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012405 CC Reg AgP l . t CITY OF SHOREWOOD CITY COUNCIL REGULAR MEETING MONDAY, JANUARY 24, 2005 5~5COUNTRYCLUBROAD COUNCIL CHAMBERS 7:00 P.M. AGENDA 1. CONVENE CITY COUNCIL MEETING A. Roll Call Mayor Love _ Lizee Turgeon _ . Callies Wellens B. Review Agenda 2. APPROVAL OF MINUTES A. City Council Regular Meeting Minutes, January 10,2005 (Att.- Minutes) 3. CONSENT AGENDA - Motion to approve items on Consent Agenda & Adopt Resolutions Therein: NOTE: Give the public an opportunity to request an item be removed from the Consent Agenda. Comments can be taken or questions asked following removal from Consent Agenda. A. Approval of the Verified Claims List (Att.- Claims List) B. Staffing - No action required C. Setting May 21,2005, for Spring Clean-up Day (Att. - Secretary's memorandum) D. Authorization to Apply for Recycling Grant and Execution of Contract with Hennepin County (Att. - Resolution) E. Approval of Revised Resolution - Zucco Land Swap (Att.- Planning Director's memorandum; Draft Resolution) 4. MATTERS FROM THE FLOOR (No Council action will be taken.) 5. REPORTS AND PRESENTATIONS A. Sump Pump Penalty - Ron Johnson (Att. - Administrator's memorandum) 6. PUBLIC HEARING ( - i CITY COUNCIL AGENDA - January 24, 2005 PAGE 2 OF2 7 . PARKS - Report by Representative A. Report on Park Commission Meeting Held January 11, 2005 (Att.- Draft Minutes) 8. PLANNING - Report by Representative A. Conditional Use Permit (Att - Planning Director's memorandum; Draft Resolution) Applicant: Location: Tom and Tina Verburgt 5310 Elm Ridge Circle 9. GENERAL/NEW BUSINESS A. Making Appointments to Certain Offices and Positions within the City of Shorewood for the Year 2005 (Att.- Administrator's memorandum, Resolution) B. Making MCES, LMCC, and LMCD Board Representative Appointments (Att.- Draft Resolution) 10. ENGINEERING/PUBLIC WORKS 11. STAFF AND COUNCIL REPORTS A. Administrator & Staff 1. . County Road 19 Intersection 2. Radisson Road Update B. Mayor & City Council 12. ADJOURN January 24, 2005 Honorable members of the Shorewood City Council: . Shorewood is currently engaged in an intriguing civics experiment, centered on the following question: Does electing representatives from separate wards within the community enhance the government of a small city such as ours? On a split vote in 2002, the City Council determined that the answer was "Yes," and put into place a ward system effective for the 2004 elections. We are a group of past and present City Council, Planning Commission and Park Commission members, who are concerned as to whether this was the right course of action. While we do not question the intentions of those Council members who supported this approach, we continue to have serious doubts about its effect on the political process in Shorewood. The adoption of a ward system was one of the most important issues acted upon by the past Council. Yet despite the magnitude of the issue, the Council did little to engage residents in public discussion before the fundamental composition of the city was changed, at least with respect to the electoral process. With virtually no fanfare, only two public hearings were held, occurring just weeks before the Council's final vote. Only a handful of Shorewood residents attended those meetings. We believe that the amount of public education and comment that took place prior to the Council's decision was inadequate. With the term of the new Council just beginning, we ask you to reconsider the issue of whether the members should be elected on an at-large basis or from wards. We ask you to give the matter high priority on your 2005 work plan. A progressive, open government should not be afraid to question past decisions. We are confident that you will see the wisdom of reopening this important issue for further research and most importantly, public discussion. Thank you. Park Commissioners: AiL rIrtun:tJ Sue Davis, Chair (474-2470) 5495 Valleywoo Cir at Arnst (Past) ~emFJ~726l Planning Commissioners Jeff Bailey, Chair (474-3827) U!!;!r CUNe Bob Gagn (and past City Council member) 24850 Amlee Road (474-5788) Q~. Donna Woodruff (Past) 44~nted Cove (470- 832) (J~t~~ ~ tk-b()1"G.h 4'1 V\ '6crr k:..O'Y) "PeA. 'Srt Pt. ~IJ ""1p.) c;, Cc-rnmlSS 1(Jn-fff (ol2. - 3"0....1 ~cg 0 CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD. SHOREWOOD, MINNESOTA 55331-8927. (952) 474-3236 FAX (952) 474-0128' www.ci.shorewood.mn.us' cityhall@cLshorewood.mn.us Executive Summary Shorewood City Council Regular Meeting Monday, 24 January 2005 . A Work Session will be held at 5:30 PM this evening. Dinner will be provided for Council. . Agenda Item #3A: Enclosed is the Verified Claims List for Council approval. Agenda Item #3B: Staffing - no action required Agenda Item #3C: This motion sets Saturday, May 21,2005, as Spring Clean-up Day. This date falls after the dates for Mother's Day weekend (May 8-9), Opening Fishing (May 14-15) and before the Memorial Day long-weekend (May 28-30). Agenda Item #5A: Ron Johnson, 5355 Shady Hills Circle, has requested a "First Amendment petition for 'sump pump penalty' hearing." A property owner has a right to address the Council regarding monies owed the City. The sump pump surcharge due has not been certified as delinquent in 2004. Mr. Johnson has not spoken to staff or provided specifics in writing about what he wishes to appeal. The City Council has consistently applied its ordinance with respect to Mr. Johnson's case. To staff's knowledge, no circumstances have changed with regard to Mr. Johnson. Agenda Item #7 A: A report on the January 11, 2005, Park Commission meeting and activities will be provided this evening. #Il- ~~ PRINTED ON RECYCLED PAPER Executive Summary - City Council Meeting of 24 January 2005 Page 2 of2 Agenda Item #8A: Tom and Tina Verburgt have requested a conditional use permit for accessory space at 5310 Elmridge Circle. The Planning Commission voted unanimously to recommend approval of the request. Agenda Item #9A: This annual resolution makes Year 2005 appointments to certain offices and positions within the City. Agenda Item #9B: Appointments of Representatives to the Minnetonka Community Education and Services (MCES) Board, the Lake Minnetonka Communications Commission (LMCC), and the Lake Minnetonka Conservation District (LMCD) are typically done in January. The City has advertised these volunteer board opportunities to residents. The current representatives are: MCES: Tad Shaw; LMCC: Patrick Hodapp, and LMCD: Tom Skramstad (current Chair ofLMCD). The three representatives have each expressed an interest in continuing to serve on their . appointed board/committee. No other candidates have contacted the City regarding these volunteer positions. Council may consider adopting three Resolutions (one for each board) appointing the current representative. . . . . DR FT CITY OF SHOREWOOD CITY COUNCIL REGULAR MEETING MONDAY, JANUARY 10, 2005 5755 COUNTRY CLUB ROAD COUNCIL CHAMBERS 7:00 P.M. MINUTES City Administrator/Clerk Craig Dawson administered the Oath of Office to newly elected Mayor Woody Love and Council Members Christine Lizee, Laura Turgeon, Paula Callies and Martin Wellens. 1. CONVENE CITY COUNCIL MEETING Mayor Love called the meeting to order at 7:03 P.M. A. Roll Call Present: Mayor Love, Councilmembers Lizee, Turgeon, Callies, and Wellens; Administrator Dawson; Attorney Keane; Engineer Brown, Finance Director Burton, and Planning Director Nielsen Absent: None B. Review Agenda Lizee moved, Turgeon seconded, Approving the Agenda as presented. Motion passed 5/0. 2. APPROVAL OF MINUTES A. City Council Regular Meeting Minutes of December 13, 2004 Turgeon moved, Lizee seconded, Adopting the City Council Regular Meeting Minutes of December 13, 2004, as presented. Motion passed 5/0. 3. CONSENT AGENDA Lizee moved, Turgeon seconded, Approving the Motions Contained on the Consent Agenda and Adopting the Resolutions Therein: A. Approval of the Verified Claims List B. Staffing - Rink Supervisor and Liquor Store Staff C. Adopting RESOLUTION NO. 05-001, "A Resolution Approving Tree Trimmer Licenses" D. Adopting RESOLUTION NO. 05-002, "A Resolution Setting the 2005 Regular City Council Regular Meeting Schedule." #d2.A CITY OF SHOREWOOD REGULAR MEETING MINUTES JANUARY 10, 2005 Page 2 of 7 " E. Adopting RESOLUTION NO. 05-003, "A Resolution Accepting the 2003 Traffic Signal L.E.D. Improvement Project, City Project 03-10, S.A.P. 216-010-07." Motion passed 5/0. 4. MATTERS FROM THE FLOOR There were no matters from the floor presented this evening. 5. REPORTS AND PRESENTATIONS None. 6. PUBLIC HEARING There were no public hearings scheduled for this meeting. . 7. PARKS A. Report on Park Commission Meeting Held December 14, 2004 Chair Davis reported on matters considered and actions taken at the December 14,2004, Park Commission Meeting (as detailed in the minutes of that meeting). Councilmember Turgeon questioned whether consideration had been given to hosting a City Ice Skating Party as had been done recently in Deephaven. She noted the City of Deephaven had a "Zamboni" machine for use in assisting with ice conditions that was available for rental. Chair Davis indicated she would report back to the Park Commission regarding this request. 8. PLANNING Commissioner Meyer reported on matters considered and actions taken at the January 4, 2004, Planning . Commission Meeting (as detailed in the minutes of that meeting). 9. GENERAL A. Making Appointments to Certain Offices and Positions within the City of Shorewood for the Year 2005 Administrator Dawson explained the Council annually made appointments to certain offices and positions for City business. Mayor Love stated this matter might be better suited to a Work Session meeting, and suggested it be added to the January 24, 2005, Work Session Meeting to be held at City Hall starting at 5:30 P.M. Council agreed. Councilmember Callies suggested a notice be sent to the Council regarding the meeting times for the positions and appointments to be made. Councilember Wellens volunteered to be the Council Liaison to the Park Commission meeting to be held on January 11,2005. ~ CITY OF SHOREWOOD REGULAR MEETING MINUTES JANUARY 10, 2005 Page 3 of7 B. Establishing the Date, Time and Place for the 2005 Local Board of Appeal and Equalization meeting and Discussion of future meetings, and Appeal and Equalization Training Administrator Dawson reviewed the history of this matter, noting the Council in past years had been the Board of Appeal and Equalization for any residents wishing to discuss the property valuation for tax purposes. He noted this meeting typically was held in April of each year, and explained the County had suggested the same timeframe for this year. He went on to explain that beginning in 2006, State law provided the transference of duties from the local boards to the county assessor. A public notice would be required to discuss the proposal to transfer duties would be on the agenda. With this transference of duties, the County would directly consider the appeals of residents regarding property valuations, and the City Council would no longer be required to participate as the Local Board of Equalization. . Mayor Love stated, in the past, he had believed the Council's participation in the Board process to be similar to a facilitator between residents and the assessors, rather than performing any actual service to residents. Further, he stated it seemed somewhat confusing to the residents appearing before the Council/Board in this manner. Without objection from the Council, Mayor Love directed Staff to set a date for the Public Hearing to transfer duties to Hennepin County for the Local Board of Equalization duties in 2006. As a result of this action, no training would be required of the Council as well. Turgeon moved, Wellens seconded, Setting the Initial Meeting of the Local Board of Equalization as April 18, 2005, at 7:00 P.M. at the Shorewood City Hall. Motion passed 5/0. C. Recommendation of Appointments by Hennepin County Board of Commissioners to the Minnehaha Creek Watershed District (MCWD) Board of Managers . Administrator Dawson explained Council had the option to recommend any resident wishing to be appointed to the Minnehaha Creek Watershed District Board of Managers. Thus far, no one had come forward asking for this recommendation. Mayor Love stated the Council had not interviewed any persons wishing to be recommended for appointment to the Hennepin County board of Commissioners to the Minnehaha Creek Watershed District Board of Managers; thus, no further Council action was required on this item. He directed Staff to remove this item from agenda, without objection of the Council. D. Excelsior Proposal re: Process for SLMPD Issues Administrator Dawson briefly reviewed the history of this issue for Council, noting correspondence had been received since the most recent Regular City Council meeting from the City of Excelsior requesting a response to the South Lake Minnetonka Police Department (SLMPD) Coordinating Committee proposal on a process regarding SLMPD issues. 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(") > ..... r (")00 o ~ 5l : ~'CD [~ W It.~. g ~>n ~ 2: ~ :.~~ 0>0 ....~~ -..Ii<rn 1-'= !>o ~.~. 5:~ o o t:::l ~ 2 5 ~ l'I'j l'I'j ~ ~ ~ 2 ~ ~ rn .. CITY OF SHOREWOOD REGULAR MEETING MINUTES JANUARY 10, 2005 Page 5 of 7 Matt Saunders, 5490 Manor Road in Greenwood, stated while he was a current member of the Greenwood City Council, he was not representative of the Council in any way in this request. He stated he had sent a letter of opposition for the request, as it did not meet the goals of the development plan originally proposed. He explained the area surrounding the project had few streetlights, even at the nearby intersections of several heavily traversed roadways. He noted the residents of the area worked to avoid any light pollution in the area preferring the natural light to man made. He also complimented Capestone Builders on its adherence to the development plan in its respectfulness to neighbors and adjacent properties throughout the construction process. He stated he continued to support the project as a whole, but did not support the utilization of streetlights in the project at all, and he was very excited about the project overall as he liked the character of the development. . Mike Osterholm, 20940 Oak Lane in Greenwood, stated he, too, was opposed to the streetlight request for the same reasons as Mr. Saunders. He questioned whether the lighting provided an answer to a safety issue, and if not, he did not see a need for the lighting to be approved. He stated the entire neighboring area had been successful in avoiding issues of safety with private lighting. Furthermore, he believed if the lighting request would be approved, it would have an adverse impact on the surrounding properties and area as a whole. Councilmember Lizee stated there would be two light fixtures on each garage facing the street, and she believed there to be adequate illumination in the area with those lights. She also stated there would also be lights illuminating the entrance monument to the development and to place a light at the end of the cul-de- sac would be in keeping with the City policy. Councilmember Turgeon agreed, noting the one light at the end of the cul-de-sac should be directed away from the wetland area. She stated the monument sign with lighting would guide people to the development, and thus, she did no believe any additional lighting was necessary at the entrance, In response to Councilmember Callies' question, Director Nielsen stated a light at the entrance and a second light at the end of the cul-de-sac would be consistent with the City policy on lighting. . In response to Councilmember Wellens' question, Mr . Wehrmann stated what was not shown on the information presented to Council was that there was approximately 200 yards to Manor Road, and the lighting was going to be absorbed in that distance anyway. He also noted the topography of the project, stating there would not be any illumination splashing out on to other properties due to the cliffs around three fourths of the project. He stated the request for the lighting was presented so the town home project would feel and act as a community as a whole. In response to Councilmember Lizee' s question, Mr. Wehrmann stated photocells or timers could be installed on the lights to allow them to be turned off at any time. He also stated part of the intention for the style of lighting proposed was to allow street signs to be placed on the posts as well as plants on brackets to bring beauty to the development also. Mr. Osterholm stated the whole project was approximately a city block in length and he believed there would be too many lights without the lighting proposed, He stated the lighting would be substantial just from the home sites as the lights would be able to be viewed through the wooded areas without additional street lighting. 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I Q.~ ? ::;. ; =- !' ;. o .... 1-1) 't:I o (/} (/} .... c:r ucr ~>n ~ z~ :t::l~ Q>O "liI:l~ ~~U1 ...= ..=0 ~= ~~ o o = = ~ ~ ~ l"'.l l"'.l ~ ~ ~ d ~ U1 n q" 't:I e - ~. - Q c:r o . . CITY OF SHOREWOOD REGULAR MEETING MINUTES JANUARY 10, 2005 Page 70f7 12. ADJOURN Wellens moved, Turgeon seconded, Adjourning the January 10, 2005, Regular City Council Meeting at 8:10 P.M. Motion passed 5/0. RESPECTFULL Y SUBMITTED, Sally Keefe, Recording Secretary Craig W. Dawson, City Administrator/Clerk Woody Love, Mayor ~ ' '. PAYABLESAPPROVALS For 1/24/05 Council Meeting . Prepared by: (?~ ~ Catherine EIke, Sr. Accountant ~~ Reviewed by: Bonnie Burton, Finance Director Approved by: ~ ~ M Craig Da son, City Administrator . Date: /-dO.-() 5' Date: r31f:;o@s' Date: (%~;ttJ' :lF3ff PAYROLL APPROVALS For 1/24/05 Council Meeting Prepared by: ~//( 1;;'-''' rA Catherine BIke, Sr. Accountant ~~ Reviewed by: Bonnie Burton, Finance Director Approved by: &~ ~ /;JA Craig Da~ son, City Admi~istrator . Date: I-dO/OS Date: (JI ~/os- Date: {JI Poj'tJS- . MEMORANDUM CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD. SHOREWOOD, MINNESOTA 55331-8927. (952) 474-3236 FAX (952) 474-0128' www.ci.shorewood.mn.us' cityhall@ci.shorewood.mn.us TO: Mayor and City Council Craig Dawson, City Administrator . FROM: DATE: RE: Pat Fasching, Secretary January 24, 2005 Motion Establishing May 21, 2005 as Spring Cleanup Day Traditionally, the City of Shorewood has established a date in May of each year as Spring Cleanup Day. Staff is recommending approval of a motion that establishes May 21, 2005 as Spring Cleanup Day for the City of Shore wood.. #,3G ft '.J PRINTED ON RECYCLED PAPER '. CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD · SHOREWOOD, MINNESOTA 55331-8927 · (952) 474-3236 FAX (952) 474-0128' www.ci.shorewood.mn.us . cityhall@ci.shorewood.mn.us MEMORANDUM DATE: January 18, 2005 CC: Mayor and Council Members Jean Panchyshyn, Deputy Clerk j4? Craig W. Dawson, City Administrator/Clerk cb Authorizing the City to Apply for 2005 Recycling Grant with Hennepin County . TO: FROM: RE: The 2004 Municipal Recycling Final Report and the 2005 Recycling Grant Application is due to Hennepin County by February 15. A completed copy is attached. A resolution authorizing submittal of the 2005 Grant Application is required. A draft resolution is attached for Council consideration. . The Grant Agreement that the City will receive around September, 2005, will cover a 3-year term (2005-2007). A copy of the 2002-2004 Agreement is available for review at City Hall; the upcoming Agreement is expected to be similar. Grant funds are determined on the total number of households that have curbside recycling servic~s available. In 2004, the City received a grant of $21,460. The County has notified us that the 2005 grant amount should be comparable to that which was received in 2004. Recommended Council Action Staff recommends Council Adopt a Resolution Authorizing Submittal of the 2005 Municipal Recycling Grant Application to Hennepin County. ft '.J PRINTED ON RECYCLED PAPER -#30 2004 MUNICIPAL RECYCLING FINAL REPORT 2005 MUNICIPAL RECYCLING GRANT APPLICATION Hennepin County Residential Recycling Program January 1 - December 31, 2004 SHOREWOOD Municipality I'(~~:\'\ I '=:':". ""-" /7' (,J) U-~) \U' ! " $ 5646.00 $ 704.00 $ -0- $77650.00 $ -0- $ -0- Total Expenditures $84000.00 Revenues from Sale of Recyclable $ -0- A. Program Administration B. Recycling Promotional Activities C. Waste Reduction Promotional Activities D. Collection Curbside Drop-Off E. Curbside Collection Containers Residential Source-Separated Collections Mixed Fibers o Newspaper ~ Corrugated Cardboard 19.27 19.27 o Office Paper ~ Mixed Paper/Junk Mail 693.70 693.70 o Magazines o Bcixboard o Phone Books Metal o Alum. Cans & Foil o Steel & Tin Cns IE. Commingled Cans 66.98 66.98 o Scrap Metal Glass l5?J. Food & Beverage 153.09 153.09 o Other Glass Plastic o PET o HDPE ~ Commingled Bottles 28.70 28.70 Other Vehicle Batteries Recyclables Textiles Carpet Household Goods 93.09 93.09 Appliances 5.75 5.75 Totally Commingled (One Sort) Other Tires 1.48 1.48 Other Yard Waste 30.47 30.47 Total Tons 992.21 100.32 1092.53 B. Number (#) of Households (HH) with Curbside Recycling Service Available as of January 1, 2005: Single family (1-4 units) 2773 Multi-family (5 units and above) + -0- Total households with curbside recycling service available 2773 C. Methods Used to Determine Number of Households with Service Available (check all that apply): Property Tax Records I Utility Bill Records X I Building Permits I Other (specify) D. Average Pounds of Recyclables per Household (HH): Avg. Ibs.lHH = (Total Tons / Total # of HH)*2000 79 Week Number Of HH With Curbside Number Of HH Setting Out Participation Rate Recycling Service Available Recyclables 10/04-10/09 2773 1113 40% 10/11-10/16 2773 1156 42% 10/18-10/23 2773 1090 39% 1 0/25-1 0/30 2773 1171 42% Totals 11092 4530 41% A. Method City Uses to Fund its Portion of the Recycling Expenses: General Fund: Yes No -X- Utility Bill: Yes -X- No Monthly charge on resident's bill only: $2.84 B. Curbside Collection Contractors: Organized Open Collection Method* Two Sort 1. EZ Recycling 2. 3. 4. 5. . 1 = Single Stream (commingling all recyclables together in one container) 2 = Two Stream (collecting metal cans, glass, and plastic in one container and all papers in the other) 3 = Source Separated (segregating recyclables into 3 or more categories) C. Contract Dates 1 Term: 1/1/04 to 12131/06 D. Contractor's Recycling Collection Cost IHH/Month: $ 2.34 E. Collection Frequency: Weekly ..1L. F. Refuse and Recycling Collected Same Day: Yes x Bi-weekly _ No Twice Monthly _ G. Gontractors that Collect MSW at Municipal Owned Facilities: 1. 2. H. MSW Disposal Facilities that are Being Used by Contractors Listed in Item G: 1. 2. I. Municipal Ordinance Requiring Recycling by: Single Family Residents: Yes - No ..lL- I Mulit-family Residents: Yes ..lL- No -I Businesses: Yes - No ..lL- pi~ Mayor or City Manager 1 Administrator 1 Clerk Date Recycling Coordinator Date FINAL REPORT AND GRANT APPLICATION DUE FEBRUARY 15, 2005 . . . . 2004 Municipal Recycling Grant Application Part N Description of Recycling Program (2004 Actual/200S Planned) This year (2004) the City of Shorewood offered a spring clean up for our residents. It included a curbside pick up and a drop off site for residents to dispose of yard waste, household appliances, batteries and tires. We also participated in the fall annual rake-a- thon by picking up leaves that were raked and set curbside. We had weekly curbside pick up of household recyclables by B-2 Recycling. Once again, we offered our residents a wheel unit that is attachable to their recycle bins and it was accepted very well. We promoted recycling and educated our residents about recycling with a monthly article in our newsletter and special inserts periodically. In 2005 we plan to offer our residents the annual spring clean up program as we have in the past. A new recycle brochure will be designed and sent out to our residents for 2005. It includes our curbside recycling information and also a handy telephone guide for disposing ofh()usehold hazardous waste. Our City Hall is a drop off and collection site for household batteries. We also are working with our local schools collecting and recycling ink caltridges from computers, fax machines,etc and cell phones. As usual we will continue to promote and educate our residents with a monthly article in our newsletter. CITY OF SHOREWOOD RESOLUTION NO. 05- A RESOLUTION AUTHORIZING SUBMITTAL OF THE 2005 HENNEPIN COUNTY GRANT APPLICATION FOR MUNICIPAL SOURCE SEPARATED RECYCLABLES WHEREAS, pursuant to Minnesota Statute 1I5A.55I, by December 31, 1993, each County in the Metropolitan area will have as a goal to recycle a minimum of35 percent (35%) by weight of total solid waste generation, and each County must develop and implement or require political subdivisions within the County to develop and implement programs, practices, or methods designed to meet its recycling goal; and WHEREAS, pursuant to Minnesota Statute 115A.551, Counties shall ensure that residents have an opportunity to recycle; and WHEREAS, Hennepin County Ordinance 13 requires each city to implement a recycling program to enable the County to meet its recycling goals; and . WHEREAS, the County adopted a Hennepin County Funding Assistance Policy for Source Separated Recyclables on September 11, 1990, to distribute funds to cities for the development and implementation of waste reduction and recycling programs; and WHEREAS, to be eligible to receive these County funds cities must meet requirements set forth in the "funding policy"; and WHEREAS, the City desires to receive these County funds; NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Shorewood, as follows: 1. That the Council authorizes the submittal of the 2005 Hennepin County Grant application for Municipal Source Separated Recyclables. . 2. That as a condition to receive funds under the Hennepin County Funding Assistance Policy the City agrees to implement a waste reduction and recycling program as indicated on the 2005 Hennepin County Recycling Grant Application and that the City will use county funds only for the purpose of implementing the City's waste reduction and recycling program. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 24th day of January, 2005. Woody Love, Mayor ATTEST: Craig W. Dawson, City Administrator/Clerk CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD · SHOREWOOD, MINNESOTA 55331-8927 . (952) 474-3236 FAX (952) 474-0128. www.ci.shorewood.mn.us. cityhall@ci.shorewood.mn.us MEMORANDUM TO: Mayor and City Council . FROM: Brad Nielsen DATE: 20 January 2005 RE: Zucco Land Swap (One More Time) FILE NO.: Property (4485 Enchanted Point) . Last summer the City agreed to swap some excess right-of-way for property owned by the estate of Francis Zucco. It was later discovered that the City property had been acquired by tax-forfeiture and the City was required to convey the property back to the State in order to sell it to the Zuccos. After two resolutions to that effect, the County decided it did not like the language in either one. Consequently, the attached resolution has been prepared for your consideration and approval. The Zuccos have already paid the amount required by the State. The only item remaining to complete the transaction is this new resolution. If you have any questions on this confusing situation, please do not hesitate to contact me on Monday before the meeting. Cc: Craig Dawson Tim Keane n ~~ PRINTED ON RECYCLED PAPER CITY OF SHOREWOOD RESOLUTION NO. A RESOLUTION APPROVING SUBDIVISION AND COMBINATION OF REAL PROPERTY WHEREAS, the City of Shorewood (the "City") is the registered owner of certain real property ("City Property") located in the City of Shorewood, by virtue of a use deed from the State of Minnesota, of the following described property, subject to a use restriction for street and right of reverter in favor of the State of Minnesota, Doc. No. 1829497 (the "Reverter"): "Lot 21, Block 1, "Enchanted Park: Lake Minnetonka, Minnesota, lying Westerly of a line drawn from a point on the Northeasterly line of said Lot 21 midway between the most Northerly and the most Easterly comers of said lot to a point on the Southwesterly line of said Lot 21 midway between the most Westerly and the . most Southerly comers of said lot and lying Northerly of a line drawn from a point on the Northwesterly line of said Lot 21 midway between the most Northerly and the most Westerly comers of said lot to a point on the Southeasterly line of said Lot 21 midway between the most Easterly and the most Southerly comers of said lot."; and WHEREAS, Francis 1. Zucco and Mary Anne Grams, as trustees for the benefit of Francis 1. Zucco and for the uses and purposes set forth in the Will of Alice Drake Zucco, also known as Alice D. Zucco, deceased (collectively, the "Trustees"), are the Hennepin County Probate Court-decreed distributees of certain real property ("Zucco Property") located in the City of Shorewood, legally described as: "Lots 15, 16, 20, the Easterly Half of Lot 21, and the Southerly Half of the Westerly Half of Lot 21, all in Block 1, "ENCHANTED PARK" LAKE MINNETONKA; Hennepin County, Minnesota, according to the recorded plat thereof'; and . WHEREAS, the City has constructed a road which encroaches on a portion of the Zucco Property and the City Property abuts a portion of the Zucco Property); and WHEREAS, the City and Trustees have agreed to exchange an equal amount of land to enable the City to relocate and improve the configuration of the City road and to eliminate the encroachment of the City road onto the Zucco Property; and WHEREAS, to facilitate the exchange, the City and Trustees have agreed to subdivide and combine their respective properties into separate parcels, hereinafter described; and -1- WHEREAS, prior to, and in order to effect the Exchange, the City of Shorewood proposes to convey the City Property to the State of Minnesota to extinguish the Reverter and proceed to acquire fee simple title to the City Property from the State of Minnesota, the reasonable value and consideration for which acquisition shall be established and determined by the Hennepin County Assessor; and WHEREAS, the subdivision and combination proposed by the City and the Trustees complies in all respects with the Shorewood Zoning Code. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Shorewood as follows: 1. The City shall reconvey the City of Property to the State of Minnesota using the form and legal description prescribed by the State of Minnesota Department of Revenue for reconveyances of property. . The City will take the steps necessary to acquire fee title from the State of Minnesota to the City Property, using the legal description on the Certificate of Title as follows: . . "Lot 21, Block 1, "Enchanted Park: Lake Minnetonka, Minnesota, lying Westerly ofa line drawn from a point on the Northeasterly line of said Lot 21 midway between the most Northerly and the most Easterly comers of said lot to a point on the Southwesterly line of said Lot 21 midway between the most Westerly and the most Southerly comers of said lot and lying Northerly of a line drawn from a point on the Northwesterly line of said Lot 21 midway between the most Northerly and the most Westerly comers of said lot to a point on the Southeasterly line of said Lot 21 midway between the most Easterly and the most Southerly comers of said lot." 2. The proposed subdivision and combination is subject to the Trustees deeding Parcels 1,2, and 3, legally described in Exhibit A, attached hereto for public right-of-way and utility purposes. 3. In consideration of the Trustees' conveyance of Parcels 1, 2, and 3 to the City, the City agrees to convey the following described parcel (parcel 4) to the Trustees or their successors or assigns: "That part of the following described parcel: Lot 21, Block 1, "Enchanted Park: Lake Minnetonka, Minnesota, lying Westerly of a line drawn from a point on the Northeasterly line of said Lot 21 midway between the most Northerly and the most Easterly comers of said lot to a point on the Southwesterly line of said Lot 21 midway between the most Westerly and the most Southerly comers of -2- said lot and lying Northerly of a line drawn from a point on the Northwesterly line of said Lot 21 midway between the most Northerly and the most Westerly comers of said lot to a point on the Southeasterly line of said Lot 21 midway between the most Easterly and the most Southerly comers of said lot. Which lies easterly and southerly of the following described line: Commencing at the Southwest comer of said North Half of the West Half; thence on and assumed bearing of South 48 degrees 06 minutes 12 seconds East along the South line of said North Half of the West Half a distance of 14.00 feet to the point of beginning of the line being described; thence North 11 degrees 48 minutes 00 seconds East a distance of25.92 feet; thence along a tangential curve concave to the east having a radius of73.00 fee and central angle of33 degrees 35 minutes and 00 seconds a distance of 42. 79 feet to a point of compound curvature; thence along a tangential curve concave to the southeast . having a radius of 3 5.00 feet to its intersection with the east line of said North half of the West Half, and said line there ending." 4. The City Clerk will furnish the Trustees with a certified copy of this resolution for recording purposes. 5. The Trustees will record this resolution together with the deeds referenced in 2.and 3. above with the Hennepin County Recorder or Register of Titles within Sixty (60) days of the date of the certification of this resolution. 6. Shorewood City Council Resolution 04-104 is hereby rescinded. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 24th day of January, 2005. . Woody Love, Mayor ATTEST: Craig W. Dawson, City Administrator/Clerk -3- EXHIBIT A Parcell to be transferred from Trustees (Zucco) to the City of Shorewood . That part of the Easterly Half of Lot 21, Block 1, ENCHANTED PARK LAKE MINNETONKA, which lies northerly of the following described line: Commencing at the Southwest corner of North half of the West Half of said Lot 21; thence on an assumed bearing of South 48 degrees 06 minutes 12 seconds East along the South line of said North half of the West Half a distance of 14.00 feet to the point of beginning of the line being described; thence North 11 degrees 48 minutes 00 seconds East a distance of 25.92 feet; thence along a tangential curve concave to the east having a radius of73.00 feet and central angle of 33 degrees 35 minutes 00 seconds a distance of 42.79 feet to a point of compound curvature; thence along a tangential curve concave to the southeast having a radius of35.00 feet to its intersection with the west line of said East Half; thence easterly to a point on the North line of said East Half of Lot 21 distant 34.13 feet easterly, as measured along said North line, from the most northerly corner of said East Half, and said line there ending. Parcel 2 to be transferred by the Trustees (Zucco) to the City of Shorewood The Northerly 21.30 feet of Lot 16, Block 1, ENCHANTED PARK LAKE MINNETONKA Parcel 3 to be transferred by the Trustees (Zucco) to the City of Shorewood . That part of Lot 20, said Block 1, which lies easterly of a line drawn from the point of intersection of the South line of the North 21.30 feet of said Lot 16 with the East line of said Lot 20, to a point on the North line of said Lot 20 distant 25.58 feet Westerly, as measured along said North line, from the Northeast corner of said Lot 20. Parcel 4 to be transferred from the City of Shorewood to the Trustees (Zucco) That part of the North Half of the West Half of Lot 21, Block 1, ENCHANTED PARK LAKE MINNETONKA, which lies easterly of the following described line: Commencing at the Southwest corner of said North Half of the West Half: thence on an assumed bearing of South 48 degrees 06 minutes 12 seconds East along the South line of said North Half of the West Half a distance of 14.00 feet to the point of beginning ofthe line being described; thence North 11 degrees 48 minutes 00 seconds East a distance of 25.92 feet; thence along a tangential curve concave to the east having a radius of73.00 feet and central angle of33 degrees 35 minutes and 00 seconds a distance of 42. 79 feet to a point of compound curvature; thence along a tangential curve concave to the southeast having a radius of 3 5.00 to its intersection with the east line of said North half of the West Half, and said line there ending. -4- . ., CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD · SHOREWOOD, MINNESOTA 55331-8927 · (952) 474-3236 FAX (952) 474-0128. www.cLshorewood.mn.us. cityhall@cLshorewood.mn.us MEMORANDUM TO: FROM: DATE: SUBJECT: City Council . . '1 ii\'" 1 .~i Craig W. Dawson, CIty AdmInIstrator LA--' January 19, 2005 Johnson Request for "Hearing" on Sump Pump Surcharge . Mr. Ron Johnson, 5355 Shady Hills Circle, has requested a "First Amendment Petition for 'Sump Pump Penalty' Hearing." The payment is due by January 31 before penalties accrue, and he wishes to address the Council before this date. Under Sec. 904.09 of the City Code, properties are to be inspected to ensure there are "no sump pump or prohibited discharges" into the City's sanitary sewer system. Without such inspection, it is presumed that sump pump discharges are occurring; the surcharge is $100/month. Mr. Johnson has not con~ented to having an inspection, and is the only property owner in Shorewood who has not done so. The City has suggested several ways for the inspection to occur, but Mr. Johnson has not agreed to any. . Mr. Johnson has filed suits on the City's sump pump surcharges certified in 2001,2003, and 2004. The court has ruled in favor of the City and the legitimacy of its surcharge. In his 2003 and 2004 cases, Mr. Johnson characterizes the City's surcharge as a "special assessment" which, under Chp. 429 of Minnesota statutes, requires a benefit to the property be shown at least as great as the surcharge. The City Council certifies the unpaid surcharge to Hennepin County, which places the delinquent amount on the property tax statement, under the process in Chp. 444 of Minnesota statutes. No "special benefit accounting" is required. Under the First Amendment to the United States Constitution, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The Council's process for redress starts administratively, with appellants working with staff. The City Code provides that residents may address the Council when they wish to appeal their charges (which, technically; is not a "hearing"). With regard to delinquent charges, these appeals usually occur in the fall when certification of delinquencies to the County is due. The surcharge in Mr. Johnson's current utility bill is not in the amount certified as delinquent in 2004. Staffhas been enforcing the Council's ordinance regarding sump pump surcharges. The Council has been consistent in enforcing its ordinance when Mr. Johnson has appealed delinquent charges. The sump pump surcharge is a singular matter that may be handled with an inspection of Mr. Johnson's property. Mr. Johnson has not spoken with staff or provi~d specifics in writing regarding his current request. '-.1 PRINTED ON RECYCLED PAPER RECEIVED JAN 1 9 2005 " . RON JOHNSON January 16, 2005 CITY OF SHOREWOOD 5355 Shady Hills Circle Shorewood, MN 55331 Tel: 952-474-8171 Craig W. Dawson, Administrator City of Shorewood 5755 Country Club Rd. Shorewood, MN 55331 Re: First Amend. Petition for "Sump Pump Penalty" hearing. Dear Mr. Dawson: Please schedule a hearing at your next available City ~ounci1 meeting regarding the . "Sump Pump Penalty" item on the January 6,2005 utility bill the City sent me, a copy of which is attached hereto. I wish to address the matter prior to the January 31, 2004 deadline the City set for payment. Thank you very much. S/!~L Ron Johiison Attachment . C: Mayor and City Council . . I CITY OF SHOREWOOD DUE DATE PREVIOUS 0 0 RC 5.25 0 0 ST 5.04 0 ST 6.56 0 SW 70.00 MC 300.00 SALES TAX .00 AMOUNT DUE AFTER DUE DATE . PREVIOUS BAL. 386.85 . . lOCATION: 856.60 rJrOig:~:~5Y"~HAI>~ HILLS CIR - SEE ({t \/>j ;<~:. ,a. - . Presorted First Glass U.S. POSTAGE PAID PERMIT NO. 128 !"l,;-A~,~t ;'\1-:- !UHr,~ ) H!~~ \;Ti..iH InH! P/.t'O"IF~n 11111111111111111 ACCOUNT NUMBER 0-70!:i-05355- AMOUNT'DUE AFTER DUE'DATE I I' 1/31/05 , :~> 833.27 RONALD R JOHNSON 5355 SHADY HILLS CIR SHOREWOOD MN 55331 .::d,;' "i\4(I",8ti CITY OF SHOREWOOD I. 1.1..1.1...111..11., 11111.1." 1111.1. 1.11111.1. I.. f.l. "' 1/1 '. CITY OF SHOREWOOD PARK COMMISSION MEETING TUESDAY, JANUARY 11,2005 5755 COUNTRY CLUB ROAD CITY HALL 7:00 P.M. MINUTES ~ .ft "~I' ~~(:"1 =-- . iiI'i. J....a I 1. CONVENE PARK COMMISSION MEETING Chair Davis called the meeting to order at 7:06 p.m. Present: Chair Davis; Commissioners Meyer, Young, Farniok, Westerlund, Wagner, and late arrival Gilbertson; City Engineer Brown; Park Secretary Grout; and City Council liaison Wellens Absent: None B. Review Agenda . Wagner moved, Gilbertson seconded, to approve the Agenda as submitted. Motion passed 7/0. 2. APPROVAL OF MINUTES A. Park Commission Meeting Minutes of December 14, 2004 The last paragraph under section 5B., Music in the Parks, Davis added the last week in June as the potential parent/child concert in the park. Young moved, Westerlund seconded, approving the Minutes ofthe December 14, 2004, Park Commission Meeting as amended. Motion passed 7/0. 3. MATTERS FROM THE FLOOR There were none. . 4. REPORTS A. Report on City Council Meeting of January 10, 2005 Brown reported that the new City Council members were sworn in the previous evening, and that Council Membel Wellens volunteered to be liaison for the Commission meeting this evening. He pointed out that new ice rink supervisors were put in place and that Minnetonka youth hockey has begun to use the ice, although they did not follow proper protocol. Brown noted that the City Council put in place a new process with deadlines which must 1 adhered next year or consequences will need to be put in effect, such as fines, etc. Meyer asked for an update on the Plaza progress at Freeman Park. Brown stated that, although the concrete for the plaza had been placed, the restoration did not go smoothly, as gal were left up to the edge of the concrete. Brown pointed out that the City has withheld payment to the contractor fc the restoration from the endowment until spring when the problem can be addressed appropriately. A dangerous predicament has been created, since the contractor failed to backfill adequately before sodding. 5. MUSIC IN THE PARK A. Review Costs for Ads and Inserts In addition to reviewing the costs of ads and inserts within the local papers, Brown reported that an insert would be placed in the City newsletter, as well as, press releases sent to the appropriate PARK COMMISSION AGENDA TUESDAY, JANUARY 11, 2005 PAGE 2 OF 2 .' papers prior to the summer concert series. He explained that staff would recommend placing a single ad within the Sun Sailor and the Laker newspapers for each event for an estimated cost of $760.00. Gilbertson suggested front loading the advertising by running two ads consecutive weeks before the start of the series to generate awareness. B. Review List of Bands Contacted Brown stated that, having contacted several of the bands this past month, it appears that putting together a schedule is of the most important priority in order to book the preferred groups. He indicated that the fees range from $600-650 for most groups, while the children bands run approximately $200. He reiterated that the timing was critical, as most of the groups calendars would fill fast. Brown suggested the Commission form a subcommittee as they had done last year to evaluate the bands and make recommendations. The Commissioners agreed to meet at Farniok's home Sunday, January 16, at 4 p.m. to listen to tapes, and make recommendations. They also were satisfied with the overall appearance ofthe music in the park flyer. . C. Review Contract Brown indicated that the general summer entertainment agreement would be reviewed by the City Attorney. D. Review Draft Proposal to the Park Foundation Brown reviewed the draft proposal to the Park Foundation and asked for Commissioner input. He noted that the overall budget request was more than last year; but the quality of bands desired this year and supplemental advertising necessitates the budget. Davis stated that she would recommend a higher budget be proposed in order to book some of the . better known bands and cover an additional ad. Although he wished to provide the Foundation with adequate detail in which to make their decision, Brown asked whether he should provide a range for the bands instead of identifying particular groups. Gilbertson suggested the Commission aim high and let the Foundation choose at what level they wish to participate. Young complimented staff on a well written proposal and their choice of verbiage. Farniok suggested that the last line of the first paragraph take the focus off ofthe event that did not happen and instead promote the number of people who did attend the events. Westerlund agreed, stating that it should be the city's intent to promote community within the park system and what a great community building event this is. l, PARK COMMISSION AGENDA TUESDAY, JANUARY 11, 2005 PAGE 3 OF 2 Wagner asked when the plaza was slated for completion. He commented that if the restoration was complete and the Foundation wished to hold a grand opening ceremony, the Music in the Park event would provide them with a unique opportunity to do so. Meyer suggested that a date or deadline for reply be added to the proposal, so that the City will know whether the Foundation wishes to participate in a timely fashion. Wellen further suggested that a directional map be added to the flyer for people who don't necessarily know where Freeman Park is. Westerlund moved, Gilbertson seconded, to accept the Fundraising Proposal for the Music in the Park Series with the changes as recommended and budget of $3,500, and that the Proposal be forwarded to the Park Foundation for their Thursday night meeting. Motion passed 7/0. . 6. UPDATE ON OFF-LEASH DOG PARK AT LAKE MINNEW ASHTA REGIONAL PARK Davis stated that the Lake Minnewashta Regional Park personnel would be holding a public meeting on February 9, at 7 p.m., at the Chanhassen Rec Center. She indicated that representatives from ROMP and landscape architects were expected to attend after which a design would be made. She stated that Chanhassen had already committed $25,000 to the dog park construction and put that expenditure in its 2005 CIP. While both Victoria and Waconia have expressed support neither had made a formal agreement for funds at this time. Davis pointed out that numerous organizations have approached the Park indicating that they would be willing to assist in fundraising efforts. Since no budget or plans had been established, Davis indicated that she was hesitant to pledge monetary support until the City knows more about what the plans will be. . Westerlund concurred, stating that she would prefer to wait until the City determines what its own priorities for 2005 are. 7. DISCUSS PARK SIGNAGE Wagner gave a presentation on Park Signage within the Shorewood Park Community. Having taken numerous pictures of each park and their perspective signage, as well as, safety and vandalism issues, Wagner made several observations. He noted that most of the recognition signs within the parks are wooden in nature; however, the Badger sign was a plastic substance. Overall, Wagner indicated that Freeman Park lacked directional signage pointing visitors to certain park features, Eddy Station, ball fields, etc. He suggested that better signage be used to direct users to the separate entrances in order to avoid confusion. In addition, he pointed out that signage directing users thru the senior housing development was necessary off Eureka Rd. Wagner noted that some of the other big issues include the installation of 'City Park' signage marking areas near parks and directional signage directing people to places like, the Skate Park. Meyer agreed that identifying and placing directional signs within Freeman Park should be a high priority. PARK COMMISSION AGENDA TUESDAY, JANUARY 11, 2005 PAGE 4 OF 2 J Brown gave a brief history of the access closure to Freeman Park off Highway 7. Wagner reiterated that updated signage is necessary so that people can navigate Freeman Park adequately. Brown stated that he had been in contact with and would be in contact again with MnDOT regarding the installation of directional signage to the City Park on Highway 7. Brown asked if the existing sign style was appropriate, and if so, staff could order up a number of standard signs, put together a layout and explore the costs with contractors to get this work done. Davis pointed out that by installing adequate signage, the number of lost drivers entering Freeman at the wrong end would be reduced. Brown stated that he felt both safety issues and the elimination of unnecessary traffic were legitimate . reasons to warrant the installation of a sign on the East side of Eureka Road. Although the sign would be placed on the opposite side of the road, it would not obstruct views or interfere with sight distances on the west side. Wagner asked if the City could install directional signs within the City. Brown indicated that staff should be able to order and install the directional signs right away. Wagner moved to recommend that staff order and install the standard directional signs, put together options and their recommendations for signage within Freeman Park and Park Lane. Gilbertson amended the motion to include a complete sign plan including proposed locations be brought back before the Commission. Meyer seconded. Motion passed 7/0. . 8. REVIEW PRIORITIES / WORK PROGRAM ITEMS FOR 2005 Davis reported that she had been invited to preview a software program called InvenTree which takes an inventory of trees. She indicated that she would report back to the City of how effective this software program proved to be. With regard to the priorities for 2005 Brown indicated that it is not uncommon for items to carry over into October-December; therefore, the program does not currently reflect many items. After much discussion, minor changes were made to the 2005 Work Program; including, a presentation on water quality issues and treatment options to take place in March-April by Westerlund and a representative ofWSB; ongoing overview of horticulture and tree inventory for the parks beginning in April-May; education on Buckthorn control and eradication beginning in April and ongoing throughout the year; an exploration of methods to reduce vandalism within the parks via work session and information from the Mn Rec and Park Association in April-May; and a review of current balances and programmed improvements for the Capital Improvement Program August- September. , \;", PARK COMMISSION AGENDA TUESDAY, JANUARY 11, 200S PAGE S OF 2 9. DETERMINE LIAISON FOR FEBRUARY AND MARCH CITY COUNCIL MEETINGS January 24 - Westerlund February 14 - Brown 10. NEW BUSINESS The regular March meeting was tentatively rescheduled for Tuesday, March 15, at the Senior Center. . Brown reported that ads had been placed in the Shorewood newsletter advertising for openings on the Commission. He indicated that he would be approaching the seniors at the Ponds to recruit a representative from that location. Brown stated that advertising for the City Engineer's position would be taking place, in an effort to hire an engineer by mid April. Davis reported that Council member Turgeon had suggested that the Commission consider putting together a Winter Community Skating Party Event. Davis suggested this item be placed on the work plan for next fall. 11. ADJOURNMENT Westerlund moved, Wagner seconded, adjourning the Park Commission Meeting of January 11, 2005, at 9:11 p.m. Motion passed 7/0. RESPECTFULLY SUBMITTED, . Kristi B. Anderson Recording Secretary . . CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD · SHOREWOOD, MINNESOTA 55331-8927 · (952) 474-3236 FAX (952) 474-0128' www.cLshorewood.mn.us. cityhall@cLshorewood.mn.us MEMORANDUM TO: Planning Commission, Mayor and City Council . FROM: Brad Nielsen RE: Verburgt, Tom and Tina - C .U.P for Accessory Space in Excess of 1200 Square Feet DATE: 29 December 2004 FILE NO.: 405 (04.38) BACKGROUND . Sharratt Design, representing Tom and Tina Verburgt, is in the process <;>fremodeling the home on property located at 5310 Elmridge Circle (see Site Location map - Exhibit A, attached). Part of the remodeling includes the addition of a new attached garage on the southeast comer of the home (see Exhibits B and C). The garage was designed with a storage area adjoining the garage that technically counts as part of the dwelling. The owner has decided to make this space (see Exhibit D) part of the garage. Since the area ofthis space, added to the garage, exceeds 1200 square feet, the change requires a conditional use permit pursuant to Section 1201.03 Subd. 2.d.(4) of the Shorewood Zoning Code. The property is zoned R-IAlS, Single-Family ResidentiallShoreland and contains approximately 57,350 square feet in area. The garage is angled to conform with the shape of the lot (see Exhibit B). It currently contains 1200 square feet of area and wO"\.lld be 1325 with the proposed change. The proposed home contains 2208 square feet on the main level alone, with even more space on the second level. Exhibit E is the applicant's request letter. Elevations of the house and garage are shown on Exhibit F. ft ~J PRINTED ON RECYCLED PAPER :#8.A. Memorandum Re: Verburgt - Conditional Use Pe11.ilit 29 December 2004 ANALYSIS/RECOMMENDATION Section 1201.03 Subd. 2.d.(4) of the Zoning Code sets forth criteria for granting conditional use permits for accessory space over 1200 square feet. Following is how the applicant's plans comply with the Code: a. The total area of accessory buildings (1325 square feet) does not exceed the floor area (2208 square feet- main level) above grade ofthe proposed home. b. The total area of accessory buildings does not exceed 10 percent of the minimum lot sizefor the R-WS zoning district (.10 x 40,000 = 4000 square feet). . t. The proposed house and garage comply with R-IA/S setback requirements~ Also, the accessory space occupies the same amount of space, whether or not it is part of the house or the garage. Hardcover on the site will be 21.15 percent, well under the limit for the "S", Shoreland district. d. Since the new garage is an integral part of the proposed house, architectural compatibility is not considered to bean issue. Further, due to the angle of the garage the nearest neighbor sees only the narrow end of the garage. Consequently, it is not recommended that additional landscaping be required to buffer the garage. Based upon the preceding analysis, it is recommended that the applicant's request for a conditional use permit be granted as proposed. . Cc: Craig Dawson Tim Keane Tom and Tina Verburgt K. Brian Nowak -2- I -I I--J J.--- ~~ I (/ -I -I -I ~~-~ ~I-- I -1-1 -I a~ V)l3ijnii {t j ~ r\~. · j , \\ ~ .~I \\ \- -----, (-I~\ ,,1~ ~ \\,,' ~ :\71 \\ '\ =J -I -I .\ I ~\_< -I \\ \ \ \ \\ If _.. "7 C _ "H'L ~ 9f' I--- _ _ -I Ii! -- - '--- - . ~\ V^ Ii ---(~.~.. ""~ ~ N ~H_ ~ ..- J ~ - '';CHL \ -= Y . .:.~~ll.r _ ~\=i · · -< ..~ :=1 ~.. ( .... ~. .' (- :: -I -I -I OV ,g~~ -I -I -I .. '\\. I -I -I -I -';:::Ii! -I -I -I -I -I-I~ i -1-1 -I~ .nm~. -I (" \ ~\ ---k-1_ ...., ~ ')-................... 0 Exhibit A ~ j SITE LOCATION .,L- ~~ 1/ T Verburgt condttJonal use permit ;2 Z o I- W Z Z o~ - Q)Q) ~ ..... Co -== .a 0 j I.. W en Co ~ <C ..J ~ W D.. D.. :J ~~ z~ ~ ~ ~ -r-- Ii! , ~ II I IlL ow V>laWn3 ~ I T-/ ~ ~~~ ~.. s"-- ~;)): ~~ "\: "\ i - ~~ '- ~\ ~ '" ~v ~ "" \~ ~ "'~ : \"\1. "'-' ~~/~ ml '" ~ I I I~I I'll ~ s ~ ~ en! M311\MOO'd3W .J - -I -I -I -I -I ., ~ 'i~... -I -I M RIDGE NNESOT A MINNETON . La..I(.e, ~"'~ ,^,,,,e+ Dt\ Ko.. 10 '" ,. l' Moit" ----- .' I ........ I I ........ (Not to~~\e) I '- S -- -;- HOUSE ,..( % o ~ ~ i ~ Pr~c1 Add'.tioV'\ ,..... I ,!.- \ \ \ \ \ 'ell Ii ~\ \ tn \ \ . \ \ f:# \ \ . \ ~ \ \ \ \ \ \ \ \ \ \ \ -\ \ \ \ \ \ \ \ \ \ \ \ \ \ !.. . Y. ~ .... , ..." ~ c~ .' . 'lS1t"" 'Q He " um described location a prapDSlld ,...port Exhibit B PROPERTY SURVEY 'f/(\0~ 20" LINDEN 26" MAPLE Iii (938.7) 5"1 -' ' '~' ,--" 1,1,:",> ',r .,~ .....-...1 ~\ .\!r" 30" I~\P ! 30" -. f~! ! -~ VERBURGT HOME 8 .0 -- . . --construct' . erosion control & tree ~O~.'lmits protection -- '\ ." :.:.\. / 26" I~ . ':'''1~ -- ~.ii>~ 1k!\~ (942.7) 5310 ELM RIDGE CIRCLE SHOREWOOD, MN 55331 -- ~ (946.2) (945.S) ~:~ o ell Z '<'.... 00\ O' CONCRETE \ STEPPING 0 STONES 0 . (940.6) -- -- . ..., ,.. : i \ " \ /~ / ", /' \ I ,\ , ...... I " MANHOL~"~' \ (953.7) I '~'" .....q..) . ,.,..- , I ':S.~~I' \ \~ REMOVE EXIST. 3D" MAPLE .-A',1M~r;. /. - // /' //~ -'~ / . Q Crf2" 0 // r,.~ 1,0 .... /30b'-' .,.....~. }.::.- 0 / (q so ~Z>-" - / ~u FT " <" '. '....l947 7) '.) / 'N _ OMAPLE -<H\NJ' . 0) / ....1( \..' 17.(\ I/o " / ~ 0 '.f" /' ,!s!s5\ (949.0) m" / e rosion ~~trol & tree protection I I II .I I 1/' I / I I I Exhibit C SITE PLAN (952.3) ..., en .............. .."'-""'" . 1 . ( \ I \ AO / SITE PLAN SCALE: 1 "=20' . E I I I I I I E EXIST, BAR lID NEW TIN C!;IUNG E.CMLDG.~ r- 7 E I E. C MLDG. I 48llB ceoR TO PROVIDE STORAGE FOR TABLE TENNIB BOARDS IN WALL CAVITY I I EXIST, POOL ROOM [jE] NEW TIN CElUNG L E 23'-09/16" 6" 25 6" <D ffi ~ fB o o 12'.10" 12'-10" ~ /~ ;jf~ Ct. OF GABLE lEND l' "'~ VER. EXIST. ~. ...+... EXtST, ~~\{ fu'!S. "$ @ .. . ::l 112 .. . ::l YER. EXIST. 2xt2MIN. ~ ~ f ii: ~ EXIST. ~ ~ u ~ SCREENED ~ <i PORCH !!! . mIl . 0 ili, ili. ~ ;;; ;;; Iii ~ 13 Z !I ~ ,. / Iii r -13 / ~'" I.j' , ~+'1 '., '1 AS f7'\.. " " v ... '\.., '...... ", ,."..'\.. ", " ,..... ''', ", ......."". ':0- "" , , "".. " .....,'.... "'" '" ..."" , '\ " '''''-'''''' ''', .'...,. .~./ / ,l/ /",/ / / / ,// E .~~( ,/./" / /~ 4'-4" 1 4'-4" l2'-2" . "1 "1 '1 , EQUAL EOUAL It i L " , WINDOW BOXES ON BRACKETS NO WORK REO'D.: -"" EXIST. WALLS: NEW WALLS: "'.c. C'"c, ,...."1 WALLS TO BE REMOVED:' _- --=- --=-J '.1 / permit approved plan 1/8" =1'0" VERBURGT HOME 5310 ELM RIDGE CIRCLE SHOREWOOD, MN 55331 ....,. / '\. // ...,.~ ../' }~ // ,. / Exhibit D FLOOR PLAN . . ,J. ............ .....,....s.,..h... a.' .r..... r.....,.a.t......t..............,............,....~...........~............ Lteslg."n~ ..company TO: City of Shorewood FROM: K. Brian Nowak, Sharratt Design On behalf of Tom & Tina Verburgt DATE: December 7, 2004 RE: Conditional Use Permit Application for Garage Exceeding 1200 sJ. PIN 29-117-23-34-0008 5310 Elmridge Circle The Verburgt's are requesting a conditional use permit for a garage that exceeds 1200 square feet by 125 square feet. Currently the plans call for a wall uniting this 125 square foot storage space with the house, thus classifying it as a part of the interior and not subject to conditional use. The additional square footage will be used for storage whether it is contained within the interior of the home or open to the garage. Providing the wall to exclude the 125 square feet from the garage would in no way change the roofline, exterior image, or massing of the home. Due to the angle of the existing home on the lot and the approach of the driveway, the placement of the attached garage on the site is also angled. Thus, the roofline and the exterior of the garage have been designed to blend indistinguishably with the home, providing a sensitively scaled approach to the property. As there would be no exterior alteration to the building whether the wall on the interior of the garage is built or not, the applicant requests a conditional use permit to exceed the garage by 125 square feet by excluding this interior separation wall. Exhibit E APPLICANT'S REQUEST LETTER 464 Second Street Suite 100 Excelsior, MN 55331 . .. CONT. RIDGE VENr. TYP. , ' / I / / 12: 12 MArCH EXIST. ROOFING MATCH EXIST. ROOFiNG .TYP. I r I -=- -=- -=- -=- -=- ...:j ~ EXISTING CHIMNEY _ AOll~NT~TO~TROOF ~ EXlSTlNG~MNEY_ I . ~ ~ m EXISnNGBl12 :'2 KI!EP EXIST. FASCIA BRO. CLNG. ~ ~ ;! cO ~ ~!ll~m~ I ,~~~I '_~~ I r'Tll t,' ,-,i,; ii i"~ :-"'l!.ll~ mm i.1 ~II:J I I . I I 1111 lOFL rr- LNG: 7 i1:"r b 10 E T. FL :.f.-~ \ '" I.JOISTS ~l elL I I I; 'T'l"": /1 '" WOOD OR COMPOSITE COLUMNS STONE WI:!" CONC. CAP "" I I I ~ -=-.J REPLACE EXIST. DOOR AND ADD SIDE.UTES y ADD FORCH I ~ -=-~ S! ~ .... ~- -'DO ceNT. RIDGE VENT TO' EXIST. ROOF.. TYP. FLAT ROOF COVERED BT MEMBRANE SYSTEM CUL TUREO STONE TO MATCIi NEW PORCH EXIST. 8112 : t2 CRICKET ..@ CLNG. A. ,F. ~ ~ -~ A. .. ~ ~ / .. ~ B.O.JOISTS ~ ~ ~ n I I ~,- '::::--Y- T.O. SLAB~ /MEMBRANE RDO~G SYS. ON FLAT ROOF '\ CONT. RIDGE VENT. TYP. ...... ,. / / ". " VERBURGT HOME 5310 ELM RIDGE CIRCLE SHOREWOOD, MN 55331 =:\f''-T'J ui.T'cH~. ROOFING I 131/. :12 d$~ , , ~ , , ~ .' , I ~ MATCH EXlST. RAKE CETAll., TYP ~~J ~ IlliJ~\'mlm~ ~ 'Pi 'Pi Ii i I ~il;&~~;I~~~\g MATCH EXIST, ROOFING 12: 12 , \ , 11:1~*, ~ .' 1-llIli,- """'2: '2 1.'111 -12: 12 IlJ), , IT~J . I ; , , , / ., , I ,,' .~ ~ I I , I 'I'-" I~" I n I 'I 1'-" II 1 I I I n I , I U , In I I 4 1'1 E C I I , c::=:::J t\ c::=:::J Ii , I I iii i II , I .1 ... ' I I I I I I I r;yr 0: I ~ ~ IT IT ~ST. ~ I ~ IT ~ Ct .1 I ~~' I , 1.1 PATCH TO EXIST. SIDIN~ I MATCH EXIST. CORNER TRIM SOARO I L_______________~__________~ - - - - - - - - - - - - - - - - -1- _ _ _ _ _ _ _ __ ------------------------------ Proposed Elevations 1/8" = 1'-0" -1.. -~ .. . MASTER SUITE FLOOR IS 7' ~ ~I =-~- ~ I, 2ND FL .. GAR""\' Cf:~1t CEIUNG X " . MATCH EXIST. .,., I EAVE RETURN ~I 10' -----L- GARAGE FL do T.O. SLA8 ...' I Exhibit F BUILDING ELEVATIONS ~ CITY OF SHOREWOOD RESOLUTION NO. A RESOLUTION GRANTING A CONDITIONAL USE PERMIT FOR ADDITIONAL ACCESSORY SPACE TO TOM AND TINA VERBURGT WHEREAS, Tom and Tina Verburgt (Applicants) are the owners of real property located at 5310 Elmridge Circle, in the City of Shorewood, County of Hennepin, legally described as: "Lot 3, Block 1 Elm Ridge, Hennepin County, Minnesota"; and WHEREAS, the Shorewood City Code requires a Conditional Use Permit for the construction of accessory space exceeding 1200 square feet; and . WHEREAS, the Applicants have applied to the City for a Conditional Use Permit for the construction of an attached garage which will have approximately 1325 square feet; and WHEREAS, the Applicants' request was reviewed by the City Planner, and his recommendations were duly set forth in a memorandum to the Planning Commission dated 29 < December 2004, which memorandum is on file at City Hall; and WHEREAS, after required notice, a public hearing was held and the application was reviewed by the Planning Commission at their regular meeting on 4 January 2005, the minutes of which meeting are on file at City Hall; and . WHEREAS, the Applicants' request was considered by the City Council at their regular meeting on 24 January 2005, at which time the Planner's memorandum and the minutes of the Planning Commission were reviewed and comments were heard by the Council from the City staff. NOW, THEREFORE, BE IT RESOLVED by the City Council ofthe City of Shorewood as follows: FINDINGS OF FACT 1. The total area of accessory space (1325 square feet) does not exceed the floor area above grade of the principal structure (2208 square feet on the main level alone). 2. The Applicants' lot contains approximately 57,350 square feet of area, and that the total area of accessory space on the property will not exceed 10% of the minimum lot area for the R-1AJS Zoning District in which it is located (4,000 square feet). 3. The design and materials of the garage are compatible with the architectural character of the existing home. -1- . . 4. The proposed garage complies with all setback requirements for the R-IAJS District. CONCLUSION 1. That the application of Tom and Tina Verburgt for a Conditional Use Permit as set forth herein above be and hereby is granted. 2. That this approval is subject to the following: a. The proposed garage will be used strictly for purposes of a residential nature. b. The Applicant is hereby advised that the City Code provides specific regulations relative to home occupations and any future use ofthe garage for other than allowable residential purposes would have to comply with such regulations. 3. That the City Administrator/Clerk is hereby authorized and directed to provide a certified copy of this Resolution for filing with the Hennepin County Recorder or Registrar of Titles. ADOPTED BY THE CITY COUNCIL of the City of Shore wood this 24th day of January 2005. ATTEST: Woody Love, Mayor Craig W. Dawson, City Administrator/Clerk -2- .. CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD · SHOREWOOD, MINNESOTA 55331-8927. (952) 474-3236 FAX (952) 474-0128- www.cLshorewood.mn.us - cityhall@cLshorewood.mn.us MEMORANDUM DATE: January 19, 2005 TO: Mayor and Council Members Craig W. Dawson, City Administrator/Clerk Lb Making Appointments to Certain Offices and Positions within the City of Shorewood for the Year 2005 . FROM: RE: At the Council Work Session earlier this evening, Council reviewed and discussed the various appointments to be made for the year 2005. This item requires Council make a motion to adopt a resolution making the Year 2005 appointments to certain offices and positions within the city. Attached is a Draft Resolution making Year 2005 appointments. Council Action: . Adopt a Resolution making Appointments to Certain Offices and Positions within the City of Shorewood for the Year 2005. n ~J PRINTED ON RECYCLED PAPER # 9/1 OJ CITY OF SHOREWOOD RESOLUTION NO. 05- A RESOLUTION MAKING APPOINTMENTS TO CERTAIN OFFICES AND POSmONS WITHIN THE CITY OF SHOREWOOD FOR THE YEAR 2005 WHEREAS, it has been the policy of the Shorewood City Council to make annual appointments to fill certain offices and positions within the City government at the beginning of each year. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Shorewood as follows: 1. That the following persons are appointed to the following offices and positions until the 2005 City Council organizational meeting: . Acting Mayor: Council Representatives to: a. Park Commission Liaison: January - June 2005 July - December 2005 b. Planning Commission Liaison January - June 2005 July - December 2005 c. Liquor Stores Committee: & d. Minnehaha Creek Watershed District Liaison: e. Riley Purgatory Bluff Creek District Liaison: fLake Minnetonka Cable Commission: g. Association of Metro Municipalities: h. Alternate Association of Metro Municipalities: i. Coordinating Committee South Lake Minnetonka Police Department: Mayor J. Alternate to Mayor on Coordinating Committee South Lake Minnetonka Police Department: Acting Mayor k. Excelsior Fire District Board Member: 1. Alternate Excelsior Fire District Board Member: m. Liaison to Friends of the Southshore Center Board: . . t City Attorney: Tim Keane, Leonard, Street and Deinard City Prosecutor: Ken Potts Emergency Preparedness Director: SLMPD Police Chief Bryan Litsey Official Depositories: Beacon Bank. 4M Fund & other Depositories as necessary Official Newspaper: . Notices may also be published in the Laker. Weed Inspector: Mayor Woody Love Assistant Weed Inspector: Joe Lugowski 2. That the Blanket Bond (Official Bonds) is approved. . 3. That such appointments shall take effect on the date hereof and shall continue for the remainder of the year or until such time as a successor is appointed by the City Council. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 24th day of January, 2005. Woody Love, Mayor ATTEST: . Craig W. Dawson, City Administrator/Clerk r . CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD · SHOREWOOD, MINNESOTA 55331-8927 · (952) 474-3236 FAX (952) 474-0128' www.ci.shorewood.mn.us. cityhall@ci.shorewood.mn.us MEMORANDUM DATE: January 19, 2005 . TO: Mayor and City Council Craig W. Dawson, City Administrator ~ Appointments to the Minnetonka Community Education and Services (MCES) Board; Lake Minnetonka Communications Commission (LMCC) Board; and the Lake Minnetonka Conservation District (LMCD) FROM: RE: Appointments of Representatives to the Minnetonka Community Education and Services (MCES) Board, the Lake MinnetonkaCommunications Commission (LMCC), and the Lake Minnetonka Conservation District (LMCD) are typically done in January. The City has advertised these volunteer board opportunities to residents. The current representatives are: . MCES: LMCC: LMCD: Tad Shaw, 5580 Shore Road Patrick Hodapp, 26195 Shorewood Oaks Drive Tom Skramstad, 28020 Woodside Road (current Chair ofLMCD) The Minnetonka School District has reorganized Community Education. It is requesting that the City's representatives to the Advisory Board be a member of the Council, Staff or an active, interested resident. The three representatives have each expressed an interest in continuing to serve on their appointed board/committee. As no other candidates have contacted the City regarding these volunteer positions, Council may consider adopting the Resolutions appointing the current representative. Draft resolutions are attached. ft ~~ PRINTED ON RECYCLED PAPER #98 ~ MCES, LMCC and LMCD Appointments January 19, 2005 Page Two Council Action A motion to adopt the following Resolutions: A) A Resolution making an appointment to the Minnetonka Community Education and Services Board; B) A Resolution making an appointment to the Lake Minnetonka Communications Commission; and C) A Resolution making an appointment to the Lake Minnetonka Conservation District . . MEMORANDUM DATE: TO: . FROM: RE: CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD. SHOREWOOD, MINNESOTA 55331-8927. (952) 474-3236 FAX (952) 474-0128 · www.cLshorewood.mn.us. cityhall@cLshorewood.mn.us January 19, 2005 Mayor and City Council .~ Jean Panchyshyn, Deputy Clerk ~{' Message from Tad Shaw regarding Minnetonka Community Education and Services (MCES) Board Appointment I spoke with Mr. Tad Shaw of 5580 Shore Road, regarding his interest in serving on the Minnetonka Community Education and Services (MCES) Board. Mr. Shaw did indicate he would be willing to serve as Representative on the MCES Board for 2005. . n ~.1 PRINTED ON RECYCLED PAPER Sent By: Exce1Tech; (8::i2) 474-1288; Jan-18-0::i 8:44AM; Fage 1/1 Patrick J. Hodapp 26195 Shotl.7wood Ollkll Drive Shorewoud, MN 5S331 (952) 474~2489 phodapo@excel~hs.com January 19,2005 City of Shore wood Attn: City Council 5755 COWltry Club Road Shorewood, MN 55331 . RE: Shorewood, MN LMCC Repr~elltative City Council: I am writing this letter to affirm that I am willing and interested to conlinue as Shorewood'll representative on the LMCC. Please let me know if you have any questions or concerns. Best Regards, ~~,-,_.. ~'''-'. c.\. -, .. --.........: ' - Patrick J. Hodapp (952) 474.2489 phodapp~e7tceltechs_com . t Jean Panchyshyn From: Sent: To: Subject: Tom Skramstad [toms@mr.net] Wednesday, January 12, 200510:34 PM Jean Panchyshyn LMCD appointment Hi Jean, Craig told me I should send a message that I am interested to serve again on the LMCD Board, representing Shorewood. So this is that message. As you may know, I have served on the LMCD Board for 5 years now, the last one as the Chair. Prior to that I served on the Shorewood Planning Commission. Tonight I was re-selected as the Board Chair for 2005. If you need more information on this, please let me know. Craig said that the Council would be deliberating on this appointment on January 24th and that I would not likely have to come for an interview. I hope that an interview is not necessary, as I am very busy on a new merger at work. If I must come and be interviewed, let me know and I will make it. I hope all is well with you. ~~m Skramstad 28020 Woodside Excelsior, MN 952-474-5374 toms@mr.net Road 55331 . 1 ) CITY OF SHOREWOOD RESOLUTION NO. 05- A RESOLUTION MAKING AN APPOINTMENT TO THE MINNETONKA COMMUNITY EDUCATION AND SERVICES (MCES) ADVISORY BOARD WHEREAS, the City of Shorewood annually appoints a Shorewood resident to serve as City Representative on the MCES Advisory Board; and WHEREAS, the City advertised this volunteer board opportunity for appointment to said Advisory Board; NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Shorewood hereby appoints Tad Shaw as City Representative on the Minnetonka . Community Education and Services (MCES) Advisory Board for the year 2005. ADOPTED BY THE CITY COUNCn.. OF THE CITY OF SHOREWOOD this 24th day of January 2005. Woody Love, Mayor ATTEST: Craig W. Dawson, City Administrator/Clerk . CITY OF SHOREWOOD RESOLUTION NO. 05- A RESOLUTION MAKING AN APPOINTMENT TO THE LAKE MINNETONKA COMMUNICATIONS COMMISSION (LMCC) WHEREAS, the City of Shorewood annually appoints a Shorewood resident to serve as City Representative on the LMCC Board; and WHEREAS, the City advertised this volunteer board opportunity for appointment to said Board; . NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Shorewood hereby appoints Patrick Hodapp as City Representative to the Lake Minnetonka Communications Commission (LMCC) Board for the year 2005. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 24th day of January 2005. Woody Love, Mayor ATTEST: Craig W. Dawson, City Administrator/Clerk . " I CITY OF SHOREWOOD RESOLUTION NO. 05- A RESOLUTION MAKING AN APPOINTMENT TO THE LAKE MINNETONKA CONSERVATION DISTRICT WHEREAS, the City of Shorewood appoints a resident to represent the City on the Lake Minnetonka Conservation District; and WHEREAS, the City advertised this volunteer board opportunity for appointment to said Board; NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Shorewood to hereby appoint Tom Skramstad to represent the City of Shorewood on the . Lake Minnetonka Conservation District effective February 1, 2005 through January 31, 2006. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 24th day of January, 2005. Woody Love, Mayor ATTEST: Craig W. Dawson, City Administrator/Clerk . . \ , " CITY OF SHOREWOOD, MINNESOTA ADMINISTRATIVE PROCEEDINGS, JANUARY 26,2005 AGENDA ITEM NO. 5A RECE\VED In re Ron Johnson, petitioner. Jp..N 2, 4 2005 C\1'f Of SHOREWOOD PETITION FOR RELIEF IN REBUTTAL TO CITY STAFF REPORT RELIEF REQUESTED Redact the "sump pump penalty" item on the City's current utility bill sent to petitioner, Johnson, and issue amended billing. Addendum 1. In the alternative, retain the item but remit to Johnson the same amount multiplied by the number of homes having sump pump water disposals to City sewers the City disposes of on Johnson's property without just compensation, the crux of the matter. The zero payment of condemnation damages was indicated by former Mayor Dahlberg - - who was in power at the time to know and who took responsibility toward fixing problems in lieu of payment - - Addendum 2; confirmed by Judge Burke, Addendum 3; and the Minnesota Attorney General, Addendum 4. He determined IRS Form 1099 the City filed on taxable proceeds of a condemnation sale of land was not and voluntarily dismissed the Commissioner's 1998 back tax claim on the 1099. To say the least, the Attorney General was not happy, obviously, defending a specious Tax Court claim on the City's 1099. REBUTTAL TO CITY STAFF REPORT 5A In Agenda No. 5A report, City staff correctly cited the U.S. Const. First Amend. giving the City Council jurisdiction. On the other hand, the Fifth Amend. provides that: "No person ...... be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensation. " First, note City staff refers to the billing item as a "surcharge" or a "charge" implying the City is passing on a cost it incurred; not so, the billing statement labels the item a "penalty". It can't be both so the billing itself is arbitrary and capricious violating the Fifth Amendment and must be retracted. This is not hyPer...technical. By use of the term "penalty", City staff sought to get around another Fifth ,Amend. provision as follows. The Minnesota Supreme Court stated that the just compensation requirement is: "absolute, precedent to the constitution itself, inherent without recognition therein; and no attempt to deprive the citizen of this incontestable right could be tolerated in any system of free government." 1 . State ex reI. Ryan v. Dist. Ct. of Ramsey County. 91 N.W. 300,302 (1902). However, on December 19,2003 the current City Attorney} stated: "As we know too well, it does not take much government action in Johnson's world to get twisted and contorted into a new cause of action." E-mail communications, Addendum 5b. However, the U.S. Supreme Court stated that: All physical invasions of private property constitute compensable takings "no matter how minute the intrusion, and no matter how weighty the public purpose behind it." Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441 (1982). The principal that for every right there should be a remedy is venerable. Marbury v. Madison, 5 U.S. 137, 162-63 (1803). City staff in its own isolated "world" apart from reality just doesn't get it. Ifnot this council or the courts, the fmal arbiter of the sump pump dispute was our founding fathers who envisioned and prohibited, generally, the City's conduct complained of here under their Fifth Amend. When Shorewood enacted City Code 904.09 - - dubbed the sump pump ordinance - - the City had to pay Johnson just compensation; 10 years later the City still has not; and, the collective public sump pump water disposals, formerly to the sanitary sewer system, for the past 10 years the City dumped on Johnson's farmland. These uncompensated takings - - constitutional violations - - are the touchstone of the sump pump cases. Former Mayor Thomas Dahlberg stated, in his opinion this will become clear "if and when the case migrated to a constitutionally focused court". Addendum 2. It is City staff, not Johnson, who engaged in the hypocrisy of elevating the constitutional question down to lame rationalizations. But even those are unlawful under the state statute City staff a~serts enabled the ~~charges" or "surcharges" (obviously not the "penalty"). The statute requires the item be "just and equitable". Judge Burke's footnote 1, Addendum 3; case law cited by the City, Addendum 6, 7. The "inspection" is irrelevant. Asking Johnson to do something the City constitutionally is prohibited from doing in the first instance is also unconstitutional. Fourteenth Amend. City staff implied the City won all the cases; that said, then goes on to say the surcharges assessed were not special assessments (requiring a cost benefit accounting) when both Judge Burke and Hennepin County, the City's tax dept. (Addendum 8), stated the charge was in fact a "special assessment", the basis for the County collecting the assessment. So what is it; a tax "special assessment" or a City fraud on the County? Finally, the immediate past City Council itself was arbitrary and capricious in the matter as Councilmember Scott Zerby stated: I He was rehired by Mayor Love's administration; who Mayor Dahlberg's administration had terminated. 2 j, "Mr. Johnson had created an unwelcome situation by suing him personally in several lawsuits brought against the City, and he would not likely visit Mr. Johnson due to that circumstance." City Council Regular Meeting Minutes of November 8,2004 at 4. Addendum 9. Mr. Zerby would not have gotten himself in the position of being a party to taking had he investigated the matter when ftrst put to inquiry before suit. Not taking any post notiftcation responsibility, Mr. Zerby then2: "questioned whether the City had specifically requested neighboring sump pump discharge[s] be directed onto his land. He stated this was a matter to be taken up between Mr. Johnson and his neighbor, and not the City." Id. The suggestion that Johnson privately levy sump pump public water disposal charges against his neighbors, and others in the 200+ acre watershed served by the City's sewers, is also unconstitutional. The City's charges are takings and conftscatory. Addendum 12. CONCLUSION It is false Johnson did not consent to inspection. He did consent, notwithstanding the City had entered into a written agreement so Johnson didn't have to. Dahlberg Aff.., Addendum 2. But that's not the real issue. The prior City Council took an oath to uphold the U.S. Const. and therefore had a self imposed duty to pay just compensation for the sump pump disposals and a self imposed duty to remand "sump pump penalties" by staff as arbitrary, capricious, unjust and inequitable as a result. Had they paid compensation, their enforcement of City Code 904.09 might have had credence (except for other factors mentioned). Instead, the past City Council, unwittingly or otherwise, supported City staff's fabrications and specious defenses to grind on Johnson in litigation at taxpayers' great expense wasted. i.e., City staff scorched earth policy. There is no defense nor court which can in reality overturn that which is constitutionally mandated. Bottomline, the subject "sump pump penalty" was contrived by City staff to intimidate and deprive Johnson proper access to the courts and the constitutional relief he is entitled to, just compensation. For among the foregoing reasons, the new City Council should remand to the Finance Director with instructions to re-bill Johnson removing the "sump pump penalty". The council should continue the matter of fixing the underlying problems or, in the alternative, pay just compensation for land the City took from Johnson. Dated: /-d./- CJ5 2 Referencing Johnson's photo exhibits, Addendum 10,11 hereof - ~ merely one example of neighbor's swimming pool sump pump discharge hose pipe to City street, hence storm sewer system, and photo of where the collective sewage cut a gully in and across Johnson's lawn he must continually maintain to mitigate in part the damages and damages to his ditch also shown at its upper reaches. 3 j, '< ADDENDUM 1. Shorewood utility bill dated January 6, 2005, noting "SUMP PUMP PENALTY" item. 2. Affidavit of Former Mayor Thomas Dahlberg. 3. Order dated May 21,2004 by then Chief Judge Kevin S. Burke. 4. Attorney General letter dated September 1,2004 to the Tax Court with Proposed Order. 5. Watershed District letter dated January 18,2005 with enclosed e- mail communications. 6. Case Summary, Crown Cork & Seal Co. Inc. v. City of Lakeville, 313 N.W. 2d 196 (Minn. 1981), Lexis 1518 ~ - previously cited by City. 7. Case Summary, Nordgren v. City ofMaplewood, 326 N.W. 2d 640 (Minn. 1982), Lexis 1856 - - previously cited by City. 8. Exhibit A of the City's contract with Hennepin County for tax services. 9. Excerpt of Minutes of City Council Meeting of November 8, 2004. 10. Photo of homeowner's swimming pool discharge hose pipe to City street/storm sewer system. 11. Photo of gully cut in and across Johnson's lawn by collective City north storm sewer sewage dumped on Johnson's land and consequential flooding of his ditch above elevation 914' MSL at its upper reaches. 12. Case summary, Ewert v. City of Winthrop, 278 N.W. 545 (Minn. 1979). 4 .. CITY OF SHOREWOOD PREVIOUS o o o o SUMP PUMP SALES TAX .00 AMOUNT DUE AFTER DUE DATE . o RC o ST o ST o sw MC 856.60 5.25 5.04 6.56 70.00 300.00 PREVIOUS BAL. 386.85 . . LOCATION: -- c ~,i"::.,,',-~);')f: t~ /:, i)L.i\:\i~nc)t\ 05355 SHADY HILLS CIR Presorted First Class U.S POSTAGE PAID PERMIT NO. 128 1111111111111 ACCOUNT NUMBER 0-70S-05355- . . . 1/31/05 . . 833.27 RONALD R JOHNSON 5355 SHADY HILLS CIR SHOREWOOD MN 55331 ;:A~~[ CITY OF SHOREWOOO ','11,11,'" ,II, "II"" HlI'I" 1,1'1 f, f 1"11""" ,11',1" III ;/-ic1 i .. .,.... 11/10/2003 2:12 PM FROM: Fax '1'0: 952-474-0128 PAGE: 001 OF 004 ''- Mohrman & Kaardal, P.A. A Professional Association of Attorneys and Counsellors at Law Suite 4100 33 South Sixth Street Minneapolis, ~nnesota 55402 Telephone: (612) 341-1074 Facsimile: (612) 341-1076 FACSIMILE COVER PAGE To: City of Shorewood Oerk 952-474-0128 From: Erick Kaardal 11/10/20032:12:37 PM Subject: Dear Oerk:\ Ron Johnson asked me to forward to you the enclosed affidavit of Tom Dahlberg in anticipation of tonight's meeting. Please call if you have questions. egk NOTICE - CONFIDENTIAL INFORMATION The information contained in this fax communicatioon is privileged and strictly confidential It is intended solely for the use of the individual or the entity above named. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, any dissemination, distribution, copying or other use of the information contained in this communication is strictly prohibited. If you have received this communication in error, please first notify the sender immediately at the above telephone number of your erroneous receipt and then return this fax communication at once to the sender at the above address either via U.S. Postal Service or by the method of delivery specified by the sender. This facsimile transmission consists of 4 pages. AIJ. 2 ~,.,-' 11/10/2003 2:12 PM FROM: Fax TO: 952-474-0128 PAGE: 002 OF 004 NOV l~ ~~~~ l~:~~ r~ Wr - M.H.D. UrrlC~ ~~~ ~~( (~~~ IU ~ol~~411~(o 1-'.1:11 -l.. , (2. - J 't ( - I () 710 CITY OF SHOREWOOD, MINNESOTA IN YEAR 2003 TAX SPECIAL ASSESSMENT ADMNSTRATIVE PROCEEDINGS City of Shorewood, petitioner, v. .AJ'FIDA VIT OF FORMER SHOREWOOD MAYOR THOMAS DAJILBERG Ronald R Johnson, respondent. STATEOF:MNNESOTA ) )85. COUNTY OF HENNEPIN ) 1. Thomas Dahlberg, being duly sworn on oath, state and allege the following which I have personal knowledge of. 1. During my tenn as mayor, 1997 and 1998, of above-named City of Shorewood ("City'. or c'Shorewood''), I recall reviewing a City hall staff assertion that the above-named property owner. Ronald R. Johnson ("Johnson"), was delinquent in his payment of City utility charges that I found baseless on my personal review of the City's policy. As a result, I took the position thatthe City owed Johnson credits on his utility account . and that the City Council not certify a Hennepin County special assessment on the JOMson utility account. 2. I recall that the major charges OIl the Johnson utility account were quarterly City unearned tCsumppump penalties" imposed by the City hall staff in breach of an expressed signed agreement the City Attorney had entered into with Johnson, To resolve the underlying issue, lrecall recommending a compromise agreement with - """ 11/10/2003 2:12 PM FROM: ~ax TO: 952-474-0128 PAGE: 003 OF 004 NOV l~ ~~~~ 1~:1~ r~ Wr - M.H.D. UrrlC~ ~~~ ~~( (~~~ IU ~ol~~411~(o ~.~~ . .'0 Johnson to have the mayor inspect Johnson's home to simply verify h~ had no sump pump. Although this could have easily resolved the issue. the Council rejected the ~ . proposal. 3. Among other things, 1 found that City hall staff financial accounting of "presumed" Johnson sump pump discharges into the City's sanitary sewer pipes of clear ground and/or storm. water was preposterous and a great City hall hypocrisy. Indeed, as planned and continued by the City hall staff. Shorewood dumps its storm sewage from four (4) major adjoining subdivisions on Johnson's land without easement or other right including in violation of a prior court order that gave rise to the continued Iohnson Case litigation. Under City counoil authorization. I attempted to negotiate .... cOIDl'romise agreements with Johnson to resolve the litigation issues that were irrationally wasting taxpayers' money: 4. Shorewood was unable to wind up the Johnson Case before my term as mayor ended. Things took longer than expected. For example, City contract engineers needed mOnths to prepare necessary and more accurate new aerial topography of Johnson's property and, also, it appeared the City would be forced to condemn easements over certain properties adjoining Jolmson's to provide him the relief the City agreed to. twas disappointed to learn that the new City Council did not exercise leadership to implement the a.greements I had invested significant personal time to achieve with Johnson~ It was always my position that the most cost-effective approach, mitigating the most risk for the City ofShorewoo~ was to settle with Johnson. I always believed . that Johnson had a strong case, which would become especially powerful if and when - '-~". 11/10/2003 2:12 PM FROM: Fax TO: 952-474-0128 - PAGE: 004 OF 004 l'A ~~Id~ l~:l~ r~ Wr - M.H.U. UrrlCc ~O~ ~~( (~Id~ IU ~cl~~411~(c ~.~~ . NOV '" '- -'. the case migrated to a constitutionally focused court. I argued ~t the case would cost more by virtue of defending it, than settling it. Since Jolmson's complaint was more than plausible, and sympathetic from any reasonable constitutional perspective, the _ most just and most pragmatic outoome for Shorewood was immediate settlement. At that time, aliI ohnson was asking for was remediation, estimated at a cost far lower for Shorewood than continued litigation. S. I negotiated agreements with Johnson not only as trustee oftbe wise use of taxpayers' funds but also to comply with a oourt order Johnson had procu'(ed ordering the City to pay Takings Clause compensation to Johnson the City ehose not to pay despite the adjudication his property was taken by the City. To minimize the financial impact on the City and to also stop wasteful litigation I persuaded lohnsonto agree to compromises he did not have to agree to under the court ju.dgment. Subscribed and sworn to Before me this _ day of November, 2003. FURTHER YOUR AFFIANT SAYETH NAUGHT. NOTARY PUBLIC ~~ TflTAI PAGE.03 ** ..... f'f) ~. ~ I I 1 App.l STATE OF MINNESOTA COUNTY OF HENNEPIN DISTRICT COURT FOURTH JUDICIAL DISTRICT Ronald Richard Johnson, Petitioner, v. ORDER (Filed May 21, 2004) City of Shorewood and its mayor, Woody Love, Council members, Scott Zerby, Laura Turgeon, Christine Lizee, and John Garfunkel and Court File No. AP 03-9W9~20830 Hennepin County, Minnesota, Respondents. . The above-entitled matter came before the Chief Judge, Kevin S. Burke, appearing for the Honorable Arm L. Alton, on April 13, 2004, at the Hennepin County Government Center in Minneap,olis, Minnesota, on Peti- tioner's Motion for Statutory Procedural Relief. Appearances were made as follows: Ronald Johnson, pro se, appeared personally. Kimberly B. Kozar, Esq. appeared on b~half of Respondent, City of Shorewood and its mayor, Woody Love, Council members, Scott Zerby, Laura Turgeon, Christine Lizee, and .john Gar- funkel. Lisa Hahn-Cordes, Esq. appeared on behalf of Robert T. Rudy, Attorney for Respondent, Hennepin County, Minnesota. Based upon all the files, records and proceedings herein, together with argument of counsel, the court makes the following: . ;P~tl=?:?'?:~~:::::::-~0:": '~'::~::'::~.-';'~7-:~i:-:'~":f:.<:::~~"""~:,,"-,:,,:":""-"~7..,d'~~ " "'-_:'''''', .~. _ ',_ ";":,",:-"n-.".." ,. '~_""_'~____ .. ,. , ...... App.2 App.3 ORDER .. City Ordinances S 904.092 is a special assessment within the meaning of Minnesota Statutes S 429. A hearing was conducted by the'undersigned on April 13, 2004. In short, the petitioner appealed the City Council's decision to certify Petitioner's delinquent surcharges as a special assessment. Petitioner has requested that the City turn over the hearing record. The City has not turned over the 1. Defendants' City of Shorewood and Hennepin County, Motion to Stay the proceeding is hereby DENIED. 2. Petitioner's Motion for Statutory Procedural Relief is hereby GRANTED. 3. The attached memorandum is hereby incor- porated. Date: May ll, 2004 i BY THE COURT: Isl Kevin S. Burke Kevin S. Burke Chief Judge, Fourth Judicial District charges to the municipality or county itself for the use and availability of the facilities for fire protection, for maintain- ing sanitary conditions, and for proper storm water drain- age in and for public buildings, parks, streets, and other public places. . . 2 City of Shore wood Ordinance ~ 904.09, states in relevant part: Subd. 1. Prohibited Connections: No person shall discharge or cause to be discharged, directly or indirectly, any storm water, surface water, ground water, roof runoff; subsurface drainage, or cooling water to any sanitary sewer. Any per- son having a roof drain, sump pump, unauthorized swim- ming pool discharge, cistern overflow pipe or surface drain connected and/or discharging into the sanitary sewer shall disconnect and remove any piping or system conveying such water to the sanitary sewer system. Subd. 2. Authority to Inspect: Every person owning im- proved real estate that discharges into the City's sanitary sewer system shall allow inspection by authorized City em- ployees or its agents, as deemed appropriate or authorized by the City Council, of all properties or structures connected to the sanitary sewer system to confirm there is no sump pump or other prohibited discharge into the sanitary sewer system, The authority to conduct further inspections on a property under this section shall lapse upon a determina. tion that the property is in compliance with the requirel ments of this section. Subd. 5. Surcharge: A surcharge set by an ordinance passed by the City Council is hereby imposed and shall be added to every utility billing to properties not in compliance with this Chapter. The surcharge shall be added to every quarterly utility billing until the property is in compliance. MEMORANDUM Procedural History The issue before this court is whether the City' of Shorewood's ("the City") sump pump surcharge, pursuant to Minnesota Statutes S 444.0751 and City of Shorewood 1 Minn. Stat. ~ 444.075, subd. 3, states in relevant part: To pay for the construction, reconstruction, repair, enlargement, improvement, or other obtainment and the maintenance, operation and use of the facilities, the gov- erning body of a municipality or county 1ll.ay impose just and equitable charges for the use and for the availability of the facilities and for connections with them and make contracts for the charges as provided in this section... . The governing body may make the charges a charge against owner, lessee, occupant or all of them and may provide and covenant. for certifying unpaid charges to the county auditor with taxes against the property served for collection as other taxes are collected. The governing body may fix and levy taxes for the payment of reasonable (Continued on following page) . . ., ~ App.4 App.5 complete hearing record. The petitioner now brings this present motion to compel the disclosure' of the complete , record from the hearing pursuant to Minnesota Statute S 429.081 (2004). The City and Hennepin County moved to stay the proceeding pending the outcome of the Minnesota Supreme Court review. The City argues that the charges are not special assessments and therefore Petitioner is not entitled to a record. Alternatively, the City argues that there is no "record" to produce. Hennepin County argues that sump pump charges are special assessments and therefore Petitionerjs entitled to a record. ' I Claims ordered the petitioner to propose a supplement to his complaint and the appeals were affirmed. Facts This case and the relationship of the parties have a rather litigious history. In 1991, Ronald R. Johnson, the petitioner, was awarded damages against the City of Shorewood to compensate him for a taking by the City when they constructed a drainage facility. The City did not pay the petitioner's damages. Although, the petitioner and the City ultimately enacted a settlement agreement, the city of Shorewood breached this agreement by not paying the petitioner. In 1999, the petitioner brought an action against the City of Shorewood. Judge Peter Lindberg, ruled in favor of the petitioner on the breach. of contract claims, but dis- missed the taking claims without prejudice. In May 2000, the petitioner filed an action in the U.S. District Court against the City, the U.S. government and other defen~ dants on the taking claims. These claims were dismissed. The petitioner then filed claims in the Court of Federal Claims and subsequently filed several appeals with the U.S. Eighth Circuit Court of Appeals. The Court of Federal .. The petitioner filed an action, similar to the present motion, in Hennepin County District Court against the City and Hennepin County with respect to certification of sump pump charges. The petitioner asserted that the City Ordinance authorizing the charges was unenforceable and alternatively that he was in compliance with the City Ordinance. Summary Judgment was entered in favor of the City and Hennepin County. The petitioner appealed to the Minnesota Court of Appeals. The Court of Appeals affirmed the District Court's entry of summary judgment. On March 19, 2004, the petitioner filed a petition for review to the Minnesota Supreme Court. i l On August 23, 1993, the City of Shorewood adopted Ordinance No. 277, codified as City Code of Ordinances S 904.09. It addressed the city wide p:t'oblem of individual property owners pumping their sump pump discharges into the municipal sanitary sewer system. City Ordinance S 904.09 prohibits discharge of sump pumps into -the sanitary sewer system, and gives authority to the City for inspection of all properties connected to the sanitary sewer system in order to ascertain compliance. Persons who do not comply with the inspection requirement are charged a $100 per month surcharge. The City maintains its sanitary sewers by requiring an inspection of properties in order to ascertain whether all properties are in compliance with its ordinance S 904.09. Within its maintenance procedure, the City charges a surcharge, pursuant to S 444.075, to property owners that are not in compliance with the City's code. App.6 App.7 The petitioner, owns property at 5355 Shady Hills Circle, Shorewood, Hennepin County, Minnesota. He refused to allow the City to inspect his property for com- pliance with S 904.09. As a result, the City charged him a monthly surcharge of $100 pursuant to S 904.09. The petitioner refused to pay the City's monthly surcharges and in turn the City sent the Petitioner a notice of delin- quency on August 29, 2003. On October 20, 2003, the petitioner received a notice of a hearing to be held on November 10, 2003, before the City Council whereby the City would decide whether to certify the petitioner's delinquent monthly surcharges as special tax assessments. At the hearing, the City passed a resolution certifying the petitioner's delinquent monthly surcharges to" the Hennepin County Special Assessment Division for collection. Hennepin County added the peti- tioner's delinquent monthly surcharges as well. as admin- istrative charges as a special assessment to the petitioner's property tax payable in 2004. On December 9, 2003, the petitioner appealed the City Council's November 10, 2003, decision to certify the ) petitioner's delinquent surcharges as a special assessment. The petitioner has requested that the City turn over the November 10, 2003 hearing record. The City has not turned over the complete hearing record. The petitioner brings the current motion to compel the disclosure of the complete record from the November 10, 2003, hearing pursuant to Minnesota Statute S 429.081 (2004). does not have to provide the petitioner with a "record" pursuant to S 429.081. However, Hennepin County argues" that Minn. Stat. S 444.075, subd. 3, and the City Ordi- nance S 904.09 give the City the authority to bill and charge the petitioner the sump pump surcharges. Once the charge is certified and included in the home owner's property tax, then the charge is treated and collected as a special or local assessment under Minnesota Statute S 429. Discussion "A special assessment is a tax, intended to offset the cost of local improvements such as sewer, water and streets, which is selectively imposed upon the beneficiaries." Dosedel v. City of Ham Lake, 414 N.W.2d 751, 755 (Minn. Ct. App. 1987). The fee must pass the local council board (certifica- tion) before the fee can be taxed to the property owner. See Minn. Stat ~ 276.03 (2004). Once the fee is certified, the :municipality turns over the fee to the county auditor for collection along with the parcel owner's property taxes. See id. Special or local assessments are based on the cost of an "improvement" to a property. Minnesota Statute S 429.011, subd. 5 (2004) states in part, "'Improvement' means any type of improvement. made under authority granted by section 429.021 . . . " Minnesota Statute S 429.021, subd. 1(2) (2004) states: The City argues that the delinquent surcharges are utility charges' and not "special assessments" under Minnesota Statutes S 429 because the surcharges are not for public improvement. As such, the City argues that it The council of a municipality shall have the power to make the following improvements: . . . (2) To acquire, develop, construct, reconstruct, extend, and maintain storm and sanitary sewers and systems, including outlets, holding areas and ponds, treatment plants, pumps, lift stations, service connections, and other appurtenances of _ ,-'",'~~J':".,,_._ App.8 a sewer system, within and without the corpo- rate limits. Minnesota law very broadly defines "Improvement." Under these sections, "improvement" includes "maintain- ing" sanitary sewers and systems. The sump pump sur- charge is part of maintaining the City's sanitary sewer system and is considered an "improvement" under Minne- sota Statutes SS 429.11, subd. 5 and 429.021, subd. (2). Therefore, the City's surcharge, that was certified and given to the county auditor for collection, is a special or local assessment under Minnesota Statute S 429. The Minnesota legislature has created a procedure to challenge special or local assessment, under Minnesota Statues S 429.081. It states in relevant part: Within 30 days after the adoption of the assess- ment, any p~rson aggrieved, who is not precluded by failure to object prior to or at the assessment hearing . . . may appeal to the district court by serving notice upon the mayor or clerk of the municipality. . . The municipal clerk shall fur- nish appellant a certified copy of objections filed in the assessment proceedings, the assessment roll or part complained of, and all papers neces- sary to present the appeal. . . Therefore, an aggrieved person is entitled to a record of the decision to certify the assessment, including objections and other papers necessary for the appeal. In the present case, the petitioner is entitled to a copy of the record of the City's decision to certify the delinquent surcharges as assessments. K.S.B. '/' \ OFFICE OF THE ATTORNEY GENERAL STATE Oi=M:INNESOTA MIKE HATCH ATTORNEY GENERAL September 1, 2004 The Honorable George W. Perez Chief Judge of Tax Court 245 Minnesota Judicial Center 25 Rev. Dr. Martin Luther King Jr. Blvd. St. Paul, MN 55155 Re: DeeNelda L. Johnson & Ronald R. Johnson v. Commissioner of Revenue Tax Court Docket No. 7457-R Dear Chief Judge Perez: Nel TOWER.sum 1100 445 MINNESOTA STREET ST.I'AUl.MN 55101.2128 TELEPHONE: (651)296-3421 Enclosed per your request is a proposed Order fot Judgment in the above-captioned matter. I hope the proposed Order meets with the Court's approval. Very truly yours, BRADFORDS.DELAPE A Assistant Attorney General (651) 296-0987 Enclosure AG: #1283850-vl If/J~ 4 An Equal Opportunity Employer Who Values Diversity Facsimile: (651) 297-8265. TrY: (651) 296-1410. Toll Free Lines: (800) 657-3787 (Voice), (800) 366-4812 (TrY). www.ag.state.mn.us o Printed on 50% recycled paper ( ) 5% post consumer cont , . .. . :. STATE OF MINNESOTA TAX COURT COUNTY OF HENNEPIN REGULAR DIVISION DeeNelda L. Johnson and Ronald R. Johnson, Docket No. 7457-R Appellants, ORDER FOR JUDGMENT vs. Commissioner of Revenue, Appellee. The Honorable George W. Perez, Chief Judge of the Minnesota Tax Court, heard this matter on September 1, 2004, via telephone conference call. Appellants appeared pro se. Bradford S. Delapena, Assistant Attorney General, represented the Appellee, the Commissioner of Revenue. The parties have stipulated to the entry of this Order. ORDER Appellants owe no additional tax, penalty or interest pursuant to the Commissioner Of Revenue's Notice of Assessment dated March 12, 2002, assessing Appellant Ronald R. Johnson $15,481.12 in tax, penalty and interest for the State individual income tax period ended December 31, 1998. ( KREBSBACH~HAIK Your legal resource. January 18, 2005 Mr. Ronald Johnson 5355 Shady Hill Circle Shorewood, MN 55331 Re: Data Practices Request - January 5, 2005 - Supplement Dear Mr. Johnson: The District received your letter dated January 14,2005. It requests new documents not included in your original data practices request of January 5th. The District considers it a second and separate request and will respond accordingly. With regard to your first request, item #9 of the District's response included two letters dated March 10,2004 from Jerry Rachel of Viet & Company, but apparently you only received the one regarding Lake Susan. Further, in reviewing your most recent request, there was an e- mail that was responsive to item # 1 in your original request that should have been included too. Accordingly, enclosed please find the following: 1. An e-mail dated Friday December 18,2003. 2. Jerry Rachel, Veit & Company, letter to Robert Obermeyer, Barr Engineering, dated March 10, 2004 regarding Waterford. Sincerely, KREBSBACH AND BAlK, LTD. B~~ Louis A. Haik Enclosures (2) cc. Board of Managers (w/o enclosures) Robert Obermeyer j/-jj, 5 tJ- i jHN-l~-~~~ lS:~4 HH~~ ~Nu!Ne~~!Nu ~~~~S;'{db~l t-'.~~ Message " Page 1 of2 .r Earl Bancroft From: Bob Obermeyer Sent: Friday, December 19, 200310:28 AM To: Earl Bancroft Cc: 'louis Haik' Subject: FW: FW to .Robert Obermeyer - I c;rJp dp vJ~ rj, ~. Earl: Regarding the Waterford Plan that I gave you, have Jake plot the property lines on the grading plan to show the City property and Johnson's property to the north. Add a statememnt to the notes highlighting that the contractor cannot even come close to the north property line. Bob ---Original Message--- From: Keane, Timothy J. [mallto:tkeane@larkinhoffman.com] Sent: Friday, December 19, 2003 10:24 AM To: LBrown Cc: Bob Obenneyer Subject: RE: FW to Robert Obermeyer Larry- Please make sure Bob understands that under no circumstances should pond work touch or disturb Johnson's property. The specs must reflect this as well. We should verify the language before the specs go out. As we know too well, it does not take much govemmental action in Johnson's world to get twisted and contorted into a new cause of action. Thanks. TJK --.Original Message---- From: LBrown [mailto:lBrown@d.shorewoocl.mn.us] Sene,Thursday, December 18,20032:48 PM To: askbarr@barr.tom.. Cc: Keane, llmothy J. SUbJect: FW to Robert Obermeyer Bob: longtime no talk. This e-mail is In response to your phone message regarding excavation of the Waterford Pond near the Johnson Property~ Send me whatever plan you have, and a memo stating what the project j'nvolves. I will place this on the. City Council agenda for discussion on January 12th. Let me know if this works for your. timelfne. . . I don't expect any adverse discussion. Fairly routine. Larry Brown Director of Public Works City of Shorewood ~ 5'6 "/': Get a Docwnent - by Citation - 313 N,W.2d 196 Service: Get by LEXSEE@ Citation: 313 N.W.2d 196 Page 1 of8 313 N. W.2d 196, *; 1981 Minn. LEXIS 1518, ** Crown Cork & Seal Company, Inc., etc., Appellant, v. City of Lakeville, etc., Respondent Nos. 51327, 51578 Supreme Court of Minnesota 313 N.W.2d 196; 1981 Minn. LEXIS 1518 December 11, 1981 PRIOR HISTORY: [**1] Appeal from District Court, Dakota County; Hon. Robert Breunig, Hastings 55033, Judge. DISPOSITION: Affirmed. CASE SUMMARY PROCEDURAL POSTURE: Plaintiff corporation appealed a judgment from the District Court of Dakota County (Minnesota), which granted defendant City's motion for summary judgment finding that a sewer connection charge was proper under Minn. Stat. 9 444.075, subd. 3 and Minn. Stat. 9 473.519. r( ;~ OVERVIEW: The corporation constructed larger service lines to connect to the City's facilities. The City imposed a service charge and the corporation objected, arguing that the charge was arbitrary. The corporation filed suit seeking to prohibit the imposition of the charges. The City filed a motion for summary judgment, which was granted. On appeal, the court affirmed. The court held thatthe City clearly had thJUluthorlty to p~~ on to users of municipal sewer~s the sewer availability charges p~~_~ythe City. The City could recoup these costs by imposing use, availability, and/or conn_ec!i~n ~~?rges_~_utho[g~QJ).Y Minn. Stat. 9 4~1&7_~ meal1S of s ecial assessments. Second, the court held that the additional charge by the City for the onnec 10 a so proper based on the Lakeville, Minn. Res. 77-48. The court rejected the argument that the corporation was exempt because the previous owner had paid connection charges. The assessment was made for the new connection permit and it was irrelevant that previous assessment was made and paid. < OUTCOME: The court affirmed. CORE TERMS: sewer, water, municipal, municipality, formula, sewage, estimated, connected, user, discharged, metropolitan, waste, gallons, levied, local government, recipient, allocated, governing body, water use, supervising, calculating, equitable, disposal, trunk, proportionate share, local governmental, statutory scheme, factual issues, reasonableness, disputed LexisNexis (TM) HEADNOTES - Core Concepts - . Hide Concepts Governments> Public Improvements> PUblic Imorov~ments GenerallY~ +~ Governments> Public Imorovements > Assessments ''l!!! A.I!, ,'~ .../retrieve? m=4hcRdhrlfrll fh421 flfQ?741411 fl'l(b747 Xrr.!::Vl"=lpXrr.f(\rn1=hvrit~ti(\nRr fintdr=liU tl/l1/Otl \ Page lof4, Service: Get by LEXSEE@ Citation: 326 N.W.2d 640 326 N. W.2d 640, *; 1982 Minn. LEXIS 1856, ** In the Matter of the Appeal of Daniel J. Nordgren, Jr., et a!., Appellants, v. City Of Maplewood, Ramsey County, Minnesota, Respondent No. 81-1296 Supreme Court of Minnesota 326 N.W.2d 640; 1982 Minn. lEXIS 1856 November 24, 1982 PRIOR HISTORY: [**1] Appeal from District Court, Ramsey County; Hon. Stephen L. Maxwell, St. Paul, Judge. DISPOSITION: Reversed and remanded. CASE SUMMARY PROCEDURAL POSTURE: Appellant city, which imposed water and sewer connection charges on respondent lot owners lots, challenged an order of the District Court, Ramsey County (Minnesota), which required it to refund the charges. The trial court held that Minn. Stat. 9 444.075, subds. 3 and 5 gave the City authority to impose the connection charges but concluded that the City was reimposing a charge previously prohibited in the lot owners' prior appeal of assessments. (( OVERVIEW: The levy of the connection charge was authorized by Minn. Stat. 9 444.075. The trial court did not have the benefit of the court's decision, handed down one month later, that water or sewer connection charges were not assessments and could be imposed on top of prior assessments. !be city could properly ilT!PoS(L~s.onD.~ftic>nf~arg~ on land for which assessments were voided so Ion as the charge was 'ust and e . e ~'sre9ujL~gJ;ry_s-44~Q7S. There was no evidence that a cash charge a no e . levied against other similarly situated property owners, and the lot owners did have the right to a hearing on whether the connection charge was just and equitable. The imposition of a connection charge necessitated an orqinance or resolution; without an ordinance or resolution showing adoption of a standard charge imposed for all connections for sewer and water service, it was impossible to ascertain whether the charge imposed varied from that imposed on others. The city did not violate the prior order by imposing a connection charge on the lot owners if there existed an authorizing resolution or if the city ratified and adopted the action. < OUTCOME: The court reversed the order of the district court and remanded for a hearing at which the city might show council approval for the charge and the lot owners might be heard as to whether the charge was just and equitable. CORE TERMS: ordinance, voided, equitable, sewer, authority to impose, water, prescribed, refu nd LexisNexis (TM) HEADNOTES - Core Concepts - . Hide Concepts Governments> Public Imorovement~ > Assessments ~ A-JJ. 7 u)retrieve? m=ir."~::lQ"7r.?::l7l'lffi?741 hIlR7QhQIlR,.OfhRr"""l'd ",Rtl'f'n1"n"l=l",r;t",t;"n R. f'n..t"t.=PT 1A /1 'l/f'lA 21 04 09:40a . 1. 2. 3. 4. 5. 6. J( 7. 8. l<f 9. f:' Cit~ Shorewood 9524740128 p.13 Contract No. A20408 EXHIBIT A CITY OF SHOREWOOD PhysicaUy inspect and revalue 25% of the real property, as required by law. Physically inspect and'value aU hew construction, additions and renovation. Conduct valuation reviews prior to Board of Review - approximate dates: March through May 15. Attend Board of Review. Per Board request, make all necessary review appraisals. Approximate dates: April 1 - May 31 . Keep updated field card file - current values, homestead and classification data. Print mail and post valuation notices and homestead cards. Respond to taxpayers regarding assessment or appraisal problems or inquiries periodically during contract teon. Make divisions and combinations periodically during contract tenn. Initiate, for the taxpayer, abatement applications periodically during contract term. as requested. 10. Make appraisals for, testify or negotiate all District Court or Tax Court filings during the contract tenn. 11. Post values from appraisal cards to assessment rolls. 12. A::, needed, per sates analysis. adjust estimated market values on those properties not physically inspected. T:\Divislon\Civil\Contrac:ts\Hennepin County\City of Shorewood-AgreementA2.0408.doe . - --" -- ( \, '- (11) /l-i/t 8 . ' CITY COUNCIL REGULAR :MEETING lVIIl'ITVES November 8,2004 Page4of7 Zerby moved, Turgeon seconded, Approving the 2005 .Budget for the Lake Minnetonka Communications Commission. Motion passed 4/0. B. Approval of Certification of Delinquent Charges Administrator Dawson explained the City Code provided for annual certification of delinquent utility bills against the properties served. He stated each .prop'erty owner may object' to this proposed certification of delinquent accounts and as part of the appeal process, may request a hearing in front of the City Council. This year there was one such request from Ronald Johnson, 5355 Shady Hills Circle, and Mr. Johnson was in attendance this evening. At issue was the sump pump surcharge for the property. Administrator Daws'on also stated copies of related correspondence with this property owner were submitted for Council review. Mayor Love welcomed Mr. Johnson and asked whether he would like to share the basis for his app~al on this matter. '. Mr. Johnson stated his appeal was the same as it was last year, and he questioneq whether the surcharge was considered just and equitable in his case. He also stated his disappointment the current Council had never bothered to visit his property, andapparently the Council had not bothered to listen to his requests either as he was being surcharged yet agam. . . Mayor Love statedthe record would'show the Council did take the time to listen to his case; however, agreement on the case was a different issue. He stated the Council always listened, but did not always agree with Mr. Johnson. . . , , Mr. Johnson then reviewed the history of his case regarding the sump pump surcharge and subsequent legal outcomes as a result oOawsuits brought against the City regarding this matter. He stated the sUmp pump water being discharged onto, his land from other properties constituted a taking by the City a-pd he questioned whether, the City was going to pay him for the taking, of this land or whether it was going to fix the problem causing it. He stated he, thought the Council should postpone this matter until the new Council could be seated early next year.' , , Administrator Dawson stated these' issues brought forth by Mr. Johnson were not related to this surcharge. Mr. Johnson cited Minnesota Statute 444, noting charges could only be levied if they were just and equitable. He then questioned how these charges could be considered just and equitable in his situation. He stated he thought the City was taking this action because the City did not like him since he continued to bring lawsuits against the City. He questioned what the just and equitable criteria were in this case. Mayor Love stated with all due respect, the correspondence from 'Mr. Johnson, dated November 6,2004, was a matter, of record in this case. Furthermore, he stated, the Councilmembers were four independent . people and did not take dictated actions from him on any matter. Councilmember Zerby stated Mr. Johnson had created an unwelcome situation by suing him personally in several lawsuits brought against the City, and he would not likely visit Mr. Johnson due to that circumstance. Also, he noted Mr. Johnson had never contacted him either, despite the fact his phone number was listed in several publications an4 was a matter of public record. Councilmember Zerby also questioned whether, the City had specifically requested neighboring sump pump discharge be directed 1fJlq; CITY COUNCil.. REGULAR MEETING MINTUES N~mber 8, 2004 . Page 5 of 7 onto his land. He stated he believed this was a matter to be taken up between Mr. Johnson and his neighbor, and not the City. Councilmember Zerby stated MI. JohItson was also delinquent in his several other fees as well, even though these fees did not, directly pertain to the issues presented this evening. Mayor Love-thanked Mi. Jolmson for hiscormnents presented this evening. . ,. Administrator Dawson stated the City had paid all judgments necessary to Mr. Johnson as court ordered. Statutory language in this case provided "reasonable costs" as the standard, and he noted Shorewood's . , ordinance related to these charges was similar to what other cities were doing as well. Zerby moved, Lizee seconded, Adopting RESOLUTION NO. 04-094, "A Resolution Granting Approval of Certification of Delinquent Charges." Motion passed 4/0. C. Planning .Commission Appointments Zerby moved, Lizee seconded, Appointing Scott Williams, 5955 Country Club Road, to a position on the Planning Commission for' a term ending on Fe1;>ruary 28, 2005. Councilmember Turgeon questioned. whether the City should trY to keep a balance ofrepresentation from, various parts of the City and thought this goal might. be better' achieved if the other candidate were appointed. She stated she thought both candidates were very well qualified for the position; and she meant nothing personal toward either candidate in asking the question of representation. Zerby withdr.ew his'motion. ' Mayor Love stated he believed both candidates very well. qualified, and he also liked to .see as much geographic representation on Commissions as possible. Turgeon moved, 'Zerby seconded, Adopting RESOLUTION NO. 04-095, "A Resolution Making Planning Commission Appointments by Appointing David Meyer to a position on the Planning Commission for a term ending on February 28, 2005." Motion passed 3/0/1, with Lizee abstaining. , 10. ENGINEERINGIPUBLIC WORKS '" A. . ' Radisson Road Report .. Administrator Dawson explained Chuck Rickart ofWSB & Associates, the City's consulting ,engineering firm, was present this evening to provide a report on the traffic study completed on Radisson Road.' This study had been conducted as a result of a petition of local residents who lived on or near Radisson Road who stated that the subject roadway was being utilized as ,an alternate route to State Highway 7. MI. Rickart stated the Origin Destination. study had been completed earlier and a report detailing the fmdings had been submitted to Council forreview. The report had.concluded there was a high number of cut-through trips on Radisson Road. Mr; Rickart stated he would present four alternatives, along with cost estimates for each alternative, to minirIrize traffic on. the roadway. With regard to the four alternatives presented, Mr. Rickart stated the issues of safety of the roadway and cut-through traffic were components of each' of the concepts for these alternatives. To that end, two of the alternatives were considered "safety alternativf;s" and two alternatives were considered "operations alternatives." ---tr~81r/y ~ j c:/lj ~~ '~1~~~7'7:l 4"i:'t:~ '~-V/Y(/~1/1;t?-V" dWt1p/ dvtJ)~ SjtJ':'j ;.~/~rv A........ r.,,"'" - . -~~~I~""l^1~.I? ~~~-r~~ )>/b ~(lO ~'.ry'~~d --... """-- ~ ......~ * 0-;. ~ <:::.) ~ ~ -::J. ~ U\ -~ .~ tl ~ 1 ! .. 5~aJ-p~~s$. JPkx~~~ 6-?~~Mt.:f-~'~ flAtf-t7~ ~ ~~(/v~~ ~ ~ ~ ~~~.~r r frauds requiring t relieve the in- '. Royal Realty I, 69 N.W.2d 667 that there are :act as to wheth- hereof constitut- t an unenforcea- an oral contract ooth contentions s know that an :nded transaction lpon, there is no :ion Co. v. Goder l. 200, 217 N.W. ,racts, ~ 29. The in part that the e to be "accept- ltract for deed." 2 ; to future agree- ,s of the sale, in- ~tallments, inter- :mce, no written bbell v. Ward, 40 (1952). Further- mpetent evidence ld dealings of the 'Y into the option 's affidavit, ~ndi- meeting between, I were still in of the minds had te that it is undis7 led to remain un- ract for deed was at additional rea- d. See, Masseev:. I N.W. 872 (1926). I genuine issues of lr a contract, writ.: een plaintiffs and such contraCtfde,,~ lch are entitled ,to ' law. issues with respect EWERT v. CITY OF WINTHROP Cite as 278 N. W.2d 54G entitled to jury trial by statute or Constitu- tion. In the Matter of the Appeal of Lavern L. EWERT and Elaine L. Ewert, His Wife, and Einar R. Olson and Irene F. Olson, His Wife, from the Assessments Adopt- ed on September 11, 1975, by the City Council of the City of Winthrop, for Improvements of Certain Lands, Appel- lants, v. CITY OF WINTHROP,' Respondent. No. 47976. Supreme Court of Minnesota. April 13, 1979. Owners of city lots appealed special assessments for installation of street and utility improvements. _ The, District Court, Sibley County, Raymond Pavlak, J., found that special assessments adopted by city did not exceed special benefits conferred upon owners' lots. Owners appealed. The Su- preme Court, Yetka, J., held that: (1) testi- mony of co-owner of lot as to' change in value and testimony of experienced real estate appraiser was sufficient to overcome city's. prima facie case that special assess- ment did not exceed special benefits; (2) where there was no evidence 'that dty coun- cil considered market value of owners' prop- erty either before or after improvements, prior to adopting special assessment, the district court could have reversed assess- ment; (3) where, despite substantial differ- ences in estimates of market value by own- ers' expert and city's expert, trial court adopted lowest estima,te for market value before improvements and highest estimate for market value after improvements, city's expert made no estimate of after improve- ment value for sum of lots, and city's ex- pert apparently based estimates on compar- ison of least valuable present use to most valuable future use, trial court's finding that increase in market value resulting from improvements to owners' lots exceed- ed amount of assessments was not fairly supported by the evidence, and (4) landown- er who appeals special assessment is not Minn. 545 Reversed and remanded. Corporations $::>511(2), 1. Municipal 513(7) Because city is presumed to have set special assessment legally, introduction of assessment roll into evidence constitutes prima facie proof that assessment does not exceed special benefits; landowner appeal- ing assessment may, however, overcome presumption by introducing competent evi- dence that assessment is greater than in- crease in market value of property resulting from improvement. 2. Municipal Corporations $::>484(3) Testimony of landowner as to change in value of property before and after instal- lation of street and utility improvements together with testimony of experienced real estate appraiser was sufficient to overcome city's prima facie case that assessment did not exceed special benefit. 3. Municipal Corporations $::>1)13(1) Where landowner maintains that amount of special assessment exceeds value of improvements and that assessment is confiscatory, trial court should try matter de novo in order to determine whether as- sessment exceeds special benefits. 4. Municipal Corporations $::>439 If assessment for improvements ex- ceeds special benefits, action by public body is a "taking" and is confiscatory. .... 5. Municipal Corporations $::>506 Where there was no evidence that city council considered market value of owners' property, either before or after improve-' ments, prior to council's adopting assess- ment, such failure of city to determine amount of special benefits would, have al- lowed district court to reverse assessment. 6. Municipal Corporations $::>508(6) Supreme Court in reviewing a district court's confirmation of special assessment ;+J11 ;7- ~':.:.~.,::.,"'i;\ 1 .., >>" , 546 Minn. 278 NORTH WESTERN REPORTER, 2d SERIES need not accept lower court's findings of fact but may reject those findings if they are not fairly supported- by evidence as a whole. 7. Municipal Corporations $::>502(3) Where, despite substantial differences in estimates of market value of lots by owners' expert and city's expert, trial court adopted lowest estimate for market value before improvements and highest estiwate for market value after improvements,~city's expert made no estimate of after-improve- ment value for some of the lots, and city's expert apparently based his estimates on least valuable present use and most valua- ble future use, finding of district court on appeal from assessment that amount of as- sessment did not exceed value of improve- ments was not fairly supported by the evi- dence as a whole. 8. Municipal Corporations $::>511(2) City's determination of change in mar- ket value of assessed property before and after improvements is not entitled to defer- ence in hearing on appeal from assessment by landowner. 9. Municipal Corporations $::>439 In determining market value of proper- ty for purposes of determining change in market value of property before and after improvement, the best potential use is to be considered; that requires comparing best potential use without improvements to best potential use with improvements. 10. Jury $::> 10 The right to a jury trial must be found either, in Minnesota Constitution or provid- ed spOOifically by statute. 11. Jury $::> 19(17) Minnesota Constitution does not give right to jury trial to one who appeals a special assessment. M.S.A.Const. art. 1, ~ 4. 12. Jury $::> 10 Provision of Minnesota Constitution providing for right to jury trial was intend- ed to guarantee that right to trial by jury exist as it had at time Constitution Was \ adopted; that the right should be neither enlarged nor diminished. M.S.A.Const. art. - 1, ~ 4. MacKen and Malc( appellants Thomas spondent. Heard 1 KA and : decided b: 13. Taxation $::>460 Right to appeal from an assessment is a right established by statute and not a right existing at common law. 14. Municipal Corporations $::>511(2) Because right to appeal an assessment is wholly statutory, conditions for appeal imposed by statute must be strictly fol- lowed and will be strictly construed. M.S.A. ~ 429.081. YETK.A Appeal and Elain Olson an< order of t dated Oc1 assessmer responder ceed the I lands of 1 tered on remand. The Ie 1. Die suIting f lants' lot the asse~ ments? 2. Is assessme to a jury Appell First Hi adjoinin~ 1959. T Highlan< churches Highlan< army re maining daughtel between the folIo ~ 1973 1973 1973 1974 1975 All of tJ lation 0 ments. 15. Eminent Domain $::>307(2) Question whether land has been dam- aged so as to require condemnation is ques- tion of law that must be decided by trial court; jury only determines amount of damages. 16. Jury $::>19(17) One who appeals from a special assess- ment under statute granting right of appeal to district court is not entitled to a jury trial. M.S.A. ~ 429.081. Syllabus by the Court 1. In this case the increase in market value of appellant's lots resulting from a city improvement appears from all the evi- dence to be less than the assessment levied upon those lots. 2. The' district court, in conducting hearings on an appeal from an assessment where the landowner maintains that the amount of the assessment exceeds the value of the improvements and that the assess- ment is confiscatory, has a specialresponsi- bility to examine the eviden~ very careful- ly and should try the matter de novo in order to determine whether the assessment exceeds special benefits. 3. The landowner, on an appeal to dis- trict court from a city assessment, is not entitled to a jury trial unless specifically granted by statute. Absent such a statute in this case, the matter is triable by a court.