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HomeMy WebLinkAboutAffd of Larry Anderson / STATE OF MINNESOTA DISTRICT COURT COUNTY OF SCOTT FIRST JUDICIAL DISTRICT priorview Limited Partnership, a/k/a Priorview Limited, a Minnesota Limited Partnership, Case No. 93-08239 Plaintiff, AFFIDAVIT OF LARRY ANDERSON v. Independent School District No. 719 of Scott County and the City of Prior Lake, Defendants. STATE OF MINNESOTA ) ) ss ) COUNTY OF SCOTT LARRY ANDERSON, being first duly sworn on oath, states and deposes as follows: 1. Affiant is the City Engineer for the City of Prior Lake and has held that position at all times material herein. Affiant's duties include the responsibility for building and maintaining public streets in the City of Prior Lake. Affiant is personally familiar with the street which is the subject matter of the above litigation and of all matters stated in this affidavit. Attached are Exhibits 1 to 14 which are true and correct copies of the originals and are identified below. 2. Plaintiff priorview Limited Partnership ("Priorview") is a developer. Its general partners are Thomas Steffens and Joe Knoblauch. Mr. Steffens is an attorney and practicing member of the Minnesota Bar. priorview is the developer of two subdivisions named priorview First Addi tion and priorview Second Addition. These two subdivisions contain town houses which priorview constructed and sold. 3. Exhibit 1 is the Prior Lake Subdivision Ordinance enact~d on March 18, 1974. This subdivision ordinance was amended in its entirety in 1987. Priorview First Addition and Priorview Second Addition were platted in accordance with this 1974 subdivision ordinance. 4. Exhibit 2 is a portion of the zoning ordinance for the City of Prior Lake. Of interest in this litigation is Section 6.11 entitled PLANNED UNIT DEVELOPMENT ( II PUD" ) . This section was enacted in 1983 and sets forth the criteria for PUD applications within the City of Prior Lake. This ordinance was in effect in 1983 and 1985 when Priorview developed Priorview First Addition and Priorview Second Addition. 5. Prior to 1983, priorview purchased a tract of land which it intended to develop and which includes Priorview First and Second Additions. No portion of this tract of land was serviced by any public streets or highways. The closest public street or highway to this tract of land was state Highway 13 which runs in a generally north/south direction through the city of Prior Lake. Between the tract of land purchased by priorview and Highway 13, lay the Five Hawks Elementary School owned and operated by Defendant Independent School District No. 719 (the II School District"). The School District had constructed and maintained a gravel driveway running from Highway 13 to the elementary school. - 2 - As the driveway approached the school building, it ran next to the tract of land purchased by Priorview. The length of this gravel driveway in 1982 was approximately one-quarter of a mile. 6. In 1982, priorview submitted a preliminary plat to the Prior Lake Planning Commission. 7. On or about September 15, 1982, affiant received a copy of Exhibit 3 which is a September 15, 1982 letter from the Superintendent of the School District to Mike McGuire, the then City Manager for the City of Prior Lake. The following statement made in paragraph 1 of the letter was true as of that date: The present easement on Five Hawks Avenue is as a private road and not as a public roadway. Egress and ingress is permitted, however, development of the road as a public thoroughfare may be done only with the approval of the school district. In paragraph 2 of the letter, the superintendent outlines the conditions that had to be met if the School District was to permit the driveway to become a public thoroughfare. In paragraph 3, the superintendent expressed the view that any sharing of costs in connection with the improvement of the driveway would need to take into consideration the costs which the School District had already incurred by building the driveway in the first place. 8. On or about November 15, 1982, affiant received a copy of Exhibit 4 which is a letter dated November 11, 1982, from the School District Superintendent to Thomas Steffens, one of the general partners of Priorview. Affiant understood this letter as outlining the School District's position to the developers with - 3 - respect to the developer's request that the School District's driveway be improved and made a public thoroughfare which would service the development. 9. On or about July 1, 1983, affiant received Exhibit 5 which is a letter dated June 29, 1983, from the School District Superintendent to Gary Wilkerson, an attorney in Mr. Steffen's law office. The superintendent refers to Five Hawks Avenue which is the name given to the driveway ref erred to above. Affiant perceived this letter to demonstrate the School District's willingness to permit its driveway to become a public thorougtfare if the conditions outlined in the November 11, 1982 letter were agreed to. 10. In 1983, priorview made application to the City of Prior Lake for approval of priorview First Addition. Pursuant to the Prior Lake Subdivision Ordinance, the application for approval of the plat and a PUD permit were referred to the Prior Lake Planning Commission. Exhibit 6 is a copy of the Minutes of the Planning Commission, dated August 4, 1983, wherein Priorview's application was approved. Among the conditions required by the planning commission was "a road easement for Five Hawks Avenue dedicated to the public and attached to the Developer's Agreement. II 11. After approval by the planning commission, Priorview's application was submitted to the city Council. Exhibit 7 is the Minutes of the August 8, 1983 meeting of the City Council wherein the plat and PUD application were given final approval. Among the condi tions required by the City Counc i 1 were II a Developer's - 4 - Agreement be signed and meet the requirements of the City Engineer" and "priorview will provide a document or an agreement for providing the public easement with the endorsement of the building committee of the School District 719, prior to the issuance of permits. II Affiant knows that the City Council would not and could not approve a subdivision and PUD application unless and until the developer provided for public access to and from the development. In order for Priorview First Addition to have been approved, priorview had to acquire access to a public street. priorview did this by convincing the School District to permit the public dedication of its driveway as Five Hawks Avenue. Normally, the cost of providing access would be entirely borne by the developer. In the case of this development, aff iant understood that the developer and the School District were willing to share construction costs since the School District would gain some benefit from the improvement to the roadway and its continuation to another public street. The City of Prior Lake had no particular interest in the financial arrangement between the developer and the School District. City ordinance requires that an improved public road be constructed to provide access to individual lots. 12. priorview's Complaint in paragraph 33 states as follows: Prior to the construction of the roadway, Defendants stated and represented to priorview that the existing road and its subgrade had been adequately maintained and was in full compliance with city standards and regulations for unpaved roads. - 5 - Neither affiant nor any other person employed by the City of Prior Lake to affiant's knowledge made any such statement to Priorview. The City of Prior Lake has no "city standards and regulations for unpaved roads. II 13. Exhibit 8 is a document signed by the superintendent and the clerk for the School District. Affiant received this document in September, 1983. Neither affiant nor any other employee of the Ci ty of Prior Lake to affiant's knowledge participated in the drafting or preparation of this document. 14. Exhibit 9 is the Developer's Agreement dated September 19, 1983, entered into between the City of Prior Lake and priorview. In this agreement, among other things, Priorviewagreed to construct and install, at the developer's expense, the improvements to Five Hawks Avenue. Exhibit 10 is the Minutes of the Prior Lake City Council meeting for September 26, 1983, wherein the city approved the Developer's Agreement. Priorview hired an engineer and contractor to make the improvements required by the Developer's Agreement. The improvements were completed in 1983 with corrective work done in 1984 and 1985. Affiant accepted the street in 1985, and the city has maintained the street ever since. 15. Exhibit 11 is the approved plat of Priorview First Addition. Five Hawks Avenue is directly west of Block 1. This plat would not have been approved unless Priorview had made arrangements for public access to Block 1. 16. In 1983, Priorview had made it clear that it would make application for an additional subdivision and PUD in the future. - 6 - In 1985, Priorview presented to the City of Prior Lake an application for approval for Priorview Second addition and a PUD permit. Again, it was necessary for the developer to provide public access to the priorview Second Addition. 17. Exhibit 12 is a portion of the Minutes of the Prior Lake Ci ty Council's meeting for April 1, 1985 wherein the council approved the preliminary PUD for Priorview Second Addition. The extension of Five Hawks Avenue which was to serve priorview Second Addition was on property owned by the developer. Affiant understands that Priorview and the School District were also to share the costs of this portion of Five Hawks Avenue in accordance with the understanding which is set forth in Exhibit 8. 18. Exhibit 13 is the Developer's Agreement between the City of Prior Lake and Priorview dated September 16, 1985. In this agreement, Priorview agreed to provide and improve the public streets contained in Priorview Second Addition. 19. Exhibit 14 is the plat of priorview Second Addition. The extension of Five Hawks Avenue is a part of the plat. The streets contained in the plat were completed by Priorview in 1986. Affiant accepted the streets for the city in 1986, and they have been maintained by the city ever since. 20. Five Hawks Avenue has not been developed past priorview Second Addition. Affiant believes that Priorview intended to submit a third application for a subdivision and PUD which would have extended Five Hawks Avenue to intersect with another public - 7 - s~reet. This bas not occurred, and Five Hawks Avenue is cu~r.ntly a deadend s~r.et, FURTHER YOUR AFFIANT SAYETH NOT. ~/ LA~ANDE)ls~ Subscribed.and svor~to/before me this a~ day of~ ' 1993_ "iJ ~/YI~1-'~. rZ~~ "Notazy Public I BERNICE A. JUlKOWSKJ HOTAR"f PUBUC . MINNESOTA SCOTT COUNTY My c.., ,'. EJp. 0111.'. s: \SHD~TA"318gJ\SCI~DE'10H.PFl - 8 -