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October 31, 2013 7:43 am

De-annexation plan dropped by developer after hearing concerns

Written by Tom Lawrence

A proposal to de-annex land from the city limits has been dropped after the Powell Planning and Zoning Commission voted to recommend against it.

The commission did so after Erik Petersen, a Powell developer, asked them to cast such a vote. Petersen had sought to remove 12 acres in the Whitlock II residential subdivision from the city limits and place it in Park County, but said he would end his effort after hearing opposition to it.

He repeatedly asked the commission “for a no vote” on his request. Petersen said he would not ask for the Powell City Council to rule on it, although he said he did not plan to build anything on the land and would sign a 10-year agreement not to develop the area.

“Now it’s done,” he said. “I didn’t want it to be a technicality. I’m not going to pursue it.”

However, on Wednesday, Petersen told the Tribune he “probably” wouldn’t try to have the land removed from the city limits. Petersen successfully sought to have property adjacent to the area de-annexed last year, and said he wants to be able to use the land like a farm, where he can run horses, burn debris and not have to follow urban regulations.

The issue first came before the commission at its Sept. 30 meeting, where it was tabled.

Monday night, Assistant City Attorney Scott Kath said after studying it, he found an area of state law “that caused me a lot of concern.” He said under state law, if a de-annexation would make an area of the city not contiguous with the city limits, it could be done only with the consent of all the owners impacted by the de-annexation.

The issue of contiguousness is not addressed in the state statute on de-annexation, and there has been no court ruling on it to guide him, Kath noted. But he said the “intent and the spirit of it, as well as the letter of the law,” is to promote annexation. The question is, does that also apply for de-annexation?

Petersen argued that a “30-foot flagpole section” of land would link city property to the rest of the city limits even if his property was removed from the city, so granting his request for de-annexation would not create an “island” of city land. But Kath and the commissioners said they were not persuaded by that.

Kath said the 30-foot stretch of land had never been platted or improved as a street. The city could vacate it since it doesn’t go anywhere or service any properties, Kath said. If that happened, there would be no contiguousness, he said, and city land adjacent to the area proposed for de-annexation would be surrounded by county property on all four sides.

Commission Chairman John Sides said the 30-foot piece of land is “not enough to build a street on,” and could not be considered a valid link to the city limits. “It’s enough to build an alley on,” Petersen replied.

Kath said he disagreed that the land would still be contiguous. Petersen argued that state law would allow the land to be annexed, so it should be legal to de-annex it.

Councilman Eric Paul, who served as the council liaison in the absence of Councilman Josh Shorb, said he felt such an argument was not valid.

“It seems to me annexation and de-annexation are two different things,” Paul said. “I’m not on board with something like that.”

Petersen said the city had done so for a development 20 years ago and that worked out well. That was a reference to the annexation of the land west of town that the Air Force used as housing for its officers and enlisted airmen serving on the bombing scoring base east of town. City ordinances require a property that is to be annexed into the city to be contiguous with the city, and this piece of property was separated from the city by a strip of houses still in the county.

According to Commissioner John Campbell, who was on the Planning and Zoning Commission then, it was annexed because at the time the city considered a city-owned road to the site could be considered making it contiguous.

“A mistake that was made 20 years ago does not mean we have to make the same mistake,” Sides said. Kath said he did not feel that earlier development was an error.

Petersen said removing the land from the city might breathe new life into that part of the community. The subdivision has been stalled for some time, he said.

“It’s a nice development in the wrong area,”  he said, “It just didn’t take off as it could. It sat there for 19 years.”

Campbell said it was planned as a “high-end development” and part of it worked out well. But not as much of the property was developed as was hoped.

The city sent letters to landowners after the Sept. 30 meeting, said Building Official William Petersen, who is Erik Petersen’s brother. The letter informed residents of the Oct. 29 meeting, but did not ask for their consent on the de-annexation.

Two affected residents, Jim and Diane DeLozier of 530 Sante Fe Trail, which borders the property in question, then spoke.

“I think we have significant issues about this isolation issue and the value of our property,” Jim DeLozier said.

He said there is a “huge drainage problem” and other concerns in that area.

“If this gets de-annexed, they are never going to get fixed,” DeLozier said.

He said while the claim is the land in Tract A would be a pasture, that was what was said about Tract B, which is now an off-road vehicle raceway, he said. “Everybody and their dog” races vehicles there, DeLozier said, and that creates noise and dust. If the de-annexation is allowed, no more development would happen, he said, and property values would either stagnate or decline.

Petersen said he had only heard from a woman who called him with questions and after he explained to her his plans, she seems satisfied. But he said hearing from the DeLoziers was enough to make him change his mind.

“You being against it makes me want to back off more,” Petersen said.

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