Document Whitefish_doc_c9d782897a

1 Bike/Pedestrian Trail Connectivity Along the Whitefish River A Report to the Park Board and Whitefish City Council Prepared by the Bicycle and Pedestrian Path Advisory Committee September 24, 2021 ---PAGE BREAK--- 2 Bike/Pedestrian Trail Connectivity Along Whitefish River Introduction: This report is submitted by the City of Whitefish (“the City”) Bicycle and Pedestrian Path Advisory Committee (the “Bike/Ped Committee” or just “Committee”). The City council created the committee by ordinance in 2002 and tasked it with providing advice and recommendations to the City regarding the development of pedestrian and bicycle trails pursuant to the City’s current masterplan. The primary artery in the masterplan trail network is the River Trail. The River Trail is a planned and partially completed 3.3-mile-long main trunk line that runs beside the Whitefish River and extends from City Beach to Highway 40. Many planned sections of the River Trail are in areas that are largely developed with homes and businesses. In many cases, it is not an easy task to route the River Trail between the river and existing structures. It requires imagination, flexibility and perseverance, but similar projects have been completed in hundreds of cities throughout the country. Roughly 25 years of hard work by many community members, City staff, and other entities, along with millions of dollars, have gone into studying, developing and constructing significant portions of this trail. After analysis spanning more than a decade, the committee has prepared this report with the intent of finally taking the necessary steps to close a major gap in the City’s bike/ped system. One key section of the River Trail that has not yet been completed is the Riverbend section (see description below). Completion of the River Trail and completion of the Riverbend section were identified as the top priorities for the Whitefish bike/ped network in the 2017 Connect Whitefish Master Plan precisely because it would provide a safe, accessible connection between two extensive, existing sections at the core of the River Trail system. The Bicycle and Pedestrian Path Advisory Committee recommends completion of the Riverbend section and is requesting the City now move forward. Description of the Riverbend Section The Riverbend section is a 563-foot stretch of riverbank north of Veterans Bridge along the east bank of the Whitefish River. The section spans two property parcels. The Riverbend Condominium parcel contains 370 feet of river frontage and the lot to the north contains 193 feet of frontage. Construction on both parcels is necessary to create a continuous River Trail in the area. ---PAGE BREAK--- 3 The northern parcel allows for construction of a trail with ample setback from the river. The owner of the northern parcel supports construction of the trail, provided that the trail is completed on the southern property. The southern property is owned by the Riverbend Condominium Association (“the HOA”). The HOA is opposing the construction of a path between the condominium buildings and the river, even though the City owns a trail easement along and across their property. Also, due to the fact that the condominiums were constructed relatively close to the river, a pathway along the river in that location requires special permitting and possibly special construction requirements. Given the situation described above, this report is focused on the southern parcel of the Riverbend Section. Together, the two sections of trail will complete the heart of Whitefish’s bike and pedestrian system, providing residents and visitors with safe and accessible ways of navigating the town, while reducing traffic loads on congested roads and physically removing cyclists and pedestrians from the risk of crossing Highway 93 and the risk of moving through the City alongside cars, trucks, and commercial vehicles. Survey detail of Riverbend property. (This survey shows only the Riverbend condo property and not the parcel to the north. The trail route shown is from an earlier design proposal. A new routing is to be determined.) ---PAGE BREAK--- 4 The Connect Whitefish Bicycle & Pedestrian Master Plan commissioned by the City and published in January 2017 includes three Tiers of implementation priority. The Whitefish River Trail—Kay Beller Park to BSNF Loop (C1), called the “backbone of the bike/ped network”—is included in Tier 1 (0-5 years), high priority in the network plan. The rationale and objectives of the recommendation presented in this report for the Riverbend section are consistent with the Master Plan. While Riverbend’s HOA has put forth objections to the location of the trail between the condominiums and the river (see Appendices 1 and the legal easement remains intact and the Committee is of the opinion that this route should continue to be pursued. An alternative route through the HOA’s property, a “switchback” route connecting the Veteran’s bridge underpass to Miles Ave., has been proposed, but there are several drawbacks to this option, including construction difficulties, inconvenience to users, lack of disability access, and the use of Miles Ave. that this alternative would require. These issues are detailed in Appendix 7. Google Earth overhead image of Veterans Bridge and the Riverbend condos just north of the bridge and on the east side of the river. ---PAGE BREAK--- 5 Concerns regarding river disturbance during path construction have been brought up. The Committee has done extensive research on similar projects in Whitefish as well as projects across the state that received FWP approval. Appendices 4 and 5 detail these projects, their minimal impact compared with public benefits, and the clear ability of river recovery, as with the years-long BNSF contamination clean-up. The Committee has done extensive research on FWP-approved paths throughout Montana, and believes that several design options are available, including but not limited to elevating sections of a path. Recommendation The Committee is recommending that the City immediately pursue the completion of the River Trail by 1) asserting the validity of its existing easement between the Riverbend Condominiums and the river; 2) commissioning or creating a design for the trail from Veteran’s Bridge to the BNSF Loop with community input, including input from those representing users with mobility challenges; and 3) amending its application for a permit from FWP based on the new proposed design and using the information in this report pertaining to FWP approvals in similar situations as support for the application. This document explains the Committee’s reasoning behind its recommendation and provides information supporting its implementation. Rationale for Building the Riverbend Section of Trail 1. PUBLIC SAFETY: Crossing Highway 93 is unsafe According to a 2019 count from MDT, this section of highway averaged 10,508 vehicles per day. It is very likely that the vehicle count is substantially higher today and will remain so in the future. In addition, the crossing is located at a point where drivers are exiting or entering town, leading to increased speeds and lower expectations of non-automobile users being on the road. Fortunately, the City had the foresight to work with MDT when planning the reconstruction of Veteran’s Bridge. The bike/ped underpass built by MDT at state expense provides an extremely safe crossing of Highway 93 in that location. However, because the trail does not come from or continue along the river to the north of the underpass, this safe River path looking toward MDT underpass from Kay Beller Park toward Veterans Bridge. ---PAGE BREAK--- 6 crossing is underutilized. When approaching Highway 93 at this location, River Trail users wishing to continue their walk/ride must either cross Highway 93 at grade, or use the underpass and stairway. Using the underpass and stairway is unrealistic for cyclists (particularly children and families), inconvenient for walkers, and impossible for people with certain disabilities or other mobility issues. As a result, most users choose to cross at grade. Compared to using the underpass, a crossing at grade is inherently and substantially less safe. That is especially true at this location, which is seeing increasingly higher levels of all types of traffic with drivers that are often not familiar with the surroundings. Highway 93 is a state highway, and as such, all decisions about the grade crossing are made by MDT. At the City’s request, MDT striped the crossing in September 2020. The striping was completely worn off by March 2021 and the crossing remained essentially unmarked for the summer. The City has also asked MDT for signage at this location and MDT is currently evaluating the intersection to see if it warrants additional safety improvements. MDT built the Highway 93 underpass at Veteran’s Bridge at the City’s request and at the state’s expense with a written agreement with the City providing that the City would later extend the River Trail via the underpass utilizing the easement for a riverfront trail specifically in that location. Regardless of the method, a striped or controlled crossing is still substantially less safe than using an underpass. Marking or controlling a crosswalk does not force drivers to stop. It is impossible for a person—especially a child—expecting to use a crosswalk to know whether or not an oncoming car contains a driver who is not paying attention to the entire ecosystem of the road and its users, such as happens with smartphone use while driving. This is in addition to the usual risks that people wishing to cross a highway face when sharing the road with heavily congested traffic. The issue of safety at this crossing could not be more serious. The rate of pedestrian and cyclist fatalities and injuries in the U.S. has been increasing for several years. Just two years ago a teenager was hit by a driver at a marked pedestrian crossing on Baker Ave., prompting approval from the state for installation of a lighted pedestrian crossing button. It is only a matter of time before someone is hurt, or worse, in a similar fashion at the location where Miles Ave. intersects Highway 93. Each year, according to the Federal Highway Administration, pedestrian and bicyclist fatalities comprise about 16 percent of all traffic fatalities with approximately 5,000 pedestrian deaths and 800 bicyclist deaths. Another 65,000 pedestrians and 48,000 bicyclists are injured in roadway crashes annually. These numbers have been rising in recent years. Pedestrian and bicyclist safety improvements depend on an integrated approach that involves the 4 E’s: Engineering, Enforcement, Education, and Emergency Services. “Emergency Services” should be the absolute last resort. The first is to engineer infrastructure that makes injury and death much less likely. The bottom line is that one of the top recommendations in the 2017 Connect Whitefish Master Plan is the need for safer road crossings. While other crossings in town with striped crosswalks and pedestrian buttons also expose pedestrians and cyclists to inattentive drivers, the Miles Ave./Veterans Bridge crossing has another option via the existing underpass that is substantially safer than an at-grade crossing. ---PAGE BREAK--- 7 2. PUBLIC SAFETY: Using Miles Ave. is uniquely unsafe As mentioned above, users of the River Trail have a choice, albeit possibly a difficult one, when they approach Highway 93 at Veterans Bridge. Users could make the extra effort to use the underpass or cross at grade, but without a trail along the river north of the bridge, users can’t avoid use of Miles Ave. Miles Ave. is extremely steep, with a grade of about 9-10% (as measured by the committee), the sidewalk (only on the east side) is narrow, and there is substantial traffic with poor sightlines including the entrance/exit for the Riverbend condos. A cyclist, especially a child, riding south and downhill on Miles Ave. toward Highway 93 could easily have difficulty stopping and accidentally roll into Highway 93 traffic—or cars entering the Riverbend condos via the driveway immediately adjacent to Highway 93. Going north and uphill on Miles, most cyclists move onto the road because the sidewalk is too narrow to maneuver easily. Not only does this force users into a road where drivers don’t expect them, it exposes them to drivers turning from Highway 93 onto Miles Ave., and then accelerating quickly due to the steep grade. Pedestrians routed onto Miles Ave. from both directions must share the steep, narrow sidewalk and cross two commercial driveways and two residential driveways between Highway 93 and 1st St and then deal with the undefined intersection of Miles, Railway, and the BNSF service road. All of this presents even greater challenges to users with disabilities. Miles Ave. is also the main route to and from the BNSF maintenance facility, with its unique and often large vehicles. As the Railway District continues to develop high-density residential properties (including those for short-term rentals) as well as retail, Miles Ave. will experience increased neighborhood traffic. Furthermore, Miles Ave. itself will become increasingly busy as a bypass to congestion in the downtown area. Southbound drivers crossing the viaduct and wishing to access the west side of town will increasingly choose to drive through the Railway District rather than wait at the intersection of Highway 93 and Baker Ave. In other words, the option of simply using a crosswalk and Miles Ave. to “connect” the trail system will become even less safe over time. In short, Miles Ave. as it is currently configured is not a suitable option for purposely and permanently routing bike and pedestrian traffic. Further Safety considerations are addressed in Appendix 3. 3. ACCESSIBILTY: The trail system should be for all The proposed Miles Ave. route will effectively exclude people with mobility issues from having full access to the trail system. Advocates for these members of our community suggest that Miles Ave. is unnavigable for people with disability or mobility issues. It is too steep for wheelchair users, and even a powered wheelchair would have trouble ---PAGE BREAK--- 8 accessing the sidewalk. The City’s River Trail system is not meant to exclude users with disabilities. Unless the Riverbend section is built, with input from people in the disability community, that is exactly what will continue to happen. The same issue extends to using the stairway on the north side of Veteran’s Bridge. The stairway is the only option for entering or exiting the underpass on the north side, rendering the underpass unusable for River Trail users with mobility issues and forcing them to cross Highway 93 at grade. (It should also be noted that cyclists, especially children and families have difficulty with the stairway.) 4. PRECEDENT: Future MDT support of bike/ped trail projects When MDT undertook the replacement of Veteran’s Bridge, the City asked that a bike/ped underpass be constructed under the east end of the bridge. The design of the River Trail passing under Highway 93 at two locations relied upon MDT’s future plans to rebuild both highway bridges. At its November 6, 2000, meeting the Whitefish City Council unanimously voted to direct City staff to request that MDT design both future bridges to include a passage under the highway for the River Trail. MDT agreed, and the design of the Highway 93 West Bridge included a 10-foot-wide concrete path under the bridge. The recently completed draft Highway 93 South Corridor Plan envisions a replacement of the culvert bridge where Highway 93 crosses the Whitefish River between 9th and 13th Streets. Under this plan, the reconstruction would include bike/ped pathways under a bridge that will span the river. While these new trails would be an exciting addition to the Whitefish network, they are clearly more useful if they are part of a continuous River Trail system and the case for including these trails in the reconstruction is much stronger. Failure to fully utilize what is already in place at Veteran’s Bridge, weakens the case for MDT support of more trail work in their projects within Whitefish. 5. PRECEDENT: The City should honor past agreements When the City approved the Riverbend Condominiums, and in exchange for the Riverbend easement, it abandoned an unconstructed portion of First Street that was 270 feet long and stopped at the very edge of the Whitefish River. The Riverbend developer needed more land to accommodate the structures it intended to build and to provide additional parking. This land, if it had remained City property, would have provided the City and the community with a 60-foot-wide access route to the river, plus enjoyment of 61 feet of river frontage. The City also abandoned a nearby alley that was 16 feet wide and 110 feet long. The area of the section of First Street that the City abandoned was 15,870 square feet (0.36 acres) and the area of the alley was an additional 1,760 square feet (0.04 acres) The current City Council has an obligation to honor the intent of the original 1983 agreement with the developer of the condos both on the grounds of continuity of governance (despite changes in individuals involved) and of equity that ensures City ---PAGE BREAK--- 9 residents that a valuable asset will not be given up for nothing. It would make absolutely no sense for the City to abandon a 15,780-square-foot (0.36 acres) access to the river, plus 61 feet of river frontage, in exchange for nothing. Current City policies regarding construction near the river were put in place long after the Riverbend easement for a trail along the river was established. Furthermore, those policies, contained in the City’s Water Quality Protection Regulations, provide that “walkways and trails” are an allowed activity in the buffer zone along rivers, streams, and lakes, so long as they are approved in the City’s adopted master trails plan. The Riverbend trail is specifically called for in the 2017 Connect Whitefish Master Plan and therefore must be viewed as consistent with the scope and intent of the City’s current policies. The buffer zones along rivers, streams and lakes contained in the city’s Water Quality Protection Regulations generally restrict private developers of residential or other projects from building in sensitive areas close beside water courses. Private projects typically involve significant excavation and earthmoving for foundations, driveways and other improvements, and affect thousands of square feet of land. Such construction also affects the land negatively by tree and plant removal, creation of impermeable surfaces, an increase of amount and velocity of water runoff, and in other ways. The city determined that the harm resulting from such work is not justified by the purely private benefit that accrues to the developer. The creation of trails, however, in buffer zones (if they are approved in an adopted master trails plan) confers a very significant and perpetual benefit to the public, in terms of transportation, recreation, safety, and in other ways, while having a relatively light impact on the land. Despite the allowance provided for public trails, these projects are required to comply with sections of the city’s Water Quality Protection Regulations to reduce impacts. A raised boardwalk path project across Cow Creek was constructed in 2008. The public works department submitted a water quality protection application to the planning department documenting steps to minimize adverse impacts and comply with erosion control and mitigation requirements. As the boardwalk was constructed with helical piers the contractor would construct a section, then drive the next series of piles with the crane driven along the boardwalk. There was no soil excavation and minimal impact to vegetation as the boardwalk was installed. The City should also honor its written agreement with MDT to connect the underpass to a trail going northward. Given the length of time that it generally takes to secure easements, permits and funding to expand the bike/ped system, failure to assert existing agreements could seriously inhibit any progress. 6. PRECEDENT: Future development of the trail network Failure of the City to demonstrate a strong commitment to a comprehensive bike/ped network will demotivate developers and possibly make future negotiations more challenging. If the trail is not continuous, it diminishes the value of the trail in any particular location. Developers will be less inclined to support integration of a trail easement on their property if the future value of trail network access from that property is ---PAGE BREAK--- 10 low. The Riverbend situation is an immediate example. The owner/developer of the property north of the condominiums has indicated he is ready to grant an easement on his property, but only if the City enforces its easement on the condominium property. 7. OPPORTUNITY: Trail support from the adjacent property owner is conditional and time-sensitive The owner of the property to the north of the Riverbend Condos is currently willing to provide an easement and a pathway on his property that would connect the BNSF Loop Trail to the River Trail. However, he is understandably only willing to do so if the Riverbend section is resolved. If the City abandons its rights to build a trail along the river at Riverbend, then it would make no sense to the owner to build a trail on the property to the north. Even small delays in taking immediate action on Riverbend puts the availability of the trail on the adjacent north property at risk, as ownership may change or the current owner may give up on the prospect of a trail. The City maintains that it can condition approval of the owner’s project on providing a trail easement whether or not the trail is constructed on the Riverbend property. 8. LIVABILITY: Travel, traffic and environmental benefits Whitefish has pursued the River Trail and other multiuse trail systems as part of a commitment to making the City accessible and usable for everyone, including people who don’t or can’t drive. The 2017 Connect Whitefish Master Plan includes, for example, the desire for people to “walk safely and comfortably to work, schools,” etc. This goal is admirable and will have benefits far beyond what the City can foresee. A 2012 study of 20,000 schoolchildren in Denmark, for example, found that children who walk or bike to school had higher test scores, better concentration, and better executive function. The trail system removes cars from the road, reducing pollution, noise, and congestion. It provides easy access to the City’s wealth of green spaces, promoting physical and mental health for children and adults. The trail system has done an excellent job of providing residents and visitors with the ability to navigate around town without exposing themselves to the risks of sharing the road with cars. But without the Riverbend connection, that ability is curtailed. Families who live on the west side of town and who can easily access that section of the River Trail, for example, are forced to use the dangerous highway crossing or travel down to the intersection of Highway 93 and Baker Ave. if they wish to go to City Beach, undermining the purpose of the trails. Livable communities and an active lifestyle are values that Whitefish actively promotes, but in order to provide them it needs to remain committed to building the infrastructure that gives people options. ---PAGE BREAK--- 11 Whitefish’s population, both full-time and visitor, will continue to grow. When it comes to transportation infrastructure, the City’s first priority should be to provide as many non-car options as possible and to make them as safe as possible. Without full commitment to the trail system where and when it can be built, that priority will be undermined and people’s lives will be put at risk. The Committee is therefore of the opinion that pursuing the Riverbend section of the River Trail is not optional. It is vital to the accessibility, usability, and safety of the bike and pedestrian system as a whole. 9. NO VIABLE ALTERNATE ROUTE The HOA has proposed an alternate route on their property. This route would go from the north end of the Veteran’s Bridge underpass up through the southern portion of their property to the southeast end of their paved parking area. Below is an engineer’s rendition of what a possible switchback route will look like: For several reasons, this route is unacceptable. First, the steep slope of this route will require several switchbacks. The switchbacks and the trail itself will be difficult, if not Sketch of possible “switchback” routing for the Riverbend path ---PAGE BREAK--- 12 nearly impossible, for cyclists and users with mobility issues to safely navigate. Second, it will require that users are routed to/from Miles Ave. or, as has also been proposed, routed through the HOA parking area for a connection to a trail on the northern parcel. Neither of these sections of the alternate route would be safe or prudent. The Bike/Ped Committee believes that the inconvenience of this route would cause trail users to avoid it. The owner of the northern parcel has indicated he would not be willing to construct a trail on his site that has a southern terminus anywhere other than along the river. Finally, choosing this alternate route would likely close the door on any possibility of a trail along the river in that section. Implementation Obstacles Addressed HOA Challenges to Existing Riverbend Easement The Riverbend HOA has expressed opposition to the easement and siting of the trail. (See Appendix However, not only does Whitefish hold a legal easement to build the trail explicitly along the river, the City abandoned extremely valuable property—a portion of First Street—to the original developer in exchange for the easement. Without use of the abandoned street there would be fewer condominiums today. Riverbend Condominium residents have benefited from property that originally belonged to the City—which means it belonged to the people of Whitefish—but the legal agreement was that the development would provide something of value in return, the easement to build the connector in the City’s trail system. The developer deeded that easement to the City, and the developer and the City mutually agreed that it would best to fix the location of the permanent easement in the future, when they could determine what route would connect future paths on both sides of the condo property. There is a clear obligation on the part of Riverbend HOA to honor this legal, binding contract. All current members of the HOA would have (or certainly could have) had full knowledge of the existence of the easement when they purchased their condo. Construction Proximity to River FWP has approved multiple bike/ped paths that Great Falls then constructed using a boardwalk elevated over the banks of the Missouri River and the Sun River. FWP had also approved Great Falls’s construction of a path immediately above a riverbank as well as paths under existing highway bridges that displaced some of the river during high flows. As a result, the committee proposes that the City’s application to FWP be amended to utilize a boardwalk elevated over the bank of the Whitefish River where necessary. Details of this proposal occur later in this report. ---PAGE BREAK--- 13 CLOSING STATEMENT The Bike/Ped committee respectfully requests that the City’s Park Board approve the committee’s report and forward it on to the City Council with a recommendation for approval. The Bike/Ped committee respectfully requests that the City Council take the actions described below. This project has been characterized by fits and starts and whenever an obstruction has appeared, the City has lost months or years in dealing with it. It would be helpful to the committee and to the eventual success of this project if the Council would approve in advance a number of steps that may be necessary. They are as follows: 1. Authorize the City to file an amended application for a 124 permit with FWP, describing a new proposed path that would be ADA compliant if at all possible, and at least be designed with accessibility in mind. 2. Authorize the City to prepare an amended Environmental Assessment if FWP requires one. 3. If a negative decision is received from FWP, authorize the City to appeal, if necessary, to others in the chain of command within the FWP. 4. If the Riverbend HOA will not agree to the City’s latest proposal, authorize the City to file a lawsuit in Flathead County District Court and request that the court rule that the Riverbend owners have breached their obligation of good faith and fair dealing and as a result their consent is no longer needed in order for the easement location to be fixed by the court, and for the City to begin construction. 5. Authorize the City to go forward with all necessary designing and planning steps in order to begin construction of the path. 6. Require the City to obtain the City Council’s approval to initiate construction when all necessary funding has been identified and is available. List of Appendices: Appendix 1 consists of all documents evidencing the 1983 transaction that exchanged portions of City right-of-way for a trail easement. Appendix 2 is a legal opinion that concludes that in 1983 the City obtained a valid and enforceable bike/ped easement from the developer of the Riverbend condos, and the current Riverbend owners have a legal and enforceable obligation to negotiate in good faith on the location of the trail. Appendix 3 describes MDT’s construction of the Highway 93 West underpass for the City and safety concerns in that section of highway. Appendix 4 describes the City’s application to FWP for a 124 permit allowing a 4-foot- wide gravel path. Appendix 5 describes FWP’s recent approval of bike/ped path construction by Great Falls directly on or over the banks of the Missouri and Sun Rivers, and includes examples of ---PAGE BREAK--- 14 similar projects from around the country. Appendix 6 describes how in the last 10 years other agencies have been approved to conduct massive excavation (compared to the City’s proposal) in the Whitefish River. Appendix 7 explains why the alternative route involving switchbacks is not feasible and not safe. ---PAGE BREAK--- 15 APPENDICES Appendix 1: ORIGINAL EASEMENT Attached are the original 1983 easement with the developer of Riverbend Condominiums and minutes of City Council meeting detailing Riverbend obligations. Appendix 2: LEGAL OPINION Please see attached legal opinion and exhibits. Appendix 3: CONSISTENCY and SAFETY The City has recently taken extensive steps to improve safety for people attempting to cross Baker Ave. Although for several years the City has had a user-activated crossing signal at the crosswalk at the Baker/First St. intersection, the City was not satisfied with the level of safety at that location. To allow pedestrians and bicyclists to travel under Baker Ave. with no risk whatsoever, the City has completed a $1.4 million underpass project. The reasons for the Baker underpass are identical to the reasons supporting the underpass for the Highway 93 West bridge. MDT’s 2019 traffic counts near the Baker/First Street intersection (11,145 average daily traffic in 2019) are virtually the same as the traffic counts (10,508) near the Highway 93 West bridge (measured near Karrow Ave.). One would expect the City to do its best to provide the same level of safety to persons needing to travel under the highway bridge as it has for persons needing to cross under Baker Ave. Anyone who has used one of the existing sections of the River Trail (which is now more than 80% complete) has enjoyed the ambience that the City hoped to create. The exceptional experience that the River Trail provides includes three steel bridges over the river, four parks along the trail, and multiple trails that branch out from the River Trail. Those who wrote the 1999 master plan were well aware of the goal of crossing under the highway (twice), and aware of the Riverbend section, which was needed for one of the underpasses to work. At that time the Riverbend easement was the first and only trail easement that the City owned. The Riverbend segment can be seen as a portion of the River Trail on the map contained in the 1999 master plan, which was adopted by the park board and by a unanimous City council. Appendix 4: FWP, river trail approvals, and river impact The committee acknowledges that the City faces some other hurdles to completing the trail. The unfortunate siting of the Riverside Condominiums leaves tight spacing for the legal easement, and FWP has expressed some concern about impact on the river itself. However, the Committee has conducted extensive research on these questions, and is of the opinion that they are not insurmountable. There are several examples of FWP-approved ---PAGE BREAK--- 16 river trails around the state that have had far more impact than this section of the River Trail would. When MDT constructed an underpass for the Highway 93 West bridge, there was nowhere to place the path other than in the riverbed, and so the path displaced, or narrowed, the river by 10 feet. A foundation or footing under the path required riprap and gravel to a depth of approximately 1 yard, topped by a 5-inch-thick concrete sidewalk and retaining wall. It was necessary to excavate a portion of the riverbed to accommodate the gravel. The highway bridge was constructed during 2013-2014, and the underpass has been available for use by the City for over six years. In order to obtain all necessary agency approvals prior to beginning construction, on November 12, 2012, MDT applied to the Department of Fish, Wildlife & Parks, the US Army Corps of Engineers, the DEQ, the DNRC, and to the City, as the local Floodplain Administrator and as required by the City’s Water Quality Protection Regulations. The City Floodplain Administrator approval specifically mentioned that the underpass that MDT would build for the City complied with all City floodplain regulations, erosion would be prevented by the use of standardized materials such as fiber rolls and silt fencing, and there would be no adverse long-term environmental effects from its construction. The City’s administrator of its Water Quality Protection Regulations stated that the infrastructure improvements of this type are exempt from review under those regulations. MDT’s application to the agencies included the bridge and specifically described the 10- foot-wide concrete path to be built for the City. All agencies approved the application, with no discussion at all about any issues arising from placement of the bike/ped path 10 feet into the river. FWP granted its approval on January 4, 2013, less than 60 days from the application date. The approval was subject to its standard conditions, without any conditions unique to the bridge or the underpass. The City and MDT worked together in a number of ways during the course of the project. Their joint obligations were spelled out in several written agreements. An agreement signed on November 12, 2012, stated that MDT would construct the underpass and the City agreed that it would extend the path northward from the bridge. Specifically, it said: “The City will construct a connection to local street/bike paths on the north side of the Whitefish River Bridge from the north border of MDT right of way to connect the path to the existing Whitefish path network.” This agreement provided that it cannot be altered without MDT’s written consent. A copy of this agreement is attached at the end of this appendix. Clearly MDT obligated the City to actually use the underpass. Consistent with the new master plan’s key recommendations, the City applied to FWP for a “124 permit” authorizing construction of a 4-foot-wide gravel trail between the Riverbend Condominiums and the river. The City did not anticipate any difficulty obtaining the 124 permit from FWP. City representatives had discussed the Riverbend trail previously with Mark Deleray, of FWP, who recommended a surface path and who always indicated that FWP would work with the City to find an acceptable solution. A new individual, however, handled the City’s application. Despite the very positive ---PAGE BREAK--- 17 recommendation from the Environmental Assessment prepared by the City, and from the public, he advised the City that he was likely to deny the permit. The three reasons given for denial were portions of the trail were too close to the river, the elevation of the trail was too low and the trail could be inundated in high river flows, and as far as he knew FWP had never approved a project like this. The FWP employee who handled the City’s application failed to consider that the 10- foot-wide concrete path that FWP approved and MDT built for the City was much closer (actually in the river) than the City’s proposal, the elevation of a 70-foot length (out of 370 feet) of the City’s proposed trail was only inches lower than the trail MDT constructed, and in approving the concrete trail under the new bridge seven years earlier, FWP essentially approved a pedestrian and bicycle path in the river, similar to what the City proposed, except the City’s trail would be out of the river rather than in it. In fact, the MDT-built trail that FWP approved was designed specifically as a jumping off point for the Riverbend segment. In writing and in meetings with the FWP representative, City staff and Bike/Ped Committee members provided many solid reasons justifying approval of the Riverbend trail. Some of the reasons are set forth below. 1. The River Trail was designed to go under the highway because of the extreme danger of forcing trail users of all ages and skill levels to cross Highway 93, with its 10,508 (1999 figures) average daily vehicle trips. 2. MDT constructed the underpass (at considerable expense) specifically so that the public could travel farther along the river. 3. FWP personnel were well aware when FWP approved the highway bridge underpass that the City intended to develop the River Trail northward along the river. 4. The City’s entire bike/ped system, under development for 25 years, relied on the completion of the River Trail. 5. The Riverbend section was essential to closing the gap in the River Trail. 6. At no time during design and construction of the underpass did FWP personnel give any indication that it would not allow the trail to continue northward. 7. The River Trail is more than 80% complete, and an enormous amount of time and millions of dollars have gone into its development. 8. Public comment was overwhelmingly in favor of the Riverbend section of the trail. 9. The Environmental Assessment prepared by an extremely qualified engineering firm concluded that the trail would be an extremely important project for the public good, and the engineers could not identify any significant environmental impacts from the construction or ongoing maintenance of the trail. ---PAGE BREAK--- 18 10. The City was contractually obligated to MDT to carry the River Trail on northward from the underpass. 11. Without the Riverbend section, that portion of the River Trail was no longer ADA accessible, and people with disabilities would have to stop before reaching that point in the River Trail. 12. The City offered to construct a path in any manner and using any materials requested by FWP. 13. The City was willing to conduct off-site mitigation to offset any perceived harm to the river and its banks. 14. The City has been assured by individuals experienced in trail construction that the Riverbend section could be constructed without any harm to the river. 15. This is not the only section of the River Trail that must be built relatively close to the river. If FWP denies a permit for the Riverbend section, it will likely deny permits for several other sections of the River Trail, with the result that the River Trail will remain a collection of small, unconnected segments. One of the primary reasons given by the local office of FWP for not granting the City’s application for a 124 permit is that FWP has never approved a bike/ped project as close to a river as the Riverbend section. That is not correct, however. The committee has discovered that the Region 4 FWP office in Great Falls has approved as many as eight bike/ped projects that are as close or closer to a river than the Riverbend path. The Region 4 FWP office has also approved paths constructed directly in a river, and has also approved paths that are elevated over a river using supports that are anchored into the riverbank. Three of these projects, which were built by the City of Great Falls, are described in Appendix 5. Appendix 5: SIMILAR FWP-APPROVED PROJECTS ADJACENT TO RIVERS The Elevated Sun River Connector Trail In approximately June of 2016 the City of Great Falls completed the Sun River Connector Trail, an elevated section of a bike/ped trail that overhangs the ordinary high-water mark of the Sun River. The entire length of the trail is .52 miles. The trail is elevated over the river for 574 feet. The remainder of the trail is built on or immediately near the riverbank. In order to support it the city constructed a sheet piling retaining wall 1034 feet long. The equipment used included excavators, compactors, sheet pile drivers, and graders. Concrete trucks poured concrete for the footings. ---PAGE BREAK--- 19 Below are pictures showing the riverbank before the elevated trail was installed and also a picture showing the completed trail. An engineer who provided the pictures and information confirmed that FWP approved the project (a copy of the FWP application is attached at the end of this document) and that building on the riverbank and out over the river was not in any way controversial. The Bay Drive Underpass and Trail The City of Great Falls constructed the Bay Drive Underpass and Trail in 2006. It was approved by FWP This project involved building an underpass beneath a highway bridge and building an elevated trail that parallels the Missouri River above a steep embankment. The total length of the trail is not clear from the application, but the elevated section is at least 500 feet long. To support the trail, concrete trail supports were installed Sun River Connector Trail running alongside the Sun River in Great Falls (top photo shows extent of trail running alongside the highway in close proximity to the river); bottom left is the area before trail build; bottom right is pathway after elevated walkway was installed. ---PAGE BREAK--- 20 approximately 5-10 feet from the edge of the water in a steeply sloped riverbank. The concrete supports extended from the bottom of the trail deck down into the underlying sandstone bedrock. A concrete trail was constructed under the highway bridge. Equipment used included excavators, and a small crane was used to drill the holes for the concrete supports. Concrete placement was done by a concrete pump truck. Pictures showing several stretches of the completed trail and underpass are below: An additional trail located on the Missouri Riverbank in Great Falls Below are several pictures showing an additional bike/ped path in Great Falls that parallels River Drive North and that was constructed directly beside the river. The committee has less information about this path, and from the pictures it appears to have been constructed some time ago. The city plans to repave the trail this coming summer. According to an engineer involved, Montana State Parks Fisheries Division was contacted about permitting, but it determined that a stream bank permit was not needed to repave the asphalt trail. Bay Drive underpass and trail continuing under bridge in close proximity to the Missouri River. ---PAGE BREAK--- 21 The Bike/Ped Committee believes it will be able to convince FWP to issue the 124 permit, particularly with the new information discussed in this report. FWP is a single state-wide agency, which is divided into a number of regions for operational reasons. Like any government agency, it has to treat similar applications in a similar manner. One region can’t refuse to permit a project that is the same as one that another region routinely approves. Nor can any region allow one agency (MDT) to construct a project involving extreme temporary disturbance and then refuse to permit another agency (the City) to construct another project right beside the first, which project will have little or no negative effect to the river. The public believes in the River Trail, and has shown great patience in waiting for it. Public opinion can be utilized to help move the City’s application along. River trail projects around the country Bike/ped paths similar to those approved by FWP in Great Falls can be found all over North America. The following pictures show a representative sample: Bike/ped trail in Great Falls paralleling River Drive North in close proximity to the Missouri River. ---PAGE BREAK--- 22 Along the Colorado River in Colorado. Boulder Creek in Boulder, Colorado (above): This creek floods regularly in the spring and the water flows temporarily over the path. ---PAGE BREAK--- 23 Bell Park Path (left), Ontario, Canada. Path alongside the Arkansas River in downtown Wichita, Kansas. ---PAGE BREAK--- 24 Appendix 6: OTHER FWP-APPROVED PROJECTS ALONG WHITEFISH RIVERS Other projects along Whitefish River To get an idea of how insignificant an effect the Riverbend section will produce, it helps to review carefully other recent projects in and beside the Whitefish River. The first to consider is the construction of the highway West bridge in Whitefish, which FWP determined would have no significant environmental impacts on the river. During 2013 through 2014, a general contractor working for MDT removed the old highway bridge on Highway 93 West and constructed an entirely new bridge with the attached 10-foot-wide concrete underpass described previously. It was a difficult project. The new bridge had to be constructed in the same place as the old bridge, and a temporary bridge had to be constructed to keep the highway traffic flowing. In 1994, long before construction began, MDT, using consultants, produced an extensive Environmental Impact Statement (EIS). The 1994 EIS looked only at the bridge, but not at the underpass, as it was not yet a part of the overall project. The EIS was updated in 2008. By that time the underpass had been added to the project, and so the 2008 update examine possible environmental impacts from the underpass. None was found. Bike/ped path along the Colorado River. ---PAGE BREAK--- 25 It is informative to review the actual work that was done in order to appreciate how extensively the project temporarily affected the river without causing actual long-term harm. Some of the effects are described below: 1. Both of the original concrete piers in the river, weighing many tons, were removed. This involved a large excavator digging into the riverbed to free up the piers for removal. In order to reach the piers and remove them large timbers were placed in the river to support the excavator’s weight, and interlocking steel pilings were driven deep into the riverbed in a semi-circle to isolate the removal area from the rest of the river. The pilings were later pulled out of the riverbed after the piers were removed. 2. The banks of the river on both sides were altered to allow for installation of abutments for the temporary bridge and for the permanent bridge. 3. Several large temporary supports were built in the riverbed to support the temporary bridge. They were later pulled out when the new bridge was completed. Work on old Highway 93 bridge (now Veterans Bridge) on and along Whitefish River, above; left, former concrete bridge supports that were removed as part of the bridge rebuild project. ---PAGE BREAK--- 26 4. The banks of the river on both sides were altered to accomodate the new bridge. This impacted 120 linear feet of bank and encroached on each bank 17-18 feet. 5. 559 cubic yards of rip rap were installed below the ordinary high water mark of the river with more than half of that amount buried below the surface of the riverbed. A typical dump truck carries 10-14 yards of material. As a result, MDT deposited between 40 and 56 dump truck loads of rip rap in the river. 6. A detention pond was excavated from land near the bridge, impacting 40 feet of the riverbank. 7. 15 feet of riverbank were impacted by a storm water outfall. 8. The combine riverbank impacted by the project was 175 linear feet. 9. About 2434 square feet of riverbank were disturbed and covered with fill material. That area is roughly equivalent to the square footage of the average new home constructed in the U.S. 10. 424 square feet of wetland were disturbed. 11. Equipment used included excavators, front end loaders, graders, dump trucks, cranes and mechanical compactors. The following photographs, in addition to those above, help illustrate the work done in the river: ---PAGE BREAK--- 27 Work being done in Whitefish River to replace old Highway 93 bridge. ---PAGE BREAK--- 28 Despite all of this work affecting the river, it was determined by Tom Martin, P.E., the Bureau Chief-Environmental Services, MDT, in a letter dated January 15, 2013, that no permanent environmental impacts would occur, and only minor, temporary impacts would arise. In short, the river would easily recover. In contrast, the possible effects from building the Riverbend section of the river trail are minuscule: 1. No work of any kind will be done in the river. 2. No soil, debris, or fluids will enter the river from the project. 3. No wetlands will be affected. 4. All work will be contained within the 6-foot-wide easement. 5. No concrete or asphalt is proposed to be used. 6. The final product will be a 6-foot-wide structure that is elevated as necessary. If the highway bridge had no significant environmental impact on the river, as determined by Fish, Wildlife and Parks and MDT, how is it possible that the City’s proposed path would be so destructive that it cannot be allowed to proceed? How is it possible that the river could easily recover from the bridge demolition and reconstruction but the same stretch of the river would be fatally and permanently harmed by the 6-foot wide path? Superfund cleanup of Whitefish River The BNSF cleaning of the Whitefish riverbed also demonstrates how tremendous violence can occur to a river with the river recovering fully in a relatively short time. The predecessors to BNSF, with their rail yard located in the center of Whitefish, had for many years released various oil products into the Whitefish River. The EPA determined that the riverbed contained these pollutants for a length of 1.5 miles, from bank to bank. It began a process that involved complete removal of 18 inches of riverbed, which was a mix of soils, sand, organic matter, microscopic aquatic life, and oil. The project lasted two years. The EPA required that BNSF proceed with the Whitefish River cleanup project to meet federal environmental regulations. During the first effort BNSF attempted to dredge the riverbed, but that was not efficient. The second effort involves suctioning up the riverbed, and that method was used to the end of the project. The river continued to flow during the entire operation, meaning that it was impossible to prevent disturbed material from the riverbed from flowing (sometimes through a pipeline) In all BNSF removed 26,000 cubic yards of contaminated sludge. A typical dump truck carries 10-14 cubic yards of material. BNSF therefore removed approximately 1850-2600 dump truck loads of material from the bed of the river. When all was removed, BNSF ---PAGE BREAK--- 29 brought in thousands of tons of river rock, which was deposited and spread throughout the project area to replace the riverbed. There were points of entry for the dredging and vacuuming equipment, so that the riverbank was disturbed at those points. It’s difficult to imagine a method that could cause more disruption to the river, the riverbank, and the riverbed, all over a period of years. During the time that work was occurring it was difficult for people to enjoy the river. Much of the river was closed. Portions of the River Trail were closed periodically. And yet, it was believed that the benefit to the river from the removal of the contaminants outweighed any harm to the river caused by the removal process. And the river quickly recovered. The water cleared, migrating fish returned, insect larva returned, and the river’s aquatic life was restored. Within a short time the river was completely recovered. Contrast the Whitefish River clean-up project with the minor work needed for construction of the Riverbend trail section. Nothing would enter or occur in the river. There would be The pipelines shown above contained the entire flow of Whitefish River as excavators work on cleaning the riverbed for the Superfund cleanup. ---PAGE BREAK--- 30 no equipment, no materials, and no siltation in the river. There would be no massive excavation, dredging or vacuuming of the riverbed. There would be no leaking of fluids. The project would help complete a tremendous amenity for the citizens of Whitefish, and their visitors, with no observable or measurable harm to the river. If the river bed could be removed, and replaced, with enormous disruption and death to its aquatic life, for the full width of the river for a length of 1.5 miles, and then fully recover in a relatively short period of time, how can the Riverbend section of trail pose any threat to the river? Given the relatively simple effort needed to install a path along the river, and the value of that path to the community and the City’s transportation network, the City should move ahead with the construction of the Riverbend section of the River Trail. Appendix 7: Alternatives Two alternatives to the Riverbend section running along the river easement have been considered by the Bike/Ped committee. One involves crossing the highway at Miles Ave. This report has already covered the serious problems involved with this option. The other option involves building a set of switchbacks that would climb up a steep slope located between the highway bridge and the southern-most condominium building. The switchbacks would extend up to Miles Ave., which the public would use to access the BNSF Loop trail. The Bike/Ped Committee considered but could not recommend this route, for many reasons, which are outlined below. An engineering report prepared in 2013 by Robert Peccia and Associates analyzed this route and concluded that they could not recommend it, citing a number of similar reasons. The alternative has come up in discussions more than once since then, and the committee always dismissed it after a thorough discussion. A new engineering report was recently prepared by KLJ engineers, and it too is critical of this alternative. (The KLJ report recommended crossing the highway instead of constructing the Riverbend section. The committee has disputed this second recommendation vehemently, in writing, as it completely ignores the safety concerns discussed earlier.) The Bike/Ped Committee doubts that the public would use this alternative even if it were constructed. It is far less convenient and requires much more effort to use than simply crossing at the highway grade, which the City can’t prevent. Because the City has not yet constructed any alternative, crossing at the highway is currently what trail users must do. Due to safety concerns, neither the Bike/Ped Committee nor the City in general has ever viewed crossing the highway as an acceptable permanent alternative. In addition to the committee’s conclusion that trail users would avoid the “switchback” route, the two engineering firms identified the following negative factors: 1. It would require multiple switchbacks, all of which would be constructed of concrete. ---PAGE BREAK--- 31 2. It would need many tall “cast in place” concrete retaining walls, one of which would be over 10 feet tall. 3. All retaining walls and switchbacks would require handrails. 4. It would need 200 linear feet of curb and gutter. 5. It would involve high construction costs compared to a typical path or sidewalk. 6. It would not be scenic compared to the river route. 7. It would not be as enjoyable for users as the river route due to the steeper grades and switchbacks. 8. It is a high ground-disturbance solution. ---PAGE BREAK--- Attachment 1, Appendix 1 ---PAGE BREAK--- ---PAGE BREAK--- Attachment 2, Appendix 1 ---PAGE BREAK--- ---PAGE BREAK--- Attachment 3, Appendix 1 ---PAGE BREAK--- Appendix 1: Legal Opinion and Exhibits Legal Memorandum September 3, 2021 This legal memorandum was prepared by John Phelps for his own use as chairman of the City of Whitefish’s bike/ped committee. He is a retired attorney whose license to practice law is currently inactive. As a result he can not provide legal advice to any group or individual. He can represent himself. He intends to use it as an attachment to a report that is being prepared for review by the Parks and Recreation Board and the City Council. He was one of the authors of that report. He also intends to use this legal memorandum in oral presentations to the Park Board and the City Council. Statement of Facts In 1983 a developer named Tallman & McDonald Construction Corporation intended to construct a condominium complex on a triangular shaped parcel of land that is located on the east side of the Whitefish River and immediately north of the Highway 93 West Bridge. The proposed complex was eventually named the “Riverbend” condominiums, and that term or the term “condos“ will be used throughout this memorandum. The ten condos were designed to be built in a line along the 370 feet of riverfront from north to south, with all units facing the river. However, the developer needed more land than he owned to fit the entire complex on his property. As a result, the developer asked the city to abandon a 60-foot wide section of First Street that ran along the north border of the developer’s property. The developer also asked the city to abandon a 16 foot-wide alley that ran from north to south and immediately north of the condo complex. The First Street section that the developer sought to acquire is shown on a survey labeled Exhibit A. At the same time the city was beginning to envision a bicycle and pedestrian path system that would serve the people of Whitefish. The city contemplated a system that included a bike/ped path along the Whitefish River (the“river trail”). The city owned substantial land along the river, but in order to construct a path along the river it would need to acquire a number of private easements. The city had not previously acquired any private easements for the path. Nor had it determined the entire route of the path. When the developer asked the city to abandon First Street and the neighboring alley, the city was willing to do so, in exchange for a bike/ped easement along the Whitefish River and across the developer’s property from north to south. At a city council meeting on May 2, 1983, the council approved the abandonment requested by the developer, subject to a number of conditions. One condition was as follows: “The developer to grant a Public use easement to the city along the river, the width and exact location of which to be determined by the City and Developer.” The city council minutes describing the arrangement are attached as Exhibit B. Resolution No. B-979-A, approving the abandonment, is attached as Exhibit C. Attachment 1, Appendix 2 ---PAGE BREAK--- A legal description was prepared and on October 7, 1983 the developer signed and delivered to the city a Grant of Easement. (Exhibit D) ---PAGE BREAK--- The city’s abandonment of First Street and the alley occurred on May 2, 1983. It was not recorded then, however, as the developer had not yet provided the grant of easement. When the signed Grant of Easement was delivered to the city, the city attorney, Leo Fisher, recorded both documents, one after the other. The Resolution of Abandonment was recorded on October 13, 1983, at 10:31 AM, and the Grant of Easement was recorded one minute later, at 10:32 AM. If there was any doubt as to whether there was an agreement involving a mutual exchange of consideration, the recording of the two documents one minute apart should alleviate that doubt. The developer‘s signing of the Grant of Easement and its delivery to the city created a permanent easement for the city‘s use. Its recording made it of record and constituted notice to anyone searching the Riverbend condos’ title that the city owned an easement along the river. The city attorney at the time, Leo Fisher, who recorded the Grant of Easement likely also reviewed and approved it. He may have drafted it. Whatever his involvement, it’s clear that the city was represented by counsel at the time. It is absolutely clear that a valid easement has existed in favor of the city since 1983. A conventional easement deed was used. The granting language is clear, and describes an immediate grant. It provides: That for value received, receipt of which is hereby acknowledged, The Grantor hereby grants, sells and conveys unto the Grantees, its successors and assigns, a perpetual public easement over, across and through the following described land situated in the City of Whitefish, Flathead County, Montana, which said easement and lands are describe as follows. . . . The initial phrase “for value received” acknowledges that the developer received valuable consideration for the grant, which we know consisted of the abandoned street and alley. That acknowledgment alone creates a binding agreement. The words “hereby grants, sells and conveys” establishes that the easement was given to and received by the city at the instant the document was delivered to the city. The use of the words “perpetual public easement” proves that, like any conventional easement, the city’s easement cannot be terminated or reduced by the developer, the condo owners, or by anyone else without the agreement of the city. Unless an easement contains language providing for its termination, it can only be terminated by the delivery of a quitclaim deed from the city to the developer/condo owners. The delivery of the Grant of Easement to the city and the recording of the resolution of abandonment completed the transaction. Although the permanent easement was intended to be only 6 feet wide, the easement area in which the permanent easement would be located was much wider. In the document the easement area was described legally as beginning in the north, 25 feet inland East”) of the Whitefish River. From there, the eastern boundary of the easement area was a line running in the southeast direction (“thence in a Southeasterly direction“) roughly parallel to the Whitefish River “along the Whitefish River bank”) to the southeast corner of the developer’s property (“to the Southeasterly point of said Block 40”). A survey prepared by a surveying firm working for the city (Exhibit reveals that the southeasterly point of the developer’s property is precisely 46.39 feet east of the surveyor’s line used to designate the western boundary of the property (along the Whitefish River). As a result, the easement area consists of a strip of land that is 25 feet wide at the northern boundary (“approximately 25 feet East of the Whitefish River”) and 46.39 feet wide at the southern boundary (“the Southeasterly point of said block 40”). Exhibit E contains a shaded area which is an estimate of the extent of the temporary easement. ---PAGE BREAK--- From the language of the grant of easement it appears that the parties had agreed to a 25- to 46.39-foot-wide temporary easement within which would be located a 6-foot permanent easement “a 6 foot strip of land”). The permanent easement would be established not by a subsequent deed, but by the mere construction of the bike/ped path (“any construction of said walkway and bicycle path hereafter by the Grantor (they must have intended the “Grantee”) shall evident the permanent site and location of said easement”). It’s possible that the wider temporary easement area might have also been intended to serve as a construction easement that would terminate once the path was constructed. Although the city abandoned the entire 60-foot right-of-way of First Street, it retained a 20-foot-wide bike/ped easement the entire length of the abandoned street, from east to west, to provide access to the Whitefish River, and presumably to the bike/ped path the city hoped to build along the river at some point in the future. As stated earlier, the Riverbend easement was the first easement acquired by the city. In 1983 the city did not yet own any private easements. The trail along the river would consist of many easements, all attached from end to end, so as to create a continuous route. State Highway 93 West ran through the parcel of land immediately south of the condos. Also at that location was a concrete highway bridge that spanned the Whitefish River. The bridge prevented the city from building the river trail southward by completely blocking the route. There was no underpass, and no plans by the highway department (MDT) to construct one. That blockage could not be remedied until the existing bridge was replaced and an underpass constructed. It was impossible to know in 1983 exactly when, if ever, a future underpass would be constructed to connect to the Riverbend easement. As a result, the city did not know where to locate the southern end of the Riverbend easement. The future bridge, with a hoped-for underpass, would not be built for some 31 years. A similar situation existed on the northern end of the Riverbend property. The next parcel of land to the north was privately owned, and at that time that the Riverbend easement was acquired the owner had not been approached about donating an easement across the property. When approached some years later, the owner declined to provide an easement. Therefore it would have been impossible for the city to know where to locate the northern end of the bike/ped easement. The next property to the north was the Burlington Northern Railroad’s railyard. The city had no idea when the railroad would grant a bike/ped easement across or around its railyard. It’s clear that it was, at the time, impossible for the city to choose precisely where any portion of the Riverbend easement should go. Thirty-one years later, the old Highway 93 West bridge was removed and replaced, with the construction ending in 2014. At the city’s request, MDT constructed a 10-foot-wide concrete underpass that extended up to the southern end of the Riverbend property. For the first time, the city knew where the southern end of the Riverbend easement should connect to the underpass. The owner of the property to the north of the Riverbend condos died some years ago, and the property passed to her heirs. It was eventually acquired by a development ---PAGE BREAK--- company represented by Casey Malmquist. The new owners were interested in the city’s river trail. They had prepared plans for their property several years ago but were not ready to consider those plans as final. It was not until the last year, however, that the development company was prepared to move forward with its plans. The plans show a bike/ped easement extending southward to the Riverbend property, and northward to the city’s BNSF Loop trail system, which had been constructed years before. Finally, and for the first time, after 38 years, the city was able to determine where the northern end of the Riverbend trail should be located. The city was now in a position to locate a permanent bike/ped path the length of the Riverbend property. Sadly, although they are bound by the easement obligations contained in the 1983 Grant of Easement, the owners of the 10 condominium units appear unwilling at this time to cooperate with the city to permanently locate the route of the path. When the Riverbend Grant of Easement was prepared in 1983, it is possible that the developer was also unprepared to locate the easement precisely. The developer signed the Grant of Easement on October 7, 1983. The city’s abandonment wasn’t completed until October 13, 1983, six days later. Until the abandonment was completed the developer had no assurance that he would be able to start his project. Since the developer needed additional land from the city in order for the condo project to fit on its property, it’s possible that the developer had not yet settled on the final site for the building. It’s doubtful that the developer had begun construction. So, like the city, the developer was perhaps unsure of where exactly to site the permanent bike/ped easement on its property. The facts show that it remained impossible for the city to specifically locate the permanent easement until the last year or so. Obviously, the developer could not wait 38 years, until now, to acquire the city’s property. The transaction between the parties, and the development of the condo project, would never have been completed without the parties’ mutual agreement to delay selecting the precise location of the permanent easement. The condo owners have suggested that the agreement (by which they obtained land from the city to construct a portion of their building) might not be a binding agreement. Since the transaction left it to the developer or future condo owners to agree with the city to locate the permanent easement, the condo owners have suggested that the 1983 Grant of Easement lacks a necessary legal description identifying the easement’s exact route, and was therefore an unenforceable “agreement to agree” in the future. They suggest that they don’t have any current legal obligation to work with the city to site the path. Even if they do have an obligation to work with the city, they have suggested that they could simply avoid reaching an agreement with the city, and thereby prevent construction of the bike/ped path. The condo owners’ position has caused some city officials to ask whether the city has the right to build the bike/ped path. This opinion is written in response to that concern. ---PAGE BREAK--- LEGAL ANALYSIS I. The city was empowered by its charter and state law to enter into the agreement. The City of Whitefish is a charter city with self–governing powers. Such a city is empowered by the State Constitution to take any action not specifically prohibited by state law. This power is contrary to the general rule in many states that cities can only do those things specifically authorized by the legislature. Section 7 –1–101, MCA, states: As provided by Article XI, section 6, of the Montana constitution, a local government with self–government powers may exercise any power not prohibited by the constitution, law, or charter. These powers include but are not limited to the powers granted to general power governments. State law further expands the powers of a self-governing city by stating, at section 7–1– 106, MCA: “The powers and authority of a local government unit with self-government powers shall be liberally construed. Every reasonable doubt as to the existence of a local government power or authority shall be resolved in favor of the existence of that power or authority.” The city’s self-governing charter was adopted on January 5, 1981 before it entered into the 1983 agreement with the developer of the condos. Tallman & McDonald Construction Corporation was a for–profit corporation organized under the laws of Montana at the time of the 1983 agreement. Recording of a Grant of Easement signed by the current owner of the land put any later purchasers of the land (including condo owners) on notice of the easement and made them subject to its terms. Each original purchaser of a condo unit from the developer became obligated by the Grant of Easement to cooperate with the city to locate the permanent bike/ped easement on the Riverbend property. Each subsequent purchaser also took title subject to the same obligation. The Grant of Easement would have been described in the preliminary policy of title insurance that is typically provided to purchasers of real property. As a result, the Riverbend condo owners should have known of the city’s easement before they closed their purchase transaction. Even if an owner wasn’t personally aware of the easement, Section 27-1-421, MCA, provides that they are bound by its terms because it is recorded and discoverable by anyone who investigated the title to the property. The temporary easement identified in the Grant of Easement was 25 to 46.39 feet wide, which would have easily contained the permanent 6 foot wide easement. Now that the city, for the first time in 38 years, is able to identify where the path can join the neighboring path segments at the north and south ends of the property, the choices for locating the path become fewer. Still more limiting is the legal requirement that the city apply for a 124 permit from the regional office of Fish Wildlife and Parks See section 87-5-502, MCA. In summary, there is relatively little discretion left in locating the path. It must start and end at points fixed by the paths on the neighboring properties, and where FWP will allow it. There is relatively little for the city and the condo owners to negotiate over, and yet as of this date the condo owners have declined to accept any of the city’s proposals. After several of the city’s proposed routes were declined by the condo owners, the city chose a different approach. The city made the route selection very simple and easy by ---PAGE BREAK--- informing the condo owners in writing, by letter dated March 9, 2019, that it was willing to turn the decision completely over to the condo owners, so long as it met the requirements of FWP. At that moment the possibility of disagreement evaporated. No longer was an agreement necessary. The condo owners became the sole decision makers. In the same letter, the city asked the condo owners to notify the city within 60 days of its choice of location. The city has received no response to that request over the last 2 1/2 years. The condo owners refused to select a route. A copy of the March 9, 2019, letter is attached as Exhibit F. II. Was the 1983 agreement a valid and enforceable contract, or was it merely a non-binding “agreement to agree” at some point in the future? A number of Montana Supreme Court cases have analyzed a variety of situations to determine if a potential agreement was only an “agreement to agree.” In many of the court’s decisions the parties appeared to strike an agreement, and then one party claimed that the agreement was never made final. Usually the decision to attempt to withdraw from the arrangement occurred soon after the parties appeared to agree. The claimant typically took the legal position that the alleged agreement left out a key term or terms, so the true intention of the parties could not be determined. Typically the lawsuit that generated a court decision was brought by the party insisting that there was a valid agreement, and the court was asked to grant specific performance and make the other party perform its obligations. When analyzing the various cases, the Montana Supreme Court often turns to section 28-2-102, MCA, which sets out four requirements of a contract. It reads: It is essential to the existence of a contract that there be: Identifiable parties capable of contracting; their consent; a lawful object; and a sufficient cause or consideration. Usually there is a little question about the identity of the parties (No.1, above), or whether the contract has a lawful object. (No.3, above). Neither is an issue in this case. There is no real question about whether the parties gave their consent (No. 2, above). Here, the City Council adopted a resolution to abandon First Street, and the developer signed the Grant of Easement. Still, there must be a sufficient cause or consideration (No. 4, above). In Junkermier, Clark, Campanella, Stevens, P. C. v. Alborn, Uithoven, Riekenberg, P.C., 384 Mont. 464, 380 P.2d 747 (2016), a case involving a possible “agreement to agree,” the Montana Supreme Court stated the necessity for adequate consideration, and defined the term. The Court stated: In order to be binding, contract must contain all its essential terms.” Hurly, ¶ 17 (citation and internal quotations omitted). A contract’s essential elements include “a sufficient cause or consideration.” Section 28-2-102(4), MCA. . . . ---PAGE BREAK--- “Consideration requires that the contracting parties, each as to the other, confer some legal benefit and/or incur some detriment as an inducement to performance. . . When an agreement contains a bargained-for exchange in legal positions between parties, the agreement because becomes a legally enforceable contract. A written instrument is presumptive evidence of consideration. Section 28–2– 804, MCA.” Junkermeir at para. 26-27. The Court in Junkermier reversed the trial court’s decision that the contract in question was an “agreement to agree,” concluding that although an employment agreement did not fix an employee’s specific compensation amount, there was sufficient information in the agreement to make the parties’ obligations clearly ascertainable. 384 Mont. At para. 31. Here the city and the developer exchanged very specific and substantial consideration in 1983, and they and their assigns have recognized the transaction for 38 years. In a similar fashion, the Supreme Court in Miller v. Kleppen, 2019 Mont. 83, 438 P.3d 806(2019), rejected a claim that an arrangement was merely an “agreement to agree.” The parties attempted to settle a boundary line dispute with an agreement and diagram prepared by the parties, apparently without the aid of counsel. The agreement contained an non-professional legal description and a list of steps that the parties would mutually take, including hiring a surveyor to process a boundary line adjustment through the Clerk and Recorder’s office. The parties performed none of the listed mutual steps, and never even hired a surveyor to initiate the process. They did, however, act as if the agreement was in effect for 16 years. The Supreme Court held that the agreement was an enforceable contract. The Court stated: It is well settled that “absolute certainty and completeness in every detail is not a prerequisite of specific performance, only reasonable certainty and completeness being required.” Steen v. Rustad, 132 Mont. 96, 106, 313 P.2d 1014, 1020 (1957). Matters that are merely “subsidiary, collateral, or which go to the performance of the contract are not essential, and therefore need not be expressed in the informal agreement.” Steen, 132 Mont. at 106, 313 P.2d at 1020 (citations omitted). In other contexts, we have explained property description is adequate if it contains sufficient information to permit the identification of the property to the exclusion of all others.” [citations omitted]. ¶19 As quoted above, the Stipulation provided a detailed “lay,” or non-surveyor’s, description of the new boundary that included points marked on the accompanying diagram, the direction of the new boundary lines, and their distances in feet. This language, along with the diagram itself, provided a very clear description of the small portions of property the parties were trading, as well as the new boundary line. Miller at para.18. (Emphasis added) The Court in Miller relied on a finding that because pecuniary compensation would not afford adequate relief, and damages would be difficult to ascertain, specific performance of the agreement was appropriate. The facts of Miller v. Kleppen, and the Court’s holding on the enforceability of the parties’ agreement in that case, compel a conclusion that the transaction between the developer and the city is fully enforceable, and not affected by the clause requiring the parties to cooperate in the siting of the 6-foot permanent easement within the 25- to 46.39-foot temporary easement. To complete a boundary line adjustment in the normal legal manner requires the parties not only to agree to the basic transaction, but to agree to at least three additional steps. The parties must employ and compensate a surveyor to prepare a survey showing the new and old property lines. The survey must be signed by all owners, approved by the county surveyor, approved as to form by the clerk and recorders office, and recorded with the county clerk and recorder. A survey, by itself, ---PAGE BREAK--- however, does not transfer property. In order to complete the transaction the owners of each parcel must sign and record quit claim deeds releasing any right or title to the new parcel that their neighbor will own as described by the survey. Only at that point is the transaction complete. The initial agreement on the actual boundary adjustment, the hiring and compensation of the surveyor, the signing of the survey by all of the owners, and the signing of quit claim deeds by all of the owners, requires extensive cooperation between the owners of the two properties. If any owner refuses to cooperate at any of these four crucial stages, a boundary line adjustment comes to a halt, unless there is court intervention. In Miller v. Kleppen that is exactly what happened. One group of owners refused to take any steps after the parties signed the initial agreement, and the other owners were forced to bring an action for specific performance. Even though their transaction could not be completed without mutual agreement by the parties on at least three crucial stages, none of which they agreed upon, the court still found it to be a valid and enforceable agreement and ordered specific performance. Here the terms of the agreement were set out in official city council meeting minutes and incorporated into two detailed documents which were signed, recorded, and which completed the primary transaction. There was no suggestion in any of the proceedings or paperwork that the parties were not completely committed to the exchange of real property interests. Unlike Miller v. Kleppen, all necessary legal steps were taken to finalize the exchange. A 25- to 46.39-foot-wide temporary easement was created. Because the specific location of the 6-foot-wide permanent easement could not be determined for 38 years, the parties acquiesced with the status quo of their transaction for that period of time. Because of the recording of the documents, during the entire 38 years all owners of the condos were charged with notice of the terms of the easement agreement, and there was no objection voiced. If the Court could find that the Miller transaction was an enforceable real estate contract deserving specific performance, it would certainly reach the same conclusion in favor of the city. In Miller v. Kleppin the Supreme Court sited its prior decision in Wicklund v. Sundheim, 383 Mont. 1, 367 P.2 403 (2016), as holding: Where an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement.” (citing Restatement (Second) of Contracts § 202(4)) Miller v. Kleppen at para. 15. In addition, the Supreme Court stated that if a remaining step “goes to the performance of the contract,” then it need not even be expressed in the original agreement. The agreement between the city and the developer occurred when they exchanged consideration in 1983. The designation of the specific 6-foot easement did not involve an additional exchange of consideration. It merely required performance by the city and the developer of an obligation required by the original contract. It required the parties to cooperate reasonably to fix the precise site of the easement that they created in 1983. In Somont Oil Co., Inc. V. Nutter, 228 Mont. 467, 743 P.2d 1016 (1987), the Supreme Court dealt with another claim that a contract was only an “agreement to agree.” The parties’ agreement left out a number of terms that that they would decide in the future. The court found that their agreement was enforceable, in part, because the parties performed as if their agreement was valid. The Court stated: The Nutters contend the result is that the agreement with Buffalo Jump was not a binding contract, but simply an "agreement to agree." ---PAGE BREAK--- As a general rule, the terms of a contract must be reasonably certain. See, Bishop v. Hendrickson (Mont. 1985), 695 P.2d 1313, 1314, 42 St. Rep. 259, 260. However, it is also true that “if the material elements are stated in general terms, all the details or particulars need not be stated.” McNabb v. Norine (1983), 204 Mont. 330, 335, 664 P.2d 927, 930. 743 P.2d at 1019 . An additional reason why the Buffalo Jump-Nutter agreement is a valid contract is because the Nutters performed under that agreement as if it were valid. . . . “Part performance under an agreement may remove uncertainty and establish that a contract enforceable as a bargain has been formed.” Restatement (Second) of Contracts 34 (1979). The parties performed under the agreement for nearly three years and such performance strongly indicates a valid contract existed. Therefore, we conclude that performance under the agreement combined with the actual terms provided demonstrate the existence of a valid contract. 749 P.2d at 1019. Does the transaction between the city and the developer meet these tests? Certainly it does. The city transferred valuable real estate (through abandonment) to the developer, without which it was impossible for the developer to build its project as planned. The developer, in exchange, transferred to the city a bike/ped easement that the city needed for its trail system. Those agreements were signed and recorded in 1983. The developer and the condo owners have owned and used the land they received for 38 years. The city has owned the trail easement for 38 years and relies upon it to complete its river trail. It has no other safe and effective route. If the parties’ agreement were not enforceable, how would they undo their situation? The condo owners can’t return the city’s property. Nor do they want to. The city doesn’t want to give up its easement. It could, but then it would have received nothing in exchange for its land, and its 38-year wait. It would be unable to build a safe and effective river trail. The parties are committed. They can’t go back. The only remaining question that the condo owners have raised is whether the parties’ mutual decision to delay setting the exact location of the easement creates such an uncertainty or confusion that the their exchange of land for an easement must be unraveled. Should the parties’ mutual willingness to delay the selection of the route until the city can knowledgeably propose a location condemn the entire transaction? There is no question that the city did not know where to locate the easement, and wouldn’t know for many years. Can the condo owners keep the valuable land they acquired and the city get nothing? That proposition makes no logical sense. As stated earlier, the city is a charter city with self-governing powers. It is entitled to exercise any power or authority not expressly prohibited by Montana Law. And its powers and authority are to be liberally construed, with every reasonable doubt resolved in favor of the city. Is it reasonable that such an entity isn’t qualified to decide what’s in its best interest? The developer was a Montana corporation and that voluntarily agreed to delay a decision, which may have aided in the construction of the condominiums. Is it reasonable that such a party can’t decide what is in its best interest? Can two parties to a real estate document never agree to create a wide temporary easement and delay the ultimate precise location of a more narrow, permanent easement until a later date? Neither contracting party is unsophisticated. They entered this transaction with her eyes open, and at least the city was represented by legal counsel. State law doesn’t set a high standard for determining who is capable of contracting. Section 28–2–201, MCA, provides, “All persons are capable of contracting except minors, persons of unsound mind, and persons deprived of civil rights. . . . Surely the parties have the right and power to decide that they will agree ---PAGE BREAK--- in the future for the precise location of the permanent easement, within a narrow strip of land, for a bike/bed route that is also acceptable to FWP. Finally, and without regard to any of the authorities and argument set forth above, the condo owners cannot challenge the enforceability of the city’s easement or any provision of the Grant of Easement because they allowed the statute of limitations to expire nearly 30 years ago. Section 27-2-202, MCA, provides, “The period prescribed for the commencement of an action upon any contract, obligation, or liability founded upon an instrument in writing within 8 years.” The Grant of Easement was recorded on October 13, 1983. The condo owners had until October 12, 1991, to file an action asking the court to determine that the Grant of Easement was unenforceable because the parties were required to mutually agree on the location of the 6-foot-wide permanent easement. Nor can they file any other type of action based upon the Grant of Easement. II. What relief is the city entitled to if the condo owners decline to cooperate with the city in selecting a route for the bike/ped path? In Story v. City of Bozeman, 242 Mont. 436, 791 P.2 767)(1990) the Montana Supreme Court discussed and updated its prior decisions regarding the “obligation of good faith and fair dealing.” It stated: “We hold that every contract, regardless of type, contains an implied covenant of good faith and fair dealing. A breach of the covenant is a breach of the contract. Thus, breach of an express contractual term is not a prerequisite to breach of the implied covenant. For every contract not covered by a more specific statutory provision, the standard of compliance is that contained in section 28–1– 211, MCA: ‘The conduct required by the implied covenant of good faith and fair dealing is honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.’ This is the same standard as applied to merchants under the Uniform Commercial Code. Each party to a contract has a justified expectation that the other will act in a reasonable manner in its performance or efficient breach. When one party uses discretion conferred by the contract to act dishonestly or to act outside of accepted commercial practices to deprive the other party of the benefit of the contract, the contract is breached.” 242 Mont at para. As a result, the agreement between the city and the developer (which binds the condo owners) contains an obligation of good faith and fair dealing. The obligation of the condo owners to cooperate in good faith and fairly with the city required that they identify to the city the route that they prefer for the city’s bike/ped path. It not only requires them to state their position, but also to negotiate with the city in order to identify a practical route, given all the facts and circumstances, for the construction of the city’s river trail. In the past the condo owners declined to accept several routes proposed by the city. They did not offer a counter proposal, other than to propose a route on the far side of the condominiums (far away from the river) and near Miles Avenue. The Grant of Easement clearly describes the easement to be “meandering. . . along the Whitefish River bank.” ---PAGE BREAK--- On March 9, 2018, the city Public Works Director wrote to the condo owners’ representative and clarified that the city would “not consider any location for the path other than between the river and the condominiums.” The letter noted that the city had proposed several different routes, none of which was accepted by the condo owners. It noted that the condo owners had not yet proposed any route between the river and the buildings. Then the city offered to accept any route proposed by the condo owners as long as it would be permitted by FWP. The letter requested that the condo owners either accept the city’s last proposed route, or propose another route within 60 days. Two and one-half years have passed, and the condo owners have not identified a route acceptable to them. The parties no longer have to agree on the location of the permanent easement. One party is empowered to decide. Still the condo owners won’t cooperate. Surely the condo owners have breached the obligation of good faith and fair dealing. Their breach exposes the condo owners to contract damages and/or the remedy of specific performance. Alternatively, the court could impose a route on the condo owners since there is such a narrow strip of land to contain the easement, and they have declined to cooperate. Or the condo owners’ breach, even when the decision is left entirely up to them, could result in the city selecting a route without any involvement by the condo owners. The condo owners, through their breach, have waived the right to help select the permanent easement. ---PAGE BREAK--- Attachment 2, Appendix 2 Exhibit A ---PAGE BREAK--- Exhibit B ---PAGE BREAK--- Exhibit C ---PAGE BREAK--- ---PAGE BREAK--- Exhibit D ---PAGE BREAK--- ---PAGE BREAK--- Exhibit E ---PAGE BREAK--- Exhibit F ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- Attachment 1, Appendix 4 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK---