HomeMy WebLinkAbout5C Ries & Latham Non-Exclusive Driveway Encroachment Permit (1* P
u rn 4646 Dakota Street SE
Prior Lake, MN 55372
CITY COUNCIL AGENDA REPORT
MEETING DATE: OCTOBER 12, 2015
AGENDA #: 5C
PREPARED BY: LARRY POPPLER, CITY ENGINEER/ INSPECTIONS DIRECTOR
PRESENTED BY: LARRY POPPLER
AGENDA ITEM: CONSIDER APPROVAL OF A RESOLUTION AUTHORIZING THE MAYOR
AND CITY MANAGER TO EXECUTE A NON-EXCLUSIVE PERMIT FOR
DRIVEWAY ENCROACHMENT WITH RANDY RIES AND ROBERTA LATHAM
DISCUSSION: Introduction
The purpose of this agenda item is to consider approval of a driveway agreement
for the Randy Ries and Roberta Latham property. The easement is over City
parkland off Pershing Street.
History
In 2014, the City received a number of code enforcement complaints within the
Pershing Street neighborhood. As investigations of specific cases ensued, it was
discovered that a gravel driveway for 3995 Pershing Street was not located within
the private property limits and is located on Westbury Park Property near Dutch
Avenue (PID#s 252950370 and 251010160).
The home at 3995 Pershing Street was constructed in 1954 and the driveway in
question has been in its current location since that time. A second driveway to
the upper portion of the lot is also located on this property. The City took owner-
ship of the park property in 1994. The City Attorney's office advises that because
of the City ownership this driveway is not grandfathered nor may the private prop-
erty owner have any prescriptive rights to the property.
Current Circumstances
The City and property owner wish to clarify this situation. The attached driveway
permit agreement provides a mechanism to allow the driveway to remain on park
property. Movement of the driveway outside of the park property would be costly
and likely involve construction of retaining wall.
In 2011, the City entered into an agreement with Burt Olson on a very similar situ-
ation near West Avenue in Lakefront Park. As a part of the Olson agreement, the
City was compensated for the easement at a rate of$3.75 per square foot and
compensated for staff and attorney time of$1,500. The driveway was also re-
quired to be paved.
Mr. Ries has provided the attached letter regarding his situation and has re-
quested that the City grant the permit over park property but not require payment.
Payment for the driveway permit at $3.75 per square foot would require payment
to the City of$3,945. Adding staff and City Attorney costs of$1,500 would result
in a total cost of$5,445.
ISSUES: The current driveway encroaches onto City property, by approving this agreement
the City is acknowledging the encroachment and memorializing the management
of that encroachment through a perpetual permit.
FINANCIAL Unless the City Council waives the compensation provision, the City of Prior Lake
IMPACT: will receive $5,445 as compensation in exchange for the use of the property un-
der the terms of the resolution. This includes $1,500 for staff and City Attorney
time to execute the agreement documents. This also includes the cost for the
permit itself. The City used a price of$3.75 per square foot to calculate the cost
which was the same rate utilized and approved for a similar agreement in 2011.
All costs associated with the asphalt installation and restoration associated with
the driveway will be borne by Mr. Ries and Ms. Latham. For the permit to remain
in force these improvements must be accomplished within 250 days.
ALTERNATIVES: 1. Approve a resolution as part of the consent agenda authorizing the Mayor and
City Manager to execute a nonexclusive permit for a driveway encroachment
with Randy Ries and Roberta Latham at a cost to the private parties of$5445.
2. Remove the item from the consent agenda and consider approving the reso-
lution approving the nonexclusive permit for a driveway encroachment at no
cost as requested by the petitioner.
3. Deny or table the Resolution.
RECOMMENDED A motion and a second for approval of Alternative #1
MOTION:
EO4
4646 Dakota Street SE
4ilmsrEsolt* , Prior Lake, MN 55372
RESOLUTION 15-xxx
A RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO EXECUTE A
NON-EXCLUSIVE PERMIT FOR DRIVEWAY ENCROACHMENT WITH
RANDY RIES AND ROBERTA LATHAM
Motion By: Second By:
WHEREAS, Randy Ries and Roberta Latham own lots 5, 6, and half of lot 7 of the Spring Brook Park
Second Addition; and
WHEREAS, The driveway for the Ries/Latham property is located over City owned Westbury Pond Park
property; and
WHEREAS, Randy Ries and Roberta Latham wish to retain use of said property and improve the driveway
by paving it; and
WHEREAS, Randy Ries and Roberta Latham are seeking a perpetual permit for access over City Property.
NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE,
MINNESOTA as follows:
1. The recitals set forth above are incorporated herein.
2. The Mayor and City Manager are hereby authorized to execute a non-exclusive permit for a driveway
to encroach upon city property with Randy Ries and Roberta Latham.
3. The City shall be reimbursed for the permit by Randy Ries and Roberta Latham in the amount of
$5,445.00.
4. Funds paid to the City for the permit shall be deposited into the General Fund #101-00000,00-
39102.00.
5. Staff is directed to record the executed permit with Scott County.
PASSED AND ADOPTED THIS 12th DAY OF OCTOBER 2015.
VOTE Hedberg Keeney McGuire Morton Thompson
Aye ❑ ❑ ❑ ❑ ❑
Nay ❑ ❑ ❑ ❑ ❑
Abstain ❑ ❑ ❑ ❑ ❑
Absent ❑ ❑ ❑ 0 0
Frank Boyles, City Manager
AGREEMENT GRANTING A NONEXCLUSIVE PERMIT FOR A DRIVEWAY
TO ENCROACH UPON CITY PROPERTY AND PROVIDING FOR THE USE
AND MAINTENANCE OF THE DRIVEWAY
This Agreement("Agreement") is made this day of , 2015, by and
among the CITY OF PRIOR LAKE, a Minnesota municipal corporation ("City"), and
Randy W. Ries and Roberta J. Latham (Single Persons) (collectively the "Owners").
RECITALS
A. The Owners own real property in Scott County, Minnesota legally described as:
All of Lots 5 and 6, and that part of the Northeasterly one half of Lot 7 described as follows:
Beginning at the Northwest corner of said Lot 7 and following the Northerly line to the
Northeast corner thereof;thence South on the East line of said Lot 7 to the Southeast corner
thereof, thence diagonally to the Northwest corner of said Lot 7 to the point of beginning.
All in the plat of Spring Brook Park 2°d Addition, Scott County, Minnesota("Property").
B. The Property abuts, and has and uses as its primary means of access a gravel
driveway off of Pershing Street ("Driveway").
C. The Driveway encroaches upon City park property ("City Property") to the
East.
D. The Owners desire to improve the Driveway for the immediate benefit of the
Property; and to that end, the Owners have submitted and the City has approved a survey
("survey"), attached hereto as Exhibit A and made a part hereof, which survey shows the
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Driveway and the improvements for the construction of a paved driveway and appurtenant
structures related thereto ("Driveway Improvements").
E. Subject to the terms and conditions set forth in this Agreement, the City
consents to granting a non-exclusive permit for the driveway to encroach upon the City
Property legally described below.
F. The granting of a permit for encroachment and consenting to the construction
of the Driveway Improvements serves a public purpose by providing the City with an
improved surface for public safety vehicles and public safety personnel to access the
Property.
G. The Planning Commission has considered the impact of a permit to encroach
on the Prior Lake Comprehensive Plan and determined a permit to encroach is not
inconsistent with the Comprehensive Plan.
AGREEMENT
Now, therefore, the parties hereto agree as follows:
1. RECITALS. The foregoing recitals are true and correct and are incorporated
herein by this reference.
2. GRANT OF PERMIT. Subject to the terms and conditions set forth in this
Agreement, the City hereby grants and conveys a non-exclusive, perpetual permit to
encroach for a driveway ("Permit") upon the following described City Property
("Driveway Area"):
That part of Government Lot 1, Section 3, Township 114, Range 22 described as
follows: Commencing at the Northeast Corner of Lot 5, Spring Brook Park Second
Addition, Scott County, Minnesota, thence on a bearing of N 77 degrees 32 minutes
E along the north line of Outlot A a distance of 15.00 feet to the point of beginning
for a 10.00 feet wide driveway; thence South a distance of 46.17 feet thence S 14
degrees 22 minutes 38 seconds W a distance of 60 feet more or less to the East line
of Lot 5 and its side lines of the driveway extension or shorten on said East line of
Lot 5.
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3. DRIVEWAY IMPROVEMENTS. The City hereby grants the Owners
permission to construct, at their sole cost and expense, Driveway Improvements consistent
with the survey and applicable City requirements. Upon completion of the Driveway
Improvements the Owners shall provide the City with a complete set of As-Built drawings
of the Driveway Improvements in such number and format as required by the City
Engineer. Any additional Driveway Improvements beyond those in the approved Plans
shall require submission to and approval by the City of new plans and specifications.
4. MAINTENANCE. The Owners shall be responsible for the construction,
maintenance, repair, replacement and restoration (collectively "Maintenance") of the
Driveway Improvements and the Driveway Area. In no event shall the City have any
responsibility or obligation to participate in, perform or pay the cost of any such
Maintenance, including snow removal.
5. FUTURE CITY IMPROVEMENTS. City specifically reserves the right to
remove or alter the Driveway in relation to future maintenance or improvements performed
by the City ("Work"). If the Driveway is damaged or removed in relation to the Work,
the City agrees to restore the Driveway to the condition it was in prior to the Work upon
completion of the Work.
6. REVERSION OF PERMIT FOR NON-USE. If the Owners fail to complete
construction of the Driveway Improvements, in accordance with the approved survey,
within 250 days of the date the resolution authorizing this Agreement is passed by the Prior
Lake City Council, the Permit and other rights and privileges granted herein shall
automatically revert to City and be deemed null and void. Upon expiration of the 250 days
the City may adopt and record with the Scott County Recorder or Registrar of Titles a
resolution declaring that the Driveway Improvements are not complete and that this Permit
is null and void. In the event the City does not record such a resolution the Driveway
Improvements are deemed to be complete.
7. INDEMNITY. The Owners agree to indemnify, defend and hold the City and
its employees, contractors, agents, representatives, elected and appointed officials, and
attorneys harmless from any and all claims, damages, losses, costs and expenses, including
attorneys' fees, arising from, based on, or related to this Agreement, the Permit, the
Driveway Area or the Driveway Improvements including acts or omissions of the Owners,
or the Owners' employees, agents, contractors, representatives, guests, and invitees, and
including, without limitation any claim against the City as a result of Owners' construction
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of the Driveway Improvements, the City's granting of the Permit or the failure of the
Owners to maintain the Driveway Improvements and Driveway Area in a safe condition.
8. ACKNOWLEDGMENT. The Owners acknowledge that the Driveway Area and
the Driveway Improvements are a private driveway, not a public street, that the City has
no responsibility for the construction or maintenance of the Driveway Area or Driveway
Improvements, and that the City has made no representations or warranties regarding the
condition or suitability of the Driveway Area for the uses permitted by this Agreement.
9. WAIVER. The Owners, on behalf of themselves, their heir, successors and
assigns waive any and all claims they may have now or in the future against City relating
to access to the Property.
10. BINDING EFFECT. This Agreement shall run with the land and bind and inure
to the benefit of the parties hereto and their respective heirs, representatives, successors
and assigns.
11. RECORDING. The Owners shall record this Agreement with the Scott County
Recorder or Registrar of Titles as applicable and shall provide the City with evidence that
the Agreement has been recorded no later than December 1, 2015.
12. CONSIDERATION FOR PERMIT AND REIMBURSEMENT OF CITY
COSTS.
a. COMPENSATION FOR PERMIT. The Driveway Area consists of 1052 square
feet. The City has valued the Driveway Area at $3.75 per square foot. The Owners
shall pay to the City a total of$3,945.00 for the Permit.
b. REIMBURSEMENT OF CITY COSTS. The Driveway Improvements and
Permit were requested by the Owners for their immediate benefit. In consideration
thereof, the Owners agree to pay to the City $1,500.00 to offset, in part, the time
devoted to their request by City Staff and the City Attorney.
If the Owners fail to make the above described payments to the City by November
30,2015, the City may adopt and record with the Scott County Recorder or Registrar
of Titles a resolution declaring the Permit and other rights and privileges granted
herein to be null and void.
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13. GOVERNING LAW AND ENFORCEMENT. This Agreement shall be
governed by the laws of the State of Minnesota. The City reserves to itself the right, but
not the obligation,to enforce any breach of this Agreement. The proper venue for an action
relating to this Agreement is District Court in Scott County, Minnesota.
14. ENTIRE AGREEMENT. This Agreement contains all the terms and conditions
relating to the Permit and Driveway Improvements, and replaces any oral agreements or
other negotiations between the parties. No modifications of this Agreement shall be valid
until they have been placed in writing and signed by all parties hereto.
CITY OF PRIOR LAKE
By
Frank Boyles, City Manager
•
STATE OF MINNESOTA )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2015, by Frank Boyles, City Manager of the City of Prior Lake, Minnesota, a municipal
corporation on its behalf
Notary Public
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By
Kenneth L. Hedberg, Mayor
STATE OF MINNESOTA )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of ,
2015, by Kenneth L. Hedberg, Mayor of the City of Prior Lake, Minnesota, a municipal
corporation on its behalf.
Notary Public
OWNERS
Randy W. Ries
Roberta J. Latham
STATE OF MINNESOTA )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of ,
2015, by , .
Notary Public
This instrument drafted by:
Gregerson, Rosow, Johnson &Nilan, LTD
100 Washington Ave South, Suite 1550
Minneapolis, MN 55401
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http://priorlake.maps.arcgis.com/home/webmap/print.html 9/23/2015
9/11/2015
To: City of Prior Lake
From: Randy, Robby&Chelsea Ries
Subject: Driveway easement
Commissioners,
We live at 3995 Pershing Street SW in Prior Lake.Chelsea is our 26 year old daughter with
special needs.She needs assistance with most everything including ambulating. 5 years ago I lost my
business due to the recession. Over the past 4 years our household income was less than$40,000.All of
this contributes to the stress we are feeling regarding the dispute about our existing driveway.
The driveway in question was put in over 60 years ago by the property owners, Bill&Ed
Simpkins and the resident at that time, Dave Borgerding.The driveway is the approach to a double
garage and the back side of the house which is our main access to our home.As I understand it,the said
driveway was maintained for 38 years prior to the city taking ownership as a result of probate and tax
forfeiture. Even with that,there was no motion regarding said driveway for more than 20 years. It was
not until 2013 that it was brought to our attention that we are required to pay$5.00 per square foot for
the easement,while buildable property in Prior Lake is going for$1.75 per square foot.
I am prepared to tar the driveway which is a cost of$10,000. In preparation I have already
moved the sewer line at a cost of$3,200.00.These together cause hardship as we have to use our
retirement saving to complete the job.We are asking that you consider"grandfathering" it to us as this
narrow parcel is not buildable and really adds little or no value to the city.
Respectfully,
Randy& Robby Ries
•
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. 014 FOR* t'`<i• 1\10.`r 11 ...-.. ES • ' . . .. • •
That part of Government Lot 1, Section 3, Township 114, Range 22 described as follows;
' Commencing at the Northeast Corner of Lot 5, 'Spring Brook Park 2nd Addition, .Scott 'County, Ninnesota:, •
thence on a bearing of N 77°32' E along the north line of Outlot A a distance of 15.00. feet to the
point of beginning for a 1Q.00 wide driveway easement; thence•South a distance. of 46.17 feet, •
thence S 14'22' 38" W a distance of 6o feet more or less to the East line of Lot. 5 and its side
lines of easement extension or shorten on said East line, of Lot 5'. '
•
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I hereby certify that this is a true and correct representation of a .preWOmkf E..P€t' . r 154
"tvit 4oOt D6$C,EZIBEZ PtwPee-c-r 114 ,p'r-t- ' County, Minnesota as on file and of 'record
in the Office of the County Recorder in and for said County. .
•
•
• That .I am a duly Registered Land Surveyor under the Laws of the. State of Minnesota, •
Dated: BEPT • . . . :•. .
•
EtI ER ��, 20i5V `�
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• Allan R. Hastings# _ . t , 4 ioi
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Minnesota Registration No. .•1'tQo9, ..':. . . •
• 835 BarnesLake -Drive ' . {� M
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• Norwood Young•America,' Mn.: :55397• • •
14Di 1 0 .I•Y�„F��tI MA '1'"ltR.l�{r ti'MTO UPrT(., -» •Phone "952,.•445-4027 •