City staff, commissioner disagree on Fox Farm easement issue

Last week, the City Commission voted to allow the proposed Town Pump hotel at the Fox Farm intersection to proceed without requiring an easement for road access.

Commissioner Bill Bronson said during the meeting that he had discovered through his research that the road in question had previously been a city road that was vacated in 1961. When the city vacated the road, it reserved in perpetuity an easement.

Bronson interpreted that to mean the road access for vehicles already existed.

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City legal and planning staff interpret that ordinance to apply only to public utilities, which is specifically mentioned in the 1961 ordinance.

The 1961 ruling also writes that no permanent structure can be constructed to block that easement. But, that wouldn’t stop the owners of the Chinese restaurant, who wouldn’t grant an easement to Town Pump, or future owners of the property from installing a fence, parking blocks or some other obstacle that would block vehicles but could be moved for the purposes of installing public utilities, according to City Attorney Sara Sexe.

Bronson also said he believes that a prescriptive easement exists since the public has been using the road in front of the Chinese restaurant for more than five years with no objection. Staff has indicated that is a stronger argument, but that the city doesn’t have the authority to declare a public prescriptive easement for the benefit of a private development.

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If the easement were challenged, a district court judge would be the authority to make a determination on whether a prescriptive easement exists.

Bronson said during the Dec. 5 meeting that he didn’t know if staff knew about the 1961 ordinance.

Staff did know about the ordinance and alerted the developers to the easement in 2016.

City planning staff wrote to the Town Pump team in July 2016 stating that the Fox Farm Dairy Queen was pursing an aggregation of their portion of the vacated road and the Holiday and Lucky Lil’s had already aggregated their portion. Staff suggested that Town Pump research whether they own a portion of that old road and if they do, it could be used in the project as a shared access with Dahlquist. But, staff wrote, a shared access and maintenance agreement would be required.

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During the Dec. 12 Planning Advisory Board meeting, board member Michael Wedekind told his fellow board members about Bronson’s interpretation and that it gave the developers the needed access.

Assistant City Attorney Joe Cik said that Bronson’s opinion is not the opinion of the city.

“My legal opinion differs from Commissioner Bronson on that issue,” Cik said.

Wedekind also told fellow planning board members that no one opposed to removal of the easement requirement during the Dec. 5 meeting. Several people spoke against the action during the meeting and at least one person spoke in opposition to the action during the planning board’s meeting on the issue in October.

Staff has continued to voice concern about safety at the Fox Farm intersection and while the city and the developer agree that the hotel will have a minimal impact on traffic, city staff has encouraged the easement to ensure additional access to the property and to provide another legal access point as pressure on the intersection continues to grow.

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Town Pump argued that since the hotel would have minimal traffic impact, that the easement was unnecessary for their project. Town Pump has agreed to make other traffic improvements at the intersection, in consultation with the city and the Montana Department of Transportation.