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HomeMy WebLinkAboutRABBIT CREEK VIEW & HEIGHTS General Information DATE: TO: THRU: FROM: SUBJECT: ;V[unicipality of Anchorage October 15, 1985 MEMORANDUM ['ONFIDENTIAL CLIENT CO~MUNICATION Robbie Robinson, Manager, Environmental Health Division Patty Ginsburg, Special Assistant to the Director Ronald L. Baird, Assistant Municipal Attorney Opinion request of July 25, 1985 Re: Rabbit Creek Heights/View Subdivision Your request for opinion of the above-referenced date directed to Mike Marsh has been referred to me as the Assistant Municipal Attorney dealing with land matters. The issue which you raise is which of several possible potential surveys of these subdivisions should be used for purposes of issuing on-site sewer and well permits. It is my understanding that plats for these subdivisions were recorded in 1970. Both plats contain significant survey errors to the extent that conflicting descriptions can be given for the same lot based on either the monuments in place or the infor- mation on the survey plat and that described lot areas overlap. It is clear that accurate descriptions of the physical location of well and septic systems can be reasonably required in connec- tion with your permitting activities pursuant to AMC 15.55 and 15.65. Correct location of water wells and septic systems is probably critical to the safe and efficient operation of well and septic systems which is one goal of these two sections. Since we now know that the survey information in the two described sub- divisions is inaccurate, the Municipality can lawfully insist upon an accurate survey before granting permits for water wells or septic systems under these two sections of the Municipal Code. I have been unable to find any provision in ordinance or statute creating a public duty of the Municipality to survey private lands. The platting regulations appear to contemplate that any survey work done would be at the expense and direction of the subdivider. See AMC 21.75 and 21.80. While it might be argued that the Municipality incurred liability by negligently approving erroneous plats for these two subdivisions, the statute of limi- tations for any claims arising from such negligence is two years and has probably long since run. See A.S. ~ 09.10.070. Even if the statue had not run, a Municipally sponsored and financed sur- vey would not necessari.ly eliminate the Municipality's exposure to claims arising from the erroneous approval of the plats. Any new survey conducted by the Municipality or any private party will not resolve the potentially conflicting property rights of homeowners within these subdivisions. Many of these homeowners October 15, 1985 Page 2 undoubtedly ~purchased property described by reference to.~ the erroneous surveys and have owned the property pursuant to deeds utilizing these surveys for more than seven years. There is a high probability,~ under such circumstances, that rights to the real property have vested by virtue of adverse possession. .See A.S. § 09.25.050;. Frankly, given the circumstances you have described, the potential of conflicting claims among property owners within the subdivisions creates a real mess. The solutions for the homeowners will undoubtedly involve signi- · ficant expense to them. First, if all property owners within the subdivision, together with any holders of liens or encumbrances of any of the lots within, property and the Municipality of Anchorage can all consent to a replat of the subdivision, then, that replat would be binding on all parties, and would certainly be a sound basis for_.the.issue of ~well and septic permits. The difficulty with this procedure is that it would require the. con- sent and cooperation of all property and lien holders. Second, the property ~owners 'could individually or collectively bring actions in the .Superior Court to quiet title to their individual lots, A.S. § 09.45.010 or actiOns to establish boundaries, A.S. ~ 09.45-.020 ....or:~ some rcombination thereof.-.--,_A- judicial-deter- mination....~ntered._at _the conclusion of ~such an action would finally and forever-resolve issues as to lot boundaries. Third, some combination of a replat and law suit might be possible if there are "hold-outs" from participating in a replat process. Such hold-outs could be made defendants in a quiet title action brought by the other homeowners. In summary, I believe you may lawfully insist on an accurate sur- .vey. as .a condition~to issuance of well and septic permits pur- suant to the above-referenced sections of the Anchorage Municipal Code. ~Given the known inaccuracies of the survey on which_the existing subdivisions are based, and the grossness of errors, you need not accept as-built surveys which are based upon either the lot corners set in the field or the filed survey information. Finally, a simple_resurvey of the subdivisions will not resolve questions' regarding the location of the lots which will be binding on-lparties and therefore will not be a more accurate basis upon which to issue well and septic permits. The choice of remedy of the land owner as to how to resolve this issue is something for them to pursue among themselves with the advice of a"common~or -individual-t~gal~counsel. . ............... RLB:slk CA,,"' TO: July 25, 1985 !4ike :.~rsh, Municipal Attorney Robert W. Robinson, Division Manager, Environmental Health Jewel Jones, Director, Department of Health and Human Services Cn site sewer/well permits for Rabbit Creek Heights/View Subdivision A~Trzxi-_ateiy two years ago this department became aware of certain inconsis- tencies in su~:eys for the above subdivisions. In some cases the platted su~;ey varied from the actual su~,rey as much as 40 to 50 feet. [¢nen this di5zreDanzy was discovered, I i~ediately began requiring a new as-built survey crier to granting an on site sewDr/well permit. Permits were then written for %ke let area encompassed in the new survey. Recent!': we discussed this practice with the Municipal Surveyor, Ed Tucker. As izu can see fron the attached copy of his memo, he disagrees with our approach. i wcu!d appreciate a legal opinion on our responsibilities in this regard and a recz---endation of what survey should be used. If existing corners can be found it xzuld be no problem to design a system within said boundaries. However, in c~e~ ~here no corner markers can ba found, which survey is to be used? are suspending issuance of permits in these subdivisions until a legal opinion ?_z~ert iq. ?,~binscn L:-;: =i-~ lianager .._a_tn and Human Se~ices //;:, Attacked: i DAT~: HUNZCZ?ALiTY OF ANCHORAGE M E MOP~NDUM ¢¢UN:CPALh-Y Or" ANCrlORAG~. D~PT. OF iq~-nkTH & EN%'[RONMFNTAL PROTECTION .JUN 6 RECE .} ED June 6, I~: n..nv~'-~cnmentai Engineering Manager~ Robert Wo Robinson Ed T,_cher, LoSo N/~3BiT CP. EE:'< ViE>~/f-iE!GHTS.SUBD!ViSIONS Per~ ~_ meetin~ .¢~:= Xa'?_ 3, 1'985 at your office on subject sub- d-:_-'isions, and '-~- .... ~= =-.,¢ ~ .......... ~,~.~u~¢n~ acceptable plot plans or as- built =-,r .... _ ...... n= following: ~_ ]=yo, T .~-- '-' ~ i a~ =~ .... ~ you c'~ i and our resuective agencies may refuse to hire or contract with Hr. William E. Johnson, until his ]icense ~s ....... ~:~ or revoked~ we probably cannot refuse to =~-3 .... ==- on work performed for private citizens We ~ou]d scrutin~ ze it c!oselv~ however. This is probably a xpct point, as i sericus!y doubt that he will risk showing up in these carts voiuntari!y~ ~-~,- ~ ~ .... 7~=~ '-= '~ '- ..... nt of subject subdivisions is a~ .... ~ ~'=~.~d ~ can be no certainty as to the location of the errors or '"~'.-hm'' ' ~' ~,..= .... tn~y fall in one area or are distri- buted n ........ ~ ~ ]'' throughout Therefore~ ties to peri- -- '~- when in con~!ict with corners found on .... ~ '~'~o~ lots merely add to the confusion~ as one r. ust deczce wnz¢~ -~4~ .:-~-~ boundary to use Each (north, .... ~h ~=t, c? west) boundary may place the location in a ex~ st~ng orig~ hal ~=~_~-~'~ new =~m-- ' conflicting _Dlace~ When " - corners c=~.._.. ~.=~ _'Sound, 7_ would recom_mend that they be accepted ' ~ =les the leg'al tenant that the buyer bought and the seller sold in good faith~ based upon those ....... s~ , ot_~ S~a~ute Section 09~25~040 (i) through ~ 6) s.De~ ~ s ~ .... the order of importance and "rules for cons~-~,,~ t%~ descriptive part of a conveyance of real pro- petty when the construction is doubtful and there are no other surf~= circumstances to dete~ine it~" Basical!y~ n~ (found corners) are Daramount~ H~ ..... l!y~ ............ ~ rather than confuse the continuing saga cf the infamous ma22zt Cr~k Heights/View Subdivisions, Er/cjk l/ew/~t38 cc: H'_:nicioa! Engineer October 21, 1983 TO: Whom It May Concern Subject: Rabbit Creek View Subdivision; Rabbit Creek Heights Subdivision - Lot Survey Requirements As discussed in more detailed in our letter dated April 21, 1983(copy attached), there are known discrepancies in the original surveys of the Rabbit Creek Iteights and Rabbit Creek View Subdivision. Upon discovering these discrepancies, this office discontinued the issuance of on-site sewer and water permits and health authority approval certificates until such time that there is an acceptable assurance that configuration/ corners/boundaries of a candidate lot are in agreement with an approved and recorded subdivision plat. In order to satisfy the above requirement, this office will issue a permit or certificate upon receipt of a certified survey conducted by a registered surveyor(other than Mr. William Johnson) with the survey taken from and closed on a known and established permanent monument. Any reference point established by Mr. Johnson, or based upon a reference point established by Mr. Johnson, will not be an accepted.,reference monument. If there are any further questions, please call this office at 264-4720. Sincerely, Robert W. Robinson Division Manager Environmental Health Division RWR/ljw attachment /',.t.~CI fO~,/,(.~E. /"~l /,.SKA 9%02-06.50 ,907) ?.~ .il Ap~-il 21, 1983 i",. Lee Browninq, Municipa.! Engineer Public Works .... ~ .,~=__ng Division 350.1 East Tudor Read ...... ~e_~ge, AAaska 99 07 £ubject: Rabbit C~c~.~.. Hezgh~s Subdivision, and; Rabbit Creek Vie'+; Subdivisien I t '../as' recently brougi'.t to our attention ti~at many of the lot iknes, lot corners, streets, right-el-ways, ~etc., as shown en the subdivisien plats for the Rabbit Creek Heights Subdivision and Rabbit Creek View Subdivision may be incorrect. In an attempt to confirm this informat'ion, this office conkacted the Municipal Surveyor, Mr. Jack Stanley, and Hr. Jerry Weaver of the Planning and Zoning Department. Mr. Stanley confirmed that soveral survey closure checks made by his office, on those subdivisions, did not close satisfactory. Mr. Stanley further indicated that several other subdi'visions surveyed by t]~c. same registered surveyor(Mr. William Johnson, whose stamp ~14825 appears on the subdivision plats) are also in error. ~':umerous other ~rofessiona! surveyors have refused to conduct as-built surveys in these areas, due to the discrepancies in the ouigina! surveys and the related subdivision plats. According to Hr. Weaver, ~%r. Johnson received a registered letter but did not respond, and the matter has since been turned over to the Municipal attorney. In view of the confirmed fact that there are many known discrepancies on the lot lines, lot corners, streets, right-of- ways, etc., in the Rabbit Creek Heights Subdivision and Rabbit Creek View Subdivision; this department will discontinue the issuance of on-site water and sewer permits or health authority approvals 'for bank financing in both subdivisions. We will DATE: TO: FROM: SUBJECT: A4unicipality ot Anchorage MEMORANDUM September 20, 1985 File RaBbit Creek Drainage Improvement Project ~"'f~-'~J On September 19, 1985 Mike Dickason and I visited Rabbit Creek Heights to moni- tor water quality of Rabbit Creek and to assess effectiveness of straw bale/silt fences installed by Department of Public Works for sediment control. Site 1 just above intersection of George Court and Nickleen Street where Rabbit Creek crosses Nickleen Street has an improperly installed straw bale/silt fence (see fig? I, II). The straw bales in this case don't effectively block the flow and much of it runs around side of bale, thereby defeating purpose of the bales. Water samples were taken at this site on Rabbit Creek above the road, below the road, and in the small drainage ditch that flows around straw bale in figs. I, II. Site 2, located just above the intersection of Francesca Drive and Carl Street where Rabbit Creek intersects Carl Street was sampled above the road and above the drainage ditch running alongside road and draining into creek. Another set of samples was also taken well below road. Heavy sediment loads were visually observed in creek and especially heavy sediment loads were observed in the 2 drainage ditches running down both sides of Carl Street and emptying into Rabbit Creek. No straw bales/silt fences were observed in place on either of there ditches at their junction to Rabbit Creek. According to the plat map provided by Department of Public Works these ditches were supposed to have straw bales/silt fences installed in them. None were observed. Ail water samples will be tested for suspended sediment, fecal coliform, and turbidity. Results will be reported as soon as analysis is completed by Alaska Testlabs. ML/dEH5 cc: Keith Bandt SECTION LINE 19A 19B 43,615 S.F o CERTIFICATE VICINITY MAP SCALE; I"= I MILE OF OWNERSHIP & DEDICATION NOTARY'S Subsc~bed o~d sworn before me tl~ SURVEYOR'S CERTIFICATE and lot cccners hove been sef end staked, cr if final completion is assured by s~bdlvlsto¢ agreemer~;, lbey will be set as specified · ":':T:::, The __ ~her~by acc¢~ for public uses and for public purposes ~e rea} Croperfy ~dicated on this pl~f i,cluding but ~of/Jinfrr~d to ti~'e eas~Cs rights--of--way, ofleys, roodw(~s/ fber~uCf,r~, palrks shown hereon / City orBorou¢l~ Clerk ~ ~' Mor~ger or Borough MayoTr DTmO 9 PEAT APPROVAL Pl~t ~pp~v~:i by the Borough F~tti~ Author~j "J~M~,--,,~ ;' ~d Official PLAT OF RABBIT CREEK VIEW SUBDIVISION, LOTS 19A AND 19B, BLOCK I~ A SUBDIVISION OF LOT icj., BLOCK I, RABBIT GREEK V4EW SUBDIVISION INTO LOTS 19A AND 19 B LOCATED IN:NEI/4, SEC 1, T ItN, R3W, S M ALASKA PLANNERS, ENGINEERS 8~SURVEYORS 7357 OLD SEWARD HIGHWAY 344-I~10 IN THE SUPERIOR COURT FOR THE STATE OF ALASIC& THIRD JUDICIAL DISTRICT AT ANCHORAGE MUNCLPALITY OF ANCHORAGE on behalf of aH property owners within RABBIT CREEK VIEW SUBDMSION and RABBIT CREEK HEIGHTS S~DMSION SPECIAL SURVEY ASSESSMENT DISTRICT 1V96, Plaintiffs, VS. RABBIT CREEK VIEW SUBDMSION according to Plats No. 70-133, 73-161, and 92-24, and RABBIT CREEK HEIGHTS SUBDMSION according to PIat No. 70-381, and all persons claiming any interest in or Hen upon the real property herein described or any part of it, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 3AN-98-I1718 Civil ORDER Al1 pending motions for extension of time to answer the complaint are GRANTED. Those answers are due August 3, 1999. All non-conforming answers (hand-written) are accepted. Plaintiffs counseI shah file a service status report on August 3, 1999. DATED at Anchorage, Alask~ of June, ! 999. I certlf~ that on lune ~P; 1999 a copy of tile above was mailed to each of t~ follo~ng at t~r a~resse~ of record: G. Se~a~