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051484 CC Reg AgP -~F RECJLAR MONDAY, " " .. ...- , . J SHOREWOOD COUNCIL MEETING MAY 14, 1984 ,- . .,. COUNCIL CHAMBERS 5755 COUNTRY CLUB ROAD 7:30 PM A. Pledge of Allegiance and prayer B. Roll Call Stover Gagne Mayor Rascop Haugen Shaw ~j /6 · ,1; : l' ~ 7:00 PM - COUNTY ASSESSOR'S MEETING AGENDA CALL TO ORDER I./'" 1. APPROVAL OF MINUTES A. Regular Council Meeting - April 23, 1984 B. Special Council Meeting - May 7,1984 [attachment #la. - Apr. 23] #lb. - May 7 2. MATTERS FROM THE FLOOR A. B. 3. PLANNING COMMISSION REPORT A. 4. PARK COMMISSION REPORT A. Playground Equipment Bids (#4a) B. Festival of Parks - Bingo Permit C. 5. 8:00 PUBLIC HEARING - SALLY LARSON - CANCELLATION j ... [attachment #5a. Staff report] #5b. Letter 6. ROBERT PETERSON - P.U.D. - DEVELOPMENT STAGE Applicant: Robert Peterson Location: 5474 Covington Road [attachment #6a - Development Stage Plan] ,j .-.- .~ '" ... <Ii , .,/ ~ OUR SAVIOUR LUTHERAN CHURCH - C.U.P. Location: 23290 State Highway 7 *also refer Planning Commission minutes 5/1/84 ~ 3RD STREET & CLARA AVENUE VACATION 10. ATTORNEYS REPORT ~ ~ Park Dedication Ordinance Memo - prosecutions Controlled Substance Ordinance Trivesco Development Agreement Rapid Oil Change ~ ENGINEERS REPORT JIIIIf .. .}o.> [attachment #8a. - staff report] #8b. - letter [attachment #9 - staff report] [attachment #10a- Ordinance copy] [attachment #10b.] [attachment #10c - Ordinance copy] [attachment #10d - Agreement] [attachment #10e - letter Resolution of Denial] A. Street Improvements Project Plans B. County and State Road Maintenance Plan 12. ADMINISTRATORS REPORT A. Resolution approving Year X CDBG B. Requests: 1. Amesbury West - Street Light request 2. Water Connection to Excelsior 3. Traffic Studies 13. MAYORS REPORT A. B. 14. COUNCIL REPORTS A. B. 14. APPROVAL OF CLAIMS AND ADJOURNMENT " r ~'.... ' '" .. "I. " .(.....i. ,,",,...,',' ;~.'''~:'~,~:~J~.. ""'(,,.,I,~ k . '\~"'''''!to!(~ ", ",. . .... CITY OF SHOREWOOD REGULAR COUNCIL MINUTES MONDAY, APRIL 23, 1984 COUNCIL CHAMBERS 5755 COUNTRY CLUB ROAD 7:30 PM MINUTES CALL TO ORDER The regular meeting of the Shorewood City Council was called to order by Mayor Rascop at 7:30 PM, A~ril 23, 1984, in the Council Chambers of City Hall. PLEDGE OF ALLEGIANCE The meeting was opened with the Pledge of Allegiance and a prayer by Mayor Rascop. ROLL CALL Present: Mayor Rascop, Councilmembers Shaw, Stover, Gagne, and Haugen. Staff: Attorney Larson, Engineer Norton, and Clerk Kennelly. APPROVAL OF MINUTES Haugen moved, seconded by Gagne to approve the Minutes of the Regular Council Meeting of April 9, 1984, as corrected. Motion carried unanimously - 5 ayes. MATTERS FROM THE FLOOR Vacation Request - 3rd Street and Clara Avenue (portion) Larry Mitchell of 26115 Birch Bluff Road presented a petition from affected property owners requesting the vacation of 3rd Street ana a portion of Clara Avenue. These are unimproved roads. Haugen moved, seconded by Shaw, to table action for a staff report and recommendations of~the police and fire departments. Motion carried - 5 ayes. TEMPORARY SIGN PERMIT A request for a temporary lit sign was made by Excelsior Covenant Church for a period of 7 days. Rascop moved, seconded by Gagne to approve a temporary non- flashing sign to be placed on the property located at 19955 Excelsior Boulevard, not the highway right-of-way. Motion carried - 5 ayes. let. ....... . . REGULAR COUNCIL MINUTES MONDAY, APRIL 23, 1984 page two COVINGTON VINE RIDGE RESOLUTION #21-84 The continuation of the Public Hearing was opened at 7:58 PM and receiving no public comment, hearing was closed at 8:00 PM. Haugen moved, seconded by Gagne to approve the Concept Stage and Development Stage. Mr. Sather, representing Covington Vine Ridge, thanked the Council and asked for direction on determining what the water source for the project will be. Rascop said a water policy would be forth- coming in June. SHOREWOOD NURSERY CLARIFICATION A question in reference to the use of the rear exit of the Shorewood Nursery was clarified by Stover. She referred to her notes and confirmed the granting of the use of this exit at the Council's control and discretion. ST. JOHN'S PRESERVE The clarification of water source for the St. John's Preserve sub- division was tabled until Mr. Minion could be present and the water policy has been adopted. SWIMMING POOL REQUEST - BOB HAGSTROM A request for the installation of a swimming pool was made by the contractor representing Bob Hagstrom of 5715 Kathleen Court. Haugen moved, seconded by Gagne, to approve the request as submit- ted. Motion carried - 5 ayes. TRUCK BID AWARDS 3/4 Ton Pick Up RESOLUTION #25-84 r Stover moved, seconded by Gagne to award the bid for $12,454.00 submitted by Jordon Ford. Motion carried unanimously. Single Axle Truck with Plow and Sander RESOLUTION #26-84 Stover moved, seconded by Gagne, to award the bid to Boyer Ford in the amount of $45,175.00 which was the lowest bid meeting the requested specification. Motion carried unanimously. Rascop moved, seconded by Haugen, to add an amendment to the motion to order the truck in "jade" or "Shorewood" green instead of orange. Motion was denied. 2 ayes, and 3 nayes (Stover, Shaw and Gagne). "l . . REGULAR COUNCIL MINUTES MONDAY, APRIL 23, 1984 page three PARK COMMISSION REPORT Carol Butterfield reported on the progress of the "Festival of Parks" plans. There will be a special meeting on April 20, 1984, to review the bids received for theplayground equipment. The cost of this equipment will be paid for out of the "Century Club" donations received from residents. A plaque has been ordered in honor of the residents donations. Haugen suggested that pins could be made from the City logo and sold for profits for the festival. ENGINEERS REPORT Council reviewed and questioned Engineer Norton on the Water Study he prepared. He explained the costs and how he calculated the project costs. MAYORS REPORT Lawsuit Mayor Rascop explained a letter received from A.V. Kelly on an out of court settlement of $4,800.00 with the Police Department. Minnetrista Landfill RESOLUTION #24-84 Haugen moved, seconded by Gagne, to support the resolution against the location of a landfill in Minnetrista. Motion carried. Met Council Transportation Report Mayor Rascop requested the Engineer ~o investigate a plan to turn 10,000 miles of State and County road over to the cities for maintenance. COUNCIL REPORT Animal Patrol A question on the location of the kennel location to be used by White Bear Animal Control for Shorewood's dogs was clarified. They will be kenneled at Minneapolis Kennel. ~ . . REGULAR COUNCIL MINUTES MONDAY, APRIL 23, 1984 page four COUNCIL REPORT (continued) Finance Committee A request for two additional members for the Finance Committee should be placed in the City newsletter at the request of Stover. APPROVAL OF CLAIMS AND ADJOURNMENT Haugen moved, seconded by Rascop, to approve claims for payment to be followed by adjournment at 9:15 PM. Motion carried unanimously. 5 ayes. GENERAL FUND 28579 - 28647 LIQUOR FUND 2016 2044 $48,230.12 $18,919.52 Respectfully submitted, Sandra L. Kennelly City Clerk -' ... " A . . CHECKS PAID SINCE APRIL 23, 19~4 GENERAL FUND TO WHOM PAID Check # 28579 28580 28581 28582 2~583 28584 28585 285b6 2b587 2 ~jt:,80 28589 28590 28591 28592 28593 28594 28595 28596 28597 285.98 28599 28600 28601 28602 28603 26604 28605 28606 28607 28608 28609 28610 28611 28612 28613 28614 2b615 28616 28617 28618 28619 28620 28621 2~622 28623 28624 28625 28626 28627 28628 28629 28630 State Treasurer Office State Auditor Mtka State Bank Comm of Revenue State of Mn. Brad Nielsen Elk River Travel State Treasurer ASCME LOCAL #224 Mayor Rascop Jan Haugen Robert Gagne Tad Shaw Kristi Stover AT&T Earl Andersen & Co. Bergerson~Caswell City of Minnitrista City of Tonka Bay D.R. Copoer Service Driskills Budget Paper Grainger, W.W. Hatch Sales Co. Jordan Ford League of Mn Cities Mayer & Sons Void' Midwest Asphalt Corp. Minnegasco LIMC Conf. Regist. Navarre Hardware NSP N.W. Bell Norwest Bank of Mpls Pepsi-Cola Bottling Orr-Schelen-Mayeron Road Machinery Mpls Star Tribune Stodola's Well Sun Newspapers Twin City Water Clinic Village Electric Village Sanitation Wendells Wagers Hennepin County Evelyn Beck Roger Day Roberta Dybvik Void Dennis Johnson PURPOSE: FICA Taxes Forum - Cr Ratings FWH - 4/13/84 SWH - 4/13/84 Documents - Brad Mileage 2/1-4/11 Trasp.- Clerk Natl PERA - 4/13/b4 Union Dues - April April Salary 11 11 11 11 11 11 II 11 Equipment Rental Gravel & Signs Amesbury Well Burnsite Fees 1st t Water Purch. Fuser Oil Council Meeting Coffee Purchases Shop Supplies Equip Parts 11 11 Share L!\1C Bl dg. Gasoline Purchases Road Materials Fuel Natl Clerk Conf. Shop Supplies Electricity Telephone Bond Payment Pop Purchases Engineer Fees Equip Parts Equip Bids & Pers. Repairs BB Pump Equip Operator Ad Water Analysis Wire Amesbury Well Service Nameplates ~ype Maint Contract B&R March Prisoners Salary 11 11 11 AMOUNT $ 1,205.78 20.00 1,227.40 656.00 33.00 75.46 279.00 836.08 47.80 150.00 100.00 100.00 100.00 100.00 150.23 527.90 252.50 50.00 447.30 32.00 59.55 38.00 112.38 806.18 2.62 332.00 943.93 -0- 626.29 808.60 229.00 29.53 742.00 379.49 21,309.30 70.50 3,112.39 45.32 226.90 46.05 114.00 65.00 32.00 49.00 19.29 354.20 1,142.00 653.51 545.22 403.07 -0- 557.84 I . . 1984 tENERAL FUND - 2 - APRIL 23, ~ Check # TO WHOM PAID PURPOSE: AMOUNT 28631 Sandra Kennelly Salary $ 582.78 28632 Sue Niccum II 375.22 28633 Brad Nielsen II 668.06 28634 Bob Quaas II 571.22 28635 Dan Randall II 519.23 . 28636 Patricia Ray II 345.30 28637 Julie Scory II 313.88 28638 Don Zdrazil II 701.66 28639 State Treasurer FICA - 4/25 1,165.87 28640 Mtka Scace Bank FWH -4/25 1,127.40 28641 Corom of Revenue SWH - 4/25 607.00 28642 Dan Randall Mileage Water Schl 20.24 28643 II II Refund FWH 4/25 18.10 28644 Void -0- 28645 Void -0- 28646 State Treasurer PERA - 4/25 817.55 28647 Postmaster Postage 151.00 Total $48,230.12 RD j (' (' LIQUOR FUND Check # 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 2034 2035 2036 2037 2038 2039 2040 2041 2042 2043 2044 RD April 23, 1984 AMOUNT $ 1,889.00 2,679.60 752.42 61.97 11.97 59.00 161.72 223.59 2,531.88 790.18 157.56 1,080.35 1,446.17 1,993.70 5.00 426.40 135.38 256.12 53.88 649.38 84.00 244.26 -0- 333.38 235.64 308.40 1,829.70 177.00 341.87 $18,919.52 . . TO WHOM PAID CHECKS PAID SINCE PURPOSE: Pogreba Distributing Thorpe II Minter-Weisman Co. Frito Lay AT&T~: Village Sanitation NW Bell NSP Griggs Cooper Johnson Bros Liquor Eagle Wine Company Ed Phillips & Sons Quality Wine & Spirits Mark VII Beverage Journal Russell Marron Don Thara1son Stephen Thies Sue Culver Harry Feichtinger Susan Latterner Chris Schmid Void Dean Young State Treasurer Mtka State Bank Griggs Beer Distrib. Cornm of Revenue State Treasurer March Beer Purch. March Beer Purch. Cigaretce II Misc Purchases Equip Lease April Service Telphone Electricity Liquor Purchases Wine Purchases II II II II " & Liquor Purch. March Beer Purch. Subscription Salary " " II " " " " FICA - 4/25 FWH - 4/25 March Beer Purchases SWH - 4/25 PERA - 4/25 Total Apprc'ved hU Sh .~ -.'" n "I "'Tel' 'G"'~ \,: ~ :,1 r.l'f~ I "',.1"1'"". _'-' LI \'1 ~~!.... .. !..w.._~..., Ul..H..:..&.._ . oJ " ~ ,.oJ ,;\~'iOUi~f .~; ___. ______ t__. U;.T i.: ___ __ ____ _________________. . . CITY OF SHOREWOOD SPECIAL COUNCIL MEETING MONDAY, MAY 7, 1984 COUNCIL CHAMBERS 5755 COUNTRY CLUB ROAD 7:00 PM MINUTES CALL TO ORDER The special meeting of the Shorewood City Council was called to order at 7:04 PM, Monday, May 7, 1984. ROLL CALL Present: Mayor Rascop, Councilmembers Shaw, Stover, Gagne and Haugen. LIQUOR STORE LEASE Council reviewed original lease and equipment purchase agreements wi th Ryan Construction on the Liquor Store II. They questioned the equipment purchase amount and the current balance due on the purchase. ROAD DEPARTMENT MATTERS Gagne informed the Council of the Road Department interview and the hiring of Howard Stark for the June 1, 1984 hiring. Due to a conflict, the council will inform the Road Department Supervisor that he is to choose ei ther the road position or his ),2-VA;/' contracting compan~ not .both. 11 J , . . ,.' / {jU2 oJ II (J~~ ~L/CP? till ~~ 9/-Zf/?' ~O-~ 'V-O ,-fIOd-L; ~4--" (l 6-trr1 ADMINISTRATORS ~EVIEW ~ - V 0 The council has not come to a final discussion and will continue the discussion of applicants. ASSESSORS DISCUSSION The County Assessor would like to meet with the Council prior to the Board of Review Meeting. The Counc~l will meet with the assessors at 7:00 PM, May 14, 1984. Council discussed the possibility of having ther own assessor. Shaw will investigate and return to the Council with information later. BONDING MEETING Stover reported on the Bonding Meeting she attended. ADJOURNMENT Gagne moved, seconded by Shaw, to adjourn at 9:55 PM. Motion carried unanimously. Respectfully submitted, .T.!H'1 HRllP'Pl"1 J h , . . COUNCIL CHAMBERS 5755 COUNTRY CLUB ROAD 7:30 PM CITY OF SHOREWOOD PARK COMMISSION MEETING MONDAY, MAY 7, 1984 MINUTES CALL TO ORDER Chairman Roger Stein called the meeting to order at 8:08 PM. ROLL CALL Present: Chairman Roger Stein, Commissioners Gordon Lindstrom, Carol Butterfield, Gary Carl, Con Schmid, Marty Jakel, and Mari Kooi; Sue Niccum, Deputy Clerk. Liaison Tad Shaw was at a special Council Meeting. APPROVAL OF MINUTES Mari Kooi moved, Con Schmid seconded, to approve the minutes of April 16, 1984, as written. Motion carried unanimously. CENTURY CLUB PLAQUE Commissioner Gary Carl has ordered the plaque, he is going to have the Shorewood emblem put on it and will have it by the next meeting. ( PLAYGROUND BIDS Jack Brancel of Brancel Construction was present to answer the Commission's questions. Commissioner Carl told Mr. Brancel that they want to put the playground equipment in a 50' x 50' area and asked him if he would give an estimate on telephone poles vs. railroad ties vs. treated lumber, for a border around this area. He agreed to do so. Commissioner Carl asked Mr. Brancel what the life expectancy will be on the playground equipment. ~.J He said they will use all treated lumber artd anchor them in a concrete base below the surface, then cover them with at least 3" of dirt. All the bolts will be recessed. He figures they will last indefinitely. He said it will take a little over two weeks using two men. The Commission asked him if he could have the playground equipment at Badger Park done for the Festival publicity (pictures - June 9). He had planned to start June 1, 1984, and didn't see any problems in being done by that date, weather permitting. ~. ~ ;:' . . PARK COMMISSSION MINUTES MONDAY, MAY 7, 1984 page two , PLAYGROUND BIDS (continued) Gordon Lindstrom moved, seconded by Gary Carl, to recommend to council that they accept Bid #3 (Brancel Construction Company), alternate #5 (2 each of "Log Walk", "Jump & Rock Spring Platform", "Tire Tree", and "Fort Courage Play Center") at a price of $5,783.00. Motion carried unanimously. ORDINANCE AMENDMENT - PARK DEDICATION FEES Con Schmid moved, Mari Kooi seconded, to recommend to Council to accept Planner Brad Nielsen's recommendation to amend Ordin~nce 79, raising the Park Dedication Fee from $350.00 to $500.00. Motion carried unanimously. LIAISONS Park Commission Liaisons for the second half of 1984 are as follows: July August September October November December Carol Butterfield Con Schmid Mari Kooi Marty Jakel Gordon Lindstrom Gary Carl (. REPORTS Commissioner Butterfield reported on the Council Meeting of April 23, 1984. Trucks - City is buying two new trucks. Agenda - Council decided to place "Park Commission Report" and "Planning Commission Report" as one of the first items on the Council Agenda. ICE RINK POLICY r / r / Commissioner Marty Jakel requested that tl1e "Ice Rink Policy" be reviewed at the next meeting. Commission asked that he make notes of the changes requested, and hold off until the F'estival of Parks. ADJOURNMENT Gordon Lindstrom moved, Roger Stein seconded, to adjourn at 8:37 PM. Respectfully submitted, ( Sue Niccum ~, . . CITY OF SHOREWOOD MAYOR Robert Rascop COUNCIL Jan Haugen Tad Shaw Alexander Leonardo Robert Gagne ADMINISTRATOR Doug Uhrhammer 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 . (612) 474-3236 MEMORANDUM ,I TO: PLANNING COMMI~SION, MAYOR AND CITY COUNCIL FROM: BRAD NIELSEN DATE: 30 APRIL 1984 RE: LARSON, SALLY - PROPOSED SUBDIVISION AND VARIANCE REQUEST FILE NO.: 405 (84.10) BACKGROUND Ms. Sally Larson, 5795 Grant Lorenz Road (see Site Location map, Exhibit A, attached) has requested approval of lot rearrangement and simple subdivision. As shown on Exhibit B, the house at 5775 Grant Lorenz encroaches onto a 20 foot strip of her property. She has agreed to trade equal-sized parcels of land with her neighbor in order to resolve the problem (see Exhibit C). In so doing, she also requests that the eastern portion of her property be divided off, creating a new lot. The rearrangment would be accomplished via a registered land survey (R.L.S.) as shown on Exhibit D. Since the property is located within the R-1 Zoning District, a variance is required for lot area on Parcel A. The lot would contain 38,690 square feet of area, 1310 square feet smaller than the 40,000 square foot requirement. Parcel B, while nonconforming in area and width will remain the same size as it currently exists. ANALYSIS/RECOMMENDATION Despite the need for a variance, the subdivision request presents some desirable features from the City's standpoint. First of all, the R.L.S. cleans up the legal descriptions on the property. Instead of lengthy metes and bounds descriptions for the parcels involved, they will become Parcel A, B, and C, R.L.S. No. Furthermore, although the existing house on Parcel B will still be nonconforming in terms of front yard setback, its side yard setbacks will be brought into conformity with the zoning requirements of the R-1 District. A Residential Community on Lake Minnetonka's South Shc:ire ~ . MEMO FtIt THE PLANNER LARSON, SALLY - PROPOSED SUBDIVISION & VARIANCE REQUEST 30 APRIL 1984 Page Two While Parcel A is slightly smaller than 40,000 square feet, Parcel C is slightly larger. The average size of the two lots is 39,730 square feet, approximately one percent smaller than the zoning requirement. It is recommended that if the City approves the subdivision and variance request, it should be required that a 17 foot easement be acquired across the westerly sides of Parcels A and B. Grant Lorenz currently has only 33 feet of right-of-way adjacent to these lots. While it is doubtful tha~ the existing street would ever be relocated within the right-of-way,rthe additional easement may prove useful in the future. . A final condition of approval should be that 10 foot drainage and utility easements should be required around all of the parcels. The applicant should be advised that the division requires a $500.00 cash dedication for park purposes and that the R.L.S. should be recorded with Hennepin County within 30 days of receipt of the Council resolution approving the request. BJN:pr cc: Sandy Kennelly Jim Norton Gary Larson Sue Niccum Sally Larson Paul Skjervold Z50 r 11-' I I (10) Part of {LOT 82 (u? 0 I )\.tctl I ! /,t' RD. I'. '1t lfO I J , . / \...\1 'I :~ 1 r-O \... . \J o'\J I ,J ttf \7)> I I (J ~) I (J) I t I LOTI85 I I I I I I 1 I I I I I I I I I I t~ I' '';'6 ~~ I'II!!:~ 9{ ;6 25 O~~ t'" 3,,~ '1~, 4 2 ,,~ c.~\~ . ..1' , ~ ) I, ct, -.., -'- ' ,,'" ...... ~ ll-" t!v VI" ~~.. ,,10. :~C':~ ' I . LOT 113 I -- ~1:1) I Q) "'~ ~ ...; ~.... 9 I .. 5 I .... Z' <II a: (!)' ~ : i-:.!j~ :''';' (.1-) 6 ~ '" .... ~) \1,~) 7 ~ 01 ~ ~ ~'" 8 ~rr) ~ 4n<;5 489.55' " - ~7")1r.7 ~) -------.- , , .::1 j''' "t' :,::;- ~ - i ;.." '-\ " \'l\ -...0 - -f:~~:mI:F I~.-:- (S) I . ~9)1 I ~' C\,fi. ; ~\~ c::: It..' ?>lCC~J I /7 LOT 87 (?1I) "-/ (lC ~I~) ,,00 ? II~DJ o . r ; at ~ 0 ~ ~~. loT 110 ..... ,.. <~~ A.S.No · 13~ ~II) dLP040 '" "0188"$6'10"1' ~\l\\10wN L~t::. .,.-' : - -- .' , /8 . Z~ i 111.'1 1 / ._'"') ,,1 ..:: i;\U (! 1,\"') ~. 1 (\\ .I.."t:.:> IY) J I (J ~ ~~ I'" ~ ,.; I... ~ l'" ~)) ~ I : 1/Z.7, LOT 11\2 \ 108 I :0 :~~~ N .... . ~" (~J ~D\.{C :' .~.... I'" . .. II) "13 <) ~ I N ~~) Aj i :~ .... "" J'JQg5 ./ :.;, Z:. H<e::i. ......... ,: PARK (01.10J50) et) 5~~O () WESl ZZ3 ~ ,.., I) \0 "'l l 4 J (;1) d .() .... p8~~ {40 R"illi bi t A Slm LOC.L\.'J:110N Larson, Sally - Simple subdivision and variance request EAGE NE 1/4 ~- - ?OO.CJ .. - --" r';:."'-~ -.- - -- - --;- . ,~ tl /oo,-;e:.'i "-- ~ I..... ,; ~J . \) ~ I;) ... ~ - t- . ~ ~ /I ".-> ~1~ (',' \J .., ;." \ ~ "" /..:..- I ..... I '\) N : 155 2' 0\ WI'\lI" 0:: '\l : o I ~ . ,."'", -.JI~ .: IU', I' I- 2'\ <(~ 0::' (!)\. ~ ~ ~ '. 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'uJ i ':1 I '.....\,: . -' <::> <:) [J:~ ~ c;:S '" ;.J ~ 'a ~ ~ . ~ V) --,7 c"__ ,~.~~ ...~- I; -. .-' I I ..-- _..11 ~ ~ IX) C\J ~._.. ....7 ,,,:- <1: ,...... "...'.. ~ I:, '''.~ I..S I ! J 0.+&< REGISTERED LAND '\ . . r, :..~ '.J :.1. ?:.: ~J r~. zoo ~ ~~ ~~ ~I EXCEPTION ~ -..200.02 Wtst...- "M2. -..... TRACT - <:) ~ B . i I 10 ~ '''.02. Wtst .... ~ ~ ~ '=> IlQ ~ l!::'~ ~ .! ~ J ~ ~ :;f ~~ ~~ --- -...~ - '^ ~ ~ J TRACT A /~.. ,- ~.. } (0';- L ..''''. 4..1' :('l~ <:r ~I/H 'to"-:'. r N"liI lint.f Lo/~ 88dnd III Avd Subd. No /J3; -'. J : f.jL~::3 f~. ~_~:: [~r~ (..~'.:'K N 50 I o SCALE " SURVEY NO. r'j~:.. : .~~ :( ..... .. "'~.... /,,,tJ ~f ,:-; l <.J ~ . oJl 9 ~ ~ U\ .....: ~r. I. . u. .. ~ 'l' IC' ;-.' ..... -, ";"... ~ - '" ~ e- N TRACT C .. ..~~]. ,. '. ..":. .'~. r:1 :.:': -r: :::';'J IN 50 100 ._._~ FEET o DENOTES IRON MONUMENT BEARINGS SHOWN ARE ASSUMED .. DEMAU-GA.a LAND luavEYOU Exhibit J) PROPOS:8D REGISrERED LAND SURVEY ... . . , . CITY OF SHOREWOOD MAYOR Robert Rascop COUNCIL Jan Haugen Tad Shaw Alexander Leonardo Robert Gagne ADMINISTRATOR Doug Uhrhammer 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 . (612) 474-3236 7 May 1984 Mr. Paul Skjervold / Skjervold Law Office Suite 210, Sullivan Center 24000 State Highway 7 Shorewood, Minn. 55331 Re: Sally Larson - Subdivision and Variance Request Dear Mr. Skjervold: As per our telephone conversation last week, I am writing to summarize and hopefully clarify the issues which were raised with regard to the above- referenced request. 1. Subdivision Approval. For some reason you insist that the Larson request does not constitute a subdivision. I call your attention to the definition of "subdivision" in the Shorewood Subdivision Ordinance No. 79, a copy of which is attached. Not only does your client's request involve "resubdivision" - rearranging existing lot lines, but a new lot is also being created in the process (Tract C). Although I'm not an attorney, 1 believe state law grants cities the authority to regulate subdivisions and place whatever reasonable conditions are necessary on the approval of them. As I understand it, this includes the authority to acquire land for streets, drainage, public utilities and parks. You may wish to discuss in greater depth the City's authority to regulate subdivisions with our City Attorney. 2. Street Right-of-Way. As mentioned in my staff report dated 30 April 1984, Grant Lorenz Road is substandard with regard to right-of-way width. Based upon the statutory authority to acquire right-of-way as part of subdivision approval, the City's policy has been to acquire such r.o.w. when the opportunities present themselves. Although my staff report recommends 17 feet, a subsequent discussion with the City Engineer suggests that 8.5 feet would be appropriate. Any additional r.o.w. would come from the other side of the street. It is important for the City to acquire these rights-of-way wherever possible so as to avoid the need to purchase them at such time it becomes necessary to repair, replace or upgrade streets or utilities. According to the City Engineer, future state-aid funding can also be affected if rights-of-way are inadequate in width. A Residential Community on Lake Minnetonka's South Shore 5b i . . Mr. Paul Skjervold 7 May 1984 Page Two 3. Drainage/Utility Easements. Section V.B. of the Subdivision Ordinance requires easements along rear and side lot lines for drainage and utilities. The Wetlands Ordinance (No. 70) also requires conservation easements over wetlands and natural drainageways. As I mentioned at the Planning Commission meeting on 1 May, it is the responsibility of the applicant's surveyor to show the location and width of the existing drainageway. From that our City Engineer will determine the maximum flood elevation and t~ necessary easement width. 4. Park Dedication Fee. No park dedication fee is required for rearranging lot lines, however, as I have repeatedly pointed out, the request does create a new lot - Tract C. In cases of "simple subdivision" the City gives a credit for the original lot. Therefore, although you are dividing the lot into two lots, only one park dedication fee of $500 is required. This must be paid prior to the City's release of the resolution approving the subdivision. If, as you indicated at the Planning Commission meeting, I have over- estimated your client's need for subdivision approval, I hope you will understand that this is the first case, where a building encroached onto another person's property, in which the parties involved were not worried about it. Past experience has conditioned me to treat such cases as matters of importance and urgency. As a final comment, you must realize that the recommendations of the City staff and the Planning Commission are strictly advisory. The City Council makes the final decision and you may present your request to them regardless of the staff or Planning Commission. recommendation. If you have any questions relative to this matter, please do not hesitate to contact my office. At your request, we can also arrange a meeting with the City Attorney to discuss the issues mentioned herein. Sincerely, J 1~;l~"-./ . Nielsen ner/Building Official BJN:pr cc: Gary Larson Planning Commission City Council . . MAYOR Robert Rascop COUNCI L Jan Haugen Tad Shaw Kristi Stover Robert Gagne ADMINISTRATOR Doug Uhrhammer CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 . (612) 474-3236 MEMORANDUM TO: PLANNING COMMISSION, MAYOR AND CITY COUNCIL FROM: BRAD NIELSEN DATE: 26 APRIL 1984 RE: KEIFER, RICHARD - VARIANCE TO EXPAND A NONCONFORMING STRUCTURE FILE NO.: 405 (84.09) BACKGROUND Mr. Richard Keifer, 25885 Birch Bluff Road (see Site Location map, Exhibit A, attached), has requested a building permit to construct a three-season porch on the rear of his home. The house is considered a nonconforming structure due to its location on the lot (see Exhibit B, attached). As can be seen the house is located only 10 feet from the Second Street right-of-way, a platted street which has never been opened. The required setback for the R-1 District, in which the property is located, is SO feet, thus making the structure nonconforming. The property in question measures approximately 83 feet by 270 feet and contains 22,410 square feet in area. Since our current Zoning Ordinance specifically prohibits expansion of nonconforming structures, Mr. Keifer has requested a variance. ANALYSIS/RECOMMENDATION Since the house was built in the late 1970's, the first thing checked was whether or not it was granted a variance at the time for its location on the lot. Nothing in our files or in past Council minutes indicates that a variance was ever granted, even though a variance may very well have been justified. First, due t.o the relative narrowness of the lot, a SO foot setback from Second Street would have reduced the buildable area to a point where the lot would be virtually unbuildable. Secondly, the platted right-of-way for Second Street has not been, and may never be, opened for public use. It should be noted that the right- of-way is grossly substandard due to its 23 foot width. Finally, it is not considered the applicant's fault that the permit was issued without first being granted a variance, but rather an oversight on the part of the City. A Residential Community on Lake Minnetonka's South Shore 7 .. MEMO FR~HE PLANNER KEIFER, KLCHARD - VARIANCE TO EXPAND A NONCONFORMING STRUCTURE 26 APRIL 1984 Page Two All of this suggests that the variance requested at this time may be justified. The problem, however, is that our current Zoning Ordinance does not allow variances for cases such as this (see Section 6, Subd. 2.C.3.). This is considered an unreasonable restriction of the City's ability to respond to special or unique requests. According to the City Attorney, legal defense of such a blanket restriction may be somewhat questionable. Under the new Zoning Ordinance, the City could have greater flexibility in responding to requests such as Mr. Keifer's. Expans10n of noncon- forming structures would be allowed by conditional use permit when the nonconformity is not increased. Also, only use variances (by state law) and procedural variances would not be allowed in the new Ordinance. The new Zoning Ordinance is not likely to be adopted for 30 - 60 days from now. Since Mr. Keifer is not the only person waiting for the new Ordinance, it is suggested that the City amend Section 6, Subd. 2.C.3. to allow variances for expansion of certain nonconforming residential structures. Exhibit C contains a suggested text for the proposed amendment. It is suggested that the City adopt this amendment, with any modifications deemed necessary, and grant the variance to Mr. Keifer as requested. As a final comment it should be realized that the amendment is intended only as an interim measure until the new Zoning Ordinance can be adopted. BJN:pr cc: Sandy Kennelly Gary Larson Jim Norton Sue Niccum Richard Keifer \\ ~ N ~~ \ ~_.-=~*.~\-.,-, b 1.!1~". - .,' . .----- Po" P:.--- --- c..J...,A ~ --- ------ - . --------- ------ ------ -- ,1" /t~O"' ---- ---- .....: " ..' , .' .. .-'" .. 'a;.. _ l.. '\ ... "'" . I -, ,........ ~ " ' 1- ~- F ------ .,..1 .' .~,;,~'.~~j:'\~Y"~ ':; c 1" ~ "., ~, ~<.''''' ...... , .... J , - .. " ..) .::...... - ..... "..~~ .. ... ... ' _# .... \AI II\. .. ~l .' " . ..... o ..... .... " .' ".)0. .; " - . ,-" .. , ~ ~cwt~ l " :::' ~O' r' ----" ---- - Exhibit B PROPERT~Y SURVEY N ""PN... ~. >,,," .. . ,:~ ,.:,; ::: .. :.~~,~'lr;'7f~i;~~"" ' :,' C' i,,:;....~~. \'~"f 'J.,li'!!~~ .fI\ !It, (\ \\ I:J"~.~. ..J ~ \) ~,,~,"""""" I ~", , :.. ',.,.-10.. ., ." ~~,1.,...:.,','" .,.",," .', .. , , ; Vl ~. it., C\.. ~ ~ .~ ~ . . . ,. . , :: ~.' t/.~J.o . . . . - DRAFT - ORDINANCE NO. AN ORDINANCE AMENDING ORDINANCE NO. 77. BEING AN ORDINANCE FOR THE PURPOSE OF PROMOTING THE HEALTH, SAFETY, ORDER, CONVENIENCE, PROSPERITY AND GENERAL WELFARE BY REGULATING THE USE OF LAND, THE LOCATION, AREA, SIZE, USE AND HEIGHT OF BUILDING ON LOTS, AND THE DENSITY OF POPULATION IN THE CITY OF SHOREWOOD, MINNESOTA. The City Council of the City of Shorewood, Minnesota, does ordain: Section 1. That Ordinance No. 77, Section 6, Subdivision 2.C.3., is hereby amended to include: "Ce) To allow variances for the expansion of nonconforming single-family residential structures, subject to any conditions deemed reasonab ly necessary by the City Counci 1." Section 2. That this Ordinance shall take affect from and after its passage and publication according to law. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD, this_____day of , 1984. Robert Rascop, Mayor ATTEST: City Clerk Exhibit C PROPOSED ORDINANCE AJI;~~mMENT Allows variance for expansion of certain nonconforming structures . . MAYOR Robert Rascop COUNCI L Jan Haugen Tad Shaw Kristi Stover Robert Gagne ADMINISTRATOR Doug Uhrhammer CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 . (612) 474-3236 MEMORANDUM TO: PLANNING COMMISSION, MAYOR AND CITY COUNCIL FROM: BRAD NIELSEN DATE: 26 APRIL 1984 RE: KEIFER, RICHARD - VARIANCE TO EXPAND A NONCONFORMING STRUCTURE FILE NO.: 405 (84.09) BACKGROUND Mr. Richard Keifer, 25885 Birch Bluff Road (see Site Location map, Exhibit A, attached), has requested a building permit to construct a three-season porch on the rear of his home. The house is considered a nonconforming structure due to its location on the lot (see Exhibit B, attached). As can be seen the house is located only 10 feet from the Second Street right-of-way, a platted street which has never been opened. The required setback for the R-1 District, in which the property is located, is 50 feet, thus making the structure nonconforming. The property in question measures approximately 83 feet by 270 feet and contains 22,410 square feet in area. Since our current Zoning Ordinance specifically prohibits expansion of nonconforming structures, Mr. Keifer has requested a variance. ANALYSIS/RECOMMENDATION Since the house was built in the late 1970's, the first thing checked was whether or not it was granted a variance at the time for its location on the lot. Nothing in our files or in past Council minutes indicates that a variance was ever granted, even though a variance may very well have been justified. First, due to the relative narrowness of the lot, a 50 foot setback from Second Street would have reduced the buildable area to a point where the lot would be virtually unbuildable. Secondly, the platted right-of-way for Second Street has not been, and may never be, opened for public use. It should be noted that the right- of-way is grossly substandard due to its 23 foot width. Finally, it is not considered the applicant's fault that the permit was issued without first being granted a variance, but rather an oversight on the part of the City. A Residential Community on Lake Minnetonka's South Shore 7 . MEMO FR~HE PLANNER KEIFER, ~HARD - VARIANCE TO EXPAND A NONCONFORMING STRUCTURE 26 APRIL 1984 Page Two All of this suggests that the variance requested at this time may be justified. The problem, however, is that our current Zoning Ordinance does not allow variances for cases such as this (see Section 6, Subd. 2.C.3.). This is considered an unreasonable restriction of the City's ability to respond to special or unique requests. According to the City Attorney, legal defense of such a blanket restriction may be somewhat questionable. Under the new Zoning Ordinance, the City could have greater flexibility in responding to requests such as Mr. Keifer's. Expansion of noncon- forming structures would be allowed by conditional use permit when the nonconformity is not increased. Also, only use variances (by state law) and procedural variances would not be allowed in the new Ordinance. The new Zoning Ordinance is not likely to be adopted for 30 - 60 days from now. Since Mr. Keifer is not the only person waiting for the new Ordinance, it is suggested that the City amend Section 6, Subd. 2.C.3. to allow variances for expansion of certain nonconforming residential structures. Exhibit C contains a suggested text for the proposed amendment. It is suggested that the City adopt this amendment, with any modifications deemed necessary, and grant the variance to Mr. Keifer as requested. As a final comment it should be realized that the amendment is intended only as an interim measure until the new Zoning Ordinance can be adopted. BJN:pr cc: Sandy Kennelly Gary Larson Jim Norton Sue Niccum Richard Keifer . . ""'-ret'LI1" '8-.',..........C' '-G j'l ./ J-l:--. t- . . I --- \"., --' '-' "' ,..... ......., .....' ......-- 'G8JjO{,'{'OI .......... . .-......-.".. "''7 ... .Q I ,. ~ I 1 -;:-. +- ~ I I I t .., .~ .~ k .'1,; -., ..,0 ..., ~ ~ ..... ... ~ -J. ~1'rl71 ;! . .... ~ ....... 1ft ~ ~~ ." '" ~ ~ ~ ~ '" Exhibit A SITE LOCATION Keifer variance request ~ s -tD . . ... ------- ----- ------- . . "N ~.' ----- -------- ------ i.1~ ,1"" ... tS:o -. ---- --- ,': " ,,' -- , , ~ .-'" .. '..;.. - ~ " ..~ -, ,....---. ~ \t - \J ..... /~':~>-.;l~)",,6jJj.'~~:"'~~~.t' . I '\ \ \!. (/\ 91. (\ . () IJ ,.l~~fi;'''';~tr. . ~.~ "p ..J 9 .t) . " " ' ;~ ~. '1 ti f\.. 1- ~- F ~ ---- ,.,~.:;~&" .:~,,"~:;;.,';, ~ , '- J - .. '"' ,,-~:::.. .. ..... , ' -~ ~ .~ .\) , -... ... ..) .......... ", ...... \AI II\. .'" ~l " ... . ...... C) '. ,,' ~ " -' .. > ,..>- -.: - . ,-.....~ ~ ~rwt~ I If :::' ~o' ,,< ~ : .,,y. .~. ----- - ---- - fo 1.79". , .,' . '..----- p. '-I If:?:----- .------ c:.- t-,A ~ ------ ------ Exhibit B PROPERTY SURVEY N ;' eW gV A.. ~{}of'Q . . - DRAFT - ORDINANCE NO. AN ORDINANCE AMENDING ORDINANCE NO. 77. BEING AN ORDINANCE FOR THE PURPOSE OF PROMOTING THE HEALTH, SAFETY, ORDER, CONVENIENCE, PROSPERITY AND GENERAL WELFARE BY REGULATING THE USE OF LAND, THE LOCATION, AREA, SIZE, USE AND HEIGHT OF BUILDING ON LOTS, AND THE DENSITY OF POPULATION IN THE CITY OF SHOREWOOD, MINNESOTA. The City Council of the City of Shorewood, Minnesota, does ordain: Section 1. That Ordinance No. 77, Section 6, Subdivision 2.C.3., is hereby amended to include: "(e) To allow variances for the expansion of nonconforming single-family residential structures, subject to any conditions deemed reasonably necessary by the City Council." ~ Va -v O-~ I~ /2fi J Section 2. That this Ordinance shall take affect from and after its passage and publication according to law. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD, this_____day of , 1984. Robert Rascop, Mayor ATTEST: City Clerk Exhibit C PROPOSED ORDINANCE ANiEIJDME1TT AllovTS varianoe for expansion of certain nonconforming structures . . MAYOR Robert Rascop COUNCI L Jan Haugen Tad Shaw Kristi Stover Robert Gagne AOMINISTRA TOR Doug Uhrhammer CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 . (612) 474.3236 MEMORANDUM TO: Property Owners within 500 feet of Our Saviour's Lutheran Church FROM: Brad Nielsen, City Planner DATE: 26 April 1984 RE: Legal Notice Correction - Our Saviour's Lutheran Church Conditional Use Permit File No. 405.(84.08) The legal notice you received regarding the above-referenced conditional use permit is in error. Rather than a day care facility the Church has requested approval for an elementary school, grades K-2, within their existing facility. If you have any questions relative to this matter, please do not hesitate to contact my office at 474-3236. cc: Planning Commission A Residential Community on Lake Minnetonka's South Shore g MEMORANDUM . . MAYOR Robert Rascop COUNCI L Jan Haugen Tad Shaw Kristi Stover Robert Gagne ADMINISTRATOR Doug Uhrhammer CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 . (612) 474-3236 TO: Planning Commission, Mayor and City Council FROM: Brad Nielsen DATE: 26 April 1984 RE: Our Saviour's Lutheran Church - Conditional Use Permit for an ~lementaryschool in a residential district. File No. 405 (84.08) BACKGROUND As explained in a memorandum from Reverend David Steuernagel (Exhibit A, attached), Our Savipur's Lutheran Church, 23920 State Highway 7, has requested a conditional use permit to start an elementary school in their existing facility. As noted in this proposal, they intend to establish classes for Kindergarten through Second Grade for the coming school year. Eventually they plan to add on to the existing building and hold classes for Kindergarten through Eighth Grade. Please note that the C.U.P. requested at this time is for the existing facility only. The addition will require a separate C.U.P. once their plans are completed. The property is currently zoned R-1, Single Family Residence District. The existing facility conforms to the setback requirements of the district. ANALYSIS/RECOMMENDATION Zoning Requirements From a zoning perspective the request is relatively simple. The use of the existing facility as a school is considered a reasonable and efficient use of the property. The relatively smallnumber of students generates little traffic, and onsite parking during weekdays is more than adequate. The future addition, however, will require additional consideration at the time it is proposed. Traffic, parking, recreational facilities and land- scaping will have to be addressed. A Residential Community on Lake Minnetonka's South Shore rG- . . Planners Memo Our Saviour's Lutheran Church 26 April 1984 The only issue relative to zoning is signage. The Church currently exceeds the amount of signage allowed by Section 12 Subdivision 3. C. 5. of the Shorewood Zoning Ordinance. If the request is to be approved, signange should be brought into conformity with the Ordinance. Building Code Requirements Whereas the zoning requirements are relatively simple with respect to the proposed use, the Building Code requirements are considerably more specific and complicated. As of this writing there is some question as to whether the occupancy of the facility is being changed, and if it is, whether the facility can comply with Code requirements - specifically exiting and handicapped access. These questions are currently being discussed with the State Building Code Division. Depending on their determination, it may be acceptable to grant a temporary certificate of occupancy for a limited number of students for one year, until the Church can build their new additi9n. Obviously, the new addition would be in full compliance with the State Building Code. RECOMMENDATION Hopefully the Buidling Code issues can be resolved prior to the public. hearing scheduled for 1 May. If not, it is suggested that the City approve the Conditional Use Permit subject to review and approval of the use by the Shorewood Building official and in conjunction with any recommendation by the Minnesota Building Code Division. Further, all signage should be brought into conformance with current zoning standards. cc: Sandy Kennelly Gary Larson Jim Norton Sue Niccum Reverend David Steuernagel . The angelical Lutheran Church of Our Savior THE LUTHERAN CHURCH - MISSOURI SYNOD 23290 HIGHWAY SEVEN. EXCELSIOR. MINNESOTA 55331 Phones: 474-5181 or 474-0273 Parsonage 474-8561 (~6.\ O'~""'pf ib "') All that part of Lot 168 Auditor's Subdivision No. 135 Hennepin County, Minnesota, lying North of the New Highway No.7. The East 2 acres of Lot 166, Auditor's Subdivision No. 135, Hennepin County, Minnesota, lying North of Trunk Highway No.7. The West 168 feet of Lot 148 of Auditor's Subdivision No. 135, Hennepin County, Minnesota, Lot 210, Auditor's Subdivision No. 135, Hennepin County, Minnesota. Also: Lot 87 in Academy Addition to Excelsior. That part of the property hereinafter described which lies Northerly of the Northwesterly right of way of State Trunk Highway Number 7 as now constructed, to-wit: That part of Lot 167, Auditor's Subdivision No. 135, Hennepin County, Minnesota, lying Easterly of a line drawn from a point in the North line of said Lot 167 distant 127.6 feet East of Northwest corner thereof to a point in center line of Chaska Road as shown in the plat of Auditor's Subdivision No. 135, Hennepin County, Minnesota, which point bears North 430 20' East a distance of 219.7 feet from the intersection of the West line of said Lot 167 extended with the South line of Section 34, Township 117, Range 23, according to the united States Government Survey thereof. ( (2~'t Ve? t ) section 7~ subd, 2~ A,3 The Lutheran Church of Our Savior, 23290 Hwy. 7, desires to begin the operation of a Christian Day School beginning in the Fall of 1984. It is intended that this school will eventually serve children in the Kindergarten through Eighth Grades. However, it is our plan, for the 1984-85 school year, to hold classes only for the Kindergarten, first and second grade children. We anticipate, for this first school year, having up to 20 children in a half-day Kindergarten class and up to 20 children in a combination first-second grade class. It is our desire to teach these two classes of children in our existing building~ the kindergarten class in the lower level and the first-second grade class on the upper level. . As part of our overall plan, we intended to add one grade level in each subsequent school year until the eighth grade 1eve~ is reached. In other words, in 1985-86 we plan to add the third grade~ 1986-87, the fourth grade~ 1987-88, the fifth grade~ 1988-89, the sixth gradeJ 1989-90, the seventh grade and 1990-91, the eighth grade. To house this Christian Day School for the years 1985-1986 and following, The Lutheran Church of Our savior has determined to seek the appropriate permits and approvals early in 1985 for a building addition. The operation of a Christian Day School at our location would not have any substantial or undue adverse effect upon the adjacent properties, nor the neighborhood. Our building is situated rather close to Hwy. 7, thereby being separated from the majority of adjacent property holders by distances of 1,000 feet or more. There are also foliage-type barriers (trees, shrubs, etc.) between our building and those property holders closer than 1,000 ft. Exhibit A-1 APPLICANT'a rffiITTEN PROPOSAL Our Saviour's Lutheran Church - C.U.P. . - 2 - . The topography of our parcel of land lends itself well to not causing adverse effects upon our neighbors. Our building is on the approximate grade level of Hwy. 7, while the neighboring homes are generally situated on a much higher grade level. Pertaining to the effect of a Christian Day School upon the traffic conditions 1 it is our projection that approximately half of the children attending will arrive by school bus. This means that one bus would arrive and depart morning, noon and afternoon. Currently, both public and religious school buses use our parking lot to load and unload children. This does not adversely affect traffic on Hwy. 7, but rather provides an off-street place for buses to stop. It is conceivable that the present buses may be used to transport the additional children. The remaining half of the children are pro- jected to arrive by private cars. The natural tendency of parents transporting their children to school is to arrange for car pools. We project the additional traffic would be ten cars or less per day for the 1984-85 school year. As the school grows, it is our plan to addr.ess this matter of additional traffic with the construction phase in 1985. Consideration and study will be given to aceleration/ deceleration lanes on Hwy. 7 and a back entrance to our property on the northerly side. The current utility facilities in our existing building are able to handle the additional children during school hours. We therefore request that a conditional use permit be granted to operate a Christian Day School at its present location beginning the Fall of 1984. #~~~ Exhibi t A-2 ~ r;.;i t- :; t: ...,1 . ' ,-- "'"'~ ~ ~ r::!,~.. .. ~ , , , , , ;'I'fl " ,~ o E I . .c:, , ' tit' \"'.-r('b ~~_o ~:;;"~ bCDI~ ~I ", ., " ... or: r- , '".:::, J2 ...~ N r-:=- ~ If" ,~ '" I 1 I"'" I ......-- I r-- I ~ " """ tf'o or ~" I ~\J"2 I ~ I s: I I v-. ~ \.1' ,~ " \J', ,"V CD V\,~ \' 0. 56 'IT/"Z . \ \ r" o ('\ '. ~ \\ ~i' . \ \ ., ~ L____.... ---- : "- ~~ ~ - dl ti ~'"\ l'!?--"" It,~ ~ J'; ~ C 1 & l ,,' -Ii : ..../~ ", ,;'~ -\ . ' \ ""'-"'7r. --) - -r-- .',' "h._ --.--- \ ", '. ..------ .~...;../ \ !ill, '\ ".\, I' I . . -;;- ~ ~~ Exhibit B SITE LOCATION \~ ,~i . , "'" ~ ~ ~ .... .- t"" '" '<, \ \ ,~ \ \ \ \ \ K l ~",;..~ ~ ~'j . I I '---.- I I .L -.--_..~._' .-.~. ' / . ',.' r 1_- .- I , / , ./ , " ("'\ .~ it , '''~: f): ',.:' ",1", :..,:~, ,,/ :"l' ...;' 1" . I ~a~: .. ;&~~J It;t ! , I: 1; Ii;, i ' I / / ' I 1'1, I' '://1 : I/~,'/I' Ie' ' . IIV I (, ' . '/'1;/ ,/ ,! / if I . .,.1 , , It. It" .( .~; :( J. ~... '...,,' './ >3;'/" ,: ,J ;' / ',.",-,-.' ~ .., :I c; G - :I Co; Z . U. :I t - . ' ~. ;,'....'<, .-~.....: . ..~ " ......,... " ' // , ,/ G C :> .. ... . = t~ / ,- / ;l~r;:.. :;:; ;,: " .' ~G . . April 27, 1984 Ms. Sandra Kennelly City Clerk City of Shorewood 5755 Country Club Road Shorewood, MN 55331 Dear Ms. Kennelly: This letter is in response to the legal and public notice we received on Tuesday, April 24, 1984, concerning the request by Our Saviour's Lutheran Church for a Conditional Use Permit to operate a day care facility at 23290 State Highway 7. The notice indicates their request will be considered at the May 1, 1984 Shorewood Planning Committee Meeting. .The notice contained a property description of what the church believes to be their property lines and boundaries. We pur- chased the house and property directly north of the church at 6065 G1encoe Road in July of 1983 and currently reside there. The parcel is approximately 2 1/4 acres. At the time of the purchase, the sellers, Ron and Eide Johnston, were not able to provide to the satisfaction of the lender involved, an adequate property description. They were required to escrow funds from their proceeds of the sale to pay the costs involved to torrens the property we purchased. This is currently being done by Mr. Jim Penberthy, an Excelsior attorney. At this time, we would like to go on record as not agreeing with the church's property description, lines and boundaries until this torrens work is completed and a clear description of our property can be obtained. Sincer~ ~. Hanzl ~~.~ Pamela J. Honzl cc: Andy Bond Jim Penberthy Gary Larsen gl 't"h MEMORANDUM . . MAYOR Robert Rascop COUNCIL Jan Haugen Tad Shaw Alexander Leonardo Robert Gagne ADMINISTRATOR Doug Uhrhammer CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 TO: MAYOR AND CITY COUNCIL FROM: BRAD NIELSEN DATE: 9 MAY 1984 RE: REQUEST FOR STREET VACATION - 3RD STREET AND PORTIONS OF CLARA AVE. FILE NO.: 405 (general) BACKGROUND The City has received a petition from 11 property owners requesting the vacation of Third Street and part of Clara Avenue (see Site Location, Exhibit A, attached). The City has requested staff input prior to making a decision on the petition. The streets in question all consist of substandard rights-of-way (only 25 feet wide) which have never been developed as city streetp. Although the petition does not state a reason for the vacation request, one of the property owners has indicated that the owners adjacent to Clara Avenue and the southerly extension of 3rd Street would like to pave the portion of 3rd Street which serves access to their lots. They are concerned that their money would be wasted if the City subsequently developed the street to City standards. It also appears that they want to assure themselves that their current level of privacy will be maintained. ISSUES AND ANALYSIS 4' As can be seen on Exhibit A the original platting of Birch Bluff Road, Clara Avenue, 3rd Street and 2nd Street was done in a grid pattern. What doesn't show is that the street layout has little or no regard for topographic considerations. This plus the inadequacy of the right-of-way width may be major reasons why the streets and adjoining properties have never been developed. The petition can be separated into two parts: 1) 3rd Street north of Birch Bluff Road; and 2) Clara Avenue and 3rd Street south of Birch Bluff Road. The portion of 3rd Street north of Birch Bluff Road constitutes a "fire lane" and, as such, requires separate consideration. In the recent past, City policy has been not to vacate these lake access points. At the Council's direction, the staff has assembled information as to A Residential Community on Lake Minnetonka's South Shore ~ . MEMO FRO.E PLANNER REQUEST STREET VACATION - 3RD ST. AND PORTIONS OF CLARA AVE. 9 MAY 1984 Page Two what other cities' policies are relative to fire lanes. The portion of this report which has been copied in blue contains the responses we have received to date. Any decision on the 3rd Street right-of-way north of Birch Bluff should be made as part of an overall City policy relative to fire lanes. Clara Avenue and the southern portion of 3rd Street present some different concerns. First, the Shorewood Subdivision Ordinance contains specific references to private streets: Section V.A. 12. - "Private Streets. No new private streets shall be approved." Section V.D. 1 - "All lots shall abut on a publicly dedicated street except those lots which when subdivided abut on a previously approved private street." Although the City has adopted a policy which allows three or fewer lots to be served by a private street, this is considered to be an exception rather than standard practice. The policy also requires that a 50 foot easement must be provided: Policy No.5 "A subdivision of three or fewer properties may be served by a private road with a right-of-way of at least 50 feet and a surface of at least 20 feet, provided the City is given an easement for access for utilities and for emergency vehicles; the maintenance and care of such private road to be the obligation of a person or party other than the City." As you may recall, a study was prepared in 1980 (see yellow pages of this report) which addressed possible vacation of portions of Clara Avenue. The study suggests several access alternatives for the Clara Avenue area, including 3rd Street. Please note that the property ownership map is now outdated, however, the report is still considered valid. One of the design alternatives in the report does suggest that 2nd and 3rd Streets could be vacated. That suggestion is based on provision of alternative access roads. If vacation is to be approved, possibly it should occur at such time as those accesses can be acquired. /' RECOMMENDATION Despite the current intentions of the petitioning property owners to never further develop their property, experience tells us that future owners of the property may very well want to split lots to increase the value of the property or possibly reduce taxes. Once right-of-way is given up it is very difficult, often impossible, to get back. At least one of the property owners is willing to combine his two lots and place protective covenants on the property limiting its future development. The City Attorney questions such practice and suggests that such covenants could be challenged at such time as a future owner wished to redivide. . MEMO FR~HE PLANNER REQUEST ~ STREET VACATION - 3RD ST. AND PORTIONS OF CLARA AVE. 9 MAY 1984 Page Three It is doubtful that the City would upgrade the existing street to City standards until additional lots were developed or unless petitioned by the property owners to do so. In this sense, the concern of these property owners relative to their paving the road doesn't seem to be reason enough to vacate the right-of-way, because, in effect, they already control what happens to the street. If the City does agree to vacate the street, despite serious concerns by the staff, the following should be considered: 1. A 50 foot easement should be provided as per the City's policy on private streets. 2. A use and maintenance agreement between the property owners should be reviewed by the City Attorney. 3. Some sort of agreement should be obtained from the petitioning property owners stating that they clearly understand that future development of their property will be affected by their request. Ideally, these statements should be recorded on their property deeds so as to put future owners on notice regarding the limitations. BJN:pr cc: Sandy Kennelly Gary Larson Jim Norton Petitioning Property Owners J r . z o .- 'a~ r '1)t3~n3 ~ ....J ) I i ----- a: u Q o o 3: Q o o 3: j '2 't: ~ ~ >- W ....J ....J ~ ~ ~ o -z a:: EXHIBIT A / '~a aae <t ....J W ....J ~ >- z z ::::> en , --' ....J M31^ MOa'13~ w en o a:: ZN w ~ (!) _._~_.. en ~ w c~ ei M w!JeUi<FtZ27701 COUNTY ROAD 110 ~MINNETRISTA' MINNESOTA 55364 . 446,1660 February 2, 1984 Mr. Douglas Uhrhammer City Administrator City of Shorewood 5755 Country Club Road Shorewood, r{~1 55331 Dear Doug: Regarding your inquiry of January 9th, the City has no written policy regarding regulations of public use of fire lanes in the City. However, the City does not allow public use of any of our fire lanes. On occasions, it was necessary to have violators remove docks and/or equipment that had been erected or stored on the lanes. Hope this is of some hel? Please call if there are other questions. Sincerely, M' /_-/-" . . /". t. '. .... L/ rtt-A. ,Lf.{c ,_4'l.-;;-::: ( I '!.i-:...- Charlotte Paterson Clerk/Administrator CLP :bjs ~ r TO: . . MAYOR Robert Rascop COUNCI L Jan Haugen T ad Shaw Kristi Stover Robert Gagne ADMINISTRATOR Doug Uhrhammer CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 . (612) 474.3236 i::,.' : ' City Manager City of Mound FROM: Doug Uhrhammer City Administrator DATE: January 9, 1984 RE: The Use of Fire Lanes to Lake Minnetonka ' or Dedicated Road Easements Extending Wou 1 d you pleas d. . e sen me information . has set for the effective l' regarding the policy your City in your City. regu ations of public use of Fire Lanes cc: Robert Rascop, Mavor Brad Nielsen, City Planner AJp1' / /))t /t~ 7}o Iltgtll4wn ~ ::;:JR.G (Mlt:5 ;tJ#c., haML j;/frJ mull.( UI;'~ Ii/U v4tJ- d1/ ~ ~ ~ Oik ;Jt/bl/c- f/MjJry. !f!/}Il/lML ~ #' t)#1 /;Jlflfl/tlA/ )~tL ~r I{ 5'In-/,ilJ iZZ. 7ii~ #JPsr hlZ.J,ldh fl'IljJl.e {/:5W11 ~ 'r> pvw~ {/St' U1l 1m/- m~ tit .~ jJu . [ A Residential Community on Lake Minnetonk 's Cr~ OF VICT~RIA reay 0/ ~ and ~~ January 13, 1984 Doug Uhrhammer City Administrator 5755 Country Club Rd. Shorewood, MN. 55331 Dear Douglas: With regards to your letter inquiring about policies for fire lanes to Lake Minnetonka. There is only one such lane within the city that I am aware of. There is no policy Concerning its use, nor is it maintained as a usable access to the lake. Silcer7fy, (J-f /~l~4Y14,.~ <Joe Rudberg vPlanner/Zoning Administrator JR:jk .. '" 795-1 ~ ridou:a~ uItJV. 55386 (6'-12) ~~/j-236~'j . . MAYOR Robert Rascop COUNCIL Jan Haugen Tad Shaw Kristi Stover Robert Gagne ADMINISTRATOR Doug Uhrhammer CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 . (612) 474-3236 J': ; > ~ " - TO: City Manager City of Spring Park FROM: Doug Uhrhammer City Administrator DATE: January 9, 1984 RE: The Use of Fire Lanes, or Dedicated Road Easements Extending to Lake Minnetonka Would you please send me information regarding the policy your City has set for the effective regulations of public use of Fire Lanes in your City. cc: Robert Rascop, Mayor Brad Nielsen, City Planner Reply: We have only one 'Fire Lane' to the lake. there is no written policy but the City does not allow boal launching or parking and signs are placed stating this. The City does keep it plowed for access to the ice in winter. Pat Osmonson. Administrator CITY OF SPRING PARK A Residential Community on Lake Minnetonka's South Shore . . Dl:i:JJM1IfN January 11, 1984 Mr. Doug Uhrhammer, City Administrator City of Shorewood 5755 Country Club Road Shorewood, Minnesota 55331 Dear Doug: Use of Fire Alleys and Road Easements to Lake Minnetonka Fire Alleys: Most fire alleys are 10' or less in width and while not restricted to public use, are limited to walkway to the Lake. No launching or storage of boats allowed. We have an Ordinance prohibiting launching from public lands except in designated areas. Road Easements: We have several roads to the lake, all 50' in width. Three of them have been developed into beaches and parking and launching is prohibited. On three of them we have municipal dockage for small boats (slides). Part of the area is chained but parking is permited in the other area. At one of the beaches parking is by permit only. The other two beaches have open parking. As an aside we find most of the fire alleys have been grassed over by the neighbors and historically the neighborhood knows they exist but the general public is not always aware of their existance. From time to time we have had requests for vacation but the City has taken the position that it is public access to the Lake and has denied all of the requests. I hope this has been helpful. .' .. ~ordi lly, if. 'L.,-c.-l-- (~ . . ene Weidner Clerk-Treasurer-Administrator City Offices: 20225 Cottagewood Road, Deephaven, Minnesota 55331 (612)474-4755 . . CITY of ORONO Post Office Box 66eCrystal Bay, Minnesota 55323eMunicipal Offices On the North Shore of Lake Minnetonka January 16, 1984 ~\A~t Mr. Doug Uhrhammer, City Administrator City of Shorewood 5755 Country Club Road Shorewood, Minnesota 55331 Dear Mr. Uhrhammer: In reply to your recent letter regarding use of fire lanes or street easements extending to Lake Minnetonka, the policy and regulations of public use of these in the City of Orono, are: In instances where it has been determined that it is beneficial for public uses of a particular easement, platted but unimproved road, or fire lane to the lake, a swimming beach or dock for neighborhood boat launching, has been established. These are maintained by the City. All other dedicated unimproved streets or fire lanes are the responsibility of the adjacent property owner to the centerline of that particular area. The City does not allow a structure or a change of the topography to the property to occur. The City does not maintain this particular area. If you do have further questions, please do not hesitate to call me. Sincerely, ... ~-~ wal~~~Bepson cit~~dministrator BlJlLI)ING & ZONING - 473-7357 · ASSESSING ADMINISTRATION & FINANCE - 473-7358 . PUBLIC WORKS - 473-7359 Sec. 3 Subd. K. Subd. L. Subd. M. ,.., . , ..)I' ". . . :I , t' ' Signs. All signs shall be In conformance with Tonka Bay ord(nance:t, No. 7B as may be amended. i.;' " i~ Docks. All res i dent i a 1 docks sha 11 be in conformance wi th the pro.,,,, visions of Tonka Bay ordinance Nos. 85.93 and 98 and as may be h.rt~, , I" after amended. and all commerci a 1 docks sha 11 be in conformance,.';}' with the provisions of Tonka Bay Ordinance Nos. 90 and 104 and:as ""I be hereafter amended. '5t;' 'tf. ' , -:h: , ~.~.- 1. All fire lanes in the City 'shall be located" identified and t/'le~~ use thereof restricted to one of the following c1assificat,lons .~;.^' as so designated on the official zoning map. All fire lanes;' i:' are to provide lake access to the public. '''~Ij a. Class I shall be used for pedestrian access to the lake, !~t" fishing from shore. launching canoes and other small. boatsf.. not requiring a trailer, no sporting activities inVOlving 'i thrown objects such as catch, softball. baseball, frlsbee.i . volleyball and football. f ' . i" ,~ Class II can be used for all the activities as deslgnateo ~.~i~ in Class I as well as snowmobile access during the .:ttl\ winter. ~J- Class III shall only be used for fishing. boat launching t~ and winter vehicular access to the lake. There shall ;~' be no parking of automobiles, boat trailers or snowmobi1es~'/, on or adjacent to any of said fire lanes. . ~, '~ if Class I: I-Crescent, II-Pearl, 14-North Channel, IS-South ~~ Channel, 17-North Manitou, 2-Lake Place. 4-West J' Point, 6-North Sunrise, 7-South Sunrise. 9-Aspen, I' ~~:~~~~~'B~:~~~~~~wn.19-Apgar. 20-North Brentwood,' ~' ctass II: 3-lnterlachen, B-South Waseca, t3'-WOodpecker, IB'- ;I Bay. . . ~ Subd. N, ,..... Fire Lanes. , .' b. c. 2. The following fire lanes shall be classified as follows: .. Class I II: 5-North Waseca. * The$e fire lanes shall be allowed to have winter motor vehicular traffic access to the lake. :'. );." r. .~. If 42 . . , ~ ( , ... \ ,\ '\ ;; ...1 .I ,~.,..'--.-- ... -....." ",- - '- ~~ef 1!3ar- 4901 Manitou Road, Tonka Bay, Minnesota 55331 Tel. 474-7994 MAYOR Glenn Frober~; January 30, 1984 COUNCI L E:chsarti G. f3i':H.J1l1ar: .10"'''''' M F DOU91,!,; P Ruth !Vi. Sherman CITY ADMINiSTRATOR Willie Norileet Jr, Mr. Doug Uhrhammer City of Shorewood 5755 Country Club Road Shorewood, MN 55331 Dear Doug: Enclosed you will find a copy of the City of Tonka Bay's regulation for fire lanes. This 'information comes from the Comprehensive Zoning Ordinance. If you have any questions, please feel free to contact me. Thank you. Since re 1 y , {,J~ Ylc~ Wi 11 ie Norfleet City Administrator gl enc. ... . . 703.00 (- Section 703 - Private Use of Undeveloped Public Right-of-Way 703.00. Purpose. The purpose of this ordinance is to establish a procedure to be used by the City in considering requests for the private use of undeveloped public right-of- way. 703.05. Applicability. 1. This Ordinance shall apply to all private uses of undeveloped public right-of-way regardless of whether such use is presently taking place or may be permitted in the future. ( 2. It shall be unlawful for any person, firm, partner- ship, corporation or other legal entity to use un- developed public right-of-way for any purpose without complying with the provisions of this ordinance. 3. Undeveloped right-of-way shall include but not necessarily be limited to boulevards, slopes adjacent to City streets, unpaved shoulders, dedicated streets not yet developed and the like. 4. Private use of undeveloped public right-of-way shall be by permit only. 703.10. Procedure. 1. The Engineering Department of the City shall have the responsibility to determine whether to issue any permits requested. The criteria to evaluate a permit request shall include, but not necessarily be limited to, guide- lines established by the City Council, safety of the public, need to maintain access for emergency services, the use for which the permit is requested, compatibility with surrounding uses and neighborhood and such other factors as seem reasonably related to health, safety and welfare of the community. ~ 2. The Engineering Department may condition the issuance of any permit upon $uch terms and conditions as the City Engineer deems in the best interests of the community. ( 3. Permits issued by the Engineering Department shall also contain notice to the permit holder that the permit may be revoked by the City Manager at any time when it can be shown that continued private use of the undeveloped public right-of-way area is causing or is likely to cause tJ\, YVAtt ()t'\ 4 - 169 - . . 703.15 a nuisance to surrounding property owners or to the general public. 4. Any decision to issue, not issue, revoke or not revoke a per~it hereunder may be appealed to the City Council by any aggrieved party by submitting a letter to the City Manager so requesting. 703.15. Penalty. Unless otherwise declared in Minnesota Statutes, any person violating any provisions of this ord- inance is guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than Seven Hundred Dollars (~700.00) or imprisonment in jail for not more than ninety (gO) days or both. .. - 170 - ( Co ( . r':"'SU;...UT'lOJ~ JJO~ 16'" /. E 'KCE LS to f2. y,'riSP..EAS, the City of E:>:celslor Gee:I;s it necessary to de5ibl'"~te emergency vehicle access lanes end fire lanes on or across public or pri:vate property, and . v.r:riEP..:sAS, Ordin.2.nce No. 78, v.'hich amencs Section 700:169.3lJ. 01 the Code of Ordinances, authQrizes the Fire l'iarshall to t,a}:e steps as indiceted in the ordinance to Effect such Ectiori, Eno . .. ~ ., ~n~~, the Fire Marshall hes determined the necessary location of emerg~ncy vehicle access lanes and fire lanes on and ecross public and private property; N~W, THEREFORE, BE JT RESOLVED-by the City Council of the City oJ. Excelsior thet the lanes described in the attached E>~libit A .2.re hereby adopted by the Council as the emergency ver!icle access and fire l.enes in and for the City 01 Excelsior a~d shall be herea1ter so designated; that obstruction thereof i.5 )-}ereby prohibited and the public works director sh.2.ll post scid lanes accordingly. , JULY Neyor ;to./L & k?$- I J?C!~ Ci iy J'olanager .I .. '. '. . . EXHIBIT A TO RESOLUTION NO. (' ~- I ~ The following fire lanes are hereby declared by the undersigned, the Fire Marshall of the C'ity of Excelsior, to be areas on pri- vate property which shall at all times be kept free of parked vehicles: 1_ Property known as 832-834-836 3rd Avenue, Excelsior, also · known as part of Lot 104, Aud. Sub. 120: a. A driveway 15 feet in width located the entire length of the westerly boundary line of the parcel. b. A 15 foot driveway located south of the garage buildings built at the southern portion of the property. c. A 15 foot driveway along the north side of the garages, as well as a 15 foot driveway along the east side of the driveway serving the build- ing known as 836. d. A 15 foot driveway adjacent to the eastern line of the property terminating at the fire lane described at b. hereof. e. Parking area adjacent to the entrances of each' of the buildings shall be kept free from all vehicle parking to a width of 12 feet so as to allow emergency use ~or ingress and egress to each of the buildings. 1r 2. Property kncwn as 838 3rd Avenue, also known as part of Lot 104, Aud. Sub. 120: a. Ingress and egress drivevlay to 3rd Avenue shall be kept clear of parked cars to a width of 30 feet, as well as an area 15 feet in width and extending along and in front of all garages located on said property. J ,. b. Parking lot area adjacent to the entrances of each of the buildings shall be kept free from all vehicle parking to a width of 12 feet so as to allow emergency use for ingress and egress ~ to each of the buildings. " . -2- . 3. Property known as 840, 842, 84~ and 846 3rd Avenue, Excelsior: a. A driveway 30 feet in width adjacent to the western property line of property extending from 3rd Avenue to the southern property line. b. A driveway 15 feet in width along the southerly property line. c. A driveway 30 feet in width a10ng the eastern pro- perty line. . d. A driveway 15 feet in width along the north side of the garages as presently located on the property extending from the fire lane described at a. to the driveway described at c. . e. A driveway 15 feet in width located adjacent to the garages constructed west on the northerly property line. f. Area adjacent to the entrances of each of the build- ings shall be kept free from all vehicle parking to a width of 12 feet so as to allow emergency use for ingress and egress to each of the buildings. ~. Property known as 421 Division Street, also known as Lots 87 and 88, Aud. Sub. 135: a. A driveway 30 feet in width adjacent to the south- erly boundary of the tract from Division Street to the easterly boundary of the property. . . b. Parking lot area ad'jacent to the entrances of each ..of the buildings sh.all be kept free from all vehicle parking to a width of 12 feet so as to allow emer- gency use for ingress and egress to each of the buildings. 5. Property known as 411 Di visi'::m Street, Excelsior, also known as Lots 85 and 86, Aud. Sub. 120: a. Parking lot area adjacent to the entrances of each of the buildings shall be kept ,,:free from all vehicle parking to a width of 12 feet so as to allow emer- gency use for ingrnss and egress to each of the buildings. 6. Prop~rty known as 777 Excelsior Blvd., Excelsior: a. Parking lot area adjacent to the entrances of ea-:h of the buildings shall be kept free from all vehicle parking to a width of 12 feet so as to allow emer- gency use for ingress and egress to each of the buildings. ~ . . -3- '. . . 7. Property known as 723 Water Street, Excelsior: a. A driveway 30 feet in width as measured along the easterly boundary of Water Street. b. A fire lane 15 feet in width located adjacent to property line and to the retaining wall as presently constructed. c. A driveway 15 feet in width along the north side of the garages as presently located and built on the ., property. d. Parking lot area adjacent to the entrances of each of the buildings shall be kept xree from all vehicle parking to a width of 12 feet.so as to allow emergency use for ingress and egress to each of the buildings. 8. Property known as 186 George Street, Excelsior, also known as part of Lots 136, 137 and 138, Aud. Sub. 135: a. Parking lot area adjacent to the entrances of each of the buildings shall be kept free from all vehicle parking to a width of 12 feet so as to allo~ emer- -gency use for ingress and egress to each of the buildings. 9. Property known as 322 Lake Street, Excelsior, also known as Lots 20 and 21, Aud. Sub. 135: a. Parking lo~ area adjacent to the entrances of each of the buildings shall be kept free from all vehicle parking to a width 'of 12 feet so as to allowemer- bency use for ingress and egress to each of the buildings. b. A 15 foot driveway located along the northwesterly boundary of said parcel extending in a southerly direction from Lake Street to a rear lot line. 10. Property kno~n as 246~ ~Morse . Avenue, Excelsior, also known as part of Lot 2, Galpih Addition: "' a. A 15 foot driveway located along the northeasterly side of said tract and ad~iacent to the retaining wall, extending northwesterly from Morris Avenue to the rear portion of the lot. b. Parking lot area adjacent to the entrances of each of the buildings shall be kept free from all vehicle 'parking to a width of 12 feet so as to allow emer- gency use for ingress and egress to each of the buildings. . . ~ '. . -4- . 11. Property known as Excelsior ~partments, also known as Galpin Shores: a. The platted street known as Linden Place is hereby declared to be ~or its ~ull length and ~ull width a ~ire lane, and 'no vehicle parking shall be per- mitted on any part of the street. 12. Property known as fire lanes Nos. 818, 820, 822 and 824, 3rd Avenue, Excelsior, also known as Lots 8 and 9, Burr Oaks: .. a. A driveway 15 feet in width located adjacent to the west boundary of said tract. b. A driveway 15feet in width measured adjacent to the garages built at the south end of the property. c. A driveway 15 feet in width adjacent to the east boundary of said tract. d. Parking lot area adjacent to the entrances o~ each of the buildings shall be kept free from all vehicle parking to a width o~ 12 feet so as to allow emer- gency use for ingress and egress to each of the buil dings. 13. Property known as Courtland Apartments, 200 First Street, Excelsior: a. First floor exit fronting on Courtland. A width of ~our ~eet either'side of the center door west. b. Rear exits from first and second floors and ground. ~nimum of 8 feet ~rom'rear of building base of stair- way to Courtland Street. Not only shall no parking be allowed within the hereinabove estab- lished ~ire lanes, but the lanes shall at all times be maintained and kept open ~or use by emergency vehicles, including the removal of snow. -' ,. Dated: OA: "Y"Y?t'l ;~1 4",.-"1-u7 Fire Marshall./ City of Excelsior NORTHWEST ASSOCIATED CONSULTANTS INC. MEMORANDUM TO: Shorewoocl Planning Commission, Mayor and Ci ty Cou nc iI FROM: Brad Nielsen DATE: 13 February 1980 RE: Clara Avenue Area Study FilE NO: 656.09 - 79.20 BACKGROUND Mr. Gene Ruffenach has requested that the City allow him to develop Block 5 and portions of Block 3, Mann's Addition to Birch Bluff (see Exhibits A and B attached). The property is currently undeveloped. The applicant has asked for a permit to construct one single family dwelling at this time, but has indicated that due to the size of the property in question, he will eventually wish to develop additional units at a later date. In addition to the request for a building permit, the applicant requests permission to construct a private road over the existing Clara Avenue right-of-way to access the property in question. The site directly abuts portions of Clara Avenue and Second Street, both of which are dedicated rights-of-way, but neither of which have ever been developed. The property in question is currently zoned R-1. Surrounding land uses include single family residential and undeveloped land, as indicated on Exhibit B attached. A number of residents in the neighborhood have become very concerned with the development of the subject property due to questionable site access and the potential removal of a number of large maple trees located wifhin the Clara Avenue right- of-way. As a result of this concern, the neighboring residents filed a petition to vacate the eastern portion of Clara Avenue in favor of a more desirable access. Upon preliminary review of the request, the Planning Commission found that more land than just the property in question was affected by the future of Clara Avenue, Second Street and Third Street. In light of this aOO the neighborhood concern, the Planning Commission felt that an area plan should be developed by our office, taking into account all undeveloped property in an area bounded by Third Street to the west, Birch Bluff Road to the north, Eureka Road to the east and Valley Wood lane to the south. 4820 Minnetonka Boulevard, Suite 420 4&48)Of)dalldakeDl'ead<#t8, minneapolis. minnesota 55416 925-9420 612-sn~19 . Shorewood Planning Commission, Mayor and City Council 13 February 1980 Page Two . AREA DEVELOPMENT FACTORS Development of the property in question and the Clara Avenue area in general involves dealing with a number of constraints, both natural and man-made. Some of these development constraints are in evidence on Exhibit B, attached. Natural Site Constraints 1. Topography. The area in question is characterized by relatively drastic changes in topography with some slopes in excess of 30 percent grade. While such areas are naturally aesthetic, severe slopes tend to make development extremely costly and often prohibitive. Roads must be designed as close to parallel with contours as possible. In order to achieve acceptable grades, roads designed perpendicular to severe slopes require substantial alteration of terrain which can potentially result in environmental damage (eg. drainage, erosion and loss of vegetation). In addition to roads, severe slopes present difficulties in the construction of sewer lines. 2. Wetlands. A fairly substantial amount of the area and property in question con- sists of designated wetlands. These areas are illustrated on the attached exhibits by a diagonal line pattern. In addition to the development restrictions contained in the Shorewood Wetlands Ordinance, these wetlands restrict access to the area as well as the location of utility easements. 3. Vegetation. As previously mentioned, a row of large old maple trees has been planted within the right-of-way limits of Clara Avenue. The neighboring residents have stated that the trees are between 80 and 125 years old, and that in addition to impacting the aesthetic beauty of the area, removal of the trees would destroy some historic amenity. While the concern over potential loss of these trees is very easily understood, from a planning perspective it is felt that this issue should not be the sole basis for a decision by the City. First, the estimated age of the trees is very questionable. According to a landscape architect in our office, the life expectancy of a maple tree is approximately 75 to 80 years, although some specimens may reach 100 years of age. If the neighborhood estimates are correct, it is questionable how long the trees will exist before they begin to deteriorate naturally. Further, although trees would take time to grow back, they can be replaced. A road, even if poorly located, tenc:/s to be more permanent and extremely difficult and costly to change. Finally, if, in consideration of these trees, a road is located which requires substantial terrain alteration (in order to overcome topographic restraints) it may result in removal of as much or more of other vegetation in the area. Shorewood Planning Commission, Mayor and City Council 13 February 1980 Page Three Man-Made Site Constraints Although Clara Avenue, Second Street and Third Street were not platted to today's standards, for the most part they were located to take advantage of more gradual slopes. However, for whatever reasons, development of the periphery land abutti ng Birch Bluff and Eureka Roads did not take into consideration development of the. interior portions of the area. The followi ng issues are considered to be man-made site constra i nts: 1 . Third Street. Three lots abutting Third Street have been previously developed. The Thomas Peebles residence was constructed extremely close to the Clara Avenue right-of-way making it difficult to acquire a standard 50 foot right- of-way if access from this location proves to be desirable. 2. Second Street. The Richard Keifer residence has been constructed within 10 feet of the Second Street right-of-way (see Exhibit F, attached), making access via Second Street potentially hazardous. In addition, the Dorfman residence is accessed by a driveway which has been built on a portion of the right-of-way. 3. Clara Avenue. The James Marshall residence and Bruce Ausen's garage have been built extremely close to the Clara Avenue right-of-way on the eastern end as it intersects Eureka Road. Also, while the controversial maple trees may be considered a natural feature, they were del iberately planted by previous landowners to delineate property boundaries. Given the location of the trees and the existing buildings, it is questionable whether a road could be threaded out to Eureka Road without causing damage to or requiring removal of the existing trees. 4. Valley Wood lane. As a result of developmen! of Shorewood Acres 2nd Addition and property west of it, the only remaining access from the south via Valley Wood Lane would be through the Vern Watten property. POTENTIAL DESIGN ALTERNATIVES Considering the development constraints discussed above, an "ideal" design solution for the Clara Avenue area does not exist. Exhibits C, D and E illustrate alternative ways in which the Clara Avenue area could be developed. In preparing the alternative sketch plans, an attempt was made to provide access to the property in question while at the same time considering development of the remaining undeveloped land in the Clara Avenue area. It should be noted that none of the alternatives presented here involve elimination or relocation of existing structures. All alternatives are based upon existi ng zoni ng requi rements. . ( Shorewood Planning Commission, Mayor and City Council 13 February 1980 Page Four Exhibit C - Clara Avenue Access Plan 1 . Ruffenach property is accessed via east end of Clara Avenue from Eureka Road. Clara remains at 25 foot right-of-way width with a standard cul-de-sac te rmi nus. 2. Keifer property is accessed ~ome day) by 3rd Street and Clara Avenue from the west. There appears to be adequate room for a standard street. 3. Watten property is accessed from the south via Valley Wood lane. 4. Second Street and unused portions of Clara Avenue are vacated. Problems 1 . Clara Avenue remains substandard. 2. Question as to impact on existing maple trees. 3. Traffic passes very close to existing structures on east end of Clara. 4. This design creates the greatest number of double fronted lots of alternatives presented. 5. Neighborhood is concerned about having another intersection (Clara and Eureka) so close (approximately 250 feet) from the Birch Bluff Road/Eureka Road i ntersecti on. A variation of this scheme was proposed by the applicant. He attempted to purchase , the vacant Glen Norgaard property (see Exhibit B). This alternative was not considered by our office due to prohibitively steep topography near Birch Bluff Road. The appl icant has since abandoned the idea due to the high cost of acquiring the Norgaard property. Exhibit D - 2nd/3rd Street Access Plan 1 . Ruffenach and Keifer properties accessed from Birch Bluff Road via 2nd Street and portions of Clara Avenue. Clara Avenue right-of-way is widened to standard 50 feet with standard cul-de-sac terminuses. !a Shorewood Planning Commission, Mayor and City Council 13 February 1980 Page Five 2. Third Street can be upgraded to standard width. 3. Watten property is accessed from Valley Wood lane. 4. Unused portions of Clara Avenue and Second Street could be vacated. Problems 1 . Substandard street width on Second Street. 2. Proximity of buildings to Second Street right-of-way. Exhibit E - Shidla/Mullane/vVatten Property Access Plan 1. Access to Keifer property is acquired between the Shidla (undeveloped) and Mullane properties. 2. Standard road is constructed through the Watten property to the Ruffenach property. A small southward extension provides access to Watten.s southern parcel. 3. Second and Third Streets and unused portion of Clara Avenue could be vacated. 4. No double fronted lots are created and standard streets are provided. Problems 1 . It would be difficult to get more than two additional lots which conform to the Zoning Ordinance out of the applicant1s properfy with this scheme. 2. Although from a planning perspective this alternative may be the most favorably viewed, the primary obstacle to this scheme is the achievement of cooperation between landowners. While it is reasonable to expect that eventually these people or their children will wish to develop the property, they may not be interested in investing in improvements at this time. This suggests that the applicant may have to make arrangements with appropriate landowners to construct a road at his cost, or wait to develop his property until the other land is developed. (e. Shorewood Planning Commission, Mayor and City Council 13 February 1980 Page Six CONCLUSION The alternative schemes presented in this report represent what we feel are reasonable and feasible opportunities for the applicant to develop his property while the City is ensured that the remaining undeveloped property in the Clara Avenue area can be developed also. A final note regarding these plans is that although engineering con- cerns have been considered on a preliminary basis, whatever plan is finally approved should be subject to favorable review and comment by the City Engineer. cc: Elsa Wiltsey Becky Hunt Jim Norton Frank Kelly Gene Ruffenach .. MINNESOTA ~~"- ;Jr;' f. ~ is ~. ... *'7'" j-JI~ I I I[~n~i~ i .& <-:}{] 1"1~~1:..:~: 30001 SITE lOCATION MAP i i o Clara Avenue Area Study sPf'ftNG PAJtC ~ 1M:I~ lllO\JOIO I I I ..... " ....., ' , 0fl0tI0 ,," '---~ "-,- Lol" "''''''''~Ollk(J Uppr' L :,~ ~ I NORTHWEST ASSOCIATED - CONSULTANTS INC. ...... r.l ". -y. ~'er8 AvanlJCl Aret9 5l:vdy i '." -:". .. -. ,0 -,~J.O. I ~~_._~." ~. :\', _/~-~'-=~ !~ · ~~~;;7~\ft~ '\~;Y'llttj\~\f2~J~r~,. J;2:;~;p~" I p.: \" \ '\ ',\\ r' ".... 00:\\<\ l' ~ l//.':11~~\bA~~~t~'\i-rr~\d~,l>~~ ~~x< /J--f(\(l~D ~~\.)U',",~~~I': '''~,1i' .~.R~'~~-~~~ ~ :.:: ~ _~ ~ 'I\\~~\\\~t ""'(f rr(ij~~..' 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() ( Nt) ~ ,) '21 -- I( 'C.lZ. ,- b I~ · ':1101. ~ -'7403 .~_ ."...: ~.1 ..,-'.-:.-< ~ ,( .; ...... " .- ... " --.. ",'''""., ", .... ,---..- ..-- ...,_........ " 177 ----------- . AV~' ------- -' .--;''--:--- c,~A/2.,A, . -"'- ....-' ,- -.' -, ,.,..-- .....--- ~ ') . '. N j . .. . . CITY OF SHOREWOOD MAYOR Robert Rascop COUNCIL Jan Haugen Tad Shaw Alexander Leonardo Robert Gagne ADMINISTRATOR Doug Uhrhammer 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 MEMORANDUM TO: PARK COMMISSION, MAYOR AND CITY COUNCIL FROM: BRAD NIELSEN DATE: 3 MAY 1984 RE: PARK DEDICATION - PROPOSED ORDINANCE AMENDMENT FILE NO.: 405 (gen) Some time ago the City raised the park dedication fee from $350 to $500. Since this was an amendment to an ordinance, the change should have been done by ordinance. The staff has been unable to locate any such ordinance amendment. The attached proposed ordinance amendment is submitted as a "housekeeping measure". The issue of park dedication will be discussed in greater detail in conjunction with the City's new Subdivision Ordinance which will be studied in the next few months. The proposed amendment is being referred to the Park Commission at their 7 May meeting for review and comment. Ideally, we would like the City Council to approve it with any necessary modification at its 14 May meeting. If you have any questions, feel free to contact my office. <" cc: Sandy Kennelly Gary Larson BJN:pr A Residential Community on Lake Minnetonka's South Shore \ OCL, -4 / , I ' ,. /., ,. . . ,.< i' I. ",.._', - D R AFT - ORDINANCE NO. AN ORDINANCE AMENDING ORDINANCE NO. 79 OF THE CITY OF SHOREWOOD BEING AN ORDINANCE FOR THE PURPOSE OF PROMOTING ORDERLY AND SYSTEMATIC PLANNING FOR SUBDIVISION OF LAND DEVELOPMENT IN THE CITY OF SHOREWOOD AND REPEALING ORDINANCE NOS. 89 AND 98 The City Council of the City of Shorewood ordains: SECTION 1: Section VII, Public Lands of Ordinance No. 79 of the City of Shorewood is hereby amended to read as follows: "Section VII. Public Lands. Because a new subdivision, as well as commercial land development, creates a need for parks and playgrounds as well as for streets, eight per cent of the total area of each new subdivision or its equivalent shall be dedicated for such use. Such area must be suitable for parks and playgrounds and shall conform to the City plan for parks and playgrounds within the City. In lieu of requiring dedication of an area for parks and playgrounds, the City, at its option, may require developer to pay into the City Park Fund, a sum of money equal to eight per cent of the value of the raw land contained in the proposed subdivision or commercial land development and the value of the raw land contained in the proposed subdivision or development shall be determined by the City Assessor, or as an alternative, it may require the subdivider to pay into the City Park Fund $500 for each lot, if the lot is a single-family lot, or $500 for each living unit authorized to be built on the plat, if the plat contains lots other than the single-family units, or $500 for each commercial sewer unit assigned to the property by the City, in accordance with the City's commercial sewer assessment and policy hook-up, if the development is a commercial land development." SECTION 2: Section 2 of Ordinance Nos. 89 and 98 of the City of Shorewood are hereby repeal~p. SECTION 3: This Ordinance shall take effect from and after its passage of publication according to law. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD THIS day of , 1984. Robert Rascop, Mayor ATTEST: City Clerk . . ORDINANCE NO. AN ORDINANCE REGULATING THE MANUFACTURE, USE AND SALE OF CONTROLLED SUBSTANCES IN THE CITY OF SHOREWOOD AND PROVIDING A PENALTY FOR VIOLATION THEREOF The City Counc~l of the City of Shorewood ordains: SECTION 1: General. The sale and possession of controlled substances and glue shall be regulated as hereinafter set forth. SECTION 2: Definitions. A. "Controlled substance" means a drug, substance, or immediate precursor in Schedules I through V of Minnesota Statutes Section 152.02. The term shall not include distilled spirits, wine, malt beverages, intoxicating liquors or tobacco. B. "Deliver" means sell, offer for sale, barter, exchange, administer, dispense, give away, distribute or supply in any other manner. The term delivery as herein defined shall include the attempt to do such acts as well as the actual completed commission thereof. C. "Patient" means a. the individual for whom a controlled substance is prescribed or to whom a controlled substance is administered, or b. the owner or the agent of the owner of any animal for which a controlled substance is prescribed or to which a controlled substance is administered. D. "Person" includes every individual, corporation, partnership and association of one or more individuals. E. "Practitioner" means a person licensed by law to prescribe and administer any of the controlled substances as defined above. F. "Pharmacist" means a person duly licensed and registered with the Minnesota State Board of Pharmacy as a registered pharmacist. I 0 c.... . . G. "Prescription" means a written or oral order by a practitioner to a pharmacist for a controlled substance for a particular patient, which specifies the date of its issue, the name and address of such practitioner, the name and address of the patient (and, if such controlled substance is prescribed for an animal, the species of such animal), the name and quantity of the controlled substance prescribed, the directions for use of such substance and in the case of a written order, the signature of such practitioner. An oral order by a practitioner for a controlled substance must be promptly reduced to writing by the pharmacist. ~ H. "Manufacturer" means a person or persons other than a pharmacist who prepares controlled substances in dosage forms by mixing, compounding, encapsulating, entableting, or other process. I. "Wholesaler" means a person or persons engaged in the business of distributing controlled substances to persons included in any of the classes named in Section 4. ' J. "Warehouseman" means a person or persons who stores controlled substances, for others, and who has no control over the disposition of such controlled substances except for the purpose of such storage. SECTION 3: Prohibited Acts. A. Except as otherwise provided in this section, or by state law it shall be unlawful for any person to: a. manufacture, sell, give away, barter deliver, exchange or distribute; or possess with intent to manufacture, sell, give away, barter, deliver, exchange or distribute, a controlled substance. b. possess a controlled substance, except when such possession is for one's own use and is authorized by law. B. It shall be unlawful for any person to procure, attempt to procure, possess or have in his control a controlled substance by any of the following means: a. fraud, deceit, misrepresentation or subterfuge; b. Using a false name, or giving a false address or false credit; -2- . . c. concealing a material fact; d. forging or altering a prescription. e. making a false statement in any prescription, order, report or record relative to a controlled substance; f. making, issuing or uttering any false or forged prescription; g. ialsely assuming the title of, or falsely representing any person to be, a manufacturer, wholesaler, warehouseman, pharmacist, physician, doctor of osteopathy licensed to practice medicine, dentist, podiatrist, veterinarian or other authorized person for the purpose of obtaining a controlled substance. SECTION 4: Exceptions. shall not apply to the following in their trade, business or profession exception shall not be a defense to prohibited in Section 3 hereof: Section 3 of this ordinance the ordinary course of provided; however, this the doing of the acts A. Practitioners; B. Pharmacists; C. Manufacturers; D. Pharmacists as manufacturers; E. Wholesalers; F. Warehousemen; G. Persons engaged in transporting such controlled substances as agent or employee of a practitioner, pharmacist, manufacturer, warehouseman, wholesaler, or common carrier; H. Any patient as herein defined with respect to procuring, possession and use of a controlled substance in accordance with terms of a prescription and prescribed treatment; I. Persons who procure, possess or use such controlled substances for the purpose of lawful research, teaching or testing, and not for sale; -3- . . J. Lawfully licensed and registered hospitals or bona fide institutions wherein sick or injured persons are cared for and treated, or bona fide hospitals for the treatment of animals. SECTION 5: Use of Original Containers and Labels Required. All patients having possession of any controlled substance, by lawful prescription of a practitioner, while such controlled substances are lawfully in such person's possession, shall keep such controlled substances in the original container in which they were deliv~ed until used in accordance with such prescription, and shall not remove the pharmacist's original label identifying the prescription from such original container. SECTION 6: Inhaling, Breathing, Drinking of Certain Substances Prohibited. No person shall inhale, breathe or drink or be or become intoxicated by reason of inhaling, breathing or drinking any substance commonly known as glue, adhesive, cement, mucilage, dope, solvents, lacquer, drugs, fingernail polish and lacquer, nail polish remover, or thinners for the above named substances, or any substance containing toluol, hexane, tricholorethylene, acetone, tolunene, ethyl acetate, methyl ethel ketone, trichoroathane, isopropanol, methyl isobutyl keton, methyl callosolve acetate, cyclohexanone, or any other substance which contains ketone, aldehydes, organic acetates, ether, chlorinated hydrocarbons, or any other similar ingredient which releases toxic vapors for the purpose of inducing symptoms of intoxication, elation, excitement, confusion, dizziness, paralysis, irrational behavior or in any manner change, distort or disturb the balance, coordination or the audio, visual or mental processes. SECTION 7: Purchase, Sale or Possession Regulated. No person shall, for the purpose of violating or aiding another violate any provision of this ordinance, intentionally possess, buy, sell, transfer possession or receive possession of any glue containing the intoxicating substances defined in Section 6. SECTION 8: Self Service Display Prohibited. Retail establishments selling glue containing the intoxicating substances defined in Section 6 shall not sell such glue from a self-service display. SECTION 9: Confiscation and Disposition of Prohibited Drugs. Any controlled substances or glue found in the possession of any person convicted of a violation of this ordinance shall be confiscated and shall be forfeited to the Chief of Police who shall make proper and timely disposition thereof by destroying them. -4- " AGREEMENT AGREEMENT, made this day of April, 1984, between the City of Shorewood, hereinafter referred to as "City," and Trivesco, Inc., hereinafter referred to as "Trivesco." WHEREAS, Trivesco has submitted to the City a P.U.D. Concept Plan concerning the development of certain property known as the Murfin, Clifford and Reber's property, and legally described as follows: WHEREAS, part of said proposal requires a traffic study to be prepared for presentation to the Department of Transportation, State of Minnesota, and for the orderly development of the S. E. Quadrant of the City of Shorewood. WHEREAS, Trivesco and the City have asked the City Engineers, Orr-Schelen-Mayeron to prepare a written proposal defining the scope of the project and submit a firm bid for its cost. Trivesco and the City shall mutually approve a contract to be let for this proposal. WHEREAS, Trivesco has requested the City Engineers prepare plans and specifications, advertise for bids, let bids, supervise construction, and bond for work, and assess the benefited property. NOW, THEREFORE, in consideration of the promises hereinafter contained, the parties agree as follows: 1. The City Engineers, Orr-Schelen-Mayeron, shall prepare a written proposal defining the scope of the traffic study and shall submit a firm bid for its costs. 2. Trivesco shall post a letter of credit to assure full and complete payment for said traffic study, subject only to certain exceptions hereinafter contained. 3. That in the event the P.U.D. project is approved by the City and construction commences thereafter, then the cost of said study shall be assessed against the lands in the project, according to M.S. Chapter 429 et sec. TRIVESCO AGREEMENT Page 2 4. That in the event the P.D.D. project is approved by the City and Trivesco does not proceed within one year after said approval to commence construction on the project, then the cost of said traffic study shall be paid for by Trivesco and the City may draw upon the letter of credit for a payment of the traffic study costs. 0 ~/I;;;R 5. That in the event that Trivesco's~proj~cr is not approved by the City, then the City shall assume responsibility for 50% of said costs of said traffic study and Trivesco shall assume responsibility for 50% of the costs of said traffic study. 6. That Trivesco shall pay the City all costs incurred by the City for consulting with the engineers, planners and attorney in connection with this project. All consulting professionals shall bill developers at the same rate per hour as they bill the City and shall supply developers with an itemization upon request. In the event that said project is approved and Trivesco proceeds with the project, then the actual costs of these services plus the costs of the improvements will be levied and assessed/\ag.ains.-t-a-ll d~velupllleIT'l:-s benefited b~ this ptoj~c~. However, the bills for saidserv~ces.c ~ shall be paJ..d wh~e~.. /I\\r-'\ \)~ ~\ J--o'-J ~til.~v~4:> CA~LC2.Y~ 7. If the traffic study described hereinabove shows that there is no need at Highway 7 for an improved or a new intersection in the vicinity of the proposed project, the City shall pay 50% of the cost of said traffic study and Trivesco shall pay 50% of the costs of said traffic study. .. . . Ie in e r & o p pel O!!!P~VE!' INC. . Hay 9, 1984 ,. Hr. Gary Larson Attorney at Law 17736 Excelsior Boulevard Hinnetonka, Minnesota 55345 Dear Gary: I discussed the developers agreement with Hayor Rascop at a breakfast meeting this morning with he and Kristy Stover. He suggested that we remove the deadline date of Hay 29 in paragraph I-B. The language that has been substituted is acceptable to Trivesco. In essence, what we are saying is that Trivesco must have buildable lots in the single family first phase in 1984 in order to warrant the land investment that we are involved with in August of 1984. Orr-Schelen-Hayeron must commence engineering work, specifications, etc. early in June in order to allow time for publication advertising for bids, bond sale, awardings and actual construction prior to freeze up in 1984. All of these good things can happen with timely decisions and approvals. I have spoken with Bernie Mittelstadt and Jim Norton today and they are agreeable to the language in paragraph 2. Yours truly, /[/. 1/ du.G Paul N. Steiner PNS/vas Enc. cc: Orr-Schelen-Mayeron, Bob Rascop, Brad Neilson GENERAL CONTRACTORS . LAND DEVelOPERS . CONSULTATION . lOcl DESIGN . . AGREEMENT , I: AGREEMENT, made this day of May, 1984, between the City of Shorewood, hereinafter referred to as "City," and Vt. Y Trivesco, hereinafter referred to as "Trivesco. II C\J' ~'1HEREAS, Tri vesco has submitted to the .Ci ty a P. U . D. ~ Concept Plan concerning the development of certain property known as the Murfin, Clifford and Reber's property, and legally described as follows: ,> WHEREAS, part of said proposal requires a traffic study to be prepared for presentation to the Department of Transportation, State of Minnesota, and for the orderly development of the S. E. Quadrant of the City of Shorewood. WHEREAS, Trivesco and the City have asked the City Engineers, Orr-Schelen-Mayeron to prepare a written proposal defining the scope of the traffic study project and submit a firm bid for its cost. Trivesco and the City shall mutually approve a contract to be let for this proposal. WHEREAS, Trivesco has also requested the City Engineer to prepare plans and specifications, advertise for bids, let bids, supervise construction, and bond for work, and assess the benefited properties, only in the event the P.U.D. project is approved by the City. NOW, THEREFORE, in consideration of the promises hereinafter contained, ~he parties agree as follows: 1. Trivesco shall post a letter of credit to assure full and complete payment for said traffic study, subject only to certain exceptions hereinafter contained. A. That in the event the P.U.D. project is approved by the City and construction commences thereafter, then the cost of said traffic study shall be assessed against the benefited property according to M.S. Chapter 429 et. sec. , . . TRIVESCO AGREEMENT Page 2 ~ B. That in the event the P.D.D. project is approved by the City in a timely matter and allowing for the construction of the first phase of sin~le family residential lots regarding streets and public utilities in the year 1984 and Trivesco does not proceed within one year after said approval to commence construction on the project, then the cost of said traffic study shall be paid for by Trivesco and the City may draw upon the letter of credit for a payment of the traffic study costs. C. That in the event that Trivesco's P.D.D. project is not approved by the City, then the City shall assume responsibility for 100% of said costs of said traffic study. D. If the traffic study described hereinabove shows that there is no need at Highway 7 for an improved or a new intersection in the vicinity of the proposed project, the City shall pay 50% of the cost of said traffic study and Trivesco shall pay 50% of the costs of said traffic study. 2. That Trivesco shall pay the City all costs incurred by the City for consulting with the engineers, planners and attorney in connection with this project. All consulting professionals shall bill developers at the same rate per hour as they bill the City and shall supply developers with an itemization upon request. Such billing shall be only in the event that said project is approved and Trivesco proceeds with the project, then the actual costs of these services plus the costs of the improvements will be levied and assessed against all property benefited by this project. , ...---- ,.- ~ W"'YNE G. PO PH"''''' ROGER w. SCHNOBRICH OENVER K...UFM"'N OAVIO S. OOTY ROBERT A. MINISH ROL.FE .... WOROEN G. MARC WH ITEH EAO BRUCE O. WIL.L.IS FREOERICK S. RICH...ROS G. ROBERT JOHNSON GARY R. MACOMBER ROBERT S. BURK HUGH V. PL.UNKETT. m FREOERICK C. BROWN THOMAS K. BERG . . POPHAM, HAIK, SCHNOBRICH, KAUFMAN & DOTY, LTD. 4344 IDS CENTER MINNEAPO-LIS, MINNESOTA 55402 TELEPHONE AND TIELECOPIER 612 -333 -4S00 BRUCE O. M"'L.KERSON JAMES R. 'STEI L.EN JAMES B. L.OCKH"'RT "'L.L.EN w. HINOERAKER CL.IF'FORO M. GREENE O. WIL.L.I...M K"'UFMAN OESYL. L.. PETERSON MICHAEL. O. FREEMAN THOMAS C. O'...OUIl..... L.ARRY O. ESPEL. JANIE S. MAYERON O...VIO .... JONES L.EE E. SHEEHY L.ESL.IE GIL.L.ETTE MICHAEL. T. NIL.AN Mayor Robert Rascop 4560 Enchanted Point Mound, MN 55364 Ms. Jan Haugen 4780 Lakeway Terrace Shorewood, MN 55331 Mr. Thad Shaw 5580 Shore Road Shorewood, MN 55331 ROBERT C. MOIL.ANEN STEVEN G. HEIKENS THOMAS r. NEL.SON THOMAS J. R...OIO O...VIO L.. HASHMAL.L K"'THLEEN M. MARTIN JOHN C. CHIL.OS OOUGL.AS P. SE"'TON BRUCE B. McPHEETERS GARY O. BL.ACKFORO SCOTT E. RICHTER /GREGORY L.. WIL.MES EL.IZABETH .... THOMPSON OF COUNSEL FREO L.. MORRISON 2080 PETRO - L.EWIS TOWER 717 SEVENTEENTH STREET DENVER,COLORADO 80202 TELEPHONE AND TEL.ECOPIER 303-292-2680 SUITE B02-2000 L STREET. N. W. WASHINGTON,D.C.20038 TEL.EPHONE AND TEL.ECOPIER 202 -887-5154 May 9, 1984 Ms. Kristy Stover 4755 West Lane Shorewood, MN 55331 Mr. Robert Gagne 24850 Amber Road Shorewood, MN 55331 Re: Rapid Oil Change Our File No.: 8366-001 Dear Mr. Mayor and Members of the Council: This office represents Ed Flaherty, president of Rapid Oil Change, who recently requested a variance in order to locate a Rapid Oil Change business on property known as 19465 State Highway 7. The Council voted in favor of the resolution 3-2 but the resolution failed because Shorewood ordinances require a 2-3 vote on variance resolutions. Mr. Flaherty retained our firm to review the matter because we have undertaken extensive representation of both developers and municipalities in land use matters. After investigating this matter, we have concluded that the City has f~ \~/riltr JOe . . Mayor and City Council May 9, 1984 Page 2 wrongfully denied the requested variance based on the following factors: 1. A miscommunication of fact has caused some members of the Council tq mistakenly conclude that the owner of the property can make reasonable use of the property without a variance. 2. On its face, there is clear, practical difficulties and undue hardship to the owner caused by the configuration of the lot and the City setback ordinances which deprives the owner of use of the property. 3. The City has established a less rigorous standard for granting variances and nonconforming use permits in similar situations, most notably in the case of the adjacent Burger King restaurant. Inconsistent application of variance standards violates the law. 4. The requirement of City ordinances that variance resolutions be passed by a 2-3 vote rather than a majority vote is not authorized by statute and is therefore illegal. It is possible that some of the miscommunication caused some council members to believe that they had no choice but to vote against the variance, because of legal technicalities. The purpose of this correspondence is to demonstrate conclusively that the applicant meets all technical requirements and on that basis should be granted a variance. USE OF THE PROPERTY WITHOUT A VARIANCE The owner's site plan included a proposed garage structure situated so that the line of vehicular travel through the building would be perpendicular to the frontage road. The City asked for a schematic showing the building rotated 900 so that the line of vehicular travel through the building was parallel to the frontage road. The owner provided a diagram which showed that a parallel configuration was possible but that it resulted in a poor and inefficient land use design. The owner's representative indicated that the parallel configuration could be accomplished without the garage building or parking violating any setback requirements. Some members of the Council may have misunderstood this statement to indicate that no variance was necessary.' However, the parallel configuration did not change the need of the owner to obtain a . . " Mayor and City Council May 9, 1984 Page 3 variance because the office/apartment building continued to be in noncompliance with the rear fifty (50) foot setback requirement. Therefore, the owner is deprived of reasonable use of the property without a variance even if the garage building can be resituated. .. Variance on the Merits The standard for granting a variance is contained in M.S.A. ~462.357 Subd. 6. A variance from a zoning ordinance should be granted in: ". . .instances where their strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration, and. . . when it is demonstrated that such actions will be in keeping with the spirit and intent of the ordinance. 'Undue hardship' as used in connection with the granting of a variance means the property in question cannot be put to reasonable use if used under conditions allowed by the official controls, the plight of the land owner is due to circumstances unique to his property not created by the land owner and the variance, if granted, will not alter the essential character of the locality." Thus the factors to be taken into consideration are whether the property can be put to reasonable use, whether the hardship is unique to the property and not caused by the land owner and whether the variance alters the character of the locality. What exactly is meant by "undue hardship". Most recent cases and legal authority apply a much less rigorous standard for setback or "area" variances than for "use" variances. The twenty volume treatise by Eugene McQuillan entitled The Law of Municipal Corporations is the most respected and cited legal authority on municipal legal issues and states as follows: "The burden placed upon an applicant for a variance is dependent upon the type of variance sought, that is, whether an 'area variance' which does not involve a use prohibited by the zoning ordiance, or a 'use variance' which permits the use of land which is proscribed. To be granted an area variance, the applicant must satisfy the less demanding standard of showing that strict compliance with the zoning law will cause 'practical difficulties'. An applicant seeking a use variance, on the other hand, bears the heavier burden of showing 'unnecessary hardship' since a prohibited . . Mayor and City Council May 9, 1984 Page 4 use, if permitted, would result in a use of the land in a manner inconsistent with the basic character of the zone. McQuillin, Mun. Corp. ~25.l60 (3rd Ed). Basically, a lesse; burden of proof is required of an applicant for an area variance than an applicant for a use variance because the impact of an area variance is viewed as being much less drastic than that of a use variance. Board of Adjustment v. Kivik Check Realty, Inc., (1978, Del Sup) 389 A2d l289~ Anderson v. Board of Appeals, 22Md App 28, 322 A2d 220 (1974)~ Alumni Control Board, et ale v. Lincoln, 179 Neb. 194, 137 trw2d 800 (1965)~ Ivan Covich v. Tucson Board of Ad'ustment, 22 Ariz. App. 530, 529 P2d 242 1974 3 Anderson, American Law of Zoning, ~18. 46 et. seq. (2d Ed. 1977). There is no Minnesota case directly on point. The closest case is Merriam Park Community Council, Inc. v. McDonough, 210 NW2d 416 (1973). This case involves a review of a decision to grant a variance which is different than reviewing a decision to deny a variance. For that reason and others, it is not direct precedent, but is does give the closest indication of how the Minnesota Supreme Court would react to an area variance case involving a lot with little depth for which setback requirements are at issue. The court states: "There was substantial evidence in this case that sufficient practical difficulties existed to justify varying the provisions of the code as ordered by the City Council. Likewise, there was a sufficient showing to justify the conclusion by the City Council and the court below that the variances granted were in harmony with the general purpose and intent of the zoning code and that the public health, safety and general welfare were secured and substantial justice was done." (emphasis added) The City's variance ordinance requires a showing that there are "practical difficulties or particular hardship". The use of the word "or" implies that the terms have different meanings. The cases and treatises which have developed the law of variances make it evident that the drafters of the ordinance intended that the practical difficulties standard apply to area variances. There is certainly no question that the "parallel design" causes practical difficulties and is not a good land use design. It crowds all improvements into the north one half of the lot in order to create a fifty (50) foot green area next to a woodland. lot in order to create twenty-seven {27} feet of green area next . . Mayor and City Council May 9, 1984 Page 6 to a woods and four hundred and twenty (420) feet away from the nearest southerly residence. In conclusion, the Council should grant a variance on the merits for a number of r~asons. The first is good sound land use planning. Why eliminate setback and green space on the frontage road where it is needed, to create it on the woods boundary where it is not needed? Secondly, the applicant needs a variance to make any use of the property. Thirdly, the City should consider the less drastic impact of an area variance than a use variance and should make a decision based on a practical difficulties standard consistent with the character of the community and the spirit of the law. Inconsistent Application of Standards The Minnesota Supreme Court and virtually all other legal authorities require consistency in the application of zoning law. In the case of Northwestern College v. City of Arden Hills, 281 NW2d 865 (1979), the court held "A zoning ordinance must operate uniformly on those similarly situated. . .[the Minnesota and Federal Constitutions] require that 'one applicant not be preferred over another for reasons unexpressed or unrelated to the health, welfare or safety of the community or any other particular or permissable standards or conditions imposed by the relevant zoning ordinances". We have examined how the City treated the Burger King site next door and all variances granted during the last year. we found that the City approved a nonconforming use resolution for Burger King which requires a more rigorous standard than an area variance. That approval included approval of a rear parking lot with no setback. There were numerous objections of citizens (35 citizens protested at the hearing). The buffer zone between the Burger King parking and the residences to the south is less than the distance from Rapid Oil's proposed parking to the residences to the south. Any judge who applies a common sense legal standard will conclude that the two parcels have essentially the same characteristics or if anything, Burger King is affected less by a fifty (50) foot setback requirement then Rapid Oil, because Burger King's lot has greater depth. Nevertheless, Burger King's parking extends southerly or Rapid Oil's boundary line. This is an example of application of different standards to two different property owners with virtually identical problems and with no health, safety or welfare justification of the difference. . . . . Mayor and City Council May 9, 1984 Page 7 We also reviewed some twenty-three (23) variance resolutions considered by the City Council in 1983 and 1984. Most of the variances involved setback requests by owners of residences. Virtually all such requests were granted with no finding or hint that the property could ~t otherwise be used in either the staff report or the resolution: The law does not provide for a less rigorous standard for residential variances than commercial variances. The City's record during the past year indicates that as a practical matter, the City decides "area variance" cases on a practical difficulties standard rather than an undue hardship standard. Legally, the City must be consistent in its reaction to variance requests and should consider the applicants request on that basis. Legality of Ordinance Request of 4-5 Vote A basic premise of municipal law is that a City has only those powers which are expressly granted to it by the State. Tnis statement applies to police powers in general and especially to zoning ordinances. See McQuillin, Mun. Corp. ~25.35 (3rd Ed.) whee it is stated: "It is fundamental that a municipal corportion has no inherent police power, and hence municipal power of zoning must exist, if it does at all, by virtue of delegation from the State. Moreover, the delegation of the power of comprehensive zoning must be specific or necessarily implied and cannot, according to many authorities, be inferred from the usual grant of general or police power to municipal corporations. Costley v. Caromin House, 313 NW2d 21 (1981). McQuillin notes in the same paragraph that a municipality may not "restrict its legislative power to zone." In addition, a "zoning ordinance must be pursuant to, and in substantial conformity with, the zoning statute or enabling act authorizing it. McQuillin, supra at ~25.58. A zoning ordiancne that does not comply with the designs of the enabling statute will be set aside. McQuillin, ibid. Costley, supra at 27; Reilley Tar & Chemical Cor oration v. St. Louis Park, 265 Minn. 295, 300; 121 IDv2d 393, 396 1963). These are all extremely important and relevant legal principles because the Minnesota enabling statutes do not authorize the 4-5th's vote requirement set forth in the City's variance ordinance. Minnesota Statutes only authorize a municipality to require a majority vote, which, of course, the applicant met in the last vote. . . Mayor and City Council May 9, 1984 Page 8 M.S.A. 1412.191 states that "every ordinance shall be enacted by a majority vote of all the members of the Council except where a larger number is required by law." There are instances where Minnesota Statutes require a 2-3 vote. For instance, M.S.A. 1462.351 Subd. 5 requires a 2-3 vote in order to amend a zoning ordinance. But M.S.A. 1462.357 Subd. 6, which authorizes variances, does not require a 2-3 vote. One can only conclude that the legislature wanted variances to be granted on a majority vote and that the City of Shorewood ordinance requiring a 2-3 vote is unenforceable based on the principles set forth above. Conclusion Rapid oil is legally entitled to a variance and will suffer damages estimated to exceed $100,000.00 if the variance is not granted. There are many reasons for the City to reconsider granting the ordinance. First, we believe that miscommunication occurred at the last meeting which caused some members of the Council to mistakenly conclude that the applicant could reasonably utilize the property without a variance. Secondly, the proper standard for an area variance is one of encountering "practical difficulties". There should be no argument that the applicant meets that standard. Third, the City has practiced a "practical difficulties" standard in its recent variance ordinances and has allowed the adjacent Burger King to enjoy greater parking lot rights than it rejected for Rapid oil. Consistency requires a different result. Fourthly, the 4-5 vote requirement is not authorized by statute. The City can only require a majority vote and the applicant met that standard. Finally, and perhaps most importantly, good planning would suggest a reconsideration. If some members of the City Council felt that they "had" to vote against the variance for technical reasons, I hope, those same members would now feel comfortable that not only is there technical support for a variance, but, in fact, there is a technical mandate for a variance. We would hope those members would agree with the other three Council members that good planning would favor the applicant's proposal which softens the impact of development on the frontage road, makes good utilization of the available lot space and does not create essentially useless green space in the rear of the lot. ~ . . ~d~ RESOLUTION NO. WHEREAS, Ed Flaherty, doing business as Rapid Oil Change, has requested a setback variance for the construction of a Rapid Oil Change garage on property known as Vine Hill Florist, and WHEREAS, a public hearing was held before the Planning Commission, and the Pla~ning Commission recommended approval of said setback variance, and WHEREAS, the matter was heard before the City Council, and WHEREAS, the City Attorney was directed to draw a resolution denying said variance. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD, as follows: FINDINGS OF FACT: 1. That the site contains approximately 20,000 square feet and is zoned C-3. 2. That there is presently located on the site the remains of the Vine Hill Florist shop and Naegele billboard. 3. That the surrounding land uses and zoning are as follows: (a) to the west a mini-storage, ~oned C-11 (b) to the north, State Highway 7~ (c) to the east a Burger King Restaurant, zoned C-3~ (d) to the south, single family residentials, zoned R-1. 4. That the required setbacks for the property are: BUILDING Front yard 0 feet Rear yard 50 feet Side yard 0 feet PARKING Front yard Rear yard Side yard LOT 15 feet 50 feet 5 feet 5. That the original requested variance was to reduce the rear yard setback from 50 feet to 14 feet for the construction of the parking lot, and the reduction from 50 to 47 feet for the rear yard setback on the existing office/apartment building. . . 6. That no one from the public spoke in favor or against the project. 7. That applicant amended his application to a requested variance to reduce the rear yard setback to 23 feet and agreed to add additional evergreen landscaping on the rear of the building, additional landscaping on the front of the building, to change the style of the building to take off the "wing," and to paint the building brown rather than white with multi-colored stripes. ,I 8. That applicant claims a hardship by reason of the shape of the lot, which is narrow with the length of the lot running along the frontage of the road. Applicant argues that by reason of the 50-foot setback from the residential property, it makes a great portion of the lot unusable. 9. That applicant established that the two adjacent residential lots are very long and narrow with the homes located thereon more than 300 feet from the commercial property. 10. That applicant demonstrated a plan by which-the requested use for the property could be located on the property without the granting of any variances, but feels that such a plan is not the best way to design the building on the lot. . 11. That Minnesota Statutes in regard to the granting of variances read as follows: S462.357, Subd. 6 (2). "To hear requests for variances from the literal provisions of the ordinance in instances where the strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration and to grant such variances only when it is demonstrated that such actions will be in keeping with the spirit and intent of the ordinance. Undue hardship is used in connection with the granting of a variance means that the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls. However, the plight of the landowners due to circumstances unique to his property not created by the landowner, and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone shall not constitute an undue hardship if reasonable use for the property exists under the terms of the ordinance..." 12. That there is a reasonable use of the property without granting the variance to the applicant, to-wit: there -2- . . . , exists on the property an existing building that can be used for office or retail store. Additionally, applicant has demonstrated that the Rapid Oil station could be located on the property without granting a variance. 13. That the applicant has not established that a hardship exists in order to grant the requested variance. ~ r CONCLUSIONS 1. Applicant's request for setback variances as amended and set forth hereinabove is hereby denied. DATED THIS DAY OF , 1984. ~ -3- Robert S.C. Peterson Addition P.U.D. Development Stage Plan APPLICANT/LANDOWNER Robert S.C. Peterson 5474 Covington Road Shorewood, Minnesota 55331 Telephone: Home: 474-1367 Office: 474-8801 PLANNER/ENGINEER/SURVEYOR McCombs-Knutson Associates, Inc. 12800 Industrial Park Boulevard Plymouth, Minnesota 55441 Telephone: 559-3700 ATTORNEY Henson and Efron c/o Wellington Tully, Jr. 1200 Title Insurance Building Minneapolis, Minnesota 55401 Telephone: 339-2500 LEGAL DESCRIPTION OF PROJECT SITE 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 aforesai~ Lot; thence West 50 feet to beginning. ADDRESS OF PROJECT SITE 5474 Covington Road Shorewood, Minnesota 55331 EXISTING ZONING CLASSIFICATION AND PRESENT USE Project Site Zoning - R-l: Single Family (estate) Adjacent Property Zoning - Refer to Exhibit B. Development Status - Project site and adjoining property is developed currently as estate homes with the exception of the areas immediately east of Covington Road (which is the location of the cemetery of the Resurrection). PUBLIC DECISIONS REQUIRED 1. Approval of P.U.D. Development Stage Plan for R-l (single family, estate) zoning classification. 2. Approval of building setbacks as proposed in the Preliminary Plat. 3. Deferment of private road construction until all lots are sold. DEVELOPMENT PROPOSAL The project site encompasses approximately 6.9 acres of land and is the homestead of Mr. Robert S.C. Peterson, the applicant. The proposal is for a Planned Unit Development consisting of five estate lots with four of the lots having the building sites clustered to take advantage of the site's topography and the site's southerly exposure overlooking Christmas Lake. The applicant also requests consideration that if the southernmost lot, Lot 5, should be sub- divided in the future to allow another lot to access from the east, that this new lot not be encumbered by the homeowners association proposed for this project. Access to the site is available from Covington Road. Internal access to individual lots is propsoed by a private road located within a proposed 50-foot private easement, with ownership and maintenance being the responsibility of a homeowner's association. The developer intends to gravel the private road at this time, with the understanding that the homeowner's association will upgrade it when all lots are sold. HOMEOWNERS ASSOCIATION r A homeowner's association will be established for the purpose of maintain- ing the private roadway. Annual assessments will be levied by the association for routine maintenance (snow plowing, etc), and procedures will be defined for the assessment of special benefits if needed (major patching, seal coating, and repair of roadway, etc.). All buyers of individual lots will be given copies of the homeowner association's documents as part of the individual purchase agreements. RESTRICTIVE COVENANTS Restrictive covenants will include: . Preservation of open area. . Preservation of vistas overlooking Christmas Lake. . Architectural control of individual dwellings. OEVELOPMENT FACT SHEET Existing Zoning: Proposed Use: Gross Acreage: Total Residential Units: Minimum Lot Size: Area Oevoted to Private Accesses: Proposed Private Access Width: Setbacks (minimum): Front Yard Rear Yard Side Yards Lot Size Tabulation: Lot 1, Block 1 Lot 2, Block 1 Lot 3, Block I Lot 4, Block 1 Lot 5, Block 1 Outlot A Outlot B DESIGN EXHIBITS R-l: Single Family (Estate) R-l: P.U.D. - Single Family Estates 6.93 Acres 5 lots (potentially 6 in future) 20,750 square feet 27,900 square feet 50 feet 30 feet 30 feet 10 feet 39,200 square feet 23,000 square feet 28,300 square feet 20,800 square feet 120,900 square feet 27,900 square feet 35,400 square feet Exhibit A - Location Map Exhibit B - Vicinity/Zoning Map Exhibit C - Boundary Survey Exhibit D - Site Analysis Exhibit E - Concept Plan Exhibit F - Preliminary Plat Exhibit G - Preliminary Utility and Grading, Drainage/Erosion Control Plan . ''''''" uuy ~ ......". ....., o ~ 1<. ^ ~ \ ~ ~ ~ .,UI ISLAND ._, EXUIBI, A ~'-lE6Tl 01= -, SCALE _:LO"A TlON MAP 20!*~ ~. f..,. PE.TE~~ON ADD ,,. 'ON ~~ - "".u .............. McCOMBS KNUTSON ASSOCIATES, INC. .Ir'~.~.f..'. ............ C'ISULlII; IIGlIURS . LAID SUlIYUIIS . SITI 'WI IRS '.W'@i: ...," MINNEAPOLIS end HUTCHINSON,MINNESOTA BOOK FILE " &A "2 BEITZ, .JOHNSON, FOHSBERG & GALT ATTORNEYS AT LAW 6S0 BUILDERS EXCHANGE BUILDING MINNEAPOLIS, MINNESOTA 55402 -'AM~S ANTON BErTZ DAVID W. -JOHNSON ERIC w. F'"ORSBERG TELEPHON E (612) 339 - 68...5 THOMAS R. GALT February 8, 1984 Robert S. C. Peterson 5474 Covington Road Excelsior, MN 55331. Re: Homeowners' Association Documents Dear Bob: Enclosed please find one copy of the following documents: 1. Articles of Incorporation. 2. By-laws. 3. Declaration of Covenants. I prepared the enclosed documents to satisfy the development requirements imposed by the City of Shorewood. I would like you to carefully examine these documents to ensure that I have created no unnecessary restrictions on the right of each homeowner in your subdivision. I have the following com- ments on these documents: 1. Articles of Incorporation. After the Art- icles of Incorporation have been filed with the Minnesota Secretary of State, a nonprofit corporation will be created under the name "Christmas Lake Homeowners Association". This corporation will be the legal entity which will own the roadway and the open spaces, and will have th~ management respon- sibility for the entire project. 2. By-laws. These By-laws really serve as internal "housekeeping" rules for Christmas Lake Homeowners Association. 3. Declaration of Covenants. Of the three documents, this document is the most impor- tant in that the restrictions imposed by this document will be recorded against the title to each lot in your development. As such, it will be difficult to modify these restric- tions once the declaration has been recorded. Robert S. C. Peterson February 8, 1984 Page Two The declaration attempts to balance each homeowner's rights to live as he pleases against the need for central control over the entire development. The restrictions I have created in the declaration are all ai.med at insuring that each owner will be obligated to contribute for his fair share of the roadway expenses and to insure that no homeowner will disturb other members of the community. After you have had an opportunity to review these documents, I would appreciate it if you would give me a call to discuss any comments you may have. After I have received your comments, I will prepare a final draft which will be submitted to the Shorewood Planning Commission. Very truly yours, BEITZ, JOHNSON, FORSBERG & GALT '1/, \ . \. By Thomas R. Galt TRG:wpa cc: Gregory J. Frank Enc 1. .- f' BYLAWS OF CHRISTMAS LAKE HOMEOWNERS ASSOCIATION ARTICLE I Name and Location The name of the Corporation is Christmas Lake Homeowners Association, hereinafter referred to as the "Association". The postal address of the registered office of the Association shall be as set forth in the Articles of Incorporation of the Association, but meetings of the Members and directors may be held at such places within the State of Minnesota as may be designated by the Board of Directors. ARTICLE II Definitions Section 1. "Association" shall mean and refer to Christmas Lake Homeowners Association, a non-profit corporation organized and existing under the law$ of the State of Minnesota, its successors and assigns. Section 2. "Common area" shall mean and refer to all real property owned by the Association for the common use and enjoyment of the Owners. Section 3. "Declaration" shall mean and refer to the Declaration of Covenants, Conditions and Restrictions applicable to the Property recorded in the Office of the county Recorder in and for Hennepin County, Minnesota as Documents No. Section 4. "Home" shall mean and refer to a residential housing unit, and the garage, which is appurtenant to such housing unit, and which are designed and intended for use as ~iving quarters for one family and located or to be located upon one Lot. . Section 5. "Lot" shall mean and refer to a parcel of real estate designated as a lot on any recorded plat or subdivision map of the Property, but specifically excluding any parcel of real estate designated in such plat or subdivision map as an outlot. Section 6. "Member" shall mean and refer to every person or entity who is a record owner of a fee or undivided fee simple interest in any Lot, including, but not limited to, contract for deed sellers. Section 7. "Mortgage" shall mean and refer to any mortgage or other security instrument by which a Lot, or any part thereof, or any structure thereon, is encumbered. Section 8. "Mortgagee" shall mean and refer to any person or entity named as the mortgagee under any Mortgage, or any successors or assigns to the interest of such person or entity under a Mortgage. Section 9. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of a fee simple title to any Lot, including contract for deed sellers, but excluding any person having such interest merely as security for the performance of an obligation. Section 10. "Property" shall mean and refer to all the real property subject to the Declaration, all of which is more fully described on Exhibit A attached to the Declaration. ARTICLE III Meetings of Members Section 1. Annual Meetings. The first annual meeting of Members shall be held on the second Thursday of the same calendar month twelve (12) months from the date of the first and organizational meeting of the Members and each subsequent annual meeting of the Members shall be held on the second Thursday oL the same calendar month each year thereafter. All of such meetings shall commence at 7:30 p.m. If the day for the annual meeting of the Members shall fall upon a legal holiday, the meeting shall be held on the first Thursday thereafter which is not such a holiday. Section 2. Special Meetings. Special meetings of the Members may be called for any purpose at any time by the President or by the Board of Directors, or upon written request of the Members who have a right to vote one-fourth (1/4) of the votes of either class of membership. Each such special meeting shall be held at 7:30 p.m. Section 3. Notice of Meetings. Written notice of each meeting of the Members shall be given by, or at the direction of, the Secretary or person authorized to call the meeting, by sending a copy of the notice by mail, postage thereon fully prepaid, to each Member at his address most recently appearing on the books of the Association. Each Member shall register his address with the Secretary, and notice of meetings shall be mailed to him at such address. Such notice shall also be sent to the holder of any first Mortgage who shall also be sent to the holder of any first Mortgage who shall have submitted a written request for the same to the Secretary. Notice of an meeting, regular or special, shall be mailed at least thirty (30) days in advance of such meeting and shall set forth in general the nature of the business to be transacted, together with the place, day and hour of the meeting; provided, however, that if -2- the business of any meeting shall involve an election governed by Article V or any action governed by the Articles of Incorporation or by the Declaration, notice of such meeting shall be given or sent as provided therein. Section 4. Quorum. The presence at a meeting of Members or proxyholders, or both, entitled to cast one-tenth (1/10) of the votes of each class of membership shall constitute a quorum for any action except as otherwise provided in the Articles of Incorporation, the Declaration, or these Bylaws. If, however, such quorum shall not be present or represented at any meeting, the Members entitled to vote threat shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum as aforesaid shall be present or be represented. Section 5. Proxies. At all corporate meetings of Members, each Member may vote in person or by proxy. All proxies shall be in writing and filed with the Secretary. Every proxy shall be revocable and shall automatically cease upon the conveyance by the Member of his Lot. ARTICLE IV Board of Directors Section 1. Number. The management and affairs of the Association shall be managed by a Board of three (3) Directors, who need not be Members of the Association. Section 2. Term of Office. At the first and organizational meeting of the members, the Members shall elect one (1) Director for a term of one (1) year, one (1) Director for a term of two (2) years and one (1) Director for a term of three (3) years; and at each annual meeting thereafter the Members shall elect each new Director for a term of three (3) years. Section 3. Removal. Any Director may be removed from the Board, with or without cause, by a majority vote of the Members of the Association. Vacancies in the Board of Directors, as a result of death, resignation, removal or otherwise, shall be filled by a majority of the remaining Directors, any su~h appointed Director to hold office for the unexpired term of his predecessor and until his successor is duly elected by the Members. Section 4. Compensation. No Director shall receive compensation for any service he may render to ,the Association. However, any Director may be reimbursed for his actual expenses incurred in the performance of his duties. Section 5. Action Taken Without a Meeting. The Directors shall have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written consent of all the Directors of the proposed action. An action so approved shall have the same effect as though taken at a meeting of the Directors. -3- ARTICLE V Nomination and Election of Directors Section 1. Nomination. Nominations for election to the Board of Directors shall be made by a Nominating Committee. Nominations may also be made from the floor at the annual meeting. The Nominating Committee shall consist of a Chairman, who shall be a member of the Board of Directors, and two or more Members of the Association. The Nominating Committee shall be appointed by the Board of Directors prior to each annual meeting of the Members, to serve from the close of such annual meeting until the close of the next annual Qeeting and such appointment shall be announced at each annual meeting. The Nominating Committee shall make as many nominations for election to the Board of Directors as it shall in its discretion determine, but not less than the number of vacancies that are to be filled. Such nomination may be made from among Members or non-Members. Section 2. Election. Election to the Board of Directors shall be by secret written ballot. At such election the Members or their proxies may cast, in respect to each vacancy, as many votes as they are entitled to exercise under the provisions of the Declaration. The persons receiving the !.arg!?_~.!:_nu~er of votes shall be elected. Cumulative voting shall not be permitted. ARTICLE VI Powers and Duties of the Board of Directors Section 1. Powers. The Board of Directors shall have power: (a) To adopt and publish rules and regulations, in accordance with the Declaration, governing the use of the Common Area and the personal conduct of the Members and their guests thereon, and to establish penalties for infraction thereof. (b) Suspend the voting rights during any period in which such Member shall be in default in the payment of any assessment levied by the Association. Such rights may also be suspended, after notice and hearing, for a period not to exceed sixty (60) days for infraction of any published rules and regulations of the . . .. Assocl.atl.on. (c) To exercise for the Association all powers, duties and authority vested in or delegated to the Association and not reserved to the membership by other provisions of these Bylaws, the Articles of Incorporation, or the Declaration. (d) Directors from three Directors. To declare the office of a member of the Board of to be vacant in the event such member shall be absent (3) consecutive regular meetings of the Board of -4- (e) To appoint and remove at their pleasure all officers, agents, and employees of the Association, prescribe their duties, fix their compensation, and require of them such security or fidelity bond as it may deem expedient. Nothing contained in these Bylaws shall be construed to prohibit the employment of any Member, officer or Director of the Association in any capacity whatsoever, subject to the provisions of Article IV, Section 4. (f) To call special meetings of the Members whenever it deems necessary and it shall call a meeting at any time when requested to do so in accordance with the provisions of Article III, Section 2 hereof. (g) To establish, levy and assess and collect the assessments or charges referred to in Article XI hereof. (h) To employ a manager or such other persons as they may deem necessary, and to prescribe their duties. Section 2. Duties. It shall be the duty of the Board of Directors: (a) To cause to be kept a complete record of all its acts and corporate affairs and to present a statement thereof to the Members at the annual meeting of the Members or at any special meeting of the Members called in accordance with the provisions of Article III, Section 2 hereof. (b) To supervise all officers, agents and employees of this Association, and to see that their duties 9re properly performed. (c) As more fully provided in the Declaration applicable to the Property: (1) To fix the amount of the assessment against each Lot for each assessment period at least thirty (30) days in advance of such date or period and, at the same 'time; (2) To prepare a roster of the Lots and assessments applicable thereto which shall be kept in the office of the Association and shall be open to ~nspection by any Member, and at the same time; (3) To send written notice of each assessment to every Owner subject thereto at least thirty (30) days in advance of each annual assessment period; and, (4) Foreclose the assessment lien against any Lot for which assessments are not paid within thirty (30) days after the due date or to bring an action at law against the Owner personally obligated to pay the same. -5- . , (d) To issue, or to cause an appropriate officer to issue, upon demand by any person, a certificate setting forth whether any assessment has been paid and the amount of any unpaid assess- ment. Such certificate shall be conclusive evidence of any amount of any unpaid assessment. A reasonable charge may be made by the Board for the issuance of those certificates. (e) To procure and maintain adequate insurance on property owned by the Association and adequate insurance against those other risks more fully described in the Declaration. (f) To cause all officers or employees having fiscal responsibilities to be bonded in an amount not less than that required by the Declaration. (g) To cause the Common Area to be maintained in accordance with standards set forth in the Declaration. ARTICLE VII Directors' Meeting Section 2. Regular Meetings. A regular meeting of the Board of Directors shall be held monthly on a day, time and place ~greed upon by a majority of the Directors. Section 2. Notice of Regular Meetings. Notice of regular meetings shall not be required. Section 3. Special Meetings. Special meetings of the Board of Directors shall be held when called by any officer of the Association or by any two Directors after not less than three (3) days notice to each Director. Section 4. Validity of Action at Meeting. The transaction of any business at any meeting of the Board of Directors, however called and noticed, or wherever held, shall be as valid as though made at a regular meeting, if (a) a quorum is presentoand, (b) either before or after such meeting, each of the Directors not present signs a written waiver of notice, or a consent to the holding of such meeting or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the records of the Association and made part of the minutes of the meeting. Section 5. Quorum. A majority of the Board of Directors shall constitute a quorum for the transaction of any business. -6- , ARTICLE VIII Officers and Their Duties Section 1. Enumeration of Offices. The officers of this Association shall be a President and Vice President who shall at all times be members of the Board of Directors, a Secretary, and a Treasurer, and such other officers as the Board of Directors may from time to time by resolution create. Section 2. Election of Officers. The election of officers shall take place at the first meeting of the Board of Directors following each annual meeting of the Members. Section 3. Term. The officers of this Association shall be elected annually by the Board of Directors and each shall hold office for one (1) year unless he shall sooner resign, or shall be removed, or otherwise disqualified to serve. Section 4. Special Appointment. The Board may elect such other officers as the affairs of the Association may require, each of whom shall hold office for such period, have such authority, and perform such duties as the Board may, from time to time, determine. Section 5. Resignation and Removal. Any officer may be removed from office with or without cause by the Board. Any officer may resign at any time by giving written notice to the Board, the President or the Secretary. Such resignation shall take effect on the date of receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 6. Vacancies. A vacancy in any office may be filled by appointment by the Board. The officer ~ppointed to such vacancy shall serve for the remainder of the term of the officer he replaces. Section 7. Multiple Offices. The offices of Secretary and Treasurer may be held by the same person. No person shall simultaneously hold more than one of any of the other offices except in the case of special offices created pursuant to Section 4 of this Article. ~ Section 8. Duties. The duties of the officers are as follows: (a) President. The President shall preside at all meetings of the Board of Directors; shall see that orders and resolutions of the Board are carried out; shall sign all leases, mortgages, deeds, and other written instruments and shall co-sign all checks and promissory notes. (b) Vice President. The Vice President shall act in the place and stead of the President in the event of his absence, inability or refusal to act, and shall exercise and discharge such other duties as may be required of him by the Board. -7- (c) Secretary. The Secretary shall record the votes and keep the minutes of all meetings and proceedings of the Board and of the members; keep the corporate seal of the Association and affix it on all papers requiring said seal; serve notice of meetings of the Board and of the members; keep appropriate current records showing the Members of the Association together with their addresses, and shall perform such other duties as required by the Board. (d) Treasurer. The Treasurer shall receive and deposit in appropriate bank accounts all monies of the Association and shall disburse such funds as directed by resolution of the Board of Directors; shall sign all checks and promissory notes of the Association; keep proper books of account; cause an annual audit I, of the Association books to be made by a public accountant at t~ I r./ completion of each fiscal year; and shall prepare an annual budget and a statement of income and expenditures to be presented to the membership at its regular annual meeting, and deliver a copy of each to the Members. ARTICLE IX Committees Section 1. Standing Committees. The Standing Committees of the Association shall be: The Nomination Committee The Maintenance Committee The Architectural Control Committee Unless otherwise provided herein, each committee shall consist of a Chairman and two or more Members and shall include a member of the Board of Directors. The committees shall be appointed by the Board of Directors prior to each annual meeting to serve from the close of such annual meeting until the close of the next annual meeting and such appointment shall be announced at each such annual meeting. The Board of Directors may appoint such other committees as it deems desirable. Section 2. Nomination Committee. The Nomination Committee shall have the duties and functions described in Article V. ... Section 3. Maintenance Committee. The Maintenance Committee shall advise the Board of Directors on all matters pertaining to the maintenance, repair or improvement of the buildings and facilities located upon the Property, and shall periodically review the adequacy of the insurance coverage afforded the Association and advise the Board of Directors; and shall perform such other functions as the Board, in its discretion, determines. Section 4. Architectural Control Committee. The Architectural Control committee shall have the duties and functions described in the Declaration. -8- Section 5. Subcommittee. With the exception of the Nomination Committee and the Architectural Control Committee (but then only as to those functions that are governed by the Declaration, each committee shall have the power to appoint a subcommittee from among its membership and may delegate to any such subcommittee any of its power, duties and functions. Section 6. Functions of Subcommittee. It shall be the duty of each committee to receive complaints from Members on any matter involving Association functions, duties and activities within its field of responsibility. It shall dispose of such complaints as it deems appropriate or refer them to such other committee, Directors or officer of the Association as is further concerned with the matter presented. ARTICLE X Books and Records Section 1. Inspection. The books, records and papers of the Association shall be, at all times, during reasonable business hours, subject to inspection by any Member or any Mortgagee. The Declaration, the Articles of Incorporation and the Bylaws of the Association shall be available for inspection by any Member or by any Mortgagee at the principal office of this Association, where copies may be purchased at reasonable cost. ARTICLE XI J ~ ,~ ( , Assessments Section 1. Assessments. As more fully provided in the Declaration, each Member is obligated to pay to the Association annual and special assessments which are secured by a continuing lien upon the Lot against which the assessment is made. In the event any assessments are not paid when due, the Association may resort to any of the remedies available to it under the Declaration. ARTICLE XII Corporate Seal _ r Section 1. Form of Seal. The Association shall have a seal which shall be circular in form and shall have inscribed around the ' border the name of the Association, the name of the State of ; Minnesota, and the words "corporate seal." ARTICLE XIII Amendments Section 1. Amendments. These Bylaws may be amended, at a regular or special meeting of the Members, by a vote of a majority of -9- t a quorum of each class of Members present in person or by proxy; provided, however, that the voting and quorum requirements specified for any action under any provislon of these Bylaws shall apply also to any amendment of such provision; provided, further, that any provisions of these Bylaws which are governed by the Articles of Incorporation of the Association may not be amended except as provided in the Articles of Incorporation or applicable law; provided, further, that the Declaration may not be amended except as provided in the Declaration. Section 2. Conflict. In the case of any conflict between the Articles of Incorporation and these Bylaws, the Articles of Incorporation shall control; and in the case of any conflict between the Declaration and these Bylaws, the Declaration shall control. ARTICLE XIV Fiscal Year Section 1. Calendar Year. The fiscal year of the Association shall begin on the first day of January and end on the 31st day of December of every year, except that the first fiscal year shall begin on the date of incorporation. IN WITNESS WHEREOF, we, being all of the Directors of the Association, have hereunto set our hands this day of , 1984. Robert S. C. Peterson Claire L. Peterson STATE OF MINNESOTA) ) SSe COUNTY OF HENNEPIN) -' I' , 1984, before me, a Notary personally appeared Robert S. C. , to who executed the foregoing the same as their free act On this day of Public within and for said County, Peterson, Claire L. Peterson, and be known to be the persons described in and Bylaws, and acknowledged that they executed and deed. Notary Public -10- CERTIFICATION I, the undersigned, do hereby certify: THAT I am the duly elected and acting Secretary of Christmas Lake Homeowners Association, a Minnesota non-profit corporation, and, THAT the foregoing Bylaws constitute the original Bylaws of said Association, as duly adopted at a meeting of the Board of Directors thereof, held on the day of , 1984. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal of said Association this day of , 1984. Secretary ~ r -11- I ARTICLES OF INCORPORATION OF CHRISTMAS LAKE HOMEOWNERS ASSOCIATION We, the undersigned, being of legal age, for the purpose of forming a nonprofit corporation under Chapter 317 of Minnesota Statutes, as amended, and in compliance with the requirements thereof, do hereby voluntarily associate ourselves as a body corporate, not for profit, but for the purposes herein conferred and adopt these Articles of Incorporation: ARTICLE I Name The name of the Corporation shall be CHRISTMAS LAKE HOMEOWNERS ASSOCIATION. ARTICLE II Registered Office The Registered Office of the Corporation shall be 5474 Covington Road, Excelsior, Minnesota 55331. ARTICLE III Purposes and Authority This Corporation is formed generally for civic, recreational, social and community welfare purposes, and specifically for the purpose of constituting and acting as an association of the owners of certain real property situated in Hennepin County, Minnesota, and more particularly described as follows: Lots 1 through 5, inclusive; ~ Outlots A and B; all in Robert S. C. Peterson Addition, according to the plat thereof on file and of record in the Office of the County Recorder in and for Hennepin County, Minnesota; and for the purposes of managing and maintaining the common property of the Corporation, all for the purpose of preserving the value and amenities of the community which is being developed thereon. ~ In fulfillment of such purposes, but subject to such other restrictions as may be set forth in the Declaration, the Corporation shall have the power to: (a) Exercise all of the power and privileges and perform all of the duties and obligations of the Association described in that certain Declaration of Covenants, Conditions and Restrictions herein referred to as the "Declaration," applicable to the aforementioned property and recorded or to be recorded in the Office of the County Recorder in and for Hennepin County, Minnesota and as the same may be amended or supplemented from time to time as therein provided; (b) Fix, levy, collect and enforce the payment of, by any lawful means, all charges or assessments pursuant to the terms of the Declaration; to pay all expenses in connection therewith and all office and other expenses incident to the conduct of the business of the Corporation, including all licenses, taxes or governmental charges levied or imposed against the aforementioned property of the Corporation; (c) Acquire (by gift, purchase or otherwise), own, hold, improve, build upon, operate, maintain, convey, sell, lease, transfer, dedicate for public use or otherwise dispose of real or personal property in connection with the affairs of the Corporation with the assent of members entitled to cast three-quarters (3/4) of the votes of each class of membership. (d) Borrow money, and with the assent of the members having seventy-five percent (75%) of the votes of each class of membership, mortgage, pledge, deed in trust, or hypothecate any or all of its real or personal property as security for money borrowed or debts incurred; (e) Participate in mergers and consolidations with other nonprofit corporations organized for the same purposes, provided that any such mergers or consolidation shall have the assent of two-thirds (2/3) of each class members; (f) Enter into management agreements with third parties providing for the maintenance and adminjstration of the Property in accordance with the Declaration; provided, however, that the Corporation shall have no power to enter into any such management agreement which does not provide (1) for the termination of the same by the Corporation for cause upon no more than thirty (30) days written notice and (2) for a term of no more than one (1) year, but which may be renewable for successive one (1) year terms by mutual agreement of the Corporation and the other party. (g) Own, manage and maintain the Common Area described in the Declaration and any additions thereto, for the use and benefit of the members of the Corporation, subject to such restraints or suspensions of use and voting rights of the members -2- . as are' provided in the Declaration, in these Articles and the Bylaws. (h) Enforce provisions of the Declaration, and any and all other covenants, conditions or restrictions applicable to the aforementioned property; (i) Insofar as permitted by law, and consistent with the provisions and purposes hereof and of the Declaration, to do any other thing that, in the opinion of the Board of Directors, will promote the cornmon benefit and enjoyment of the members, including cooperative developments or undertakings with adjacent properties. ARTICLE IV No Pecuniary Gain to Members The Corporation does not and shall not afford pecuniary gain, incidentally or otherwise, to its members. None of its members shall be personally liable for corporate debt. Members shall, however, be liable to the Corporation for the assessments as specified in the Declaration. ARTICLE V Membership /' Every person or entity who is a record owner of a fee or undivided fee simple interest, including contract for deed sellers, in any Lot (as such term is defined in the Declaration) which is subject to assessments pursuant to the Declaration, shall be a member of the Corporation. The foregoing is intended to exclude persons or entities who hold an interest in any Lot merely as security for the performance of any obligation. Membership in the Corporation shall be appurtenant to and may not be separated from the above-described ownership interest in each such Lot. ARTICLE VI The Corporation shall not have capital stock, but shall have two classes of voting membership: Class A. All members described in Article V hereinabove, with the exception of Robert S. C. Peterson and his heirs, successors and assigns, shall be Class A members and shall be entitled to one vote for each Lot owned. When more than one person holds the interest in a Lot required by Article V for membership, all such persons shall be members but the vote for such Lot shall be exercised as they among themselves shall determine, subject, however, to the limitation that no more than one vote may be cast with respect to any Lot and the further limitation that no vote may be split. The vote for any Lot -3- , which is owned by more than one member may not be cast at any meeting unless all of such members shall have designated one of their number as the only person authorized to cast their vote, and shall have filed such authorization, in writing, with the Secretary of the Corporation prior to such meeting and such designated person shall then be the only person authorized to cast such vote at such meeting. In lieu of such filing prior to every meeting, such members may file, as aforesaid, a document executed by all of them, designating one of their number as the person authorized to cast their vote at all future meetings and such authorization shall continue to be valid until such time as such authorization shall have been rescinded in writing by all of such members. Class B. The Class B member shall be Robert S. C. Peterson, and, his heirs, successors and assigns, which shall be entitled to four (4) votes for each lot owned. Class B membership shall cease and be converted to Class A membership on the happening of either of the following events, whichever shall first occur; (a) when the total number of votes outstanding among the Class A members equals or exceeds the total number of votes outstanding in the Class B membership; or, ,) \\ I ", (b) on December 31, 149-0..- ;?-: ., ',. '.'..' , , )i " \ ARTICLE VII /, Board of Directors The business and affairs of the Corporation shall be managed by a Board of Directors consisting of three (3) Directors, or such other number of Directors as may be determined in accordance with the Bylaws. Until the first full Board of Directors shall have been elected at a special organizational meeting of the members, which shall be held at the time and place specified in the Bylaws, the first and interim Board of Directors shall consist of three (3) Directors whose names and addresses are as follows: Name Address Robert S. C. Peterson 5474 Covington Road Excelsior, Minnesota 55331 Claire L. Peterson 5474 Covington Road Excelsior, Minnesota 55331 ARTICLE VIII Duration The duration of the Corporation shall be perpetual. -4- . . ARTICLE IX Dissolution The Corporation may only be dissolved with the written consent of the members entitled to cast two-thirds (2/3) of the votes outstanding in each class of membership. Written notice of a proposal to dissolve, setting forth the reasons therefor and the disposition to be made of its assets (which shall be consistent with Article X hereof) shall be mailed to every member at least ninety (90) days prior to any meeting at which such dissolution shall be voted upon. ARTICLE X Disposition of Assets Upon Dissolution Upon dissolution of the Corporation, all of its property and assets, both real and personal, shall first be dedicated or transferred to an appropriate municipality, public agency or utility, or if such transfer or dedication be refused, such assets shall then be granted, conveyed and assigned to any nonprofit corporation, association, trust or other entity, to be devoted to purposes as nearly as practicable the same as those to which they were required to be devoted by the Corporation. No disposition of the assets of the Corporation shall be effective to divest or diminish any vested right or title of any member in any such assets arising under recorded covenants and deeds applicable to such assets unless made in accordance with the provisions of such covenants and deeds. ARTICLE XI Amendments These Articles of Incorporation may only be amended with the assent of members entitled to cast seventy-five percent (75%) or more of the total number votes outstanding in each class of membership. ARTICLE XII Incorporators The following persons constitute the incorporators who are forming the Corporation: Name Address Robert S. C. Peterson 5474 Covington Road Excelsior, Minnesota 55331 Claire L. Peterson 5474 Covington Road Excelsior, Minnesota 55331 -5- . y IN WITNESS WHEREOF, we have hereunto executed these Articles of Incorporation this ____ day of , 1984. STATE OF MINNESOTA) ) ss. COUNTY OF HENNEPIN) Robert S. C. Peterson Claire L. Peterson On this day of , 1984, before me, a Notary Public within and for said County, personally appeared Robert S. C. Peterson, Claire L. Peterson, and to me known to be the persons described in and who executed the foregoing instrument and acknowledged to me that they executed the same as their free act and deed. Notary Public J r. -6- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR CHRISTMAS LAKE HOMEOWNERS ASSOCIATION THIS DECLARATION, made on this day of , 1984, by Robert S. C. Peterson (hereinafter referred to as the "Devel- oper") and Claire L. Peterson, husband and wife, and Ransom M. Bliven, single (all of whom are hereinafter referred to as the "Declarants"); WITNESSETH THAT: WHEREAS, Declarants are the owners of the real property described on Exhibit A attached hereto and by this reference incorporated herein for all purposes (hereinafter referred to as the "Property") and Developer desires to create thereon a residential community for the pleasure, recreation and general benefit of the residents of said community; and, WHEREAS, Declarants desire to provide for the preservation of the values and amenities in said community and to this end desire to subject the Property to the covenants, restrictions, easements, charges and liens hereinafter set forth, each and all of which is and are for the benefit of the Property and each owner thereof; and, WHEREAS, Declarants have deemed it desirable for the pleasure and recreation of said community and for the efficient preservation of the values and amenities in said community to create an agency to receive the power to attend to and effectuate policies and programs that will enhance the pleasure and value of said community, and maintain, administer and enforce the covenants and restrictions and collect and disburse the assessments and charges hereinafter created; and, WHEREAS, Declarants have incorporated, under the laws of the State of Minnesota, Christmas Lake Homeowners Association for the purpose of exercising the functions as aforesaid; NOW, THEREFORE, in consideration of the premises, the Declarants hereby declare that the Property is, and shall be held, transferred, sold, conveyed and occupied subject to the conditions, restrictions, easements, charges and liens hereinafter set forth, which covenants and restrictions shall run with the Property and be binding on all parties having any right, title or interest in the Property or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of euch owner thereof. ~ ARTICLE I Definitions l. ration, Definitions. The following words, when used in this Decla- shall have the following meanings: 1.1 "Association" shall mean and refer to Christmas Lake Homeowners Association, a non-profit corporation organized and existing under the laws of the State of Minnesota, its successors and assigns. 1.2 "Common Area" shall mean and refer to the Roadway Common Area and the Open Space Common Area. The terms "Roadway Common Area" and "Open Space Common Area" shall have the follow- ing meanings: a. "Roadway Common Area" shall mean and refer to the real property described on Exhibit B-1 attached hereto and by this reference made a part hereof. b. "Open Space Common Area" shall mean and refer to the real property described on Exhibit B-2 attached hereto and by this reference made a part hereof. 1.3 "Declarants" shall collectively mean and refer to Robert S. C. Peterson, Claire L. Peterson', and Ransom M. Bliven. 1.4 "Developer" shall mean and refer to Robert S. C. Peterson, and his heirs, successors or assigns if such heirs successors or assigns should acquire more than one undeveloped Lot from Robert S. C. Peterson for the purpose of development. 1.5 "Home" shall mean and refer to a detached residential housing unit and the garage which is appurtenant to such housing unit, and which are designed and intended for use as living quarters for one family and located or to be located upon one Lot. 1.6 "Lot" shall mean and refer to a parcel of real estate designated as a lot on any recorded plpt or subdivision map of the Property but specifically excluding any parcel of real estate designated in such plat or subdivision map as an outlot. 1.7 "Member" shall mean and refer to every person or entity who is a record owner of a fee or undivided fee simple interest in any Lot, including, but not limited to, contract for deed sellers. -2- . 1.8 "Mortgage" shall mean and refer to any mortgage or other security instrument by which a Lot, or any part thereof, or any structure thereon, is encumbered. 1.9 "Mortgagee" shall mean any person or entity named as the mortgagee under any Mortgage, or any successors or assigns to the interest of such person or entity under a Mortgage. 1.10 "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of a fee simple title to any Lot, including contract for deed sellers, but excluding any person having such interest merely as security for the perfor- T mance of an obligati~n. 1.11 "Property" shall mean and refer to all the real proper- ty subject to this Declaration, all of which is more fully described on Exhibit A attached hereto and by this reference incorporated herein for all purposes. ARTICLE II Property Rights in Common Area 2.1 Owners Easements of Enjoyment. Subject to the provisions of Section 2.2, every Owner shall have a non-exclusive right and easement of ingress and egress over the Common Area, including, but not limited to, an easement both for pedestrian and vehicular purposes over the Roadway Common Area, and a non-exclusive easement of enjoyment in and to the entire Common Area, and such easements shall be appurtenant to and shall pass with the title to every Lot. 2.2 Extent of Members Easements. The rights and easements created hereby and the title of the Association to the Common Area shall be subject to the following; (a) The right of the Association to dedicate or transfer all or any part of the Common Area to any public agency, authori- ty, or utility for such purposes and subject to such conditions as may be agreed to by the Members', provided that no such dedica- tion or transfer, determination as to the purposes or as to the conditions thereof shall be effective unless an instrument signed by Members entitled to cast three-fourths (3/4) of the votes of each class of membership has been recorded agreeing to such dedication, transfer, purpose or condition, and unless written notice of the proposed agreement and action thereunder is sent to every Member at least ninety (90) days in advance of any action taken; and, (b) The right of the Association, in accordance with its Articles and Bylaws, to borrow money for the purpose of improving the Common Area, and in aid thereof to mortgage said Common Area in the manner provided in Section 8.3 hereof; provided, however, that the rights of such mortgagee in said Common Area shall be subordinate to the rights of "the Members hereunder; and, -3- ~ (c) The right of the Association to establish uniform Rules and Regulations pertaining to the use of the Common Area, all as further described in Section 10.9; and, (d) The right of the Developer (and its sales agents and representatives) to the nonexclusive use of the Common Area for the completion of the Developer's work described in Section 10.1(a) herein; and, (e) The rights described in Section 6.2 hereof and the right of the Association to grant and reserve easements and rights-of-way in, through, under, over and across the Common Area, for the installation, maintenance and inspection of lines and appurtenances for public and private water, sewer, drainage, cable television, electrical, telephone, gas and other utilities. 2.3 Delegation of Use. Any Owner may delegate in accordance with the Bylaws or Rules and .Regulations of the Association his right of enjoyment in the Common Area to the members of his family, his tenants, or others, who properly reside in his Home, or to any invit- ees. 2.4 No Partition. The Common Area shall remain undivided, it being agreed that this restriction is necessary in order to preserve the rights of the Owners with respect to the operation and management of the Common Area. No Owner shall have the right to partition or to bring an action for partition of the Common Area. 2.5 No Dedication. Nothing contained herein in this Declaration shall be construed or be deemed to constitute a dedication, express or implied, of any part of the Common Area to or for any public use or purpose whatsoever. 2.6 Open Space Common Area. No permanent or temporary struc- tures, improvements, buildings or facilities of any kind or size shall be erected or maintained on the Open Space Common Area without the prior written consent of the City of Shorewood, Hennepin County, Minnesota; provided, however, that the following shall not be deemed a violation of the foregoing restrictions: (a) The installation, maintenanc~, repair, rebuilding, and inspection of utility lines over, across, and under the Open Space Common Area for the utility purposes provided in this Declaration; (b) Any improvements necessary to prevent the erosion or degradation of the Open Space Common Area by natural elements; or, (c) The cultivation and maintenance of grasses, shrubs, hedges, trees, and other vegetation. -4- ~ ARTICLE III Membership and Voting Rights in the Association 3.1 Membership. Every person or entity who is a record owner of a fee or undivided fee simple interest in any Lot, including, but not limited to, contract for deed sellers, shall be a member of the Association and shall remain a member of the Association until such time as such person shall no longer possess the requisite ownership interest in a Lot at which time membership in the Association shall automatically terminate. The foregoing is intended to exclude persons ( or entities who hold an interest merely as a security for the perfor- l'Qance. of an obligation \lntil suchti..rne such person acquires a fee sinipfe interest in such Lot by foreclosure or by any proceeding in lieu thereof. Membership shall be appurtenant to and may not be separated from the ownership of any Lot. Ownership of a Lot shall be the, sole qualification for membership. 3.2 Voting Rights. The Association shall not have nor shall it issue any capital stock and may only have two (2) classes of voting membership: (a) Class A. Class A members shall be all those Owners as defined in Section 1.10, with the exception of the Developer until Class B membership shall be converted to Class A member- ship. Each Class A member shall be entitled to one (1) vote for each Lot in which he holds the interest required for membership by Section 3.1. When more than one person holds such interest in any Lot, all such persons shall be Members but the vote for such Lot shall be exercised as they among themselves shall determine, but in no event shall more than one (1) vote be cast with respect to any Lot. (b) Class B. The Developer shall be the sole Class B member and shall be entitled to four (4) votes for each Lot owned. Class B membership shall cease and be converted to Class A membership upon the occurrence of the first of the following events: c{,,'.{' ' J'. (i) when the total number of votes outstanding in the Class A membership equals or exceeds the total number of votes outstanding in the Class B membership; or, -',/.""'_.... (ii) on December 31, 19-90. "'< ' 3.3 Suspension of Voting Rights. The right of any Member to vote shall be suspended during any period in which such Member shall be in default in the payment of any assessment levied by the Asso- ciation. Such rights may also be suspended, after notice and ~earing, for a period not to exceed sixty (60) days for any infraction of any rules or regulations published by the Association. -5- . ARTICLE IV Covenants for Maintenance Assessments 4.1 Creation of Lien and Personal Obligation of Assessments. The Declarants, for each Lot owned within the Property, hereby cove- nant, and each Owner of any Lot by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed or other conveyance, shall be and hereby is deemed to covenant and agree to pay to the Association: (a) general annual assessments or charges, and, (b) special assessments for capital improvements, such assessments to be established and collected from time to time as hereinafter provided. The general annual and special assessments, together with such interest and penalties thereon and costs of col- lection thereof as hereinafter provided, shall be a charge on each such Lot and shall be a continuing lien on each such Lot against which each such assessment is made. Each such assessment, together with such interest, penalties and all costs of collection, shall also be the personal obligation of each person who was the Owner of each such Lot on the due date of such assessment. If any Lot is owned by two or more persons, the personal liability for such assessment, interest and costs of collection shall be joint and several. The personal obligation for delinquent assessments shall not pass to such Owner's successors in title unless expressly assumed by them. All such assessments shall be fixed, established and collected from time to time in the manner provided in this Article. 4.2 Purpose of Assessments. The assessments levied by the Association shall be used exclusively for the purpose of promoting the pleasure, health, safety and welfare of the residents of the Property and in particular for the improvement and maintenance .of the Roadway Common Area and any maintenance authorized by the Association or required by this Declaration on the Homes. The Association shall maintain an adequate reserve fund for maintenance, repairs and re- placement of those elements of the Roadway Common Area, and any other common property owned by the Association, that must be replaced on a periodic basis. The Association may also levy assessments for the creation of a reserve for uncollected asse~sments and for such other contingencies or purposes as the Association may determine consistent with the Declaration. 4.3 Maximum Annual Assessments. The amount of the maximum annual assessments shall be determined by the Board of Directors as hereinafter provided but subject, however, to the following re- strictions: (a) Until January 1 of the year immediately following the conveyance of the first Lot by the Developer to an Owner, the maximum annual general assessment shall be $ per Lot. -6- / (b) From and after January 1 of the year immediately following the year of the conveyance of the first Lot by the Developer to an Owner, the maximum annual general assessment may not be increased each year, without a vote of the membership as provided in Subsection 4.3(c), by more than the greater of (i) J the percentage increase in the Revised Consumer Price Index for I Urban Wage Earners and Clerical Workers, All Items Index, U.S. Cities Average (1967 = 100), or a comparable successor index, over the immediately preceding calendar year, or (ii) five -perceriF'i5%) above the maximum annual general assessment for the preceding calendar year. (c) The maximum annual general assessment may be increased above the amount established in Subsection 4.3(b) by vote of two-thirds (2/3) of each class of Members who are voting in- person or by proxy at a meeting duly called for such purpose. (d) The Board of Directors of the Association may, after consideration of the current assessment costs and future needs of the Association, fix the actual assessment for any year at any lesser amount. 4.4 Special Assessments for Capital Improvements. In addition to the general annual assessments authorized above, the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of defraying in whole or in part the cost of any construction or reconstruction, unexpected repair or replacement of a capital improvements; provided, however, that any such assessment shall require the assent of two-thirds (2/3) of the votes of each class of Members who are voting in person or by proxy at a meeting duly called for this purpose. 4.5 Notice of Meetings. Written notice of any meeting called for the purpose of taking any action authorized under Section 4.3 or 4.4 shall be sent to all Members, and to any Mortgagee who shall request such notice in writing, no less than thirty (30) days or no more than sixty (60) days in advance of such meeting. At the first such meeting called, the presence of Members or the holders of proxies entitled to cast sixty percent (60%) of the votes of each class of membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subj~ct to the same notice requirement, and the required quorum at the'subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held later than sixty (60) days following the preceding meeting. 4.6 Uniform Rate of Assessment. Both general annual and special assessments must be fixed at a uniform rate for all Lots; provided, however, that any Lots owned by the Developer shall be assessed an amount equal to one-tenth (1/10) of the amount assessed against Lots owned by persons other than the Developer; provided, further, that notwithstanding anything set forth in the preceding clause to the contrary, a Lot owned by the Developer shall be assessed on the same -7- basis as a Lot owned by any person other than the Developer from and after the time that (i) a Home shall have been erected upon such Lot, and (ii) such Home shall be occupied by a tenant of the Developer. 4.7 Date of Commencement of Annual Assessments; Due Dates. annual assessments provided for herein shall commence as to all on the first day of the calendar month following the conveyance Lot by the Developer to an OWner. In the event that the annual assessments, with respect to any lot, shall commence during any calendar year on any day other than January 1, the amount of such assessments payable for such year shall be that proportion of the full amount applicable to such Lot for the entire calendar year which the number of remaining full calendar months in such year bears to the number twelve. All assessments, both general and special, shall be collected on a monthly, or other periodic basis, and with such due date as the Board of Directors may determine and establish. The Lots of a 4.8 Duties of the Board of Directors. The Board of Directors of the Association shall fix the date of commencement, and the amount of the assessment against each Lot for each annual assessment period at least thirty (30) days in advance of such annual assessment period and shall at that time prepare a roll of the properties and assessments applicable thereto which shall be kept in the office of the Asso- ciation and shall be open to inspection by any Owner. Written notice of every assessment shall thereafter be sent to each OWner subject to such assessments. The Association shall, upon demand and upon the payment of a reasonable charge, furnish a written certificate signed by an officer of the Association setting forth whether or not all assessments upon particular Lots have been paid. Such certificate shall be conclusive evidence of payment of any assessments therein stated to have been paid. 4.9 Effect of Nonpayment of Assessment; the Personal Obligation of the Owner; the Lien; Remedies of Association. (a) If any assessment is not paid on the date when due, then such ass~ssment shall become delinquent and shall, together with interest and penalties thereon become a continuing lien on such Lot or Lots and such lien shall bind such Lot or Lots in the hands of the then Owner, his heirs, devisees, personal represen- tatives and assigns. The personal obligation of the then ~lner to pay such assessment shall, however, remain his personal obligation and shall not pass to his successors in title unless expressly assumed by them. No Owner may waive or otherwise escape personal liability for the assessments provided for herein by abandonment of his Lot. Such lien shall run in favor of the Association and shall be superior to all other liens and encum- brances on such Lot except for the following: (i) Liens for general real estate taxes and special assessments levied by any governmental authority; and, (ii) The lien of any first Mortgage as provided in Section 4.10 hereof. -8- (b) All other lienors acquiring liens on any Lot after this Declaration shall have been recorded and whose liens shall also have been recorded, shall be deemed to consent that their liens shall be and remain inferior to future liens provided for herein whether or not such consent has been expressed in the instruments creating their liens. (c) To evidence a lien for sums assessed pursuant to this Article, the Association may prepare a written notice of lien setting forth the amount of the assessment, the date due, the amount remaining unpaid, the name of the Owner of the Lot and a description of the Lot and file or record the same, but such notice of lien shall not be recorded until such assessment has been wholly or partially unpaid for at least thirty (30) days from the due date. Such lien may be enforced and foreclosed either by judicial foreclosure by the Association in the same manner in which mortgages on real property may be foreclosed in Minnesota or by foreclosing the lien in the manner prescribed by Minnesota Statutes for the foreclosure of a mechanic's lien. Each Owner, by acceptance of a deed for any Lots, does further hereby give full and complete power of sale to the Association and does consent to a foreclosure of the assessment lien by advertisement. In the event of any such foreclosure, and in the further event that the Association shall prevail in any such foreclosure, the person personally obligated to pay the same shall be required to pay all costs of foreclosure including, but not limited to, reasonable attorneys' fees. All such costs and expenses shall be further secured by the lien being foreclosed. The person personally obligated to pay such lien, shall also be required to pay the Association any assessments against the Lot which shall become due during the period of foreclosure and redemption. The Association shall have the right and power to bid at the foreclosure sale and to acquire, hold, convey, lease, rent, encumber, use and otherwise deal with the Lot as the Owner thereof. A release of the notice of lien shall be executed by an officer of the Association and recorded upon payment of all sums secured by such lien. (d) A suit to recover a money judgment for such expenses, with costs of collection and interest as provided for herein, shall be maintainable by the Association without foreclosing or waiving the lien securing the same. Ail the Association's rights and remedies shall be cumulative and not exclusive and shall be exercisable in whole or in part at any time and from time to time, concurrently or consecutively. ee) Any encumbrancer holding a lien on any Lot may pay, but shall be not required to pay, any amounts secured by the lien created and authorized by this Section and, upon payment of such sums, such encumbrancer shall be subrogated to all rights of the Association with respect to such lien, including, but not limited to, priority as to any other lien or interest in such Lot. -9- ; . I ~..,:-' , /! '....-- ..... .,~: <- (f) Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date until paid at the rate of eight percent (S() per annum. In addition to said interest, the Association may charge each delinquent Owner a "late charge" service fee in an amount to be determined by the Board of Directors of the Association, but not to exceed Ten Dollars ($10.00) per each delinquent installment of the assess- ments provided herein. Such late charge service fee is intended to compensate the Association for its costs of handling and accounting for late payments. No such late charge shall be imposed until an installment of an assessment shall have been delinquent for at least ten (10) days following the due date therefor. 4.10 Subordination of Lien to First ~1ortgages. The assessment lien provided for herein shall be subordinate to the lien of any first Mortgage, and the sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to the foreclosure of a first Mortgage, or pursuant to any other proceed- ing or arrangement in lieu of such foreclosure, shall extinguish the lien of such assessments as to installments which became due prior to the effective date of such sale, transfer or acquisition by the first Mortgagee to the end that no assessment liability shall accrue to an acquiring first Mortgagee except with respect to installments of assessments becoming due after possesiion has passed to such acquiring Mortgagee, whether such possession has passed at the termination of any period of redemption pr otherwise, and in the event of the extin- guishment of such assessment lien as aforesaid, the entire amount of such unpaid assessment shall be reallocated and reassessed against, and payable by the Owners of, all other Lots in the Association, exclusive of such mortgaged Lot. No such sale, transfer or acquisi- tion of possession shall relieve an Owner or a Lot from liability for any assessments thereafter becoming due or from the lien thereof or shall relieve the person personally obligated to pay the assessments which were levied prior to the transfer of such property from the personal obligation to pay the same. ARTICLE V Easements .J 5.1 Easements. In addition to the ea~ements, covenants, re- strictions and conditions of Article VI concerning architectural and exterior controls of the Lots and the Common Area, all Lots and the Common Area shall be subject to the easements and covenants hereinaf- ter specifically described for the benefit of the Property, all as more fully set forth hereinafter in this Article. 5.2 Underground Utility Easements. The Common Area and the rights and easements of enjoyment in the Common Area by the Owners shall be subject to a blanket, non-exclusive right and easement for underground general utility purposes. Such utility purposes shall include, but not be limi~ed to, sewer, water, gas, electrical and telephone purposes, including the right to build, construct, recon- -10- struct, rebuild, repair, maintain and operate underground sewer, water, gas, electrical mains and telephone cables, and' any surface connection to such underground mains, along with the right to enter upon, and open the ground for such purposes. All such utility ease- ments shall jointly run in favor of and inure to the benefit of the Owners of the Lots, the Association and any and all public authorities or utility companies maintaining or operating any utility facilities upon the Property but subject to the following limitations: (a) The rights granted herein shall be only to the extent necessary to entitle the Owner or Association serviced by said installation to the full and reasonable use and enjoyment of the facility involved, and provided further that anyone exercising said rights shall be responsible for restoring the surface of the easement area so used, or any other damage, to its condition prior to such use. (b) In the event of a dispute between OWners with respect to the repair or rebuilding of said connections, or with respect to the sharing of the cost thereof, upon written request of one of the Owners addressed to the Association, the matter shall be submitted to the Board of Directors, who shall decide the dispute and the decision of the Board shall be final and conclusive on the parties. Notwithstanding anything to the contrary contained in this paragraph, no such facilities or other utilities may be installed or relocated on the Property, except in the location in which such facility was originally installed by the Developer or in such other location which is approved by the Association. 5.3 Pedestrian Access Easement. Each OWner shall have the non-exclusive right and easement to use that portion of Lot 5 of the Property described on Exhibit C attached hereto, and by this reference made a part hereof, as a private roadway for the sole purpose of providing ground level pedestrian access to and from the Roadway Common Area and the Open Space Common Area. Any Owner may delegate the easement rights created hereby to the members of his family, his tenants, or others, who properly reside in the Owner's Home, or to any of his invitees. The easement created herein shall be appurtenant to and shall pass with the title of every Lot. / ~ ARTICLE VI Architectural and Exterior Controls 6.1 Architectural Control and Committee Authority. No Home or other building, fence, wall, patio, or other structure shall be commenced, erected or maintained upon any Lot, nor shall any exterior addition, demolition, removal, or change or alteration therein be made including, any shrubs, trees, or bushes be placed within said Lot, or anything of a permanent nature which is visible from any other Lot or from the Roadway Common Area be placed, planted, or constructed within said Lot until the plans and specifications showing the nature, kind, -11- shape, height, materials and location of the same shall have been submitted to and approved in writing as to harmony or external design and location in relation to surrounding structures and topography by the Board of Directors of the Association or by an architectural control committee composed of three or more representatives appointed by the Board with such delegated power as the Board shall direct. No such submission shall be deemed to have been completed until all of the plans and specifications therefor shall have been submitted to the Board or its designated committee, and a dated written receipt execut- ed by a member thereof has been delivered to the applicant. In the event said Board, or its designated committee, fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, as evidenced by the dated written receipt, such approval shall be deemed to have been given. If no application has been made to the Board of Directors or its designated committee, or if such application has been rejected, a suit to enjoin or remove such additions, alterations, or changes may be instituted at any time by the Association or any Owner; provided, however no suit to enjoin or remove such additions, alterations or changes may be commenced it' unapproved improvements have been complet- eo for a period of ninety (90) days and thereafter a deed to a new Owner is recorded, such improvements having been deemed to have been approved by the Board or its designated committee. None of the members of the Board or such committee shall be entitled to any compensation for their services performed pursuant to this paragraph, but compensation may be allowed to independent professional advisors retained by the Board or such committee. During the time in which the Association has a Class B member, all decisions of the architectural control committee may be vetoed by the Developer. 6.2 Common Area Maintenance. In order to assure the proper and safe maintenance of the Roadway Common Area, the Association shall provide and be solely responsible for the maintenance and repair of the Roadway Common Area which responsibility shall include, but not be limited to, the following: snow removal, patching, seal coating, and replacement of paving material. The Association shall also provid~ and be solely responsible for the maintenance of the Open Space Common Area, which responsibility shall include all care required for all vegetation located on the Open Space Common Area. The Association shall 'also provide and be solely responsible for the maintenance and repair of all utility facilities which are installed in the Common Area, but only to the extent that the responsibility for the mainte- nance of such facilities belongs to the Association or the Owners. All expenditures by the Association for the above-stated purposes shall be uniformly assessed against all Lots in the Property as provided in Section 4.6 hereof; provided, however, all costs and expenses of any maintenance or repairs necessitated or caused by willful or negligent acts of an Owner, the Owner's family, invitees, tenants or vendees shall be specifically assessed against the Lot of such Owner in the manner provided herein. All maintenance and repair of the Homes and Lots shall be the sole obligation and responsibility and shall be performed at the sole expense of the individual Owners thereof. -12- 6.3 Failure of Owner to Maintain Lot. In the event an OWner of any Lot shall fail to maintain his Lot and the improvements situated thereon including, but not limited to, his Home, in a manner rea- sonably satisfactory to the Board of Directors, the Association after approval by two-thirds (2/3) vote of the Board of Directors, shall have the right, through its agents and employees, to enter upon said Lot and to repair, maintain, and restore the Lot and the exterior of the Home and any other improvements erected thereon. The costs of such exterior maintenance shall be added to and become part of the assessment to which such Lot is subject. ARTICLE VII Insurance 7.1 Liability Insurance for Common Property; Fidelity Bonds. The Board of Directors of the Association, or its duly authorized agent, shall obtain a broad form of public liability insurance insur- ing the Association, with such limits of liability as the Association shall determine to be necessary, against all acts, omissions to act and negligence of the Association, its employees and agents. The Association's Board of Directors shall also provide fidelity bonds providing protection to the Association against loss by reason of fraud or dishonesty on the part of the Association's Directors, managers, officers, employees or volunteers who are responsible for the handling of funds of the Association in an amount sufficient to provide no less protection than one and one-half (1~) times the estimated annual operating expenses and reserves of the Association. The cost of all such insurance and fidelity bonds shall be assessed as a common expense against all of the Lots as provided in Article IV hereof. 7.2 Owner Responsible for Other Insurance. The Association shall not be responsible to obtain any insurance for the benefit of an Owner except to the extent provided in this Article and each Owner shall be solely responsible to obtain whatever insurance coverage such Owner may desire, including, but not limited to, casualty insurance on the Owner's Horne, homeowner's liability insurance and contents and personal property insurance. J ARTICLE VIII ~ Rights of First Mortgagees 8.1 Mortgagee's Rights. Notwithstanding any other provisions of this Declaration, the Articles of Incorporation or the Bylaws of the Association, the provisions of this Article VIII shall control and in the event of a conflict between the provisions of this Article and the other provisions of this Declaration, the Articles, or Bylaws, the provisions of this Article shall control. -13- 8.2 Notice to Mortgagees. Any holder of a first Mortgage upon a Lot, upon written request to the Association, shall be entitled to receive written notification from the Association of each and all of the following: (a) Any default in the performance by the Owner of any obligation under the Declaration or Bylaws of the Association which is not cured within sixty (60) days. (b) All meetings of the Association. (c), Any formal proposal submitted to the Members to: (i) abandon or terminate, respectively, the Common Area or the covenants created by this Declaration; or (ii) amend materially the Declaration, Bylaws or Articles of Incorporation; (d) The effectuation of any decision by the Association to terminate professional management of the Association, if any, and assume self-management of the Association and Property; (e) Substantial damage to or destruction of any part of the Common Area; (f) The institution or notice of any condemnation or eminent domain proceeding against any part of the Common Area. Any holder of a first Mortgage on a Lot shall have the right to designate a representative who shall be entitled to attend all meet- ings of the Members of the Association. 8.3 Alienation of Common Area. Unless at least (i) seventy-five percent (75%) of Owners of the Lots other than the Developer and (ii) all holders of first Mortgages on the Lots, and (iii) the Developer, if any Lots are then owned by it, have given their prior written approval (together with any additional or greater consent required by this Declaration), the Association shall not be entitled by act or omission to seek to abandon, partition, subdivide, encumber, alienate, release, hypothecate, sell or transfer the qommon property owned, directly or indirectly, by the Association for the benefit of the Lots. The granting of easements for public utilities or for other public purposes consistent with the intended use of such common property shall not be deemed a transfer within the meaning of this section. 8.4 Changes in Assessments and Controls. Unless at least (i) seventy-five percent (75%) of the holders of first Mortgages on the Lots, based upon one vote for each first Mortgage owned, and Owners of the Lots other than Developer, and (ii) the Developer, if any Lots are then owned by it, have given their prior written ap- proval, the Association shall not be entitled to: -]4- (a) Change the method of determining the obligation, assessments, dues or other charges which may be levied against an Owner; (b) By act or omission change, waive or abandon any scheme of regulations, or enforcement thereof, pertaining to the archi- tectural design or the ext~rior appearance of Home, or the maintenance of the common property; 8.5 No Right of First Refusal on Foreclosure. Any first Mort- gagee who acquires title to any Lot pursuant to any remedies provided in its Mortgage, or by foreclosure of the Mortgage, or by deed in lieu of foreclosure, shall be exempt from any and all rights of first refusal granted in the Declaration or in the Articles of Incorporation or Bylaws of the Association. 8.6 Examination of Books and Records. Any first Mortgagee shall have the right to examine the books and records of the Association. 8.7 Right to Make Advances for Taxes and Insurance. Any first Mortgagee may, jointly or singly, pay taxes or other charges which are in default and which mayor have become a charge against the Common Area or any other common property owned by the Association and any such first Mortgagees making such payments shall be owed immediate reimbursement therefor from the Association. 8.8 Distribution of Condemnation Awards. No provision of this Declaration, the.Articles of lncorporation of the Association or the Bylaws of the Association shall be construed to give an Owner, or any other party, priority over any rights of first Mortgagees of the Lots pursuant to their respective Mortgages, in the case of a distribution to an Owner of condemnation awards for a taking of the Common Area or any other common property owned by the Association. ARTICLE IX Future Subdivision of Lot 5 of the Property 9.1 Subdivision of Lot 5 Contemplated. Declarants and the Developer anticipate that the Owner of Lot 5 of the Property may desire to subdivide Lot 5 into one or more residential lots and that depending upon the manner of subdivision, one or more of the resulting lots mayor may not have any d~rect or indirect means of access to the Roadway Common Area (a lot not having such access being referred to herein as an "Inaccessible Lot"). 9.2 Inaccessible Lot. From and after the date of recording of a subdivision map of Lot 5 creating an Inaccessible Lot, such Inaccess- ible Lot and the Owner thereof shall no longer be subject to assess- ment by the Association for any costs and expenses incurred by the Association for the maintenance and repair of the Roadway Common Area, if, and only if, all means of vehicular access to or from such In- accessible Lot shall not, in fact, require any use of the Roadway Common Area. . -15- 9.3 Other Terms Continue to Apply to Inaccessible Lot. Except ~? as provided in the immediately preceding paragraph 9.2, such Inacces- sible Lot and the Owner thereof shall otherwise continue to be subject to all of the other benefits and burdens of the covenants, conditions, restrictions and easements created pursuant to this Declaration with the same force and to the same extent as if such Inaccessible Lot had origirially been a "Lot" at the time of the recording of this Declara- tion. ARTICLE X General Restrictions, Obligations and Rights of Owners 10.1 Residential Restriction. No Home shall be used for purposes other than as a single family residence, nor shall any garage be used for or occupied as living or sleeping quarters, nor shall any trade or business of any kind be carried on within a Home or upon a Lot, nor shall any Lot or any part thereof be leased, sublet, assigned or suffered to be used for hotel or transient occupancy; provided, however, that none of the following activities shall be considered to be in violation of these restrictions: (a) The maintenance, by the Developer, during the period of sale of the Lots, upon such portion of the Property as the Developer may choose, of facilities which, in the sole opinion of Developer, may be reasonably required, convenient or incidental to the sale of the'Lots, including, but without limitation, a business office, storage area, construction yards, vehicles and equipment parking, signs, model units and sale office, con- struction offices and mobile units. (b) The maintenance of an office by the Association or its designated manager for the purposes of management of the Proper- ty. (c) Lease or rental of a Home for purposes consistent with thi~ Section so long as the terms of such lease fulfill the requirements of Section 10.10 hereof. 10.2 Prohibition of Damage and Certain ~ctivities. Nothing shall be done or kept on any Lot or any part thereof (i) which shall in- crease the rate of insurance on any other Lot over what the OWner of such other Lot, but for such activity, would pay, without the prior written consent of the Association, or (ii) which would be in viola- tion of any statute, rule, ordinance, regulation, permit or other validly imposed requirement of any governmental body. No damage to, or waste of, the Property or the buildings situated thereon, shall be committed by any OWner or any invitee of any OWner and each OWner agrees to indemnify and hold harmless the Association and the other Owners from and against all loss resulting from any such damage or waste caused by him or his invitees. No noxious, destructive or offensive activity shall be allowed on any Lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to -16- any other Owner or to any other person at any time lawfully residing on the Property. 10.3 Animals. No animals, rabbits, livestock, fowl. or poultry of any kind shall be raised, bred or kept in or upon any Lot or any part thereof, except that the Association may, by regulation, rule or otherwise develop rules for the keeping of dogs, cats or other house- hold pets; provided, however, that no such pet shall be kept, bred or maintained for any commercial purposes. 10.4 Signs. No signs of any kind shall be displayed to the public view on any Lot; provided, however, one sign, if not more than five (5) square feet in area may be used to advertise a Home for sale or rent; provided, further, the Developer reserves for itself and its agents, the right to place any advertising sign upon the Property during the sales and marketing period of the development of the Property. 10.5 Maintenance of Garages. All garage facilities shall be retained and used as a garage facility for the off-street interior storage of the vehicles and no such facility shall be converted by construction or usage to any other purpose. All garbage or other refuse shall be kept in covered containers. All such containers must be kept entirely within the garage facility at all times except when necessary to permit the orderly collection of such garbage or refuse by the Association or any governmental body providing garbage or trash disposal services. ~ ~ 10.6 Parking and Storage of Motor Homes and Recreational Vehicles. No motor homes, recreational vehicles, trailers, boats, snowmobiles or other similar vehicles shall be parked, stored or kept on any Lot, unless such vehicles are stored or kept entirely within the garage facilities located upon such Lot; provided, however, that any such vehicle may be temporarily parked or left unattended by the Owner, his guests, invitees and visitors on such Lot for a reasonable period of time, but not to exceed forty-eight (48) hours in any thirty (30) day period for each such vehicle. 10.7 Prohibition Upon Erection of Storage Sheds. No detached storage structures, including, but not limited to, storage sheds, tool sheds or other outbuilding whose principal intended use is the storage of goods or materials, shall be erected, whether temporarily or permanently, upon any Lot. 10.8 Exterior Antennae. Without prior written approval and the authorization of the Association given in accordance with the proce- dures described in Section 6.1, no exterior television, radio, CB or other antennae of any sort shall be placed, allowed or maintained upon any portion of the Property. 10.9 General Rules and Regulations. By acceptance of any deed or other conveyance of a Lot, each Owner delegates to the Association the right and power to adopt, amend, repeal and enforce reasonable rules and regulations, of general application to the Common Area relating to -17- the use and conduct permitted on the Common Area. Each OWner express- ly agrees to observe such rules and regulations and to' be bound thereby, and to prevent the breach thereof by the members of such OWner's family, guests, invitees, lessees, contract for deed purchas- ers and all other persons lawfully on the Common Area with the Owner's consent. Notwithstanding the foregoing, any such rules and regu- lations must satisfy the following requirements: (a) All such rules and regulations must be consistent with the objects and purposes of this Declaration and shall be direct- ed at protecting the value and desirability of the residential community to be created on the Property and enhancing the general welfare of the residents of such community, all as determined by the Board of Directors of the Association in their sole dis- cretion. I (b) All such rules and regulations may only be directed at activities occurring on the Common Area and may not restrict the activities of any residents of the community occurring on each Lot. . (c) All such rules and regulations shall be uniformly applicable to all persons on the Common Area. The Board of Directors of the Association shall have the sole authori- ty to make, modify and repeal any rules and regulations under this Section 10.9 and neither the membe~s of the Association nor the members of he Board of Directors shall be liable to anyone as a result of the adoption, modification, repeal or enforcement of any rule or regulation adopted under this Section 10.9 if such action is taken by the Board of Directors in good faith. 10.10 Sale or Lease of Home. No Home shall be sold under a contract for deed by an Owner, nor shall any landlord-tenant relation- ship be established, unless such contract or landlord-tenant relation- ship is embodied in writing and the buyer or tenan~ has agreed in writing that the contract for deed or lease is subject in all respects to the provisions of this Declaration, the Articles of Incorporation of the Association, the Bylaws of the Association and all Rules and Regulations duly adopted by the Association. Such writing shall provide that any failure of the buyer or tenant to comply with the terms of such documents or rules and regulations shall constitute an event of default under the contract for deed or lease. No lease or contract for deed or similar arrangement shall relieve any OWner of his responsibilities under this Declaration, and notwithstanding any violation of the terms of this Section, all leases, contracts for deed and similar arrangements and the tenants and buyers thereunder, and any other occupant of the Home, shall be automatically deemed to be subject to and bound by the obligations and duties of this Declara- tion. 10.11 No Right of First Refusal. The right of an Owner to sell, transfer or otherwise c6nvey his Lot and Home will. not be subject to any right of first refusal or any similar restrictions running in favor of the Association. -18- ~ ARTICLE XI General Provisions 11.1 Enforcement. The Association or any OWner, shall have the right to enforce, by a proceeding at law orin equity (i) all re- strictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration including, but not limited to, the collection of all assessments and the enforce- ment of all rules and regulations adopted by the Association under Section 10.9 and (ii) all of the provisions of the Articles of Incor- poration and Bylaws of the Association. In the event that the Asso- ciation should employ the services of an attorney in connection with a breach of the terms hereof by an Owner, his family, guests, tenants or contract for deed purchasers, or in connection with the enforcement of the terms hereof, and if the Association shall prevail in any such action, such Member shall pay, in addition to all other sums due, the Association's reasonable attorneys' fees, costs and expenses. The failure by the Association or by any OWner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. If these restrictions are enforced by appropriate proceedings by anyone or more of such heretofore de- scribed persons, such persons may be reimbursed by the Association for all or any part of the costs so incurred, as the Board of Directors of the Association shall, in its sole discretion determine. 11.2 Severability. The invalidation of anyone of these cove- nants or restrictions by legislation, judgment or court order shall in no way affect any other provision which shall remain in full force and effect. 11.3 Duration of Declaration. The covenants, restrictions, conditions and reservations imposed or established by or created under this Declaration shall continue to run with and bind the Property unless and until revoked, changed or amended in whole or in part, by Members entitled to cast no less than seventy-five percent (75%) of each class of votes and evidenced by a recorded instrument executed by duly authorized officers of the Association. IN WITNESS WHEREOF, the undersigned have caused this document to be executed as of the day and year first ab~ve written. Robert S. C. Peterson Ransom M. Bliven Claire L. Peterson -19- . STATE OF MINNESOTA) ) SSe COUNTY OF HENNEPIN) On this day of , 1984, before me, a Notary Public within and for said County personally appeared Robert S. C. Peterson and Claire L. Peterson, husband and wife, to me known to be the persons described in and who executed the foregoing instrument and acknowledged that they executed the same as their free act and deed. Notary Public STATE OF MINNESOTA) ) SSe COUNTY OF HENNEPIN) On this day of , 1984, before me, a Notary Public within and for said County personally appeared Ransom M. Bliven, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and deed. Notary Public This document was drafted by: BEITZ, JOHNSON, FORSBERG & GALT 650 Builders Exchange Building Minneapolis, Minnesota 55402 ~ r -20- Regular Council Meeting - 2 - April 26, 1982 SWIMMING POOL PERMIT - Rudd - Di Rocco Application was submitted to request permission to install a swimming pool and fencing to be located at 28150 Boulder Bridge Drive. Ques- tions regarding the variance on the fence location and the Engineer's recommendation not to allow the pool drainage to enter the sanitary sewer system were discussed. Haugen moved approval of this application on condition that the neigh- boring property owner approve, in writing, the fence location and that the proper drainage for the pool is maintained. Motion carried unani- mously. ARVIDSON DOCK Council requested Mike Arvidson to come before the council to answer questions regarding three docks that exist on a piece of land that Mr. Arvidson owns on Timber Lane. Questions regarding possible zon- ing violations and whether the docks could be considered under the "Gll'andfather Clause". After discussion, Rascop motioned to allow the three docks (2-Arvidson, +1 easement-Bagdons) to continue to exist with no changes and not for the purpose of rental. Seconded by Shaw. Roll call vote; 4 ayes, 1 nay (Haugen). Motion carried. BREAK 8:27 RETURNED 8:32 IXI LABORATORIES - PUD REQUEST Council reviewed the proposal for a P.U.D., made at the Public Hear- ing of April 12, 1982. Council member, Haugen, questioned whether the request complied with the requirement established for the P.U.D. Ordinance. Haugen moved to have Attorney Larson draw a Resolution to deny the P.U.D. request and submit to council at the meeting of May 10, 1982. Seconded by Leonardo. Motion carried unanimously to approve the denial of the PUD request. BUI.LDING PERMIT REQUEST - AMESBURY WEST Recreation Facilities Plan - Mr. Jim McNulty and Mr. Bob Ess presented a request for an "amendment to the development contract" and have a plan for a swimming pool, tennis court, and foot trail approved for construction. Rascop moved to approve the plan dated March 5, 1982; seconded by Gagne. Leonardo indicated his opposition to the proposed foot trail and re- quested Rascop to amend trail from his motion. Rascop denied request. Roll call vote; 2 ayes (Rascop & Gagne) 3 nayes. Motion approval denied. Leonardo then suggested that McNulty make revisions and re-submit plans. After discussion, Mr. McNulty withdrew his request for foot trails from the original request with the right to pursue that request at a later date. Leonardo moved approval of the new request deleting the foot trail, seconded by Gagne - 3 ayes, 2 nayes (Shaw & Haugen). Motion carried with amendment to be written by Attorney prior to issuance of building permit.