HomeMy Public PortalAbout2004.07.01 Huber/City of McCall Brown's Park Dock Agreement07/01/2004. 17:00 FA% 333120L
c i
vVV 1YVV
MOORE SMITH BLT%TON TURCK iguuuziuus
Q 002/005
AGREEMENT BETWEEN THE CITY OF MCCALL AND DEBRA HUBER
WHEREAS Debra Huber owns property directly adjacent to Brown Park and also owns,
in common with other homeowners, private beach property directly. adjacent to the northern end
of Brown Park.
WHEREAS the City of McCall has installed a new dock with thirteen boat cleats and
designed to hold two 20' by 20' fish pears at the northern end of city -owned 13rown Park without:
giving notice to surrounding landowners and without obtaining a conditional use permit.
WHEREAS Ms. Huber objects to the dock in this location based on concerns that it
would negatively impact: the residential character of the area; property values; lake views; water
quality; noise, traffic and parking levels; and safety of swimmers at adjacent private beach.
WHEREAS the City and Ms. Huber desire to attempt to resolve this dispute through
collaborative consideration of alternate locations rather that: through litigation.
THEREFORE the City and Ms. Huber agree to the .following terms:
1. The City immediately will issue a stop -work order against itself and all city contractors,
provided that the City may, through its employees or contractors, conduct work necessary to
implement this Agreement.
2. The City will avoid taking any action that could jeopardize the fish intended for the fish pears,
such as allowing their delivery from the hatchery.
3. By Friday, July 16, 2004 at 5:00 PM, the City will remove the floating portion of the dock
and store it off -site from Brown Park.
4. The City will use good faith efforts to remove the fixed pier portion of the dock as soon as is
feasible after the City selects any alternate location for the dock. .
5. By Friday, July 2,. 2004 at 5:00 PM, the City will barricade the fixed pier portion of the dock,
using reasonable efforts to prevent use of and access to the dock from both the water and
land, and will monitor compliance with said measures and maintain the same.
6. By Friday, July 2, 2004 at 5:00 PM, the City will place signs on the fixed pier portion of the
dock indicating "ME DOCK IS NOT AUTHORIZED FOR PUBLIC USE."
7_ By Friday, July 16, 2004 at 5:00 PM, the City will determine, in collaboration with Ms.
Huber and any other mutually agreed upon parties or persons, the feasibility of alternate
locations for the proposed boat dock and fish pens which shall include, but not necessarily be
limited to locations (1) outside of Brown Park and (2) at the south end of Brown Park, and
inform Ms. Huber, through counsel, of the same; this tirnefframe may be extended only upon
the mutual agreement of the City and Ms. Huber.
07/01/2004 17:00 FAX_3331202 _
MOORE SMITH BUXTON TURCR I] 003/003
lgj 003/005
S. The City will not file a conditional use permit application or other permit application for the
current proposed dock location (north end of Brown Park) until the alternate -locations
feasibility determination is completed and reported to Ms. Huber, through counsel, in
accordance with the preceding paragraph.
9. Except as necessary to preserve Ms. Huber's administrative and judicial review challenge to
the City's state -issued encroachment permit, Ms. Huber will not initiate further legal action
against the City until after Friday, July 16, 2004 at 5:00 PM, so long as the terns of this
Agreement are met.
10. Nothing in this ,Agreement shall be construed as an admission of liability or acknowledgment
of the validity of any legal argument or factual allegation nor shall this Agreement be
construed to limit the rights of either party to seek or challenge, permits or other actions
beyond the express commitments herein.
SIGNED and effective this 1$` day ofJuly 2004.
CITY OF MCCAX..L
By counsel Paul A.'Turcke
Moore, Smith, Buxton & Tlucke, Chartered
DEBRA HUBER
By counsel Deborah E. Nelson
Givens Pursley LLP
MILLEMANN, PITTENGER, McMAHAN & PEMBERTON, LLP
ATTORNEYS AT LAW
706 NORTH FIRST
POST OFFICE BOX 1066
MCCALL, IDAHO 83638
STEVEN J. MILLEMANN (sjm@citlink.net)
GREGORY C. PITTENGER (gcpit@citlink.net)
BRIAN L. McMAHAN (blm@citlink.net)
AMY N. PEMBERTON (anp@citlink.net)
April 23, 2004
Lindley Kirkpatrick, City Planner
McCall City Ha11
216 East Park Street
McCall, ID 83638
Re: Brundage Mountain Company
Dear Lindley and Jay:
RECEIVED
APR 2 7 2004
CITY OF McCALL
rnmmi JMrrV nFVELOPMENT
TELEPHONE: (208) 634-7641
FACSIMILE: (208) 634-4516
EMAIL: m2p2@citlink.net
Jay Sila
Idaho Department of Lands
555 Deinhard Lane
McCall, ID 83638
Pursuant to your earlier discussions with Amy, enclosed please find a draft of a Gift Deed
for your review. Amy will be back in the office on May 10`h, and she'll contact you upon her
return to discuss any questions or suggestions that you might have.
/dm
Encs.
Thank you for your review of these documents.
Sincere
Y,
DEBRA MARTENS,
Legal Assistant
ADMINISTRATION
DIRECTOR'S OFFICE
954 West Jefferson r ---------------_
Post Office Box 83720 I r} ( ' �, - p--
Boise ID 83720-0050 i I C ' F� ��
Phone (208) 334-0200 L: j ( WINSTON A WIGGI ,7$1 D,F ECTOR
Fax (208) 334-2339 • '! EQUAL OPPORTUNITYitMPL - ' R
�" OCT 2 6 2004 i
Octob`erJ , 2004
Debra Huber I,�.__
Givens Pursley, LLP
1508 McCall Avenue
McCall, Idaho 83638
STATE BOARD OF LAND COMMISSIONERS
Dirk Kempthorne, Governor
Ben Ysursa, Secretary of State
Lawrence G. Wasden, Attorney General
Keith L. Johnson, State Controller
Marilyn Howard, Sup't of Public Instruction
Robert Strope, City Manager
City of McCall
216 East Park
McCall, Idaho 83638
Re: City of McCall — Encroachment L-65-S-114D
Dear Ms. Huber and Mr. Strope:
I have reviewed the record in the above matter, including the pleadings of the
parties and the transcripts of the hearings held.
The responsibility of the Department is to consider the "...likely effect of the
proposed encroachment upon adjacent property, and lake value factors of navigation,
fish and wildlife habitat, aquatic life, recreation, aesthetic beauty or water quality."
[Idaho Code § 58-1306(b)].
Following my review, and an examination of the applicable law and
administrative rules, I. find that the Department has complied with its obligations in this
matter. Therefore, I accept the Findings of Facts and Recommendation in the August
27 Jay Biladeau memo (copy attached). The Department's decision to grant
encroachment permit No. L-65-S-114D is upheld.
Section 58-1306(d) provides that if you are aggrieved by the decision following
reconsideration, you may appeal to district court in the same manner as provided for
following a hearing, thus you must file a notice of appeal with the district court within
thirty (30) days from the date of this decision. Since I am making the decision to
approve the permit, should you wish to appeal, you must, pursuant to Section 58-
1306(c), "file a bond on such appeal in an amount to be fixed by the court but not less
than five hundred dollars ($500) insuring payment to the applicant of damages caused
by delay and costs and expenses, including reasonable attorney fees, incurred on the
appeal in event the district court sustains the action of the board."
Sineely,
fr1 / frm f
WINSTON A WIGGINS
Director
Idaho Department of Lands
C: George Bacon, IDL
Idaho Department of Fish and Game Lorna Jorgensen, IDL
Sheldon Keafer, IDL
IDAHO DEPARTMENT OF LANDS
MEMORANDUM
27 August 2004
TO: Winston Wiggins
Di or
FROM: J /= i - . e
sist- nt Director
JAY G. BILADEAU, Assistant Director
954 West Jefferson Street
P. O. Box 83720
Boise, Idaho 83720-0050
(208) 334-0244
Fax (208) 334-2339
e-mail: ibiladea(idl.state.id.us
SUBJECT: Recommendation — Reconsideration of Departments Issuance of Encroachment
Permit No. L-65-S-114D to the City of McCall for a Dock and Fish Pens at Brown
Park.
The City of McCall owns Brown Park, which has approximately five hundred feet (500') of
frontage on Payette Lake. The city made application to the department for an encroachment
permit for a dock and fish pens to be located at the public park.
On May 10, 2004, a public hearing was held in McCall regarding the proposed encroachment.
Mike Murphy, Program Manager, Navigable Waters acted as the hearing officer and prepared
Findings of Fact/Conclusions of Law. The recommendation from Mr. Murphy, to permit the
encroachment, was adopted by Scott Nichols, Bureau Chief, acting as the Director's designee.
A copy of Mr. Nichols letter and the Findings of Fact/Conclusions of Law is attached.
On June 29, 2004 Debra Huber, through her attorney, Deborah Nelson, submitted a request for
reconsideration of the Departments decision to issue encroachment permit No. L-65-S-114D to
the City of McCall for a dock and fish pens. Your notice of July 16, 2004, informed the parties
that briefing and oral arguments were to be limited to new evidence and arguments not
presented at the original hearing. Accordingly, as the Director's designee for the
reconsideration hearing held on July 27, 2004, I limited my review to new evidence and
arguments in making my reconsideration recommendation.
Findings of Fact
1. The appellant argued that this encroachment must be regulated as a "commercial
navigational encroachment" and, as such, must meet certain upland parking requirements
(IDAPA 20.03.04.060.06). I concur with the appellant and find that the applicant has met such
requirements.
The dock, as proposed, will have thirteen (13) cleats, which will provide moorage for boats
accessing the dock from the water. There is no boat launching facility at Brown Park and the
dock, therefore, will not generate parking requirements for vehicles launching boats.
Winston Wiggins
27 August 2004
Page 2 of 2
The addition of a dock may increase public use of the city park, however, that increased
use would be primarily from water ward of the park, and would require no vehicle parking.
Vehicle parking for the park is provided by adjacent and neighboring city streets. It is
speculative to assume that the dock and fish pens will result in additional parking on those
streets. The addition of the dock could just as well result in less parking on the streets, as
visitors would have the option of visiting the park by boat.
2. The appellant argues that IDL has a duty to consider the impact of the proposed dock on
upland property. I concur with the appellant and find that the department did consider the
encroachment impact on upland property.
Ms. Huber, as stated in her "Request for Reconsideration" owns residential property directly
adjacent to Brown Park. Ms. Huber has also recently built a house on this property. The city
park, Brown Park, has five hundred feet (500') of frontage on Payette Lake. It is not
unreasonable to expect that a dock, to be used by the public, would be requested by the city at
Brown Park. In fact, in the past, a pier was located at the park.
3. The appellant argues that the proposed dock violates the McCall City code. The appellant
claims that the city must have a conditional use permit in order to build the dock.
Encroachment permit No. L-65-S-114D, granted by the department to the city of McCall for the
dock and fish pens at Brown Park, states under term #6: "This permit does not relieve the
Permittee from obtaining additional local or federal permits, as required." The fact that the
department issued the encroachment permit does not relieve the city from obtaining a
conditional use permit, if required.
4. The appellant argues that fish pens in the lake will negatively affect water quality by the
addition of nitrogen and phosphorous to the lake. Fish pens are not new to the lake, or to this
area. For the past several years, they have been in the Take and located just south of Brown
Park.
The Department of Environmental Quality (DEQ), who administers the Clean Water Act,
was provided the opportunity to comment on the proposed encroachment. No comments from
DEQ were received.
I believe these are the major issues where new evidence was presented by the appellant
under the request for reconsideration. -Based on my findings, I recommend that the
department's decision to grant encroachment permit No. L-65-S-114D be upheld..
FILE No.184 11/30 '04 18:08 ID:LANDS UNIT - AG'S OFFICE FAX:2083342297 PAGE 2i 2
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
November 30, 2004
Deborah E. Nelson
Givens Pursley, LLP
Post Office Box 2720
Boise, Idaho 83701-2720
SENT VIA FACSIMILE
RE: City of McCall - Encroachment L-65-S-1 14D
Dear Deborah:
As I indicated in our conversation today, the Idaho Department of Lands received an
unclaimed certified letter that was addressed to your client, Debra Huber. The Director
then sent the letter to you by certited mail and you indicated that your received it on
November 29, 2004.
Because the Director's letter of decision was not received until November 29, 2004, the
Department has extended the commencement of the thirty (30) day time period for filing
an appeal to November 29, 2004. As stated in the October 22, 2004 letter, should your
client wish to appeal, she must, pursuant to section 58-1306(c) file a bond.
Sincerely,
Lo a K. Jorg
De uty Attorney General
Idaho Department of Lands
cc: Applicant, City of McCall
Idaho Department of Fish and Game, McCall
Winston Wiggins, Director
Sheldon ICeafer, IDL, McCall
Naturat Resources Division, Department of Land3
P.O. Box 83720, 954 West Jefferson, 13Oi9e, Idaho 83720-0050
Telephone: (208) 334.0200, FAX: (208) 334-2339
FILE No.184 11/30 '04 18:08 ID:LANDS UNIT - AG'S OFFICE FAX:2083342297
PAGE 1i 2
TO:
FAX COVER SHEET
OFFICE OF THE ATTORNEY GENERAL
Idaho Department of Lands
PO Sox 83720
Boise, ID 83720-0050
FROM:
Robert Strope
City of McCall
Lorna Jorgensen
Deputy Attorney General
Idaho Department of Lands
REMARKS:
Date:
Number of Pages:
Phone: (208) 334-0200
Fax: (208) 334-2297
Iorgensen@idl.state.id.us
NOTICE: This message is intended only for the use of the individual or entity to which it is add the reader ressed and m this notice
contain
information that is privileged, confidential, and exempt from disclosure under applicable
is not the intended hereby
notifierecipient
that any dissemination, on ee rdistribution or copying of this communication is strictly prohibited.onsible for delivering the message to the intended recipient,
you
you are hereby papers to us at
have received this communication in error, please notify us immediately by telephone and return these pap
the address shown above via first class mail.
Deborah E. Nelson, Idaho State Bar No. 5711
L. Edward Miller, Idaho State Bar No. 2112
GIVENS PURSLEY LLP
601 West Bannock Street
P.O. Box 2720
Boise, Idaho 83701-2720
Office: (208) 388-1200
Fax: (208) 388-1300
www.givenspursley.com
Attorneys for Debra Huber
BEFORE THE IDAHO DEPARTMENT OF LANDS
IN THE MATTER OF ENCROACHMENT
PERMIT NO. L-65-S-114D ISSUED TO
THE CITY OF MCCALL
I. Introduction.
REQUEST FOR RECONSIDERATION
On June 9, 2004, the Idaho Department of Lands ("IDL") granted Encroachment Permit
Number L-65-S-114D to the City of McCall in response to the City's application to site.a new
dock with thirteen boat cleats and two 20' by 20' fish pens on the shoreline of Payette Lake at the
far northern end of city -owned Brown Park. Brown Park, formerly named Mill Park, is located
in a residential neighborhood named Mill Park Village. Numerous property owners from Mill
Park Village, along with their homeowner's association, opposed the City's application.
Debra Huber timely files this request for reconsideration pursuant to IDAPA
20.03.04.030.09. Ms. Huber owns residential property directly adjacent to Brown Park at its
northern end, immediately behind the proposed dock site. May 10, 2004 Public Hearing
Transcript ("Transcript"), pp. 8-9 (testimony by Debra Huber). Ms. Huber also owns, in
REQUEST FOR RECONSIDERATION - 1
SACLIENTS\7260\I\Request for Reconsideration to IDL.DOC
common with other Mill Park Village homeowners, private beach property on Payette Lake
directly adjacent to the northern end of Brown Park. Transcript, pp.5-7 (testimony by Mike
Romano on behalf of Mill Park Village Homeowner's Association). Ms. Huber appeared at the
May 10, 2004 public hearing on this matter and provided oral testimony against the City's
application and, therefore, is entitled to seek reconsideration pursuant to IDAPA
20.03.04.030.09.
II. The City's Proposed Dock Must be Regulated as a "Commercial Navigational
Encroachment."
Under the Lake Protection Act, the State Land Board has the authority to regulate
encroachments upon, in, or above the beds or waters of navigable lakes, such as Payette Lake in
McCall. Idaho Code §§ 58-1301-1312. IDL is the administrative agency of the State Land
Board. Id. § 58-119. IDL's interpretive rules set forth the standards for regulation of
encroachments on navigable lakes. IDAPA 02.03.04.
The City of McCall's proposed dock fits the regulatory definitions of two types of
encroachments: (1) a "community navigational encroachment" or "community dock" and (2) a
"commercial navigational encroachment."
A "community navigational encroachment" or "community dock" is a structure that
provides moorage facilities for more than two adjacent riparian owners. IDAPA
20.03.04.010.06. The City's proposed dock will provide moorage for the general public, not just
one or two adjacent riparian owners.
A "commercial navigational encroachment" is a navigational encroachment that patrons
pay a fee to use. IDAPA 20.03.04.010.05. Patrons will pay a fee when visiting the fish pens
proposed for this dock. According to testimony by Lindley Kirkpatrick, City of McCall
Community Development Director and Deputy City Manager, the public uses the fish pens by
REQUEST FOR RECONSIDERATION - 2
SACLIENTS\7260\I\Request for Reconsideration to IDL.DOC
putting money into a feeder to feed the fish. Transcript, p. 3. Further, aquaculture is itself a
commercial enterprise.
For either type of encroachment — community or commercial — the legal standards are the
same. "A community dock shall be considered a commercial navigational aid for purposes of
processing the application." IDAPA 20.03.04.010.06. This makes sense. A community dock
and commercial dock present similar issues for evaluation because, for both types, more than just
one or two adjacent lot owners will use and have access to the encroachment.
Indeed, IDL appropriately processed the City's application according to the statutory
provisions in Idaho Code Section 58-1306, which regulates commercial docks, as opposed to
Section 58-1305, which regulates non-commercial docks. Conclusion of Law #5, June 9, 2004
Memorandum from Mike Murphy to Scott Nichols stating Findings of Fact and Conclusions of
Law ("Decision Memorandum"), p. 4.
III. The City's Proposed Dock Violates Regulatory Parking Requirements.
Under IDL's criteria for processing a commercial dock permit application — and, thus
also, a community dock application — upland vehicle parking equivalent to one parking space per
two boat moorages is required. IDAPA 20.03.04.060.06. The City's proposed dock will have
thirteen boat cleats. Transcript, p. 4 (testimony by Lindley Kirkpatrick). Yet, there are no
parking spaces at Brown Park, other than street parking. Transcript, p. 17 (testimony by
neighboring property owner, Gerry Edson). Therefore, the proposed dock violates IDL regulatory
parking requirements.
Compliance with this rule is important. Without appropriate parking, increased numbers
of visitors coming to meet boat users or to feed the fish in the fish pens would end up parking on
residential streets. Id. Brown Park is a pedestrian, residential park and is ill-equipped to handle
additional public access to motorized boating and fish rearing/feeding activities.
REQUEST FOR RECONSIDERATION - 3
S:\CLIENTS\7260\DRequest for Reconsideration to 1DL.DOC
IV. IDL Has a Duty to Consider the Impact of the Proposed Dock on Upland Property.
The IDL Hearing Officer assigned to this matter concluded:
Pursuant to the Lake Protection Act, the Depai'lent weighs lake
values against the benefits to be derived from the proposed
encroachment. The Lake Protection Act does not provide legal
authority to regulate upland property uses or address local zoning
issues, such as land use, increased park activity, parking, or
trespassing.
Conclusion of Law #6, Decision Memorandum, p. 4 (emphasis added).
This conclusion is in error. As noted in the previous section, IDL rules implementing the
Lake Protection Act specifically regulate upland parking issues. See IDAPA 20.03.04.060.06.
Moreover, the Lake Protection Act expressly identifies "property" as one of the elements
to be protected and to be "given due consideration and weighed against" a proposed
encroachment. Idaho Code §§ 58-1301.
The legislature of the state of Idaho hereby declares that the public
health, interest, safety and welfare requires that all encroachments
upon, in or above the beds or waters of navigable lakes of the state
be regulated in order that the protection of property, navigation,
fish and wildlife habitat, aquatic life, recreation, aesthetic beauty
and water quality be given due consideration and weighed against
the navigational or economic necessity or justification for, or
benefit to be derived from the proposed encroachment. ...
Id. (emphasis added).
It is the property element that forces IDL to consider the impacts at this location when
reviewing the City's application. A generic comparison of lake values versus recreational
benefits of a boat dock with fish pens does not suffice. Opponents to the project did not contest
that the proposed dock provides some recreational value. Rather, they objected to the fact that
the City proposed to site the dock in a location with significant negative impacts to property.
Indeed, the Idaho Supreme Court has held that it is appropriate for the State Land Board
to consider the current use of an area and whether the proposed encroachment comports with that
REQUEST FOR RECONSIDERATION - 4
SACLIENTS\7260\I\Request for Reconsideration to IDL.DOC
use under state and local laws. In Dupont v. Idaho State Board of Land Comm'rs, 134 Idaho
618, 7 P.3d 1095 (2000), the Court affirmed the Land Board's decision to revoke a dock permit
where the proposed area had been designated a swimming area free from boats for forty years.
The Court explained:
[T]he fact the Board does not have the authority to regulate the use
of the dock does not prevent the Board from considering the
proposed use in its decision. In Shokal v. Dunn, 109 Idaho 330,
707 P.2d 441 (1985), this Court addressed the interrelation
between the Department of Water Resources and the Department
of Health and Welfare in the area of water appropriation permits.
We noted "[i]t is not the primary job of Water Resources to protect
the health and welfare of Idaho's citizens and visitors - that role is
vested in the Department of Health and Welfare...." Id. at 340-41,
707 P.2d at 451-52. We then went on to say "although these
agencies may have separate functions, Water Resources is
precluded from issuing a permit for a water appropriation project
which, when completed, would violate the water quality standards
of the Department of Health and Welfare. It makes no sense
whatsoever for Water Resources to blindly grant permit requests
without regard to water quality regulations." Id. at 341, 707 P.2d
at 452. A similar rationale applies in this case. It makes little
sense for the Board to grant a permit for an encroachment when the
intended use of the encroachment would violate applicable local
and state laws. Thus, we hold the Board did not exceed its
statutory authority when it considered the intended use of the
proposed encroachment in making its determination to revoke the
permit based on the existence of unusual circumstances.
Id. at 625, 7 P.3d at 1102 (emphasis added). Therefore, it is not only within IDL's legal
authority to consider the current and allowed uses of the area around the proposed dock, but it is
recommended, so that the state is not blindly permitting encroachments that are incompatible
with surrounding uses in violation of local zoning laws.
This recommended scrutiny is especially appropriate in this case because the proposed
dock is proposed in a residential area along a protected shoreline and, as discussed in the
following section, violates applicable local zoning laws.
REQUEST FOR RECONSIDERATION - 5
SACLIENTS\7260\I\Request for Reconsideration to 1DL.DOC
V. The Proposed Dock Violates the McCall City Code.
Brown Park falls within a city overlay zone that regulates development along the
shoreline of Payette Lake and the North Fork of the Payette River, known as the Shoreline and
River Environs Zone. McCall City Code §§ 3-15-010, 3-15-020. For property located in this
zone, the McCall City Code provides that development of a public dock is a conditional use,
which requires a conditional use permit. McCall City Code § 3-15-040(B)(5). To get a
conditional use permit, an applicant must satisfy the requirements and follow the notice and
hearing procedures set forth in McCall City Code Sections 3-31-010 and 3-32-010. The
shoreline zone also requires an applicant to satisfy additional requirements set forth in McCall
City Code 3-15-040(A) and to provide additional information, including an environmental
assessment. McCall City Code 3-15-040(5).
The City has neither acquired a conditional use permit nor met any of the additional
zoning standards required for development of a public dock along the shoreline of Payette Lake,
yet they admittedly have begun construction on the dock at the proposed site. Therefore, the
City is in violation of its own Code. Further, even if the City were to belatedly pursue a
conditional use permit, the City likely will have a difficult time demonstrating the compatibility
of the dock with surrounding residential properties, as required by McCall City Code Section 3-
31-010.
The City's noncompliance with its Code is relevant to IDL's analysis of weighing the
negative impacts to property and lake values against the justification of the proposed
encroachment. According to the City's own Code, shoreline development is not to be
undertaken lightly. Based on this zoning, property owners have an expectation that development
along the shoreline will be carefully and publicly scrutinized. The City's apparent lack of
REQUEST FOR RECONSIDERATION - 6
S:\CLIENTS\7?60\I\Request for Reconsideration to IDL.DOC
rigorous investigation into the dock's proposed siting does not measure up against the significant
impact to property at the proposed location.
Moreover, as discussed supra, under the Idaho Supreme Court's decision in Dupont, the
legal pitfalls with the City's proposed location are appropriately considered by IDL when
considering an encroachment permit application.
VI. Impacts to Upland Property and Lake Values Outweigh the Claimed Justification
for Siting the Dock at the Proposed Location.
At the May 10, 2004 public hearing, property owners provided oral testimony regarding
numerous impacts to property they believe would occur from the proposed dock. These
concerns include: negative impact to property values; obstruction of lake views; excess noise
from increased boat traffic; safety concerns for swimmers at the adjacent private beach from
increased boat traffic; water quality impacts from aquaculture activities; insufficient parking
(none); increased traffic on residential streets; increased number of trespassers onto adjacent
private property; incompatibility with original gift deed language for the park; and, generally,
changing the character of the neighborhood from a pedestrian -friendly, residential community to
a commercial, motorized destination.
Further, the property owners questioned why the City and Idaho .Department of Fish and
Game chose a residential park location for a boating dock and fish pens rather than less -
residential locations around the lake, such as: the original location of the fish pens on city land
near the marina, another of the city's five shoreline parks, or Ponderosa State Park. Transcript,
pp. 7, 17 (testimony of Mike Romano), p. 9 (testimony of Cheryl Coats), p. 10 (testimony of
Debra Huber), p. 11 (testimony of Gery Edson). Even within Brown Park, according to
testimony at the hearing, the proposed site is the worst choice. Brown Park has 500 feet of lake
front property (Finding of Fact #1, Decision Memorandum, p. 1), yet the dock is sited just forty
REQUEST FOR RECONSIDERATION - 7
SACLIENTS\7260\11Request for Reconsideration to IDL.DOC
feet from the northern end where the park abuts the property owners' private beach, thus
exacerbating concerns of view obstruction, increased noise, safety problems, and trespassing.
Also, the northern end of the park is its narrowest part, thus bringing the dock closer to private
homes. Transcript, p. 7 (testimony of Mike Romano), p. 9 (testimony of Debra Huber), and p. 11
(testimony of Gery Edson). Finally, the water at the northern end is not as deep as the southern
end of the park or other locations around the lake. Transcript, p. 7 (testimony of Mike Romano).
Ms. Huber continues to assert all of the concerns listed herein and raised at the public
hearing as bases for reconsideration.
The City's testimony at the public hearing addressed only a few of the property owners'
concerns. In particular, the City presented no testimony or other evidence countering the
property owners' complaints that the dock would negatively impact property values, obstruct the
property owners' view, increase noise, increase vehicular traffic on residential streets, and
increase boat traffic.
Moreover, the City presented almost no information as to why it needed to site the dock
at the northern end of Brown Park over other locations around the lake or within Brown Park.
The testimony the City did provide was insufficient to outweigh the property owners' concerns.
City representative Lindley Kirkpatrick testified that the City needed to replace existing
older docks located closer to downtown where the fish pens were located before they were
damaged by ice. Transcript, pp. 3, 15. However, Mr. Kirkpatrick admitted that the City had not
even looked into the option of simply placing the new dock and fish pens at that same original
location. Transcript, p. 15.
Indeed, the only justification the City offered for choosing Brown Park over other
locations around the lake was that it wanted to bring new amenities to Brown Park and that
REQUEST FOR RECONSIDERATION - 8
SACLIENTS\7260\I\Request for Reconsideration to IDL.DOC
Brown Park had fixed public restrooms. Transcript, p. 4 (testimony of Lindley Kirkpatrick). Of
course, this does not explain why the dock should be at the northern end of the park where the
park is narrowest and closest to private homes and a private beach. The only justification the
City offered for choosing the far northern end of the park was that submerged logs at the
southern end could limit water depth needed for the fish pens. Transcript, p. 14 (testimony of
Dale Allen, Idaho Department of Fish and Game employee). The City never explained what
water depth is necessary for the fish pens.
The City apparently did not investigate the cost of adding a public restroom to another
lakeside park. And, the City apparently did not investigate the cost of removing the submerged
logs at the southern end of Brown Park. The City apparently also failed to consider the use of
private money offered by the property owners to help defer any costs associated with siting the
dock at a less -residential location. Transcript, p. 11 (testimony of Gery Edson).
In sum, the property owners presented numerous legitimate concerns about siting the
dock at the far northern end of Brown Park, needlessly close to private homes and a private
beach. In contrast, the City failed to identify any significant benefit, and provided no evidence
of "economic necessity," for choosing such a residential, high -impact location. In fact, the City
cannot legitimately argue the proposed dock is a justified infringement on property and lake
values when the City apparently conducted no investigation into other options with less impact.
VII. The Acknowledged View Obstruction is Not Mitigated by Topography.
Although the City presented no testimony responding to property owner testimony that
the dock obstructs their view, the Hearing Officer found as a matter of fact and law that the
property owners' houses are located higher than the proposed encroachment and thus any view
obstruction is "mitigated" by the topographical landscape. Finding of Fact #13, Decision
Memorandum, p. 3; Conclusion of Law #9, Decision Memorandum, p. 5.
.REQUEST FOR RECONSIDERATION - 9
S:\CLIENTS\7260\I\Request for Reconsideration to IDL.DOC
These findings and conclusions are not accurate. The immediately adjacent private beach
owned in common by the property owners is at the same lakeside level as the proposed dock.
Likewise, Debra Huber's property extends to the park boundary at the same level as the dock.
And, although adjacent houses are, by definition, higher than a lakeside dock, there is no
evidence to suggest that such layout mitigates the fact that the dock, with moored boats and fish
pens, would still protrude from the shoreline in full view.
VIII. Conclusion.
IDL has a responsibility to protect property and other lake values from infringement by
encroachments on navigable lakes. The City of McCall's proposed encroachment fails to satisfy
IDL rules and the McCall City Code. Moreover, the City's claimed justification for siting the
dock in close proximity to private residences and a private beach is heavily outweighed by the
negative impacts this location would cause to property and other lake values.
For these reasons, Debra Huber requests IDL to reconsider its decision permitting the
City of McCall's proposed dock at the far northern end of Brown Park.
RESPECTFULLY SUBMITTED this 29`h day of June 2004.
GIVENS PURSLEY LLP
Deborah E. Nelson
Attorneys for Debra Huber
REQUEST FOR RECONSIDERATION - 10
SACLIENTS\7260\I\Request for Reconsideration to IDL.DOC
CERTIFICATE OF SERVICE
I hereby certify that on this 29th day of June 2004, I caused to be served a true and correct
copy of the foregoing by the method indicated below, and addressed to the following:
Lindley Kirkpatrick
at City of McCall
City Hall
216 East Park Street
McCall, ID 83638
Christopher E. Yorgason
Paul A. Turcke
Moore Smith Buxton & Turcke
225 N. 9th Street, Suite 420
Boise, ID 83702
i� U.S. Mail
Facsimile
Hand Delivery
Overnight Mail
Y` U.S. Mail
Facsimile
Hand Delivery
Overnight Mail
Deborah E. Nelson
REQUEST FOR RECONSIDERATION - 11
SACLIENTS\7260\1\Request for Reconsideration to IDL.DOC
Deborah E. Nelson, Idaho State Bar No. 5711
GIVENS PURSLEY LLP
601 West Bannock Street
P.O. Box 2720
Boise, Idaho 83701-2720
Office: (208) 388-1200
Fax: (208) 388-1300
www.givenspursley.com
Attorneys for Debra Huber
BEFORE THE IDAHO DEPARTMENT OF LANDS
IN THE MATTER OF ENCROACHMENT
PERMIT NO. L-65-S-114D ISSUED TO
THE CITY OF MCCALL
i�
iii
AUG 1 1 2004
POST -HEARING MEMORANDUM
Debra Huber, through counsel, submits this Post -Hearing Memorandum, with Exhibit A,
and the Affidavit of Debra Huber pursuant to Hearing Officer Jay Biladeau's direction at the July
27, 2004 Reconsideration Hearing that the parties could submit further briefing and evidence by
August 10, 2004.
At the July 27, 2004 Reconsideration Hearing, through counsel, MS. Huber provided
additional argument and evidence in support of her Request for Reconsideration and verbally
responded to the arguments in the City of McCall's Response to Request for Reconsideration.
Further, Hearing Officer Jay Biladeau stated that he had considered and rejected the City of
McCall's argument that Ms. Huber's request for reconsideration was not properly before the
Department. Therefore, Ms. Huber is not herein providing further argument as to specific issues
raised in the City's brief.
However, Ms. Huber would like to inform the Hearing Officer and Director of certain
new or newly discovered facts relevant to this matter. First, the Affidavit of Debra Huber,
it
POST -HEARING MEMORANDUM - 1
S:\CLIENTS\7?6011\Post-Hearing Memorandum.DOC
submitted herewith, provides testimony about the feasibility of alternate locations for the City's
proposed dock that contradicts paragraphs 14 and 15 of the Affidavit of Brock Heasley.
Specifically, the Affidavit of Debra Huber explains that both the far south end of Brown Park and
the several points outside of Brown Park (south of Brown Park and near the marina) provide
feasible alternate locations for the proposed dock and fish pens. The water depth at the south end
of the park is approximately 30 feet and is unobstructed by logs. Affidavit of Debra Huber, 114.
The water depth at various points south of Brown Park, including points along the City -owned
shoreline between the park and the marina and in the same approximate location where the fish
pens originally were located near the marina, satisfied the City's stated requirement of 15-20
feet. Affidavit of Debra Huber, 3 and ¶ 5.
Second, Ms. Huber submits, as Exhibit A to this memorandum, a 1996 Consent Order
between the Idaho Department of Health and Welfarel and the Idaho Department of Fish and
Game (IDFG) regulating and conditioning an MFG fish pen at Redfish Lake. Although the
Redfish lake matter only involved one fish pen holding 2,500 fish —one quarter of the 10,000
fish proposed for the 1DFG/McCall fish pens —the Consent Order imposes rigorous monitoring
and reporting requirements in order to protect water quality. The Consent Order explains,
"Confined fish rearing has the potential to affect water quality through adding nitrogen and
phosphorus to the lake from feeding and concentrating fish waste beneath the pens. This
addition of nitrogen and phosphorous may result in a violation of the Idaho Water Quality
Standards, including without limitation, IDAPA 16.01.02.080.01." Consent Order, ¶ 3. Thus
far, the City has not demonstrated how it will prevent or mitigate potential impacts from the
proposed fish pens on water quality.
I The Idaho Department of Enviromnental Quality has since become a separate Department from the Idaho
Department of Health and Welfare.
POST -HEARING MEMORANDUM - 2
S:\CLIENTS\726011Tost-Hearing Memorandum.DOC
These facts are relevant to the Department's consideration of the proposed
encroachment's impacts to property and water quality. The Lake Protection Act specifically
directs the Department to weigh the impacts to property and water quality, among other lake
values, against the navigational or economic necessity of the proposed encroachment. Idaho
Code § 58-1301. In this case, the impacts of the chosen site outweigh the navigational or
economic necessity of the City's proposed dock.
Ms. Huber is continuing to work with the City to find a more suitable location for the
City's proposed dock. In the meantime, however, Ms. Huber rightfully challenges the current
dock location at the north end of Brown Park and submits that, as a matter of law and fact, the
Department of Lands should withdraw Encroachment Permit No. L-65-S-114D.
RESPECTFULLY SUBMITTED this /644-day of August 2004.
GIVENS PURSLEY LLP
Deborah E. Nelson
Attorneys for Debra Huber
POST -HEARING MENIORANDUM - 3
S:\CLIENTS\7260\I\Post-Hearing Memorandum.DOC
0
CERTIFICATE OF SERVICE
I hereby certify that on this [i day of August 2004, I caused to be served a true and
correct copy of the foregoing by the method indicated below, and addressed to the following:
Original Filed With: U.S. Mail
Mr. Winston Wiggins Facsimile
Director Hand Delivery
Idaho Department of Lands Overnight Mail
954 W. Jefferson St.
Boise, ID 83720-0050
Lindley Kirkpatrick
City of McCall
City Hall
216 East Park Street
McCall, ID 83638
Christopher E. Yorgason
Paul A. Turcke
Moore Smith Buxton & Turcke
225 N. 9t1i Street, Suite 420
Boise, ID 83702
Courtesy Copy to:
Jay Biladeau
Idaho Department of Lands
P.O. Box 83720
Boise, ID 83720
Courtesy Copy to:
Lorna K. Jorgensen, Esq.
Deputy Attorney General
Idaho Department of Lands
954 W. Jefferson St.
P.O. Box 83720
Boise, ID 83720-0050
U.S. Mail
Facsimile
Hand Delivery
Overnight Mail
U.S. Mail
Facsimile
Hand Delivery
Overnight Mail
U.S. Mail
Facsimile
X Hand Delivery
Overnight Mail
U.S. Mail
Facsimile
Hand Delivery
Overnight Mail
Deborah E. Nelson
POST -HEARING MEMORANDUM - 4
S\CLIENTSV2G0'J\Post-Hearing Memorandum.DOC
JUL-28-2004 WED 09:23 AM A
FAX N0, 1 P, 02
I10AHO DEPARTMENT OF HEALTH Am WELFARE
In the matter of: )
Tdak+r I epa.rtment of Fish and. )
Game, I edlish Lake Fish, )
Rearing A.cttvities )
CONSENT ORDER
Idaho Cade § 89-108
1. PLrsuant to Idaho Code g 89-108 (Idaho Environmental
PzctLectian and Health Act), the Idaho Department of Health
afro Welfare (Department) eaters into thi❑ Conaer_t Ordnr with
the Idaho Department ,of Fish and Game.
2. Historically, Redfish Lake located in the Sawtooth Mountains
near Stanley, Idaho, has provided Snake River sockeye salmon
sr awning- and rearing habitat. However, since 1990, la adult
sc ckeye have returned to Redf i sh Lake, the only remaining
natural spawning site for this endangered species. As one
ecmponer_t of the Snake River sockeye salmon. recovery effort,
the Idaho Department of Fish and Game will place the
offspring of captive broodstock and wild sockeye in llnet
pens," a floating fish rearing facility on Rodfish Tiake,
3. Placing th8 id bet.: pens suBmafg in the
lake enables them to
adapt better to life in the wild.. This
rirgrbiAl rAllt RP (int§dam lilvenils sal111nn intal thp f'fIm y
help sustain the dwindling population. Confined fish
rearing -has the potential, to affect water quality through
adding nitrogen and phosphorus to the lake from feeding and
molr,entrating fish waste benCath the 'pcnc. This addition of
ni zrogen and phosphorus may result in a violation of the
Idaho Water Quality Standards, including without limitation,
ID UDC 16.01.02.080.01.
4. 111.n Department has determined the salmon net penning
ac:iviti ns are Plipert eri to promote the public' intorcot and
ar o not expected to result in and, permanent ur long L'G_,u
injury of beneficial uses of Red,fish Lake. Therefore, the
Lie ]artmant novioy auth8r&m s �11G uci �sirlls=`a' �t:L I „14.1e0 co
be conducted in 1996 according to the terms and limitations
se : forth. below. The Idaho Department of Fish and. Game
ag^ees to comply with the terms and conditions set forth
below.
CONSENT ORDER ' - 1
EXHIBIT k
JUL-28-2004 WED 09:23 AN A
FAX NO, 1 P. 03
5. The authorized salmon net penning activities are generally
described as follows: One net pen will be anchored in about
23 meters of water about 200 meters off the northwest share
(D= Redfish Lake about 2 km west of the marina. The pen
will he operated from July through October 1996. The net
pen is made of galvanized steel with encased Styrofoam
f.oatation and untreated wood walkways with dimensions of
a.:)out 6 X 6 meters at the surface by 13 meters deep. A
t,atal of about 2,500 juvenile sockeye salmon will be reared
is I the pen.
6. T; Ie Idaho Department of Fish and Game shall, perform the
following actions:
a The Idaho Department of Fish and Game shall conduct
water quality monitoring in Redfish Lake July through
October 1996 during the period of net penning activity.
b Twice weekly, secchi disk depth will be measured at the
tour corners of the enclosure and at a background
location representative of lake conditions.
c Trice weekly, dissolved oxygen readings will be taken
at 2, 7, and 12 meters of depth at the enclosure and
background location described in item 3.b.
d. Secchi depth and dissolved oxygen data shall, be
reported to the Department weekly during the net
panning period.
e. If the net penning activities vary substantially from
the description in paragraph 5 above, the Department of
nori and Oa= ahill nntify the nenart-manty of tho
changes.
f. By March 35, 1997 or three months after the completion
of field activities, whichever is later, the Idaho
Department of Fish and Game shall submit two (2) copies
of a 1996 Redfish Lake net penning activity report to
the Department for review and approval, The Department
will respond with any comments, questions.or requests
for further information within thirty (30) days of
receipt of the report-. If further information is
required by the Department, the Idaho Department of
OONSENU ORDER v 2
JUL-28-2004 WED 09:24 AM A
FAX N0, 1 P. 04
Fish and Game shall submit such information to the
Department within thirty (30) days of the Department's
g The 1996 net penning activity report shall address at
1 ee et the fel 1 nw i nit i teee
1) The amount of seed dispensed;
2) Description of sampling procedures, analytical
methods, sampling schedule, and sites used to
monitor the net penning activity;
3) ]Discussion of the lake water quality and fishery
response to the treatment,.
7. Tle Idaho Department of Fish. and Game shall be responsible
fcr obtaining all required permits or agreements necessary
tc implement the net penning activity.
8. An communications required by this Consent Order shall be
addressed to: James Johnston, Regional Administrator,
Eastern Idaho Reeiona.l Office, Division of Environmental
(21. al ity, 900 Skyline, Suite B, Idaho Falls, ID 83402.
9. Tte Idaho Department of Fish and Game recognizes that
failure to comply with the terms of this Consent Order may
result in an administrative action or a district court
action for specific performance of this Consent Order; civil
p€nalties in the amount of $10, 000 per violation Off' $1, 000
per day for a continuing violation, whichever is greater;
assessment of costs; attorneys' fees; restraining orders;
itjunctien.s; and other relief as the court considers to be
jist and reasonable under the circumstances.
10. TY.is Consent Order shall not in any way relieve the Idaho
Department of Fish and Game from any obligation to comply
with any other provision of the Idaho Veter _ ual s t ,
andard nd_WastewatereTreatment Requirements or any other
atpli.cable local, state, or federal laws.
11. Tr e authorization provided in this consent carder only
applies to the net penning activities conducted in 1996.
This Consent Order shall remain .in full force and effect
uetil the Department acknowledges in writing that the
CONSENZ ORDER e 3
JUL-28-2004 WED 09:24 AM A
FAX NO. 1 P. 05
e ;sent Order is terminated and, that the Idaho Department of
F5 sh and Came has fulfilled all requirements of this Coneent
Og der .
2. Thi*: nffentivP dAte ref this Consent Ordar shall be tha data
9f NignatUrg by the Admine;Te4z1-1.N nemlfzriift-,e"i-„rF, m
Health and Welfare, Division of Environmental. Quality.
DATED this =Z 1. O d.a.y of 104, 1996.
By: 1 _1. SisT rr ` ,,, r�3' cS "
l l ace N . C."', Administrator
2-/'''
pi/Division of Environmental Quality
Idaho Department of Health and Welfare
DATED t E1is
day of0 z,g , 1996.
Idaho D== ' rt,ment of F h and Game
CONSENT ORDER - 4
08/ 1 A/ 2004 18: 04 4104429735
vv.LI AS+IJ iE .l um .Ill: Ulf FAX .208 988 1300
PAGE r_l1
62002/012
Deborah E, Nelson, .Idaho State Ear No, 5711
G1 VBNS PURSLEY r..t r
601 Nest Bannock Street
E.O. Box 2720
Boise; Idaho 83701-2720
Office: (208) 388-1200
Fax: (208) 388-1300
)Nrww.givenspursley.corn
Attorneys for Debra Huber
BEFORE THE IDt1HO DEPARTMENT OF LANDS
IN THE MATTER OF ENCROACHMENT
EEE VIIT NO. L-65-8-114D ISSUED TO
THE CITY OF MCCALL
,STATE OF .IDA_HO )
)as,
County of Valley )
.AFFIDAM OF»E,t3RA HtIBER
Debra Huber, being firsfduly sworn upon oath, deposes and states as follows:
I. lvly address in McCall is 1508 McCall Avenue, McCall, Idaho 83638, I am a
Petitioner in this case, I testified at: the Tune 9, 2004 hearing regarding the City of McC,all's
application for an encroachment permit, and I sled. a Request for Reconsideration of the
DepaAtmeat of Lands decision to issue Encroachment Permit No. L-65-8-114D to the City of
IvF.cCall.
2. In an effort to wort; cooperatively with the City to identify a better location for the
City's proposed dock, on Friday, August 6, 2004, I accompanied McCall Parks and Recreation
Director. Brock Heasley and my neighbor Michael Romano its. Mr. Romano's boat to take water
depth measurements at a number of locations in Payette Lake,
A PID NTF OF IiEBRA, - 1
r:�cr..lr?grsL26mnAmanop drDehn Hoeg noc
r
J
08/10/2004 18r04
4;044• .•.u2'�a.,n7=5
+ .700 .I dl1U
@ 00+31012
PAGE 02
a. We measured the water depth at the north end of Brown Park, where the rock
currently is proposed under the encroachment permit at issue, and found the water death to be
approximately 15-1 i feet,
4, We also ,measured the water depth at the .far south egad of Brown park at
approximately the same distance from th.e shoreline as the length of the proposed dock, and
fourtd the water depth to be approximately 30 feet. No logs appeared to be present or to impede
this water depth. This location is further south than the City's previous (but retracted)
application for an. encroaclvnent permit, where the City apparently found logs to pose a water
depth concern.
5. VITe also measured the water depth at various points to the south of Brown Park,,
including points along the City -owned shoreline between. the park and the marina arid in. the
approximate location where the ,fish Bens originally were located near the marina,. We found
several areas where the water depth, was sufficient for the fish pens, in accordance with the
City's stated requirement of l 5-20 feet.
DATED this r/ti d.ay of August 2004.
Debra Hubcr
Subscribed and sworn to, before me, this io ay of August 2004.
slu,r. ,m..710$1+arranvii nr unto �ws�roe
otary Ptfblic for the State i Y6 ied-
Residi.ng at ritorm Icevii [
My Commission Expires gl t [02
CERTIFICATE OF SERVICE
44—
I hereby certify that on this ! 0 day of August 2004, I caused to be served a true and
correct copy of the foregoing by the method indicated below, and addressed to the following:
Original Filed With: U.S. Mail
Mr. Winston Wiggins Facsimile
Director K Hand Delivery
Idaho Department of Lands Overnight Mail
954 W. Jefferson St.
Boise, ID 83720-0050
Lindley Kirkpatrick X U.S. Mail
City of McCall Facsimile
City Hall Hand Delivery
216 East Park Street Overnight Mail
McCall, ID 83638
Christopher E. Yorgason )( U.S. Mail
Paul A. Turcke Facsimile
Moore Smith Buxton & Turcke Hand Delivery
225 N. 9`h Street, Suite 420 Overnight Mail
Boise, ID 83702
Courtesy Copy to: U.S. Mail
Jay Biladeau Facsimile
Idaho Department of Lands X Hand Delivery
P.O. Box 83720 Overnight Mail
Boise, ID 83720
Courtesy Copy to: U.S. Mail
Loma K. Jorgensen, Esq. Facsimile
Deputy Attorney General Hand Delivery
Idaho Department of Lands Overnight Mail
954 W. Jefferson St.
P.O. Box 83720
Boise, ID 83720-0050
Deborah E. Nelson
AFFIDAVIT OF DEBRA HUBER - 3
S:\CLIENTS\7260\I\AfGdavit or Debra Huber.DOC
06/29/2004 TUE 15:37 FAX 208 388 1300
lgjuuziuua
GIVE
SLEY LLP
LAW OFFICES
601 W. Bannock Street
PO Box 2720, Boise, Idaho 83701
TELEPHONE: 208 388-1200
FACSIMILE: 208 388-1300
WEBSITE: www.givenspursley.com
Via Facsimile & U.S. Mail
June 29, 2004
Christopher E. Yorgason, Esq.
Paul A. Turcke, Esq.
Moore, Smith, Buxton & Turcke, Chartered
225 North 9th St., Ste. 420
Boise, ID 83702
Gary G. Allen
Christopher J. Beeson
William C. Cofe
Michael C. Creamer •
Thomas E. Dvorak
Roy Lewis Eiguren
Timothy P. Feamsfde
Jeffrey C. Fereday
Steven J. Hippler
Karl T. Klein
Debora K. Kristensen
Anne C. Kunkel
Franklin G. Lee
David R. Lombardi
D. David Lorello, Jr.
Emily A. MacMaster
f0mberiy D. Maloney
John M. Marshall
Kenneth R. McClure
Kelly Greene McConnell
Cynthia A. Melillo
Christopher H. Meyer
L. Edward Miller
Patrick J. Miller
Judson B. Montgomery
Angela K. Nelson
Deborah E. Nelson
W. Hugh O'Riordan, LLM
Re: City of McCall's Proposed Boat Dock and Fish Pens at Brown Park
Our File No. 7260-1
Dear Chris and Paul:
Michael C. Orr
Kenneth L. Pursley
Bradley V. Sneed
H. Barton Thomas, LLM
Conley E. Ward
Robert B. While
Michael V. Woodhouse
James A. McClure
OF COUNSEL
Raymond D. Givens
RETIRED
This letter addresses the City of McCall's actions to site a new dock with thirteen boat
cleats and two 20' by 20' fish pens on the shoreline of Payette Lake at the far northern end of
city -owned Brown Park without appropriate permits and approvals.
As you know, our firm represents Debra Huber, who owns residential property directly
adjacent to Brown Park at its northern end, immediately behind the proposed dock site. Ms.
Huber also owns, in common with other Mill Park Village homeowners, private beach property
on Payette Lake directly adjacent to the northern end of Brown Park.
Ms. Huber became aware of the City's proposed dock when she saw construction of a
fixed pier structure several months ago. Ms. Huber had not received any notice of the project.
The City had obtained an encroachment permit from the State Land Board (improperly at that
point, because no notice was given) but had not followed its own City Code provisions requiring
an applicant proposing a public dock with aquaculture facilities along the lake shoreline to first
obtain a conditional use permit and other necessary approvals for such use.
After investigating the illegality of the City's proposed dock, on Friday, June 25, 2004, I
informed both Lindley Kirkpatrick at the City of McCall and City counsel Mr. Yorgason that the
City was operating in violation of its own Code. Mr. Kirkpatrick acknowledged the zoning
requirements and admitted the City had neither obtained the requisite permit and approvals nor
followed the requisite notification and hearing procedures.
06/29/2004 TUE 15:38 FAX 208 388 1300
LQ� UU3/UU5
Christopher E. Yorgason, Esq.
Paul A. Turcke, Esq.
June 29, 2004
Page 2
In general, the City expressed a willingness to work with Ms. Huber to consider alternate
locations for the dock with less impact to upland property. Ms. Huber offered to provide
financial assistance to the City to help defray costs of placing the dock at such an alternate
location. However, the City stated on several occasions that its options were limited at least for
this season because stopping construction of the dock at this location would cause the 10,000 fish
bound for the fish pens to die if they were not placed there by the end of June.
Despite the fact that the City knew they did not have the proper permits and approvals for
the dock, they did not issue a stop work order for the dock construction and, on Monday
afternoon (June 28th), the floating portion of the dock was towed across the lake and installed to
the fixed pier. The sequence of events on Monday indicates that the City not only had ample
opportunity to stop the dock installation but also that they appear to have acted in bad faith and
in blatant disregard of the .law.
At approximately 1:30 PM, Mr. Yorgason called me to report the dock had been installed
that morning because the City had not ordered the city contractor to stop work. However, at 2:42
PM, a neighbor emailed that she was observing the dock installation going on just then. I called
Mr. Yorgason immediately but we did not speak until this morning (Tuesday). After speaking
with his client, Mr. Yorgason called back to explain that he must have misunderstood and that
the installation began in the morning but took until the afternoon to complete. Mr. Yorgason
acknowledged my criticism that the client did not order the installation to stop even once they
knew it was underway. Since that call, I received an email from the neighbor who observed the
installation yesterday, reporting that it did not begin until 2:30 PM, which is the time they saw
the dock being towed across the lake. Obviously, this directly contradicts the City's "revised"
story of this morning that the installation began Monday morning. The neighbor further reports
that a worker has been out at the dock all morning today, fastening bolts to complete the
installation.
This morning I also received a phone call from Deputy Attorney General Dallas
Burkhalter, counsel for Idaho Department of Fish and Game ("IDFG"), reporting that IDFG does
not believe the fish destined for the fish pens are in any danger but, instead, can safely remain in
the hatchery. He learned this from his client, Dale Allen, the Fisheries Manager for the IDFG
McCall office who has been working with the City regarding the proposed dock.
I can only assume the City has been less than forthright about the dock installation. At a
minimum, the City has failed to issue a stop work order for the dock installation, which is the
same order the City would issue if the applicant were any other entity. The City has failed to
hold itself to the same standards it imposes on other project proponents.
06/29/2004 TUE 15:38 FAX 208 388 1300
IODU4/UU5
Christopher E. Yorgason, Esq.
Paul A. Turcke, Esq.
June 29, 2004
Page 3
Aside from the procedural violations of installing a dock without the requisite permits,
notices, and hearings, the City's proposed dock does not warrant. a conditional use permit
because of numerous problems with the proposed location. Among other problems, the proposed
boat and fish pen dock is:
• Inconsistent with the Comprehensive Plan;
• Incompatible with the surrounding area;
• Detrimental to the health, safety and general welfare of persons residing in the
neighborhood;
• Harmful to the environment; and
• A source of unreasonable traffic, noise, and parking problems,
These problems stem from the fact that the dock is sited at a pedestrian, residential
neighborhood park immediately adjacent to private homes and a private beach. Ms. Huber and
other impacted neighbors have expressed numerous concerns to the City regarding the proposed
dock location, including:
• Negative impact to property values;
• Obstruction of lake views;
• Excess noise from increased boat traffic;
• Safety concerns for swimmers at the adjacent private beach from increased boat
traffic;
• Water quality impacts from aquaculture activities;
• Insufficient parking (none, other than street parking);
• Increased traffic on residential streets;
• Increased- numbers of trespassers onto adjacent private property including private
beach;
• Incompatibility with original gift deed language for the park; and
• Changing the character of the neighborhood from a pedestrian -friendly, residential
community to a commercial, motorized destination.
In light of the above -stated legal and practical problems with the proposed dock and the
City's actions to date, Ms. Huber has little option but to seek an injunction to halt the City's
illegal activities and to remove the un-permitted structure. As we repeatedly have expressed to
the City, Ms. Huber would prefer to reach an acceptable agreement with the City without seeking
Court intervention. To that end, here are the terms on which Ms. Huber needs the City's
agreement to avoid seeking aninjunction and removal order against the City before the pending
July 4th holiday weekend:
06/29/2004 TUE 15:38 FAX 208 388 1300 4 005/005
Christopher E. Yorgason, Esq.
Paul A. Turcke, Esq.
June 29, 2004
Page 4
• The City will immediately issue a stop -work order against itself and all city
contractors for this project until all appropriate permits and approvals are obtained;
• The City will avoid taking any action that could jeopardize the fish intended for the
fish pens, such as allowing their delivery from the hatchery;
• The City will remove the floating portion of the dock by Thursday, July 1, 2004 at
5:00 PM and store it off -site from Brown Park;
• The City will barricade the fixed pier portion of the dock by Thursday, July 1, 2004 at
5:00 PM to prevent use of the facility;
• The City will deterrnine the feasibility of alternate locations for the proposed boat
dock and fish pens, both (1) outside of Brown Park and (2) at the south end of Brown
Park, and inform Ms. Huber, through counsel Givens Pursley LLP, of the same by
Friday, July 2, 2004 at 12:00 noon.
• The City will not file a conditional use permit application or other permit application
with the City for the current proposed dock location (north end of Brown Park) until
the alternate locations feasibility determination is completed and reported to Ms.
Huber, through counsel.
• If the City already has filed such permit applications, they will immediately withdraw
the same until the alternate locations feasibility determination is completed and
reported to Ms. Huber, through counsel.
We continue to hope a court action can be avoided and we look forward to hearing your
response to these settlement terms before 12:00 noon on Wednesday, June 30th. As I have stated
previously, I will still be filing today, on behalf of Ms. Huber, a request for reconsideration to the
State Land Board challenging the State's decision to issue the City a lake encroachment permit.
This administrative step is necessary to preserve judicial review options. Hopefully, we can
agree upon an alternate location for the dock before we have to bring a court challenge of the
State permit for the current proposed dock location.
Sincerely,
Deborah E. Nelson
cc: Lindley Kirkpatrick, City of McCall (via Facsimile)
Debra Huber (via Facsimile)
L. Edward Miller, Givens Pursley
DEN:kdt SACLlEN7S172601DDt3NUrtoChris Yorgason.DOC
LAW OFFICE OF
GERY W. EDSON, P.A.
A Professional Corporation
250 S. 5th Street, 2nd Floor
Post Office Box 448
Boise, Idaho 83701-0448
Telephone: (208) 345-8700
Facsimile: (208) 389-9449
Email gedson@gedson.com
April 13, 2004
Jay Sila, Resource Manager
Idaho Department of Lands
Payette Lakes Supervisory Area
555 Deinhard Lane
McCall, ID 83638
Re: City of McCall Application for Permit (L-65-S-114D)
Dear Mr. Sila:
Licensed in Idaho (No. 2984)
and Utah (No. 5891)
VIA REGULAR AND
CERTIFIED MAIL
and
FACSIMILE
(208) 634-5117
Please be advised that I am the duly authorized and duly elected President of the Mill Park
Village Property Owners Association, Inc., a non-profit corporation which owns common area land
adjacent to the City of McCall's Mill Park. It has recently come to my attention through Mike
Romano, Property Manager for the Association, that the City of McCall applied to the State for a
permit to relocate fish pens and to construct a new dock of significantly larger size.
As Mr. Romano has previously advised you, Mill Park never received notice of the
application of your Department's intent to hold a hearing on such application. It appears, in fact,
that the original Application was subsequently amended to move the structure to the extreme
northern end of Mill Park, directly adjacent to our Association's beach and dock facilities.
In spite of having notified you of the Department's failure to provide notice, which is a
Constitutionally guaranteed right, your Department has failed to rescind the permit or to schedule a
hearing as requested by Mr. Romano.
Consequently, please be advised that your actions violate Idaho Code §58-1306 and that the
Association collectively and five of the individual property owners, hereby request a hearing on the
Application. • If you fail to respond to this request and to immediately issue a cease and desist order
to the City of McCall, I have been authorized to seek injunctive relief against your Department and
the City, including remedies under Idaho Code §58-1308.
Y - April 13, 2004
Page 2
As you are also already aware, Mill Park Village Property Owners Association, Inc., is a
duly authorized and registered corporation within the State of Idaho which has a registered agent of
E & M Group, LLC at 1510 McCall Avenue, and also uses the post office box for noticing of 1930,
McCall, Idaho 83638. All of this information has remained unchanged since 1999 and your
Department has corresponded with our Association during that time frame at those addresses. Your
use of an address in California is more than suspect, given that it was never the address of the
Association in its initial filing in 1994 or at any time since.
This letter is being sent via certified mail as well as by facsimile and regular mail to insure
we provide you with proper notice. If I have no response to this letter within ten days, I will act in
accordance with the laws of the State of Idaho to protect our Association's rights. I invite you to
contact me to advise of an appropriate date for hearing on this subject.
Yours very truly,
GWE/t
cc: Dan Pillard
PAYETTE LAKES
SUPERVISORY AREA
555 Deinhard Lane
McCall ID 83638
Phone (208) 634-7125
Fax (208) 634-5117
April 16, 2004
`IDAHO DEPARTMENT OF LANDS
WINSTON A WIGGINS, DIRECTOR
EQUAL OPPORTUNITY EMPLOYER
Lindley S. Kirkpatrick
Community Development Director
216 East Park Street
McCall, ID 83638
Dear Lindley:
STATE BOARD OF LAND COMMISSIONERS
Dirk Kempthome, Governor
Ben Ysursa, Secretary of State
Lawrence G. Wasden, Attorney General
Keith L. Johnson, State Controller
Marilyn Howard, Sup't of Public Instruction
Per your request of April 15, 2004, I've enclosed copies of our documents associated
with the city's Brown Park dock application that we have in our files. This does not
include your permit or your application.
If you have any questions please call.
Sincerely, 9—Q
Y
LA
Lands Resource Supervisor
JLS/sk
c:.Loma Jorgensen; Mike Murphy
PAYETTE LAKES
SUPERVISORY AREA
555 Deinhard Lane
McCall ID 83638
Phone (208) 634-7125
Fax (208) 634-5117
April 14, 2004
WINSTON A WIGGINS, DIRECTOR
EQUAL OPPORTUNiY EMPLOYER
Lindley S. Kirkpatrick
Community Development Director
216 East Park Street
McCall, ID 83638
Dear Lindley:
STATE BOARD OF LAND COMMISSIONERS
Dirk Kempthome, Govemor
Ben Ysursa, Secretary of State
Lawrence G. Wasden, Attorney General
Keith L Johnson, State Controller
Marilyn Howard, Sup't of Public Instruction
The purpose of this letter is to document the discussions between the Idaho Department
of Lands ("Department") and the City of McCall ("City") regarding encroachment permit
#L-65-S-114D. The Department has determined that the procedure for reviewing the
City's application was not complete, and therefore the validity of the City's
encroachment permit is in question. In order to satisfy the procedural requirements
required by statute, the Department is in the process of scheduling a public hearing so
that interested parties have an opportunity to comment on the City's application. Until
such time that a public hearing is concluded and the City is notified of the Department's
decision regarding the application, the City must cease all construction as of April 14,
2004 that was authorized by permit #L-65-S-114D.
As the applicant, you will be advised of the time and location of the hearing when it is
established. Thank you for your patience in this matter.
Sincerely,
AY S
and Resource Supervisor
JLS/sk
c: Loma Jorgensen; Mike Murphy
REPLY TO
ATTENTION OF
DEPARTMENT OF THE ARMY
WALLA WALLA DISTRICT, CORPS OF ENGINEERS
'BOISE REGULATORY OFFICE
304 NORTH EIGHTH STREET, ROOM 140
BOISE IDAHO 83702-5820
January 23, 2004
Regulatory Division
SUBJECT: NWW No. 042100036
Mr. Dan Pillard
City of McCall
216 East Park St.
McCall, ID 83638
Dear Mr. Pillard:
Your proposed project to discharge approxiamtely 3 cubic yards of concrete into Payette
Lake is authorized under the terms and conditions of Department of the Army Nationwide Permit
(NWP) Number 25 (33 CFR 330, Appendix A). Your project entails constructing a 6-foot wide
by 20-foot long fixed pier with six support posts and an attached floating dock (with fish pen
nets). Your project is located in Sec. 9,.T.18N., R.3E., B.M., Valley County, ID. This
authorization requires that your project is constructed as shown on the enclosed drawings and
complies with the terms and conditions of the enclosed nationwide permit and the special
conditions listed below.
* • Discharge of concrete associated with the installation of the support pilings, shall be
conducted when lake levels are low so work can be accomplished in the dry.
In addition, this authorization is subject to the conditions of the enclosed Water Quality
Certification from the Idaho Division of Environmental Quality, dated January 14, 2004. This
certification supercedes and replaces the water quality certification conditions on the enclosed list
of conditions. If you have any questions concerning compliance with the Water Quality
Certification conditions, you should contact the Idaho Division of Environmental Quality.
Please carefully review these conditions, including the Water Quality Certification
conditions. If you cannot meet these conditions, this NWP verification is not valid. Your project
must comply with the Idaho Water Quality Standards as stated in IDAPA 58.01.02. If you have
any questions about the Water Quality Certification conditions, please contact Jack Gantz, at
208-373-0599. If you change the project description in your permit application, this NWP may
not be valid and you should contact us before starting work.
" 0 3 / 2 1 ' 2 0 0 4 1 1 : 5 5 . 1 2 0 E 6 3 4 5 1 1 7 I D . _ P A Y E T T E L A K E S
1 - 1 1 A l t n
F A h ; : 2 0 8 - 7 : . ; 0 - 1 8 0 0 - H O L I D A Y I N N E X P R E S S - L E l v v T o m
T I O : J A . Y S I L A , I D A H O D E P T O F L A N D S
F 1 I . 0 A I ; N A W Y W E L B A U M
J t Y , ; H O A R Y T O B O T H E R Y O U W I T H ' . ' H I S , B U T S Q U E A K Y W H E E L .
P I , E k S E R E A D I ' O L L O W I N G M E M O A N D C A . L I . , M R . R O M A N O O R G E V E
C A ) L , L A T T O M E , 3 4 7 - 2 2 2 5 T H I S ' E V E N I N G O R A T T H E O F F I C E
T ( ; 1 1 1 I O R P , O W .
i 1 ' 1 I T I T O V E R T H E F I L E W I T H M S . H L B E R , A N D M R . R O M A / s 0 A N D S A N G
H O N V T H E R E V I S I O N H A P P E N E D , B U T I T W O U L D B E B E S T I F Y O U ( : 0 U ) : . I )
C i L L M A . R O M A N O . H E A S K E D T H A N ' I F A X H I M A C O P Y O F T H E ; V I E M . : )
S C I C E S E E S W H A T I ' V E W R I T T E N Y O U . T H E Y ' R E P R E T T Y U P S E T T H A "
T T I E Y D I D N ' T R E C E I V E N O T I F I C A T I O N O F T H E R E V I S I O N .
02/23.'2004 11:55. 120E6345117
Y
ID._ PAYETTE LAKES Nly(:t F7 :
R1E N.[ORANDUIvI
TI): JAY SILA
FROM: NA NCY WELBAUM
D iCE: MY ►RCH 23, 201)4
Si.13 J.ECT: CIi'Y OF McCALL NET PENS DOCK
Tli is reorr.ing I w as visited.by NliII Park Village property owners Debra Huber sut i
M i el tad Romano regarding the revised location of the city's new net pens do ck. '[ t e:
nc-iv Ideation of the dock was a surprise to them, as they had not received the letter
of notification with the revised location, dated 3ecemlber 17, 2003. ,A.ddition illy, .a►
per I fir. Romano, he did not receive the origins] letter of notification until w :i) Intl
fa I, though the ie ter was dated August 21, 20G3. Ms. Huber did not receive the
ist letter at a: I.
Tl ere is an obvious problem with the association's designated contact not
dit•iemin:ling per inent information to the lane, owners. Mr. Romano has asked
that le be the desi gnated contact and will be addressing a letter to you regar ling;
thi::. He will also impress the need to individually notify each Mill Park Village
pr:p _aty owner when a project such as the net ?ens may impact them.
Thf: i.evisell dock location is directly in front of the Huber property, on which a
ho Hsi! is currently being constructed. Ms. Euber has great concern with the legal:I,
of i m pact this pert nitted dock location will hay( on the enjoyment of ;her hone and
prop :rty. While t.le comment period has long passed, I did recommend that Ms.
Ht be r address a better to you regarding thit project so that her concerns are
officially recorded In addition, I suggested that Ms. Huber and Mr. Romano spin
wit'r ;ity oiiicials to make their concerns knows. to them.
11Ii I k mano askei 1 that you contact him as moil as possible regarding; these
malt( r3. His phone number is 634-1358.
fl •
PAYETTE LAKES
120E634511/
03/ 23,'2004
J[�i7
! 01 1731.13
Ir.�:_i; 1_L '.::li •7vti: r-• - ._=YC1�:7=•:t '.'9
141'4h L,P.3S.1. 1•.t.P31 fl 11,v • •. -1r•M;..•• •ls��
r JTr• _ w /-1 _ • 4
m Plt aviZec natc 70�'1i7{FR'14s. , r1.f.
J I�P'�•T•••Vw t+l.4YT1t••..I r Jr �J Ia�w�• �r• a.••_JJ.'VVV 4t.1^: A.
Amoco tm.s
salt.& Ilai oJ10 GO•d, Si sem1 down
%P&ala 476 AS>iA&
..M
.In r.r.33, 80 5 i• rF±.3!J1n a 4
trnie poly ewis y noy 4.11.1191
Jt1V• a 11ii lap �I&a �1
WOW A .fI(�I wig mice D Ws
spn & .>rptl r Or` AP* o hp4 NI
�► p •7 A1,66L
[
•11VIi io-i !1 }ELM
ON 141
0316 Sumct,a33111T��1
335 omens =nu br 1
� YOU
.tarun° meSOurn
a
1.101 .4111 3K36
00 oat Oa Da OG a
1MH21 • 12 .Lh 135
w1Sf JK X .rd 13 •
J1C1• MISS 01ID1
OM 3N!! 31Y1S
117 03Ya Stan33
� [ Y Ilt19i
r , S'fY11 it
Q 33re Moot
•1.10Sd/•1..s. d
'YY7
va ow to
ARP? Jlrlii a'
E
b3
�1
C
�J
t
ala
_
•
rrs. rT y /-r T r ry T T T T
. rl 1f N f .t1 .1J./r1111 /! V / f
efl ► • t. •
( /1V r'1g17V
.Ybrrd 77lfr
Ira
•71717 is
XX•X 7.LT SO.►f1
Qtp
Qs !J[OJIi
11.n31T 211 1t
-wine
ee a 4d A
r2d��B
774�f
Oto •`4'4
Or rn 1 ll LN,
G� �i►
11n \ asi &1>� .r
1a�rJ t6r�ue.
y v +1
• t_ I A Z
▪ V'
m ora
474:447,2
6,
4,.
4
21 WO
CI
i_ f.
y-C `71f im•unw"l''.'J 15.1 Y-U
JJ;
PJPW to a1aL�r or uoYPPY �� tlioD4J 9 V98
jD troyioa o Jo 110181 persaJ D
a T /1 T rY T I T T rP /1 rt' t•J' n 1 1 a-r 1T T / t ►' • T T T T J•Tli' T TfT
111 U1 IJ 1 Ill L1 a 11>) a7 1.J.V 1 1111 d Y Q 1 11 l Y
r vit
ff Zt
w^
:J it
Alir
•It
Ji•L 1 i11tr ■ r 11 M.itt1
!!.1 a=r :C
t.•'n f3uis 3ivi ail
x'rl J<alit J, La•n JI L rtr. 11s
as In yAlai\ _c•Itt 1t.I411 Litt u
t:�u 0ro1r rtrl Jfaitl fat in
Itt JJR f•1V! i16 LD
2: ji ilr� ;it �1.iUL tip W
Ja'Q /[ tr■ fat
SIf1M Ja.fl �
ru a lt.ila.• Af J. astt Jolt C
rul a><&tat vt�i. flftat r7t[ c
iiiil i JJwiii ''i•nl iitm %It c
I ft i[Jt. ll lr S[ 1 In
�[iJ Jft Jltlt f111 J[J L[1N
fi •II1 [P.a1i1[ fJ1t1 1ta[ Q1y,l
Ji71[ aftiltCi Stla SI aLJI Q71t[ ]i
Iwo.J['•i natJ. 'JI Gi
4.1 JIA�1 m� a
�QanJiaW■ +tw JtaW Awt t1♦
i■ •Jm J1ws Joc, 1f
�Ifi4.:. ilk R�irilr am to `
t:0414 j[7[i Jtolt JDZt Its
1.r.mirr well N>.rR aiitl i{s
1;;i i Jatc+w
J -1..i4 -�
i Jta[Qi Q11t +t atilt
. a ..�•
trfla id
a rr
�- ri =
ism
rRi to
`4f;
sari 218 pq7 ptp lru7 Pia e8
�s Ya
\ » t..
i I
t ., r a
s•IfiO �� cz�
Ii
11 ;
1. r k
a • \
it
Mill Park Village
Property Owners Association
P.O. Box 1932
McCall, Idaho 83638
March 23, 2004
Jay Sila
Resource Supervisor, Lands
Payette Lakes Supervisory Area
555 Deinhard Lane
McCall, ID 83638
Dear Mr. Sila,
The Idaho Department of Lands mailed the Encroachment Application # L-65-S-114D (City of McCall) to the
incorrect address for the Mill Park Village Property Owners Association. The Association never received a
second notice that was mailed in December 2003.
A mailing on the Encroachment Application for construction of a dock was sent out by your department on
August 21, 2003 with another mailing describing a location change on December 17, 2003. The initial mailing
was received in October/November 2003 time frame, which was well past the comment period, and the
December mailing was never received by any Mill Park Village representative. The December mailing moved
the dock and pen location approximately 80 yards closer to the property and docks at Mill Park Village. This is
unacceptable.
As property manager of the Mill Park Village Property Owners Association, I want to inform you of the
appropriate individual and address for notification of issues which may impact the Association. Please send all
correspondence to: PO Box 1932, McCall, ID 83638.
The Idaho Department of Lands has mailed statements for the dock lease (lease number B-5036) to the correct
post office box in McCall since 2001. I don't understand why the Encroachment Application was mailed to
KentfieId, Califomia. That address belongs to an association member who moved from that location in 2000.
This Encroachment will have a large impact on the lot owners of Mill Park Village and negatively impact property
values of private owners. We have major concems and would appreciate the opportunity to speak with you at
your earliest convenience.
Sincerely,
Michael Romano
Property Manager, Mill Park Village POA
CONDITIONAL USE APPLICATION
1. Applicant: C ; Irri•P ✓1AC C, A, \ contact phone: (? 01) - �O 6
(type or print flame)
Mailing address: `L ► -Pc-4c_ S NA c,Ee,‘•\ , :LA , 2' 36SR
(type or print street number and street or P. O. Box) (state code) (zip)
2. If applicant is not the owner, state relationship to owner: ; and:
(agent, purchaser, etc.)
Owner: contact phone: ( )
(type or print name)
(type or print street number and street or P. O. Box) (state code) (zip)
3. Indicate present Zoning Map Classification of this property: ; and which McCall
City Code Section lists your desired use as an available Conditional Use: 3- /5-- ci/ O b -5"
4. Please describe or provide fully on attached pieces of paper:
A. Legal description of the property.
B. Relationship of proposed development use to the use indicated in the comprehensive plan;
C. The relationship of the property to the surrounding area;
D. Plans for site grading and landscaping; and
E. Plans for water supply, sewage disposal, storm water drainage and snow storage.
5. This application shall be accompanied by:
A. A plan of the proposed development, including:
Mailing address:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
a plot plan of the property, drawn to scale and stamped by a registered professional surveyor;
Relationship of proposed development use to the use indicated in the comprehensive plan;
The relationship of the property to the surrounding area;
The plan of subdivision or re -subdivision, if any, drawn to scale and stamped by a registered
professional surveyor;
Land uses, building location and number of dwellings units;
The arrangement of streets, utilities, and other easements and pedestrian ways, drawn to scale
and stamped by a registered professional surveyor;
The location of off-street parking spaces and loading or service areas, drawn to scale and
stamped by a registered professional surveyor;
The location of public or communal open space, drawn to scale and stamped by a registered
professional surveyor;
Plans for site grading and landscaping; and
Plans for water supply, sewage disposal, storm water drainage and snow storage.
B. A narrative statement evaluating the effects on adjoining property of such elements as noise, glare,
odor, fumes and vibration; a discussion to the general compatibility with adjacent and other properties
in the district; and the relationship of the proposed use to the Comprehensive Plan.
C. A list of the names and mailing addresses of all property owners owning property any part of which is
located within 300 feet of any part of the applicant's property for which the conditional use is
requested
Date:
City of McCall
Planning and Zoning Committee
216 East Park Street
McCall, Idaho 83638
The City of McCall desires a Conditional Use Permit in•accordance with City Code
Section 3-15-040-b-5. The Conditional Use Permit will be used for a fish Pen Dock with
13 boat cleats for recreational use (Figure 5) acquired through a grant from the City of
McCall and Idaho Department of Fish and Game. This dock will be located in the City of
McCall at the Northern portion (Figure 4) of Brown Park, North of East Lake Street and
Hemlock Street (Figure 1). Brown Park is a 1.76 acre park capable of handling a crowd
limit of 400 persons at any given time. The park contains rolling open space with, grass,
trees, benches, bathrooms and a children's playground with no dwelling units on site.
The Park is bordered on the East by residential Condos and Single Family homes (Figure
2).
According to McCall's Comprehensive Plan Page 102 B. Community Concerns
"Community Concerns expressed throughout the process may be divided into four areas;
provide more community activities, parks and programs". In addition, according to
McCall's Comprehensive Plan Page 108 "Goal: Enhance quality of life for youth and
adults through recreation programs, and acquiring parks and facilities (continued)
Objectives: Enhance the quality of life through acquisition, development and
improvement of parks". The Parks and Recreation Department believes we are not only
adding a desired commodity to the community but improving the park with a wonderful
amenity by the addition of the fish pen docks. We have visitors from out of town and
community members enjoying the park on a daily basis during the summer months. The
fish pen docks and boat parking will add activities and programs and another avenue to
get to Brown Park. The community can stop by the park and feed fish, relax on the docks
and even park their boats and enjoy the scenic beauty of Brown Park. In the future we
may have the opportunity to have a free fishing day for the children of McCall and the
surrounding area. This can be a wonderful learning opportunity and provide a bonding
experience between children and their parents. We also feel that by continuing to release
these fish each year will increase the opportunity for fishing in McCall, thus increasing
the opportunities for recreation.
When it comes to the general safety of health and welfare of persons residing or working
in the neighborhood of Brown Park the docks it will not be detrimental. Additional it will
not cause any substantial harmful environmental consequences to any land or waters.
The docks have been built to Code and have been tested on Lake Payette. Idaho
Department of Fish and Game indicates that the proposed activity would not have an
adverse impact on water quality. Idaho Department of Fish and Game also indicated that
the proposed location within Brown Park was better due to the depth of water at the east
end of the park and that better fish growth would take place in the proposed location.
Once the docks are in place we will see an increase in children, parents and boat use.
Most of the use will come from people using the docks to feed fish and enjoying the
view. There will be an increase in laughter and occasional screaming that comes from
children, but not enough that will cause unreasonable production of traffic and noise. As
with other docks in McCall there will also be an increase in boat traffic parking at the
docks. To date we have not seen any unacceptable noise, smoke, fumes glares, odors or
other forms of pollution that would be considered unreasonable from the docks we have
now, thus we do not see any problems with the new fish pen docks.
There are no plans for site grading or additional landscaping. There is also no need
for water supply, sewage disposal, storm water drainage and snow storage. Legal
Description and a plot plan of the property are attached (Figure 6) (Figure 3).
Thank you for you time, consideration and effort towards making a recommendation
to acquire a Conditional Use Permit for Fish Pen Docks.
Sincerely,
Brock Heasley
Parks and Recreation Director
City of McCall
634-3006
bheasley@mccall.id.us
1
)N
Y111TEB
ESTATE
• Crecent
Beach
V. PAYETTE
v LAKE
MA R CLUB
sr
OwE
rIMR.. • sl
;PER
3IVISION
r
ONO
WATER'S
EDGE
•
FOREST t
SERVICE
ELEVATION
5000
BLIC
BEACH BROWN
PALACE
e •..
'Lill FgM1,-tie,
. RID.. m4, 'fr.
TERRA VISTA
BRANS Nrt usls tam,
ESTATES I JEST VALLI. ND
IRR ICOP
TREATMENT
JAY PLANT
PII E
lEnRACE NI
wl urn'
u
YNIIY N
N 13
44•44s
17
Sylvan
Beach
Wagon
Wheel
Bay
Sheppard's
Point
Payette
2r
PONDEROSA
STATE PARK
GIRL CAA
Lake LAKEVIEW
LLAGE pp°¢ II MN IN p...wr
SIRAMERRY IN
PENB ST �, 91 CONIFER INI C.yyAY
�FSI .4 'STATE cluruuxR lx j
aT'oltii d uw sl r�"6 sl as Ew+nar UCR CRIER nU }
Davis � 2 " 23 cRaw W.
7 1 SPIIUCk tyl[ Q` I9�r
V f p
car ^ Beach eY sr I71 BERLOST T-3 ``%:G
7A
fNRWAY NA7, TIMBERLOST 4 '�
L PARK MtwIN 3 11MBERLOST 5 �b
OINSION. " NM n e ' M<cau. Gov )&
COURSE /
3 N84OCA Sr a-9 r�
MAMA_ ' Pri 1N"7519 `V 1 TIMBERLOST e
11 ca -I , q NS Il / ON Qt
2
<3:., a� "Y 7�aj6� SPRING MOUNTWN RANCH
WIU40AN 4 1 51�I1 '
Si � LAKE sl — :r
OF YM4 M 1 11 E
s' v: SYRINGA
EST
uN u11NINATES sl
Vy VIA
4°'
y ♦tt
,//
+, �Y Pilgrill! j �a
Cove
A
BOY scour
CAMP
NOKONUO 35
U�
Ftwrl0
'•Y
Figure 1
iatuaraek }
Bay
r'w Ath BAT Y%
East
UCKS POINT
LucKs '
Point
B
v
2 'vr ws``
WILSON EAST.
PRONG
Point of
Rocks
Arm
swim sr 116
Qom �j��� 1 si
� Aim n .� EVERGREEN
lERACE
I� • ■ PAVETTE IAlES
t g� CARE CENTER
I B" .1
22 2 • STATE 7�0.4 BLoa
r INIMINYI IN
PINE HIVE ISIDE
NH 1110N
TERRACE N't ' " '1SAAlt
Sul
J f1E
VAIIEY VIEW NI 1(~
MLI AGE
SOUARE
.
IESI SERV
JUMPER
ARTS/
McCALL AIRPORT
I &WSW
RIININ IN
k
▪ 3
H YNN SUB
HAWS STST
WOODLANDS
tlr
PILGRIM
COVE
6U1Is SIVav1 N
WHISPERING
WOODS
IY BEACH
C.TIWUNITY,
1144 °
2
HARRIS COVE
BRIGHTWAIE
SPRUCE GROVE
400i a
NOTE.'
THIS DRAWING WAS PREPARED AS A GUIDEFOR PLANNING AND
PRELIMINARY ACQUISITION STUDIES ONLY. IT WAS PREPARED FROM
VALLEY COUNTY ASSESSORS PLATS, RECORDS OF SURVEYS, SUBDIVISION
PLATS AND R4/LROAD PLANS. A FIELD SURVEY HAS NOT BEEN
PERFORMED. ANY DESCRIPTIONS OR LAND TRANSACTIONS INVOLVING
PARCELS SHOWN HERE, SHOULD BE FIELD VER/R7ED.
N�
ryh.
2
PARCEL 0
4
POINT OF
BEGINNING:
PARCEL 3
'i
1
NV13'12'W
N81'25'W-185.00'
BRASS CAP, NE COR,
L2,86, McCALL'S FIRST
ADDITION
I
'OOTHMAN-ORTON ENGINEERING CO.
S 4'45'47
�✓ 547.36'
LEGEND
CONVERTED PROPERTY
REMAINDER PROPERTY
D 20 40 80 120 160
SCALE: 1'= 40'
.....................................................
NGINEERS SURVEYORS PLANNERS
802 NORTH 33rd STREET/BOISE, IDAHO 83703
208) 342-5511 FAX: (208) 342-5514
McCALL MILL PARK CONVERSION PROJECT
L & W C F # 16-00385
w�
• CONVERTED AND REMAINDER PROPERTY MILL PARK
Gip
CD"
w
w
Bfj PeLyel+-e-. !ate
iotd Dock_;
j�9Gk.�►�y t
30
' I
�7 � j OtdGy
1Ocator,,
6 �
if 90 I
i
Atev dvet4 i. Qi;w#ioh,
.°
r.
only
/177
vwocy
a/
6trz, s1./70,oz /
71��tA
�at3
"112d 4-a0/
1
1
►
s oinSId
Figure 6
AMENDED
STATE OF IDAHO
QUITCLAIM DEED NO. 12613
NOW, KNOW YE, this l l thday of June , 1997,.that for the consideration of
TWO HUNDRED FIFTY AND NO/100ths DOLLARS ($250.00) and other valuable
considerations, the STATE OF IDAHO, Department of Lands, 954 W. Jefferson Street, Boise,
Idaho, 83720-0050, by ,and through .the State Board.. of Land Commissioners, does hereby
convey, release,. remise, and forever quitclaim unto the CITY OF McCALL, P.0°. Box 1065,
McCall, Idaho.83638, the following described premises, to -wit:
A portion of Government Lot 1 of Section 9, Township 18 North, Range 3 East, B.M.,
VALLEY COUNTY, more particularly described as follows:
PARCEL 1:
Commencing at the northeasterly corner of Lot 2, Block 6, McCall's First Addition to
the Village of McCall, as shown on the Official Plat thereof on file in Book 1, Page 28 of Plats
in the Office of the Recorder of Valley County, a brass cap set in concrete; thence North.
81 °25'00" West, 220.53 feet along northerly line of said Lot 2 to the high water mark of
Payette Lake; thence North 1 ° 13' 12" West, 36.60 feet along said high water mark to the
REAL POINT OF BEGINNING; thence along said high water mark North 88°53'20" West, 23.76
feet; thence South 48°13'12" West, 31.85 feet; thence North 67°18'43" West, 20.04 feet;
thence North 48°07'12" West, 40.92 feet; thence North 10°42'56" West, 65.24 feet; thence
North 63°25'29" West, 25.30 feet; thence North 8°03'46" East, 205.62 feet; thence North
41 °56'32" East, 66.26 feet; thence South 82°33'00" East, 65.76 feet to the former high
water mark of Payette Lake;.thence South 1 ° 13' 12" West, 334.13 feet along said former high
water mark returning to the real point of beginning, containing 0.885 of an acre, more or less.
PARCEL 2:
A parcel of land situate in Government Lot 1, Section 9, Township 18 North, Range 3
East, Boise Meridian, City of McCall, Valley County, Idaho, more particularly described as
follows:
Commencing at the northeasterly corner of Lot 2, Block 6, McCall's First Addition to
the Village of McCall, as shown on the Official Plat thereof on file in Book 1, Page 28 of Plats
in the Office of the Recorder of Valley County, Idaho, a brass cap set in concrete; thence
North 81 °25'00" West, 185.00 feet along the northerly line of said Lot 2: to the easterly
boundary of Mill Park; thence North 4°45'47" East, 369.65 feet along said easterly boundary;
thence North 82°33'00" West, 58.43 feet to the former high water mark of Payette Lake, the
REAL .POINT OF BEGINNING; thence continuing North 82°33'00" West, 65.76 feet to the
current high water mark of Payette Lake; thence along the current high water mark the
following courses and distances: North 41 °56'32" East, 16.19 feet; thence North 22°00'21 "
West, 84.33 feet; thence North 40°20'54" East, 102.71 feet; thence North 77°54'14" East,
23.89 feet; thence South 1 ° 13' 12" West, 182.08 feet returning to the real point of beginning,
containing 0.253 of an acre, more or less.
The total acres contained in this deed being 1.138 acres, more or less.
,. ) f
^r' DEED OF GIFT
.t�°
ter'
,C
THIS INDENTURE, made this 15th'day of July, 1980, by and between IDAHO PARK
FOUNDATION, INC., a non-profit corporation, with an address at 1020 W. Franklin,
Boise, Idaho 83702, as Grantor, and the CITY OF McCALL, Box 1065, McCall,
Idaho 83638, as Grantee.
WITNESSETH:
That Grantor, in consideration of its duty of public service and in order to
encourage development of a park and recreation area for the benefit of the citizens
of the State of Idaho, does hereby give, grant, alien and confirm unto the CITY OF
McCALL and to its successors and assigns forever, the following described parcel
of real property described hereinafter:
A Parcel of land situate in Government Lot 1, Section 9, Township 18 North,
Range. 3 East, Boise Meridian, City of McCall, Valley County, Idaho, more
particularly described as follows:
Commencing at the southwesterly corner of Lot 3, Block 6, McCall's
1st Addition to the City of McCall, thence N. 810 25' W., 63.0 feet on
a continuation of the line common to Lots 2 and 3 of said Block 6
to the real point of beginning;
Thence N. 4° 45' 47" E . , 547.36 feet; Thence N. 63° 29' 42 " W . , 42.73
feet; Thence S. 77° 54' 14" W., 55.'6 feet to a meander line;
Thence along the said meander line,
S. 40° 20' 54" W., 102.71 feet,
S. 22° 00' 21" E., 84.33 feet,
S. 41° 56' 32" W., 82.45 feet,
S. 8° 03' 46" W., 205.62 feet,
S. 63° 25' 29" E., 25.30 feet,
S. 10° 42' 56" E., 65.24 feet,
S. 480 07' 12" E., 40.92 feet,
S. 67° 18' 43" E., 20.04 feet,
N. 48° 13' 12" E., 31.85 feet,
S. 88° 53' 20" E., 23.72.feet,
S. 1° 09' 37" W., 36.58 feet;
Thence S. 81° 25' 00" E., 35.53 feet to the point of beginning, containing
1.81 acres, more or less,
TO HAVE AND TO HOLD the said premises, with its appurtenances unto said Grantee,
and its successors forever, without warranty of the title, subject to current taxes,
assessments and all easement restrictions and reservations, whether or not of record.
DEED OF GIFT, Page 1 of 2 pages
Figure 6
Figure 6
IN WITNESS WHEREOF, the Grantor has duly caused this Gift Deed to be
subscribed in its corporate name by its President and its corporate seal to be affixed
by its Secretary this .15th day of July, 1980.
IDAHO PARK FOUNDATION, INC.
By 7fd4,.
Hope Kading, President
ATTEST:
Ronald F. Daly,Secretary
STATE OF IDAHO )
ss.
County of Ada )
On this ,� day of July, 1980, before me, the undersigned notary
public for said StaEe, personally appeared Hope Kading , known to me
to be the President, and Ronald F. Daly , known to me to be the Secretary, of
the IDAHO PARK FOUNDATION, INC., and acknowledged to me that they executed
the within and foregoing instrument for and on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed by
official seal the day and year in this certificate first above written.
,r
r'
:f'`
:}
DAED OF
.. .z _ _`h_:
pages
•
NOTARY PUBL
Residing at Boise,
ho
AHO
Mill Park Village
Property Owner's Assn.
Box 1932
McCall, ID 83638
Grande Properties, LLCC
c/o Dr. David Huber
Box 2249
Columbia, MD 21045
Keith and Patricia Riffle
3400 134th Ave. N.E.
Bellevue, WA 98005
Mark Grimes and Jean Watson
22021 Newport Circle
Huntington Beach, CA 92646
Osprey Resorts, Inc.
PO Box 1062
McCall, ID 83638
Arthur and Luana Casper
2481 Vail Circle
Sandy, UT 84093
Ruth and Steven Schneider
3775 W. Quail Hollow Drive
Boise, ID 83703
Sheldon Keafer
Idaho Department of Lands
555 Deinhard Lane
McCall, ID 83638
Debra Huber
P.O. Box 274
Glenwood, MD 21738
Steven and Lynne Hager
5359 N. Cattail Way
Boise, ID 83703
Elaine Ambrose Revocable Trust
Box 1930
McCall, ID 83638
T.L. Benson, M.D. Inc.
Retirement Trust
11 Allensby Lane
San Rafael, CA 94901
Cynthia Larsen Family Trust
1130 38Th Street
Sacramento, CA 95816
Susan Sheridan
202 Sandra Street
Eagle, ID 83616
Victoria Cunningham
1822 18th Ave. W.
Seattle, WA 98119
Steve Benad
Benad LLC
1909 Pilgrim Cove
McCall, ID 83638
John Edward Simplot
199 N. Capital Blvd.
Suite 907
Boise, ID 83702
Gregory and Helen Brown
19215 Hwy 30
Buhl, ID 83316
Carolyn McEntee and Estate of
Larry T. McEntee
2850 E. Parkriver Drive
Boise, ID 83706
Byron and Karma Gingrich
Box 1032
Nampa, ID 83653
Doris Mertz
283 Mountain View Ave.
San Rafael, CA 94901
Gary and Julie Slee
Donald and Barbara Gile
321 E. Highlands View Drive
Boise, ID 83702
Alan P. and Linda Einspahr Brinton
PO Box 177
McCall, ID 83638
Brundage Mountain Company
C/o Larry Shake
P.O. Box 1062
McCall, ID 83638
Deborah E. Nelson
Givens Pursley LLP
601 W. Bannock St.
P.O. Box 2720
Boise, Idaho 83702