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HomeMy WebLinkAbout5C - Fence in Easement CITY COUNCIL AGENDA REPORT 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 October 4, 2004 ~ ~ ~;ank Boyles, City Mana~~ AGENDA ITEM: CONSIDER APPROVAL OF A REQUEST TO AUTHORIZE THE INITIATION OF CIVIL ACTION TO BRING AN INJUNCTION REQUIRING THE PROPERTY OWNER TO REMOVE A FENCE ERECTED WITHIN A DRAINAGE AND UTILITY EASEMENT. DISCUSSION: Historv: In 1974, a gravity sanitary sewer was installed between 5780 and 5788 150'h Avenue within 50 feet of the lake. Subsequently, a force main and lift station were installed in the same area. In 1994, a storm sewer pipe was installed in the same location, a portion of which was re-built in 2003 as part of the 2003 street reconstruction project. These facilities are located some 300 feet from 150th Street on an easement between the two properties. The easement is necessary to get repair/maintenance personnel and equipment from 150'h to the utilities. In 2000, one of the property owners decided to build a 6 foot fence approximately 75 feet long along the property line and within the easement. City representatives asked that the fence be removed since it prohibits access to the utilities. For a period of time during the 2003 improvement project, the fence was removed, but this year, the fence was re-installed, columnar pines were added to extend the fence line further toward the lake and landscaping (retaining wall) was done at the water's edge within the easement. Within the last 30 days, Attorney Pace sent a letter to the Vetters (attached) re-affirming the City's position. Attached is a copy of the response Ms. Pace received from the Vetter's counsel. Numerous conversations and correspondence have taken place between the City and the property owner. Current Circumstances: It is apparent to me that there is not a productive way to work out an agreement with the property owner. They have not and will not agree to move the fence from the City's easement. They claim it is removable but the posts are in concrete. There is a gate in hte immediate vicinity of the lift station, but the fence itself forces City maintenance crews onto private property to gain access to the utilities. So far, the adjacent property owners have been extremely sympathetic and have cooperated with the City when access was necessary. Accordingly, I am requesting that the City Council authorize the initiation of civil enforcement as may be needed to assure the removal of the fence, pine trees, landscaping within the easement, and/or granting of an additional easement to provide access. Conclusion: The Council should determine if civil enforcement action is appropriate and direct the staff accordingly. ISSUES: The history of discussions on this matter goes back to 2001. The discussions have been exacerbated by a feud between this property owner and the neighbor, www.cityofpriorlake.com 1:\COUNCILIAGNRPTS\2004\VETTEIpRbYl~ ~~~.\t~~122~ / Fax 952.447.4245 ALTERNATIVES: RECOMMENDED MOTION: as well as the activities associated with the 2003 Street Reconstruction Project. Little progress has been made. The staff's concern is that in an emergency, the staff would have to destroy the fence and landscaping to access the lift station and utilities and to use the Vetter's driveway over which we have no easements, or walk down the easement which may mean that our most important piece of equipment, the Vacall, cannot access the lift station. Slow or partial access could result in greater damage to homes served by the lift station and additional liability claims against the City from these homeowners. A civil action, will resolve the access question either by re-establishing productive discussions or by securing a court order. (1) Authorize initiation of civil action through adoption of the consent agenda. (2) Remove the item from the consent agenda and take no action or a modified position on the matter. Alternative (1). 1:\COUNCILIAGNRPTSI2004\VETTER CIVIL PROCEEO.DOC o halleland lewis nilan sipkins & johnson PA Attorneys at Law/P_.L\ 500 Pillsbury Center South ?20 South Sixth Street Mlnneapoli" MN 55402-4501 OHice' 612.338.1838 Fax: 612.338.7858 www.halleland.com \ September 17, 2004 Suesan Lea Pace Direct Dial: 612.573.2902 Email: space@halleland.com Mr. & Mrs. Ralph Vetter 5780 150th Street S.E. Prior Lake Minnesota 55372 Re: Notice to Remove Fence and City Easement Dear Mr. & Mrs. Vetter: I am the Prior Lake City Attorney. I know that since August of 2001 you have been represented by Karen Marty, Esq. concerning the City's improvement project on 150th Street. have had several meetings with the City Engineer, City Manager and Director of Public Works regarding the fence that you installed in the City's easement. Before contacting you directly, I exchanged e-mails with your counsel, Karen Marty, on August 27th and September 2, 2004. In the later e-mail.Ms. Marty advised me that the two of you were comfortable with me contacting you directly. As you know, the City has" A Perpetual Easement for Sanitary Sewer, Water Main, Storm Drains and Utility Purposes with the right to install, repair, maintain, alter, add to or remove, on, over and across the most easterly 7-1/2' of your property. In the summer of 2001, conversations occurred between the City and your counsel concerning your proposal to install a fence in the City's easement. These discussions occurred as a result of the City's plans to reconstruct 150'" Street in 2003. At that time, Ms. Marty was correct in advising you that the City does not have an exclusive easement on your property. You have a right to use the property" in a reasonable manner so long as the way you use it does not interfere or impede the City's use of the easement. " There is a lift station, storm water outlet, and forcemain constructed in the easement at the rear of your property by the lake. Lift stations require periodic maintenance and in some cases emergency repairs. In order to maintain the lift station or access them it if there is a failure, the City's Public Works Department must be able to access the lift station with a Vac truck. Essentially, these trucks vacuum sewage from the lift station which prevents it from backing up into the basement of peoples' homes. The only reason I am being so graphic is to try to impress on you that it is a matter of public health and safety that the City be able to utilize the easement to access the lift station. I have inspected the easement and viewed the lift station with Bud Osmundson, the Director of Public Works. As the situation exists now, it is impossible for a Vac truck to access the lift station. The fence is cemented into the ground and even if there was a removable panel, that still would not provide the City trucks with sufficient room to access the lift station and other utilities. You and the City have been in a dispute about this fence since 2001, which, quite DN 231716 I" >/ Mr, & Mrs Ralph Vetter ",' /1 September 1 7, 2004 j' Page 2 "I ,'/ /1 i, e/ I frankly, I do not understand. I know that you would not want to take a position that intentionally puts you and your neighbors' homes at risk. I must respectfully request that you remove the fence, entirely, from the easement. The fence conflicts with the stated purpose of the City's easement and your installation of the fence, under these circumstances, does not fall within the" reasonable use doctrine" which Ms. Marty explained to you. Please advise the Public Works Director Bud Osmundson by Friday, September 24, 2004 when you intend to remove the fence. In any event the fence must be removed by October 15, 2004. If an emergency occurs in the interim which requires access to the lift station, the City will use any means necessary to reach the lift station; and furthermore, the City will not be responsible for any damage to the fence or any plantings you have installed in the easement. I hope that you understand the necessity of this request and that you will voluntarily remove the obstructions from the easement. Sincerely, ~~tPJUL I Suesan Lea Pace SLP/mal cc: Karen Marty, Esq. Frank Boyles, City Manager Steve Albrecht, P,E" City Engineer Bud Osmundson, P,E., Director of Public Works DN: 231716 09/28/2004 12:09 FAX 6123387858 HALLELAND LEWIS 1i!I002 >'- " [{~:::--"7--:~:-'-~ :-~~ :-.n~':'-.-'--[ 'i' 1,01'.' ::' ., \ii rs r.:"\; 1/1,",.. ..' '~lli;' !,",) 'EP 2 ! i: J! n ",1" ,::> ,; 2004 !!i ,II i;.JL L..:..' '. r'- ~t-~~ _h____ . - --.- 360 I Minnesota Drive Suite 800 Bloomington, MN 55435 MARTY LAW FIRM, LLC Telephone: (952) 921-5859 e.mail: kmarty@ix.netcom.com Fax: (952) 830-8211 September 20, 2004 Suesan Lea Pace Halleland Lewis Nilan 220 S. Sixth Street #600 Minneapolis, MN 55402 Dear Ms. Pace: Elizabeth Vetter has contacted me regarding your September 17 letter to her. We agree completely with your statements in the second paragraph At that time [2001] Ms. Marty was correct in advising you that the City does not have an exclusive easement on your property. You have a right to use the property "in a reasonable manner so long as the way you use it does not interfere or impede the City's use of the easement." Let me provide you with the full relevant language from my August 30, 2001 letter to Bud Osmundson. I have been retained by Elizabeth Vetter to clarify matters regarding their use of a utility easement along their easterly property line. The easement was granted in a document which contains no language restricting the Vetters' use of the property. Consequently, the Vetters may use the easement in any way which does not interfere with the City's present use of the easement. The City's use is limited to underground utilities, plus a manhole. As you may know, the Vetters propose to install il gate in the fence at the location of the manhole, with two four-foot sections, giving the City eight feet of easy access to the manhole. With the inclusion of the gate, the Vetters have complied in all respects with any implied restrictions on their use of the easement. We do not see any reason to reject this conclusion now. The fence was constructed as proposed, and no one has shown that the changes to the lift station increase the City's need to access it. The City's position makes little sense. The easement does not currently provide access by a "Vac truck", due to the City's actions. Let me explain. The easement runs from the street to the lift station. It can legally be accessed only from this street location. Near the street, in this easement, the City has placed the electrical panel for the lift station. This is approximately 5 feet high, 5 feet wide, and 2 feet deep. It is located on a concrete pad behind which is a retaining wall also constructed by the City. This retaining wall appears to be 3 feet high and run across the entire width of tile easement. Behind this retaining wall the City planted bushes, further blocking ---_._._--_._-------_._~--~---_._-_._-~--_._- 09/28/2004 12:10 FAX 6123387858 HALLE LAND LEWIS ~003 ~~ use of the easement. No known Vac truck can go over a retaining wall this high. There is no room for a Vac truck to drive around the retaining wall and stay within the easement. To put it succinctly, the City has blocked its own access to the easement and to the lift station. The Vetters checked up on what a "Vac truck" is, and how it is used. According to information from surrounding cities, V ac trucks are not used at lift stations. Even if they were, the standarc' Vac truck has a hose some 650 feet long. The City's easement, from the street to the lift station, is approximately 350 feet. The Vetter's entire property (which is longer than the easement) is far less than 650 feet. If the City wished to use a Vac truck at this lift station for some reason, it could do so without any change to the V etters' use ofthe easement. You may not be aware, but due to the conduct ofthe neighbors on the other side of the fence, the Vetters have had to get a restraining order. This order is currently in effect. They do not wish to make it easier for these neighbors to come onto their property. Removing the fence would increase the likelihood of and opportunity for problems with these neighbors. Finally, we agree that this continued dispute is incomprehensible. In fact, the Vetters feel harassed by the City. The City has attempted to take exclusive use of the easement, to which they are not entitled. The City has trespassed on the Vetters' property. The City has damaged the Vetters' property, not performed the appropriate repairs, and not paid the Vetters for the costs they incurred in having the repairs made. The City has placed an ugly electrical panel (which they are entitled to do) at the street, but this panel has significantly decreased the visibility at the street and increased the risk that someone on the sidewalk will be hit by a car coming from the Vetters' driveway. Unless there is some good legal basis for the City to contact the Vetters, the City should leave the Vetters alone. The City has infringed upon their peace and enjoyment of their property long enough. This needs to stop. We understand the City's desire to be able to maintain the lift station. We believe that the City has the ability to do this without any change in the Vetters' use of the easement. And even if the Vetters' fence did constitute an obstacle to the City's proper use of the easement (which we dispute), the City itself has blocked the easement long before it ever comes to the Vetters' fence. If you have any questions about this, please let me know. Sincerely, 7i::;lJ;~C Karen E. Marty / / Attorney at Law l/ cc: The Vetters