HomeMy Public PortalAbout1983.02.11 Water Pump Plant Easement - Shore Club LodgeMcCALL
UL„)) e\v{
CITY ATTORNEY
Edward G. Burton, Esq. e-maillcity.attorney@mccall.id.us
October 3, 1997
Steven J. Millemann, Esq.
Millemann, Pittenger & McMahan
P. O. Box 1066
McCall, ID 83638-1066
Re: Your letter of October 3, 1997
Shore Lodge Pump Station
Dear Steve:
Thank you for your letter of October 3, which will serve as a useful sketch of our
conversations.
I know that you did not intend to speak to the scenic route implications. In order that there be
no misunderstanding if the correspondence is read by others, we agreed to the appearance on
October 9 to obtain the City's business decision as owner of the pump station building,
whether or not to permit aesthetic modifications to the exterior of the building, and a deck
over the top of the building. You did not wish to proceed with actual plans for Planning and
Zoning review until knowing that the City was or was not interested in the project's
happeningat all.
Thus it is not intended that this appearance would in any way replace or make unnecessary an
application to Planning & Zoning under the scenic route chapter of the Zoning Ordinance.
I must apologize for not having responded to you concerning the matter of the conditional use
respecting the dock. This question calls for interpretation of the Ordinance.
The Shoreline and Rivers Environs overlay district identifies permitted uses as those
permitted in the underlying zone, but speaks of "public or commercial marinas, docks and
piers" as a conditional use and requires all manner of related improvements to the same. The
Navigable Water Zone permits normal accessory use to the principal use on the adjacent
uplands.
I do not view these statements of the permitted uses as eating up the descriptions of those
uses which are conditional uses. In this Zone "commercial docks, wharves, piers and
marinas" are conditional uses.
I am satisfied that these wharves would not be "public," as the hotel presumably does not
make them available to the general public, nor are they owned by the public.
The real question presented is whether the operation of wharves in association with the hotel,
presumably for the accommodation of guests' boats, makes the wharves "commercial." The
216 East Park Street • P.O. Box 986 • McCall, Idaho 83638 • (208) 634-7142 • FAX (208) 634-30.38
Zoning Ordinance does not define "commercial," other than by implication in what is listed in
such zones and not in residential zones. The City Code does define "commercial" in
connection with prohibition of commercial activity in a park without a permit,t but that
definition is not useful in this context.
The term "conditional use in zoning law generally refers to a specially permitted and
controlled use of property that does not fall within the scope of a permitted use, thus a stand-
alone use which is not merely accessory to and implicit in some adjacent or co -located,
permitted use. The Navigable Water Zone is consistent with that interpretation, and the wharf
itself would be in that Zone. In my view the operation of a wharf as an accessory use to the
principal use on the property, in which the wharf is very clearly subordinate in significance to
the principal use, is not in itself a principal use, and thus does not fall within the purview of
the conditional uses in question. I view the latter as intending to apply to an independent use
of the water, in which there is no upland use, or the upland use is dependent upon the water
use, or the upland use is accessory to the water use. In this fashion, for example, Sports
Marina is entirely within the Navigable Water Zone, and is not associated at all with any
upland property or use. Thus the May Marina, by comparison, is a principal use in its own
right, with any related merchandising in the upland building being accessory to the marina
use. It is those kinds of uses, or any other renting of dock space as an independent business,
which the ordinance is clearly intended to cover.
Should the Lodge ever get into the business of renting docks to people who are not guests in
the Lodge, a conditional use would be required.
This letter represents the opinion of the author, and is not necessarily the view of
Commission or Council. However, it will be copied to both for their review and comment.
Very truly yours,
CITY OF McCALL
cc: Council
both Planning Commissions
6.
by:
City Attorney and Prosecutor
"Commercial" as used in this Chapter when used with use or activity means of or connected
with commerce or trade, and includes without limitation an exchange of goods or services
for money, or the solicitation of such an exchange, whether the exchange is to occur
presently or in the future, and whether the exchange is permanent or only for a period of
time. Without limiting the generality of the foregoing, commercial use includes:
b. purchase or sale or rental of goods, or delivery of purchased, sold or rented goods.
c. soliciting the purchase, sale or rental of goods or services, whether verbally or by
means of signs or banners, or other advertising device.
, SEP-18-1997 17: 21
•
••• •••:
r r
11Parl
2Wbb,544b1b F.162
. t .
,71
-- . . . , i,... .Th.. ;.,. , .. , , . j. .:,,...,.. i..,....,.....4.1:i.../t,..04,,•ti
.. lfiA'C
' .. .
• .: 1 •,,,•'I"'• .'"' -0.;4..:'•'.'
..:,
. . . ,, ., , ,:• - • -... -e..r*,
.. . ' .
14036'91 •',..
•',. '•
• • .• ,T11115• FASE.11EnT MITL7EMEN'rf. !wide :and entered', in.tojbiirs.:''',..1•ii:Plitt;it.P'
•
day. of rebruary 1962'.1nand'between SPORECLUp LOWEIW. 1'44
.. '. • 1 ,I,r, -
''', INC..' ,, an 'Idaho 'Corl.;o ra ti on ,,! the'par:4'.,.. of. thc: first .Pekt, be;i4t0
l' ,.:-: .....•
• .: .:1 .v . .
o , ,•. • . : il te. . • • • . .
Cltt/46C411, 14andi7.aieki , i • Car called the CRANT011,atiVthe
- -.• • . • • ' , • • • •r,. ••'• . Y .' ' - ,. • '., 1•,.7.1...::.- .,.„.•;x4i
municipal -corporation; P. 0..Eox 1065, HcCall, Zdehiiii36I8rai:.
•
. . the party of the SocOnd Part;1. he;e.'iliik4.1111440:1-A
. •
: ' • '"4010444,401:***4;410L04060AftWii,TI/.1.r.::1' ,e-W41.1trt9',r1t"-
. , I A's r NA ,..Nok• •
•,. • • , • •il • . .0 P '' ,%1 3it f
t of !irei..•
t,thilthe'.GRANTOR' toe and :.in' ctInsideration og the
! % Jr,I,4 A, •.,
, • : . EASEPIENT AGREF,AENT.' .,•
• ' • ••',' '
•
t. ;4:.-.1 •.'f•• - ' i' '''%'!.! '', ig".:.:',.." • .- •• . ' "?2.-"t?"' ? '',1-'1' ", '. - ,. L... • :. , ,,I. , ,.• ! . •
• • Ctti • DiV44t, AO». 001 Ando° ther Valuable consideration, to ItA.)ni.......%:
• ., •., .....• • •i%. :.
-• • '
., .• • ••,.. • • • •;.,
'hancl pa.i.d..py the MUM TE)-7,, the receipt. wherrof 15 isereby acknowl.-
..... • .
. ..
. • '
• . . edged ,.. dross by these ri •Jsents ritmise , ! release and,forenier31;i:•1.-'2J.4*? •
• .• • ,s,
• :',' -....7” "_. .. •
VibiTCT.A.Vi unto the Giti..;:'1't:1;, and tc, itssuccessors and
4;•".L.
• •
• •• Ppormanent, eaSemell't_ r a DPITIPing- Plaht, to be construct:04:•,
-
. _
• •
• •
. .
' ",by the .pIWITEE, which v...t er pumpinq station shall =must
• •
. •
One a tereY flat roof • ! (rame or bricapproximAtp
16 .• x 30.' to house punps and motors chlorination equiP-
rearm. there'qr, device...connected in n linter '
p!pc extending A.M.() Ili.. ,yette Lake, • controls tor. SU:. such
.c9u4priont and 5 tAn'EP; ,.-1:nency.electrIOl. rower with
• e..s-P•Ni
• • • ;:
such huildinq to 1-c
areal together with
The land ici.r.e“t.V1
,Valley Coonty. 10,3ho.
g•J Shellutorth-nxrk
thereof on file wIC 0!
Valley C%' Anty, Wnho.
Prior to
shall cauno
•
r .• •
• -
ruetud in harmOny •
nurrOdndine •
. . ,
to and eorees therefron. . •-
such easement 1oca*14n McCall
,.he most Easterlyn'poiltion%of Lot B. •
Nccording tcothe oZftcial plat
ord in. the mifice (It; the Recorder Of
•
• ,
't 1 r r !1,1 id 'we t'as% inamOine plant • the
S:10 ov•-•.,lo be surveyed by an Idaho licensed
surveyor and - ..rition of such oiled:Mut ehail
. prepared, and tqwn .ij•• .-0A hy flP.P.P7nR eCcopy of such descrintion
shall hA attach.l -wide n part hereof.
„of.nr.;tive-Tvii fin;;; FIS said eaielPiit7
' shalt be pctull1,, oupene ait,ove apecified,
• a'1.1 N.Fourt .tfe0 hell revert tO theoWx1� of .6ieiTI
i
btr—ib-17� r i r. ee rii- .ri
G�Ji3bJ�ltiJlb r.lJJ
w
).and' e�hera: said use_ eha 11 hare" tbeeri aitiiderie 4 end- discOntinu d
for _a_tertn _of_.five•
GRANTEE agrces that construction of such pumping plant
•
shall commence On or after October 1, 1983, and ,such construe-
tion. shall proceed uninterruptedly until full complexion theraefo,;,•
in the fall nt 1983.
• GRANTOR reserves uittri 'itself ttie ri iht to une the property
.ame"' *** es;"'t1 c1litftW-tha'llgfitt'tb bildua.ltsrelio1� :, •,••
removal operetiorsa on.the property, ee •lotYg'eas, said ,Mies• dc'not
damage improvements. to bo constructed'upon the property: by GRANTEE.
The GRANTEE shall at all. reasonable. times hava the'r right' to
enter upoo the lands hereinahmVe-deaaribed for the purpose or
Constructing; rspslrinry'eetid maintainine said improvements. doinc
as little da:epge,as. possible.
The GRANTEE specifically agrees to have the premises above
•
deaCibed, . 12'.17.:t with the improver nts to be constructed
covered by Ow d.r.:_ing municipal liahiliLy insurance for the
protection : ,r parties hereto.
• The GRANTEE agrees specifically to replace in good condi-
tion any and all road surCacinn Materials disturbed or removed
by it in the cor.,ttructian of the facilities above described{.
The GRANTEE further specifically agrees to 1ardscaoe the
area upon completion of construction of the foregoing improve-
ments and to keep np and maintain the saws in a neat and orderly
manner consistent with tht surrounding area.
In further conPislc:•otion hereof Lhe GRANTEE, agrees to
install and maintain twK additional fire hydrants in the vicinity
of S.,ore Lodge at McCall, J9aho.
-1-
i
5EP-18-1997 17:22
j Hal Ltltib,344b1b r`.434
:4%) .14" �Of'... _-j--�:cr�.al�le+ia�e.tlSat�-- '=� 'slo �� ;e:�- - ' �..�.+s..e.r..l�tia.lr....l�1i �•
IN W/TWESS WHEREOF. the parties i,ave pursuant to due
authorization of their respective governing bodies, executed
this agreement the day and year first above written.
i 1' . I
rttest.i
S atary
ay
Attest:
C> t� • rk • ty6.4eli
.
SHORE:CLUB'LODGE, INC.
PIesi
CITY O KcCALL, IDAHO
l
aU el ' Preu
"
C i t y o f . M c C a / I
O F F I C E O F T H E C L E R K
B O X 1 0 6 5
M C C A L L , I D A H O 8 3 6 3 8
M a r c h 1 0 , 1 9 8 3
J . W . C r u t c h e r
C l e r k o f t h e D i s t r i c t C o u r t
E x - O f f i c i o A u d i t o r &