The URL can be used to link to this page

Minutes - 2004 - City Council - 11/23/2004 - Regular v ORIGINAL EAGLE CITY COUNCIL Minutes November 23,2004 Council President Stan Bastian will chair the meeting tonight in the Mayor's absence. PRE-COUNCIL AGENDA: 6:30 D.m. - 7:30 D.m. I. Mike Mongelli, Building Official- Discussion on the OJT program with the VA. Provides Council an overview of the Veteran's Administration On the Job Training program. The City has budgeted for a part time building inspector this fiscal year. The V A will pay one-half of the full time employee's wages for the first 6 months. General discussion. Council concurs to proceed with a job description, a training plan, base salary with benefits and bring back to the Council for further action. 2. Ransom Bailey, City Attorney - Discussion on Hill Road Park-Lease/Option to Purchase Agreement with Ada County. Provides Council with a history of the land purchase from ACHD and the land swap with ACHD and Ada County. The ACHD property was split and the City purchased one parcel and ACHD swapped the other parcel to Ada County. Ada County has agreed to a four year lease purchase agreement with the existing appraisal price. I will have a draft available for the Council at your December 7, 2004 meeting. General discussion. Mick McCurry, Facilities Manager, discusses his conversation with Hillside Nursery about not laying the sod until the spring. The D & G sod company will not guarantee the sod if it is laid this late in the year. General discussion. Council concurs to wait until spring to have the sod laid. 3. Sgt. Cornwall, City ofKuna - Discussion on Kuna's Juvenile Justice Council. Jim Birdsall introduces Sgt. Cornwall, Council Member Zella Johnson and Joe Lupin. Jim distributes some information on the Juvenile Justice Council. Sgt. Cornwall, Ada County Sheriffs Office, provides Council a history of juvenile crime in Kuna prior to the program and how Kuna started their program and the success they have achieved. This was grass roots effort with volunteers to start. Our program has been in place a little over two years. A lot of our volunteers are the pastors in the community. The Board consists of three people. This is a volunteer program. Usually not violent crimes. The youth appears before the Board. We usually work with middle school youth. The cost of the program to the youth is $50 and we recommend that the youth work off the $50. The Board interviews the parents and the youth. High end is 30 hours of community service and the low end is 10 hours. The City provides workman's comp on the youths doing the community service. We are now looking for an after school program and we are searching for grants. We try to have a resolution within 30-40 days from when the crime is committed. General discussion. Zella Johnson, discusses the flow chart. We operate under the City. There is a three m~mber board. The Board has a president, two vice-presidents and a secretary. The Board meets monthly. We have a panel of Executive Officers which are the Police Officers. I run the screening program by interviewing the youths and recommending them for the program. Then we bring the youths in before the Board. Discussion on the program forms. General discussion. 4. Hill Road Park Grant Discussion - Jim Birdsall. I was contacted by State Park and Recreation to resubmit a grant application on Hill Road Park this year for the next Phase which are the shelters and playground which score highly with them. This would be a matching grant. Ijust wanted to bring this to your attention to see if you want me to proceed with the grant. Page I K:\CQUNClLIMINUTES\Temporary Minutes Work Area\CC-II-23-04min.doc January 28th is the deadline to submit the grant. General discussion. Council concurs to have Jim proceed with the grant. REGULAR COUNCIL AGENDA: 7:30 p.m. 1. CALL TO ORDER: Council President Bastian calls the meeting to order at 7:40 p.m. 2. ROLL CALL: BASTIAN, SEDLACEK, GUERBER, NORDSTROM. All present. A quorum is present. 3. PLEDGE OF ALLEGIANCE 4. PUBLIC COMMENT: None Sedlacek requests to amend the Consent Agenda to add as Item #F a Beer and Wine License for JLST, LLc. Guerber requests to have Item #E removed from the Consent Agenda. Sedlacek removes Item #F from the Consent Agenda. 5. CONSENT AGENDA: . Consent Agenda items are considered to be routine and are acted on with one motion. There will be no separate discussion on these items unless the Mayor, a Councilmember, member of City Staff, or a citizen requests an item to be removed from the Consent Agenda for discussion. Items removed from the Consent Agenda will be placed on the Regular Agenda in a sequence determined by the Rules of Order. . Any item on the Consent Agenda which contains written Conditions of Approval from the City of Eagle City Staff, Planning & Zoning Commission, or Design Review Board shall be adopted as part of the City Council's Consent Agenda approval motion unless specifically stated otherwise. A. Claims Against the City. B. Minutes of November 9, 2004. C. Minutes of November 15, 2004. D. Findinl!:s of Fact and Conclusions of Law for A-S-04/RZ-5-04/CU-5- 04/PPUD-2-04/PP-4-04 - Optimist Business Park Planned Unit Development - Jade. LLC.: Jade LLC, represented by Land Consultants Inc., is requesting an annexation and rezone from RUT (Rural Urban Transition) to BP-P (Business Park PUD), conditional use permit, preliminary development plan, and preliminary plat approvals for Optimist Business Park planned unit development. The 9.8I-acre, 17-lot (IS-buildable, 2-common) commercial subdivision is located south of Hill Road and on the west side of Horseshoe Bend Road at 9551 & 9555 Horseshoe Bend Road. (WEV) E. Findinl!:s of Fact and Conclusions of Law for A-4-04 & RZ-6-04 - Annexation and Rezone - City of Eal!:le: The City of Eagle is proposing a City- initiated annexation and rezone with development agreements for the properties generally located on the southwest and northeast corners of State Highway 44 and Linder Road. The multi-site rezones are proposed to be from RR (Rural Residential) and RUT (Rural Urban Transition) to R-2-DA (Residential with development agreement) and C-I-DA (Neighborhood Business District with development). (WEV) Page 2 K:\COUNClLIMINUTESITemporary Minutes Work Area\CC-II-23-04min.doc F. Beer & Wine License for JLSST. LLC. consumption off premises onlv to be utilized at 3210 E. Chinden Blvd.. gte. 120 (Eaele Market) Guerber moves to approve Items #A, B, C, D on the Consent Agenda. Seconded by Nordstrom. Bastian: AYE; Sedlacek: AYE; Guerber: AYE; Nordstrom: AYE: ALL AYES: MOTION CARRIES..................... 5E. Findines of Fact and Conclusions of Law for A-4-04 & RZ-6-04 - Annexation and Rezone - City of Eaele: The City of Eagle is proposing a City-initiated annexation and rezone with development agreements for the properties generally located on the southwest and northeast corners of State Highway 44 and Linder Road. The multi-site rezones are proposed to be from RR (Rural Residential) and RUT (Rural Urban Transition) to R-2-DA (Residential with development agreement) and C-I-DA (Neighborhood Business District with development). (WEV) Guerber: I removed this to seek clarification from Staff. Planner Lowe: My memo is to request that Item #7D be continued. This application was a multi- parcel, multi-development agreement. The Zoning Administrator in an effort to help the other projects move along wrote findings for all of those properties except Senora and Senora Creek has development agreement that still need to be worked out. Their attorney called today and said that he was not able to get to that so this item needs to be continued. Guerber moves to approve Item #5E. Seconded by Sedlacek. ALL AYES: MOTION CARRIES.................. 5F. Beer & Wine License for JLSST. LLC. consumption off premises onlv to be at 3210 E. Chinden Blvd.. Ste. 120 (Eaele Market) Sedlacek: I removed this item for clarification on whether or not this is a permanent license and if there is a limit on the number of licenses that the City of Eagle can issue. General discussion. Sedlacek moves to approve Item #SF. Beer and Wine License for JLSST, LLC. Seconded by Nordstrom. ALL AYES: MOTION CARRIES.............................. 6. PROCLAMATIONS & RESOLUTIONS: None utilized 7. PUBLIC HEARINGS: A. PP/FP-I-04 - Reese Subdivision (Rockv Mountain Business Park - Svdnev &Associate Marearet Jones: Margaret Jones with Sydney & Associates LLC, represented by James Murray with CSHQA, is requesting combined preliminary plat and final plat approval for Reese Subdivision, a re-subdivision of Lot 17, Block 3, of Merrill Subdivision No.2. The I.O4-acre, 2 lot commercial development is located south of East Plaza Drive, at 781 East Plaza Drive.(WEV) This item was continued from the November 9, 2004 meeting. Council President introduces the issue. Jim Murray, CSHQA, representing the applicant, displays overheads of the project and provides Council an overview ofthe project. General discussion. Planner Lowe: Displays overheads to the project and provides Council an overview of the project. Staff and the Planning and Zoning Commission have recommended approval. General discussion. Jim Murray, displays an overhead of the site showing the location of the building and the parking and discusses the parking area. General discussion. Page 3 K:\COUNClLIMINUTES\Temporary Minutes Work Area\CC-II-23-04min.doc Council President Opens the Public Hearing Council President Closes the Public Hearing Sedlacek moves PP/FP-I-04 - Reese Subdivision (Rocky Mountain Business Park) presented by Jim Murray with all of the Standard and Site Specific Conditions of Approval. Seconded by Guerber. ALL AYES: MOTION CARRIES........................ B. RZ-9-O4- Rezone From A-R To R-2 - Nal!V Sprine:creek LLC: Nagy Springcreek LLc., represented by Land Consultants Inc., is requesting a rezone from A-R (Agricultural-Residential) to R-2 (Residential - up to two dwelling units per acre). The 26.18-acre site is located west of Eagle Road, at 2267 South Eagle Road.(WEV) This item was continued from the November 9, 2004 meeting. C. PP-6-04 - Westover Lakes Subdivision - Nae:v Sprine:creek LLC: Nagy Springcreek LLC, represented by Land Consultants Inc., is requesting a preliminary plat approval for Westover Lakes Subdivision, a 32-10t (26-buildable, 6-common) residential subdivision. The 26.18-acre site is located west of Eagle Road at 2267 South Eagle Road.(WEV) This item was continued from the November 9, 2004 meeting. Council President introduces the issue. Items #7B and #7C will be heard together but with separate motions. Don Knickrehm, Developer of the Project, displays an overhead of the site plan and provides Council an overview of the project. The Planning and Zoning Commission has recommend approval of the project. General discussion. Discussion on ownership and sewer connections. Discussion on the water rights and irrigation. General discussion Planner Lowe: Staff and the Commission have recommended the rezone which is incompliance with the Comp Plan and is compatible to area. Displays overheads of the site plan and the pathway area and provides Council an overview of the project. General discussion. Council President Opens the Public Hearing on Items #7B and C Council President Closes the Public Hearing General Council discussion. Nordstrom moves to approve RZ-9-O4- Rezone From A-R To R-2 - Nagy Springcreek LLC all Site Specific Conditions and Standard Conditions of Approval. Seconded by Guerber. ALL AYES: MOTION CARRIES........................ Guerber moves to approve PP-6-04 - Westover Lakes Subdivision - Nagy Springcreek LLC with the Site Specific and Standard Conditions of Approval as outline in the staff report. Seconded by Sedlacek. ALL AYES: MOTION CARRIES......................... D. A-4-04 & RZ-6-04 - Annexation and Rezone - City of Eae:le: The City of Eagle is proposing a City-initiated annexation and rezone with development agreements for the properties generally located on the northeast comer of State Highway 44 and Linder Road. The multi-site rezones are proposed to be from RUT (Rural Urban Transition) and R4 & R2 (Residential) to A- R (Agricultural Residential), R-2-DA and R-3-DA (Residential with development agreement) and PS (Public/Semi-Public)..(WEV) This item was continued from the November 9, 2004 meeting. Council President introduces the issue. Guerber moves to continue A-4-04 & RZ-6-04 - Annexation and Rezone - City of Eagle to the December 7, 2004 City Council meeting. Seconded by Nordstrom. ALL AYES: MOTION CARRIES....................... Page 4 K\COUNClL\MINUTES\Temporary Minutes Work Area\CC-II-23-04min.doc E. A-6-04 & RZ-II-O4 - Annexation and Rezone - Ada County Hig:hwav District: The Ada County Highway District is requesting approval of an annexation and rezone from RUT (Rural Urban Transition - Ada County designation) to PS (Public/Semi-Public) for the construction of a park and ride lot. The 1.17 -acre parcel is located on the southwest comer of the intersection of State Highway 44 and East Riverside Drive. (WEV) Council President introduces the issue. Christina Imada, with Doherty and Associates, displays a aerial photo and a landscapin'g plan of the park and ride lot and discusses the configuration of the proposed park and ride. There will be an estimated 50 parking spaces. Discussion on the drainage. General discussion. Kathryn Sanchez, ACHD Park n' Ride, discusses the Federal funding which they hope to receive in February so they can start construction and it would then be completed by the end of the year. The Federal Funds would also be for the Ballantyne site. We are currently using King's parking lot. We have also allowed for future bus service when that comes in. General discussion. Planner Lowe: This application is in compliance with the Comp Plan. The Commission is supportive of this rezone. General discussion. Council President Opens the Public Hearing Council President Closes the Public Hearing Nordstrom moves to approve A-6-04 & RZ-ll-04 - Annexation and Rezone - Ada County Highway District with all Standard and Site Specific Conditions as presented. Seconded by Guerber. ALL AYES: MOTION CARRIES........................ 8. FINAL PLATS: A. CP-I-04 - Condominium Plat for Sooner Condominiums (aka Winding: Creek East) - David Southers: David Southers, represented by Tealey's Land Surveying, is requesting approval for a 44-unit condominium plat for Sooner Condominiums (aka Winding Creek East). This subdivision is located on the northeast comer of Winding Creek Road and Hill Road (extension). (WEV) Council President introduces the issue. Pat Tealey, Tealey's Land Surveying, provides Council an overview of the project. We have read the Staff Report and agree with report and conditions. General discussion. Discussion on applicant providing a copy of the recorded CC&R's prior to the issuance of any building permits in #7 and #8, Page 2 of 2. Planner Lowe: Discussion on requiring applicant providing a copy of the recorded CC&R's prior to the issuance of any building permits in #7 and #8, Page 2 of 2. General discussion. Pat Tealey, further discussion on requiring applicant providing a copy of the recorded CC&R's prior to the issuance of any building permits in #7 and #8, Page 2 of 2. General discussion. David Southers, applicant, discusses the unique elements of the project. Gen Guerber moves to approve the final plat for CP-I-04 - Condominium Plat for Sooner Condominiums (aka Winding Creek East) with the Stipulation that the last sentence in Items #7 and #8 be stricken, and add to Item #9 after the wording "CC&R's and: the word "declarations". Seconded by Sedlacek. ALL AYES: MOTION CARRIES.................. Page 5 K:\COUNClLIMINUTES\Temporary Minutes Work Area\CC-II-23-04min.doc 9. NEW BUSINESS: A. Parkin!! A!!reement for 93 S. Ea!!le Road - Jeremiah Properties/Mark Priddv. (WEV) Council President introduces the issue. Planner Lowe: It was the Zoning Administrator's desire to have the Council review the Parking Agreement. General discussion. Council President recognizes Jeff Lowe for his completion of his Certification from the American Institute of Certified Planners. Jeff is presented with a card and gift certificate. Planner Lowe: I appreciate the opportunity that the City provides in allowing me to obtain my . Certification. 10. UNFINISHED BUSINESS: None REPORTS: Zoning Administrator Report: Planner Lowe: Discusses private roads. General discussion. City Attorney Report: Ransom Bailey: I distributed to Council a letter to JoAnn Butler in regards to the Baptist Church. General discussion. City Clerk Report: City Attorney Buxton and I are meeting with Tom Zabala on the RFP for the new city hall on 12/7. A joint meeting with the Planning and Zoning Commission will be scheduled for 11/29. Discussion on the Mary Shaw's Eagle Print. Sedlacek: Discusses the Blue Print for Good Growth. General discussion. I still have questions about the area of impact. Is issue needs to be on the 11/29 Agenda for the Joint Meeting. General discussion. Guerber: Reports on the Parks Committee Meeting and the presentation from the Nazarene Church in regards to installing a park on their property for ball fields. General discussion. Discussion on the ensign valve. Provides the City Attorney a long term lease agreement for review. General discussion on where to place the ensign valve. Reports on Air Quality meeting. Nordstrom: I have taken on the project of talking to the property owner's along the by-pass about making a donation to the City to help pay off the debt for burying the power lines. General discussion. Discussion on what to base the donations on. Council concurs that it should be based on lineal frontage. General discussion. Discussion on Stan and Scott exchanging schedules to make sure that they are not absent from the council meetings at the same time. General discussion. Guerber: I travel also and I can not always be at every council meeting. Bastian: I really don't have anything to report. Nordstrom moves to go into Executive Session for the discussion on pending litigation. Seconded by Sedlacek. Bastian: AYE; Sedlacek: AYE; Guerber: AYE; Nordstrom: AYE: ALL AYES: MOTION CARRIES.......................... Council goes into Executive Session at 10: 15 p.m. Council leaves Executive Session at 10:50 p.m. Page 6 K:\COUNCILIMINUTES\Temporary Minutes Work Area\CC-II-23-04mÍß.doc 11. ADJOURNMENT: Hearing no further business, the Council President adjourned the meeting at 10:50 p.m. Respectfully submitted: "",n...", ", ### ~.." Of EAG~ ### ~.. 4. ......~ ~ ^ #'. ¡,," .. <:' , i ,."':0 ... ., 0 R.-' . :.. \. ... w' ...., ,'.- .. . 0'" .. ... ~ : ,e; ~'?': ". d~'. : ~ ,'. 8 - ;-: : ,:" \ (' 1~ '\ '. ' ". 0 : " .-:1.~"'" ",,:.,..:: ~ ...c'O¡,..y".""~":""~ "'" _r.. 8.'" .', ,'" .. .. 'U» ...~., .." \)'.." ~"# -11'E O~ \ ~,.." ### ", #"'U....," ~ Mt M... - ',( ~ SHARON K. BERGMANN CITY CLERK/TREASURER Page 7 K\COUNC!LIMINUTES\Temporary Minutes Work Area\CC-II-23-04min.doc A-6-04 & RZ-11-04 ANNEXATION AND REZONE ADA COUNTY HIGHWAY DISTRICT PUBLIC HEARING THE CITY OF EAGLE CITY COUNCIL TUESDAY, A 2004 7:30 P.M.' °' NAME ADDRESS/ TESTIFY TELEPHONE SUBJECT YES/ NO? PRO/CON Page 1 f 1 11.\COUNCIL `AGENDA\CCSIGNUP.WPD A-4-04 & RZ-6-04 ANNEXATION AND REZONE CITY OF EAGLE PUBLIC HEARING THE CITY OF EAGLE CITY COUNCIL TUESDAY, AUGUST 24, 2004 7:30 P.M NAME ADDRESS/ TESTIFY TELEPHONE SUBJECT YES/+1O? PRO/CON Page 1 f 1 11.\COUNCIL\AGENDA\CCSIGNUP.WPD NAME RZ-9-04 REZONE FROM A -R TO R-2 NAGY SPRINGCREEK LLC PUBLIC HEARING THE CITY OF EAGLE CITY COUNCIL TUESDAY, , 2004 7:30 P.M. ADDRESS/ TESTIFY TELEPHONE SUBJECT YES/ NO? PRO/CON Page 1 f 1 1i: COUNCIVAGENI)A\CCSIGNUI'.WPl NAME PP -6-04 WESTOVER LAKES SUBDIVISION PUBLIC HEARING THE CITY OF EAGLE CITY COUNCIL TUESDAY, AUWTZ4; 2004 7:30 P.M. ADDRESS/ TESTIFY TELEPHONE SUBJECT YES/VO? PRO/CON Page 1 f 1 }L\COUNCII AGENDA'CCSIGNUPWPD NAME PP/FP-1-04 REESE SUBDIVISION PUBLIC HEARING THE CITY OF EAGLE CITY COUNCIL TUESDAY, AU M24, 2004 7:30 16:M. ADDRESS/ TESTIFY TELEPHONE SUBJECT YES/ vO? PRO/CON Page 1 f 1 II'\COUNCIL `AGENDA\CCSIGNUP.WPD 11/23/2004 12:57 FAX 2082877529 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 • 19 20 21 22 23 24 25 DISTRICT COURT cG 3. -of [2,002 Ko. AM. IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DI STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA STARWOOD OF EAGLE, INC., an Idaho corporation, Plaintiff/Counterdefendant, vs. NAGY SPRINGCREEK, LLC, an Idaho limited liability company, COTTONWOOD CREEK, LLC, an Idaho limited Liability company and HAROLD H. WESTOVER and MARCELENE C. WESTOVER, husband and wife, DOES I through X, inclusive and all other persons claiming any - right, title or interest in and to the real property more particularly described herein, Defendants/Counterclaimants. NAGY SPRINGCREEK, LLC, an Idaho limited liability company, COTTONWOOD CREEK, LLC, an Idaho limited liability company and HAROLD H. WESTOVER and MARCELENE C. WESTOVER, husband and wife, Plaintiffs, VS. STARWOOD OF EAGLE, INC., an Idaho 26 corporation, G. MATTHEW THOMAS, an Case No. CV000309366D MEMORANDUM DECISION ON DEFENDANTS/COUNTERCLAIMANTS MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. CV000309440D MEMORANDUM DECISION ON DEFENDANTS/COUNTERCLAIMANTS MOTION FOR PARTIAL SUMMARY JUDGMENT - CASE NO. CV000309366D - PAGE 1 11/23/2004 12:57 FAX 2082877529 DISTRICT COURT IBJ 003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 individual, THE ESTATE OF DANIEL A. THOMAS, THE ESTATE OF DOROTHY ELIZABETH FEHL-HABER, DOES 1 through X, inclusive and all other persons claiming any right, title, and interest in and to the real property (more particularly described on exhibits B, C and D, Defendants. APPEARANCES Plaintiff/Counterdefendants: Kim Trout of Trout Weeks & Nemec Defendants/Counterclaimants: Stephen Hardesty of Hawley Troxell Ennis & Hawley This matter came on for hearing before the Court on the Defendants/Counterclaimants motion for partial summary judgment. The Court heard argument and took the matter under advisement on October 25, 2004. PROCEEDINGS This case involves a dispute over a parcel of property and the Plaintiffs claim that there is an easement that they are entitled to utilize on the property. The property is located in the city of Eagle. The Plaintiff, Starwood is the owner and developer of a subdivision called Streamside, which is located at the end of a dirt road, approximately a quarter mile west of Eagle Road. The Defendants, Nagy Springcreek, LLC, hereinafter referred to as "Nagy" and Cottonwood Creek, LLC, hereinafter referred to as "Cottonwood", owned 2 pieces of land to the west of Eagle Road. Harold Westover and Marcelene C. Westover owned property to the north of the dirt road. At issue in this case is the ownership of the dirt road that leads from Eagle Road to the Plaintiff Starwood's Streamside subdivision and through property owned by MEMORANDUM DECISION ON DEFENDANTS/COUNTERCLAIMANTS MOTION FOR PARTIAL SUMMARY JUDGMENT - CASE NO. CV0C0309368D - PAGE 2 11/23/2004 12:57 FAX 2082877529 DISTRICT COURT a 004 1 Nagy, Cottonwood and the Westovers. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 18 17 18 19 20 21 22 23 24 25 26 STANDARD OF REVIEW On a motion for summary judgment the trial court must determine whether the pleadings, depositions and admissions together with affidavits show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c); Bonz v. Sudweeks, 119 Idaho 539 (1991). The burden of proving the absence of material facts rests at all times with the moving party. McCoy v. Lyons, 120 Idaho 765 (1991). The Court's primary in interpreting a deed is to seek and to give effect to the real intention of the parties. Neider v. Shaw, 138 Idaho 503, Bumgamer v. Bumgamer, 124 Idaho 629. When no ambiguity exists in a deed the party's intent must be ascertained from the language of the deed as a matter of law, without resort to extrinsic evidence. CNG, Inc. v. Rule, 135 Idaho 763. In deciding whether a document is ambiguous or unambiguous the Court will determine whether it is "reasonably subject to conflicting interpretation." CNG, 25 P.3d at 79. When an ambiguity exists in a deed, the interpretation of the grantors intent is a question of fact determined from the instrument itself as well as from the surrounding facts and circumstances. Latham v Gamer, 105 Idaho 854, 857 (1983). MEMORANDUM DECISION ON DEFENDANTS/COUNTERCLAIMANTS MOTION FOR PARTIAL SUMMARY JUDGMENT - CASE NO. CV000309366D - PAGE 3 11f23/2004 12:58 FAX 2082877529 DISTRICT COURT 0005 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DISCISSION The Court must focus on the issues of material fact in this case that are not in dispute. The road in question was originally created on January 22, 1918 when James E. Kilborne and Murtie May Kilborne conveyed to James L. Graham a twenty (20) foot strip of ground running across the southern part of a parcel of what is known as the Westover property_ A true and correct copy of that deed is attached to the affidavit in support of the motion for summary judgment filed by counsel as exhibit H. The location of the existing disputed road, which is consistent with the legal description contained in the 1918 deed, is depicted on a drawing attached to the affidavit of Richard Gary as exhibit 2. In 1982 a judgment quieted title to the property in dispute in this action and established the northern boundary line of what is now known as the Nagy property and the Cottonwood property. The quiet title judgment established title in and to the parcels now known as the Nagy property and the Cottonwood property in Freda Stout. The quiet title judgment was recorded November 3, 1982. as instrument number 8245559, in Ada County. The judgment was affirmed by the Idaho Supreme Court in Stout v. Westover, 106 Idaho 533 (1984). The northern boundary line of the Nagy property is established by the quiet title judgment, intersects the disputed road at its westerly end and creates the Nagy segment in the northwest comer of the Nagy property. Following the entry of quiet title judgment all relevant conveyances subsequent to • that date have contained the following language in the legal description, "except any portion that may lie within a tract of land which was subject of action in Ada County Case No. 61059, judgment in said MEMORANDUM DECISION ON DEFENDANTS/COUNTERCLAIMANTS MOTION FOR PARTIAL SUMMARY JUDGMENT - CASE NO. CV000309366D - PAGE 4 11/23/2004 12:58 FAX 2082877529 DISTRICT COURT CJ006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 case was recorded November 3, 1982 as instrument number 8245559." On May 17, 1993 John W. Wroten, Janice Meek and Dorothy Elizabeth Fehl-Ber conveyed to Ennes Sam Alacano what is now known as the Starwood property. This property consisted of 51.3 acres of property located to the west of the Westover property and a portion of the disputed road. A copy of the deed was attached as exhibit L. This deed used the original legal description of the disputed road found in the 1918 deed but expressly excepted, from the property being conveyed, the Ada County Court case judgment that was recorded as of November 3, 1982. On June 5, 1993 Alacano conveyed to G. Matthew Thomas and Daniel A. Thomas the same parcel of real property and the same portion of the disputed road that runs along the southem property of the Westover property. That deed is found in exhibit C. Just as the previous deed excepted cut the property subject to the quiet title judgment, so did the deed between Alacano and Thomas. On September 12, 1995 Thomas then conveyed to Starwood of Eagle, Inc. the 51.3 -acre parcel of property. See exhibit D. The Thomas deed did not convey or purport to convey any portion of the disputed road to Starwood. Starwood ultimately developed the 51.3 -acre parcel of property into what is now known as the Streamside subdivision. On August 29, 2003 Wroten and Meek, by a quitclaim deed, relinquished and quitclaimed to Nagy any remaining interest they may have had in and to the portion of the disputed road, which was subject of the quiet title judgment. A true and correct copy of the quitclaim deed is found in exhibit M. Thus, all of the deeds in the Plaintiffs chain title except out the portion of property MEMORANDUM DECISION ON DEFENDANTS/COUNTERCLAIMANTS MOTION FOR PARTIAL SUMMARY JUDGMENT - CASE NO. CV000309366D - PAGE 5 11/23/2004 12:58 FAX 2082877529 DISTRICT COURT lJ 007 that was subject to the quiet title judgment. There is no deed executed by Wroten or a 1 2 party that acquired the title directly from Wroten that conveys any portion of the 3 property that was subject to the quiet title judgment in 1982. 4 Thus the Court will find that the quiet title judgment in the chain of title in the 5 recorded real estate public records set forth, that relate to the Nagy property and the 6 Cottonwood property, are not subject to conflicting interpretation and the Court must 7 determine the intent of the parties from the deeds themselves. 8 Accordingly, the Court will find as a matter of law, that the 9 Defendants/Counterclaimants are entitled to partial summary judgment declaring the 10 Plaintiffs Starwood and Thomas did not receive fee title in and to any portion of the 11 disputed road that crosses over or lies within the real property, which is the subject to 12 13 the quiet title judgment, including but not limited to the Nagy property and the 14 Cottonwood property. 15 The Plaintiffs Starwood and Thomas, not having been conveyed fee title to any 16 portion of the disputed road that crosses over or lies within the real property, which is 17 the subject of the quiet title judgment, including but not limited to the Nagy property and 18 Cottonwoodro e p p Ity, are not entitled to assert any claim of title to such property based 19 upon any deed, grant or conveyance of title. 20 21 22 23 24 25 26 CONCLUSION The Court will GRANT Defendant/Counterclaimants motion for partial summary judgment. MEMORANDUM DECISION ON DEFENDANTS/COUNTERCLAIMANTS MOTION FOR PARTIAL SUMMARY JUDGMENT - CASE NO. CV000309366D - PAGE 6 .11/23/2004 12:59 FAX 2082877529 DISTRICT COURT DATED this a3 day of November 2004. 1 2 4 6 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 rdHAEL MCLAUGHLIN DISTRICT JUDGE MEMORANDUM DECISION ON DEFENDANTS/COUNTERCLAIMANTS MOTION FOR PARTIAL SUMMARY JUDGMENT - CASE NO. CV000309366D - PAGE 7 g oo& •11/23/2004 12:59 FAX 2082877529 DISTRICT COURT O009 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF MAILING I hereby certify that on the , day of November 2004, I mailed (served) a true and correct copy of the within instrument to: TRIAL COURT ADMINISTRATION TWO (2) COPIES KIM TROUT ATTORNEY AT LAW PO BOX 9695 BOISE IDAHO 83707-3695 STEPHEN HARDESTY ATTORNEY AT LAW PO BOX 1617 BOISE IDAHO 83701-1617 J. DAVID NAVARRO Clerk of the District Court By MEMORANDUM DECISION ON DEFENDANTS/COUNTERCLAIMANTS MOTION FOR PARTIAL SUMMARY JUDGMENT - CASE NO. CV000309366D - PAGE 8 ri D 2109 (Rev. 10-02) �C- //-23-04 Right -Of -Way Encroachment Application And Permit Approaches And Other Encroachments Permit No. .5-0,/-,077 Issue Date y�/C/Q 3' Project No. W M' 5.2 7pUOS') 0020405 Milepost /e. 8' RT LT C/L Station S144.63 5 ou?o = 3g8 tUoe-r o = c i3 Distance from Nearest Approaches in both directions. Ft. LH I coot Ft. Posted Speed 55 M n4 Fee $ Longitude Elevation 0 Performance Bond Required $ ❑ Appraisal Required Rdwy Type (Urban, Rural) . U No. of Lanes c Median Type'T I,LTL Modification ❑ Exchange 0 Change in Use ❑ Joint Use Route $/f- 5,,s Segment SAGLE / ADA City/County Sight Distance: RH I Ooo GPS Coordinates: Latitude D Inspection Fee Required $ ❑ Traffic Impact Study Required Access Control Type (I-V) 1'V Access Permit Type: XNew Approach R LT /l F Approach(es) Culvert (If req'd) Approach Type Other (explain) Quantity(les) . Width / Size Multiple Approaches ❑ Yes See Attached ❑ Yes See Attached 401 Est. Volume (Vehicles/Day) 500 YPD Residential (SFI.*1F'), Commercial (LT, HVY), Agricultural Business Type 5-c%�// c 1.0-") .a— 5E2_ it Rc-ke-D Zfot -e q) AGO 1 �" . b t CO �� in* � ,Pt�.ovAt Attach the following: P : 1. A copy of the Encroachment Checklist and all applicable documents. 2. Written authorization from the owner (if needed). 3. Plans or drawings (3 sets) showing proposed work, approach locations, drainage details, landscaping, striping plans, and traffic control. (Include Department roadway alignment or project plans when available.) 4. Special Provisions and Traffic Control Plans • Vaal,, AKA ht trree G Owner's Name Owner's Signa�tu m_ • /Pa g4•_ r, A i;i . ell Reprise Address 'Owner's Phone - /y4341 4 Address Representative's Phone City State Zip Owner's Fax fe 27;0 pity State Zip 3?z-3ft.g Representatives Fax • '417;W effOrk By: Local Government Approval When Required Signature Title Date / Dis ct Engineer NOTE: Permit will be considered Temporary until final inspection and approval by a Department representative. F-1 T u3 -v9` O"71 TRANSPORTATION DEPARTMENT P.O. BOX 7129 • BOISE, ID • 83 70 7-1129 • (208) 334-8000 June 14, 2004 Don Knickrehm, Manager Nagy Springs, LLC P.O. Box 1617 Boise, ID 83701-1617 bcc: SB DIR CE ACE(0) DAG DE -3 ADE(E)-3 D3 Suspense 03-04-303 Re: Access to Westover Project; Eagle Road (SH -55) Dear Mr. Knickrehm: This is a follow up to our recent phone conversation and your letters on this subject. ITD will no longer pursue additional access to the Westover property via Cottonwood Creek or Streamside Subdivisions. The Assistant Chief Engineer's March 17, 2004 letter approved your permit application with nine conditions. Upon further review by me, the following modifications to conditions 1, 3, 4, 7, 8 and 9 are made. 1. The original condition said the approach would remain "joint use" at its current location of Station 316+08 Lt. If you wish to locate the approach entirely on Westover property, however, we would allow you to do so by locating it at Station 316+68 Lt. 3. The original condition said the approach would be recorded as INTERIM. The intent of this condition is to allow for possibly eliminating direct highway access in the future if and when alternative access can be provided. In this case, however, we have already ruled out such alternatives, therefore the approach will be recorded as a permanent subdivision approach. 4. As previously agreed, the approach would be permanently restricted on the deed to RIGHT-IN/RIGHT-OUT ONLY. To ensure full and fair disclosure to the future owners of this development, however, you are further required to place a statement on the subdivision plat and each subdivision lot deed which reads, "The Idaho Transportation Department has in its construction program a project to construct a median in the center of Eagle Rd. (State Highway 55) which will result in only right turns into or out of the subdivision. - An Equal Opportunity Employer - Mr. Don Knickrehm Page 2 June 14, 2004 7. You will be required to pay the normal reimbursement fee of $3,240 or have the value of the approach appraised and pay the increased property value to the Department. 8. You will be required to move and reset the concrete guard rail that extends from the south end of the bridge to the edge of the approach: 9. We originally required you to "defend and indemnify" ITD against legal claims arising from your changing the use of a shared approach without the consent of the other owner. If you are willing to install the new approach entirely on Westover property, however, then we would withdraw this condition. Lastly, you said you are not interested in selling the parcel to ITD. Nevertheless, we would like to explore this possibility further before ruling it out t entirely. This option may have benefits to the traveling public as well as your clients. We are currently ordering an appraisal, and will contact you for further discussion when it is finished. Again, thank you for your consideration of our proposals. If you have any further questions, please call District Engineer Pamela Lowe at 334-8300. 1MMY D. ROSS, P.E. Chief Engineer JDR/pw TRANSPORTATION DEPARTMENT P.O. BOX 7129 • BOISE, ID • 83 70 7-1 129 • (208) 334-8000 March 17, 2004 Mr. Don Knickrehm, Manager Nagy Springs, L.L.C. 1403 Mace Road Eagle, ID 83616 RE: Encroachment Application # 03-04-077, WESTOVER SUBDIVISION Dear Mr. Knickrehm: The above mentioned permit has been reviewed by Ada County Highway District, District Three Traffic and Headquarters' Traffic staff. Based upon the recommendations from the District, HQ Traffic and ACHD this permit is APPROVED to upgrade the existing JOINT -USE single family residential approach to one full use SUBDIVISION approach at Sta. 316+08 Lt, on SH -55 (Eagle Road) under the following conditions: 1. The approach shall remain at its current location of Station 316+08Lt. This provides the least amount of impact to the safety and operation of the highway system as stated in the right-of-way documents at the time the approach was originally allowed under ITD Project No. NHP -3271(037). 2. Your parcel shall not be allowed any additional points of access Eagle Road (SH -55) beyond the existing approach at Sta. 316+08Lt. 3. The subdivision approach shall be recorded as INTERIM. Approved points of interim access shall be required to meet all safety, operational and design criteria that would be required of an approved permanent point of access on the State Highway System. When granted, interim access will end in the future when the property is provided with an access to a public road system other than the main highway, such as a frontage road, backage road, county road or city street. This will require your existing highway connection at Station 316+08Lt. to be removed at that time. 4. The approach shall be restricted to RIGHT-IN/RIGHT-OUT ONLY during the INTERIM period. This will be a permanent restriction, recorded in deed until such time that the interim access restriction and the approach is removed through the provision of alternate access. The right-in/right-out access restriction will be enforced through the installation of a median barrier constructed by the Idaho Transportation Department. No physical restriction shall be required to be constructed by the applicant within the throat of the actual approach. 5. You will be required to install a 196' long, 12 -foot wide deceleration lane for southbound traffic entering the approach. The deceleration lane shall be a minimum of 196' to allow - An Equal Opportunity Employer - STATE OF IDAHO - TRANSPORTATION DEPARTMENT for the start of the deceleration lane at Sta. 318+24Lt. which is 10' from the south end of the bridge deck. This will allow for the deceleration lane to end at Sta. 316+28Lt. The deceleration lane must have a minimum of 8 to 1 entrance taper for a distance of 96' and 100' of combined deceleration and storage length. Construction of the deceleration lane must meet all current ITD construction standards. 6. The applicant shall donate a twelve foot width of frontage adjacent to the deceleration lane and approach as compensation for the existing highway right-of-way used to construct the deceleration lane. 7. The normal reimbursement fee of $3250 for a subdivision approach which is required in areas of purchased access by the ITD Administrative Policy, A-03-03 Appraisals, will be waived in exchange for the approach being recorded as INTERIM access. 8. There is existing concrete guardrail that extends from the south end of the bridge to the edge of the approach. The applicant shall be responsible for relocating and replacing the guardrail to meet the most current Federal Highway Administration (FHWA) guardrail standards. Upgrade of the guardrail is required by the FHWA whenever changes are made to existing installations that met the NCHRP-230 crash standards when installed, but no longer meet the more current NCHRP-350 crash standards which are required for all new installations. 9. The Department must be provided with a legally binding document signed by the permittee stating that the permittee, and his successors and assigns, agree to defend and indemnify the Department, its employees and agents, regardless of outcome, from the expense of and against all suits, actions, claims, or costs, expenses and attorney fees that may be incurred based upon any claim (1) that the permittee is not the fee owner of the full width of the approach as it abuts the State Right of Way; (2) that at the time of establishing the original approach it was a joint use approach with a neighboring property and the neighboring property owner has not given his consent to a change in use in the approach; (3) that the neighboring property suffers any type of diminished access or market value to his property and (4) that the Department is allowing a trespass of any type by issuing this permit. If there are any questions or clarification needed in regard to this letter please call Steve Holland @ 334-8565. S cerely, Grearagan, P.E. Assi nt Chief En GL:sch w/attachments eer, Operations