co Pros Atty 208 382 4809 P.01
ROBERT D. WILLIAMS
Valley County Prosecuting Attorney
P.O. Box 532
Cascade, Idaho 83611
Telephone: (208) 382-4277
Facsimile: (208) 382-4809 Deputy
DONALD L. GADDA
2 January 1997
TO: Andy Locke, Staff Planner / GG: SILL rl LL G .)
FR: Robert Williams, Prosecuting Attorney
RBI Procedure for Vacating Plat Dedicated R.o.W.,in Subdivisions
within McCall Impact Area.
The Bacon's applied to the Impact Planning and Zoning
Commission to have a portion of Stone Lane vacated. After a public
hearing on the matter December loth, 1996, the Commission voted to
recommend denial of the vacation request to the Valley County Board
of Commissioners.
On December 19th, 1996, you sent a letter to the Applicant
informing them of the denial and stating that a meeting before the
McCall City Counsil will be set to act on the Commission's
recommendation. In response, Attorney Bill Killen who represents
the Applicant, responded by letter dated December 23rd, 1996. In
his letter, he takes issue with the conclusion that the matter
should be heard by the Council. After a preliminary review of the
matter, it appears to me that the most likely procedure is to
forward the Application to the Board for action.
In telephone conversation with you, it is my understanding
that the public right of way sought to be vacated lies within the
Impact Area. There appears to be no argument that it is a duly
dedicated and accepted public right of way, dedicated on the
subdivision plat. Idaho Code section 50-1306 provides that in the
event that an impact area has been established, then the "adopted
city or county zoning and subdivision ordinances have jurisdiction"
over the administration of plats. Section 50-1306A provides that
"it shall be lawful for [a person desiring to vacate a part of a
plat within one mile of a city] to petition the city council to
vacate."
I interpret 50-1306 as establishing the broad authority of
local county and city governments to establish local ordinances to
control the administration of plats in impact areas. The
significance of 50-1306A is however, is unclear. The language is
neither mandatory nor prohibitive. It is permissive, allowing the
Council to vacate plats located outside the City's limit, persuant
to the local ordinances governing under 50-1306. It does not
appear to mandate a procedure for plat vacation. Interpreting
these two statutes together then, I conclude that the agreed upon
ordinances for the Impact Area control the vacation of plats.
-02-97 03:11P Valley Co Plt^os Atty
208 382 4809 P.02
Turning to the applicable local ordinance however, there
exists further ambiguity. Ordinance 3-21-310 establishes the
procedures for vacating portions of plats. It also creates the
ambiguity. Subsection (D) states that the procedures "for the
handling of the proposed vacation are set forth in Chapter 32 of
this Title." Chapter 32 also provides that requests to vacate a
haa
right of way are governed by that chapter. 3-32-010.
procedure is to have a hearing before the Commission, who makes a
recommendation to the Council. The Council then hears the matter
and makes the degoing back to son 3-21-310,
subsection (E) provides that the "City, and for landoutsideth
City limits, the County may approve, deny or modify the application
[for a vacation] ... ."
Subsection (E) should control, and mandate that the Board
determines whether the R.O.W. should, or should not be vacated.
There are several reasons for this conclusion. The first is that
3-21-310 specifically deals with vacating R.O.W.'s while Chapter 32
is more general, and applies to a number of actions. Second, there
would be no point in having the Council act if the Board also acts
to "approve, deny or modify" the application to vacate. If the
Board can effectively "over -ride" the Council, there would be no
point in having both governing boards decide the matter. And
lastly, section 3-21-130(F) provides that for the acceptance of
plats in the Impact Area, that it shall be submitted to the Board
for "acceptance of dedication, [and]approval
would be ittleconstruction
purpose
standards and agreements ... •" There
served by requiring road dedications to be accepted by the Board,
while those same roads can be vacated by the Council.
While the answer is far from clear, it appears that the Board
has the authority to act in this case. However, it is the duty of
the Commission "to rule on the meaning, spirit and intent of the
provisions of these regulations as is necessary for the
administration thereof." section 3-21-320(A). 'This letter is
meant to serve an advisatory function only.
Sinc iY,
•
rt D. Williams
lley County Prosecuting Attorney
cc/Bill Killen
Public Hearing
Sign In
Name
•Ye KE.g.)?
Address Phone #
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634
7
Staff Report - December 10, 1996
Partial Vacation of a Public Right -of -Way - Stone Ln. - Bacon
James & Nancy Bacon, owners of lots 17, 18, 19 and 20, Ski Ranch Subdivision #2,
request that an undeveloped portion of Stone Ln. be vacated.
As a part of the vacation, the applicants would install a Cul-de-Sac at the terminus of
Stone Ln. This would essentially reflect what currently exists at the site.
As is noted in the application, the existing structure on lots 17 & 18 encroaches the
required setback from a public ROW and is within 2 feet of the ROW itself. This is.
presumably the result of changes made to the plat after the original owners had begun
construction. Thus, if this road were to be constructed in the future, the Bacon's home
would be within 2 feet of the ROW.
However, the Bacon's now own the two lots on the opposite side of the undeveloped
Stone Ln. (lots 19 & 20). Because these lots are undeveloped, it may be possible to
move the ROW to the north, allowing lots 17 & 18 a more reasonable setback from a
public ROW.
No public or private utilities are buried in the ROW. An above ground power line follows
the ROW. Vacating the street would require a utility easement to maintain the existing
power lines.
Presumably, when Ski Ranch #2 Subdivision was platted, the Planning & Zoning
Commission required Stone Ln. to be extended to the property boundary, allowing for
future development of parcels to the west. Without extending streets across a plat,
some parcels may become landlocked.
Extending Stone Ln. to the west boundary of the plat represented good planning.
Conversely, vacating the street would result in limited access to property to the west.
The property to the west, owned by Mr. James R. Stone, is bounded to the south by the
recently approved Whitetail PUD, and to the north by the Whiteman Property. Without
Stone Ln., future development in the area will be increasingly isolated, and require a
greater amount of roads.
Andy Locke,
Staff Planner
McCALL
PLANNING and ZONING
November 13,1996
The attached notice is sent to you as an affected property owner
within 300 feet of the proposed Partial Vacation of a Public Right -of -
Way. You are invited to attend the public hearing and comment or
respond in writing prior to the hearing date.
If you have any questions regarding this notice, or if you wish to
review the application, please contact me during regular business
hours at the number below.
Sincerely,
Andre
Staff Planner
ke
216 East Park Street • P.O. Box 986 • McCall, Idaho 83638 • (208) 634-7142 • FAX (208) 634-3038
NOTICE OF PUBLIC HEARING
MCCALL AREA OF CITY IMPACT
PLANNING & ZONING COMMISSION
The McCall Area of City Impact Planning and Zoning Commission will hold a
public hearing on December 10, 1996 at 7:30 p.m. (or as soon thereafter as the
matter may be heard) at the McCall City Hall, 216 Park Street, lower level,
McCall, Idaho. The hearing is for the purpose of receiving testimony from
interested persons regarding an application for partial vacation of a public right of
way, submitted by James R. & Nancy S. Bacon. Mr. & Mrs. Bacon would like
Valley County to vacate a portion of Stone Lane. Permission for this vacation is
required by MCC 3-21-310.
The property with respect to which this application was made is described as a
the westerly 200.58 feet of Stone Lane as platted of record. Stone Lane lies
within the Ski Ranch Subdivision of Valley County, located in the NEV4 NW'/ of
Section 7, T. 19 N., R. 3 E., B.M.
As with all public hearings, the public is invited and encouraged to attend and/or
make written comment prior to the hearing.
Dated November 8, 1996
Andrew K. Locke
Staff Planner
).ss
Publisher's Affidavit of Publication
STATE OF IDAHO
County of Valley
I, Leslie S. Freyer, being duly sworn and say, I am the receptionist of
The Central Idaho Star -News, a weekly newspaper published at McCall, in the
County of Valley, State of Idaho; that said newspaper is in general circulation
in the county of aforesaid and is a legal newspaper; that the NOTICE OF
PUBLIC HEARING, a copy of which is enclosed hereto and is a part hereof,
was published in said newspaper once a week for one consecutive week in the
regular and entire issue of every number there of during the period of time of
publication, and was published in the newspaper proper and not in a supple-
ment; and that publication of such notice began November 14, 1996 and
ended November 14, 1 �.
j
Subscribed add sworn before`tne this the 15th day of November, 1996.
STATE OF IDAHO
COUNTY OF VALLEY1.
On this 15th day of November, in the year of 1996, before me, a
Notary Public, personally appeared Leslie S. Freyer, known or identified to me
to be the person whose name subscribed to the within instrument, and being
by me first duly sworn, declared that the statements therein are true, and
acknowledged to me that she executed the same.
Tom Grote
Notary Public for Idaho
Residing at McCall, Idaho
Commission Expires: 1999
NOTICE OF PUBLIC HEARING
MCCALL AREA OF CITY IMPACT
PLANNING & ZONING COMMISSION I
The McCall Area of City Impact Planning
and Zoning Commission will hold a public
hearing on December 10, 1996 at 7:30 p.m. (or
as soon thereafter as the matter may be heard)
at the McCall City Hall, 216 Park Street, lower '
. level, McCall, Idaho. The hearing is for the
'purpose of receiving testimony from interested
persons regarding an application for partial
vacation of a public right of way, submitted by
James R. & Nancy S. Bacon. Mr. &Mrs. Bacon
would like Valley County to vacate a portion of
Stone Lane. Permission for this vacation is
required by MCC 3-21-310.
The property with respect to, which this
application was made is described as the west-
erly 200.58 feet of Stone Lane as platted of
record. Stone Lane lies within the Ski Ranch -
Subdivision of Valley County, located in the
NEI/4 NW 1/4 of Section 7, T. 19 N., R. 3 E.,
B.M.
As with all public hearings, the public is
invitedand encouraged to attend and/or. make
written comment prior to the hearing. '
.Dated November 8, 1996
Andrew K. Locke, Staff Planner. ltl I/14 ,
William M. Killen
Law Offices of
William M. Killen, P.A.
200 Park Street
McCall, Idaho
Mailing Address:
P.O. Box AO
Decem e'rdn° 1 ge
Andrew Locke, Staff Planner
City of McCall Area of Impact Planning & Zoning Commissions
City Hall
McCall, Idaho
Re: Bacon Right -of- Way Vacation Matter
Dear Andrew:
Telephone: (208) 634-7118
FAX: (208) 634-5880
MOLL ?LOOM & LONlRO
Meg
fiECEl1ED _�,�,
I received a copy of your letter of December 19th and would differ with your conclusion (or Mr.
Burton's conclusion) that Section 50-1306A(1), Idaho Code, requires that the matter be referred
to the City Council prior to the County Commissioners.
Drawing your attention to the immediately preceding section of the Code, 50-1306, there is
specific reference to the applicable situation when and if an impact area has been adopted, as in
our case. As that section makes clear that, in that situation the impact ordinances will govern. In
my view, those ordinances dictate that a county road be dealt with by the County Commissioners
and not by City Council. It is my view that 50-1306 is the applicable statute. If and only if no
impact area has been formally adopted does the one mile extraterritorial jurisdiction potentially
bring the matter before City Council. Section 50-1306(A) simply outlines the procedure to be
used in that latter event.
I would draw your attention to a footnote in a case decided by the Court of Appeals in June of
1985, Coeur d' Alene Industrial Park vs. City of Coeur d' Alene, 108 Idaho 843, which sets forth,
in part, the amendment to Section 50-1306 adopted in 1979 by the Idaho legislature (see Exhibit
A attached). When one views what it formerly'said and what it now says following the adoption
of a Local Planning Act/impact area approach,,, I think that the consequences are fairly clear,
namely, that the one mile within the city limit procedureapplies only .when there has been no
impact area adopted. When that has been done, then the .ordinances governing that impact area
become the controlling ordinances.
Andrew Locke Page 2 December 23, 1996
To construe the statutes as was done here, otherwise, in effect negates the whole policy
underlying the joint creation of an impact area and the joint adoption of its controlling ordinance.
In light of that, I would request that you reevaluate the decision that this matter need go before
City Council for further action.
Finally, in reviewing the Findings and Conclusions, I note that conclusion 1 says the proposed
vacation does not meet the standards of MCC 3-21-310(C) as a matter of law, but does not say
why or how. Further, none of the findings appear to support this conclusion. Is something
missing?
Best regards,
William M. Killen
WMK/jd
enc. Exhibit A
cc: Jim and Nancy Bacon
Robert Williams, Impact Area Legal Counsel
Julie Eddins, Chair, Impact P /Z
Ted Burton, McCall City Attorney
ward P.
fs-appel-
L. Ray-
defend-
welopers
prohibi-
property
'hey con-
ty exists
at to this
Kootenai
is provid-
Ltive writ
er a hear-
e alterna-
tor a per -
The court
3xation is
with I.C.
a writ of
e remedy.
,asons ex -
le district
n and we
story writ.
the reme-
arrow one.
the Local
t requires
prehensive
ances pur-
§ 67-6507,
er directs
t establish
ze unincor-
The peti-
area of city
his separate
rf the follow -
In and ordi-
x to the area
COEUR D'ALENE INDUS. PARK v. COEUR D'ALENE
Clte as 108 Idaho 843 (App.)
tioners in this case do not contend that the plats of subdivisionoutside.;theycity bound
City of Coeur d'Alene has failed to satisfy ariessrhasrbeen amended to takb account of
any of those requirements. Rather, the t"§ 67=6526 a
petitioners, noting that Kootenai County Colversely, the Local Planning Act Con -
has not joined in designating the area of
city impact, argue that the city is powerless
to annex an "unincorporated area of the
county" until a mutual agreement has been
negotiated. We disagree.
[1] When a city and county mutually
agree upon an area of city impact, they
decide whose comprehensive plan and "or-
dinances adopted under this chapter" will
apply to the affected area. But this does
not mean that an annexation ordinance
must await the successful culmination of
city -county negotiations. Annexation ordi-
nances are not ordinances "adopted under
this chapter." They are not creatures of
title 67, chapter 65. Rather, annexation
authority flows from I.C. § 50-222; a stat- [2, 3] There is, to be sure, a tension
ute antedating the Local Planning Act. between the notion of city -county coopera-
I.C. § 50-222 broadly authorizes a city to tion in land use planning and a city's unilat-
annex adjacent territory and by ordinance eral authority to annex adjacent land.
to declare the annexed area a part of the Some, though not all, benefits of mutual
city.2 This statute was not amended when planning may be lost when a city perempto-
the Local Planning Act was passed, nor has rily extends its boundaries. Nevertheless,
it since been amended in light of the Act. the allocation of powers between cities and
In contrast, I C, § 50-1306, a statute em- counties is a legislative task. Our Legisla-
,ilpowerm g .cittes to_appro_ a or to=disappt•ove ture has chosen not to make negotiation
(2) Application of1he count -Sr -Plan -ilia ordi- to the council, or when a tract of land is
nances adopted under this chapter to the area entirely surrounded by properties lying with -
of city impact; or in the city boundaries, it shall be competent
(3) Application of any mutually agreed for the council, by ordinance, to declare the
upon plan and ordinances adopted under this same, by proper legal description thereof, a
chapter to the area of city impact. part of such city.
845
tains no substantive limitation upon the
power of annexation. It simply provides
that annexation must be preceded by notice
and hearing on "the proposed [comprehen-
sive] plan and zoning ordinance changes
for the unincorporated area." I.C. § 67-
6525. Petitioners concede that this proce-
dural requirement has been satisfied in the
present case. I.C. § 67-6525 further pro-
vides that changes in the comprehensive
plan and zoning ordinance shall be adopted
"[c]oncurrently or immediately following"
the annexation. The act of annexation
does not await an exercise of the zoning
power. See Burt v. City of Idaho Falls,
105 Idaho 65, 665 P.2d 1075 (1983).
2. I.C. § 50-222 provides in pertinent part as:R= 3 -The ;amendment to -I e § 504306 is set fortli"
follows:
in t 979 IdahouSess L ,s s ch. 88 p 215, as fol-
lowsi —
Whenever any land lying contiguous or adja- „r nrn , �, ..,rT.riri r nr ic: MTT 1
cent to any city in the state of Idaho, or to any
addition or extension thereof, shall be or shall
have been by the owner or proprietor thereof
or by any person by or with the owner's
authority or acquiescence, laid off into blocks
containing not more than five (5) acres of
land each, whether the same shall have been
or shall be laid off, subdivided or platted in
accordance with any statute of this state or
otherwise, or whenever the owner or proprie-
tor or any person by or with his authority, has
sold or begun to sell off such contiguous or
adjacent lands by metes and bounds in tracts
not exceeding five (5) acres or whenever the
owner or proprietor or any person by or with
his authority requests annexation in writing
E50=1306
'OF CITY LIMITS EXTRATERRITORIAL'AU-
t-.THORITY -PROPERTY WITHIN ,THE AREA
OF CITY IMPACT. All plats situate within an
officially designated area of city impact as
provided -for in_section-67,.6526, Idaho:Code,
"shall be administered in accordance with the
provisions set forth in the adopted city or
county -'zoning -and subdivision.ordinances
having jurisdiction.. In the situation where no
area.. of city impact has been officially
adopted, all plats situate within one (1) mile
outside= the limits `of- any incorporated. -city
shal1LLfirstbe submitted to the said_ city, _and
approved by: the'council of said city before -the
sail -le -Shall be recorded.