The Cody City Council has approved preliminary plans submitted by developer Ed Higbie for the 32-lot Shadow Mountain Subdivision No. 2 near Cody Middle School.

Raw water and wetlands status were among issues discussed during city reviews of a Cody developer’s plans to expand the Shadow Mountain Subdivision south of Cody Middle School.

The three-phase Shadow Mountain Subdivision was originally platted in 1993 and completion of Phase 1 then followed.

Developer Ed Higbie has spent years preparing for the subdivision’s second phase. Site plans of 32 lots in a medium-density residential zone include three cul-de-sacs for single-family homes on land that sits below an upper terrace.

“Overall, this phase of the subdivision has been well designed,” said Todd Stowell, city planner, while reviewing preliminary plans at City Hall.

A subdivision developer is responsible for infrastructure such as pavement and street lights, curb and gutter, and utilities as well as engineering and design.

In an April 1 letter to the city, engineering firm Morrison Maierle said Nicholson Construction of Cody is expected to start Phase 2 this summer.

During recent reviews of preliminary plans by the city planning and zoning board and then city council, Stowell detailed a number of matters to work out before a final plat is submitted.

“This is a complex subdivision review due to issues ranging from whether a raw water system should be installed in the subdivision to dealing with an abandoned oil-gas line, high water table, mapped wetland and geotechnical recommendations for the housing due to fill dirt,” Stowell said in a summary report. Other issues involve maintenance of a drainage pond and donated land adjacent to Ted Ebert Park.

As part of its action April 28, the P&Z board supported a list of 15 conditions for approval. The board did not make a recommendation to council about the raw water system or whether the Cody Canal ditch along the west property line should be piped.

Accepting the P&Z board’s recommendation, the city council on May 5 approved the preliminary plat with variances that waive the alley requirement, allow a 50-foot street right of way width and postpone improvements to the future Shadow Mountain Subdivision Phase 3 on land to the east.

The council did not grant Higbie’s variance request for 4-foot-wide sidewalks – the width of Phase 1 development. The updated sidewalk standard of 5-foot widths was adopted as part of the city’s 2014 master plan, which also reduced the street width by about 9 inches.

Wetlands in Cody?

Stowell said a National Wetland Inventory Map shows a wetland toward the south side of the proposed development area.

“This property used to be really wet,” he said, explaining at one time it had wetland characteristics. “But for some reason, it’s not there anymore.”

Saying springs from a hill above the ditch have dried up over the years, Higbie said the Army Corps of Engineers has verified the property is no longer considered a wetland.

“Through the years we were able to find fill material to fill (low areas) in,” he said, adding some lots should not have basements.

Stowell said the groundwater is down far enough that 31 lots can be developed.

An August 2019 geotechnical report addresses how to adapt construction based on water levels, soil type and potential for loose fill.

“Those recommendations will need to be followed by future homebuilders,” Stowell said in a summary. “The report also identifies groundwater levels, which vary from 5-7 feet below existing grade in the area of the proposed lots.”

He recommended Higbie install wells – pipes in the ground to monitor water levels – as soon as possible and continue monitoring throughout subdivision construction to identify seasonal fluctuations before houses are built.

When P&Z board member Richard Jones asked if requiring wells were justified, Stowell said the geotechnical report recommends continued water reading to know if the water table fluctuates and to identify trends.

“That’s primarily so if someone comes in for a building permit in January, he or she needs to know if they need to prepare for water fluctuation,” Stowell said.

Although he didn’t have documentation from the Army Corps readily available to prove the property is no longer considered wetlands, Higbie did provide a 2014 geological study by Thomas Flack of Rimrock Engineering. After conducting several forms of analysis, the natural resources consultant concluded to delineate the property as a wetland is an error, and the chance of seasonal flooding in the area is unlikely.

Stowell expressed concern about the city’s liability, saying in his experience elsewhere he’s seen people “really get hammered on that” by the Army Corps of Engineers.

“If we don’t disturb the wetland, what liability does the city have?” asked Higbie.

The developer said he expects to resolve the issue once Army Corps documentation is obtained.

Raw water

Access to raw water appeals to city officials and Higbie. Who should pay the cost to install the system remains an unsettled point.

Stowell said public works would make the route a priority if Higbie would commit to installing an internal irrigation system for the subdivision.

Higbie said he’s open to adding raw water lines if the city extends raw water pipes to the subdivision before construction begins.

The closest raw water is on the east side of Mentock Park near Blackburn and Sheridan.

“(Shadow Mountain) is one area that appears easy to extend the raw water system,” Bowman said.

Stowell and Bowman said it’s unlikely the city could extend raw water to the subdivision by the time construction starts. But it could possibly bring the system over before all homes are built.

The city plans to update its water master plan over the next year. Plans are for a consultant to evaluate Cody’s domestic and raw water systems. Results will provide information on routes and pipe sizes needed to extend raw water.

Bowman said the city could use that information to perhaps apply for a state grant to fund such an expansion.

“This (subdivision) property provides a key extension to bring raw water to the properties farther to the east still not developed,” Bowman added.

An alternative, to put a raw water system in Cougar Street later, would result in significantly higher cost, he said.

Looking to future development, Stowell said if the raw water isn’t extended now, the city would landlock itself, making it difficult to run raw water farther down the line.

Higbie maintained that the expansion should be a city project.

“For me to prepay the expense of design and put in a raw water system – it seems fair I get some sort of cost share when it comes time for the grant,” he said.

At the same time he suggested caution about relying on state money.

“There’s a lot of ifs,” Higbie said. “Some of these grants are going to disappear.”

Council members struggled to find an agreeable solution.

Expressing sympathy for the cost and conditions developers face, Glenn Nielson questioned if the city has the right to make such a request.

“I wonder if we get out of bounds sometimes,” he said.

Stowell said subdivision code provides the authority.

Heidi Rasmussen said she would be okay requiring Higbie to install a raw water system depending on cost.

“I hesitate to require something that may or may not come to fruition,” she said.

After Bowman offered to work out upsizing and cost sharing, the council directed Stowell and him to continue working out a solution with Higbie, who was agreeable to further discussion.

Park and pipeline

When Higbie first developed the Shadow Mountain Subdivision he set aside 1.8 acres, which is now Ted Ebert Park.

The donated open space, required by subdivision ordinance, is more than enough for the total 90 lots that will eventually make up Phases 1 and 2.

Because there is concern about groundwater along a strip of land toward the south end of the property, Higbie offered to donate the 32nd lot to the city.

“The groundwater level is so high it’s not usable (for housing),” Stowell said.

Higbie’s proposal is to set aside some of the land for a public use trail system and another portion to capture stormwater. The remainder of the lot is the hillside and Cody Canal-ditch easement areas that are also not fit for development.

Stowell said there is a benefit to accepting the donated tract; however, due to liability, he was concerned about an abandoned oil-gas pipeline buried along the property.

Higbie saw no reason to remove the pipeline.

“We don’t need to dig it up and cause a problem,” he said.

At the council meeting, Stowell said whether the pipeline is removed doesn’t matter.

“I just want to make sure it’s clean,” he said.

In their vote to approve the preliminary plat, council members amended a condition to remove the oil-gas pipeline. They left in the part saying the land must be deemed clean by appropriate agencies before it is transferred to the city when the final plat is recorded.


The Shadow Mountain Subdivision No. 2 drainage plan shows stormwater flowing across the west end of Ted Ebert Park, which the city council chose to allow.

During the preliminary plat review, Stowell said the grassed channel should be very gentle and have sod so it’s still usable as a play area. He recommended installing the stormwater retention basin, which would go south of the swale, as far south as possible in case the city ever wants to expand the park.

Developer Ed Higbie asked the Cody City Council to accept ownership along with maintenance responsibility for the retention basin.

Because it will collect drainage off city streets, the city should take care of maintenance, he said.

Bowman agreed there is runoff from developed streets.

“However, there’s added runoff generated by the developed site from homes, driveways and other impervious surfaces,” he said. “So it’s a combination.”

Stowell recommended the council accept ownership only because that alleviates the need for homeowners to carry liability insurance. But homeowners should maintain the subdivision stormwater basin that serves their subdivision, he said.

“It’s what we’ve done in recent history,” Stowell said.

Bowman said public works does not have a specific funding source for retention basin maintenance. Costs would come from the general fund.

“Streets crews would have to do (the maintenance) and that adds to the tasks they already have to do,” he said. “It’s a challenge for us.”

Cody’s streets crew maintains 11-15 pond sites – sites adopted before the city changed its practice.

The council accepted ownership while retaining the condition that Higbie submit a maintenance or homeowners association agreement for the stormwater basin with the final plat.

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