A coffee stand has been shut down by a Burger King construction project on the south side of Kalispell, and a legal scuffle is brewing over whether the stand can stay where it is.

The Burger King is being developed by BSK Kalispell LLC, a company owned by former Montana Congressman Denny Rehberg and his wife, Jan. 

On the morning of June 24, fences went up around the lot where the Burger King will be located in order for site preparation to begin.

The fencing went up directly behind the Black Anchor Espresso stand, effectively eliminating the ability for customers to drive through the service windows on either side of the small building. The only option would be for customers to pull in and then back out.

“Without any warning, they completely shut us down for business,” said Michelle Riska, who owns and operates Black Anchor Espresso.

However, Riska and her ex-husband, Greg, were long aware there could be problems with the location of the stand because of a no-build viewshed easement and because of the necessity for drive-through customers to cross part of the neighboring property that is now the Burger King site. 

Those issues were pointed out by the Kalispell Planning Department in an “acknowledgment” letter Greg Riska signed in April of 2011 before he was issued a building permit.

“I understand that we are proceeding with the project at our own risk,” the letter states.

The viewshed easement was attached to the property in 2007 as a means of preventing any structures from being built on the coffee stand property, which Riska leases from the Guesthouse Hotel, formerly the Outlaw Inn.

Under a lease that was initiated in April 2011, the Riskas agreed “to return the property to its previous condition” when the lease expired on Jan. 30, 2014.

Sean Frampton, a Whitefish attorney representing the Rehbergs, asserted that provision in a statement released to media.

“BSK Kalispell, LLC, regrets that this matter has become an issue and only wishes for the Riskas to perform as they agreed. The Riskas, who own the coffee kiosk, agreed in writing to remove their kiosk when their lease expired on Jan. 30, 2014. BSK Kalispell purchased its property as the location for its new Burger King restaurant upon the assurance that the kiosk would be timely removed.”

Michelle Riska said that would be true except for one thing: She signed a new lease with the Guesthouse Hotel in February this year that does not stipulate that the stand must be removed. And she says the owner of the Guesthouse Hotel believes the coffee stand doesn’t amount to a violation of the no-build viewshed easement.

That’s the legal issue that is likely to come into play.

“He wants his Burger King to be viewed from the highway. That’s what this is about,” Riska said, referring to Rehberg. 

Riska said she is considering a remodel of the stand that would allow customers to approach it in a U-turn fashion, but that would require the removal of old concrete pads that used to be occupied by an ATM and a sandwich shop.

She has an attorney and she believes that it will have to be proven in court that the stand violates the no-build viewshed easement.

The 2007 easement states that “no part” of the property where the coffee stand sits “shall be built on or used in any manner whatsoever if the result of such construction or use would be to obstruct the visibility of and light to the buildings” that are built on the lot where the Burger King is now being constructed. 

What that means, exactly, will have to be sorted out.

Riska said she’s willing to take other actions, such as moving the coffee stand farther north toward the Michael’s convenience store.

“There are easements everywhere. You’re supposed to work things out with people,” she said. “You’re Denny Rehberg and you’re supposed to be in favor of small business.”

Riska said the coffee stand was the main source of revenue for supporting her three children. Since it has closed, she has taken a job at a Bigfork casino.

The statement from BSK Kalispell points out that the fence was put up as a standard practice to protect the public and workers during construction.

“BSK Kalispell is excited about becoming part of the Kalispell community. The new Burger King restaurant will generate approximately 50 construction jobs and 40 permanent jobs for restaurant employees,” it concludes.

Reporter Jim Mann may be reached at 758-4407 or by email at jmann@dailyinterlake.com.