The matter of whether a water line on Beacon Hill would become fully public property won’t be settled until 2022.
On Tuesday night, following lengthy discussions and presentations by city staff and developer Harold Musser, city council members said the flood of new information presented on an already complicated case required more time to determine and members unanimously tabled the vote to the first meeting in January.
While the vote is actually to approve the final plat of a commercial subdivision on Musser’s Beacon Hill properties, only one issue is not settled and it has pitted claims of private property rights against claims of the public good and future city development.
It involves a disagreement over whether a water line, installed in 2018 and paid for by the Cody School District and Musser, should be a fully public water line and thus have a full easement, or have a limited easement that would allow for city maintenance, repair and flushing of the water line, but keep rights to who gets to connect to the line in the future.
The city will try and tackle the issue during its first meeting of January, while in the meantime city council member Heidi Rasmussen asked attorney Scott Kolpitcke to look into the legality of allowing Musser to have his limited easement.
“I’d like to know if a restrictive easement is workable,” she said. “Mr. Musser doesn’t want his water line extended and city staff does, but if he wants to put in a water park, he may need all of that flow. Legally, can that work?”
She also asked for more information on exactly what fire marshal Sam Wilde would require for the subdivision, as city staff and Musser did not agree on that point either.
The vote to table came a week after a lengthy, sometimes contentious discussion between city officials, Cody planning and Zoning members and Musser when his commercial subdivision went before the P&Z board for its recommendation.
Board members voted 5-1 with Richard Jones opposed to recommend a limited easement on Musser’s proposed final plat for a commercial subdivision that allows for maintenance and servicing of a water line that had been built by the developer, but no expansion.
Member Cayde O’Brien, in making her motion, and Carson Rowley, in seconding it, said it was a way to split the difference between two sides that couldn’t come to an agreement.
“I’m trying to take both concerns into consideration,” O’Brien said.
At city council, city planner Todd Stowell said public works would not accept a situation where the city would maintain a water line yet not have full ownership of it.
Stowell also said in his presentation that further research conducted after the P&Z meeting confirmed staff’s understanding that the water line was to be turned over to the city and granted a city easement, but that the developer and his engineering firm did not fulfil their obligation by preparing and granting such easement in the disputed area.
Musser disputed this, saying the architectural drawing included references to a document showing what the smaller, previously approved easement was for.
Both Stowell and Musser, in their respective presentations, provided city council with the architectural drawing from 2018 showing the easement plan.
“The Planning and Zoning Board lacked the documentation about the construction plans and easement ... and believed it appropriate to allow a restricted easement to be granted on the segment of waterline north of Lot 5, in which the city would be able to maintain the line and utilize the fire hydrant, but not have full right of ownership.
“The conditions of the Planning and Zoning Board recommendation are outdated if the council accepts the Fire Marshal’s fire hydrant plan as the plan authorized for the subdivision, and easements are granted for city ownership and maintenance of the water mains as demanded by public works.”
Musser countered by saying he had spoken with fire marshal Sam Wilde, who told him what he currently had on the property as fire hydrants and water lines was sufficient at the time.
Public Works Director Philip Bowman said that, while it appeared the line was intended to be made public, it was never awarded an easement. Stowell said it was an oversight made by the department prior to Bowman’s time.
Musser said he was frustrated with the late change after he and his engineers had worked to accomplish all of the tasks detailed in the preliminary plat. He also provided the history of the water line, which had been funded by the school district and himself to provide water to both properties. Musser then bought more of the school’s Beacon Hill properties in an auction in 2019.
He objected to the proposal by Stowell and Bowman to give the city a full 25-foot easement to the city which would, in addition to allowing servicing and maintenance of the line, allow expansion of the line.
“I am not willing to give the city a blanket easement across that property,” Musser said in front of P&Z. “The preliminary easement that was approved by this board, by city council, that is what I will go with.”
Stowell said one issue with the process was that it essentially was happening in reverse of the normal development due to the infrastructure in place. He said normally, a subdivision is proposed and then utilities constructed to accommodate it.
But Musser has a long history with much of the land around Beacon Hill, having sold some to the school district and then bought some of it back over the years as the district sold land to pay for other projects, including the new transportation facility on Beacon Hill.
He said when he first bought property in 1982, he recognized the need for improvements, levelled off the land at his expense and then suggested the city extend its water lines out that way.
Musser said he worked well with the school district on infrastructure improvements to properties and then did the same when Kip Thiel bought the other chunk of land auctioned off by the school district in 2019 to develop a subdivision.
“I’m sad it has gotten this far,” he said at the P&Z meeting. “I can work along with Kip Thiel, I worked with the school, but it seems there’s something down here at the city, that we can force old Harold to do one thing. It’s not going to happen.”