24-053 Denying an Encroachment Agreement for the Properties Located at 5290 and 5300 Howards Point RoadCITY OF SHOREWOOD
COUNTY OF HENNEPIN
STATE OF MINNESOTA
RESOLUTION 24-053
A RESOLUTION DENYING AN ENCROACHMENT AGREEMENT FOR THE
PROPERTIES LOCATED AT 5290 AND 5300 HOWARDS POINT ROAD
WHEREAS, on behalf of Gary and Janet Grevillius, the Property Owners at 5290 and 5300
Howards Point Road, legally described on the attached Exhibit A (the "Properties"), on March
12, 2024, Gregerson, Rosow, Johnson & Nilan, LTD. (the "Applicant"), has submitted an
application for a permit to encroachment under City Code Chapter 901 to allow a four foot
fence and arborvitae to be installed with a five-foot roadway easement along the east side of
the Properties to rectify violations of City Code observed on the Properties (the "Request");
and,
WHEREAS, on December 7, 2023, following a complaint and subsequent inspection, the City of
Shorewood sent a violation letter to the Property Owners notifying them their fence was
incorrectly installed in the right-of-way; and,
WHEREAS, City Code § 901.03, subd. 3 provides that unauthorized encroachments within public
rights -of -way are unlawful and subject to removal at the owner's expense; and,
WHEREAS, the Request was submitted in the manner required for a request under Chapter
901.03, subd. 2 of City Code (Permit to Encroach); and,
WHEREAS, City Code Chapter 901 indicates that city's purpose in providing right-of-way
management regulations is to provide for the health, safety and welfare of its citizens, and to
ensure the integrity of its streets and the appropriate use of the rights -of -way; and,
WHEREAS, City Code Chapter 901 further indicates that such regulations are necessary to keep
its rights -of -way in a state of good repair and free from unnecessary encumbrances, and;
WHEREAS, City Code Chapter 901 states that the chapter imposes reasonable regulation on the
placement and maintenance of facilities and equipment currently within its right-of-way or to
be placed therein at some future point; and,
WHEREAS, the City Council considered the Request at its regular meeting on May 28, 2024, at
which time the application materials and plans, staff memorandum, and correspondence
received from the public were reviewed and the Applicant addressed the City Council; and,
WHEREAS, the City Council did not make a motion or vote approving the permit application and
the accompanying encroachment agreement; and,
WHEREAS, the Applicant requested, however, requested formal documentation of the City
Council's decision on their Request; and
WHEREAS, the Applicant has submitted a revised encroachment proposal, dated June 13, 2024
("Revised Request") purportedly in response to comments from the City Council.
WHEREAS, the City Council considered the matter at their June 24, 2024 meeting to review
findings for their decision.
NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF SHOREWOOD,
MINNESOTA FINDS AS FOLLOWS:
FINDINGS OF FACT
1. The foregoing recitals are incorporated as if fully set forth herein.
2. The Properties contain .77 acres (5290 Howards Point Road) and .98 acres (5300
Howards Point Road).
3. The City owns a roadway easement over a portion of the Properties, which sits adjacent
to the City's dedicated right-of-way.
4. The homes are constructed about 60 feet from the edge of the roadway easement.
5. The five-foot right -of way easement is adjacent to the dedicated right-of-way.
6. The paved roadway is situated between about three feet at its closest point from the
westerly edge of the five-foot roadway easement and about 20 feet at its farthest point from
westerly edge of the five-foot roadway easement.
7. In approximately 2019, the applicants planted arborvitae in the dedicated right-of-way
and in the right-of-way easement and in the fall of 2023, the Property Owners installed the
fence within the right-of-way and roadway easement.
8. Property Owners are ultimately responsible for the proper placement of fences,
landscaping, and other structures on their Property, including in relation to easements of
record, rights -of -way, or setbacks.
9. The Applicant's March 12, 2024 Request and June 13, 2024 Revised Request seek to
allow and legalize the encroachment of their fence into the roadway easement (collectively, the
"Proposed Plans").
10. City Code §901.03 (Encroachments) states that the public welfare requires that the
public rights -of -way within the city be reserved for public purposes. Public use of the full width
of the rights -of -way is necessary to public safety and the proper and efficient maintenance of
the right-of-way.
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12. City Code §901.03 Subd. 1 (Purpose) also states that some lawful incidence private use
of publicly -owned rights -of -way not inconsistent with public use.
13. City Code §9013.03 Subd. 2 (c) also states that the Council may grant the encroachment
if it is determined that the use applied for is incidental and not inconsistent with safe and
efficient public use.
CONCLUSIONS
A. Based upon the foregoing, and the records referenced herein, the City Council hereby
concludes that the Applicant's Proposed Plans for an encroachment permit are in conflict with
the purpose and intent of the right-of-way regulations to protect the health, safety and welfare
in the right-of-way.
B. The City Council concludes that a retroactive approval of an encroachment could set a
community expectation that the city would approve any after -the -fact encroachments and
discourage following the simple ordinance requirements. By their Proposed Plans, the Property
Owners are requesting that the City rectify a problem created by the Property Owners.
C. The property owners have adequate room on their private property for the fence.
D. The City Council directs that the fence be moved outside the dedicated right-of-way and
roadway easement and either move the arborvitae or trim them to a conforming height by
August 15, 2024. The applicant shall stake the western edge of the five-foot roadway easement
prior to relocation of the fence.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Shorewood that the
Request and Revised Request, (i.e., the Proposed Plans), for the Property are denied, subject to
the findings and conclusions contained herein.
ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 24t" day of June, 2024.
J nifer badie, Mayor
ATTEST:
i
Sandie Thone, City Clerk
EXHIBIT A
(LEGAL DESCRIPTION)
Legal Description of 5290 Howards Point Road:
Par 1:
A strip of land 40 feet in width extending in a Southerly and Southeasterly direction from the North line of Lot 3,
Howard's Point to the Westerly line of Maple Avenue as laid out and dedicated in the plat of Howard's Point, said
strip of land40 feet in width lying Easterly and Northeasterly of, measured at a right angle to and immediately
adjacent to the following described line to -wit; Beginning at the point in the North line of Lot 3 in Howard's Point
distant 100.8 feet West of the Northeast corner of said Lot 3; thence South along a line at right angles to the North
line of Lot 3 a distance 43.7 feet; thence South 18 degrees 35 minutes East 202.8 feet; thence South 47 degrees 28
minutes East 420.8 feet; thence South 13 degrees 47 minutes East 186.52 feet to a point in the Westerly line of
said Maple Avenue distant 248.76 feet Southerly of, measured along the Westerly line of said Maple Avenue from
the Southeast corner of Lot 7 in Howard's Point;
Par 2:
That part of the following described land:
That part of Lots 4, 5 and 8, Howard's Point described as follows: Commencing at the Northeast corner of Lot 3 in
said Howard's Point; thence West along the North line of said Lot 3 a distance of 100.8 feet; thence at a right angle
South 43.7 feet; thence South 18 degrees 35 minutes East 202.8 feet; thence South 47 degrees 28 minutes East
133.3 feet to the actual point of beginning of the tract of land to be described; thence continuing South 47 degrees
28 minutes East 287.5 feet; thence South 13 degrees 47 minutes East 126.52 feet; thence North 71 degrees 45
minutes West 186.4 feet; thence South 65 degrees 49 minutes West a distance of 163.8 feet more or less to the
shore of Lake Minnetonka; thence Northerly along the shore of Lake Minnetonka to its intersection with a line
bearing South 60 degrees 42 minutes West from the actual point of beginning; thence North 60 degrees 42
minutes East 188.95 feet more or less to the actual point of beginning,
Which lies northerly of the following described line: Commencing at the northeast corner of Lot 3 in said Howards
Point; thence on an assumed bearing of West along the North line of said Lot 3 a distance 100.80 feet; thence on a
bearing of South a distance of 43.70 feet; thence South 18 degrees 35 minutes East a distance of 202.80 feet;
thence South 47 degrees 28 minutes East a distance of 303.30 feet to the point of beginning of the line to be
described; thence South 67 degrees 52 minutes 58 seconds West a distance of 282 feet, more or less, to the shore
of Lake Minnetonka and there terminating. [PID No. 30-117-23-44-0021/torrens]
Legal Description of 5300 Howards Point Road:
That part of the following described land:
That part of Lots 4, 5 and 8, Howard's Point described as follows: Commencing at the Northeast corner of Lot 3 in
said Howard's Point; thence West along the North line of said Lot 3 a distance of 100.8 feet; thence at a right angle
South 43.7 feet; thence South 18 degrees 35 minutes East 202.8 feet; thence South 47 degrees 28 minutes East
133.3 feet to the actual point of beginning of the tract of land to be described; thence continuing South 47 degrees
28 minutes East 287.5 feet; thence South 13 degrees 47 minutes East 126.52 feet; thence North 71 degrees 45
minutes West 186.4 feet; thence South 65 degrees 49 minutes West a distance of 163.8 feet more or less to the
shore of Lake Minnetonka; thence Northerly along the shore of Lake Minnetonka to its intersection with a line
bearing South 60 degrees 42 minutes West from the actual point of beginning; thence North 60 degrees 42
minutes East 188.95 feet more or less to the actual point of beginning,
Which lies southerly of the following described line: Commencing at the northeast corner of Lot 3 in said Howards
Point; thence on an assumed bearing of West along the North line of said Lot 3 a distance 100.80 feet; thence on a
bearing of South a distance of 43.70 feet; thence South 18 degrees 35 minutes East a distance of 202.80 feet;
thence South 47 degrees 28 minutes East a distance of 303.30 feet to the point of beginning of the line to be
described; thence South 67 degrees 52 minutes 58 seconds West a distance of 282 feet, more or less, to the shore
of Lake Minnetonka and there terminating. [PID No. 30-117-23-44-0022/torrens]
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