[MissoulaGov] committee update 9-17-08

[Bob Jaffe]

Greetings,

First item in PAZ was an amendment to the covenants for the Valley
subdivision. This is five or ten acres about two miles out Mullan road. The
covenants had a provision that said no basements would be allowed due to
ground water considerations. It also said that particular provision could
not be amended without governing body approval.  The developer hired
Geomatrix to do a hydrological study and determined that for some of the
lots it would be OK to build basements. So they brought it back for us to
amend the covenants before filing final plat. Our flood plane administrator
had reviewed the study and sent a letter in agreement with the findings. The
state flood guy was also OK with it. I figured this would be about a ten
minute item.  But I was wrong.

 

Some number of years ago there was a subdivision near this one that did
flood and the residents sued the county for allowing them to build there.
Nothing like the specter of a law suit to get some of the council members
running around in circles.  The question was asked in about sixteen
different ways by Renee, Jon, and John if there was any way to provide the
council absolute legal immunity if we allowed for this change in the
covenants. Ed pointed out that along the same purely hypothetical and
speculative lines we could be sued for not approving the change after a
qualified consulting firm had done a specific study of the property and the
city and state flood professionals had agreed with the findings. On what
grounds were we denying the request? The only argument offered was that in
the past a law suit arose from a property close to this one so maybe we
could get sued too.  Even our attorney advised us, with all the standard
disclaimers, that we were on solid ground.

When it was time for the vote, it in fact failed. Renee, Dick, Lynn, Jon,
John, and Jason against. Ed, me, and Pam in favor. Everyone else was absent.

 

When I later asked Jason, his reasoning was something like this:  We didn't
need to be exposing ourselves by getting involved with this since it was not
a condition of subdivision and just a part of the covenant. The covenants
are a contract between the property owners in the subdivision.  The city is
not a party to that agreement. The developer could just change those
covenants any time he wants to as long as he is the only property owner. No
reason for us to get involved. We'll get to discuss this on the floor Monday
night so Jason will probably clarify his position then.

 

My take on it is that may be true but we approved the subdivision with that
condition in the covenant. It specifically said that there would be
governing body approval to change it. It may be correct that the developer
could legally change it all on his own but it certainly wouldn't look good.
Much more prudent to bring it before the council. 

The one point this did bring out was that we should make sure these types of
things are conditions of the subdivision and not just in the covenants.

 

In other business we voted to postpone the proposal to require affordable
units in the CBD for densities higher than 16/acre.  The planning board
recommended that we wait until the zoning rewrite is done because it will
probably address this in some way.

 

In A&F we approved the RFP request for the Fox site. This is to try to find
a developer who will build something there that we like. Most of the
discussion centered around fees that MRA wanted to charge developers of the
site. They wanted a $100,000 deposit that would be repaid upon completion of
the project. This sounded reasonable. They also wanted a 'developer fee' of
1% of project cost not to exceed $500,000 to cover expenses associated with
the project. This caused a little more commotion. My concern was if this was
a standard practice that outside developers would not baulk at. If so than I
have no problem with it. Usually when people come to spend a big pile of
money they expect us to give them something like a parking garage. I've
never liked that so it would be nice to see it go the other way.    

 

In Public works we discussed the expansion of the sidewalk project around
Trempers. They are finishing up the system that comes in on North and around
Oxford and Kemp. There are a couple of property owners who had not signed on
to the project but they were at the meeting to air their concerns. It
sounded like their issues could be worked out. We all want to see the whole
project get done all at once. We approved the change requests and are
hopeful that Engineering will work things out with the last two people to be
able to do a complete project.

 

It was a short day so that was it.

Thanks for your interest,

 

 

Bob Jaffe

Missoula City Council, Ward 3

 <mailto:bjaffe at ci.missoula.mt.us> bjaffe at ci.missoula.mt.us

406-728-1052

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