01-076•
C
CITY OF SHOREWOOD
RESOLUTION No. 0 1 - 0 7 6
Resolution Accepting Donation
of Conservation Easement
WHEREAS, the City of Shorewood has adopted a policy to solicit and accept donations
of certain conservation easements upon undeveloped lands which form a part of large
homesteads or estates in order to protect natural, scenic, open or wooded areas within the City;
and
WHEREAS, Dean and Barbara Riesen, 20080 Excelsior Boulevard, Shorewood, have
offered to donate a conservation easement and restriction covering a significant portion of their
homestead property, which easement covers land in a natural and scenic condition;
WHEREAS, the conservation easement covers land which otherwise would have been
subdivided off of the Riesens' homestead parcel into two shoreline lots for further development;
WHEREAS, the City Attorney and City Staff have reviewed and approved the form of
the proposed Conservation Easement and Restrictions Agreement, a copy of which is attached;
and
WHEREAS, the Conservation Easement and Restrictions Agreement appears to comply
with Minn. Stat. §§ 84C.01-.05 and 84.64, and IRC § 170(h).
NOW THEREFORE, the Shorewood City Council hereby adopts the following findings
and Resolutions:
FINDINGS
1. Dean and Barbara Riesen are the owners of a large homestead parcel within the
City which would be burdened by the proposed Conservation Easement and Restrictions;
2. The land covered by the proposed Conservation Easement and Restrictions: (a)
may, under current City regulations, be subdivided into multiple riparian lots and (b) are among
those the City considers most subject to intensive development and subdivision pressure;
3. The land covered by the proposed Conservation Easement and Restrictions
contains certain unique features including portions of a non -meandered lake and/or wetland,
shorelands of that lake/wetland, aquatic habitat, mature trees, and sensitive vegetation and open
spaces;
4. There is intense development pressure in the area surrounding the easement area
and further development would degrade the natural and scenic character of, and habitat in, the
Easement area;
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. 5. The donation offered by the Riesens is for conservation purposes and is perpetual;
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6. The donation will create a significant public benefit, and the City wishes to accept
the donation on the terms expressed in the attached Conservation Easement and Restrictions
Agreement; and
7. The donation and the proposed Conservation Easement and Restriction
Agreement are consistent with Minnesota conservation easement statutes and policies, and with
the City's recently -adopted conservation easement policy.
RESOLUTION
NOW, THEREFORE, BE IT RESOLVED that the City accepts the donation of the
Conservation Easement and Restriction offered by the Riesens upon the terms and conditions of
the Conservation Easement and Restrictions Agreement attached hereto, effective immediately.
ADOPTED by the Shorewood City Council this 26th day of November, 2001.
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CONSERVATION EASEMENT AND
RESTRICTIONS
This donation of a CONSERVATION EASEMENT AND RESTRICTION is made
effective this 26th day of November, 2001 by DEAN A. RIESEN and BARBARA H. RIESEN,
husband and wife (the "Owners") to the CITY OF SHOREWOOD, a municipal corporation
under the laws of the State of Minnesota (hereinafter called "City").
WITNESSETH:
WHEREAS, Minnesota Statutes §§ 84.C.01-.05 authorize the donation by private citizens
of non -possessory, conservation easements, to protect natural, scenic and open space values, and
the authorized donees include any governmental body empowered to hold an interest in real
property under the laws of the State of Minnesota; and
WHEREAS, Minnesota Statutes § 84.64 authorize the donation by private citizens of
similar negative easements, called conservation restrictions, to retain the natural, scenic, and
open or wooded condition of land, and the authorized donees include, any home rule charter or
statutory city; and
WHEREAS, the City is a: (i) governmental body empowered to own interest in real
estate and (ii) statutory city under Minnesota Statutes; and
WHEREAS, the City has concluded, and its comprehensive plan acknowledges, that
there is a need for conservation easements and restrictions to protect and preserve some of the
natural, scenic, open and/or wooded parcels remaining within its City limits, because: (1) the
City is in the path of intensive suburban development; and (2) the relatively small lot size
requirements in the City encourage the subdivision of tracts of land now held in estates or large
homesteads, or in natural, scenic and open or wooded condition; and
WHEREAS, the City has recently adopted a policy under which it will solicit and accept
the donation of conservation easements and restrictions covering natural, scenic, and open or
wooded spaces which are part of large homesteads or estates, and which are threatened by
intensive development and/or subdivision pressure; and
WHEREAS, the Owners own a large homestead parcel in the City of Shorewood legally
described in Exhibit A attached hereto (the "Owner Tract"), and wish to donate to the City a
Conservation Easement and Restriction (CE&R) over part of said tract, consistent with the
above -named State and City policies and procedures, and consistent with the rules and
regulations under United States Internal Revenue Code (IRC) § 170 (h); and
WHEREAS, the donated CE&R cover and encumber lands which otherwise would have
been subdivided and sold off as two (2) lakeshore lots; and ` RANsFER mwo
91ENNEPIN COUNTY TAXPAYER SERVICES
DEC 0 5 2001
2016875v6 NEPIN C NTY INN
BY DEPUTY
WHEREAS, the City has reviewed the donation of the CE&R and has concluded that it
• produces a significant public benefit because of the: (i) intensity of land development pressures
in the vicinity of the Easement Area; (ii) the unique wetland/lake, shoreland, habitat, treed and
open space characteristics of the subject property; (iii) the consistency of the CE&R with state
and local conservation policies; (iv) the likelihood that further development of the Easement
Area would contribute to degradation of the natural and scenic character of, and habitat in, the
Easement Area; and (v) the perpetual nature of the CE&R.
NOW THEREFORE, For good and valuable consideration, the Owners, pursuant to the
aforementioned Minnesota Statutes, hereby donate, grant, bargain, transfer and convey to the
City of Shorewood, its permitted successors and assigns, the conservation easements and
restrictions (the "CE&R") that are more fully described herein, subject to the terms and
conditions herein. The CE&R burden, and run over, on and across, the tracts of land lying and
being in the County of Hennepin and the State of Minnesota, described and depicted in Exhibit B
attached hereto and made a part hereof (the "Easement Areas"), which Easement Areas are a part
of the Owner Tract.
TO HAVE AND TO HOLD THE SAME, together with all the hereditaments and
appurtenances thereunto, forever. And the Owners, for themselves and their successors and
assigns, covenant with the City, its successors and assigns, that the Owners are well seized in fee
simple of the Easement Areas and that they have good right to donate and impose the CE&R,
and that the Easement Areas are free from all encumbrances except the lien of real estate taxes
and installments of special assessments payable therewith which are not yet due.
• 1. Effective Date. The donation contained in this instrument shall not be complete
unless and until accepted by a resolution of the City. The Owners and the City both intend that
the full value of this CE&R qualify for deduction as a "qualified conservation contribution"
under IRC § 170(h) and the rules and regulations thereunder.
2. Scope of Easement. The purpose of this CE&R is to assure that the Easement
Areas shall at all times predominately: (i) remain in their natural and scenic condition; (ii)
remain open or wooded space, and not be developed; and (iii) provide or protect natural and
aquatic habitat for fish, wildlife and plants. In furtherance of this objective, and to define the
scope of the easement and restriction, the Owners, for themselves and their heirs, personal
representatives and assigns, do hereby covenant and agree with the City that:
A. No buildings, permanent structures, signs, billboards or other advertising
of any kind, shall hereafter be erected or placed on or above any part of the
Easement Areas without the prior approval of the City; and no structure within the
Easement Areas, even if approved by the City, shall ever be used for residential or
commercial purposes.
B. No healthy mature trees shall be removed from the Easement Areas
without the prior approval of the City; provided, however, that Owners reserve the
right to remove damaged, diseased or infected trees, fallen leaves, and noxious
• trees (including specifically buckthorn) and weeds, and to plant, maintain and or
2016875v6 2
landscape the Easement Areas in a manner not inconsistent with the conservation
• purposes of this CE&R.
C. No soil or other substance or material shall be dumped or placed as
landfill on the Easement Areas.
D. No trash, waste or unsightly or offensive materials shall be dumped or
placed on the Easement Areas.
E. No surface mining of any kind shall be permitted, and no loam, peat,
gravel, soil, rock or other material substance shall be excavated, dredged or
removed from the Easement Areas.
F. No activities detrimental to drainage, flood control, water conservation,
erosion control, or soil conservation, nor other acts or uses detrimental to the
Easement Areas as a shoreland and a natural and scenic open or wooded space,
shall be conducted or permitted to be conducted within the Easement Areas.
G. This donation is made exclusively for conservation purposes and the
Easement Areas shall be kept and maintained in a natural or scenic, open or
wooded condition, substantially reflecting natural conditions in the Easement
Areas, protecting natural habitat, and affording visual access and scenic
enjoyment to the general public.
• 3. Reservations.
A. The Owners reserve the right to cross the Easement Area in a reasonable
manner for access and egress purposes, on a driveway not exceeding twenty-five
(25) feet in width, to and from any home and related structures now or hereafter
located on the Owner Tract outside of the Easement Areas. This right applies to
the driveway currently in place on the Owner Tract and any replacement
driveway, provided any replacement driveway must remain substantially in the
same location on the Easement Area as the current driveway.
B. Inasmuch as the CE&R grant non -possessory rights in the Easement
Areas, the Owners further reserve the right to construct, remove, replace and
maintain approved perimeter fencing around some or all of the boundaries of the
Easement Areas. Perimeter fencing such as chain link, wrought iron or similar
open -view fences which have opacity factors of 25% or less may be erected
without City Council approval (but subject to normal permit requirements).
Fences with opacity factors of more than 25% must be approved by the City
Council.
C. The restrictions in the CE&R regarding structures and improvements do
not require the Owners to remove or take any remedial actions with respect to the
filled -in foundation currently located within the Easement Areas. The Owners
• reserve the right to continue to use the filled -in foundation for its historic use
2016875v6 3
purposes, such as volleyball and similar recreational pursuits, but shall not pave
over or create a hard -surface on or in the foundation area without City Council
approval.
All of these reserved rights are appurtenant to, benefit and run with the part of the Owner Tract
not lying within the Easement Areas.
4. Term. The easements and restrictions donated and imposed in this CE&R are
perpetual.
5. Miscellaneous Terms.
A. The Owners, for themselves and their successors -in -title, retain all rights
(but shall not be obligated) to enter upon, maintain, care for and landscape
the Easement Area consistent with the restrictions expressed above.
B. This CE&R is a non -possessory easement and restriction and shall not
operate to, or be deemed to, grant to Shorewood any right to enter upon,
use or improve, or to permit the public any right to enter upon, use or
improve, any part of the Easement Areas as a park or recreational area.
Moreover, nothing in this instrument grants any member of the public the
right or privilege whatsoever to enter upon the Easement Areas for any
purpose (other than upon the invitation of the Owners).
6. Remedies. All the rights and remedies under Minnesota Statutes § 84.65 and
§ 84C.03 shall be available to the City to enforce this CE&R. Also, if there shall be a violation
or breach, or an attempt to violate or breach, any of the terms, covenants or conditions of this
CE&R, the City may prosecute any proceedings at law or in equity against the person or entity
violating or breaching, or attempting to violate or breach, any such term, covenant or condition,
either to prevent such violation or breach by injunction or to recover damages for such violation
or breach.
7. Limited Assignment. The City's interest as donee, and holder of the easement
and restriction rights, under this instrument may not be assigned or conveyed, except that
assignment is permitted if the following conditions are first met: (a) the City requires that the
assignee present a written acknowledgement that the conservation purposes the donation was
originally intended to advance will continue to be carried out by the assignee, and (b) the
assignee must be an organization qualifying, at the time of the assignment, as a qualified donee
under IRC § 170 (h)(3) and the rules and regulations thereunder (or successor code sections and
regulations). The Owners' right to sell, transfer or assign their interest in the Owner Tract shall
be unfettered, except that any such sale, transfer or assignment shall in all cases be subject to this
CE&R.
8. Covenants Run With Land. The terms, covenants and conditions hereof shall run
with the land and shall be binding on all present and future owners of the Owner Parcel and the
Easement Areas, and shall inure to the benefit of Shorewood, its permitted successors and
. assigns.
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IN TESTIMONY WHEREOF, Owners have caused these presents to be executed the day
and year first above written.
Dean A. Riesen
2016875v6
arbarfti�esen
• STATE OF MINNESOTA )
)ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this `--)e, day of November,
2001 by Dean A. Riesen and Barbara H. Riesen, husband and wife.
Not'a& P blic
�..- --
sMy
MISTY L. KLINGBERG
Notary Public
Minnesota Commission Expires Jan. 31, 2005
This Instrument Drafted Bv:
iLEONARD, STREET AND DEINARD (RAF)
PROFESSIONAL ASSOCIATION
380 St. Peter Street, Suite 500
Saint Paul, Minnesota 55102
2016875v6
• EXHIBIT A
LEGAL DESCRIPTION OF
OWNER TRACT
E. 35 rods of Lot 50, Aud, Sub. 141, and All that part of Lot 48, "Auditors Subdivision Number
One Hundred Forty-one (141)" Hennepin County, Minnesota, lying North of the Township
Road, EXCEPT that part thereof, described as follows: Commencing at the Northwest corner of
said Lot 48, thence south along the West line of said Lot 48, a distance of 334.43 feet, to the
actual point of beginning of the land to be described; thence. angle left 120 degrees 30 minutes, a
distance of 67.0 feet; thence angle right, 99 degrees, 03 minutes, a distance of 304.50 feet, more
or less to the Northerly right of way line of the Township Road; thence Southwesterly along the
Northerly right of way line of said Town Road, to the West line of said Lot 48; thence North
along the West line of said Lot 48, to the point of beginning.
ALSO EXCEPT That part of Lot 48, Auditor's Subdivision No. 141, Hennepin County,
Minnesota, described as follows: Commencing at the northwest corner of said Lot 48, thence
South, assumed bearing, along the west line of said Lot 48 a distance of 334.43 feet; thence
North 59 degrees 30 minutes 00 seconds East a distance of 67.00 feet to the point of beginning of
the land being described; thence South 21 degrees 27 minutes 00 seconds East a distance of
275.22 feet to the northerly right-of-way line of Excelsior Boulevard as now laid out and
traveled; thence easterly along said right-of-way line a distance of 69.89 feet along a curve, (not
tangential to last described course) concave southerly, having a radius of 469.50 feet, a central
• angle of 8 degrees 31 minutes 46 seconds and a chord bearing of North 72 degrees 13 minutes 07
seconds East; thence North 76 degrees 29 minutes 00 seconds East along said right-of-way line a
distance of 51.00 feet, thence North a distance of 222.91 feet to the point of intersection with a
line bearing East from the point of beginning; thence West a distance of 216.73 feet to the point
of beginning, according to the recorded plat thereof, Hennepin County, Minnesota.
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2016875v6
. EXHIBIT B
(EASEMENT AREAS)
CONSERVATION EASEMENT OVER PROPOSED LOT 1, BLOCK 1—
EASEMENT AREA "A"
That part of the Owner Tract, described in Exhibit A,
Which lies northeasterly, northerly and northwesterly of the following described line which
commences at the most northeasterly corner of the above described land; thence South, assumed
bearing, 83.22 feet along the most easterly line of the above described land to the beginning of
the line to be described; thence North 72 degrees 56 minutes 07 seconds West, 132.37 feet;
thence North 89 degrees 46 minutes 20 seconds West, 260.25 feet; thence South 59 degrees 41
minutes 02 seconds West, 141.50 feet; thence South 85 degrees 17 minutes 51 seconds West,
400 feet more or less to the west line of the above described land where said line terminates.
CONSERVATION EASEMENT OVER PROPOSED LOT 3, BLOCK 1—
EASEMENT AREA "B"
That part of the Owner Tract, described in Exhibit A,
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Which lies southwesterly, southerly, and southeasterly of the following described line which
commences of the most northeasterly corner of the above described land; thence South, assumed
bearing, 346.88 feet along the most easterly line of the above described land to the beginning of
the line to be described; thence North 45 degrees 07 minutes 34 seconds West, 172.36 feet;
thence South 75 degrees 25 minutes 21 seconds West, 106.81 feet; thence North 83 degrees 20
minutes 19 seconds West, 216.90 feet; thence South 82 degrees 51 minutes 58 seconds West 470
feet more or less to the West line of the above described land where said line terminates. Except
the East 55.54 feet.
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