The Ely Times
A request for a road abandonment, sounds like an easy decision, right? Not many people really even pay attention when it’s on an agenda. It’s definitely not something you think about when your driving down a road. But, it’s big if you’re a business owner wanting to develop near that road, or you’re a business owner on the street concerned about traffic flow on the road that has the abandonment in question.
Back in December of 2017, an agenda item was placed on the Ely City Council’s agenda to abandon a portion of Avenue D between Highway 93 and the east side of 16th Street. It was discussed, comments were presented and in the end the city approved it.
Jason Woywod, Burt Woywod’s son, gave a presentation in December about the proposed hotel they are planning to put in next to the Prospector Hotel. Discussion for a variance was also on the agenda for construction of the four story hotel, which would exceed 35 feet.
The owner of VanCamp Towing, Robert VanCamp and his wife, Mikkie, submitted a letter stating they were against the closure of Avenue D if the abandonment was approved. VanCamp stated at that time that large vehicles travel through that road, and questioned how emergency vehicles would access the road without access to Avenue D.
Mike Lemich owner of the building that Wheeler Machinery is housed in, retained attorney James Cavilia with Allison Mackenzie to object to the proposed vacation or abandonment.
It was stated in a letter from Cavilia that the abandonment did not meet the criteria set forth in Ely City Code 8-1-10.
At this particular meeting the planning commission recommended to abandon a stretch of land 40 feet wide by 416’ long, going from Aultman Street to the eastern corner of 16th Street, while maintaining an easement of the Avenue D/Aultman Street because they have a sewer main access across Avenue D.
Richard Sears, counsel for Burt Woywod, said at that meeting, all the roads are 80 feet.
“If you give us the 40-foot piece, it enables us to have parking in this area and a one-way roadway. I can’t see how it’s a huge impact on traffic flow,” he said.
Sears also stated that if they had to adjust the footprint of the building, that meant they would have fewer rooms to occupy. “If they don’t have a sufficient number of rooms, this project does not have cash flow. If this project does not have cash flow, it does not work,” Sears said.
Councilman Tony DeFelice moved to grant a 40×416 abandonment on Avenue D between Highway 93 and the east side of 16th Street. Councilman Ernie Flangas, DeFelice, and Councilman Kurt Carson voted in support of it, and Council woman Jolene Gardner voted no. Councilman Sam Hanson was not able to vote since he was Mayor ProTem.
This issue came before the council again on Feb. 22, this time it was a request for consideration of a petition for vacation or abandonment of road or easement made by Robert James and Mikki VanCamp dba VanCamp Towing and Road Service.
At this meeting it was noted that the planning commission voted 4 to 1 to reject the abandonment VanCamp’s requested. The city attorney provided legal analysis that found that the public would be materially injured if the application was allowed to go through. The item died for lack of a motion.
On the Thursday, April 26, city council’s meeting, the agenda item this time was for discussion and possible action for approval of the Abandonment Order granting a portion of Avenue D to Prospector Enterprises Ely pursuant to the City Council’s Dec. 14 action.
The order states that the city council is satisfied that the public will not be materially injured by the proposed partial abandonment, and therefore the order that portion Avenue D is hereby abandoned. The order also included that the portion being abandoned reverts to the abutting property owner, Prospector Enterprises Ely.
City Attorney Chuck Odgers stated that on Dec. 14, the council approved the abandonment, an order is required to be signed in order for it to be approved. “The ultimate problem is that at this point of time, attorney for Mike Lemich and VanCamp is there is nothing to stop you from giving the final approval from December 2017. If you recall the exact legal description Avenue D was dedicated in 1907. It is up to you the city.”
Lemich asked for the letter from the attorney to be read into the meeting. The letter noted that Cavilia was writing the letter on behalf of his clients, Lemich and VanCamp, to object to the proposed approval of the order. The letter also included that they were opposed and continue to oppose.
A petition was filed with the District Court, and that it would be premature for the council to pre-approve it.
It appeared as though Lemich continued to try to ask the city to table the issue, without any luck on convincing the council.
Lemich said “I think that pretty much sums up this whole issue. The fact of the matter is, we did it right, this issue, I think you got to do it right, and if this council approves this, with this issue, wait til it pans out, however it pans out, i’ll be satisfied.
Sears said, “My client is not part of the lawsuit, so I’m not here to speak about it … I viewed the lawsuit briefly. I didn’t see a request for an injunction started, you know what the problem is were spending money and that’s what the problem is and were spending money in anticipation of making money, especially the anticipation of improving the community.
“We’re going to increase the value of the properties all over in that area. This is an important project for everybody, you made your decision in December I don’t see any reason you shouldn’t stand by it.”
Odgers went on to explain that that no preliminary injunction had been filed on the city. A preliminary injunction is a petition that would be filed with the district court saying we want to stop this process.
“At this point there is no injunction filed, not a letter saying we have to stop this. There has been no petition for the injunction,” Odgers said.
“You know that’s his opinion, and I take his opinion with a grain of salt. The fact of the matter is we have a lot to lose, we have a lawsuit, whatever the outcome is, if it’s in our favor fine, I hope it’s in both our favor.”
Hanson said, “There hasn’t been any action yet, and once the council takes action tonight then you can proceed with your lawsuit is what I think were trying to get across.”
Lemich said, “That’s not what our attorney said.”
Carson tried to address the council to see if they would be interested in tabling the item to see how this plays out in court.
Burt Woywod said, “How many thousands of dollars a day to do you want me to commit to? You can’t hold this up…I have done nothing but spend money. The only reason Mr. Lemich wants to stop this is because he owns the property next to mine and he plans on building on that property or selling it to competition.
“We build a hotel then no one else is going to build a hotel next to that and that’s his ultimate goal. I’ve already spent thousands of dollars on this project, I don’t want to say what the next step is going to be, I don’t want to sue like Mr. Lemich, I really don’t want to sue, as Mr. Odgers says at this point you have to approve it and then afterwards a judge can make a decision.
“Tomorrow I’m going to be on the phone with contractors to go ahead. Financially, I’m in real real deep and there’s no way I’m going to table this and wait another month, and another month. With all the people I’m going to hire, you should be jumping up and down with joy instead of some wrecking yard in the back. The very next day you voted on it, I started spending money.”
The conversation began to get heated as Burt Woywod continued on saying,”If Lemich wants to sue, he can make whatever decision he’s going to make, this is a $12 million project, this should be decided in a blink of an eye, Love’s spent $3 million, I’m going to spend $12 million, you can’t change your mind at this time, it’s impossible.
The motion was made, 3-1 with Flangas, Carson and DeFelice for the abandonment and Gardner voting against it. Gardner said “I have to say no, I think the hotel would be wonderful, but I’m talking about the road period.”
The City’s building official, Brad Christensen was contacted to inquire if any permits have been applied for, and he indicated no contact has been made with him.