City Commissioners approved a $149,721 change order for the south storm drain project during their June 3 meeting, bringing the total cost to $1,731,416.80.
The change is needed, according to city staff, to maintain progress on the south Great Falls storm drain project, and includes payment to the contractor for standby costs incurred while work was suspended, and the creation of a temporary access route of about 1,400 feet across undeveloped land and natural drainage paths to enable equipment access to the easement where the storm drain will be installed.
City approves contract for southern storm drain infrastructure project [2024]
The south Great Falls storm drainage master plan was completed in April 2012 and identified key stormwater improvements, such as mains, detention ponds, and outfalls, for the area’s north, middle and south basins.
Eight projects have been completed so far, with five remaining, including this one, to address chronic flooding concerns raised by local residents.
Currently, stormwater from 22nd Avenue South enters a 30-inch main in 10th Street South, flows overland across a school district parcel before entering a 48-inch main in 6th Street South that ultimately discharges into the Missouri River, according to the city.
Storm drain improvement project underway on south side of Great Falls [2019]
The project is installing 36-inch to 48-inch storm drain pipes, manholes and inlets to close infrastructure gaps and reduce overland flooding, according to city staff.
Construction activities are within easements outside the city limits and public rights-of-way, but one easement crosses a privately owned parcel and the owner is disputing the city’s legal and physical access rights, “despite the existence of a recorded easement,” according to staff.
City legal staff has reviewed the isuse and maintains that the city’s access rights remain valid, but to avoid further delays, staff proposed a temporary alternate access route.
$3.28 million contract considered for storm drain improvements in south Great Falls [2018]
“The property owner has made several efforts to obstruct the project, including blocking the easement with parked vehicles, preventing the contractor from performing the work. Costs associated with circumventing this property will be documented and pursued for recovery from the property owner,” according to city staff.
During the June 3 meeting, Mayor Cory Reeves said he was irritated by this issue and asked if the city had taken the matter to court.
David Dennis, city attorney, said that the city had filed in district court asking a judge to interpret the easement, but there’s no guarantee the court will side with the city or award damages.
If commissioners didn’t approve the contract change, staff said it could otherwise delay the project, potentially incurring additional standby costs, or terminate the contract, incurring more expenses and allowing continued overland stormwater flow across school property.
In April, the city filed a civil suit against Kyle Harlan and William and Rose Ferderer, who own properties at 2801 6th St. S. and 2901 6th St. S. arguing that it has “valid and enforceable general utility easements for sanitary sewer, water mains and storm drains over a portion of their properties.
The easement was a 1984 express grant from Jess Pritchard to the city for “a perpetual right-of-way and easement for the construction, maintenance, enlarging, reducing or removal of general utility lines…”, “in, under, over, along, through, and across” the property in question.
The properties were since sold the Harlan and Ferderers, but the easements remain with the properties and specifically states “[t]his grant of easement is to be for sanitary sewers, water mains, and storm drains.”
With the easement, the city constructed and maintains a sewer line within the easement and is now installing a storm drain pipe adjacent to that line to connect existing storm drain pipe at 10th Street South near 24th Avenue South to existing pipe at 6th Street South near 30th Avenue South to direct runoff from school district property and mitigate potential flooding in the area, according to the city’s complaint.
“Harlan has interfered with the city’s use of the easement by denying access to, and placing obstructions in, the Property to install a storm drain pipe, thereby unlawfully restricting city’s rights,” according to court documents.
The Federers have not denied access nor interfered with the city’s rights under the easement, according to the city, but as they own property directly affected by the easement, they are necessary parties to the matter.
The city is asking a judge to declare its easement valid and enforceable, that it has continued and unobstructed use of the easement, can construct and maintain or remove utilities within the easement.
The city is also seeking a permanent injunction to stop Harlan from interfering with the city’s use of the easement and to remove any and all obstructions and that the city be awarded relief, including but not limited to attorney’s fees and costs incurred by the city due to Harlan’s action, according to court documents.
In a May response from Harlan’s attorney, he argues that the 1984 easement is specific to a sewer line and that future use of the easement requires written consent of the owner.
In Harlan’s response, he states that the water flows freely over the school property to a water detention facility he built on the Ferderers property and that he has not interfered with the city’s access to the sewer line.
In March 2024, a surveyor for the city’s project requested access, which Harlan granted for 15 days, according to his response, and that the city did not further contact him to discuss the project or easement.
Harlan argues that the city is unlawfully accessing his property and is is not prohibiting the city’s access but is awaiting the city’s obligation to request and secure his express written permission for further use and access of the easement other than the sewer line.
