Agenda - Planning Commission - 03/06/2008

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Zoning Bulletin utility easements were reserved only for the subdivision. Sunshine claimed the city only had a right to use the surface of the road for ingress and egress. The city questioned Sunshine's standing -or right----,to bring the action. The city argued that the northern portion of Mohan Road where the sewer construction project was taking place was unques- tionably dedicated to the public. Therefore, the city argued, Sun- shine did not have a possessory interest in the land and could not contest the city's use of the road for the sewer line. The record reviewed by the court included an affidavit by a pro- fessionalland surveyor, Don Oakley. Oakley stated that the north- ern portion of Mohan Road was conveyed to the public in the ded- ication deed. He further stated that this portion of road was not included in the description in the subdivision plat. He also stated that this portion of road was the area of the sewer line construc- tion. Oakley noted that the southern portion of Mohan Road was within the subdivision plat and dedicated to the public in the plat. Oakley;s affidavit was not disputed by the parties. The city also counterclaimed for damages suffered by the inter- ruption in construction. The city claimed that Sunshine intention- ally interfered with performance of the contract to construct the sewer-line. The city sought from Sunshine the extra amount it paid Western because of the delay. Cyclone asserted that it was the only landowner involved. The district court granted summary judgment-finding no sig- nificant dispute of facts and deciding t4e issue on law alone-in favor of the city on both Sunshine's action and the counterclaim. As to the counterclaim, the district court found that Cyclone, alone, was responsible for the delay in construction. The Sunshine landowners appealed. DECISION: Judgment affirmed. The court found that the city's use of Mohan Road for installa- tion_ of the sewer line was proper. In reaching this conclusion, the court disagreed with Sunshine's argument that the plat took prece- dence over the dedication deed, and thus utility easements were re- served only for the subdivision. The CQurt cited Oakley's undisput- ed affidavit. The court said that because the plat and deed referred to different properties~ Sunshine's argument failed. The CQurt next addressed the issue of Sunshine'S standing to bring the action against the city. The CQ\ut agreed with the citts argument. The court found that because the northern 'portion of . - 8 148 .~, \ i f ~\