042798 CC Ws AgP i
SC4
CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD
CITY COUNCIL WORK SESSION CONFERENCE ROOM
MONDAY, APRIL 27, 1998 6 :30 P.M.
AGENDA
1. CONVENE WORK SESSION
A. Roll Call
B . Review Agenda
2. DISCUSSION WITH PROSECUTING ATTORNEY ON TREE
ORDINANCE VIOLATIONS (Att. - #2 Letter From Prosecuting
Attorney)
3. ADJOURN
No official action is taken at Work Sessions.
11
KENNETH N. POTTS, EA.
ATTORNEY AT LAW
i
1 3
April 15, 1998
Mr. James Hurm
City Administrator
City of Shorewood .
5775 Country Club Road
Shorewood, MN 55331
1000 SUPERIOR BOULEVARD
SUITE 300
WAYZATA, MINNESOTA 55391
TELEPHONE (612) 475 -0704
TELECOPIER (612) 476 -4447
RE: Tree Preservation Code
, jioiat — ionC at n 5755 Maple v i ° V':
Court
Dear Jim:
I have reviewed the information provided by Brad Nielsen
along with the Tree Preservation Ordinance 1103. In order to
prosecute an individual for an ordinance or statutory violation the
statute or ordinance must clearly identify the behavior that is
illegal.
It is my understanding that the subcontractor damaged and
destroyed significant trees upon this building site. I have
reviewed the ordinance and once again, as I indicated, the conduct
that is illegal must be specifically identified. Under IV B9 the
language reads as follows:
If any significant tree in a development or on
a building site is cut, damaged or the area
within the trees drip line has been encroached
upon by grading equipment, without city
authorization, the city shall require
replacement pursuant to 10 below . . .
No. 10 reads as follows:
All significant trees removed or damaged
during the process of land development or
construction activities shall be replaced on
site. The removal of trees on public right of
way, conducted by or on behalf of a govern-
mental agency in pursuance of its lawful
activities or functions, shall be exempt from
this replacement.
The way the ordinance reads it is a violation of the
ordinance if a significant tree is damaged, cut or removed and it
is not replaced.
Mr. James Hurm
Page 2
April 15, 1998
Therefore, in order to successfully prosecute an individual you
would have to show that they had failed to replace a damaged tree.
I cannot find any other language in the ordinance which
specifically states that an individual would be guilty of a crime
if they destroyed a significant tree. It appears that the language
that I just cited requires that an individual replace a tree after
they have either destroyed it or damaged it.
If I am mistaken, please call me and identify the
language that you believe would permit me to prosecute an
individual for destroying a significant tree.
Therefore, if the builder has not replaced the trees that
were damaged or destroyed then I believe I could prosecute the
builder. However, I will need further information from Mr. Nielsen
indicating that the trees that have been damaged or destroyed have
not been replaced. Also, a certified letter would have to be sent
to the builder to give him notice of the violation and that his
failure to replace the tree will result in criminal sanctions.
The next issue concerns Mr. Nielsen's claim that the
builders are criminally liable for damage to trees by
subcontractors. Mr. Nielsen points to page 6, No. 12d where the
following language is set forth:
Builders are liable for subcontractor which
destroy or damage significant trees which were
indicated to be saved on the individual lot
tree preservation plan.
Paragraph d is set forth is under the provision entitled Financial
Guarantee - Builders. Paragraph a indicates that the builders are
to provide a letter of credit or cash escrow for the protection of
significant trees to be saved. Paragraph d simply holds builders
liable civilly for subcontractors which destroy or damage
significant trees. This paragraph would not permit me to prosecute
builders for violations of the code committed by subcontractors.
Under the criminal laws set forth in the State of
Minnesota an individual can be liable for the crimes of another
pursuant to M.S. 609.05. That statute reads as follows:
■
Mr. James Hurm
Page 3
April 15, 1998
"A person is criminally liable for a crime
committed by another if the person
intentionally aids, advises, hires, counsels,
or conspires with or otherwise procures the
other to commit the crime."
Therefore, if it was crime to cut down a significant tree and the
builder specifically advises the subcontractor to cut down a
significant tree then the builder can be prosecuted for the crime
of the subcontractor. However, if the builder is unaware of it or
specifically advises the subcontractor not to cut down significant
trees and the subcontractor goes and does it anyhow then the
builder could not be prosecuted.
To prosecute an individual for the crimes of another is
called vicarious criminal liability. The Minnesota Supreme Court
has specifically stated as follows:
"We find that in Minnesota, no one can be
convicted of a crime punishable by
imprisonment for an act he did not commit, did
not have knowledge of, or give expressed or
implied consent to the commission thereof."
State v. Guminga 395 N.W.2d 344 (Minn. 1986) .
Therefore, unless the builder specifically advised the
subcontractor to cut down the trees or was standing right on the
location when the significant trees were cut then under Minnesota
law he cannot be prosecuted for the crimes of another. He may be
civilly responsible, of course.
Mr. Nielsen, of course, is not a licensed police officer
and does not perform criminal investigations as a part of his job.
I enclose for your review what is known as Statement Forms. In
this particular case we would need to have statements from the
builder and also from the subcontractor who damaged the trees.
Therefore, if the City still wants to proceed in this
matter you should have Mr. Nielsen contact the involved parties to
have them give a written statement of what transpired. Of course,
they are under no obligation to do so and therefore Mr. Nielsen may
have to rely on his memory as to what these individuals told him.
In any event, in the future you may want to have someone from the
police department conduct the interviews and investigation if you
want to proceed with a criminal charge.
Also, you may want to consider amending the ordinance to
specify that an individual commits a crime when they damage or
destroy a significant tree irrespective of whether they replace it
or not.
Mr. James Hurm
Page 4
April 15, 1998
If you have any other questions or concerns please give
me a call.
Sincerely,
Kenneth N. Potts
KNP /sb
CC: John Dean, Esq.
, ,,APR-15-199e 10:43
s •'
Name
first, mid
Address
Employer
Business Phone
SOUTH LAKE MINNETONKA PD 612 474 4477 P.02
SOUTH LAKE MINNETON PUBLIC SAFETY DEPARTMENT
FIRST P RSON STATEMENT Page of
D to Time Age DOB
e,last
Marital Status
Address
Home Phone
STATEMENT OF EVENTS
The above voluntary statement is true and correct to the best of my knowledge.
Witness
Witness fficer Badge No.__