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