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12. Freasibility study for sewer & water for Lake Riley Hills CITYOF r" CI. 1 , ik f, , _ CHANHASSEN 1 . , . T = 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937 -1900 • FAX (612) 937 -5739 Art: , . , I ,,, c. >;. , --., ; 3,, . MEMORANDUM Mac:`: -w__ ---- —_ _ I Reic '.LAS'.._..._..- ...._.- -�_..�. TO: Don Ashworth, City Manager Date g to C • �TM 8S :r II FROM: Charles Folch, City Engineer . .--- - -- DATE: October. 9, 1991 - • 10"I`f 91 I SUBJ: Receive Feasibility Study for Watermain and Sanitary Sewer Improvements in Section 24, Lake Riley Hills, Call for Public Hearing 111 Project No. 90 -10 I The impetus for this project was `- tition from John Klingelhutz, the developer of the Lake Rile ' s Addition in the northeast corner of Section 24, northwest L e Riley. The purpose of this study is to determine the feas =• i.li °. of providing City sanitary I sewer and water service t. the & Lake Riley Hills subdivision and adjacent sery „e area. The study area encompasses the properties north and wes �� • p p ' .f Lake ley, south of the proposed - I State Trunk Highway 212 Co dor and - st of State Trunk Highway 101 and bound to the sou ” by the Mu = Urban Service Area limits. Preparation of this fe bility study beclle more complicated than originaliy anticipa. = due to a number rf factors such as the Municipal Urban S - ce Area (MUSA) expans • ' n in June of this year, I the condition- •acct of �wnstream trunk sewer facilities, t� =` s ; " '�' °" -'`� =` ' ` = nsitive areas and the allocation :. °A #rte _ eR =r ° . . fr s eptor. Given the size o tudy area and the numbe:, 'I potentially - affected property owne • C • ted with .. ��r <�� runk sewer and water facilities, staff has to feat . _ `, .- eduled a service area I workshop for Monday, October ,`, 991 at 7:00 PM in the City Council Chambers to informall ; 4 4 . iscuss the specifics of the feasibility study and proposed <<<`- j ec t. This workshop would take I place prior to the public hearing ine November The project engineer, Bud Osmundson of OSM, will give a formal I presentation of this report at the public hearing in November. Therefore, the only action for the City Council to make at the October 14 meeting is to acknowledge receipt of the feasibility 1 + % PRINTED ON RECYCLED PAPER 1 Don Ashworth October . 9 _1991 - Page 1 study and call a public hearing for the November 11, 1991 City Council meeting. I do not anticipate that the preliminary draft of the feasibility study will be ready in time to be included with the Council packets, however, 1 will distribute copies of this report at the October 14 meeting. Therefore, it is recommended that the City Council receive the feasibility study for watermain and sanitary sewer improvements in Section 24, Lake Riley. Hills Project No. 90 -10 and call a public hearing for the November 11, 1991 City Council meeting. jms Attachment: Feasibility Study (to be handed out October 14, 1991) c: Bud Osmundson, OSM John Klingelhutz Bill Engelhardt, Engelhardt & Associates I • 1 . ' 1 1 1= ITYOF i i i, 16161ANHASSEll 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937 -1900 • FAX (612) 937 -5739 I MEMORANDUM TO: Don Ashworth, City Manager a, - ,Y ;10 II FROM: Jo Ann Olsen, Senior Planner i DATE: September 26, 1991 -- - ! -° -1 - ' 1 SUBJ: Merz /Johnson vs. Trolls -Glen Homeowner's Association i In May of 1991, staff received a request from the attorney representing John Merz and Terry Johnson to enforce the City Code against the Trolls -Glen Homeowner's Association (Attachment #1). i The attorney provided documentation which proved that the homeowner's association had increased the use of their recreational beachlot over what was grandfathered in. Any increase over what is i grandfathered in is in violation of the City Code. On June 3, 1991, staff wrote the homeowner's association a letter stating they were in violation of the City Code and that they must reduce the , use of the recreational beachlot to what existed at the time the i ordinance was adopted (Attachment #2). The homeowner's association wrote back to staff stating that they did not intend to remove any of the boats from the recreational beachlot (Attachment #3). Staff i then had the City Attorney write a letter to the homeowner's association stating legal action would be taken by the city if they did not comply with the city's request (Attachment #4). II Staff, the City Attorney and representatives of the homeowner's association met to discuss a course of action. It was decided that the homeowner's association would make an application to the city I to request a variance to the recreational beachlot ordinance and request permission to keep the number of boats they desire (Attachment #5). The city agreed not to take legal action if the i application was made within 30 days. The application has not been submitted by the homeowner's association, nor has there been any contact by the homeowner's association. I During this whole process, the city has been working on an ordinance which would require all recreational beachlots which do not have a conditional use permit to receive a nonconforming use I permit. The purpose of the permit is to verify what existed at the time of the adoption of the recreational beachlot ordinance, and what exists today. Any recreational beachlots which have increased II 1 Trolls -Glen HOA September 26, 1991 Page 2 the use over what was grandfathered in would have to be brought into compliance. ' Since the city is doing this for all recreational beachlots, including the Trolls -Glen beachlot, staff decided not to ' individually prosecute the Trolls -Glen Homeowner's Association. As can be assumed, John Merz and Terry Johnson do not agree with staff's position and see no reason why we do not continue the process with the Trolls -Glen Homeowner's Association, since we have 1 the information documented for which to continue the process. They are therefore requesting the City Council direct staff to continue legal action against Trolls -Glen Homeowner's Association. ' RECOMMENDATION ' Staff feels we are taking appropriate action and recommend the City Council not reverse the previous decision and accordingly, no action is necessary. 1 11 1 1 i °eaw 9JJices of SCHOLLE AND BEISEL, Ltd. 430 PILLSBURY CENTER MARK SCHOLLE 200 SOUTH SDCTH STREET OF COUNSEL BRADLEY N. BEISEL MLNNEAPOLIS, MINNESOTA 55402.1413 STEPHEN G. SCHOLLE LESLIE C. SCHOLLE (1909 -1988) (612) 338-1330 JOHN E. CRABTREE III 1.800 - 422-0819 (MN WATS) (612) 3494409 FACSIMILE May 10, 1991 City of Chanhassen 1 Administrative Office 690 Coulter Street Chanhassen, MN 55317 Attn: Jo Ann Olsen Re: Merz /Johnson v. Trolls -Glen Homeowner's Association Our File No. 5521 -90 Dear Ms. Olsen: I am writing on behalf of John Merz and Terry Johnson, each of whom owns property in the Trolls -Glen First Addition subdivision of Carver County. I know you are generally familiar with that subdivision, and with the fact that Outlot B of that subdivision is a beach lot which has access to Lake Minnewashta. We are writing to formally complain of persistent and repeated violations of the applicable zoning ordinance regulating that beach lot, and to demand that the ordinance be enforced by the City of Chanhassen. , I am enclosing with this letter Affidavits of John Merz, Terry Johnson and myself which outline the uses to which the beach lot has been put since it was first improved in 1981. These Affidavits are made from the personal knowledge and observation of Mr. Merz and Mr. Johnson, and from my own knowledge of the situation. My Affidavit includes copies of pertinent portions of sworn depositions given by members of the Trolls -Glen Homeowner's Asso- ciation. As you can see from examining the enclosed material, it is 1 undisputed that the use to which Outlot B has been placed since 1981 is as follows: 1981 - One sixty four (64) foot dock, two boat lifts, two power boats. 1982 - One sixty four (64) foot dock, two boat lifts, two power boats. 1983 - One sixty four (64) foot dock, two boat lifts, two 1 power boats. II 1 May 10, 1991 • Ms. Jo Ann Olsen Page 2 1 ' 1984 - One sixty four (64) foot dock, two boat lifts, two power boats. 1986 - One sixty four (64) foot dock and additional section 1 of dock and three power boats. 19$7 - One sixty four (64) foot dock and two power boats. ' 1988 - One sixty four (64) foot dock and three power boats. 1989 - One sixty four (64) foot dock and three power boats. ' 1990 - One sixty four (64) foot dock and four power boats. 1 You will also see from the enclosed materials that the Trolls -Glen Homeowner's Association has passed a motion to allow the same sixty ' four (64) foot dock to be erected and a maximum of four power boats to be docked at the dock. We believe that the use of the beach lot for docking of any more ' than two boats at a time is a clear violation of the applicable beach lot ordinance. Through research and previous conversations with you and other city officials, I understand that the original ' ordinance regulating recreational beach lots was adopted by the City of Chanhassen in February of 1982 as Ordinance 47AB. It provided requirements for recreational beach lots which clearly were not met by Outlot B of Trolls -Glen First Addition. However, ' it also provided that uses which were being made of existing beach lots at the time the ordinance was passed were "grandfathered in" so long as they were not increased or intensified. Clearly, the use to which the beach lot was put when the ordinance was adopted was one sixty four (64) foot dock, two boat lifts and two power boats. The recent and contemplated uses certainly constitute an ' intensification and increase of the use of the beach lot which would be a violation of the ordinance. The present beach lot ordinance is Section 20 -263 of the Chanhassen 1 Zoning Code. 1 • • 1 '. - 1- 1 May 10, 1991 II Ms. Jo Ann Olsen Page 3 • 1 Mr. Merz and Mr. Johnson will report the usages to which the beach lot is being put this season. In the meantime, we would appreciate your beginning the processing of this complaint as I believe that II enforcement action is clearly justified at this time. Very truly yours, 1 �?� 4LLE S `L 1 ' • / • - 1 1i .)' = radley N. eisel 1 BNB / j rb cc. w /enc. John Merz 1 . Terry Johnson Scott Has Roger Knutson 1 1 1 1 1 1 1 1 1 _ - _ - - : _ 1 _ i I AFFIDAVIT OF TERRY JOHNSON II Terry Johnson, first being duly sworn on oath, states and II deposes as follows: 1. I reside at 3998 Lone Cedar Circle, Chaska, Minnesota. II This property is legally described as: Lot 5, Block 1, Trolls -Glen First Addition, Carver County, Minnesota. I have resided at that I location since 1986. II 2. As an owner of property in Trolls -Glen First Addition, I am a member of the Trolls -Glen Homeowner's Association. That 1 association owns Outlot B of Trolls -Glen First Addition, which is a beach lot which has approximately 69.3 feet of Lakeshore on Lake II Minnewashta. 1 3. Throughout the time I have resided at my present residence I have frequently observed the beach front area at Outlot I B and I have noted the uses to which Outlot B has been put by the association. II 4 . From my personal observation, I know that Outlot B has been put to the following uses during the summers of the years set I forth below: 1 1986 - One sixty four (64) foot dock and additional section of dock and third power boat. 1987 - One sixty four (64) foot dock and two power boats. 1988 - One sixty four (64) foot dock and three power I boats. 1 1989 - One sixty four (64) foot dock and three power ' boats. 1990 - One sixty four (64) foot dock and four power t boats. 11 6. Also attached to this Affidavit is a true and correct copy of the minutes of a meeting of the Homeowner's Association which took place on March 8, 1991. At that Homeowner's Association meeting a resolution was adopted to allow up to four boats to be docked at the Outlot in 1991. 7. I am making this Affidavit for the purpose of requesting ' that the City of Chanhassen enforce its beach lot ordinances as they apply to Outlot B of Trolls -Glen First Addition. FURTHER, YOUR AFFIANT SAYETH NOT: A TE " Y JOHNSON STATE OF MINNESOTA) SS COUNTY OF HENNEPIN) / , Subscribed and sworn to before me this 4 ; day of & .. 1991 by Terry Johnson. ' ��1� • ary Publi . 1 SRUCE E. LUNDGREN A• HOTARY •USLIC•MINN£SOTA CARVER COUNTY My Co•••r..iscion E . a'r.s :Ptcli 16. 1992 .1 2 ._ - - - - 1 • AFFIDAVIT OF JOEN MERZ John Merz, first being duly sworn on oath, states and deposes Y oses P 1 as follows: 1. I reside at 3900 Lone Cedar Circle, Chaska, Minnesota. 1 This property is legally described as: Lot 1, Block 2, Trolls -Glen First Addition, Carver County, Minnesota. I have resided at that ' location since 1977. 2. As an owner of property in Trolls -Glen First Addition, I am a member of the Trolls -Glen Homeowner's Association. That 1 association owns Outlot B of Trolls -Glen First Addition, a beach lot which has approximately 69.3 feet of lakeshore on Lake 1 Minnewashta. 1 3. Throughout the time I have resided at my present residence I have frequently observed the beach front area at Outlot B and I have noted the uses to which Outlot B has been put by the members of the association. 1 4. From my personal observation, I know that Outlot B has ' been put to the following uses during the summers of the years set forth below: 1 1981 - One sixty four (64) foot dock, two boat lifts, two power boats. 1 1982 - One sixty four (64) foot dock, two boat lifts, two power boats. 1 1 : 1 _ -. _ _ 1983 - One sixty four (64) foot dock, two boat lifts, two power boats. 1984 - One sixty four (64) foot dock, two boat lifts, two power boats. 1986 - One sixty four (64) foot dock and additional section of dock and third power boat. 1 1987 - One sixty four (64) foot dock and two power boats. 1988 - One sixty four (64) foot dock and three power boats. i 1989 - One sixty four (64) foot dock and three power boats. ' 1990 - One sixty four (64) foot dock and four power boats. 5. In the summer of 1990 I took a series of photographs 1 showing four boats being used at the Outlot. Prints of these photographs are attached to this Affidavit. , 6. Also attached to this Affidavit is a true and correct copy of the minutes of a meeting of the Homeowner's Association which took place on March 8, 1991. At that Homeowner's Association 1 meeting a resolution was adopted to allow up to four boats to be docked at the Outlot in 1991. ' 7. I am making this Affidavit for the purpose of requesting that the City of Chanhassen enforce its beach lot ordinances as ' they apply to Outlot B of Trolls - Glen First Addition. FURTHER, YOUR AFFIANT SAYETH NOT: JOHN RZ ' 2 • 1 I STATE OF MINNESOTA) ) SS COUNTY OF HENNEPIN) Subscribed and sworn to before me this )17 day of 1991 by John Merz. 1 (.if- 'idit' Notary Public I e!audia a stimac r bout? ruIUC - nuleasolA <> r ANOKA COUNTY 4 :.My commis . irt: :.ds.VO t I S 1 1 1 1 1 1 1 I . • 1 1 • 1 _ 3 1 _ _ - - March 9, 1991 II c TROLLS-GLEN HOMEOWNERS ASS OCIATION II A special meeting of the ,-..embers of Trolls -Glen Homeowners Association ::as II held ac the Chanhassen American Legion Hall at 12:15 P. M. on the above date with the following property owners represented: Ann Cath son ( Lot 5, Block 1, II 2, lsdditior., Daniel Hudson, Lot 2, Cedar steA�dition, Bernard and Irene 1st Addition, John Merz, Lot 1, Block 2, l Schneider, Lot 1, Block 3, 1st Addition, David Tester, Lot 2, Block 2, 1st Addition and Ivan and Mildred Underdahl, Lot 3, Block 2, 1st Addition. The II total properties represented were seven (7). Absent w er e t he M ll o wi ngerson , Jerry and lone Ahl;nan, Lot 4, Block 1, 1st Addition, Lot 3, Block 1, lst Addition, Gordon and Jacqueline Freeburg, Lot 2, Block 3, 1st Addition, Gary and Janet Menus, Lot 1, Cedarcrest, John D. and Kit Peter- II John, Lot 2, Block 1, 1st Addition. Total properties not represented were five (5) . The meeting ng was chaired by President David Tester. - Secretary Schneider advised II the members that due to an emergency at Northern States Power Company, Daniel Hudson had delivered a Secretary thehmernbers,Schneider to I vote for Daniel Hudson on all matters to come The meeting opened with considerable discussion following John Merz statement ntich that he did not agree with the minutes of the July 9, 1990 annual meetin stated the foilowng: "Ann CaCtiontofmade the idewalktohsavencroacheslonGthe Terry Association correct the location of a s_ Johnson property, with work to be completed by John Merz by Labor Day. This motion ry was seconded by Terry Johnson and on vote taken, all members voted ed in fatohe,twould John Merz stated that he did not remember the p of the vote fe the now agree to take out the section of the sidewal'kfand`put mi ne t the cur b bi the r men;, new section, with Trolls -Glen Association to pay cement and labor for installing the new sidewalk. Since this improvement was previously a no vbte was necessary. � Secretary Schneider then read the minutes of the March 4, 19 91 Board of Directors meeting, at which the directors made the following motion: tior.bynBernie Schneider, seconded by Daniel Hudson, the following was proposed: that are delinquent in the spe�oavotesat�nvtmeetinfi} ,ofOthe9Associaticnmuntilotheir II $pecil shall not be entitled I special assessment l assessment is full paid. This action is empowered by Article V, Section. • l,(b). of the By -Laws. On vote taken all directors voted in favor and the motion was carried. At this time Ann Cathcart informed the members that she was present at the March 4, 1991 meeting and said that she was not aware that the etingmwassanarrecto S • meeting. She was of the opinion that it was a meeting ° in the Johnson Merz lawsuit against on objected Glen ectedto t members. At this the directors calling ameetirg ,. Terry Joh: j directors, , a meeting. , the John orsz and of y Sec directors aid no advised Ann Cathcart members, Cathcart thatshe was not present at the start of there earrch 4, hid a th Mies 1991 meeting. Her husband, John Fern was present and was aware that the directors were acting on the delinquent member voting status while the il�t; assessments were delinquent. He also stated that the directors Hhadunohres onsib onsib in notifying all Association members of a particular meeting. that it is the membership's righ; to call directors and elect new i directors and o ofi'�cers _ to vote on removal of the pros if they are of the opinion that the directors are._actng- unfairly. - --, - 1.-77- - * -- -77-- - .r Trolls -Glen Homeowners Association Meeting, ;larch 9, 1991 page 2 At this time John Nerz asked that a discussion be held (of! the record) regarding II the pending lawsuit. All members present were asked to make a statement, if they so desired, regarding the lawsuit or any particulars regarding the problems on or about 0uclot 3. The discussion continued far about 45 minutes after which II President Tester officially reopened the meeting. It was again noted that the original suit against the Association and certain members served June 4, 1990 stated as follows: 1 Wherefore, Plaintiffs pray for an order of this court as follows: I 1. Ordering that the present private dock owned by Underdahl and Schneider be removed from Outlot B. II 2. Ordering defendents Perm and Cathcart to cease and desist their private use of Outlot B. 3. To permanently enjoining':defendents Hudson and :Iecusffrom constructing II improvements of any sort on or adjoining Outlot B . 4. Permanently ejjoining all further use of Outlot B by individual members of the Association unless and until said uses cr improvements to Outlot B II are ordered by or- atproved by the Association after the Association has complied with all notices and meeting requirements set forth in the govern- ing documents. I 5. For such other and further relief as may be deemed just by the court. John �ierz advised the members that his attorney had made the following suggestion II that Mr. Nerz would be willing to resolve his claims were the Association be willing to limit the placement of docks at the Outlot to TWO BOATS. This II was previously stated in-the letter from Kelly Law Offices on Feburary 21, 1991 to Trolls -Glen and members named in the suit. The members present were not willing to make such a concession. At this time II Ann Cathcart stated that she had to leave the meeting and had given David Tester her proxy to vote. Daniel Hudson then appeared at the meeting. Shortly there - after John :4erz advised the members that he was to continue with his suit and stated that it was going to cost the Association a lot of money. He then left II the meeting. A motion was then made by Ivan Underdahl that the Association shall allow no 1 more than four beats to be :moored at Outlot B, and that of the four boats, no more than two shall be high jowered boats. This motion was seconded by Daniel_ Hudson. On vote taken the following voted in Favor: Tester, Hudson, Underdahl. 1 Against the motion was Schneider. The motion carried. The matter of legal fees was then discuesed. The Association DECLARATIONS AND II COVENANTS, CONDITIONS AND RESTRICTIONS, Article V, Section 5 state: Annual and special assessments to be Borne Equally. Both annual and special assessments must be fixed et a rate which is equal for all Lots in Trolls -Glen. 1 - -- k o . • • • 1 Trolls -Glen Homeowners Association Meeting, March 9, 1991, page 3 The anticipated legal fees was estimated at $12,000.00. We have twelve property owners and therefore, the assessment per lot, needed to meet the legal expenses amount to $1,000.00. A motion was made by David Tester that an assessment of $1,000.00 per lot be levied at this time, with the law firm, Kelly Law Office, to bill all property owners. with the Assessment to be paid in 30 days. This motion was seconded by Daniel Hudson. On vote taken the following votes were recorded in favor: Hudson, Schneider, Tester, Underdahl and by proxy, Cathcart. There were no negative votes. The motion carried. 1 Schneider was advised to send the names of the property owners and addresses to Kelly Law Offices for billing. There being no further business the meeting was adjourned at 4:00 P. M. 1 Bernie Schneider 1 Secretary • 1 1 1 1 t • 1 1 1 • 1 ,r_ - 1 1 • II AFFIDAVIT OF BRADLEY N. BEISEL II Bradley N. Beisel, being first duly sworn on oath, states and deposes as follows: II 1. I am an attorney duly licensed to practice law in the state of Minnesota and I represent John Merz and Terry Johnson II relative to their request that the beach lot ordinances of the City II of Chanhassen be enforced with respect to Outlot B, Trolls -Glen First Addition, Carver County, Minnesota. 1 2. I have taken the sworn depositions of Bernard Schneider, Ivan Underdahl, each of whom is a member of the Trolls -Glen 1 Homeowner's Association. 1 3. Attached hereto are copies of portions of those depositions, each of which pertains to the use to which Outlot B II of the Trolls -Glen Homeowner's Association was put during 1981 and subsequent years. 1 -elk . s, FURTHER, YOUR,AFFIANT SAYETH N,' 4 / II BRADLEY BEISEL STATE OF MINNESOTA) ) SS 1 COUNTY OF HENNEPIN) Subscribed and sworn to before me thi /2 day of %� 1991 by Bradley N. Beisel. / MMIl/•�/N•w� Yom•: Mwn.• • V ♦ .• �1 ' 4 ;:= : , .: > :J,:;;; ; , - 7::;;;;',••::.: :; :: ; .. =t'ary Public , 1 1 II: - _ - - 26 1 1 Q. Now, I understand that as time went on, you and 2 Mr. Schneider came to an arrangement with another party with 3 respect to selling an interest in your dock; is that true? 1 4 A. Yes. 5 Q. And that -- was that person Patrick McGurk? 6 A. Yes, it was. 1 7 Q. Okay. And what was that arrangement? 8 A. That he purchased a one -third interest in the I 9 cost of the dock. 1 10 Q. From you and Mr. Schneider? 1 11 A. Yes. 12 Q. And do you know when that arrangement was made? 1 13 A. In the fall of 1986, I believe it was. Y 14 Q. And do you know or did you have an II 15 understanding as to what use Mr. McGurk would be making of 1 16 his interest in the dock? 17 A. He would use it to get to his boat. I 18 Q. Okay. So he had a boat too? 1 19 A. Yes. I 20 Q. And when did he get his boat? 21 A. I presume late summer or whatever of 1986. I I 22 am -- that was his doings, but I think that's when it was. Y 23 Q. Okay. Up to 1986, then, as I understand it, 1 24 the dock was the property of you and Schneider only; is that 1 25 true? KIRBY A. KENNEDY & ASSOCIATES bEPOSITION OF (612) 9.22 -3.955 IVAN -UNDERDAHL II 1 27 • I 1 A. We were the ones that paid for it. 2 Q. And therefore you were the ones that owned it? 1 3 A. I guess that gives us ownership -- I 4 Q. Okay. 5 A. -- if we paid for it. 1 6 Q. Now, up to that time, then, were you and I 7 Mr. Schneider the only ones that had boat lifts on the dock? 8 A. Yes. I 9 Q. Did -- were you and Mr. Schneider the only ones I 10 to dock your boats at the dock up to that time? 11 A. Yes. 1 12 Q. But after 1986, Mr. McGurk started docking his 13 boat there? I 14 A. Yes. I 15 Q. Did he also use a boat lift? 16 A. Yes. I 17 Q. And was that boat lift owned by Mr. McGurk I 18 solely? 19 A. As far as I know. I 20 Q. Do you recall the kind of boat that he had in I 21 terms of size and power? 22 A. It was a Lund. I don't know if you call it a I 23 bass - fishing boat, or that sort of thing, I guess. 1 24 Q. With an outboard motor? , 25 A. Yes. KIRBY A. KENNEDY & ASSOCIATES - _ DEPOSITION•OF _ (612)-922-19:55 _ - =VAN UNDERDAHL - 37 1 1 property. 2 Q. Okay. Now, we're up to 1986 when McGurk buys II P s a y 3 portion of the dock and puts his boat up there, or stores his II 4 boat there, docks his boat there. Okay? 5 A. Okay. I 6 Q. All right. Now, from that point forward, I I 7 want you to tell me the use that the dock was put to for 8 docking boats. In other words, whose boat was docked on the 9 dock from 1986 on? 1 10 A. Bernard Schneider's boat was docked on his 11 lift. My dock was docked on my lift. Pat McGurk's boat was II 12 docked on his lift. 1 13 Q. Anybody else dock a boat there? 14 A. Not during that time. Not that I am aware of. I 15 Q. Well, how about after that time? 1 16 A. Well, after that time, Pat McGurk left. 17 Q. Okay. What happened? II 18 A. And so did his boat leave. I 19 Q. And how about his one -third ownership, what 20 happened to that? II 21 A. That stayed in his ownership for possibly 1 22 almost two years, because he still owned a vacant lot -- 23 Q. Okay. I 24 A. -- in the Trolls -Glen First Addition. 1 25 Q. Now, during that two years, McGurk -- did - - - - KIRBY A. KENNEDY & ASSOCIATES ;DEPOSITION OF - (612) 922 -1955_ IVAN UNDERDAHL II 1 38 I 1 McGurk dock his boat on the dock? 2 A. It was gone. 1 3 Q. So the answer is no? . I 4 A. State the question -- restate the question. 5 Q• During Durin those two years, that would be -- I 1 6 believe you said for two years he -- 7 A. Well, whatever length of time. 1 8 Q. At least one season? II 9 A. Yes. 10 Q. He did not dock his boat on the dock? 1 11 A. That is correct. 12 Q. All right. But now I understand that in 1988, 13 he found a buyer for his one -third interest, and that would I 14 be Mr. Ferm and Ms. Cathcart; is that right? I 15 A. Yes. 16 Q. Okay. And as I understand it, McGurk then sold 17 his one -third interest in the dock to Ferm and Cathcart, and I 18 that was okay with you and Schneider? 19 A. Yes. I 20 Q. And that was in the summer of 1988? I 21 A. I believe it was in 1988. I don't know the 22 exact times. I 23 Q. Well, I am going to show you a document that's I 24 been previously marked as Cathcart Deposition Exhibit No. 1. 25 And it appears to be a letter to Mr. Schneider from Mr. McGurk. . * - - RIRBY A. KENNEDY & ASSOCIATES II (612) 922 -1955 DEPOSITION OF - -_ IVAN UNDERDAHL 13 1 A. Well, the decision was to put our dock into the 2 lake -- we are talking about the 64 -foot section -- and Mr. 3 Underdahl had a boat and a boat lift and I had a boat and a 1 4 boat lift, and these were put in. John Ferm apparently 5 decided he did not need put to ut his section on, so he left it 6 in his garage. , 7 Q. All right. Is that to say that you feel that Mr. put Ferm could ut that out there if he wanted to at any 9 particular time? 10 A. Yes. � 11 Q. Now, in 1981, there was a dock and two boat lifts 12 and two boats at the association outlot, correct? 1 13 A. Yes. 14 Q. And I am showing you what was previously marked 15 Underdahl Deposition Exhibit Number 8. It's a photocopy of a 16 photograph plus some writing on the back that Mr. Underdahl 17 testified that that's what the dock and boats looked like in 18 the fall of 1981. Is that accurate? 19 A. Yes. 20 Q. 'Would that also have been about what it looked 21 like in the fall of 1982 and '83 and '84? 22 A. Uh -huh. 23 Q. You have to say "yes ". 24 A. Yes. 1 25 Q. So in '81 and '82 and '83 and '84, two boats were KIRBY A. KENNEDY & ASSOCIATES DEPOSITION OF - (612)-922-1955 - - - BERNARD SCHNEIDER' 1 14 '' 1 used at the association dock? 2 A. Yes. 3 Q. Now, it's also my understanding that in 1990 Mr. 1 4 Hudson started docking a boat at the outlot. Is that true? 5 A. Yes, he did. I 6 Q. Was it in 1990 that he started that? 1 7 A. I am sure it was this past year, yes. 8 Q. And do you recall how it was that he felt he was 9 entitled to dock a boat at the outlot? - 10 A. I can't give you that answer. I assume that when 11 he purchased the property, that he was advised that he had 1 12 boat mooring rights the same as all other residents of the j 13 association. He did not specifically ask me or Ivan 14 Underdahl whether he could put the boat at the dock, but he 15 assumed it was an association dock for the use by the 16 members. 17 Q. Do you know whether his docking of the boat at 1 18 the association lot was ever discussed at a meeting of either 19 the association or the board of directors? 20 A. I am sure it was not. 1 21 Q. How about when Mr. McGurk started to dock his 1 22 boat at the association dock, was that ever discussed at the 23 association meetings? 24 A. I question whether it was discussed. The 1 25 original motion made and approved by the board of directors KIRBY A. KENNEDY & ASSOCIATES DEPOSITION OF (612) 922 - 1955 - BERNARD SCHNEIDER Trolls Glen Homeowners Association 1 June 3, 1991 Page 2 1 Should you have any questions, please feel free to contact me. 1 Sincerely, Jo Ann Olsen Senior Planner JO:v • cc: Elliot Knetsch, City Attorney's Office 11 Bradley Beisel Paul Krauss, Planning Director 3 Planning Commission !I City Council 1 1 TROLLS -GLEN HOMEOWNER'S ASSOCIATION • 1 June 10, 1991 138 Ann Olson, Senior Planner City of Chanhassen 690 Coulter Drive Chanhassen, MN 55317 Dear Ms. Olson: We acknowledge receipt of your letter of June 3, 1991, stating that we are 1 in violation of the Recreational Beachlot Ordinance, due to your interpre- tation that only two power boats were grandfathered in at the time that the ordinance was adopted. Your letter states' that if the power boats are not reduced to two within 10 days, the matter will be turned over to the City Attorney's Office. We have a difference of opinion on what was grandfathered in at the time the ' ordinance was adopted. According to the DECLARATIONS OF COVENANTS, CONDITIONS AND RESTRICTIONS of Trolls -Glen 1st Addition and Cedar Crest Lots #1 and #2, dated September 22, 1975 and approved by the City of Chanhassen, it states that all property owners in this subdivision shall have boat mooring rights ' at Outlot B. I am enclosing a copy of the Declarations, Article X and XI. • We are also enclosing a copy of the minutes of Trolls -Glen Homeowner's Assoc- , iation DIRECTORS MEETING of June 6, 1981 and also of February 27, 1984, whereby the directors approved mooring of 4 boats, with annual approval for changes, if necessary;. It is called to your attention that John Merz, ' who submitted the Affidavit and complaint to your office, was a director of the Association and made the motion to allow four boats at the dock. On June 4, 1990, Trolls -Glen Homeowner's Association received a SUMMONS by 1 John Merz and Terry Johnson praying for an order of the court of Carver County as follows: ' 1. Ordering that the present private dock owned by Underdahl and Schneider be removed from Outlot B. 2. Ordering defendents Ferm and Cathcart to cease and desist their private use ' of Outlot B. 3. To permanently enjoining defendants Hudson and Mecus from constructing im- provements of any sort on or adjoining Outlot B. 4. Permanently enjoining all further use of Outlot B by .individual members of ' the Association unless and until said uses of or improvements to Outlot B are ordered by or approved the Association after the Association has com- plied with all notice and meeting requirements set forth in the governing ' documents. 5. For such other and further relief as may be deemed just by the court. On February 21, 1991, we were advised that John Merz filed for an injunction ' preventing the Association from installing boat docks this season. On March 26, 1991, Judge Thomas R. Howe dismissed the suit in its entirety. RECEIVED 1 JUN 111991 CITY tdt Urtru ThMSSEN 1 Jo Ann Olson page #2 • The legal proceedings to this date have amounted to $13,470.90. Our Association board of directors is of the opinion that this latest action by John Merz and Terry Johnson is continuing harassment, involving con- siderable addtional costs. We request that the City of Chanhassen . II dismiss the Johnson -Merz complaint for the reasons stated earlier in this letter and restated here: 1. The rights to moor a boat at Outlot B are listed as a Warranty on the Abstracts of Title to the property owners in Trolls -Glen 1st Addition and Cedar Crest Lots #1 and #2. '. 2. The rights to moor a boat are part of the Declarations of Covenants 1 and Conditions of the Trolls -Glen subdivision, which were approved by the City of Chanhassen in 1975. 3. John Merz was a director of Trolls -Glen HOmeowner's Association and which approved the dock and mooring of four boats, (Director's meet- ings of June 6, 1981 and February 27, 1984. 4. It is the opinion of the directors of our Association that the rights given to each property owner, boat mooring, were not denied by the City Ordinance passed in 1985. 5. The boats moored at the Association dock have not created any hazard to any person wishing to use the beach lot. All persons using the ' boats are responsible individuals. We do not intend to remove any of the boats from the Association dock, as demanded in your letter of June 3, 1991. We request an early review of the Johnson -Merz actions so that the matter may be disposed of without further costs to the members of Trolls -Glen Homeowners Association. er truly s, 1 D v.i4 Tatter, en Dael tiudso Vic e�Ires ent Sezn� ideri�ft c a ary T reasure cc: Don Chmiel, Mayor Steven Emmings, Chairman of the Planning Commission • - 1 1 1 CAMPBF ., KNUTSON, SCOTT & F P.A. 1 Attorneys at Law Thomas J. Campbell 1 Roger N. Knutson (612) 456 -9539 Thomas Scow Fax (612) 456 -9542 F Gary G. Fuchs ' James R Walston Elliott B. Knetsch June 24, 19 91 Gregory D. Lewis Dennis J. Unger 1 Mr. David Tester 3897 Lone Cedar Circle Chaska, MN 55318 Mr. Bernie Schneider 1 Mr. Daniel Hudson Re: Trolls Glen Homeowners Association • 1 Ordinance Violation Gentlemen: Your letter dated June 10, 1991, has been referred to us for response as the Chanhassen City Attorneys. Please be advised that storage of more than two boats at the dock on Outlot constitutes a 1 violation of the City's Recreational Beachlot Ordinance. The penalty for an ordinance violation is ninety (90) days in jail and a $700.00 fine for each day the violation continues to exist. 1 If more than two boats are continued to be stored at the dock on Outlot B beyond July 1, 1991, the City has directed us to take appropriate legal action to enforce the City's ordinance. Legal 1 action may include criminal prosecution or an injunction to enjoin storage of more than two boats at the dock. Very truly yours, CAMPBELL, KNUTSON, SCOTT & FUCKS, P.A. 1 1 By: Elliott B. Knetsch ' EBK:m1w cc: Paul Krauss JoAnn Olsen 1 Don Ashworth • Yankee Square Office III • Suite 202 • 3460 Washington Eagan, MN 55122 hin ton Drive • Ea Yan q g g 1 1 CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. Attorneys at Law i - Thomas J. Campbell Roger N. Knutson (612) 456 -9539 I Thomas M. Scott Fax (612) 456-9542 Gary G. Fuchs James R. Walston July 11, 1991 Elliott a Knecsch , Mr. David Tester, Mr. Bernie Schneider, and Mr. Daniel Hudson 3897 Lone Cedar Circle Chaska, MN 55318 1 Re: Trolls Glen Homeowners Association Ordinance Violation I Gentlemen: This letter confirms the agreement reached between the City and I Trolls Glen Homeowners Association at the meeting on July 10, 1991. The City will not proceed with further enforcement action if the Association does the following: ' 1. Permanently discontinues storage of more than two boats at the ' dock on Outlot B; or 2. Applies for a conditional use permit and variance for the beachlot by August 10, 1991; or 3. Petitions the Planning Commission and City Council for amendment 1 or repeal of the beachlot ordinance by August 10, 1991. During the time an application or petition is pending, the City will enforcement action. Once the City I not take enf Y makes a final decision in this matter, the City reserves the right to proceed with further action as it deems appropriate. Of course, no action will be taken if your application 1 is approved or the beachlot ordinance is amended to allow your existing use of the dock. If you do not believe this accurately reflects our agreement, please II contact me immediately. Thank you. Very truly yours, 1 CAMPBELL, KNUTSON, ' COTT & FUC P.A • By: ' I, • EBK:mlw Elliott - tsch cc: Paul Krauss JoAnn Olsen Don Ashworth Yankee Square Office III • Suite 202 • 3460 Washington Drive • Eagan, MN 55122 - ,_ /, r' -jam ' � 1 i ECEIVED ' c' aw Ogres of SEP 2 3 1991 - SCHOLLE AND BEISEL, Ltd. 430 PILLSBURY CENTER WY Vr LhmiVrIA6SEN MARK SCHOLLE 200 SOUTH SIXTH STREET OF COUNSEL BRADLEY N. BEISEL MINNEAPOLIS, MINNESOTA 55402 -1488 STEPHEN G. SCHOLLE LESLIE C. SCHOLLE (1909 -1988) (612) 338-1330 'JOHN E. CRABTREE I11 1- 800-4224819 (MN WATS) ' September 19, 1991 (412) 3494409 FACSIMILE Mr. Don Ashforth City Manager ' City of Chanhassen 690 Coulter Drive P.O. Box 147 Chanhassen, MN 55317 ' Re: Merz /Johnson v. Trolls -Glen Homeowner's Association Our File No. 5521 -90 ' Dear Mr. Ashforth: This will confirm the request of John Merz to have the matter of ' the enforcement of the Chanhassen Beach Lot Ordinance against the Trolls -Glen homeowner's association added to the agenda of the October 14, 1991 city council meeting. At that time, Mr. Merz or ' someone on his behalf will move that the city attorney be directed to immediately prosecute any existing or future violations of the beach lot ordinance by the Trolls -Glen homeowner's association. 1 In hopes of shortening the presentation at the city council meeting, I am making the following explanation of the situation as it presently exists and including with this letter many exhibits ' which document these facts. Please provide this material to the members of the city council in advance of the October 14 meeting. Through previous litigation which involved the sworn testimony of many present members of the Trolls -Glen homeowner's association it has been irrefutably established that in 1982 Outlot B of the ' Trolls -Glen subdivision was used for the docking of no more than two motorized watercraft. It has also been irrefutably established that this usage has been expanded so that during the last two seasons four power boats were permanently docked at the Outlot. ' Please see a copy of my May 10, 1991 letter to Joanne Olson for further information regarding these points. The enclosures with that letter include affidavits of John Merz and Terry Johnson, ' which in turn include photographs of the Outlot taken in the summer of 1990 and copies of the minutes of the Trolls -Glen homeowner's association meeting of March 1, 1991. Also enclosed is my ' affidavit which includes portions of sworn deposition testimony from Bernard Schneider and Ivan Underdahl concerning boat usage at the Outlot. 1 September 19, 1991 ' 1 Mr. Don Ashforth Page 2 In response to my May 10 letter to Joanne Olson, Ms. Olson sent a certified letter to the Trolls -Glen homeowner's association stating that "If storage of more than two power boats continues after ten days of receipt of this letter, the matter will be turned over to the city attorney's office." A copy of that letter is enclosed. The homeowner's association ignored the deadline but instead responded to Ms. Olson's letter with a letter of their own dated June 10, 1991 in which they argued that the restrictive covenants governing the homeowner's association superseded the beach lot ordinance. The he boats from the association dock. " A remove an y of copy of that any letter and the enclosures are also enclosed. The city attorney responded to the association's letter on June 24, 1 1991 by sending to David Tester, Bernie Schneider and Daniel Hudson a letter setting forth the potential penalties for continued violation of the beach lot ordinance and setting forth another deadline by which compliance with the ordinance must be demon- strated, namely July 1, 1991, after which date "The city has directed us to take appropriate legal action to enforce a t =e c s ordinance." A copy of said letter is enclosed. Apparently, meeting was held with Tester, Schneider and Hudson at which The Knetsch and other parties from the city were in attendance. result of that meeting was yet another deadline (this time August 10, 1991) by which the association must either comply with the ordinance or make formal application for relief from the applica- tion of the ordinance. A copy of that letter is enclosed. •Again, the association did nothing. When the third deadline came and went without action by the city, Mr. Merz and I met with Mr. Knetsch and Joanne Olson to express our dissatisfaction with the lack of action on the part t of the it At that time, the outline of the city's p was forth which, as we understand it, involves the passage of an ordinance requiring all beach lots to register any This alleged n is conforming uses before an as yet unset deadline. unsatisfactory to Mr. Merz because it puts our case in amongst the cases of all other beach lots regardless of the merits of the claims that Our case i may or one in y which your own behalf attorney admits lots. Our 1 violation is "ripe for prosecution ". This then is the background for the appeal that will be made at the city council meeting for immediate and vigorous enforcement of the beach lot ordinance with respect to the Trolls -Glen homeowner's association. ot he agenda confirm for me that October 14, 1991 council meetings 1 placed on t g 1 1 II CITYOF r II 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937 -1900 • FAX (612) 937 -5739 II MEMORANDUM TO: Mayor and City Council II FROM: Paul Krauss, Planning Director II DATE: September 5, 1991 SUBJ: Recreational Beachlots I From time to time, problems have surfaced regarding enforcement of ordinance requirements on recreational beachlots. The issues that I have arisen have not been serious with beachlots approved under the current ordinance, since both the city and the users of the beachlot have a full understanding of exactly what is allowed and II what is not. The bulk of the problems that have occurred have stemmed from beachlots which pre -date the ordinance and are grandfathered. I According to the ordinance, the grandfathered beachlots are intended to be restricted to uses which pre- existed the ordinance, which dates back to 1982. An inspection was made of properties at II that time and several years later, but unfortunately the information is less than perfect. For example, if we believe that there were three boats using a dock, we may not have been aware that one was out for repair or even on the lake at the time the 11 count was made. In addition, these non - conforming beachlots may have increased in intensity at some point since the adoption of the ordinance and staff was not made aware of this and was not in a 1 position to respond. To resolve this matter once and for all, we have worked with the I Planning Commission to develop the following approach. The approach is principally one of having the city adopt a new ordinance that requires that non - conforming recreational beachlots obtain a permit from the city within one year of the adoption of I the ordinance or all activity must cease. The purpose of the permitting requirement is to document once and for all exactly what is allowed on this beachlot and have it established in a legally II recordable document. In addition, staff would intend to try to turn back the clock were feasible, and limit the permitted uses to those which are legally grandfathered. The Planning Commission has II supported this approach, but we wanted to bounce it off of the City II . 1 Mayor and City Council 1 September 5, 1991 Page 2 Council prior to undertaking it since it is likely to cause a good deal of discussion amongst those beachlot users. What I, would propose to do is hold a series of informational meetings with the beachlot representatives so that the potential ordinance could be described and we could hold discussions on what we believe to be the legal non - conformity. In addition, any information they may have to document legal non - conforming uses could be considered. After these meetings were held later in the fall, we would propose to bring the ordinance which is attached to this memo in for review and adoption and thereafter embark on the permitting process for 1 the non - conforming beachlots. We are asking that the City Council review and comment on the desirability of proceeding with this effort. The Planning Commission strongly favors this course of action, but before proceeding we did want to give the City Council an opportunity to provide direction. In a related matter, there is an on -going dispute concerning the Trolls Glen Homeowners Association beachlot and adjoining property owners. There was a claim that activity on this beachlot exceeds the grandfathered non- conformity and the city is being asked to intervene and take action to cause the non - conformity to cease. In light of the pending proposal to undertake revisions to the ordinance, we have informed the participants that we will not proceed with the taking of any legal action until the process is completed. This position does not satisfy one of the participants in this dispute, and we have been informed that they will likely request the City Council to order staff to take action immediately. In light of the proposed ordinance amendments, we would recommend that the City Council defer action on this item, but if you direct staff otherwise, we will proceed under current ordinances. 1 Councilman Wing has also raised some questions regarding the beachlot ordinance and water surface usage codes. He has indicated that a review of the entire policy might be appropriate, but in particular is concerned with the docking of boats in an area contained with the extended property line of riparian lots. At the present time we do not regulate or establish a boat mooring 1 setback, but Councilman Wing has requested that the imposition of such a standard be investigated. 1 1 1 1 1 II . 4 • CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 20 OF THE CHANHASSEN CITY CODE CONCERNING NON - CONFORMING BEACHLOTS THE CITY COUNCIL OF THE CITY OF CHANHASSEN ORDAINS: Section 1. Chapter 20 of the Chanhassen City Code is amended by adding Section 20 -79 to read: Sec. 20 -79. Non - Conforming Recreational Beachlots. (a) Within one year after the adoption of this ordinance provision, all legal non - conforming recreational beachlots must receive a non - conforming use permit or the use must cease. The ' permit shall be issued following receipt of satisfactory proof . concerning the nature and extent of the legal non - conforming use. The permit shall describe the nature and extend of the allowed ' use. The use may not be expanded or intensified over what is described in the permit. (b) Applications for a non - conforming use permit shall be filed with the Zoning Administrator on prescribed forms. A fee, as established by the City Council, shall be paid upon filing the application. The Zoning Administrator shall set a time and place for a hearing before the Planning Commission. At the hearing the Commission shall hear such persons as wish to be heard. Notice of the hearing shall be mailed not less than ten (10) days before ' the date of the hearing to all owners of property on the lake where the beachiot is located. Published notice shall also be made once at least ten (10) days before the hearing. Failure to give notice, however, shall not invalidate the proceeding. At the close of the hearing the Planning Commission shall make a recommendation to the City Council. The City Council shall make the final decision. 1 Section 2. This ordinance shall be effective immediately upon its passage and publication. I PASSED AND ADOPTED by the Chanhassen City Council this f , 1991. ATTEST: Don Ashworth, Clerk/Manager - Donald J. Chmiel, Mayor (Published in the Chanhassen Villager on , 1991.) 1 f 1 r08/02/91