11. Potential altered survey/variances, 6285 Audubon Circle .1 I
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II
CITY OF
i CI1ANBASSEN
1 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317
(612) 937-1900 • FAX (612) 937-5739
IMEMORANDUM
TO: Mayor and City Council
ITHROUGH: Don Ashworth, City Manager
IFROM: Paul Krauss, Planning Director r-----
DATE: September 20, 1990
1 SUBJ: Variance and Potential Falsified Survey for the Property
Located at 6285 Audubon Circle
IStaff has recently become aware of a disturbing event that is
occurring with the construction of a home at 6285 Audubon Circle.
1 It appears as though a registered survey submitted in the
application for the building permit last year was falsified to
eliminate an illustration of the street's cul-de-sac bubble that
intrudes onto this property. As a result of the altered
I documentation, there is a variance that exists between the home,
that is nearly completed, and the street. This matter came to our
attention because of the alertness of Steve Nelson, one of the
I city's building inspectors, who believed that the home appeared to
be unusually close to the street. The builder of the home is
Gordon Koehnen. The survey that was submitted to us for a building
I permit appears upon closer inspection to have had the illustration
of the cul-de-sac bubble erased. We contacted DeMars-Gabriel who
were the land surveyors on this project and they indicated that the
original survey clearly has the cul-de-sac illustrated and further
Iindicated recollection that the developer asked them to remove the
cul-de-sac bubble. We have included copies of both surveys for
your review.
IStaff is disturbed with the implications of this matter. Altering
a survey to avoid a variance strikes at several fundamental
I concepts. The first is that a registered survey accurately
reflects the situation and can be relied upon by the city to
conduct zoning matters. The second is that falsifying a registered
survey is illegal. We have discussed this matter with the City
IAttorney at length and I am unfortunately frustrated to report that
aspects of the situation will make it difficult for the city to
take action to resolve the problem. The first problem deals with
1 the lack of an identifiable right-of-way for an easement over
I
Mayor and City Council
September 20, 1990
Page 2
Audubon Circle. The straight street section has a recorded
easement document at the courthouse, but the cul-de-sac bubble
which intrudes onto the lot is not backed up by any easement
document or right-of-way dedication that can be found by the city
or the County Surveyor. It is highly unusual in that the cul-de-
sac bubble does show on the county half-section map, but the county
is unable to find any documentation to back this up. The County
Surveyor indicated that his predecessor may have taken some
liberties in this matter or materials have been misplaced, but he
cannot verify this or provide any additional information on the
background of this situation. This in itself alone would not
normally be critical since the city has the right, through adverse
possession, to take control over property used for public right-of-
way if it has been used for public right-of-way and maintained by
the city for a period of at least six years. In this case, Audubon
Circle is quite old and as near as we can recollect, the cul-de-sac
bubble was put in at least twelve years ago. However, state law is
contradictory on this point since the lot in question is torrens
property and another section of state law appears to indicate that
adverse possession does not apply over torrens parcels. The City
Attorney has indicated that the city would have to first obtain a
ruling that the land in question underneath the cul-de-sac bubble
is actually city property by adverse possession before this case
can be prosecuted. The second aspect of this case is that it would
then become incumbent upon the city to prove beyond a reasonable
doubt that the survey that was submitted to us for a building
permit had been falsified. It certainly appears that this is the
case although the documentation is by no means absolutely clear,
and even if this was demonstrated it is not clear who in fact
falsified the data.
As a result of the above information, staff is in the frustrating '
position of not being able to advise the city to take direct action
in this matter. We are convinced that a misrepresentation
occurred, but in conjunction with the City Attorney, are not
certain as to whether or not the city could prevail in this matter.
As a consequence, we will probably have to live with a home that is
located only 19 ft. from the edge of the pavement as opposed to the
30 ft. setback from the easement that is required. Effectively, if
a dedicated right-of-way had existed on this property, the home
would be set back approximately 20 ft. to the east of where it is
currently located. Staff contacted Mr. Koehnen to get an
explanation of this matter. He indicated that he believed the ,
surveyor was at fault, but was unwilling or unable to shed more
light on the matter. He also indicated that he was aware that
there was no recorded easement over the cul-de-sac bubble. Staff
also has tried to ascertain why someone would falsify a survey in
this way. It appears as though it was intended to allow the home
to be shifted to the west to avoid steep slopes and poor soils.
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Mayor and City Council
September 20, 1990
' Page 3
' This situation could have been given consideration for a variance
had it been requested.
Should the City Council so desire, we would of course pursue this
matter to the best extent of our abilities. There may be some
object lessons to learn from this case, however. We think that
this is a highly unusual circumstance given the historical
' background of the street, however, it is important that staff be
more diligent in confirming survey information. This matter also
re-emphasizes the need to ensure that as plats occur that all
' necessary rights-of-way and easements are dedicated and filed as a
condition of approval. Staff is working with the City Attorney to
have his office be responsible for filing plats and to handle all-
recording of documents since we believe this would be the most
effective way to ensure compliance. We will report back to the
City Council shortly on this matter.
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CAMPBELL , KNUTSON , SCOTT & FUCHS , P .R Sep 90 ,90 11 : 12 Net .005 F .02
CAMPBELL,LL, K : Mt N, SCeTT & FU :I IS, PA.
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Fax (612) 456-95421
Itztic R. \\?.J.t,e:
Elliott I . Knct'cht
(iregUrG !) !.t'V.k
Septzmb,:•r 14 , 1990
Mr. Paul Krauss
Chanhassen City Hall
690 Coulter Drive, Bus: 1 4 7
Chanhassen, Minnesota .55317
RE: Gordon Koehnen '
Dear Paul :
You asked H C to review the f•ol l n•: ng facts and render an
opinion:
1 . A home is under consti_uction, if the setback is measured '
from the edge of the cul-.de-- ac bubble, the setback does not meet
ordinance. requirements . If the setback is measured from the edge
of the City ' s recorded easerc,erit , the setback meets ordinance
requirements. v
2. The street is not on a platted right-of-way. The City
has an easement over the "straigl- t part" of the street , but not
over the cul-de-sac bubble.
. - 3 . The City has been maintaining the street including the '
cul-de-sac bubble for more than six ( 6) years.
4 . The property is registered land. '
Minnesota Statutes 3 160. 05, Subd. 1 , provides:
Six years. When any road or portion of a road has bee used 111
and kept in repair. and worked for at least six (6) years
continuously as a public highway by a road authority, it
shall be deemed dedicated to the public to the width of the
actual use and be and remain, until lawfully vacated, a
public highway whether it has ever been established as a
public highway or not. Nothing contained in this subdivision
shall impair the right, title, or interest of the water
department of any city of the first class secured under
Special Laws 1885, Chapter 110. This subdivision shall apply
to roads and streets except platted streets within cities.
Yankee Square Office III • Suite 202 • 3460 Washington Drive • Eagan, MN 55122 ,
II LHNELL , KNUTS ON , SCOTT & FUCHS , P .H Sep 20 ,90 11 : 13 No . 005 P .03
'
Mr. Paul Krauss
September 14 , 1990
Page 2
I
' If this were the only st(ttute in point, the city would have
an easement over the cul-de-sac bubble and the setback would be
appropriately measured from i{ , Unfortunately, another statute
' applies to registered land. Minn. Stat. § 508 . 02 states "no title
to registered land in derogation of that of the registered owner
shall be acquired by prescription or by adverse possession. " A
reasonably good argument can lh€: made that the six (6) year
statute creates an interest in the property by dedication which
is something apart from prescription or adverse possession. This
' issues has not been reviewed by the Minnesota Supreme Court. The
Attorney General has issued an opinion that the six (6) year
statute does apply to register ed land; copy enclosed. The issue
is really undecided, but the better argument is that the six (6)
' year statute does apply.
' Very truly yours,
MPBELL-i-„KNUTSON, SCOTT
• & ,FUCHy? P.A.
' Roger N. Knutson
RNK:srn
Enclosure
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28 CITIES
5. The Minnesota Court in Taylor v. City of Austin, 32 Minn 274, p.
248 in discussing the duty of a municipality keeping sewers in repair stated:
" * * * It is not material to inquire when or by whom the sewer
was originally constructed, as it is not disputed that the city had as-
111
sumed its control and management. It was therefore its duty to use
reasonable diligence to keep it in proper repair. * * * " (Emphasis
supplied)
The Minnesota Court in Netzer vs. Crookston City, 59 Minn. 244, held
• that when a city had built a sewer partly on private property, it was no
excuse for failing to repair the same; that it had no right to go upon such
property to make repairs.It should have acquired such right.
The Court has put the emphasis upon the city assuming control and
management of the sewer. The mere acceptance of a plat which dedicates
streets and alleys would not require the council to improve and develop
said paper streets and alleys. By the same token the mere approval of a
plat should not in and of itself mean the assumption of control and man-
agement of sewers dedicated therein. See Op. Atty. Gen. 18d, April 6, 1946.
6. For a discussion of the liability of a municipal corporation where
it has assumed control and management of a sewer see Rouche vs. City of
Minneapolis, 1947, 223 Minn. 359, 27 N.W. 2d 295, in which prior cases are
reviewed. Also 26 Minn. Rev. at p. 634.
396g-4, July 23, 1959
Minnetonka Village Attorney
Plats—Roads and Streets—Road or street can be dedicated by statutory
user despite title registration proceedings had during time of construc-
t tion of road.
1 Facts
"In 1945 the owners of a certain area of land within the boundaries
of what was then the Town of Minnetonka platted said land pursuant
to the statutes and provided therein certain dedicated public roads. In
1946 the lands as platted were registered under the provisions of Chap-
ter 508, Minnesota Statutes.
"Certain of the roads dedicated as public roads in said plat were
not actually constructed in accordance with the plat, but were con-
structed
and placed into use by the owner so that the roads actually
traversed across and upon one of the lots in said plat. The roads as
actually constructed and used have remained unchanged to the present
date, used by the public and maintained and repaired by the Town of
Minnetonka and subsequently, by its successor, the Village of Minne-
tonka."
Questions
"1. Assuming that the registration of the land and the construe-
tion of the road as it actually exists occurred at or about the same
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ev
ofustin, 32 Minn 274, p. time, does § 160.19, Minnesota Statutes apply so that the road becomes
in ewers in repair stated: a dedicated public road by statutory user?
he or by whom the sewer
Muted that the city had as- "2. Is there any conflict between § 160.19, aforesaid, and M inne-
tefore its duty to use sofa Statutes, § 508.02, that would prevent the application of § 160.19
re r. * * * " (Emphasis to registered lands?"
Opinion
on ty, 59 Minn. 244, held M.S. 1945, § 160.19 provided [as the now applicable law, M.S. 160.051
?ri a property, it was no t
.d right to go upon such also provides]:
i such right. "When any road or portion thereof shall have been used and kept
ci assuming control and in repair and worked for at least six years continuously as a public
plat which dedicates highway the same shall be deemed dedicated to the public to the width
il o improve and develop of two rods on each side of the center line thereof and be and remain,
en the mere approval of a 1 until lawfully vacated, a public road whether the same has ever been
np n of control and man- established as a public highway or not."
tty en. 18d, April 6, 1946.
I If the road in question [including those portions thereof which were
lunicipal corporation where designated as public roads or streets on the plat executed pursuant to M.S.
w see Rouche vs. City of c. 505 and were thereby dedicated to the public as an easement for way],
)5, which prior cases are has been used, kept in repair and worked for at least six years continu-
ously as a public highway, it is deemed to be dedicated as a public road or
street to the extent specified above, and it remains such a road or street
Iuntil lawfully vacated in the manner provided by statute.
396g-4, July 23, 1959 Proceedings under c. 508 to register the land within the area covered
[innetonka Village Attorney by the plat do not prevent or impair the use, repair and working of any
portion thereof, as a public highway. Registered land is subject to the same
edicated by statutory burdens and incidents as attach by law to unregistered lands. M.S. 508.02.
ad lying time of construe- And it is provided by M.S. 508.25 that every person receiving a certificate
of title shall hold the same subject to: "4. All rights in public highways
upon the land."
'1 within the boundaries
p ed said land pursuant The last sentence of M.S. 508.02 which provides that"no title to regis-
1 dedicated public roads. In ' tered land in derogation of that of the registered owner shall be acquired
de he provisions of Chap- by prescription or by adverse possession" obviously does not apply to roads
and streets dedicated by statutory user under § 160.19.
>lie roads in said plat were Accordingly, it is our opinion that if the registration of the land and
ch the plat, but were con- the construction of the road as it actually exists occurred at or about the
s hat the roads actually f same time, M.S. 1945, § 160.19 applied so that the road became a public
inaid plat. The roads as road by user if the requirements of that section were satisfied. There is no
d unchanged to the present conflict between said M.S. 160.19 and M.S. 508.02 which will prevent the
id repaired by the Town of application of M.S. 160.19 to registered lands.
ss1 the Village of Minne-
1Laws 1949, c. 158, added to § 160.19 the proviso relating to the rights, etc. of the water
department of any city of the first class secured under special laws 1885, C. 110.Laws 1957,
e.943, § 72 repealed § 160.19 and said chapter in § 13 re-enacted the provisions of § 160.19
tl�land and the construe- • adding thereto: "This section shall apply to roads and streets except platted streets within
cities, villages and boroughs." Chapter 943, § 13, as amended, is coded as M.S. 1957, §
Irr at or about the same 160.121. Laws 1959, C.500, Art. VI, § 13 repealed § 160.121 and in Art. I, § 5 thereof, now
coded as § 160.05, re-enacted all of the provisions of § 160.121.
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