102483 CC Reg AgP
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CITY OF SHOREWOOD
REDULAR COUNCIL MEETING
MONDAY, OCTOBER 24, 1983
COUNCIL CHAMBERS
5755 COUNTRY CLUB ROAD
SHOREWOOD, MN 7: 30 fM
AGENDA
CALL TO ORDER:
B. Roll Call:
Haugen ~-L
Shaw
Stover
Gagne
Ma80r Rascop -
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A. Pledge of Allegiance and Prayer
1. APPROVAL OF MINUTES:
A. Regular Council Meeting - October 3, 1983
(attachment #la]
2. CITIZEN I S FDRUM:
~ Ron Kokesh - Fence Request, 26260 Birch Bluff Road
(attachment #2a]
B. -La.1.J..y 1.'-'-"....11....11 ~ 3rd Avenue - Road vacation request
C. Louis and Colleen Bellarrw - Sign Request, Covington Road
(attachment #2c]
3. 7:45 PIvI - PUBUC HEARING - SIMPIE SUBDIVISION AND VARIANCE REQUEST:
Location:
Applicant:
5860 Ridge Road
Mr. Richard Smith
(attachment #3a]
(attachment #3b]
(attachment #3c]
4. 8:00 PM - PUBUC HEARING - REVIEW OF CONCEPI' STAGE OF PROPOSED PIANNED UNIT
DEVELOFMENT :
Location:
Applicant:
5474 Covington Road
Mr. Robert S. C. Peterson
(attachment #4a]
(attachment #4b]
(attachment #4c]
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REGUIAR COUNCIL MEETING
MONDAY, OC'illBER 24, 1983
page two
5. 8:30 PM - PUBLIC HEARING - REQUEST FOR VARIANCE 'ill ALTER A NONCONFORMING USE:
Location:
Applicant:
4812 Ferncroft Drive
Mr. Henry Arent
[attachment #5a]
6. PRESENTATION OF CITIZENS NOrICE: Mr. Jim Beal
7. PIANNING COMMISSION REPORI':
A. Review of Comprehensive Plan Amendment Guidelines - First Reading:
[attachment #Ta]
B.
8. PARK Ca.1MISSION REPORI':
A.
9. AT'IDRNEY' S REPORI':
A. Garber - Edgewood Road Problem:
[attachment #9a]
10. ENGINEER'S REPORI':
A.
11. AIlv1INISTRA'illR' S REPORI':
A. Northwest A.M.P.S. - Third Reading of proposed ordinance change.
[attachment #lla]
B. Approval of Resolution approving rear yard setback variance. (Robert Brown)
[attachment #llb]
C. Fire I.8ne Report - Birch Bluff Road
D. Report on Cathcart Park Area Complaint.
E. Special meeting to review insurance bids.
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11. ArMINISTRATOR' S REPORI' - continued
F. Other i terns
12. MAYOR I S REPORT':
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REGUlAR COUNCIL MEEI'ING
MONDAY, OCTOBER 24, 1983
page three
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CITY OF SHOREWOOD
REGULAR COUNCIL MEETING
MONDAY, OCTOBER 3, 1983
COUNCIL CHAMBERS
5755 COUNTRY CLUB RD.
7:30 P.M.
M I NUT E S
CALL TO ORDER:
The regular meeting of the Shorewood City Council was called to 'order
by Mayor Rascop at 7:30 P.M., October 3, 1983, in the Council Chambers.
PLEDGE OF ALLEGIANCE
The meeting opened with the Pledge of Allegiance and a Prayer.
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ROLL CALL:
Present:
Staff:
Mayor Rascop, Councilmembers Haugen, Shaw, Stover and
Gagne.
Attorney Larson, Engineer Norton, Finance Director Beck,
Administrator Uhrhammer and City Clerk Kennelly.
APPROVAL OF MINUTES
Gagne moved, seconded by Haugen, to approve the minutes of September
26, 1983 as written. Motion carried unanimously.
CERTIFICATION OF DELINQUENT UTILITIES RESOLUTION NO. 70-83 &70A-83
The Public Hearing was opened at 7:30 P.M. to review and adopt the
delinquent Sewer & Water Utility Service Charges for the purpose of
certification to the taxes payable in 1984. The Public Hearing was
closed at 7:32 P.M. with no public comment.
Gagne moved, seconded by Shaw, to accept and certify to Levy #8974,
Delinquent Sewer Service Charges, and to Levy #8973, Delinquent Water
Service Charges, to taxes payable in 1984. Motion carried unanimously.
SEWER SERVICE CHARGE REQUEST
A written request was received from Mr. & Mrs. Wallace Peck, asking
, for the removal of Sewer Service Charges against the Estate of Mrs.
Gladys Peck, located at 25~S5 Wild Rose Lane, because it has been
vacant since August 15, 1982.
Haugen moved, seconded by Gagne,' to deny request and to instruct the
staff to recommend a policy for future requests on vacancies and
seasonals. Motion carried unanimously.
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REGULAR COUNCIL MINUTES
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OCTOBER 3, 1983
MATTERS FROM THE FLOOR:
BUILDING PERMIT-METRO'WASTE'CONTROL~COMMISSION
Fred Steinburg, representing the M.W.C.C., requesting a permit
to install a cement slab on the existing Lake Virginia Lift
Station for the purpose of installing an "Odor Control System".
Construction was started without a building permit request. The
Building Inspector informed them, at the time of the building
requ~st, that a Conditional Use Permit would be required before
a permit could be issued.
Gagne moved, seconded by Haugen, to allow the installation of the
slab, on the condition that the Planning Commission approve the
Conditional Use Permit request, or the slab will have to be removed.
Gagne, after discussion, withdrew his motion and the withdrawal was
accepted by Haugen.
Haugen informed M.W.C.C. to proceed with the Conditional Use Permit
request.
CATHCART PARK.AREACOMPLAINTS
Gary Carlson of Chanhassen voiced various complaints and requests
for the Cathcart Park Area:
1] Regrade the "Cartway" next to the tennis courts for
correct drainage.
Request the City to
Request to have the
the road edging.
4] Request for sign placement on West 62nd street and Cathcart
Drive curve.
2]
3]
maintain the "Cartway".
City remove the telephone poles forming
Haugen moved, seconded' by Gagne ,. to request a speed study for the
purpose of signage., Motion carried unanimously.
Staff will have a report ready on the requests 'at the next: Council
Meeting.
ORDINANCE AMENDMENT ..,. NORTHWESTA.M.P.S.-'Second Reading
Council reviewed the Ordinance Amendment arid made some changes.
Haugen mov:ed to. accept the second reading, to include recommended
changes and return for a third reading.. Seconded by Stover.
Motion carried unanimously.
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REGULARCOUNCILM~ES
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OCTOBER 3, 1983
FENCE PERMIT'- .RON KOKESH . RESOLUTION NO. 72-83
Ron Kokesh, 26260 Birch Bluff Road, was represented by Stephen
Davis, in his request for a fence permit variance. Attorney
Larson interpreted "adjacent" not including across the road. A
letter was received from adjoining neighbor, Mrs. Christensen,
in approval of the fence request.
Haugen moved, seconded by Stover, to approve the request as
recommended by Planner Nielsen. Motion carried - 4 ayes, 1 nay
(Rascop).
ATTORNEY'S REPORT
EDGEWOOD ROAD~ UNDEDICATED PORTION
Attorney Larson reviewed for the Council and requested direction
on pursuing road right-of-way on a undedicated portion of Lot 3
and part of Lot 4, Sampsons Upper Lake Minnetonka. Council re-
quested him to obtain as much as possible for future improve-
ments and snow plowing area.
Council Break . . . . . . ... . . . . . . ... . . . . .9: 05 - 9: 07
'BUDGET'REVIEW
Administrator Uhrhammer reviewed the proposed Budget and some of the
largest expenditures in the Budget.
Public comments were taken from:
Pat Gorecki, Mary Cronin, Mrs. Gus Gerber, Tore Gram, Alice Wendt,
Billy Maddy; Gene Clapp, Ed Boltman, Keith Bedford,. Bob Reutiman,
Harry Niemela, Mike Pierro, Jan Towne, Stanley Moy, Dave Little-
field and Bob Shaw.
Concerns were:
How does the City intend to prevent future financial problems?
Why were the City wells dug?
Why not abandon the existing well?
Make water users responsible for, all the costs of the system.
What" is the dollar amount represented by a mill?
Work at the. correct", solution to correct the current financial
deficits..
Future anticipated tax increases.
Question on legal expenses.
Complaints on labor personnel.
What would happen if the City went bankrupt.
Effect of tax increases on fixed income residents.
Council and staff responded to each of the concerns of the citizens.
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October 12, 1983
Mr. Brad Nielsen
Shorewood City Offices
5755 Country Club Road
Shorewo6d, - MN ~55331
Dear Mr. Nielsen
We are writing in an effort to enlist your aid in se-
curing two "Slow Children" signs on Covington Road on
the east and west approaches to our home. We have two
children; ages 4~ and 2~, who~ even under our strictest
supervision have occasionally found their way to the
road. This is our third effort in asking the City of
Shorewood for help. We have called the Council Offices
and spoken with the Council'SecretarY'.who. put;us:on-a
waiting list. This action has obviously not solved the
problem. We have called the police. They offered to
set !'speed traps" along the road in an effort to diseourage
speeders. We have never observed the "traps". How-
ever these efforts by the police are only temporary
solutions to the problem.
Perhaps a d~scription of the area in which we live
will help you to understand our problem. After a
driver turns on to Covington Road heading west, ours
is the only house helshe will encounter before Ridge~
road (approximately \ to ~ mile}. Obvioual~ the dis-
tance 1s the same for a driver heading east. The black-
top proceeds passed Silver Lake and a good deal of seemingly
uninhabited terrain. The drivers seem to adopt an
attitude of driving "in the country" therefore allowing
them to speed with little concern of being apprehended
by the police and little fear of a child running into
the road. It takes little imagination to conclude that
this bucolic daydream could end in tragedy.
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Nielsen/Bellamy
Page 2
Please help us make drivers aware that this area
is indeed inhabited and that children are present
by asking the board to oreler that "Slow Children"
signs be placed on Covington Road at the east and
west approaches to our home. We are convinced that
any driver who is made aware of the children will
not take his/her responsibility lightly.
Thank You,
_ 't'itfj/( &tdlj~?Ij/
Colleen Bellamy / /
Lucas Bellamy (/
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Louis R. Bellamy
Parents of Sarah and
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LEGAL NOTICE
PUBLIC HEARING
CITY OF SHOREWOOD
NOTICE IS HEREBY GIVEN that the City Council of the City of
Shorewood will hold a Public Hearing in the Council Chambers
of the Shorewood City Hall, 5755 Country Club Road, Shorewood,
Minnesota, on Monday, 24 October, 1983 at 7:45 PM, or as soon
thereafter as possible. The purpose of the Hearing is to consider
a request by Richard Smith for a simple subdivision and variance
to create a lot not abutting a public street on property located
at 5860 Ridge Road, said property described as:
TRACT A, Registered Land Survey No. 472, Files of
Registrar of Titles, Hennepin County, Minnesota.
Except that part of said Tract A, lying north-
westerly of the centerline of the road easement
as shown on said Registered Land Survey No. 472,
and lying northeasterly of a line drawn parallel
with and 60.00 feet southwesterly measured at
right angles from the northeasterly line at said
Tract A.
PID #36-117-23-31-0021
Oral and written comments will be considered at that time.
City of Shorewood
SANDRA KENNELLY
City Clerk
To be published 12 October, 1983.
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MAYOR
Robert Rascop
COUNCIL
Jan Haugen
Tad Shaw
Alaxander Laonardo
Kristi Stover
ADMINISTRATOR
Doug Uhrhammer
CITY OF
SHOREWOOD
5755 COUNTRY CLUB ROAD . SHOREWOOD. MINNESOTA 55331
. (612) 474-3236
TO:
PLANNING COMMISSION, MAYOR AND CITY COUNCIL
MEMORANDUM
FROM:
BRAD NIELSEN
DATE:
28 SEPTEMBER 1983
RE:
SMITH, RICHARD - SIMPLE SUBDIVISION AND VARIANCE
FILE NO.:
405 (83.42)
BACKGROUND
Mr. Richard Smith, 5860 Ridge Road, bas requested approval of a simple sub-
division for his property located between Christmas Lake and Silver Lake
(see Site Location map, Exhibit A, attached). The property is currently
bisected by Ridge Road which is a private road. Mr. Smith proposes to divide
the property at the road easement. (see Exhibit B, attached) Since the
Shorewood Subdivision Ordinance requires that all newly created lots abut
a public street, the proposed division requires a variance.
The property contains 146,700 square feet of area (3.37 acres) and is zoned
R-1, Single Family Residential. The westerly half of the property contains
Mr. Smith's existing home.
ANALYSIS/RECOMMENDATION
There are two primary concerns which the City should address. The least of
these is the variance for access via a private street. Given the topography
and existing development it is doubtful that Ridge Road could ever be brought
up to City standards and be taken over by the City. Consequently, it should
be sufficient that the variance approval should specify that any new owner
should be aware that the City will not take over the road.
One problem the City has always had with private roads is what setbacks
should be imposed. For example, since front yard is defined as the yard
abutting a public street, and there is no public street, there is no front
yard. From a practical standpoint, the private road should be treated the
same as a public street and a 50 foot setback should be required.
A Residential Community on Lake Minnetonka's South Shore
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PLANNER~RECOMMENDATION
RICHARD SMITH
SIMPLE SUBDIVISION/VARIANCE
28 SEPTEMBER 1983
page two
Of greater concern is whether the lot shown as Parcell is buildable or not.
The topography between Ridge Road and Silver Lake is extremely severe. The
applicant"s survey (Exhibit B) is somewhat deceiving in that it only shows
10 foot contour intervals. Exhibit C is from the City aerial surveys and
better shows the severity of the slope. A 40% grade exists at the south
side of Parcell, near the road. Due to the grade problem I requested that
Mr. Smith provide the City with a letter from a registered engineer or
architect, stating what special design features might be required. While not
as specific as I would have liked, the letter attached as Exhibit D serves
the purpose. It should be sufficient that the letter be incorporated into
the property file for the new lot to inform the Building Official at the
time a building permit is issued that special attention is required.
In view of the preceding it is recommended that the division and variance
be approved subject to the following:
1. Setbacks should be maintained as though Ridge Road were a public street.
2. The letter from the applicant's engineer should be recorded with the lot
division and variance. A copy of the letter should also be placed in
the City's property file.
3. Park dedication fees should be paid and sewer equalization charges
should be settled prior to recording the division with the County.
4. The division must be recorded with the County within 30 days of receipt
of the Council resolution approving the request.
5. The approval should be contingent upon compliance with any additional
comments or recommendations by the City Engineer.
BJN:sn
cc: Doug Uhrhammer
Jim Norton
Gary Larson
Richard Smith
Sue Niccum
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LEGAL DESCRIPTION
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LpRIVATE DRIVEWAY EASEMENT
PER DOC. NO. 1221915.
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TRACT A, Re~istered La~d S~rvey No. 472,
FlIes of Registrar of Titles, Hennenin County, ~'innesota.
Except that part of said Tract A, lying northwesterly of the
centerline of the roac easement as shown on said Registered
L~ld Survey No. 472 and lying northeasterly of a line drawn
parallel with a~d 6e.00 feet southwesterly measured at rl~~t
angles fro!". the northeasterly line at said Tract A.
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F':~rce: 1
-:-r:at. pa~t of Tract h, Registered Land Su:,vev :~o. 472,
~1les of the Registrar of Titles, Henner~n County, ~1~ncsota,
.ying southeasterly of the centerline of the road easement
.~s sho~';. :")n said F.e~istered Land Survey t~:. 47::.
~(.II\1TI\!N,N(: 74,200 SQ.Ff1
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~'L2t pa:"t c~ ':'ract AJ Re€:.istered Land Su:-vc,,' !\:'. 472,
~11es cf Pe~1strar of 71tles, Henncn1n Cou~tv, ~1nnesota,
lying southwesterly of a line drawn" parallel. wlt~ and 6e.oo feet
southwesterly ~eas~red at right angles from the northeasterly
line of Said Tract A and lyin~ northwesterly of the centerline
of the road easenent as shown on said Re~istered Land Survey ~;o. 1172.
CONTAINING 72,500 SQ. FT. t
E...xhi bi t B
PROPOSED LOT DIVISION
Note: Contours sho\ill are 10 foot intervals
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. IRON MONUMENT FOUND.
@ JUDICIAL LANDMARK.
. MANHOLE.
@ CATCHBASIN.
CONTOURS TRACED FROM CONTOUR MAPS
SUPPLIED BY THE CITY OF SHOREWOOD,
DATED MAY, 1966.
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proposed lot division for:
R.M. SMITH
5860 RIDGE ROAD
EXCELSIOR, MN. 55331
I hereby certify that this survey, plan, or re-
port was prepared by me or under my direct
supervision and that I am a duly Registered
land Surveyor under the laws of the State
of Minnesota.
_12~_j_~~_______
Date J.!!PT 15 "~' Reg. No. 13594
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MISC BK 16,PP 25-2809-08-83 GRG
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STI!;AR-ROSCOE, tJC.
CONSULTING ENGINEERS . LAND SURVEYORS
630 Twelve Oaks Center, 15500 Wayzata Boulevard
Wayzata, Minnesota 55391-1485
(612) 475-0010
Refer To File: Otl30419
September 19, 1983
Mr. Bradley J. Nielsen
Planner/Building Official
CITY OF SHOREWOOD
5755 Country Club Road
Shorewood, Minnesota 55331
re: PROPOSED LOT DIVISION FOR
RICHARD M. SMITH
5860 RIDGE ROAD
EXCELSIOR, MINNESOTA 55331
Dear Mr. Nielson:
Our oplnlon is that the lot which would be created by the above
referenced lot division is buildable but subject to special drain-
age and foundation considerations.
Because of the steep slope on this lot toward Silver Lake,
costruction cost for any building structure thereon will be higher
than ordinary. This is c~used by the necessity to design and con-
struct the structure to withstand forces caused by the elevation
differential from the front to the back of the structure. We rec-
ommend that a free draining backfill be used behind walls in the
uphill slope to avoid problems caused by fluid pressure behind
these walls.
Should you ~ave any questions or need more information, please
conta~ our office.
II I
Ver1' frulY y?urs,
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S~?J~NC'
Geir Seger! P.E.
princiPal1
GS/sg
SJehibit D
LETTER RE: BUILDING SUHABILITY - PARCEL
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3 p · ~ITY, OF SHOREWOOD .
PLANNING COMMISSION MEETING
TUESDAY, OCTOBER 4, 1983
COUNCI6..AMBERS
5755 C~RY CLUB ROAD
7:30 PM
M 1 NUT E S
CALL TO ORDER
Chairman Benson called the October 4th Planning Commission meeting to order at
7:35 PM.
ROLL CALL
Present: Commissioners Bruce Benson, Vern Watten, Janet Leslie, Mary Boyd;
Council Liaison Tad Shaw, Planner Brad Nielsen; Secretary Sue Niccum
Absent: Commissioners Frank Reese, Richard Spellman and Bob Shaw
PUBLIC HEARING _ CONCEPT STAGE APPROVAL FOR P.U.D. - ROBERT S. C. PETERSON
5474 COVINGTON ROAD
Chairman Benson reopened the public hearing continued from September 6, 1983
Planning Commission meeting.
Mr. Robert Peterson was present to discuss his request to subdivide his property
into five single family residential lots. He presented maps and surveys to the
Commission, along with a letter from Dr. Steve Larson regarding an easement
through his property to the southern portion of the site.
The Public portion of the hearing was opened at 8:45 P.M. and closed at 8:46 P.M.
with no public comment.
The Planning Commission discussed the road right-of-way, cul de sac, and the
common area.
Watten moved, seconded by Boyd, that the received request be granted subject
to recommendations in the Planners Report and also a clarification on whether
the proposed common area would be preserved as an outlot or by easement.
Motion carried by Roll Call Vote - 4 ayes.
REQUEST FOR SIGN VARIANCE -CHAMPION AUTO STORE - MR. KENNETH GRIFFITHS
Mr . GrJ..H-it'h"S''"'''d'id'''YI''6t,'ecappe'a'T''''before'Kthe ..commi"5si-on~so ..there was no discuss ion.
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REQUEST FOR LOT DIVISION AND VARIANCE - RICHARD SMITH - 5860 RIDGE ROAD)
~,~....
~ appeareo'oero-f'-rlfe--pnnrnrrrg--COriii'lii"ssron-to"dT'S'C'U.Ss dividing
parcels, with no plans to build on the second parcel at this time.
Mr. Ric
his lot
The Planning Commission discussed the 50 foot setback recommended in the Planner',s
Report. ~
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PLANN.. COMMISSION MEETING
TUESD OCTOBER 4, 1983
page two
Boyd moved, seconded by Leslie, that the City grant the variance allowing the
creation of a lot not fronting a public road, but maintaining a 50 foot front
setback, with the agreement that a letter from Mr. Nelson's ~ngineer regarding
the suitability of the new lot for building purposes be attached to the property
file.
Motion carried by Roll Call Vote - 3 ayes (Leslie, Boyd, Benson) 1 nay (Watten)
REQUEST FOR VARIANCE TO ALTER A NONCONFORMING USE - HENRY ARENT - 4812 FERN CROFT DR.
Mr. Henry Arent was present to explain he owns a rental property with 2 units,
one of which is vacant. He wants to remodel the apartment unit to bring it up
to Building Code standards.
Planner Nielsen reported that the structure (1) is a nonconforming structure,
(2) is a nonconforming u'se - the Ordinance states that you cannot structurally
alter or expand a nonconforming structure or use.
Mr. Arent's position is that he'd like to bring it up to state building code
standards but in order to do this he has to structurally alter it and he can't
do that because of the Zoning Ordinance.
Planner Nielsen's opinion is that there is no hardship, because the property can
be used as a single family dwelling as per the existing zoning.
This is an R-2 Area, and the property in question is only 8000 square feet in area.
Planner Nielsen also mentioned that in reviewing the new Zoning Ordinance the City
chose not to allow accessary apartments in single family districts.
After considerable discussion about two-family homes in areas zoned for one-
family homes, Benson moved, seconded by Boyd, that the variance be denied.
Tied by Roll Call Vote. 2 ayes (Benson and Boyd) 2 nays (Watten and Leslie)
COMPREHENSIVE PLAN AMENDMENT PROCEDURES - FIRST DRAFT
This would be given to applicants requesting a change to the Comprehensive Plan.
The guidelines are designed so that the applicant must demonstrate why the change
should take place.
A preapplication stage allows the applicant to present his ideas to the Planning
Commission at minimal cost. The applicant .can meet with the staff, and talk over
what they might suggest or require, then come to the Planning Commission and pre-
sent it to them on an informal basis before there is a public hearing so it gives
the Planning Commission a chance to become familiar with the request, ask for any
additional information, and gives them some guidance as to) the acceptability of
the proposal.
The main items to be considered are:
1. The $1000 fee, divided into two portions:
a. $200 initial or base fee
b. $800 escrow deposit
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LEGAL NOTICE
PUBLIC HEARING
CITY OF SHOREWOOD
NOTICE IS HEREBY GIVEN that the City Council of the City of
Shorewood will hold a Public Hearing in the Council Chambers
of the Shorewood City Hall, 5755 Country Club Road, Shorewood,
Minnesota, on Monday, 24 October, 1983 at 8:00 PM or as soon
thereafter as possible. The purpose of the Hearing is to consider
a request by~obert S. C. Peterson for approval of the Concept
Stage of a Planned Unit Development on property located at
5474 Covington. Road, property described as:
That part of Government Lot 3, Section 36, Township 117,
Range 23, described as follows:
Beginning at a point on the north line of said Lot
3, which point is 291.7 feet east from the Northwest
corner of said Lot; thence South parallel with the
West line of said Lot, 1247 feet to the highwater in
Christmas Lake; thence Southeasterly along the shore
of said Lot, 90 feet; thence North 42 degrees, 30
minutes East, 339.3 feet; thence North 1 degree,
00 minutes West, 501.7 feet; thence North 19 degrees,
30 minutes West, 184 feet; thence North 31 degrees,
15 minutes West, 163 feet; thence Northeasterly 132
feet to a point in the center of the County Road 210
feet Southeasterly, measured along the center line of
said road, from the North line of said Lot 3; thence
Northwesterly along the center line of said road 210
feet to the North line of the aforesaid Lot; thence
West 50 feet to the beginning.
PID# 36-117-23-31-0002
Oral and written comments will be considered at that time.
City of Shorewood
SANDRA KENNELLY
City Clerk
To be published 12 October 1983.
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MEMORANDUM
TO:
FROM:
DATE:
RE:
FILE NO:
BACKGROUND
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CITY OF
SHOREWOOD
MAYOR
Robert Rascop
COUNCIL
Jan Haugen
Tad Shaw
Alexander Leonardo
Kristi Stover
ADMINISTRATOR
Doug Uhrhammer
5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236
PLANNING COMMISSION
BRAD NIELSEN
2 September 1983
PETERSON, ROBERT
405 (83.32)
PROPOSED P.U.D.
Mr. Robert Peterson has requested approval to subdivide his property located
at 5474 Covington Road, into five single family residential lots. Due to
the topography and shape of the property in question, and Mr. Peterson's wish
to serve the property with a private road, the request has been submitted in
the form of a Planned Unit Development (P.U.D.). Background information is
contained in a P.U.D. booklet submitted by the applicant and referenced as a
part of this report.
ISSUES AND ANALYSIS
A. Why P.U.D.
The current Zoning Ordinance contains provisions for cluster housing
(see Section 17, Subdivision 3C.). While it does contain certain
parameters for such development, it leaves much to be desired in terms
of specific procedural requirements. In addition, inherent problems
with the request for a private road, can better be resolved through
the P.U.D. process.
B. Cluster Concept
Briefly, the concept of cluster housing allows buildings to be placed
on smaller lots than existing zoning would allow. While density is
not increased, roads and utilities are minimized and natural features
of the land are preserved.
Section 17, Subdivision 3C allows cluster single family housing
(detached) "when keyed to topographic considerations" subject to the
following conditions:
1. Minimum tract - 3 acres (excluding wetlands)
2. Density - one unit per gross acre of land
3. Setbacks should "generally be maintained"
4. "40,000 square feet of area per unit be accounted for,..."
5. Open space easement be granted to the City
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Planning Commission
Mayor and City Council
2 September 1983
Page two
As can be seen by Exhibit C of the applicant's P.U.D. booklet and Attach-
ment 1 of this report, the site is characterized by severe changes in
topography. The long narrow shape of the property further encourages the
use of the clustering concept. If traditional subdivision design were to
be used, the result would be an extremely expensive road and substantial
site alteration.
One item from the sixth page of the applicant's P.U.D. booklet, which
should be clarified, is the average lot size. The applican~'s calcula-
tions are based on five lots. Since he has proposed a possible future
division of the southern portion of the property, we recalculated the
average lot size based on six lots. In doing so, we subtracted a road
designed with a 50 foot width and a 100 foot turn-around and arrived at
an average lot size of 44,825 square feet. This exceeds the requirement
of 40,000 square feet per unit.
Although the City Staff has certain concerns relative to design details
of the project, the overall concept complies with the intent of both the
cluster housing provisions and the P.U.D. Ordinance, and is considered
highly acceptable. Comments relative to the use of a private road and
the lot layout will be discussed in greater detail further on in this
report.
As a final note regarding the cluster concept, the Ordinance requires that
an easement be dedicated to the City over any undeveloped open space. The
Park Commission will be reviewing this request at their next meeting.
Assuming they would want cash rather than land for Park dedication, it
should be sufficient for the City to acquire a conservation easement over
the steep ravine area to prevent any future development or alteration.
C. Private Road
The applicant proposes to serve the property with a private road, 40 feet
in width. As discussed in the past, private roads inherently create
future problems. Often times the City is called in on disputes regarding
use or maintenance of the road. The City has in the past been asked to
take over private roads which do not meet City standards. The development
agreement prepared as part of a P.U.D. can mitigate most of those problems.
Such an agreement should require that a homeowners association, own and
maintain the road. It should also clearly specify to the owners and future
owners that the road will not be taken over by the City unless brought up
to the city standards.
In terms of the width of the road, there is no justification to reduce the
right-of-way or easement to less than the normally required 50 feet. Like-
wise the turn-around should not be less than 100 feet in diameter. Regard-
less of whether the road is public or private. the entrance to Covington
Road should be cleared to increase sightlines for traffic along Covington.
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Planning Commission
Mayor and City Council
2 September 1983
Page three
D. Site Design
1. Relationship to Surrounding Development
The area to the east of the Peterson property has been divided into
large lots. A large parcel lies to the west of the site and con-
tains one single family residence. Presumably this parcel could be
subdivided at some future date.
Mr, Peterson's proposed design takes vull advantage of his existing
driveway but does not allow for future development of the land west
of his. Assuming that land will develop one day, the ideal situa-
tion would be to locate one road between the two to serve both of
the parcels. This would avoid the necessity of a future second road
where one would be sufficient.
2. Lot Arrangement
According to the applicant, the lots have been arranged so that all
structures will have a view of Christmas Lake. From a design stand-
point, the arrangement leaves something to be desired, particularly
since view of the lake is obscured by the natural vegetation on the
site. As proposed, the rear of lot 2 faces the side of lot 1. The
front of lots 3 and 4 face the side and rear of lot 2 and the rear
of lot 1. The buildable area of lot 2 is extremely limited in spite
of the proposed setback reduction from 50 to 30 fee in front and rear.
An alternative site plan shown on attachment 2 of this report pro-
vides better orientation of lots to one another, even though the road
easement has been increased to 50 feet and a 50 foot rear yard set-
back has been provided. Furthermore, the design allows a 50 foot set-
back from property to the west. View of the lake could be achieved
through architectural design and control.
3. Future Resubdivision
Although the applicant does not propose to split lot 5 at this time,
e would like to leave that option open. He has stated that the
property owner west of lot 3 has verbally agreed to give hime an
access easement to the lot. Given the topography of the site and
the fact that the project will still exceed 40,000 squre feet of area
per lot, the request is ,considered reasonable. As such, it should be
incorporated into the development agreement subject to simple sudi-
vision procedure.
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Planning Commission
Mayor and City Council
2 September 1983
Page four
RECOMMENTDATION
As indicated in the preceding analysis, the cluster housing concept is a
reasonable way to develop the property in question. Serious consideration
should be given to changing the design, ideally to allow more efficient
development of land to the west, but at least to improve the orientation of
structures.
The issue of the private road can be resolved in a P.U.D. development agree-
ment. The road should, however, be 50 feet wide with a 100 foot turn-around.
BJN/rd
cc: Doug Uhrhammer
Jim Norton
Gary Larson
Robert Peterson
Kathy West
Park Commission
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Attachment 1
SITE AND AREA TOPOGRAPHY
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CIT~ OF SHOREWOOD
PLANNING COMMISSION MEETING
TUESDAY, OCTOBER 4, 1983
COUNCIL CHAMBERS
5755 COUNTRY CLUB ROAD
7:30 PM
M I NUT E S
CALL TO ORDER
Chairman Benson called the October 4th Planning Commission meeting to order at
7:35 PM.
ROLL CALL
Present: Commissioners Bruce Benson, Vern Watten, Janet Leslie, Mary Boyd;
Council Liaison Tad Shaw, Planner Brad Nielsen; Secretary Sue Niccum
_~.en.t..: "'.,._ .co.mmj.lS~iorler~ ~Frank Reese, Richar,d ~pellman and Bob Shaw
C::IC HEARING -, ~~:~::~:~~~::~__:~~ .D~~'~i~i~~o~iNi~o~~i~~~:N)
.-.1, __.~.- .....""r'I:._.~, "?-'___ "_~._"','''''_'~'''' .~.__...,... . a.....'.......- ........... ,-'"
Chairman Benson reopened the public hearing continued from September 6, 1983
Planning Commission meeting.
Mr. Robert Peterson was present to discuss his request to subdivide his property
into five single family residential lots. He presented maps and surveys to the
Commission, along with a letter from Dr. Steve Larson regarding an easement
through his property to the southern portion of the site.
The Public portion of the hearing was opened at 8:45 P.M. and closed at 8:46 P.M.
with no public comment.
The Planning Commission discussed the road right-of-way, cuI de sac, and the
common area.
Watten moved, seconded by Boyd, that the received request be granted subject
to recommendations in the Planners Report and also a clarification on whether
the proposed common area would be preserved as an outlot or by easement.
Motion carried by Roll Call Vote - 4 ayes. .
REQUEST FOR SIGN VARIANCE -CHAMPION AUTO STORE - MR. KENNETH GRIFFITHS
Mr. Griffiths did not appear before the Commission so there was no discussion.
REQUEST FOR LOT DIVISION AND VARIANCE - RICHARD SMITH - 5860 RIDGE ROAD
Mr. Richard Smith appeared before the Planning Commission to discuss dividing
his lot into two parcels, with no plans to build on the second parcel at this time.
The Planning Commission discussed the 50 foot setback recommended in the Planner'.s
Report. ~
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LEGAL NOTICE
PUBLIC HEARING
CITY OF SHOREWOOD
NOTICE IS HEREBY GIVEN that the City Council of the City
of Shorewood will hold a Public Hearing in the Council Chambers
of the Shorewood City Hall, 5755 Country Club Road, Shorewood,
Minnesota, on Monday, 24 October, 1983 at 8:30 PM, or as soon
thereafter as possible. The purpose of the Hearing is to consider
a request by Henry Arent for a variance to alter a nonconforming
use on property located at 4812 Ferncroft Road, said property
described as:
Lot 1, Block 12, Minnetonka Manor
PID #26-117-23-14-0065
Oral and written comments will be considered at that time.
City of Shorewood
SANDRA KENNELLY
City Clerk
To be published 12 October, 1983.
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MEMORANDUM
TO:
FROM:
DATE:
RE:
FILE NO.:
BACKGROUND
.
.
CITY OF
SHOREWOOD
MAYOR
Robert Rascop
COUNCIL
Jan Haugen
Tad Shaw
Alexander Leonardo
Kristi Stover
ADMINISTRATOR
Doug Uhrhammer
5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 . (612) 474-3236
PLANNING COMMISSION, MAYOR AND CITY COUNCIL
BRAD NIELSEN
29 SEPTEMBER 1983
ARENT, HENRY - VARIANCE TO ALTER A NONCONFORMING USE
405 (83-36)
Mr. Henry Arent owns the home at 4812 Ferncroft Road. (see attachment A,
attached) At some time in the past the house was converted to a two-
family dwelling which constitutes a nonconforming use in the R-2 Zoning
District in which the property is located. Upon inquiring about a build-
ing permit to bring the structure into compliance with the State Building
Code, Mr. Arent was informed that the structure and use were not in
conformance with Shorewood Zoning requirements. Since the structural
alterations required to bring the house into compliance with the building
code are specifically precluded by Section 10 of the Zoning ordinance
which regulates nonconforming structures and uses, the applicant has asked
that the City grant a variance allowing him to alter the building.
The property in question measures 105 feet by 77 feet and contains 8085
square feet - 11,000 square feet less than the 20,000 square feet required
for a single family dwelling in the R-2 District. In terms of setbacks
the house is nonconforming on all sides except the south. The east side of
the house is only 11.5 feet from the street r.o.w. (see Exhibit B, attached)
Based upon field inspection, the nonconforming second dwelling unit is an
apartment which was built over what appears to have been intended asa
garage on the east side of the structure. According to the building code
the apartment is substandard in terms of access and agress, light and
ventilation and fire protection. The integrity of exterior bearing walls
is suspect due to rotting which has occurred because of proximity between
structural wood members and the ground.
A Residential Community on Lake Minnetonka's South Shore
Sf;
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PLANNING RECOMMENDATION
HENRY ARENT
VARIANCE
29 SEPTEMBER 1983
page two
ISSUES AND ANALYSIS
In evaluating the applicant's request, the City must consider two major
issues - the handling of nonconforming structures and uses, and the criteria
for granting variances.
A. Nonconformities. The property in question is nonconforming three
different ways: 1) the lot is substandard in size and area;
2) the structure does not conform to setback requirements; and
3) a two-family dwelling is a nonconforming use in the R-2 District.
1. Substandard Lots. Section 10 of the Shorewood Zoning Ordinance
recognizes that substandard lots exist within the City and allows
them to be built upon as long as setback requirements can be met.
Since a structure already exists on the lot, this issue is
relatively insignificant.
2. Nonconforming Structures. Again, since the structure already
exists, the issue is not crucial to the evaluation of the request.
Although the Zoning Ordinance specifically precludes expansion,
alteration etc. of nonconforming structures, the City has
recognized that many such structures exist within the community.
A somewhat less restrictive approach has been suggested in the
new Zoning Ordinance which allows nonconforming, nonincome-
producing residential units to be expanded or altered as long as
the nonconformity is not increased. This new provision has been
applied as policy in recent variance requests.
3. Nonconforming Uses. The relaxed approach mentioned in 2. above
has not been extended to nonconforming uses. The reason for this
is that nonconforming use encompasses activities which are typically
objectionable in the zoning district in which they are located
(e.g. billboards or commercial operations in residential areas).
While it is tempting to say that some nonconformities are less
objectionable than others, the City's authority to zone land
dictates that such uses be treated equally. if there is reason
to allow the use at all, the zoning standards should be changed
so that it may occur anywhere within the same district.
If a, nonconformity is characteristic of an area, the City could
consider rezoning to a district in which the use might be allowed.
As can be seen on Exhibit A, the area in question contains several
small lots, suggesting that rezoning may be appropiate. Even
without a detailed lot size analysis, however, it must be realized
that neither the existing nor the new Zoning Ordinance contain a
zoning distruct in which a two-family dwelling is allowed on an
8000 square foot lot.
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PLANNING RECOMMENDATION
HENRY ARENT
VARIANCE
29 SEPTEMBER 1983
page three
A final comment relative to the nonconforming use of the property
pertains to inadequate off street parking. There are currently
spaces for three cars, none of which conform to the setback
requirements of the Zoning Ordinance. The Zoning Ordinance
requires two spaces per dwelling unit.
B. Variances. In addition to the requirements of Section 6, Subd. 2 of the
Shorewood Zoning Ordinance, Minnesota statutes require that the applicant
for a variance must prove that undue hardship will result if the vari-
ance is not granted. In proving undue hardship the following three
conditions must exist.
1. Denial of a variance would deprive the applicant of reasonable
use of the property. Considering the zoning of the property, a
single family home on an 8000 square foot lot has to be viewed as
reasonable use. The statutes also state that economic conditions~
by themselves, are not sufficent to show undue hardship.
2. The plight of the applicant is due to circumstances unique to his
property and which were not created by the landowner. As far as
uniqueness is concerned, Shorewood has several single family
homes which have been converted, both lawfully and unlawfully,
to two or more-family dwellings. In instances of unlawful conver-
sions (those built after 1965), owners are advised to discontinue
the use when it is brought to our attention.
Although the applicant may not have been the one who built the
appartment in question, it should be expected that an individual
purchasing property should be aware of existing restrictions on
the property prior to the purchase.
3. Finally, granting of the variance shall not alter the essential
character of the locality. Although this is somewhat subjective,
the character as well as the zoning of the area in question is
decidedly single-family residential.
RECOMMENDATION
The applicant is in a "Catch 22" situation as far as a two-family dwelling
is concerned. The structural alterations necessary to bring the house into
compliance with the State Building Code are specifically precluded by the
Shorewood Zoning Ordinance.
An option exists however which the City should pursue. The use of the
nonconforming apartment, which is currently vacant, should be discontinued.
Any money which would have been spent improving the apartment should ideally
be used to correct the problems with the rest of the structure (e.g. con-
verting the east end of the structure back to a garage as it was orininally
intended) While this option may not be as attractive to the owner in terms
of his investment, the value of the property would increase due to the
improvement and by decreasing the nonconforming status of the remaining
single-tami ty res idence.
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P~NING RECOMMENDATION
HENRY ARENT
VARIANCE
29 SEPTEMBER 1983
page four
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In viewiof the preceding it is suggested.that the Planning Commission
recommend denial of the variance.
BJN:sn
cc: Doug Uhrhammer
Gary Larson
Jim Norton
Henry Arent
Sue Niccum,
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.
PLANNING COMMISSION MEETING
TUESDAY, OCTOBER 4, 1983
page two
Boyd moved, seconded by Leslie, that the City grant the variance allowing the
creation of a lot not fronting a public road, but maintaining a 50 foot front
setback, with the agreement that a letter from Mr. Nelson's ~ngineer regarding
the suitability of the new lot for building purposes be attached to the property
file.
Mot ion ~a~:.~~J~,~.?ll_.f~I.I.y~.t_~. ,":. ~,!lY~,~~.<~esIJ~ ,. B~y,d.t. ~e.~son) 1..~,~y (Watten)
C;;~;~~ ;OR VARIA~<~_~~_~?~:~N~~,: _~S_E ..:..HE~~Y A~EN:_-_~~~:!~~~ROFTiil.
Mr. Henry Arent was present to explain he owns a rental property with 2 units,
one of which is vacant. He wants to remodel the apartment unit to bring it up
to Building Code standards.
Planner Nielsen reported that the structure (1) is a nonconforming structure,
(2) is a nonconforming use - the Ordinance states that you cannot structurally
alter or expand a nonconforming structure or use.
Mr. Arent's position is that he'd like to bring it up to state building code
standards but in order to do this he has to structurally alter it and he can't
do that because of the Zoning Ordinance.
Planner Nielsen's opinion is that there is no hardship, because the property can
be used as a single family dwelling as per the existing zoning.
This is an R-2 Area, and the property in question is only 8000 square feet in area.
Planner Nielsen also mentioned that in reviewing the new Zoning Ordinance the City
chose not to allow accessary apartments in single family districts.
After considerable discussion about two-family homes in areas zoned for one-
family homes, Benson moved, seconded by Boyd, that the variance be denied.
Tied by Roll Call Vote. 2 ayes (Benson and Boyd) 2 nays (Watten and Leslie)
COMPREHENSIVE PLAN AMENDMENT PROCEDURES - FIRST DRAFT
This would be given to applicants requesting a change to the Comprehensive Plan.
The guidelines are designed so that the applicant must demonstrate why the change
should take place.
.
A preapplication stage allows the applicant to present his ideas to the Planning
Commission at minimal cost. The applicant can meet with the staff and talk over
what they might suggest or require, then come to the Planning Commission and pre-
sent it to them on an informal basis before there is a public hearing so it gives
the Planning Commission a chance to become familiar with the request, ask for any
additional information, and gives them some guidance as tQ the acceptability of
the proposal.
The main items to be considered are:
1. The $1000 fee, divided into two portions:
a. $200 initial or base fee
b. $800 escrow deposit
Se-
~
.
.
5ECOND
- -P-tRS"I'" DRAFT -
COMPREHENSIVE PLAN AMENDMENT GUIDELINES
Section 1. PURPOSE
Recognizing that planning is an ongoing process and that the City's
Comprehensive Plan requires periodic reevaluation and update, the
purpose of this policy is to create guidelines for thorough and
consistent City review and adoption of proposed amendments to the
Shorewood Comprehensive Plan. These guidelines establish general
requirements as to how the Plan is to be amended and who may initiate
such an amendment. An application process is contained herein which
sets forth the minimum information required for City review and a
means for collecting the necessary fees to cover any costs incurred
by the City in processing a request for amendment. Finally, an
administrative procedure is established to provide a step-by-step
schedule to ensure an orderly and expedient review by City Staff,
affected Commissions, City Council, affected residents and affected
outside agencies.
Amendments to the Comprehensive Plan may be proposed to accomplish
the following:
A. Address issues which were not addressed in the original plan.
B. Provide more detail to the original plan.
C. Respond to development requests.
D. Respond to changes in community needs, attitudes, etc..
E. Respond to changes in the law (e. g. the Metropolitan Land
Planning Act).
It is the intent of these guidelines that amendments to the Compre-
hensive Plan follow the same general planning process and procedure
used in the initial review and adoption of the Plan.
Section 2. GENERAL REQUIREMENTS
A. Initiation. A Comprehensive Plan amendment may be initiated at
the direction of the City Council, by official action of any City
Commission, upon recommendation by City Staff, or by formal
application by any person, group, organization, corporation, etc.
owning or controlling property within the City of Shorewood.
B. Planning Process. The Shorewood Comprehensive Plan was formu-
lated based upon an established and proven planning process.
Amendments to the Comprehensive Plan should follow the same
general process.
1. Issue Identification. This phase of the process is intended
to identify a particular planning issue or problem. The
reason for the proposed change is stated and portions of
the Plan to be amended are specified.
70-
.
.
FIRST DRAFT
COMPREHENSIVE PLAN AMENDMENT GUIDELINES
PAGE TWO
Section 2. GENERAL REQUIREMENTS-continued
2. Planning Inventory. Background information in the forms of
maps, graphs, tables and statistics is assembled and analyzed
relative to the proposed Comprehensive Plan amendment. It
is important that all information be sourced and current.
3. Policy Planning. An evaluation of how the proposed amendment
relates to established community goals and policies.
4. Plans and Programs. This phase may vary from a wording change
to the text of the Comprehensive Plan to a change in land use
designation to an area plan for a pOLtion of the community.
Plans should be presented clearly in written and/or graphic
form.
5. Implementation. This phase involves the specification of
the planning tools necessary to carry out the proposed amend-
ment. For example, a Plan amendment may necessitate an amend-
ment to the Zoning Ordinance or may involve the use of tax
increment financing.
C. Applicant's Responsibility. It is the responsibility of the
applicant for a Comprehensive Plan amendment to demonstrate to
the City why and how the Plan should be amended. The request
should be accompanied by ample supportive information from
which the City can base its decision. The cost of City staff
time, special studies, or any other administrative costs incurred
by the City shall be paid by the applicant as specified herein.
Section 3. REQUIRED INFORMATION
Five (5) copies of the following exhibits, analysis and plans shall
be submitted as applicable to the City during the processing of a
Comprehensive Plan amendment:
A. Preapplication Stage.
1. A written description of the proposed Comprehensive Plan
amendment showing its relationship to the Comprehensive
Plan and including factual information supporting the
request to change the Plan.
2. General Information:
a. The landowner's name and address and his interest in
the subject property.
b. The applicant's name and address if different from the
landowner.
c. The names and addresses of all professional consultants
who have contributed in the preparation of the proposed
Comprehensive Plan amendment, including attorney, land
pLanner, engineer and surveyor.
.
.
FIRST DRAFT
COMPREHENSIVE PLAN AMENDMENT GUIDELINES
PAGE THREE
Section 3. REQUIRED INFORMATION-continued
d. Evidence that the applicant has sufficient control over
the subject property to effectuate the proposed Compre-
hensive Plan amendment, including a statement of all
legal, beneficial, tenancy and contractual interests
held in or affecting the subject property and including
an up-to-date certified abstract of title or registered
property report, and such other evidence as the City
Attorney may require to show the status of title or
control of the subject property.
3. Present Status:
a. The address and legal description of the subject property.
b. The existing zoning classification and present use of the
subject property and all lands within one thousand (1000)
feet of the subject property.
c. A map depicting the existing development of the subject
property and all land within one thousand (1000) feet
thereof and showing the ~~~~S~ location of existing
streets, property lines, easements, water mains and storm
and sanitary sewers, ~:~~~ ~:-_':~=': e-l-e-~tions SR .J.nd within
one hundred (100) feet of the subject property.
4. Site Conditions. Graphic reproductions of the existing site
conditions at a scale of no less than one (1) inch equals one
(100) hundred feet.
a. Contours - minimum two (2) foot intervals.
b. Location and extent of waterbodies, wetlands and streams
and flood plains within three hundred (300) feet of the
subject property.
c. Existing drainage patterns.
d. Location of existing utilities.
e. Com{J<l/li-jon of- .t/l.af-f-i-c wh.i..ch wouJ.d be g.ene/l.a.ted by. ex1.-jung. -Land
e,__~~a~~~e_€e~R€5_~e~_a4ja€~R€-aR4-a~~e6€eQ-F9aQ&.
u..1e de-j.i..g.na.t.i..on O/l. JOn.i..ng. and p/l.opo-1ed u..1e.
All of the graphics should be the same scale as the final plan
to allow easy cross reference. The use of overlays is recommended
for clear reference.
5. Schematic drawing of the proposed development concept including,
but not limited to the general location of major circulation ele-
ments, public and common open space, residential and other land
uses.
Section 3.
.
.
FIRST DRAFT
COMPREHENSIVE PLAN AMENDMENT GUIDELINES
PAGE FOUR
REQUIRED INFORMATION - continued
6.
Oil. -Ji.. JM of- noftke-Ji..den.t.i.. aJ..
A statement of the estimated numb~r of dwelling units^which may
result from a change in the Comprehensive Plan and a tabulation
of the approximate allocations of land use expressed in square
feet and acres and as a percent of the total project area, which
shall include the following:
U4e-J
a. Area devoted to residential uses.
b. Area devoted to residential use by housing type.
c. Area devoted to open space
(1) Parks
(2) Wetlands
(3) Other
d. Area devoted to streets.
e. Area devoted to commercial uses.
7. Proposed change in zoning classification necessary to implement
the Comprehensive Plan Amendment.
B. Formal Application.
1. Certified mailing list of all property owners within 500 feet
of the subject property.
2. All background informati0n required in the Preliminary Application
with any chahges highlighted.
3. Any additional information requested by the Planning Commission
during the Preliminary Application.
4. Preliminary development plans. This could range from alternative
lot layouts for single family development to illustrative site
plans for multiple family or commercial development.
5. Any supportive information (e.g. reports, statistics, surveys,
etc.) which may demonstrate why the Comprehensive Plan should be
amended.
6. Proposed wording of any amendment to the text of the Comprehensive
Plan.
7. Estimated calculations of the effect of the Comprehensive Plan
Amendment on streets, utilities and parks.
.
.
FIRST DRAFT
COMPREHENSIVE PLAN AMENDMENT GUIDELINES
PAGE FIVE
Section 3. REQUIRED INFORMATION - continued
8. Identification of further actions necessary to implement the
Comprehensive Plan Amendment (e.g. zoning changes, subdivision
approval, tax increment financing, etc.).
9. Worksheet for Metropolitan Council Review of Local Comprehensive
Plan Amendments.
Section 4. PROCEDURE FOR PROCESSING A COMPREHENSIVE PLAN AMENDMENT.
A. Application Conference. The applicant meets with the Zoning
Administrator to discuss the proposed change and the procedure for
amending the Comprehensive Plan.
B. Preapplication.
1. Purpose. The preapplication provides an opportunity for the
applicant to submit a proposal to the City showing his basic
intent and the general nature of the proposal without incurring
substantial cost.
2. Schedule
a. The applicant shall file the application form together with
the information required by Section 3.A of these guidelines,
all supporting data and the preapplication filing fee as
established by City Council resolution ($200).
b. Upon filing the application the applicant is encouraged to
arrange for and attend a conference with the City staff.
The primary purpose of the conference shall' be to provide
the applicant with an opportunity to gather information and
obtain guidance as to the general suitability of his proposal
for the area for which it is proposed. Upon verification
by the staff that the information and supporting data are
adequate, the proposal shall be scheduled for a preapplication
meeting with the Planning Commission. The preapplication
meeting shall be scheduled for the first regular Planning
Commission meeting occurring at least 15 days from the date
which the staff meeting is held.
c. Preapplication meeting with the Planning Commission.
* This is an informal meeting between the applicant
and Planning Commission intended to:
(1) Familiarize the Planning Commission with the proposal.
(2) Review required information and identify any additional
information necessary for proper request evaluation.
(3) Refer to appropriate Commissions and outside agencies.
(4) Provide direction for the applicant (e.g. indication
of priorities, etc.)
.
.
FIRST DRAFT
COMPREHENSIVE PLAN AMENDMENT GUIDELINES
PAGE SIX
(5) Set Public Hearing date. (First regular meeting after
the formal application is received, allowing time for
legal notices. )
* Applicant's option. The applicant may forego the
preapplication meeting with the understanding that
the request may be delayed if additional information
or modifications are required.
C. Formal Application.
1. The applicant shall submit any additional or revised information
requested by the Planning Commission at the preapplication
meeting together with the information required by Section 3.B.
of these guidelines and the formal application filing fee as
established by City Council resolution ($800).
2. The Zoning Administrator shall review the information submitted
and determine whether the formal application is complete. If
the application is complete he shall instruct the City Clerk to
set a public hearing for the next regular meeting of the Planning
Commission. The Planning Commission shall conduct the hearing,
and report its findings and make recommendations to the City
Council. Notice of said hearing shall consist of a legal property
description and a description of the request, and shall be published
in the official newspaper at least ten (10) days prior to the
hearing. Written notification of said hearing shall be mailed at
least ten (10) days prior to the hearing to all owners of land
within five hundred (500) feet of the boundary of the property
in question, and to adjacent and affected units of government.
When the proposed amendme~t involves a general prov1s1on which
pertains to the community as a whole and not exclusively to a
specific piece of property, publication in the official newspaper
shall be sufficient.
3. Failure of a property owner to receive said notice shall not
invalidate any such proceedings as set forth within these
guidelines.
4. The Zoning Administrator shall instruct the appropriate staff
persons to prepare technical reports where appropriate and
provide general assistance in preparing a recommendation on the
action to the City Council.
5. The Planning Commission shall recommend approval, denial or
modification of the proposal to the City Council. If modification
is recommended, the Commission may require additional review prior
to referring the proposal to the Council.
.
.
FIRST DRAFT
COMPREHENSIVE PLAN AMENDMENT GUIDELINES
PAGE SEVEN
6. Council Action.
a. Once the proposal has been reviewed by the Planning Commission,
the applicant or a representative thereof shall appear before
the City Council in order to present the proposed amendment
and answer questions concerning the proposal.
b. The Council shall review the proposal, any reports and
recommendations of advisory commissions and City staff, and
testimony from the public hearing.
c. In evaluating the application, the Council shall determine
the relationship between the proposed amendment and the
Comprehensive Plan.
d. Where any question exists as to City policy, the Council may
at any time refer the proposal or any specific item within the
proposal back to the Planning Commission for further study
and with clarification as to such policy.
e. The City Council shall have the authority to request additional
information from the applicant or to retain expert testimony
with the consent and at the expense of the applicant, said
information to be declared necessary to provide for proper
evaluation of the request.
f. The City Council may require reV1S1ons to or modifications
of the proposed amendment where deemed necessary. Any such
revision or modification shall be referred to the Planning
Commission for informational purposes.
g. The City Council shall preliminarily adopt the proposed
amendment, resubmi.t the amendment to the Planning Commission
for further consideration of specific items or deny the
request to amend the Comprehensive Plan. Preliminary adoption
of the amendment shall require four-fifths (4/5) vote of the
full City Council.
D. Metropolitan Council Review. Prior to final adoption of the proposed
Comprehensive Plan amendment, the amendment shall be referred to the
Metropolitan Council for review and comment as per the Metropolitan
Land Planning Act.
E. Final Adoption.
1. Subject to review and comment by the Metropolitan Council, the
City Council shall formally adopt the Comprehensive Plan amendment
by resolution.
2. The Zoning Administrator shall distribute copies of the amendment
to City staff, commissions and adjacent and affected units of
government.
.
.
FIRST DRAFT
COMPREHENSIVE PLAN AMENDMENT GUIDELINES
PAGE EIGHT
F. Implementation. Upon adoption of the Comprehensive Plan
amendment, the applicant shall proceed with the necessary
steps to inplement the amendment (amend ordinances, etc.)
.
.
EXHIBIT A
MET R 0 POL I TAN C 0 U N C I L
300 Metro Square Building, Saint paul, Minnesota 55101
INFORMATION SUBMISSION
COMPREHENSIVE PLAN AMENDMENTS
This worksheet must be filled out and submitted to the Metropolitan
Council with a copy of each proposed comprehensive plan amendment.
The purpose of this worksheet is to summarize the proposed change so
that the Metropolitan Council will have enough information about
contemplated plan amendments to determine whether it has an interest
in reviewing the amendment in more detail. please be as specific as
possible: attach additional explanatory materials if necessary.
I. GENERAL INFORMATION
A. Sponsoring governmental unit
Name of local contact person
Address
Telephone
B. Attach a copy of the proposed amendment, including a map
showing the location of the proposed change, the current
plan map, and the proposed plan map: indicate which
section(s) of the original plan are now being amended.
c. What is the official local status of the proposed
amendment?
Adopted by planning commission .on
Approved by governing body subject to Metropolitan
Council review on ·
.
D. summarize the reasons for the proposed amendment.
E. provide a list of all local units and all jurisdictions
affected by the change (school districts, watershed dis-
tricts, etc.) that have been sent copies of this worksheet
and plan amendment and the dates copies were sent to them.
.
.
II. LAND USE
A. Describe the following, as appropriate:
o Size of area in acres
o proposed type(s) of land use
o Number of residential dwelling units
o proposed density
o proposed square footage of commercial, industrial, or
public buildings
B. population, Household and Employment Forecasts
Would you expect the proposed amendment to result in
changes to the population, household or employment
forecasts for 1990, or for the five-year stages contained
in the original plan, for those land parcels affected by
the change'?
No/Not applicable.
Yes/Not sure. If yes, show below the expected
changes:
Year
Forecast Based on
previous plan
Pop. Hsg. Empl.
Forecast Based on
plan Amendment
Pop. Hsg. Empl.
1990
I n te r im
Stages
19
19-
C. Changes to Timing and Staging of Urban Service Area
Will the proposed amendment result in changes to the
boundaries of the urban service area or to the timing and
staging of development or of the urban service area'?
No/Not applicable.
Yes. Be sure Section I contains a map of these
changes, measurements of the land area involved, and
designation of new timing and staging.
"
.
.
D . Hous ing
Wlll this change have an effect on the community's ability
or intent to achieve the long-term goals for low- and
moderate-cost and modest-cost housing opportunities
contained in the original plan?
No/Not applicable.
Yes. Describe effect
III. IMPLEMENTATION PROGRAM
A. Official Controls
Will the proposed amendment require a change to zoning,
subdivision, or on-site sewer ordinances?
No.
Yes. Please describe.
B. Capital Improvement Program
will the proposed amendment require a change to the CIP?
No.
Yes. Please describe.
IV. SUMMARY OF FINDINGS AND CONCLUSIONS (Optional)
You may add comments stating your conclusions about the
effects of the proposed amendment on metropolitan plans. This
would be particularly appropriate in those instances where a
metropolitan system plan is affected, but you feel that the
change is minor or inconsequential. You may also use this
statement to provide the Council with factors or considera-
tions not covered elsewhere in the worksheet or that directly
address the criteria the council will use to make its initial
determination.
EP564l
.
.
Case No.
CITY OF
SHOREWOOD, MINNESOTA
APPLICATION FORM
_Comprehensive Plan Amendment
C.,.,ditional Use Permit
_Zoning District Amendment
VClriance
Text Amendment
Subdivision
Planned Unit Development
Applicant
(Name)
(Address)
(P hone)
Owner
(No me)
(Address)
(Phone)
Property Location (~treet Address and Legal Description):
Description and/or Reason for Request (Cite Ordinance Sections):
In signing this application, I hereby acknowledge thot I hove read and fully understand the
applicable provisions of the Zon ing and Subdivision Ordinances and current admin istrative
procedures. I further acknowledge the fee explanation as outlined in the application
procedures and hereby agree to poy all statements received from the City pertaining to
additional application expense.
(Signature of Applicant)
(Date)
f~~'
. .
SUITE aoo
'8'8 ~ENH."LVANI'" AVENUE N, W.
W....HfNOTON. D. C. 'OOO..~".3
(101) ..7 ~ '400
O'CONNOR & HANNAN
......TAIC. oJ. O'CONNO"
""EDE""CM W.THOM"'.
.101: A.. """'LTE".
THO....... A. KELL-E" .
...IC.......r:L E. Me-OU , litE.
IIIIO_IUn oJ. C...III,S"Ulo....aON. JliJII.
.......NI(, oJ. WAL2
.1"''''(.8 (III. 001ll.1E"
ANDIIlIEW oJ. aHEA
.....'LLI""" It. McO.....NN
"""'LTE" C. ......"'"l....
DOUG"'A. M. C"'''NIVA'''
"lENT IE. IItICHET
.J......E. 0.1111("1("
.........1.. .. "UaCNaTEIH
JIU.EIil........ oJ. .1:........1:'(
""'0"".. lit. aHE"AN
JOHN A. aU"TON, oJ".
,JAMES .... CASSE""'''
1IIl0.1t",. .... ."UNIO
""EOIUUCM W. MO".'.
WILLI....... E. "LYNN
DOUG LA. J. """'NZIE...
WILLI"'" O. HULL
OAVID W. MELLE"
aTEvEN oJ. T.......E"
DAVID MANTO"
LINDA C. aCHWAIlITZ
"'''LIN .0 WACLTI
"leMA-litO L. EvAN.
OOllllE H. .ENEa...
KI:VU" M. ausCM
WOOD IUONI(III
"'"0'NI... M. LOIllD
ATTORNEYS AT LAW
.....Tlllle_ E. O'OONNEL.l'
J. WILL.I...... W. HA".CH_
CA"OL N. ~AIIII",_
MICH"'EL I.. VEVE-
......IIIIT"'... PIIIIIDDY P...TTE IIIISON.
THOMA. J. O"'LL"'OHER, JR..
JOHN J. "'ILE._
JO.EPH ~. ~"'TTISON-
CHARLES W. OARIIIIISON . .
OO"DON M. OAYER.
CH"ISTINA w. "LE~a-
"'A"'" .U....... "101 I Lilli .
... GOIIOOH. LEE_
DONNA ... ..ITZ.....,."IC"-
&.AU.ENeE 1II0acHEIII-
~~'f~=~~:'; ~"~f,~~:
ANN H....TINO. .WETT.
MITA' J. ......JJA._
III'AT",C'... J. O'CONNO.
WILLI"''''' ,.. ......NNAN -
EOw....O w. ."OOfeE-
JOHN J. ,.LYNN
tot. "08ElitT H"'L"E"-
JO.EP'H E. DILL.ON
THO"".... H. OUINN-
HOW.."O O. "I[.LD"""'N .
DAVID .. ME:LI",CO""-
ftICHA"O O. ....O.OAN
THO""AS V. VAkE:.IC._
MYLE. J. A.....O.E-
TE.I[.NCE P'. .OYLI[-
HOPI[. .. ,.oaTE"'.
..'AN III. ..... E LA'" -
THOMA. .. JOL.LY-
.A....y J. CuTLE".
MICHAEL J. CONLON-
DONALD .. A..OU"_
IIIIE1'I:A C. kl.aItL-
3800 IDS TOWER
80 SOUTH EIGHTH STREET
MINNEAPOLIS, MINNESOTA 55402-2254
(612) 341-3800
TELEX 29 -0584
WILLIAM C. IlELLY ('81.-'.70)
or COUN.eL
JOaE"H ,.. CA.TIELLO -
T ."OOkl[ ..........WO.1'H_
JOH'" "0"0 EV"''''., J..-
SUITt 3100 5E:CURITY lirE BUILDING
16115 GLI:NARM PLACE
DENVER,COLORADO 80202
(303) &73 -7737
DAVID aU"LINOA""E. AANOLD Ill. MA(II>&.AN_
......ATIN ..... al:(IIILINEIIII - WILLlA...... ..."'TIt.-
0(1111:00"". A. kEA""'. . O"EOORY A. .....ITH_
VELAZOUEZ. Zl
MADRID I. SPAIN
431 -31 .00
T&LIUl aa..a
LOC"'1. cOUH.eL
FRANK oJ. WIRGA-
'NOT H.N... 0" HU.N..OT'" .....
or couN.eL
CHA'STO(ll>HI[A H. "'UN(:H.
October 6, 1983
Gary Larson, Esq.
Attorney at Law
464 Second Street
Excelsior, MN 55331
RE: Meeting with Shorewood City Council
re Garber-Edgewood Road Problem
Dear Mr. Larson:
In our most recent telephone conversation you asked
whether Mr. Garber and I would be willing to meet with the
Shorewood City Council regarding the above problem. I am
concerned about the attoneys fees my client is incurring
as a result of this problem, none of which is his fault,
and naturally do not want to spend time on fruitless
discussion. I understand your reluctance to act as "go-
between" between'the City Council and me; on the other
hand, I will not drive to Shorewood and charge my client
further fees if there is nothing to be gained by such a
trip.
If it is the Council's intent to have Mr. Garber grant
a 40' or 50' road easement without compensation to Mr. Garber,
then we will not attend and instead suggest that the Council
proceed to take what they believe is the needed property
through appropriate eminent domain proceedings which would
give us the right to contest whatever part of the taking we
deemed to be unreasonable. As I have told you before, it is
our position that the southern boundary of Mr. Garber's
property is the center line of the road and that the location
of the road must be established to provide a legally describable
southern boundary. From our perspective the only issues that
need to be resolved are:
fiJ tL.
.
.
Page 2
October 6, 1983
Gary Larson, Esq.
1. How much of an easement does the City need beyond
the edge of the existing road for snow plowing, etc.?
2. Who pays for the road survey to obtain a legally
describable southern boundary?
3. What Garber may do with his parking apron, garage
and property vis-a-vis setbacks from the road?
If the Council agrees that these are the only issues that
need to be resolved, then Mr. Garber and I will be happy to corne
to a meeting. If however, the Council is thinking of terms of
an easement of 20' or 30' beyond the edge of the road, then we
will all be wasting our time. We consider an easement in that
width to be a taking justifying compensation.
I realize that this may mean another meeting for you with
the Council, but I feel that the Barfknecht case is completely
on point and supportive of our position that any unreasonable
easement for the road would be a taking.
At the very least we would like to know what the Council
believes to be the unresolved issues in this situation that need
to be discussed at a meeting.
Very truly yours,
./11t~ 1 ):;'~J~
'--
David Kantor
DK/meh
cc: William Haug, Esq.
. ~:,..-. - '". .,..'.;,
. ......'......
.
.
, ,
..4
.
,A
BARFNECHT v. TOWN BOARD OF HOLLYWOOD TOWNSHIP 505
sed without en-
lease or parole
onsibility there-
refusing to dis-
ion of the testi-
1, essential, and
WALTER BARFNECHT AND ANOTHER v.
TOWN BOARD OF HOLLYWOOD
TOWNSHIP, CARVER COUNTY.
232 N. W. 2d 420.
July 18, 1975-No. 44546.
pard's authority
d. The thrust of
imply that home
. Indeed, counsel
Roads--statute allowinl!; l}cqubition of public road by public use-
construction.
Minn. St. 160.05, subd. 1, }f construed to extend public dedica-
tion of a road by public use to a width greater than that of actual
public use, results in an unconstitutional taking of private prop-
erty without due process of law.
f home visits to
nditions that are
imum degree of
at the same time
t society deserves
latent condition,
ructure and with
parole."
e the lower court
the court had a
ent of the court,
. ons making him
s and conditions
of the public and
tal illness.1 Since
ane to that issue,
ct court from quali-
ditions of discharge
Action in the Carver County District Court brought by Walter
Barfnecht and Mathias S. Schaust to enjoin the Town Board of
Hollywood Township from widening a roadway adjoining their
property. The court, Arlo E. Haering, Judge, found for defend-
ant. After this court dismissed plaintiffs' attempted appeal from
a judgment, Schaust v. Town Board of Hollywood Township, 295
Minn. 571, 204 N. W. 2d 646 (1973), judgment was entered in
favor of defendant, and plaintiffs appealed from said judgment.
Reversed and remanded.
Fahlgren & Anderson, James W. Fahlgren, Schr~eppel & Lilja,
and Thomas P. Lilja, for appellants.
Robert A. Nicklaus and Dwight J. Leatham, for respondent.
Mulli.n & Millhollin and Lee Sinclair, for National Farmers
Organization, amicus curiae, favoring reversal.
Warren Spannaus, Attorney General, and Johtn R. Murphy,
Assistant Attorney General, for the state, amicus curiae, favor-
ing affirmance.
Robert W. Johnson and John R. Krouss, for County Attorneys
Council, amicus curiae, favoring affirmance.
Considered and decided by the court en bane.
missal of the peti-
s remanded for a
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BARF
506
304 1l4INNESOT,\ REPORTS
PETERSON, JUSTICE.
The constitutional question presented by this appeal is whether
Minn. St. 160.05, if construed to extend public dedication of a
road to a width of 4 rods and not simply to the extent of actual
use, results in a taking of private property without due process
of law. As a substitute for the common-law creation of highways
by prescription or adverse use,1 the statute provides the follow-
ing method for acquisition of highways by adverse public use
(Minn. St. 160.05, subd. I) :
"When any road or portion thereof shall have been used and
kept in repair and worked for at least six years continuously as
a public highway, the same shall be deemed dedicated to the
public to the width of two rods on each side of the center line
thereof and be and remain, until lawfully vacated, a public high-
way whether the same has ever been established as a public high-
way or not; provided, that nothing herein contained shall impair
the right, title, or interest of the water department of any city
of the first class secured under Special Laws 1885, Chapter 110.
This subdivision shall apply to roads and streets except platted
streets within cities."
The facts giving rise to the question of the constitutionality
of this statute are not complex. Plaintiffs, Mathias S. Schaust
and Walter Barfnecht, both own tracts of land in Carver County.
Their land abuts a gravel road which has been maintained as a
public road for a considerable number of years. The township
established its public character pursuant to ~ 160.05 by proving
use and maintenance of the road for the statutory period of 6
years.
In April 1970 the Town Board of Hollywood Township, de-
fendant, resolved to rebuild and improve the road in question.
Bids were received for upgrading and sloping about 1 1/2 miles
of township road. Easements for backsloping were sought from
plaintiffs as adjoining landowners, but both plaintiffs ultimately
refused to gi'
1970. Shortly
junctive relie
the road was :
ant was now 1
made no dist
road or the ro
found that thl
cated to a wi
mained withiI
of the road as
concluded tha
the public hi!!
frames the CO]
Defendant <
constitutionall
lic use is dedi<
of actual usag
constitutional'
1 See, Casner, American Law of Property, Vol. II, ~ 9.50.
2 Plaintiffs ab
tor had trespass,
than 2 rods bey
Court granted pI
for any such cor
3 The present,
the court. In Sch
571, 204 N. W. 2
grounds and did
of defendant to\
and vacating a t€
district court. PI<
tional issue, hay
argued before a 1
tance of the issue
the full court. At
tional Farmers 0
Attorneys Counci
.
.
PORTS
BARFNECHT v. TOWN BOARD OF HOLLYWOOD TOWNSHIP
507
f shall have been used and
at six years continuously as
e deemed dedicated to the
each side of the center line
fully vacated, a public high-
established as a public high-
erein contained shall impair
ter department of any city
ial Laws 1885, Chapter 110.
s and streets except platted
refused to give such easements. Road construction began in May
1970. Shortly thereafter, plaintiffs instituted this action for in-
junctive relief or damages. Plaintiffs sought to show at trial that
the road was initially established as a 2-rod road and that defend-
ant was now taking their land to widen the road.2 The trial court
made no distinct finding on the width of either the improved
road or the road before 1970. The trial court, relying on ~ 160.05,
found that the road, acquired by public use, was statutorily dedi-
cated to a width of 4 rods. Since the road improvement "re-
mained within the area of two rods on each side of the center line
of the road as it existed before the improvement," the trial court
concluded that the land used by defendant was already part of
the public highway. It is this statutory basis of decision that
frames the constitutional issue.3
Defendant contends, and the trial court agreed, that ~ 160.05
constitutionally provides that any road dedicated by adverse pub-
lic use is dedicated to a width of 4 rods, regardless of the width
of actual usage. Plaintiffs, however, assert that ~ 160.05 is un-
constitutional because no notice is provided when a width greater
ed by this appeal is whether
. nd public dedication of a
ply to the extent of actual
operty without due process
n-Iaw creation of highways
statute provides the follow-
ays by adverse public use
f Hollywood Township, de-
prove the road in question.
d sloping about 1 1/2 miles
cksloping were sought from
ut both plaintiffs ultimately
2 Plaintiffs also argued on a motion for a new trial that the contrac-
tor had trespassed on their property by engaging in construction more
than 2 rods beyond the centerline of the existing roadway. The trial
court granted plaintiff Schaust a new trial on the question of damages
for any such construction.
8 The present appeal is not the first occasion this case has been before
the court. In Schaust v. Town Board of Hollywood Township, 295 Minn.
571, 204 N. W. 2d 646 (1973), we dismissed the appeal on procedural
grounds and did not reach the constitutional issue. Judgment in favor
of defendant town board, upholding the constitutionality of the statute
and vacating a temporary injunction, was subsequently el?tered by the
district court. Plaintiffs now appeal from that judgment. The constitu-
tional issue, having been properly raised by this appeal, was first
argued before a three-judge panel of this court. Because of the impor-
tance of the issues raised, the appeal was subsequently reargued before
the full court. At that time, amicus curiae briefs were filed by the Na-
tional Farmers Organization in favor of plaintiffs and by the County
Attorneys Council and the State of Minnesota in favor of defendant.
tion of the constitutionality
intiffs, Mathias S. Schaust
ts of land in Carver County.
h has been maintained as a
ber of years. The township
uant to ~ 160.05 by proving
r the statutory period of 6
""
.
.
508
304 MINNESOTA REPORTS
BARFN.
than that of actual use is taken and that, as a result, they have
been denied property without the due process of law. U. S. Const.
Amend. XIV; Minn. Const. art. 1, ~ 2; Lambert v. California,
355 U. S. 225, 78 S. Ct. 240, 2 L. ed. 2d 228 (1957). This is the
first time that the 4-rod provision of ~ 160.05 has been chal-
lenged as being unconstitutional.
As a result of the constitutional provisions cited above, we hold
that Minn. St. 160.05 does not authorize a township to widen a
road acquired by adverse public use beyond that width actually
acquired by' such adverse use. Privately owned land cannot be-
come public road by adverse use beyond the portion so used mere-
ly by a statutory pronouncement to that effect.
A dedication resulting from adverse public use arises from
the fact that such use serves to give the owner notice that, if he
means to dispute the rightfulness of the public use, he must as-
sert his right within a statutory period by physical action or
suit.4 The statute provides a statute of limitations, the running
of which estops an owner from denying the existence of a public
easement.
Public use cannot be said to apply to lands not actually used.
There is no reason that an owner should know that he is required
to dispute the rightfulness of a nonexistent user. A property
owner thus receives no notice as to a public claim on any property
in excess of that which has actually been used. Thus, a dedication
by public use cannot constitutionally exceed the amount of actual
dedication. Accord, Eager v. Mackie, 367 Mich. 148, 136 N. W.
2d 16 (1965); Yonker v. Oceana County Road Comm. 17 Mich.
App. 436, 169
Mont. 91, 423
As a result,
use only to the
boundary of a]
of fact to be de
v. Thomas, 93:
of Hennepin, ]
of the prescrip.
tion of the roa
and ditches thB
port and maint
2d 866 (Fla. A
way Comm. 254
Road Comm. 4(
While our d(
roads by adver:
will not preven1
or improving pt
complish such g
domain proceed
owners with no
secure just and
taken.
Accordingly, 1
matter is reman
Reversed and
4 We neither express nor imply an opinion as to whether the dedi-
cation-by-use statute (Minn. St. 160.05) requires actual notice as con-
trasted with constructive notice. See, generally, Mullane v. Central
Hanover Bank & Trust Co. 339 U. S.. 306, 70 S. Ct. 652, 94 L. ed. 865
(1950); Walker v. City of Hutchinson, 352 U. S. 112, 77 S. Ct. 200, 1
L. ed. 2d 178 (1956). There is no contention in the instant case that
plaintiffs lacked actual notice of the adverse use to the actual extent
of such use.
,Ur~';,..
'.
.
BARFNECHT v. TOWN BOARD OF HOLLYWOOD TOWNSHIP 509
that, as a result, they have
e process of law. U. S. Const.
~ 2; Lambert v. California,
. 2d 228 (1957). This is the
of ~ 160.05 has been chal-
App. 436, 169 N. W. 2d 669 (1969); State v. Portmann, 149
Mont. 91, 423 P. 2d 56 (1967).
As a result, ~ 160.05 may operate to dedicate a road by public
use only to the extent of actual use over the statutory period. The
boundary of a public highway acquired by public use is a question
of fact to be determined by the appropriate finder of fact. Arndt
v.Thomas, 93 Minn. 1, 100 N. W. 378 (1904) ; Schrack v. County
of Hennepin, 146 Minn. 171, 178 N. W. 484 (1920). The width
of the prescriptive easement, however, is not limited to that por-
tion of the road actually traveled; it may include the shoulders
and ditches that are needed aJ1d have actually been used to sup-
port and maintain the traveled portion. Grenell v. Scott, 134 So.
2d 866 (Fla. App. 1961); Whitehead v. Mississippi State High-
way Comm. 254 So. 2d 357 (Miss. 1971) ; Platt v. Ingham County
Road Comm. 40 Mich. App. 438, 198 N. W. 2d 893 (1972).
While our decision today will limit the dedication of public
roads by adverse public use to the actual extent of such use, it
will not prevent governmental bodies from upgrading, widening,
or improving public ways. A governmental body may always ac-
complish such goals by the process of eminent domain. Eminent
domain proceedings, however, effectively provide private land-
owners with notice, due process of law, and the opportunity to
secure just and fair compensation in return for the property
taken.
Accordingly, the decision of the trial court is reversed and this
matter is remanded for proceedings consistent with this opinion.
Reversed and remanded.
ovisions cited above, we hold
orize a township to widen a
beyond that width actually
ately owned land cannot be-
nd the portion so used mere-,
that effect.
er~e public use arises from
the owner notice that, if he
f the public use, he must as-
eriod by physical action or
of limitations, the running
ing the existence of a public
y to lands not actually used.
()uld know that be is required
onexistent user. A property
public claim on any property
been used. Thus, a dedication
exceed the amount of actual
e 367 Mich. 148, 136 N. W.
,
ounty Road Comm. 17 Mich.
pinion as to whether the dedi-
requires actual notice as con-
generally, Mullane v. Central
06, 70 S. Ct. 652, 94 L. ed. 865
352 U. S. 112, 77 S. Ct. 200, 1
ention in the instant case that
verse use to the actual extent
~/
...
.
.
ORDINANCE NO.
AN ORDINANCE AMENDING ORDINANCE NO. 77 IN THE CITY OF SHOREWOOD
An ordinance amending Ordinance No. 77 in the City of
Shorewood, being an ordinance for the purpose of promoting the
health, safety, order, convenience, prosperity, general welfare,
by regulation of the use of land, location, area, size, use, and
height of buildings on lots and the density of population in the
City of Shorewood, Minnesota.
City Council of the City of Shorewood does ordain:
Section 1. Ordinance No. 77, Section 25, Subd. 3,
shall be amended by adding the following:
"C. Telephone switching station and accessory
communication antenna, provided:
1.
That the site shall be landscaped wi tl1/..
low maintenance plant materials~~
That any building shall be of~~nry
construction.
2.
3.
That the facility shall not interfere
with other communication systems.
4.
That no signage is allowed.
r.
That the facility shall comply with
requirements of Section 7 of this
Ordinance."
Section 2. This Ordinance shall be effective
from and after its passage and publication.
ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD, this
day of , 1983.
Robert Rascop, mayor
ATTEST:
Sandra L. Kennelly, City Clerk
IfVL
/
A
.
.
RESOLUTION NO.
WHEREAS, Mr. Robert E. Brown, has applied for a
rear-yard setback variance for property located at 20680 Garden
Road, described as the west 210 feet of Lot 5, Holtmere, Lake
Minnetonka, and
WHEREAS, the City Council on June 15, 1982, granted
applicant a 25-foot variance for the rear yard setback, and
WHEREAS, applicant did not use the granted variance
within the required period of time, and
WHEREAS, there is located on said property in the
southeast quadrant of the property a designated wetlands, and
WHEREAS, the wetland area was apparently filled during
the construction of the sanitary sewer in the City of Shorewood,
and
WHEREAS, soil surveys indicate that the only buildable
portion of the property lies in the northeast corner thereof,
and
WHEREAS, the City Council by motion directed the
attorney to draw a resolution approving the variance setback as
requested.
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Shorewood finds as follows:
1. That Robert E. Brown has requested a 25-foot
variance to the rear yard setback for property described as the
west 210 feet of Lot 5, Holtmere, Lake Minnetonka.
2. That subject property is zoned R-1 and the required
rear yard setback is 50 feet.
3. That the property was filled by someone other than
the applicant and the only buildable portion of the lot lies in
the northeast corner.
4. That if the variance is not granted, the applicant
will suffer undue hardship; that the property in question could
not be put to reasonable use if the variance were not granted;
that the plight of the applicant is due to circumstances unique
to the subject property and not created by the applicant.
I Ib
~
,
,~
.
.
5. That the variance would not alter the essential
character of the neighborhood.
CON C L U S ION S
THAT BASED ON THE FOREGOING, the City Council does
hereby grant applicant a 25-foot rear yard setback for the
construction of a single-family home on the subject property,
subject, however, to the condition that the proposed driveway
serving the home does not encroach upon the City's designated
wetlands.
.
-
GENERAL FUND - BILLS PAID SINCE SEPTEMBER 21, 1983
Check # TO WHOM PAID
27685
27686
27687
27688
27689
27690
27691
27692
27693
27694
27695
27696
27697
27698
27699
27700
27701
27702
27703
27704
27705
27706
27707
27708
27709
27710
27711
27712
27713
27714
27715
27716
27717
27718
27719
27720
27721
27722
27723
27724
27725
27726
27727
27728
27729
27730
27731
27732
27733
27734
27735
27736
Wadsworth Publishing Co.
U. S. Postmaster
Acro Minnesota, Inc.
E. F. Anderson & Assoc.
Assoc. Asphalt, Inc.
Baldwin Supply Co.
Boustead Electric
Coffee System
Commissioner of Transport.
Copy Duplicating
Gross Office Supply
Healy-Ruff Co.
Hennepin County
Tanka Printing
Gary Larson, P.A.
Louisville Landfill
Minnegasco
MN Society of Profess.
Wm Mueller & Sons Inc.
Midwest Motor & Equip.
NSP
Northwestern Bell
Orr-Schelen-Mayeron
Quality Quick Printing
Red Wing Mobile
Shorewood Tree Service
Mary Kennelly
Sun News
Village Sanitation
Village of Tonka Bay
Waldor Pump & Equip. Co.
Ziegler Inc.
Robert Rascop
Jan Haugen
Kristi Stover
Tad Shaw
Robert Gagne
State St. Bk. & Trust
AFSCME
Evelyn Beck
Roger Day
Roberta Dybvik
Dennis Johnson
Sandra Kennelly
Sue Niccum
Brad Nielsen
Robert Quaas
Dan Randall
Doug Uhrhammer
Don Zdrazil
PURPOSE
Planning book
tax newsletter
office supplies
Street signs
Road materials
lift station parts
lift station motor
coffee
traffic light maintenance
office supplies
VOID
office supplies
lift station relays
B&R - Shorewood prisoners
office supplies
August legal fees
Cleanup - Covington Road
service
1 Standard Utilities Spec Book
Road materials-Wedgewood Rd.-48 T.
tie-rods for tractor
service
service
Engineering Ser/Construction-Amesbury
newsletter
tire repair PO 6376
Cleanup/Shop and Covington
clean City Hall/3~ hrs @ 7.00
legals
Sept. service
NSP lift Station #2/May - August
sewer equipment
equipment repair
Mayor's salary
Council salary
" "
" "
" "
IRA/DU
Sept. Union dues
VOID
salary
"
"
"
"
"
"
"
"
"
"
AMOUNT
$
8.95
148.06
147.55
461.92
143.76
70.40
120.39
32.00
128.54
50.05
-0-
13.58
76.00
1,341.50
8.85
2,566.20
12.00
39.52
5.00
915.36
33.00
737.87
509.61
1,051.54
67.90
5.50
480.00
24.50
331. 47
49.00
67.29
142.45
152.89
150.00
100.00
100.00
100.00
100.00
177.50
59.75
-0-
606.46
560.52
419.29
535.22
526.51
363.31
626.05
635.07
558.59
785.85
649.40
II
.
Check #
27788
27789
27790
27791
27792
27793
27794
27795
27796
27797
27798
27799
27800
27801
27802
.
.
GENERAL FUND - BILLS PAID SINCE SEPTEMBER 21, 1983 - page three
TO WHOM PAID
PURPOSE
mileage/~ seminar expense/Alexandria
mileage
PERA
VOID
VOID
public official liability policy
Umbrella policy
October premium
Mayor's salary
Council salary
" 11
City of Champlin
Doug Uhrhammer
State Treasurer
Roger Hennessy Agcy.
Roger Hennessy Agcy
Central Life Ins. Co.
Robert Rascop
Jan Haugen
Robert Gagne
Kristi Stover
Tad Shaw
M R Properties
U. S. Postmaster
tI "
" "
Refund of escrow/Rect #2887
postage/newsletter
AMOUNT
26.40
46.86
660.60
-0-
-0-
241.02
246.96
1,762.38
150.00
100.00
100.00
100.00
100.00
1,500.00
151.87
$ 78,673.02
Check #
1410
1411
1412
1413
1414
1415
1416
1417
1418
1419
1420
1421
1422
1423
1424
1425
1426
1427
1428
1429
1430
1431
1432
1433
1434
1435
1436
1437
1438
1439
1440
1441
1442
1443
1444
1445
1446
1447
1448
1449
1450
1451
1452
1453
1454
1455
1456
1457
1458
1459
1460
1461
.
LIQUOR FUND - BILLS PAID SINCE SEPTEMBER 23, 1983
.
TO WHOM PAID
MN Dept of Revenue
Village Sanitation Inc.
Northwestern Bell
City of Shorewood
Johnson Bros. Liquor
Twin City Wine Co.
Continental Pkg. Co.
Johnson Bros. Liquor
Griggs Cooper & Co.
Eagle Wine Co.
Brinorthwestern Glass Co.
Harry Feichtinger
Russell Marron
Don Tharalson
Stephen H. Thies
Susan Culver
Pat Pfeffer
Mary Skraba
Mark Wil son
Dean Young
Minnetonka State Bank
MBA
Ryan Properties
Harry Niemela
State Treasurer
Commissioner of Revenue
State Treasurer
Quality Wine & Spirits Co.
Matthias, Roebke & Maiser
NSP
Minnegasco
Northwestern Bell
Johnson Bros.
Griggs Cooper
Ed Phillips & Sons
Quality Wine & Spirits
A. J. Ogle Co.
P Q & C Automation
Harry Feichtinger
1*
Russell Marron
Don Tharalson
Stephen Thies
Sue Culver
Pat Pfeffer
Mary Skraba
Mark Wilson
Dean Young
Minnetonka State Bank
Alarm Service
Minter Weisman Co.
PURPOSE
August Sales tax
Services
Services
August bookkeeping
wine
wine
wine
wine
liquor
wine
salary
"
"
"
"
"
"
"
"
FWH taxes
insurance
October rent
October rent
Soc Sec
Sept. SWH taxes
PERA
liquor
July acctg. for 2nd quarter
service
service
service
Liquor
liquor
liquor and wine
wine
beer
misc purchases
salary
VOID
salary
"
"
"
"
"
"
"
"
"
VOID
cigarettes and candy
AMOUNT
5,228.16
59.00
93.70
260.48
141.69
650.87
816.40
13 7.23
2,464.96
620.31
243.13
649.38
426.40
149.78
256.12
88.24
105.06
85.14
277.92
333.38
300.40
10.85
2,540.83
882.50
893.12
503.00
334.62
543.90
150.00
367.31
5.42
58.23
1,035.37
2,748.37
1,506.29
807.14
942.45
40.00
638.53
-0-
426.40
142.26
256.12
94.05
89.80
125.60
277.92
333.38
297.70
352.37
-0-
646.29
II
the photoelectric specialist
DATE: October 10, 1983
(-
TO: Christmas Lake Association Members
(all owners of lakeshore property)
SUBJECT: Annual Dues
As you may know, Shorewood is in something of a financial bind.
They find it impossible to do such small development jobs as to
grade an access road into the Freeman Park area. This is
particularly frustrating since the land was donated to the City,
and could be made useful with just a modest investment.
I suggested to Steve Larson, the president of the Association,
that we contribute this year's dues billing to Shorewood's park
fund. He quickly responded that it was a fine idea, and why
didn't I collect the dues. After making a mental note to quit
making suggestions, I headed for the typewriter, and I submit
the following:
1. Dues for 1983 are $35.00
2. If you make your check out to "Shorewood City Park Fund",
it is deductible as a charitable contributioni if you don't
like parks, you can pay The Christmas Lake Association, but
it's not deductible.
3. I think if would be nice if you Carver County folks made
your checks to "Chanhassen City Park Fund"i I'm sure they
have the same problem.
4. The enclosed letter from Mayor Rascop explains the Century
Clubi I hope those of you who can afford to will join me in
a $100.00 contribution (yes, that fulfills your dues
Obligation).
5. Mail your $35, $100, or obscene letter to me at 6005 Christmas
Lake Road, Shorewood, MN 55331.
Regards,
~
Bob Fayfield, retired
BANNER ENGINEERING CORP.
9714 Tenth Avenue North
Minneapolis. Minnesota 55441
Telephone: /6121544-3164
Telex: 29.1011
PROCEDURES FOR FILLING VACANCIES OCCURRING IN PARK COMMISSION MEMBERSHIP
A. An official notice in local papers will be released informing the public of
vacancies and asking for candidates. Also, a set deadline for applying for
the park positions will be stated.
B. All candidates will be asked to submit a written resume that should express
their qualifications and their reasons for wanting to become members of the
park commission to the park commission chairperson. All park commissioners
should have at least one week to review all submitted resumes.
C. All candidates will be asked to attend the first regular meeting of the park
commission after the published closing date for a question and answer session.
.
At the following scheduled park meeting a vote will be taken to select the
new member or members. Park members may vote for as many candidates as they
desire. Any candidate receiving 4 or more votes will be acceptable for
membership to the park board. If there are more acceptable candidates than
open positions, a second vote will be taken with the top vote getters
getting the positions. Additional votes will be taken in case of a tie.
~
V