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HomeMy WebLinkAbout8A Wilds HOA Permit Report Phone 952.447.9800 / Fax 952.447.4245 / www.cityofpriorlake.com 4646 Dakota Street SE Prior Lake, MN 55372 CITY COUNCIL AGENDA REPORT MEETING DATE: NOVEMBER 9, 2015 AGENDA #: 8A PREPARED BY: JEFF MATZKE, PLANNER PRESENTED BY: JEFF MATZKE AGENDA ITEM: CONSIDER APPROVAL OF A RESOLUTION APPROVING A PERMIT AGREEMENT FOR PRIVATE USE OF PUBLIC PROPERTY BETWEEN THE WILDS HOMEOWNERS ASSOCIATION AND THE CITY OF PRIOR LAKE DISCUSSION: Introduction The purpose of this agenda item is to consider approving a Permit Agreement for Private Use of Public Property between the Wilds Homeowners Association (Wilds HOA) and the City of Prior Lake. The agreement allows the Wilds HOA to place security cameras at ten locations within their neighborhoods but on public rights of way, while indemnifying the City from any claims relating to the cameras. History Over the course of the last few years, vandalism and theft have increased within the Wilds community. As explained in the attached narrative from the Wilds HOA, the installation of cameras is being proposed to deter vandals and enhance security of the neighborhood. The City Council considered this item at the October 26, 2015 meeting (see attached minutes excerpt) and directed the City Attorney’s office to provide a report regarding privacy and city liability concerns. The City Attorney’s office has provided the attached memorandum per the City Council’s direction. Current Circumstances The attached agreement is the City’s standard for the Private Use of Public Property with changes made by the City Attorney specific to security cameras. This agreement protects the City’s interests and holds the City harmless if damage to the poles or cameras or the property of other persons as a result of the cameras and poles would occur at any time. Police Chief Elliot has extensive experience in ALPR systems. He was the grant writer for the systems used at Bloomington, authored departmental policy and exercised oversight on the system and testified at legislative hearings on the subject. Conclusion 2 The agreement will allow the Wilds HOA to install security cameras within public property while protecting the City’s interests. ISSUES: Various issues may be relevant to this request: 1. When the initial request was made, city representatives suggested that the cameras be placed on private property rather than in the right of way. The HOA advised that location in the right of way allows for a number of benefits including better coverage with fewer cameras. If the cameras were placed upon private property and directed to public property, the city would have no regulatory authority unless the installation violated other ordinance provisions. 2. The location of the camera poles in the rights of way do not interfere with any drainage or utility issues. Nor do they impact the clear sight triangles (the ability of drivers to see traffic on intersecting roadways) in a negative way. 3. The Wilds HOA will be responsible for the installation, maintenance, and operation of the cameras/poles. A City Right-of-Way Permit for the installation of poles will be required. 4. The Wilds HOA will be responsible to report and submit any video footage taken by the cameras to the proper public safety authorities by request or for any criminal cases. 5. The equipment is not initially intended to operate with an automated license plate recognition system (ALPR). We understand that the system could be revised to an ALPR status with a change in hardware and software without notifying the city. The council may wish to modify the attached agreement to preclude such conversion unless a new permit with additional regulations is applied for and issued by the city council. 6. Councilor Keeney has shared an e-mail regarding new laws in California on this topic. The city attorney indicates that no such laws exist in Minnesota except for systems with government owned data which would not apply here. We have asked if the SMSC have written policies with respect to their ALPR system but have not yet received confirmation whether a written policy exists. 7. The city attorney has provided his analysis which concludes by saying “It is our opinion that the agreement with the Wilds HOA for placement of security cameras in the public right of way will not violate the constitutional rights of private citizens and provides protections to the city in the event of liability.” 8. The 2040 Vision and Strategic Plan indicates that the city desires to strengthen homeowner associations (HOA). The Plan says we will do so by preparing and distributing materials to improve HOA effectiveness. Whether the effort to install cameras as a cooperative effort to improve neighborhood security fits within this objective is an individual judgment. 9. In numerous businesses throughout Prior Lake both indoors and out, cameras exist to discourage or capture certain types of behavior. In these cases the cameras are on private property and directed to private property although they may include some public property. In cities like Minneapolis, the police department utilizes 3 both privately owner cameras on private and on public property for law enforcement. The county does have cameras on intersection light poles at major intersections along County Road 42 which represent government owned cameras on public property and directed toward public property, but these cameras may be signal actuators rather than video cameras. 10. This is the first time an HOA has asked to use public right of way to monitor public property. The city attorney indicates that approval of this request does not create a precedent. He also indicates that the city council could approve the agreement for a period of time- say five years-, which could be followed by an evaluation and a determination of whether the agreement should be amended, rejected or renewed. The council could also restrict the evolution of the camera system so that the HOA would have to re-apply if they decide to move their system in another direction technologically. However the attorney cautions that there should be no question that the system is owned and operated by the Wilds HOA and not the city. FINANCIAL IMPACT: There is no financial impact as a result of this agreement. ALTERNATIVES: 1. Motion and a second to approve a Resolution approving a Permit Agreement for Private Use of Public Property as proposed or with amendments desired by the council. 2. Motion and a second to deny a resolution for a Permit Agreement for Private Use of Public Property. 3. Motion and a second to defer this item and provide staff with specific direction. RECOMMENDED MOTION: Alternative #1 ATTACHMENTS: 1. Excerpt of Minutes from October 26 Meeting. 2. Narrative from the Wilds Homeowners Association dated 10-16-15 3. Permit Agreement for Private Use of Public Property 4. City Attorney memorandum dated 11-4-15 5. E-mail from Councilor Keeney regarding California ALPR Law. 4646 Dakota Street SE Prior Lake, MN 55372 RESOLUTION 15-xxx A RESOLUTION APPROVING A PRIVATE USE OF PUBLIC PROPERTY AGREEMENT BETWEEN THE WILDS HOMEOWNERS ASSOCIATION AND THE CITY OF PRIOR LAKE Motion By: Second By: WHEREAS, The City is the owner/maintainer of the public right of way within the Wilds Community; and WHEREAS, The Wilds Homeowners Association would like to install security cameras within the right of way to enhance security and deter vandalism; and WHEREAS, The Wilds Homeowners Association is requesting approval of a Private Use of Public Right of Way Agreement to allow for the installation of security cameras within the public right of way; and WHEREAS, The City Council reviewed this agreement on November 9, 2015. 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. 1. The City Council of Prior Lake has determined the security cameras will not interfere with the public’s health, safety and welfare subject to the Private Use of Public Right of Way Agreement. 2. The Mayor and City Manager are hereby authorized to execute the encroachment agreement on behalf of the City. PASSED AND ADOPTED THIS 9th DAY OF NOVEMBER, 2015. VOTE Hedberg Keeney McGuire Morton Thompson Aye ☐ ☐ ☐ ☐ ☐ Nay ☐ ☐ ☐ ☐ ☐ Abstain ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ ______________________________ Frank Boyles, City Manager 1 4646 Dakota Street SE Prior Lake, MN 55372 EXCERPT CITY COUNCIL MEETING MINUTES October 26, 2015 ITEMS REMOVED FROM THE CONSENT AGENDA 5J Consider Approval of a Resolution Approving an Agreement for Private Use of Public Property Agreement between the Wilds Homeowners Association and the City of Prior Lake Planner Matzke reviewed the agenda report on this topic dated October 26, 2015. Members of the Wilds Association are present to answer questions. MOTION BY MCGUIRE, SECOND BY THOMPSON TO APPROVE RESOLUTION APPROVING AN AGREEMENT FOR PRIVATE USE OF PUBLIC PROPERTY AGREEMENT BETWEEN THE WILDS HOMEOWNERS ASSOCIATION AND THE CITY OF PRIOR LAKE Keeney: He has a problem of the public use of private property without very clear policies in place. I would propose sending this back for the staff to come back with a report of public surveil- lance. Asked who is responsible for the fees. Matzke: Replied the home owners association would get any necessary permits required. SUBSTITUTE MOTION BY KEENEY, SECOND BY MCGUIRE TO TABLE THIS ITEM AND DI- RECT STAFF TO TALK BRING BACK A REPORT ON THE POLICY IMPLICATIONS ON PRI- VATE SURVEILLANCE CAMERAS ON PRIVATE PROPERTY MONITORING PUBLIC PROP- ERTY. Morton: Commented that she wants to know the legal responsibility on this. Hedberg: Asked Police Chief Elliot what his opinion is. Elliott: Responded that the city wouldn’t have any control over the data. It isn’t equipment that the city has. So we’d have to go through the home owners association. The camera view would be the same as any person who was standing there would have. His feeling is the use of this video would be like any other surveillance by a private company. McGuire: Stated he would like to have City Attorney go through the report. Keeney: Commented that this isn’t a bad idea but I have a fear of this slippery slope. Morton: Mentioned that camera angles are wide and maybe you can see in a front yard/gar- age/window. She would like to see a bigger evaluation. Johnson: Noted that this is private activity until it is reported and until the police request it. Morton: Stated she agrees with Keeney and it needs more discussion. VOTE Hedberg Keeney McGuire Morton Thompson Aye ☐ ☒ ☒ ☒ ☒ Nay ☒ ☐ ☐ ☐ ☐ Abstain ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ The motion carried. October 16, 2015 To: Prior Lake City Council Re: Request For Private Use of Public Land BACKGROUND In the past few years, vandalism and theft have increased dramatically within The Wilds community. This year alone, over 70 plants have been stolen, several parked cars have been vandalized, and many episodes of petty theft have occurred. To combat this increase in crime, the Wilds Board has unanimously voted to install security cameras throughout the community. The total cost of this project will exceed $60,000. We believe the cameras will enhance security, serve as a deterrent to vandals, and assist in the prosecution of criminals; ultimately enhancing homeowner value. We believe The City will also benefit by reduced crime requiring police calls and potential evidence for criminal investigations. This proposal was reviewed with our homeowners at the most recent Annual Meeting and it received overwhelming support with no negative comments. Our plan has also been published and distributed to all homeowners. An electrical contractor has been selected and we have contracted with the camera provider after much research. This narrative will provide full details and formally request the Council’s approval to proceed as some of the poles will be located on land where The City holds an easement. POLE LOCATIONS The boulevard areas between the sidewalks and streets represent the most desirable placement of the 10 poles upon which the cameras will be mounted. These placement areas were selected to maximize visibility to potential vandals and provide the best camera angle. The exact location of each pole has been staked and approved during a site inspection by Katy Gehler, Public Works and Natural Resources Director. A”Warning” sign will be posed on each pole. A map of The Wilds identifying the location of each pole is attached. All appropriate “locates” will be contacted prior to digging. CAMERA AND POLE SPECIFICS The cameras that will be installed are state of the art and will be fixed (non-rotating) on the vehicles and license plates of those entering the community. They will not survey or face into private property areas. The poles are square shaped - 15’H x 4”W x 0.120”Wall Thickness. The poles will be embedded in concrete at ground level and approximately 14 feet above ground. They are of steel construction with a dark bronze powder coat. The cameras will store data for approximately 14 days. Storage is located directly on each camera itself. Attached you will find a pictures and schematics of the pole and camera. MAINTENANCE The Wilds Homeowners Association takes great pride in maintaining a beautiful community, and the cameras and poles installed would be no different. The poles are rust resistant, but would be treated immediately if they began to weather. Also, if one is hit or begins to lean, we will promptly replace or adjust the pole as necessary. The repairs, replacement and ongoing maintenance of the poles and cameras will be 100% responsibility of The Wilds Homeowners Association. LIABILITY AND INSURANCE Also attached please find a Certificate of Liability Insurance for The Wilds HOA, naming The City of Prior Lake as an Additional Insured. Also, we have reached an agreement in principle to hold The City of Prior Lake harmless for any and all liability caused by The Wilds HOA specific to this project. We are currently awaiting the formal written Agreement that is being drafted by the City Attorney’s office for execution. Lou Tesler, The Wilds Board member in charge of this project, will be attending the October 26 City Council meeting to answer any additional questions you may have. Thank you in advance for your favorable review. Sincerely, The Wilds Board of Directors Peter Hennen | Bob Facente | Lou Tesler | David Forbes | Brian Barber 1 PERMIT AGREEMENT FOR PRIVATE USE OF PUBLIC PROPERTY This Permit Agreement for Private Use of Public Property (“Permit Agreement”) is made and entered into this ____ day of ______________, 2015, by and between the City of Prior Lake, a Minnesota municipal corporation (“City”), and The Wilds Homeowners Association, a Minnesota nonprofit corporation (“WHA”). RECITALS WHEREAS, WHA is a nonprofit corporation organized for the purpose of governing the residential development commonly known as “The Wilds,” located in Prior Lake, Scott County, Minnesota; WHEREAS, the real property comprising The Wilds is described in several subdivision plats on file with the Office of the County Recorder, Scott County, Minnesota, including but not limited to the following: THE WILDS; THE WILDS 4TH ADDITION; THE WILDS 5TH ADDITION; THE WILDS NORTH; THE WILDS RIDGE; THE WILDS RIDGE NORTH; THE WILDS SOUTH; (hereinafter referred to as the “Plats”); WHEREAS, WHA is the fee owner of the following property located in The Wilds: Outlot Q, THE WILDS; Outlot C, THE WILDS 5TH ADDITION; Outlot B, WENSMANN 1ST ADDITION; Outlot H, WENSMANN 4TH ADDITION; (hereinafter referred to as the “WHA Property”); WHEREAS, the Plats dedicate to the public certain rights-of-way that are maintained by the City for the benefit of the public (hereinafter referred to as the “Right-of-Way”); WHEREAS, WHA requests permission from the City to construct poles at ten locations in the Right-of-Way for the purpose of constructing and installing security cameras on the poles (hereinafter referred to as the “Camera Poles”). The proposed locations of the Camera Poles are depicted on Exhibit A attached hereto; WHEREAS, such use of the Right-of-Way is not inconsistent with current use of the Right- of-Way by the City and the public; and 2 WHEREAS, WHA’s use of the Right-of-Way may in the future interfere with the City’s use of the Right-of-Way and therefore the City retains the right to require WHA to remove its Camera Poles from the Right-of-Way; NOW, THEREFORE, in exchange for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, WHA and the City agree as follows: 1. The recitals set forth above are incorporate herein. 2. Permit. WHA is permitted to install the Camera Poles in the Right-of-Way, at the approximate locations shown on Exhibit A, at WHA’s sole expense and risk, and with full knowledge that the City may, upon notice as provided herein, require the Camera Poles to be removed from the Right-of-Way at any future date at WHA’s sole expense. The Right-of-Way must be kept open to the public use at all times, and no fence or other obstruction may be placed in the Right-of-Way without the prior written approval of the City, which may be given or withheld in the sole discretion of the City. WHA shall obtain all necessary permits from the City prior to construction of the Camera Poles and shall pay associated permit fees. 3. Ownership and Maintenance of Camera Poles; Modification. WHA shall be the owner of the Camera Poles and shall maintain the Camera Poles in good condition at all times, at its sole cost and expense. If WHA fails to do so, the City may terminate this Permit Agreement as set forth below. In the alternative, the City may cause the necessary repairs or maintenance to be done at WHA’s cost. If WHA fails to pay the City for such costs, the City may assess the costs against the WHA Property. Once the Camera Poles are installed, WHA shall not make any modifications to the Camera Poles or otherwise modify the Right-of-Way without the prior written approval of the City, which may be given or withheld in the sole discretion of the City. 4. Termination by the City. In the event the City determines that WHA’s use of the Right-of-Way interferes with the City’s use of the Right-of-Way, as determined in the City’s sole discretion, or in the event WHA fails to comply with any requirement of this Permit Agreement within twenty (20) days after receiving a notice from the City requesting such compliance, the City through its City Manager may terminate this Permit Agreement by giving ninety (90) days written notice of termination to WHA by U.S. mail at the following address: 7100 Madison Ave. W., Golden Valley, MN 55425. Such notice may, at the City’s option, require WHA to completely remove the Camera Poles from the Right-of-Way at its sole cost and expense within thirty (30) days of said notice and restore the Right-of-Way to its condition prior to installation of the Camera Poles. 5. Termination by WHA. WHA may terminate this Permit Agreement at any time by giving twenty (20) days written notice of termination to the City by U.S. mail at the following address: 4646 Dakota St. SE, Prior Lake, MN 55372, Attn: Katy Gehler. Upon termination, WHA shall, at its sole cost and expense, remove all Camera Poles in the Right-of-Way and shall restore the Right-of-Way to its condition prior to installation of the Camera Poles. Termination by WHA 3 shall not relieve WHA of any responsibilities or obligations arising prior to the removal of the Camera Poles and restoration of the Right-of-Way. 6. Removal by City. If after termination of this Permit Agreement WHA fails to remove the Camera Poles as required by Paragraph 4 or 5 of this Agreement, the City may cause the removal to be done and the costs of such work shall be paid by WHA. If WHA fails to pay the City for such costs, the City may assess the costs against the WHA Property. 7. Consent to Special Assessment. WHA hereby acknowledges and consents to the City’s right to specially assess the WHA Property for any costs incurred by the City for any repair or maintenance performed pursuant to Paragraph 3 of this Permit Agreement, or any costs incurred by the City to remove WHA’s Camera Poles from the Right-of-Way pursuant to Paragraph 6 of this Permit Agreement. WHA waives any right to protest or appeal any special assessment levied pursuant to this Permit Agreement up to an amount of $10,000.00. 8. Future Development. WHA understands and acknowledges that the City may utilize the Right-of-Way at the Camera Pole locations at some future date and in the sole discretion of the City. In the event the City undertakes such development, and if this Permit Agreement is not terminated by the City as provided above, WHA agrees to accommodate the City’s use of the Right-of-Way for the purposes stated herein. However, WHA specifically acknowledges that the City has the absolute right to terminate this agreement or otherwise require WHA to discontinue WHA’s use of the Right-of-Way. 9. Security Camera Footage; Data Practices. If an incident is reported to the Prior Lake Police Department that may have been recorded on one or more of WHA’s security cameras, WHA shall share the relevant security camera footage upon the request of the police department. Security camera footage shall not be considered “government data” governed by the Minnesota Government Data Practices Act unless and until the City collects the footage. 10. Indemnity. Owner shall defend, indemnify, and hold harmless the City and its employees, subcontractors, attorneys, agents, and representatives from and against all claims, damages, losses, costs and expenses, including attorney fees, which may be incurred by or asserted against the City or for which the City may be held liable, which arise out of or result from WHA’s use of the Right-of-Way, including but not limited to the maintenance, repair, or removal of the Camera Poles, except liability caused solely by the negligence of the City. In the event that any action is brought against the City for which WHA is obligated to defend and indemnify the City pursuant to this paragraph, the City shall promptly notify WHA in writing and WHA shall assume the defense thereto, including the employment of legal counsel selected by the City in its sole discretion and the payment of all expenses and attorney fees incurred in connection with such defense. 11. Insurance. As long as this Permit Agreement is in existence, WHA shall maintain a general liability insurance policy which provides coverage for the Camera Pole locations for any damage to property of others or injuries to persons. Said insurance policy shall provide coverage on an occurrence basis in an amount no less than One Million Dollars ($1,000,000), and shall include contractual liability coverage to provide coverage for the indemnification provision in 4 Paragraph 10 above. Said policy shall name the City as an additional insured, and shall contain a clause which provides that the insurer will not cancel, non-renew, or materially change the policy without first giving the City ten (10) days prior written notice. WHA shall provide the City with a Certificate of Insurance for said policy which specifically details the conditions of this Paragraph 11. 12. Condition of Property. WHA accepts the Right-of-Way “as is” and the City makes no warranties regarding the conditions of the Right-of-Way or the suitability of the Right-of-Way for WHA’s purposes. 13. Utility Poles. If WHA desires to install security cameras on poles located in the Right-of-Way and owned by a third party, including but not limited to a utility company, it shall secure the written permission of the third party to do so. 14. Binding Effect. This Permit Agreement shall run with the land and shall be binding on and inure to the benefit of the parties hereto, their heirs, successors, or assigns. 15. Whole Agreement; Modifications. This Permit Agreement contains all of the terms and conditions relating to the permit granted herein, and replaces any oral agreements or other negotiations between the parties relating to the permit. No modifications to this Permit Agreement shall be valid until they have been placed in writing and signed by all parties hereto. IN WITNESS WHEREOF, the parties have executed this Permit Agreement as of the date first above written. 5 CITY OF PRIOR LAKE THE WILDS HOMEOWNERS ASSOCIATION By:___________________________ By:_________________________________ Kenneth G. Hedberg, Mayor Its: _________________________________ By:___________________________ Frank Boyles, City Manager STATE OF MINNESOTA ) )ss COUNTY OF __________ ) The foregoing instrument was acknowledged before me this ___ day of ____________, 2015, by Kenneth G. Hedberg and Frank Boyles, The Mayor and City Manager, respectively of the City of Prior Lake, on behalf of the City of Prior Lake through authority granted by its City Council. ____________________________ Notary Public STATE OF MINNESOTA ) )ss COUNTY OF __________ ) The foregoing instrument was acknowledged before me this ____ day of ____________, 2015, by ___________________, the _____________________ of The Wilds Homeowners Association, on behalf of the nonprofit corporation. ___________________________ Notary Public DAKOTAH P K W Y N W F O U N T A I N H I L L S D R N E J E F F E R S P A S S N W L O R D S S T N E CARRIAGE HI L L S P K W Y N E W I L D S PATH N W W I L D S LN NW W O O D D U C K T R L N W BROUGHAMBLVDNE STONE C R E S T PAT H N W A P P A L O O S A T R L NEWILDWOODTRLNW W IL D S PKWYNW DAKOT A T R LNW C A R R I A G E L N N E FOUNTAINHILLS DR NW O R I O N R D N W C R A N E C T N W C H E R R Y C T N E W IL D S VIEWNW JEFFE R SPASSNW M A J E S T I C L N N W B L A C K O A K R D N E 154 STN E DAKOTATRAILSOU T H SIOUX TR L N W PINEVIE WDRNW DA KOTAHPKWY N W F L A N D R E A U T R L N W M A N I T O U R D N ECREDITUNIONDRNW J E F F E R S P K W Y N W WOO D DUCKDRN W FOX TAIL T R L N W B O B C A T T R LNW P OINTEPA S S N W E N C L A V E C T N W T R O T T E R S T R L N E D A K O T A T R A I L N O R T H C A N T E R L N N E P A R K S I D E C T N W B R O O K M E R E B L V D N W M Y S T I C L A K E B L V D N W 456721 456782 456783 456742 JeffersWildlifePond LowerPrior La ke Mysti cLake Ha asLake JeffersFishPond JeffersPond 01 02 03 04 05 06 07 08 09 10 This drawing is neither a legally recorded m ap nor a survey andis not intended to be used as one. This drawing is a compilationof records, information and data from various c ity, county andstate offices and other sources. This document should be usedfor reference only. No representation is made that featurespresented accurately reflect true location. The City of Pr iorLake, or any other entity from which data was obtained,assumes no liability for any errors or om issions herein. Ifdiscrepancies are found, please contact the City of Prior Lake. 0 0.125 0.25 Miles City of Prior Lake²Minnesota 2016 Exhibit A ProposedCameraLocations Last Updated October 2015City of Prior Lake GIS EXHIBIT A ! 3344 33563332 15405 15401 15356 15368 15380 15392 3363335133393327 3368 15371 15373 15375 15377 1538315385 15387 15389 15329 15325 15398 15340 15342 15344 15346 15352 15354153561535815362153641536615368 W I L D H O R S E P A S S N W W I L D S P K W Y N W W I L D S P K W Y N W 456782 This drawing is neither a legally recorded map nor a survey andis not intended to be used as one. This drawing is a compilationof records, information and data from various city, county andstate offices and other sources. This document should be usedfor reference only. No representation is made that featurespresented accurately reflect true location. The City of PriorLake, or any other entity from which data was obtained,assumes no liability for any errors or omiss ions herein. Ifdiscrepancies are found, please contact the City of Prior Lake. City of Prior La ke²Minnesota 2016 ProposedCameraLocations Last Updated October 2015City of Prior Lake GIS !Cameras1 EXHIBIT A ! 15263 15265 15267 15269 15271 3317 3329 3341 3353 15311 3356 15306 15310 1531415335 15323 3314 3326 3401 3413 3425 3437 15317 15313 15307 3410 3434 3446 15398 15320 B I G H O R N P A S S N W WIL D S P K W Y N W This drawing is neither a legally recorded map nor a survey andis not intended to be used as one. This drawing is a compilationof records, information and data from various city, county andstate offices and other sources. This document should be usedfor reference only. No representation is made that featurespresented accurately reflect true location. The City of PriorLake, or any other entity from which data was obtained,assumes no liability for any errors or omiss ions herein. Ifdiscrepancies are found, please contact the City of Prior Lake. City of Prior La ke²Minnesota 2016 ProposedCameraLocations Last Updated October 2015City of Prior Lake GIS !Cameras2 EXHIBIT A ! 15449 15442 2811 15455 15439 3110 3118 2826 2834 2842 28502858 15437 15450 2833 15402 1541815434 3098 3101 2790 W O O D D U C K T R L N WB L A C K B E A R C I R N W G R O U S E CIR N W B O B C A T T R L N W 456782 This drawing is neither a legally recorded map nor a survey andis not intended to be used as one. This drawing is a compilationof records, information and data from various city, county andstate offices and other sources. This document should be usedfor reference only. No representation is made that featurespresented accurately reflect true location. The City of PriorLake, or any other entity from which data was obtained,assumes no liability for any errors or omiss ions herein. Ifdiscrepancies are found, please contact the City of Prior Lake. City of Prior La ke²Minnesota 2016 ProposedCameraLocations Last Updated October 2015City of Prior Lake GIS !Cameras3 EXHIBIT A ! ! 2552 2475 2461 2453 2418 14430 14356 14347143541434514352 MysticLake S T O N ECREST PATHNW W I L D S P K W Y N W 456783 This drawing is neither a legally recorded map nor a survey andis not intended to be used as one. This drawing is a compilationof records, information and data from various city, county andstate offices and other sources. This document should be usedfor reference only. No representation is made that featurespresented accurately reflect true location. The City of PriorLake, or any other entity from which data was obtained,assumes no liability for any errors or omiss ions herein. Ifdiscrepancies are found, please contact the City of Prior Lake. City of Prior La ke²Minnesota 2016 ProposedCameraLocations Last Updated October 2015City of Prior Lake GIS !Cameras4 EXHIBIT A ! ! 2552 14430 14356 14347 14345 14343 14341 2526 2524 2522 2520 2571 2573 2575 14260257714258 2589 14240 MysticLake WILDSDRNW W I L D S P K W Y N W This drawing is neither a legally recorded map nor a survey andis not intended to be used as one. This drawing is a compilationof records, information and data from various city, county andstate offices and other sources. This document should be usedfor reference only. No representation is made that featurespresented accurately reflect true location. The City of PriorLake, or any other entity from which data was obtained,assumes no liability for any errors or omiss ions herein. Ifdiscrepancies are found, please contact the City of Prior Lake. City of Prior La ke²Minnesota 2016 ProposedCameraLocations Last Updated October 2015City of Prior Lake GIS !Cameras5 EXHIBIT A ! 2552 270926952677 14171 14195 14213 14210 14190 14176 26612645 14210 14178 142462591142442593 2595 14236 2597 14234 142322601142302603 2605 14226 2607 14224 14222 2589 14220 2633 2620 2622 14199 14187 14197 14185 14195 14183 14193 14181 1419114179 14189 14081 14190 14160 14240 W I L D S D R N W COUGARPATH NW B A D G E R C I R N W This drawing is neither a legally recorded map nor a survey andis not intended to be used as one. This drawing is a compilationof records, information and data from various city, county andstate offices and other sources. This document should be usedfor reference only. No representation is made that featurespresented accurately reflect true location. The City of PriorLake, or any other entity from which data was obtained,assumes no liability for any errors or omiss ions herein. Ifdiscrepancies are found, please contact the City of Prior Lake. City of Prior La ke²Minnesota 2016 ProposedCameraLocations Last Updated October 2015City of Prior Lake GIS !Cameras6 EXHIBIT A ! 2921 2925 14035 2911 2907 14120 14098 2898 2930 2918 2906 1408214082 14077 14070 14058 2917 14027 COUGAR PATH N W W I L D S PATH NW This drawing is neither a legally recorded map nor a survey andis not intended to be used as one. This drawing is a compilationof records, information and data from various city, county andstate offices and other sources. This document should be usedfor reference only. No representation is made that featurespresented accurately reflect true location. The City of PriorLake, or any other entity from which data was obtained,assumes no liability for any errors or omiss ions herein. Ifdiscrepancies are found, please contact the City of Prior Lake. City of Prior La ke²Minnesota 2016 ProposedCameraLocations Last Updated October 2015City of Prior Lake GIS !Cameras7 EXHIBIT A ! 14094 14089 14078 14061 14064 14047 14029 3729 13900 1 4 0 S T N W M C K E N N A R D N W M C K E N N A R D N W 456742 This drawing is neither a legally recorded map nor a survey andis not intended to be used as one. This drawing is a compilationof records, information and data from various city, county andstate offices and other sources. This document should be usedfor reference only. No representation is made that featurespresented accurately reflect true location. The City of PriorLake, or any other entity from which data was obtained,assumes no liability for any errors or omiss ions herein. Ifdiscrepancies are found, please contact the City of Prior Lake. City of Prior La ke²Minnesota 2016 ProposedCameraLocations Last Updated October 2015City of Prior Lake GIS !Cameras8 EXHIBIT A ! 14290 3326 14321 3310 14350 14336 3429 14314 1427114268 3315 14282 14254 14249 3461 14232 14237 3470 14339 3447 3565 3447 3444 3468 3482 14300 14302 14304 14306 14308 14310 14320 14322 14299 JE FF ERS PKW Y NW M C K E N N A R D N W M C K E N N A R D N W This drawing is neither a legally recorded map nor a survey andis not intended to be used as one. This drawing is a compilationof records, information and data from various city, county andstate offices and other sources. This document should be usedfor reference only. No representation is made that featurespresented accurately reflect true location. The City of PriorLake, or any other entity from which data was obtained,assumes no liability for any errors or omiss ions herein. Ifdiscrepancies are found, please contact the City of Prior Lake. City of Prior La ke²Minnesota 2016 ProposedCameraLocations Last Updated October 2015City of Prior Lake GIS !Cameras9 EXHIBIT A ! 3437 3429 3513 3552 3536 3531 3514 3462 3448 3499 3483 3467 3496 3455 3478 3555 3560 3575 3563 3565 WILDSRIDGENW This drawing is neither a legally recorded map nor a survey andis not intended to be used as one. This drawing is a compilationof records, information and data from various city, county andstate offices and other sources. This document should be usedfor reference only. No representation is made that featurespresented accurately reflect true location. The City of PriorLake, or any other entity from which data was obtained,assumes no liability for any errors or omiss ions herein. Ifdiscrepancies are found, please contact the City of Prior Lake. City of Prior La ke²Minnesota 2016 ProposedCameraLocations Last Updated October 2015City of Prior Lake GIS !Cameras10 EXHIBIT A GREGERSON, ROSOW, JOHNSON & NILAN, LTD. ATTORNEYS AT LAW DAVID H. GREGERSON* RICHARD F. ROSOW+ MARK J. JOHNSON*† JOSEPH A. NILAN*† DANIEL R. GREGERSON* JOSHUA A. DOROTHY† SARAH E. SCHWARZHOFF DANIEL A. ELLERBROCK# JENNIFER M. SPALDING T. JAMES POWER MARGARET L. EVAVOLD JACOB T. MERKEL 100 WASHINGTON AVENUE SOUTH SUITE 1550 MINNEAPOLIS, MINNESOTA 55401 TELEPHONE: (612) 338-0755 FAX: (612) 349-6718 WWW.GRJN.COM ROBERT I. LANG (1922-2012) ROGER A. PAULY (RETIRED) #Also admitted in Illinois *Also admitted in Wisconsin †Also admitted in North Dakota +MSBA Board Certified Real Property Specialist Writer’s Direct Dial: 612-436-7471 Writer’s E-mail: mjohnson@grjn.com MEMORANDUM TO: Mayor and Councilmembers, Mark Elliott, Jeff Matzke, Frank Boyles FROM: Mark J. Johnson DATE: November 4, 2015 RE: Wilds Camera Agreement The Wilds Homeowners Association (“WHA”) recently approached the City of Prior Lake and requested permission to install poles for security cameras in the public right-of-way in The Wilds. The request was in response to increased reports of vandalism and theft in The Wilds. According to the letter provided by WHA, the cameras will be fixed (non-rotating) on the license plates of vehicles entering The Wilds, and will not survey or face into private property. City staff determined that The Wilds request was reasonable and asked our office to participate in drafting an agreement permitting WHA to use the right-of-way to install the camera poles at ten specified locations. The agreement was on the City Council’s agenda for the October 26, 2015 meeting. Some councilmembers expressed concerns about the agreement, citing privacy considerations. The matter was tabled, and the Council directed our office to prepare an opinion concerning legal issues related to permitting private security cameras on public property. As discussed below, it is our opinion that the agreement is not problematic from a legal point of view, and that the Council should make its decision based on policy considerations. I. Fourth Amendment Both the United States and the Minnesota Constitutions provide protection to individuals against certain government conduct. Relevant in this situation is the right to be free from unreasonable searches and seizures provided by the Fourth Amendment to the U.S. Constitution and Article I, Section 10 of the Minnesota Constitution. The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. Amend. IV; Minn. Const. Art. I, § 10. A person’s vehicle is an “effect” protected by the Fourth Amendment. See U.S. v. Jones, 132 S. Ct. 945, 949 (2012). With a few Error! Reference source not found. November 4, 2015 Page 2 limited exceptions, a search conducted without a warrant is presumptively unreasonable and violates the Fourth Amendment. State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003). For the following reasons, it is our opinion that the Agreement with The Wilds does not raise any Fourth Amendment concerns for the City. A. The Security Cameras Will Not Constitute a “Search” for Fourth Amendment Purposes To invoke the protections of the Fourth Amendment, a person must first establish that he or she had a “reasonable expectation of privacy in the area or items searched.” State v. McMurray, 860 N.W.2d 686, 691 (Minn. 2015). Courts have held that there is no reasonable expectation of privacy in the exterior of a car when it is located on a public street. See, e.g., United States v. Knotts, 103 S. Ct. 1081, 1085 (U.S. 1983); State v. Serna, 290 N.W.2d 446, 447 (Minn. 1980). Further, the use of video equipment and cameras to record activity visible to the naked eye does not ordinarily violate the Fourth Amendment. See Dow Chem. v. United States, 476 U.S. 227 (1986) (holding that the use of aerial photography did not violate the defendant’s reasonable expectations of privacy); California v. Ciraolo, 476 U.S. 207 (1986) (“The Fourth Amendment protection of the home has never extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.”). Finally, “what a person knowingly expose[s] to the public, even in the person’s own home or office, [is] not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351 (1967). According to WHA, the proposed cameras will be fixed on the right-of-way for the purpose of recording vehicles and license plate numbers. A vehicle owner has no reasonable expectation of privacy to the exterior of a vehicle when traveling on a public road. Further, a person has no reasonable expectation of privacy in activity that he or she knowingly exposes to the public and that is visible to the naked eye, even if such activity occurs on private property. It is our opinion that the camera surveillance proposed by WHA would not constitute an unreasonable search prohibited by the Fourth Amendment. B. The City is Not Conducting Any Search Second, even if the security cameras did amount to an unreasonable search, the Fourth Amendment’s prohibition on unreasonable searches and seizures only applies to government actors: “The Fourth Amendment was intended as a restraint upon the activities of the government. It was never intended to be a limitation upon other than governmental agencies.” State v. Buswell, 460 N.W.2d 614, 617 (Minn. 1990) (citing Burdeau v. McDonald, 256 U.S. 465, 475 (1921)). Even if a search is unreasonable, therefore, there is no constitutional violation if the search is conducted by a private individual. Id. The Fourth Amendment does apply, however, when a private individual “must be regarded as having acted as an instrument or agent of the state” when conducting the search. Id. Agency is determined on a case-by-case basis, and “[w]hether a private party should be deemed an agent or instrument of the government for Fourth Amendment purposes necessarily turns on the degree of Error! Reference source not found. November 4, 2015 Page 3 the government’s participation in the private party’s activities.” Skinner v. Rwy. Executives Ass’n, 489 U.S. 602 (1989). The Minnesota Supreme Court has considered the following factors as “helpful,” but not dispositive, in such an inquiry: (1) whether the government knew of and acquiesced in the search and (2) whether the search was conducted to assist law enforcement efforts or to further the private party’s own ends.” Buswell, 460 N.W.2d at 618 (quoting United States v. Walther, 652 F.2d 788, 792 (9th Cir. 1981)). In this case, even if the camera surveillance is a “search,” it is our opinion that a court would not conclude that WHA is an agent of the City for Fourth Amendment purposes. WHA is using the cameras to further its own ends—to stem theft and vandalism in The Wilds.1 While the City knows of WHA’s intended use of the cameras, its only involvement is to permit WHA to place the camera poles in the public right-of-way. The City has no authority to direct or control how WHA uses the cameras, and will not view or collect the camera footage except in connection with a police investigation. If the City were to take a more active role in the operation of the cameras, however, this analysis may change. Thus, the City should exercise caution in imposing any additional requirements on WHA with respect to the operation of the cameras. II. Liability To protect the City in the event that suit is brought against the City in connection with the cameras, we have included a specific provision in the Agreement requiring WHA to defend and indemnify the City in any such action. (Agreement ¶ 10). If such an action is brought, the City will select its own attorney and WHA will be obligated to pay all amounts necessary for the City to defend in the action, including payment of the City’s attorney fees. WHA is also required to maintain a general liability insurance policy, naming the City as an additional insured, in the amount of one million dollars. (Agreement, ¶ 11) The Agreement requires that the policy provide contractual liability coverage for the defense and indemnification requirements discussed in the preceding paragraph. Thus, the City should have no financial exposure in the event of a lawsuit. Further, the Agreement contains no expectation or requirement that the City would take over operation of the cameras if WHA decides to abandon its efforts. The Agreement provides that, upon WHA’s termination of the Agreement, it must remove all of the camera poles and restore the right-of-way at its own expense. The Agreement does not contemplate or require the City to take over the cameras in the event of termination. 1 We note that the document governing The Wilds expressly allows WHA to take measures for the security and safety of The Wilds: “The Association may, but shall not be obligated to, maintain or support certain activities within the Properties designed to make the Properties safer than they otherwise might be.” (First Amended Declaration of Covenants, Conditions and Restrictions for The Wilds dated July 31, 1995, § 4.09) Error! Reference source not found. November 4, 2015 Page 4 III. Collection of Camera Footage and Data Practices The proposed Agreement provides that the security camera footage will not be requested, collected or viewed by the City unless and until it is needed in connection with a police investigation. The purpose of this is to ensure that the City has no obligation to collect or disclose the footage pursuant to the Data Practices Act prior to its use in a criminal investigation. Instead, the camera footage will be treated the same as any other private security camera footage that the police department collects as part of an investigation. For example, if a theft or other crime happens at Target, the police department may obtain Target’s security camera footage that captured the crime. The police would obtain the WHA footage in the same manner. In this sense, WHA’s placement and operation of the cameras could be beneficial to the City in its efforts to investigate and prosecute crimes occurring in The Wilds. In terms of the City’s responsibilities under the Data Practices Act, the footage would not become government data until it is collected by the police department. Such footage is then “confidential data” while the investigation is active, and becomes public once the investigation is inactive. Minn. Stat. § 13.82, subd. 7 (2015). The City has no responsibility for the data unless and until it is collected by the police. Further, prosecution of an incident captured on a WHA camera will be no different than any other incident occurring in the City. In making a charging decision, the City’s prosecutor will have no additional obligation or requirement to charge just because the incident was captured on a WHA security camera. IV. Conclusion In summary, it is our opinion that the Agreement with WHA for the placement of security cameras in the public right-of-way will not violate the constitutional rights of private citizens and provides protections to the City in the event of any liability. Approving this Agreement does not require the City to approve similar requests from other private parties. Whether the City Council wishes to approve the Agreement and permit WHA to use the right-of-way is a matter of public policy to be decided in the Council’s discretion.