1i. Zoning Ordinance Amendment City Control over Dredging Wetlands in Public Waters located in Lake wholly within the City of Chanhassen f
CITY OF
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�'�i 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317
(612) 937-1900 tern by i 'X j i,:ii.tinis}!'tint
I MEMORANDUM }Rained __� \`
T0: Don Ashworth, City Manager Date f ,
Y g Date //-8 y�f{
Date Submitted to Commission
1 FROM: Jo Ann Olsen, Asst. City Planner /0-7-kg
Date Submitted to Council
DATE: November 8 , 1988
1 SUBJ: Zoning Ordinance Amendment to the Wetland Ordinance
On October 5 , 1988 , the Planning Commission reviewed a zoning
I ordinance amendment to amend Section 20-421 ( 11) of the Wetland
Ordinance to clarify that the City has control over dredging in
wetlands in public waters (Attachment #1) . The Planning
I Commission recommended approval conditioned upon staff providing
a definition of public waters . The Planning Commission also
wanted staff to investigate joint powers agreements for wetlands
II within lakes which lie on the border of the City of Chanhassen
and adjacent cities .
The City Attorney has provided a definition of public waters
I which should be added to Section 20-1 , Definitions of the City
Code. Staff can initiate the proceedings to establish joint
powers agreements with surrounding cities to allow the wetland
I ordinance to be applied to wetlands within public waters not
wholly within Chanhassen and wetlands which lie on the border of
Chanhassen and adjacent cities should the City Council elect to
do so.
II RECOMMENDATION
IStaff recommends the City Council adopt the following motion:
"The City Council approves amending Section 20-1 of the City Code
I by adding the following definition:
"Public Waters" : means and shall be limited to the following
waters of the state:
II1) All waterbasins assigned a shoreland management classifi-
cation by the Commissioner of Natural Resources;
I2 ) All waters of the state which have been finally deter-
mined to be public waters or navigable waters by a court of
Icompetent jurisdiction;
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Mr . Don Ashworth
November 8 , 1988
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3 ) All meandered lakes , except for those which have been
legally drained;
4 ) All waterbasins previoulsy designated by the Commissioner
of Natural Resources for management for a specific purpose
such as trout lakes and game lakes pursuant to applicable
law;
5 ) All waterbasins designated as scientific and natural
areas;
6 ) All waterbasins located within and totally surrounded by 1
publicly owned lands;
7 ) All waterbasins where the State of Minnesota or the 1
federal government holds title to any of the beds or shores ,
unless the owner declares that the water is not necessary for
the purposes of the public ownership;
8 ) All waterbasins where there is publicly owned and
controlled access which is intended to provide for public
access to the waterbasins; and
9 ) All natural and altered natural watercourses with a total
drainage area greater than two ( 2) square miles , except that
trout streams officially designated by the Commissioner of
Natural Resources shall be public waters regardless of the
size of their drainage area. 1
The public character of water shall not be determined
exclusively by the proprietorship of the underlying, or
surrounding land or by whether it is a body or stream of
water which was navigable in fact or susceptible of being
used as a highway for commerce at the time this state was
admitted to the union.
and approves amending Section 20-421 (11) of the City Code as
follows:
Section 2. Chanhassen City Code Section 20-421( 11) is
amended to read:
Digging, dredging, filling, or in any other way altering a
Class A or B wetland, including but not limited to such
wetlands in public waters lying wholly within the City of
Chanhassen.
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Planning Commission Meeting
October 5, 1988 - Page 20
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Ivariances to build and therefore, I feel comfortable with this motion. I
think it' s still pretty soft, granting an opportunity to Opus to look at
I it. Yet on the other hand , I wouldn' t be telling you the truth if I
thought, I would really feel strongly about sticking to Chanhassen's
ordinances especially when we' re dealing with such a large parcel .
I Erhart: Jo Ann, is the potential for 40 foot additional right-of-way
required off of that Lot 1 there as well?
IOlsen: For TH 5?
Erhart : Yes .
IOlsen : TH 5 is going to be improved to the north of that site .
Erhart: It' s not going to adversely affecting it?
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Emmings moved , Batzli seconded that the Planning Commission recommend
II approval of Subdivision Request #88-25 as shown on the preliminary plat
stamped "Received September 20, 1988" subject to the following conditions:
1. Approval of the proposed vacation of Lake Drive East.
1 2. Lot 1, Block. 3 shall be designated as an Outlot and deemed unbuildable
until it has been shown that development of the site can occur while
Imaintaining the required setbacks from the roads and wetland .
3. The applicant shall enter into a development contract with the City
and provide the City with the necessary financial sureties to
Iguarantee the installation of the public improvements .
4. The applicant shall obtain and comply with all conditions of the
IWatershed District permit and DNR permit .
5. The Rosemount site shall address all on-site ponding required to
I maintain the necessary water quality standards which are to be
determined by the environmental assessment worksheet.
6. The applicant shall provide the necessary construction and utility
I easements as deemed necessary by the feasibility study for Lake Drive
East .
1 All voted in favor and the motion carried .
10C-7 ZONING ORDINANCE AMENDMENT TO AMEND SECTION 20-421 (11) OF THE WETLAND
ORDINANCE TO CLARIFY THAT THE CITY HAS CONTROL OVER DREDGING OF WETLANDS
IN PUBLIC WATERS WHICH ARE LOCATED IN LAKES WHOLLY WITHIN THE CITY OF
CHANHASSEN. ,"
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Conrad : Jo Ann, anything other than the obvious here?
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Planning Commission Meeting
October 5, 1988 - Page 21
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Olsen: No.
Conrad : I guess what you can clarify for me is why the words that you '
used are going to do that. They don' t seem to say anything to me so we' re
clarifying something that doesn' t say anything.
Olsen: We' re stating that dredging within the wetland within public
waters.
Conrad : But it didn' t say. My concern was , we didn' t have control over 1
anything below the ordinary high water mark, right?
Olsen : This allows us that control . 1
Conrad: Because it says . . .
Erhart: Including public waters .
Olsen : Technically our Attorney didn' t feel that we needed anything but II
we wanted something that would point it out .
Erhart : If we didn' t need to do anything , then why couldn' t we have some
control over Rivkin?
Olsen : It was felt that there had just been a recent court case in Mound
that settled that. That determined that the City did not have control but II
that case was not entirely in Mound . It was shared , I think
with Minnetonka.
Erhart : Our position was that we felt it was basically. . . 1
Olsen: Right, where actually we do have.
Batzli : The City Attorney basically went to the Attorney General to ask
for an opinion on a case such as that. The opinion came back that if it
was within a city or if there was a joint powers agreement between cities ,
and the lake was within those cities , they would have some sort of
jurisdiction in those instances as well . So if we have wetlands lying
along boundaries with other cities , what we should actually do is enter
into joint power agreements with those cities so we have control of those II
as well .
Chairman Conrad called the public hearing to order . '
Erhart moved, Emmings seconded to close the public hearing. All voted in
favor and the motion carried . The public hearing was closed . I
Conrad: Brian, any other comments or do you think we should
through on what you just said? Do you want to give staff some be directionfollowing? "°-
Batzli : Well , I didn't think this was a problem personally, in reviewing
it. I thought it perhaps is, I guess I don' t understand what the
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Planning Commission Meeting
' October 5, 1988 - Page 22
definition of public waters is and maybe it ' s defined in our ordinances
somewhere but if public waters is defined as somewhat narrowly, then the
' question is , I hate to say it , it begs to question , what is a private
water, is the problem in my mind. I didn' t find public water but I didn' t
look real hard I have to admit so I didn' t know what it meant. Because
public land is defined but public water isn' t. That was my concern that
' I , not knowing and unfortunately not taking the time to call up the City
Attorney to ask him why he used those words. It may be that he took them
out of the Attorney General ' s opinion because I think the Attorney General
' used those words, public water. It may be that they come out of the
Statute that grants cities with the authority so I may have looked in the
wrong place. It' s probably not in our code, it' s probably in the State
' Statutes but I guess the bottom line for me is , if the Attorney feels
comfortable with this and public waters is somewhere defined, I say go for
it. I think we have to make sure that public waters is defined broad
enough to include private waters , if you will. It also, I think, should
be amended shortly, once we determine if we have wetlands bordering
bordering cities , what would it take to enter into a joint powers
agreement as to those areas? Those were my comments .
Emmings: I just don't know if digging and dredging and filling is all the
things you can do in a wetland that we want to prohibit . I guess I wonder
if we coulde say, digging, dredging, filling or in any other way altering .
' We want to give people the idea that they can ' t do anything in there
unless they come- in. I don ' t know if it ' s necessary but I 'd like to see
that in there. The only other thing I had is on the very last sheet we
got a copy of the ordinance that the Mayor 's supposed to sign and it has
an "s" on it and it shouldn ' t . That ought to be fixed .
Erhart: I like the idea of having no altering. Leave enough room, I
think that' s a good idea because people are always trying to find someway
to get around words. I think that one is a good one. I think of it as
including public waters , if it gives us a little more strength, which
seems to be somewhat of a vague issue , then I 'm all for it.
Conrad : Brian , could you make the motion on this one?
' Batzli : I think Steve had the only change.
Conrad : But you really wanted staff to look into , I guess what I 'd like
' you to do is make the motion but also to ask staff to follow up certain
questions such as public water . What' s the difference between public and
private? Getting rid of the "s" .
' Batzli : Okay, I move that the Planning Commission recommends approval of
Zoning Ordinance Amendment #88-13 to amend Section 20-421 (11) as follows .
' To read digging , dredging , filling , what word did you use?
Emmings: Or in any way altering .
' Batzli : Or in any way altering a Class A or Class B wetland , including
public waters lying wholly within the City of Chanhassen. I 'd also like
to recommend that the staff look into those points that I raised . One
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Planning Commission Meeting
r October 5, 1988 - Page 23 •
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being, do we need a definition of public waters? Two , what wetlands or
public waters lying jointly within Chanhassen and neighboring cities ,
which we might look into entering a joint powers agreement as to those
area.
Erhart : I ' ll second it.
Batzli moved , Erhart seconded that the Planning Commission recommends
approval of Zoning Ordinance Amendment #88-13 to amend Section 20-421 (11) II
as follows :
"Digging , dredging , filling or in any way altering a Class A or Class
B wetland, including public waters lying wholly within the City of
Chanhassen."
All voted in favor and the motion carried . 1
APPROVAL OF MINUTES: Emmings moved, Erhart seconded to approve the
Minutes of the Planning Commission meeting dated September 21, 1988 as
presented. All voted in favor and the motion carried.
Erhart moved, Batzli seconded to adjourn the meeting. All voted in favor
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and the motion carried. The meeting was adjourned at 9: 00 p.m. .
Submitted by Jo Ann Olsen
Asst. City Planner
Prepared by Nann Opheim
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I LAW OFFICES
GRANNIS, GRANNIS, FARRELL & KNUTSON
DAVID L. GRANNIS- 1874-1961 PROFESSIONAL ASSOCIATION TELECOPIER.
I DAVID L. GRANNIS,JR.- 1910-1980 POST OFFICE Box 57 (612)455-2359
403 NORWEST BANK BUILDING ELLIOTT B. KNETSCH
VANCE B. GRANNIS MICHAEL J MAYER
VANCE B. GRANNIS,JR. 161 NORTH CONCORD EXCHANGE TIMOTHY J BERG
PATRICK A.FARRELL SOUTH ST PAUL,MINNESOTA 55075
I DAVID L. GRANNIS,111
ROGER N. KNUTSON TELEPHONE(612) 455-1661
DAVID L. HARMEYER
1 October 18, 1988
IMs. Jo Ann Olsen
Chanhassen City Hall
690 Coulter Drive, Box 147
IChanhassen, Minnesota 55317
RE: Wetland Alteration Permits
IDear Jo Ann:
I Enclosed please find revised ordinance which adds the
language you requested under Section 2.
IVery truly yours,
GRANNIS, GRANNIS, FARRELL
& KNUTSON, P.A.
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BY: �-y_� z�' ,''�(J t._ ti..���...-i
�•, Rog6.r N. Knutson ' /� __
I RNK• rn�'
En4o ure
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OCT 2 0 1988
ICITY_OF CHANhASStiv
ORDINANCE NO. ,
CITY OF CHANHASSEN
CARVER AND HENNEPIN COUNTIES, MINNESOTA
AN ORDINANCE AMENDING CHAPTER 20, ARTICLE VI
OF THE CHANHASSEN CITY CODE CONCERNING
WETLAND ALTERATION PERMITS
THE CITY COUNCIL OF THE CITY OF CHANHASSEN ORDAINS:
Section 1. Chanhassen City Code Section 20-1 is amended by
adding the following definition:
"Public Waters" means and shall be limited to the following
waters of the state:
(1) All waterbasins assigned a shoreland management
classification by the Commissioner of Natural Resources;
(2) All waters of the state which have been finally
determined to be public waters or navigable waters by a '
court of competent jurisdiction;
(3) All meandered lakes, except for those which have been
legally drained;
(4) All waterbasins previously designated by the
Commissioner of Natural Resources for management for a
specific purpose such as trout lakes and game lakes pursuant
to applicable laws;
(5) All waterbasins designated as scientific and natural '
areas;
(6) All waterbasins located within and totally surrounded I
by publicly owned lands;
(7) All waterbasins where the State of Minnesota or the
federal government holds title to any of the beds or shores,
unless the owner declares that the water is not necessary
for the purposes of the public ownership;
(8) All waterbasins where there is a publicly owned and
controlled access which is intended to provide for public
access to the waterbasins; and
(9) All natural and altered natural watercourses with a
total drainage area greater than two (2) square miles,
except that trout streams officially designated by the
Commissioner of Natural Resources shall be public waters
regardless of the size of their drainage area.
r10/18/88
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IThe public character of water shall not be determined
exclusively by the proprietorship of the underlying, or
I surrounding land or by whether it is a body or stream of
water which was navigable in fact or susceptible of being
used as a highway for commerce at the time this state was
admitted to the union.
ISection 2. Chanhassen City Code Section 20-421(11) is
amended to read:
IDigging, dredging, filling, or in any other way altering a
Class A or B wetland, including but not limited to such
wetlands in public waters lying wholly within the City of
IChanhassen.
Section 3. This ordinance is effective immediate upon its
Ipassage and publication.
I ADOPTED by the City Council of the City of Chanhassen this
day of , 1988.
II CITY OF CHANHASSEN
I BY:
Thomas L. Hamilton, Mayor
IATTEST:
IDon Ashworth, City Manager
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CITY OF P.C. DATE: Oct. 7 , 1988 I
C1-111,NEASSEN C.C. DATE: Oct. 26 , 1988 CASE NO: 88-13 ZOA
Prepared by: Olsen/v II
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STAFF REPORT
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PROPOSAL: Zoning Ordinance Amendment for Dredging in Public
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Waters
Ernmi
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0 LOCATION: ; 9,3s�cCe.__., I
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am APPLICANT: City of Chanhassen I
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II PRE
SENT ZONING:
ACREAGE: I
DENSITY:
ADJACENT ZONING II
AND LAND USE: N-
S-
Q E-
C; - W- II
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W WATER AND SEWER: II
PHYSICAL CHARAC. : I
2000 LAND USE PLAN: I
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ZOA for Dredging in Public Waters
' October 7, 1988
Page 2
' BACKGROUND
In 1987, the City of Chanhassen reviewed a proposal for a channel
through a Class A wetland adjacent Lake Lucy to provide access to
open water (Eric Rivkin) . City staff recommended denial of the
wetland alteration permit because it was felt that a boardwalk
would be less of an impact to the wetland and would serve the
same purpose. During the review process , it was brought to the
city' s attention that areas below the ordinary high water mark of
a lake are public waters and controlled by the DNR. DNR had
approved of the proposed dredging by Eric Rivkin. Therefore, the
city recommended approval of the wetland alteration permit
because it was felt they did not have control over the proposed
' alteration of the wetland below the ordinary high water mark
(Attachment #1) .
ANALYSIS
Staff worked with the City Attorney and the attorney from the DNR
to determine whether or not it would be possible to amend the
Shoreland Ordinance or other state regulations that would permit
the city to have control over wetlands located below the ordinary
high water mark. The City Attorney spoke with the attorney from
' DNR (Attachment #2) . It was confirmed that the city can have
regulations more restrictive than state regulations for lakes
wholly within the City of Chanhassen.
Staff directed the City Attorney to provide an amendment to the
wetland ordinance which would make it clear that the city can
regulate activity in a protected wetland which is also considered
' public waters. The City Attorney has provided an amendment to
the Wetland Ordinance, Section 20-421 (11) , to state as follows:
' "Digging, dredging, and filling in a Class A or Class B
wetland, including public waters lying wholly within the City
of Chanhassen."
' Section 20-421 of the Zoning Ordinance regulations activities
which are prohibited without a wetland alteration permit.
' RECOMMENDATION
Planning staff recommends the Planning Commission adopt the
' following motion:
"The Planning Commission recommends approval of Zoning Ordinance
Amendment #88-13 to amend Section 20-421 ( 11) as follows:
"Digging, dredging, and filling in a Class A or Class B
wetland, including public waters lying wholly within the City
1 of Chanhassen. "
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ZOA for Dredging in Public Waters
October 7 , 1988
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Page 3
ATTACHMENTS 1
1 . City Council minites dated February 8 , 1988 . II 2 . Letter from Roger Knutson dated July 5 , 1988 .
3 . Copy of ordinance amendment.
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C : FANBASSEN
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690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317
(612) 937-1900
II February 10, 1987
IMr. Eric Rivkin
5525 Conifer Trail
Minnetonka, MN 55345
IIDear Mr. Rivkin:
I This is to confirm that on February 8 , 1988 , the City Council
approved a wetland alteration permit to allow you to develop
within 200 feet of a Class A wetland and to place wetland spoils
I within 200 feet of a Class A wetland. The City Council approved
the wetland alteration permit with the following conditions:
1 . Any dredging of the channel and turnaround will occur only
IIwithin public waters below the 956 .1 elevation.
2 . The applicant shall supply staff with a certified survey
showing the 956 .1 contour and the location of the proposed
channel and turnaround.
3 . The location of the spoils and the construction area for the
I equipment shall be staked and marked and approved by City
Staff prior to any alteration of the site.
II . 4 . Erosion control shall be placed around the spoil area unti it
is stabilized to prevent it from re-entering the wetland.
I 5 . The applicant shall follow all conditions of the DNR,
Watershed District and the Department of Agriculture.
6 . The wetland alteration permit is approved as shown on the
Iplan dated Revised February 5 , 1988 .
The City Council also directed staff to petition the DNR to
include additional conditions on the DNR permit. The following
conditions will be requested to be included in the DNR permit:
1 . The applicant shall submit a detailed grading and erosion
I control plan for city approval prior to construction on the
site.
II2 . The applicant shall notify the city 48 hours prior to commen-
cement of excavation and shall provide written notice to the
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Mr. Eric Rivkin
February 10, 1988
Page 2
City Engineer prior to the completion of the project.
These are all the same conditions that have been part of the ori-
ginal conditions for the City wetland alteration permit and
should not alter your proposal.
Please contact me as soon as the registered survey is completed
and we will need to review the site plan. Should you have any
questions, please feel free to contact me.
Sincerely,
Jo Ann Olsen 1
Assistant City Planner
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I CHANHASSEN CITY COUNCIL
REGULAR MEETING
FEBRUARY 8, 1988
Ii Acting Mayor Horn called the meeting to order .
II . COUNCILMEN PRESENT: Councilman Boyt, Councilman Horn, rand Councilman
Johnson
ICOUNCILMAN ABSENT: Councilman Geving
STAFF �PRESENT: Don Ashworth, Roger Knutson, Gary Warren, Barbara Dacy,
Jo Ann Olsen, Larry Brown,, and Todd Gerhardt -. . -
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APPROVAL OF AGENDA: Councilman—Johnson moved, Councilman Boyt �seconded
to approve the agenda as amended by Councilman Johnson who wanted to
discuss the Council ' s position on private roads accessing arterials.
All voted in favor and motion carried.
ICONSENT AGENDA: Councilman Johnson moved, Councilman Boyt seconded to
approve the following Consent Agenda items pursuant to the City
Manager 's recommendations:
Ia. Riley Lake Meadows , Richard Vogel :
I1 1. Approval of Plans and Specifications
L. b. Final Plat Approval , CHADDA 2nd Addition
Id. Accounts Payable dated February 8, 1988
e. City Council Minutes dated January 25, 1988
IPlanning Commission Minutes dated January20, 1988
All voted in favor and motion carried .
VISITORS PRESENTATION:
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1 There were no visitor ' s presentations .
I WEV4N12 fi RAT:101w P RMIT TO CONS TRUCT _A .CHANNEL •AND BOAT,.,TURNAROUND•: 4�
A CLASS A `WETLAND ON LAKE LUCY `dl `iROPERTY '-LONED`'RR;"•RURAL �RESIDENTIAI
AND.,_LOCATED ON LOT 5' '`BLOCK 2, ..LAKE LUCY;_HIGHLANDS', "ERIC RTVKIN,'
"`AP'PL` ANT.
r (Mayor Hamilton arrived during discussion of this item. )
IlL Jo Ann Olsen: The staff has a decision that we do not have jurisdiction
below the ordinary high water mark which is the 956 . 1 contour elevation.
I Therefore, all of the proposed alteration below that ordinary high water
mark is just under the DNR jurisdiction which the applicant already has
received approval for. The applicant stated that he is going to amend
City Council Meeting
C . II
February 8, 1988 - Page 2
his plan so that all of the construction is below the ordinary high
water mark. We are requesting that he submit a registered survey to
show exactly where the 956..1 -aLevati.an �i.s _.in ..relati.on.shi.p, .to his
proposed alteration. Then we can determine if he will be completely �in
open., ,public ,water _ .,)The.re. ;sti l_�, will., be ,.a „porttjon of wgtl,a_r that he .j
will have to cross that will be under city jurisdiction. Determine,. Y,ie,
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amount of that. We are also, since we will not be able to have a
wetland alteration permit for the channel and the proposed turn around,
I would think, if Council would like for staff to petition the DNR to
add the conditions that we had to the DNR standard permit. They had
said that we could petition them to do that. As far as tonight, there's
really no action to be taken except for any alteration that will occur
beyond the ordinary high water mark again, which we don' t know the exact
extent of that and the applicant has again stated that he is going to
have only the channel below the ordinary high water mark. I
Councilman Horn: So there will be no dredging or alteration above the
high water mark?
Jo Ann Olsen: That ' s what he claims. We just need a plan to verify
that.
Councilman Horn : You indicated that you would have to cross the '
wetlands. Could you expand on that a little?
Jo Ann Olsen: This is the original proposal and since that, this has I
been reduced in size but whenever we 've been out to the site, and when
Mr. Rivkin has shown where the ponding area and turnaround is going to
be, that has always been within -the, ,we.tl_.and ar.ea. . He _is.now stating
that he is going to be moving this down even further so it ' s just an
assumption that this will still, where .h.e ',s removing it will -still be,
if where it is proposed now is _within the wetland , he , will .move it back
towards the lake. I 'm assuming that will still remain wetland area but
will be under State control . Again, .we ' r,e going to ..have ._to „have;�
registered survey showing exactly where that 956. 1 contour is.
Councilman Horn : If I understand you right , really there' s no action
that we take this evening except to request that we get a plan for what
will be done and you' re asking us if you want us to have you petition
the DNR to include your recommendations in theirs?
Jo Ann Olsen: If the applicant was going to maintain the proposal , than
he would still have to receive a wetland alteration permit for that part
of the dredging that would be above the ordinary high water mark. If we
do determine that there still is wetland above, he will still have to
receive a wetland alteration permit just for the traffic across to I
dredge out the channel within the public waters. So he will most likely
still have to receive some sort of a wetland alteration permit.
Councilman Horn: But at this point we don't know what that plan is? Do '
you have any questions Jay? 1 . r11
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Councilman Johnson : Yes , several . 956. 1, do you know how long It
was that that was determined as the ordinary high water mark and is it
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February 8, 1988 - Page 3
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still the ordinary high water mark?
IJo Ann Olsen: It was just determined .
I Councilman Johnson: Okay, so that ' s good . If I saw it in the 1952, the
lake's probably changed since then. I think from some of the provisions
I' ve seen from the other people, the work has to be done by March 1 of
I 1988. If we have to give him a wetlands alteration permit and we don' t
act upon it tonight, the next meeting is the 22nd , he ' s going to have
one heck of a schedule to get the construction done the last week of
February because he' s going to be disposing of the spoils within 200
I foot of a wetlands. He' s going to be crossing a wetlands and driving
through a wetlands and ' we have to protect that wetlands. If the plan is
still to do this this year, and if the Watershed District is going to
I hold firm on their March 1st deadline of getting this accomplished and
he doesn't get a wetland alteration approval from us tonight, will it be
possible for him to meet the March 1st deadline if we wait 2 weeks until
the next meeting?
IEric Rivkin : To answer all your questions . I got the plan, I was only
notified I think, last Friday that the meeting I was supposed to be at
I was tonight so I didn' t have time to get these to you to get into the
packet. As you can see, the channel has been moved forward about 20
feet so there is no excavation required in the upland area. These
numbers over here are pretty meaningless right now because they were
I taken from a Federal Survey that was done back when the land was first ,
the topography was described. There is a stake here but we don' t know
where it really is . I will do a survey to find out where the 956. 1
I exactly resides but I know for sure that the terrain suddenly drops from
primarily terrestrial to primarily aquatic quite rapidly right here.
I 'm going to draw for you a section of what it looks like right through
I here.
Councilman Johnson: Actually the question was , if we don' t do this
tonight, are you in trouble and won ' t be able to do it this year?
IEric Rivkin: I don ' t think so because I ' ll show you that I don' t think
there is any jursidiction that you have. There' s no wetlands that
I I have to tresspass here. I called the Watershed District this morning
and they gave me the figures , the average level of the lake, where the
lake is in relation to 956 . 1. I ' ll draw where the lake level is, say
I that ' s 955 and the average during the last year from January to January
29th of this year'. They measure every month. So let ' s assume this is
the lake level right now, the ordinary high water mark is right here.
That' s 956. 1. The terrain pretty much looks like this. It goes from
I primarily aquatic to primarily terrestrial right here. From here
forward is the line from your designated wetlands, according to your own
maps . This is the lot and this line right here, I don ' t know whether
it this light area is Class B or whether it 's Class A or what, but this
line right here is this line right here .
ICouncilman Johnson: You can tell that from that drawing?
Eric Rivkin: Your definition of wetlands is from primarily terrestrial
Azt
City Council Meeting
February 8, 1988 - Page 4
II
to primarily aquatic vegetation. Okay, that' s in your own ordinance. rl
That occurs here. It doesn ' t occur up here. It doesn't occur up here.
It doesn' t occur down here. It occurs here. Okay? That is still
below, that is in DNR jurisdiction. It is not under the control of the II City. Therefore, there is no trespassing across any wetland in your
control . There' s no dredging under your control so I feel it is
possible to get it in this year if I don' t have to keep finding anymore
big surprises. I
Councilman Johnson: Will your spoil area be within 200 feet of a
control-led wetland?, _. II
•Eric Rivkin: It will be right here but that' s not a wetland.
.
Councilman Johnson: Is it within 200 feet of a controlled wetland? I
Eric Rivkin: It ' s within 200 feet of the construction site and the
wetland? I
Councilman Johnson: You need a wetland alteration permit if it ' s within
200 feet. If you build a house within 200 feet, you need a wetland II alteration permit. If you put a road within 200 feet. If you make a
change within 200 feet of the wetland, the oridnance says you need a
wetland alteration permit. This project is going to require a wetland
alteration permit unless you' re going to haul all of that completely '
off.
Eric Rivkin: I didn' t understand your wetland alteration permit in that
I
sense.
Councilman Johnson: I think I 'm correct. Jo Ann?
Jo Ann Olsen: That ' s true. Any development within 200 feet requires a II
wetland alteration permit.
Councilman Johnson : When do you plan on building on this lot? I I
notice this is a vacant lot. That we' re putting access to a vacant lot.
Eric Rivkin : I 'm going to be building this spring. My down payment is II
with .the builder right now and it' s one of those things.
Councilman Johnson: So you plan to put a dock or anything into this
pond?
Eric Rivkin : There' s no need to . I don ' t have to walk through the II
slosh to get there.
Councilman Johnson: What if your survey comes out and you' re another
30 foot out?
Eric Rivkin: I don' t believe it will . The water right now is almost a
foot below the high water mark and from here, this blue line out here is
about level . I'm not going down any further and it ' s not aquatic
II
City Council Meeting
February 8, 1988 - Page 5
I vegetation at all . The area was heavily farmed up until 2 years ago .
Right up to this line. It made a barrier up there and it ' s kind of
sudden . I also want to so through some other issues that were flushed
out here besides just the survey.
ICouncilman Johnson: That ' s what I 'm trying to do because if we does
require a permit and you don' t have one, it' s just not going to be
I proceed . I want to make sure that you realize that you may still need a
wetlands alteration permit even though the dredging won' t be in a
wetland that we control which we have the power to give you tonight .
I Eric Rivkin: That's all I had right now. Any questions about where the
lines are?
ICouncilman Horn : Do'"you have ` any' other questions Jay? ' ::-r
Councilman -Johnson: I 'm trying to figure out a motion: - - -
1 Councilman Horn : I think we should find out if Bill has any questions .
Councilman Boyt: I think the applicant and Jo Ann have both been very
I clear to tell us that the 956. 1 line is where the City' s responsibility
ends depending on which diretion you' re moving. In terms of where our
5. impact starts and stops , I would think that up to the 956 line, you
might like to have some sort of wooden dock. Are you just planning to
step off there?
Eric Rivkin : It' s a jump. It ' s possible that I might put a dock in
I here but right now all I ' ve got is a canoe and possibly later a sailboat
but those can be beached there. When we had the floods last July, I
went out there to see how high the water came up and it didn' t even
Ireach up to about here. This stayed pretty dry.
Councilman Boyt: I guess my concern is, I don' t think we ' re setting
I
I . any precedence by giving you the ability to put a dock in over a certain
reasonable distance so steps or something might make sense. I think
we've really gone through the issues pretty thoroughly. The applicant
seems to be well prepared. I, like Jay, would like to see an elevation.
I I would also like to request that when we get around to considering some
sort of motion here, it would be my intent to make a motion that yes ,
the staff petitidn ,the DNR to include our conditions . I suspect that
I I they would do that: •_I would propose that the City goon record 'as being
opposed td the DNR permit. That isn ' t going to keep them from approving
the permit. It just happens to reflect what I think we' re doing.
I Mayor Hamilton : I 'v,e been in favor of it right from ' the beginning .
The only comment I had and question perhaps was, on the dates when he
could do the work seemed to be in conflict. December 1 through March
IL 1st, 1988. That' s condition 8.
Councilman Johnson: It ' s a Watershed District requirement being
Irepeated.
Mayor Hamilton : I just think the dates are wrong . It says during the
1
City CoUncil Meeting
February 8 , 1988 - Page 6
1
period of time, the permit shall be issued for a restricted period of
time for the months of December 1 through March 1 of 1988. I don' t 1
think that' s correct. It must be December 1, 1987 through March 1,
1988. But I don' t know that we can restrict it to one year. If Mr .
Rivkin doesn' t do it right now, I think the permit runs for a longer
period of time than one year. If he can ' t accomplish it this year, he
can do it next year . So that ' s why I was kind of questioning that whole
item 8. The time.
Councilman Boyt : The DNR is the one that 's regulating the dredging.
Didn' t they set the dates?
Eric Rivkin: To June 1st. _ • 1
Councilman Boyt : - They set it from December through June?
Jo Ann Olsen: No, they said December 1, 1987 to March 1, 1988 .
Eric Rivkin: Oh, for the dredging? 1
Councilman Boyt: Yes.
Mayor Hamilton : Condition 5, excavated materials shall be removed
above the ordinary high water mark. I guess just to be clearly noted
where that was or where they were going to be removed to I guess is what
I was concerned about. That area where those materials would be put. I
guess I 'd like to know where that is so that we know exactly where
they' re going to be put.
Councilman Horn : That will be part of your plan? Where the dredging
materials will be placed?
Eric Rivkin: Yes , it' s on the map there. It ' s been there since day
one. . . .there' s a note there about, since there is loosestrife and he
indicated that there is loosestrife in the spoils, that the Department
of Agriculture has to give me a permit. Their regulations about how to
dispose of that are in the recommendations of that permit. They've
given me a number of . . . They've given me verbal approval and he says
the written permit is on it' s way. I described the situation to him and
he didn't see any problems with it. Basically what we end up doing is
we mix up the dirt and top soil and spread it around and kill all the ,
dead vegetation, the seeds still remain and grow back and plant grasses.
Not tall grasses and maintain it for a while through mowing and it keeps
the plant from coming up. We do that for a couple of years and it
should establish itself. I could pull the young plans. He said he
would teach me how to spot them. 1
Councilman Horn: I had no more questions either. The only issue
before us is whether we want to make a recommendation to the DNR. Other 1
than that, we can instruct staff to monitor the plan and the progress .
Does anyone wish to make such a motion?
Councilman Johnson : My motion is going to be much broader than that
because we have to issue him a wetland alteration permit or he can' t do
I . City Council Meeti.t ( -'J
February 8, 1988 - Page 7
I
the project . . _.
I i -
Councilman Horn : Not until we have the plan.
I . Councilman Johnson: This isn ' t the plan? . . -;
Eric Rivkin : __ The DNR has to review- that and issue me a .new permit based
Iit- ,Ton ,this,_-.new- information. That has to come back with their provisions .
CounCoun,ci1man- -Johnson_: What would--=happen --to- =you ,if --: our :wet-land _ a.
i--alter,ation-permit is --not approved until February 22nd? Two weeks from
I today. Will you be able to complete your project, your dredging this
year? Is that a concern to you?
I Eric Rivkin : It' s a concern to me, yes . It' s kind of tight but I 'm
confident it can be done. You' re saying that March 1st you don' t allow
things on -:the -1-ake?=r, - , . . - _, -
I . Councilman. Johnson: -_ The permit restriction in here from the Watershed
District is that you do all your dredging by March 1st.
Eric Rivkin: I' ll comply with that.
y
But if you
Councilman Johnson: can' t start- until February 23rd, that
1 gives you 5 week days . I don ' t know if you' re going to work Saturday
- -and Sunday. I don' t know how long it's going_ to take and whatever.
Eric Rivkin: I have a contractor and the contrator has already signed .
IAll I have to do is sign it and send it back.
Councilman Johnson : So he ' s available to do this?
1 Eric Rivkin: He 's aware of all the conditions of the permit.
1 Councilman Johnson: So if we table this waiting for the survey and the
or ;ANR permit., we_'re not going to be delaying you?
`
• :-Eric- Rivkin_: - I,-don ' t know. . There seems to be a, surprise I come to this
I +_•,c meeting. •`I- .don't know what it will be this time. -
;;e --Councilman Horn : I think the question you -get , what we' ve heard is ,
- --because you' re -dredging within 200 feet of a wetland, you do need a
I . , wetland alteration permit. Apparently you weren ' t aware of that if
-- . that 's what you' re talking about for a surprise.
I _Councilman;O ll Johnson: If we put that to bed tonight , there won ' t' be
C.o
anymore. If we wait two weeks, I can' t guarantee you there won' t be
anymore.- - I guarantee I won ' t give you much more because I won 't be here
two weeks from tonight but Dale will and Dale was more opposed to this
I - project than I was.
Councilman Boyt : I 'd like to suggest something . I 'd like to propose
Ithat we submit a letter to the DNR requesting that they include our
conditions in their permit and further , that we recommend that they deny
II
. . (
City Council Meeting
February 8, 1988 - Page 8
II
the permit. I fully believe they won' t deny the permit but I want to be
on record as opposed to it as a city.
Councilman Boyt moved, Councilman Johnson seconded to submit a letter to I
the DNR requesting that they include the City's conditions in their
permit and recommend to the DNR that they deny the permit.
Councilman Boyt and Councilman Johnson voted in favor, Councilman Horn 1
and Mayor Hamilton voted in opposition to the motion. The motion failed
with a tie vote of 2 to 2.
1
Councilman Horn: Is there an alternate motion anyone would like to
propose?
II
Councilman Johnson: Yes , I 've got about 9 conditions going here.
Because it looks like the DNR is going to approve this and there' s
nothing we can do about that part of it, I don ' t see any necessity for
II
us to further delay the applicant if we can. If we do it by approving a
wetlands alteration permit tonight.
II
Councilman Johnson: Is this the only plan you plan on submitting to
the DNR?
ElEric Rivkin : I 've already submitted it.
Councilman Johnson: So the area of where you' re going to place this is
II
this plan?
Councilman Horn : Is that your motion?
I
Councilman Johnson: Do we need a performance security bond? I don' t
think so, for this one.
Councilman Boyt : What about conditions of the staff? III.
Eric Rivkin: The provisions of the DNR permit spell out the erosion
II
control plan. I have to get the Watershed recommended 3 or 4 provisions
in there. They are in the permit and they are covered .
Councilman Johnson: Does staff have any problem with erosion control? 1
Jo Ann Olsen: We haven' t really looked at it yet. This is the first
time I 've seen this .
II
Mayor Hamilton : He' s not doing anything in an area that we control ,
how can we require. . .
Jo Ann Olsen : One of the conditions of the Fish and Wildlife was also to
stabilize where the spoils are going to be placed.
Councilman Johnson : We have control of that area .
11
City Council Meetit,y
February 8, 1988 - Page 9
1 -
IMayor Hamilton : Right , I realize that .
Councilman Johnson: He has erosion control around the side of that
with our standard Type II erosion control detail .
1 Eric Rivkin: I got that from Larry Brown.
1 Councilman Horn : Do you have anything else to add to your motion Jay?
Councilman Johnson: Advice from staff. Anything else to add to that?
I Councilman Boyt : What about the other points of staff' s conditions?
You've selected a couple.
IEric Rivkin: Can I have further discussion about this?
Councilman Boyt: Not yet.
I Councilman Horn: We have a motion on the floor. Is there further
discussion about it.
I Councilman Boyt : I have a question about it and the question is , in
regard to the disposal . Jay brought up earlier, material is being
disposed that is in our control that does require a wetland alteration
permit because it 's within 200 feet of the wetland. That ' s not part of
I your motion . I didn ' t see anything in the motion about approving a
— wetland alteration permit.
I Councilman Johnson: That was the very first part of what I said then
I started listing the conditions.
I Councilman Boyt: What you' re proposing then is to basically allow this
to go forward as proposed to the DNR?
I Councilman Johnson : The DNR controls all dredging, no dredging within
our area. I think our hands are tied. I think we would be somewhat
arbitrary and capricious , or whatever those $2. 00 lawyer words work out
to say that I feel we ' re hard pressed to deny. It ' s going to be there
I whether he has to haul it totally off site or not. At this point we
have to be reasonable. I don ' t like it.
I Councilman Boyt : You make a good point about being reasonable and on
this particular issue I 'm going to be unreasonable and vote against
this simply because I think by voting against it we would actually make
it impossible to do. I 'm not for the canal being dredged whether the
IDNR supports it or not.
Councilman Johnson moved , Mayor Hamilton seconded to approve a Wetlands
IL Alterations Permit for dredging a channel within DNR controlled space
with the following conditions :
I 1. The only dredging will be outside of the jurisdiction of
Chanhassen controlled wetlands, on other side of the 956.1
contour line.
11
5 / • II
City Council Meeting t,
February 8, 1988 - Page 10
II
2. The applicant submit a certified survey showing where the
956.1 contour is located .
3. The spoils area and the equipment movement area staked and II marked and approved by the City Staff prior to any
construction. The purpose of this is to assure that the
equipment is not driving throughout the wetlands. The II adjacent wetlands and throughout the area .
4. Have a new plan submitted to the City that includes the I
information that the DNR wants.
5. The applicant will follow all conditions of the DNR permit,
II
the Wateshed District permit, the Department of Agriculture
permit and any other applicable permit.
6. The dredged material will be removed and placed as shown on ,
the plan dated "Revised February 5, 1988" and submitted to the
City Council tonight.
7. The applicant shall submit a detailed grading and erosion II
. control plan for City approval prior to construction of the
Site .
8. The applicant shall notify the city 48 hours prior to 1
commencement of excavation and shall provide written notice to
. the City Engineer prior to completion of the project and shall
II
receive approval by the City Engineer.
All voted in favor except Councilman Boyt who opposed and motion II carried.
Eric Rivkin : I don ' t think it ' s necessary to have a wetland alteration I
permit at this point because I already need everything outlined. I meet
city standards as far as erosion control is concerned , which also , by
the way, meets the DNR conditions that the Wateshed set on for erosion II control . The way in which the spoils are going to be handled .
Roger Knutson: If you don' t want the permit, you' re not putting the
spoils there. Do you want to put the spoils there?
II
Eric Rivkin: You' re saying, I have to. . .
Roger Knutson: Without the permit, you can ' t do it. II
Councilman Johnson: We just passed the permit for you . I
Eric Rivkin : Alright . Sorry, it ' s hard to follow this . As far as the
points, did you vote no for the performance security?
Roger Knutson : You don' t need it. r`
II
11 City Council Meeti.ny
February 8, 1988 - Page 11
' Eric Rivkin : Point 7, this additional erosion barriers , you don ' t have
control over that. Point 10, the deed restriction.
' Councilman Johnson: That wasn ' t inlcuded .
Councilman Horn: 7 through 11 are not in our motion. The only thing
' it is is the wetland alteration permit which we just granted . That ' s to
store the spoils within 200 feet of the wetland.
' NANCY LEE AND PATRICK BLOOD, PROPERTY LOCATED ON THE NORTH SIDE OF TH
212 AND THE EAST SIDE OF TH 101, ZONED BF, FRINGE BUSINESS DISTRICT:
A. CONDITIONAL USE PERMIT FOR A CONTRACTOR' S YARD ON 13 ACRES .
B. WETLAND ALTERATION PERMIT TO CONSTRUCT WITHIN 200 FEET OF A
' CLASS A WETLAND.
Barbara Dacy: The property is zoned BF, Business Fringe. A
' contractor 's yard was recently put into the ordinance to be allowed as
conditional uses . The hash mark on the transparency here shows the
location of the entire 13 acre parcel . The location of the proposed
I building is in the upper northwest corner of the site adjacent to TH
101. The Planning Commission considered this item and recommended
approval to the Council with 20 some conditions and out of their
discussion they amended four of those conditions. Condition 4
' clarifying the pumping contract provision with the city. Number 25,
they specified that any expansion of this activity beyond 12 vehicles
would require a conditional use permit. Number 26, that the site plan
' be revised to shift the building 20 feet to the east and finally, if the
site is to be subdivided in the future, that the City would look to
requiring the necessary right-of-way for frontage road to make
connections to the properties to the east . To summarize the Planning
' Commission' s discussion would be to basically say that their discussion
centered around traffic issues and access to the site. A couple of
issues that I 'd like to talk about further, beyond the Planning
' Commission consideration. One of those items was that the Commission
spent a good deal of time on whether or not they should add on a
condition about restricting access coming into and out of this site and
primarily requiring access to proceed south on TH 101 to prevent access
going north. As you' ll note in the Minutes , the Commission asked about
another application at the Merle Volk site and that conditional use
permit and a condition indeed was placed in that permit to restrict
access to CR 18 . However , I think that the Planning Commission , at that
meeting, it was decided that that condition was not necessary in this
IL case. Secondly, another major issued discussed by the Commission at
their meeting was access to the site from TH 101. Again, collectively
the Commission decided that the access proposed in the proposed site
plan was adequate. A couple of the members did have a lot of
reservations about this access so staff went further to research this
issue as to whether or not access could be gained from the east. In
order to do that , there is an intermediate property on the east side
I
.
LAW OFFICES
GRANNIS, GRANNIS, FARRELL & KNUTSON
1
DAVID L. GRANNIS- 1874-1961 PROFESSIONAL ASSOCIATION TELECOPIER:
DAVID L. GRANNIS,JR. - 1910-1980 POST OFFICE Box 57 (612)455-2359
VANCE B. GRANNIS 403 NORWEST BANK BUILDING DAVID L. HARMEYER
VANCE B.GRANNIS,JR. 161 NORTH CONCORD EXCHANGE ELLIOTT B. I{NET$CH
PATRICK A. FARRELL MICHAEL J. MAYER
DAVID L.GRANNIS, III SOUTH ST. PAUL, MINNESOTA 55075 TIMOTHY J. BERG I
ROGER N.KNUTSON TELEPHONE(612)455-1661
July 5, 1988 i
Ms. Jo Ann Olsen II Assistant City Planner
Chanhassen City Hall
690 Coulter Drive, Box 147 II Chanhassen, Minnesota 55317
RE: Dredging in Public Waters II Dear Jo Ann:
Enclosed is a copy of the memo I received from Assistant I
Attorney General Bill Clapp. I think his argument might persuade
a court. If he is right, the City can regulate dredging in a lake
as long as the lake is entirely within Chanhassen.
II
The Supreme Court in the Orono decision, copy enclosed,
held: "the public policy of this state is that the DNR is to have
exclusive authority to grant or deny permits for dredging in
II
lakebeds of public waters. " This is very strong language to
overcome, but Clapp' s analysis gives us an argument. Considering
the City' s policy of zealously guarding the City' s wetlands, I I
suggest that the City regulate dredging in the public waters of
lakes wholly within the City.
Very truly yours,
I
GRANN : , GRANNIS, ' ARRELL
- NU • ' I
B Mk __„,,gialle.
----".r-- 'nutson
RNK:srn
I
Enclosures
I
+_x,.:31Uila
I
JUL QQ1988
en OF CHANHASS1
1
ATTORNEY GENERAL
' MAY 12 , 1988
' DAVE MILLES
' BILL CLAPP
6-0686
' CITY REGULATION IN PROTECTED WATERS
You told me last week that you had been asked by Chanhassen
whether it could regulate changes in protected waters. You said
a city employee said the city attorney said no.
The city attorney may be motivated by the attached Minnesota
Supreme Court decision, Welsh v. City of Orono, 355 N.W. 2d 117
(1984) . The court said that the city could regulate work on the
shore , such as docks and riprap, but not dredging out in the
' water . The court seems to use the water ' s edge (not the OHWL) as
the boundary of the city' s authority.
The court makes no reference to Minn. Stat. S 378. 31,
subd. 12 and section 459.20 , which between them give cities the
' authority to regulate changes in the course, current or
cross-section of public waters wholly within their boundaries , or
of those partly within with the help of joint powers agreements
' with the other cities and towns in which the waterbody lies. I
checked the briefs and found that the court had been made fully
aware of these two statutes. I suppose the court did not
' reference them because the case involved the application of the
Orono ordinance to Lake Minnetonka, which lies in many
jurisdictions , and which do not have an applicable joint powers
agreement.
' I conclude that Welsh v. Orono does not stop cities and
towns from regulating per 378. 31, subd. 12 when the conditions
specified in 459 . 20 are satisfied.
The case does prevent cities from relying on their general
welfare authority, or chapter 462 (unless amended) as sources of
' authority for such regulation.
Kent may remember that he provided Orono with an affidavit,
' which was part of the record before the Supreme Court, stating
that DNR did not consider its authority to be exclusive. The
court was unmoved.
' BC:dw
Attach.
I
1 111
116 WELSH v. CITY t• 355 NORTH WESTERN REPORTER, 2d SERIES 1 l€
OF ORONO Minn. 117
Cite as 355 N.W.2d 117(Minn. 19841
KAVANAGH and • 'N, JJ., would, after at 12% per annum . 11 paid, and Iii) application for conditional use permit to
for the reasons set forth in Jus • Levin's award interest o Weekly payments that Raymond Arthur CASE. Jr.. dredge a portion of lake adjoining his resi-
dissenting opinions in Selk v.Detroit - -. - became or .• .me due or payable on or petitioner, Appellant. dence. The District Court,Hennepin Coun-
tic Products, 419 Mich. 1, 15, 345 N.W.2d .ft-r . uary 1, 1982 at 12% per annum ty, Irving C. Iverson,J.,entered summary
184 (1984), and Selk v. Detroit Plastic •; v
judgment in favor of landowner on ground
Products (On Resubmission), 419 Mice. STATE of Minnesota, Respondent. i
32, 37-38, 348 N.W.2d 652 (1984), and that city lacked jurisdiction to regulate lake ! ri
• to the Workers' Compensa '. Appeal C3-83-1139. `
pP O SffYVUMB!R 'TEM bed dredging,and it appealed. Subsequent
Board with the direction t)award inter- ' Supreme Court of Minnesota. to city's appeal•landowner moved for attor• i
est on weekly paym•- that were due and ney's fees. The District Court denied that
P Aug. 3. 1984, motion, and he appealed. The Supreme
payable before :nuary 1, 1982 at 5% per
g' f
annum unt' December 31,1981,and there-
r-�� ORDER Court,Kelley,J.,granted landowner's peti-
tion for accelerated review, consolidated +l
AMDAHL, Chief Justice. the appeals,and held that: (1)municipality i
Based upon all the files, records and was without jurisdiction,either explicitly or 1
proceedings herein, implicitly, to regulate dredging in public i i
IT IS HEREBY ORDERED that the peti- waters because Department of Natural Re-
tion of Raymond Arthur Case.Jr. for fur- sources has exclusive jurisdiction to grant 1
ther review of the decision of the Court of or deny dredge permits for work in public i
Appeals,344 N.W.2d 888,be,and the same waters as provided by legislature: (2)trial
is. granted. Briefs shall be filed in the court erred in ordering city to refrain from i
quantity, form and within the time limits- interfering with proposed permanent dock i :
tions contained in Minn.R.Civ.App.P. 131 and riprapped shoreland protection because I;
and 132. Counsel will be notified at a later the city has express power to regulate I !
date of the time for argument before this wharves and docks in shoreland areas: and ; Pt
court. No requests for extensions of time (3)trial court did not abuse its discretion in 1 if
for the filing of briefs will be entertained. denying attorney fees under Civil Rights 1 i
Attorney's Fees Awards Act.
w
O ;KEY MIMEO SYSTEM '
T Affirmed in part; reversed in part and
remanded.
C. Rex WELSH, Petitioner, Appellant
1. Municipal Corporations a57
(C2-83-1276), Respondent A municipality has no inherent powers, j
(C3-83-699), but only such powers as are expressly con- I
v. ferred by statute or are implied as neces- i
CITY OF ORONO.A Minnesota munici- sary in aid of those powers which are ax- `.
I pal corporation, Respondent (C2-83-- Pressly conferred; if the activity is one
1276), Appellant IC3-33-ri99). peculiarly subject to local regulation,based
upon nature of activity and its customary i'.
No. C3-83-699, C2-33-1276. area of performance,the necessary implied
Supreme Court of Minnesota. powers in aid of carrying out express statu-
Aug. 31, 1984, tory power is construed liberally, but if a
matter presents a statewide problem, the
Rehearing Denied Oct. 23, 1984. implied necessary powers of a municipality
to regulate are narrowly construed unless '' 1';
Landowner brought suit for declarato- the legislature has expressly provided och-
ry and injunctive relief after city denied his erwise.
i g ,
il
• - - • - • - - - - • • • - • • - - -
NM I IIIIIIII 11111111 IIIIIII IIIIIII = MI I 1111111 NM MO I I OM MI = IIIIIIII MI
;.
t. it
113 Minn. 355 NORTH WESTERN REPORTER. 2d SERIES WELSH v. CITY OF ORONO Minn. 119
Cite as 355 N.W.2d 117(Minn.1984) le
2. Navigable Waters S...38 public waters within their jurisdiction, civil rights attorney fee provision. 42 U.S. permit to dredge a portion of the bed of
Dredging on portion of lakebed of a could reasonably be interpreted to allow C.A.§ 1988. Lake Minnetonka adjoining the Welsh resi-
navigable I
lake which encompasses several city to control and regulate disposition of dence. Welsh filed this action seeking de-
different municipal jurisdictions is not a dredge spoil on municipally zoned land. Syllabus by the Court claratory and injunctive relief.' The trial
matter of peculiarly local concern. M.S.A. M.S.A. § 462.357,subd. 1. 1. A municipality is without jurisdic- court granted Welsh summary judgment
§ 412.221. tion, either explicitly or implicitly, to regu- on the ground that Orono lacked jurisdic- f
S. Navigable Waters'43=38 late dredging in public waters because the tion to regulate lakebed dredging. The 1
3. Navigable Waters Dredging approval is conditional upon g g P court ruled any Orono regulation of dred 3
Department of Natural Resources has ex- Y g-
Municipality is without jurisdiction, ei- compliance with municipal regulations goy- elusive jurisdiction to grant or deny dredge ing was void and further ordered Orono to
they explicitly or implicitly, to regulate erning flood plain and shoreland areas. permits for work in public waters as pro- stop "interfering with" Welsh's dredging
, dredging in public waters because Depart- M.S.A.§§ 104.04,subd. 1, 105.42,subd. la, vided by the legislature. and his proposal to construct a permanent
ment of Natural Resources has exclusive 105.485. 2. The Department of Natural Re dock and to riprap the shoreland adjoining
jurisdiction to grant or deny dredge per- P 2
• mits for work in public waters as provided 9. Injunction x85(1) sources dredging permit issued was condi- the proposed permanent dock. The trial
Department of Natural Resources tional upon compliance with all other mu- court did not specifically rule on the re
by the legislature. M.S.A.§§ 31.024,41L: P P maining claims in Welsh's complaint. Oro-
221- dredging permit was conditional upon com- nicipal zoning regulations. The trial court,
llance with all other municipal zoning re therefore, erred in ordering a municipality no appeals from the summary judgment
P P g g g
1. Navigable Waters s=38 order. Subsequent to Orono's appeal,
ulations,and therefore the trial court erred to refrain from interfering with a proposed
Wharves 0w12 Welsh moved for attorney fees pursuant to i
in ordering municipality to refrain from permanent dock and riprapped shoreland 42 U.S.C. § 1988 (1982). The trial court t
Statute giving city power to regulate interfering with landowner's proposed per- C
g p p p protection because the municipality has ex- denied that motion. Welsh appeals the de-
docks clearly allowed regulation by munici- manent dock and riprapped shoreland pro- press power to regulate wharves and docks vial of attorney fees? We affirm the trial
. pal ordinance of location and length, as tection because the municipality had ex- and shoreland areas. court's order that Orono lacked jurisdiction
well as other reasonable regulations of press power to regulate wharves and docks 3. The trial court did not abuse its to regulate order
dredging in the bed jurisdiction
Lake
docks extending into lake; however, that and shoreline areas. M.S.A. §§ 104.04, discretion in denying attorney fees under Minnetonka o re to and denying Welsh attorney
statute did not include dredging of lakebed subd. 1, 105.42,subd. la, 105.485. 42 U.S.C. § 1988 when the claim is essen- fees. We reverse that part of the order
as a necessarily implied power in further- P
l0. Appeal and Error'442 tially a private state law claim and is not banning Orono from "interfering with
mice of specifically enumerated powers of g g
controlling dock construction, length, and Even after an appeal is perfected,trial within the spirit of the civil rights attorney Welsh's construction of a permanent dock
use. M.S A. § 412.221,subd. 12. court retains jurisdiction over matters col- fee provision. and riprapping the shoreland adjoining the
lateral and supplemental to decision on dock."
5. Navigable Waters x33 merits. 51 M.S.A., Rules Civ.A Proc.,
Enabling act permitting a municipality pp' Bruce D. Malkerson, Thomas J. Radio, Welsh resides on residentially-zoned
g P g P Rule 108-03. Minneapolis, for City of Orono. property bordering North Arm Bay,a por
•
to regulate "uses of land for ' ` ' flood •
control or other purposes" expressly dele- 11- Appeal and Error x442 Scott G. Harris. Eileen M. Roberts, Min- tion of Lake Minnetonka within the city
gated land use regulation to municipalities, Since petition for attorney fees under neapolis,for Welsh. limits of Orono. He desired to dredge the
froinis
but it could not reasonably be interpreted Civil Rights Attorney's Fees Awards Act is lake adjacent to his property in order to
to include an implied power to regulate collateral to merits, it may be heard and Considered and decided by the court en obtain boat access to the property He
dredging in lakebeds of public waters. decided after perfection of appeal by party. bane without oral argument acquired a permit to do so from the Minne ,
M.S.A.§ 462.357,subd. 1. 42 U.S-C.1,.§§ 1981 et seq., 1988. sota Department of Natural Resources
KELLEY,Justice. IDNR) on August 4, 1981. The permit ,
6. Navigable Waters x38 12. Civil Rights x13.17(13) The City of Orono denied C.Rex Welsh's issued by the DNR was expressly condi-
•
City did not have implied power to United States Supreme Court's New- (Welsh) application for a conditional use tioned on other governmental approvals
regulate dredging either from the express man decision requires an award of actor- ! '
power granted to municipalities to regulate ney fees to prevailing party pursuant to I. Welsh asserted five claims in his complaint: of 12 U.S.C.§ 1983(1982),thus entitling Welsh 4
Hood plains by the Flood Plain Manage- Civil Rights Attorneys Fees Awards Act 1) Orono unlawfully denied the permit; (2) to attorney fees under 42 U.S.C.§ 1988(1982)) ) "•
Orono lacked jurisdiction to regulate the dredg-
ment Act or from the express power to unless special circumstances would render I 1 I
P Po P mg of Lake Minnetonka; (3)the state had pre- 2. Orono had enacted an ordinance that required
regulate certain land adjacent to water- award unjust. 42 U.S.C.A. § 1988. emoted municipal regulation of lake bed dredg- a conditional use permit to dredge the lakebed
ways by the shoreland Management Act. ing; (4)Orono waived its right to object to the of Lake Minnetonka within its jurisdiction. Or- f•
• 13. Civil Rights'13.17(10) dredging; and(5)Oronos unlawful exercise of ono City Ordinance§ 31.832(6)2. is
.M.S.A. §§ 105.01 et seq., 105.485. :I
• Trial court did not abuse its discretion its police power violated Welsh's constitutional I
7. Municipal Corporations¢ 600 rights. (The last claim alleged violations of the 3. Welsh's appeal initially was to the Minnesota
• P tP in denying attorney fees under Civil Rights due process and taking clause of the United Court of Appeals. By order,we granted a peti- i
. Authority granted municipalities under Attorney's Fees Awards Act,since claim in States and Minnesota Constitutions and the fed- Lion for accelerated review and co.tsolidated his
statute. viz., to regulate by ordinance the question was essentially a private state law eras equal protection clause. it also claimed appeal with that of the City of Orono for consid-
location, construction and use of docks on claim and it was not within spirit of the
these alleged violations constituted a violation eratton here.
1;
,
a<,.0 ,
I
120 Minn. 355 NORTH WESTERN REPORTER, 2d SERIES WELSH v. CITY OF ORONO Minn. 121 i
Clte ae 355 N.W.2d 117!Minn.19$41 I
1
necessary to dredge, riprap and install a meeting but chose not to attend. Based on [2] Orono claims a necessary implica- state's water resources in the DNR pre-
permanent dock. Welsh also. as required this testimony of adverse environmental ef- tion of its power to regulate for the gener- elude an interpretation of the general wel-
• by state law, served the Lake Minnetonka fects of dredging,the availability of a per- al welfare provided for in Minn.Stat. fare statute as including the power of a
Conservation District(LMCD)and the Min- manent dock alternative, and evidence of § 412.221 (1982) necessarily includes the municipality to regulate dredging of waters
nehaha Creek Watershed District(MCWD) sufficient existing water depth for naviga- regulation of lakebed dredging. The within its jurisdiction.
granted power to regulate for health, wel-
notice of the proposed dredging. The City lion, the city council voted to deny the (41 Orono further asserts the express
of Orono was also mailed a copy of the fare and safety has been broadly construed
•
P conditional use permit, Passage of the res- statutory power authorizing it to regulate
• DNR permit application. The LMCD and olution of denial prompted Welsh's suit for to allow municipal regulation and licensing the location,construction and use regulate
of piers, { ,
the MCWD both consented to the dredging. of wholesale cigarette sales even though
g'- g- declaratory and injunctive relief in Herne- docks and wharves on navigable waters
The City of Orono failed to file comments pin County District Court. another statute expressly only contemplat- necessarily implies a power to regulate 1
ed retail regulation. State v. Crabtree Co.,
with the DNR,MCWD or to LMCD regard- dredging. Minn.Stat. § 412.221, subd. 12
• ing the Welsh application. The DNR"noti- 1. On appeal, Orono claims it has im- 218 Minn. 36, 15 N W.2d 98 11944). In the (1982). While the statute giving Orono the
fication of permit application"to be served plied power to regulate lakebed dredging instant case,it is clear that dredging on the power to regulate docks clearly allows rthe
upon local governmental units where the within its corporate limits concurrently to portion of the lakebed of a navigable lake
p g ulation by municipal ordinance of the loca- d
dred in would occur requested, but did DNR regulation because of various express which encompasses several different mu-
dredging 4 Lion and length,as well as other reasonable
legislative
not require, local entities to comment on gislae delegations of power to munici- nicipal jurisdictions is not a matter of peen- regulations of docks extending into Lake
the application. palities of related subjects. It contends the liarly local concern. Regulation of ciga-
power to regulate dredging is a necessary rette sales in a municipality has little or no Minnetonka,we decline to strain the mean-
Welsh originally submitted an application implication of power to regulate the gener- effect upon other jurisdictions. In con- ing of that statute to include dredging of
to the City of Orono for a conditional use trast, if all 1 g the lakebed as a necessarily implied power
al welfare, docks and wharves, zoning, political subdivisions adjoining
p p
. permit to dredge and riprap the lakebed flood plaining and shoreland. In the past.
Lake Minnetonka could regulate dredging in furtherance of the specifically enumerat-
adjacent to his property to gain boat access this court has rejected a similar argument of its lakebed,different portions of the lake ed powers of controlling flock construction,
to his land. He evidently at that time did where here a municipality sought to expand jut- would be subject to different and varied length and use. Orono has shown no nex-
not request approval from Orono of a plan indiction to license tradesmen as an aid to a standards and regulations. us between the subject of the state statute •
to install a permanent dock. The planning delegating dock regulatory powers to mu-
commission of the City of Orono considered specific statutory grant. See Minnetonka [3] Moreover, the legislature has clear- nicipalities and the claimed implied power 1
Electric Co. v. Village of Golden Valley, • ly established that water resource conser- i
and recommended denial of the application. 273 Minn.301, 141 N W.2d 138(1966). vation, and particularly jurisdiction of to regulate the dredging of the lakebed of
Welsh thereafter submitted a modified ap- dredge permit applications, has been dele public waters.
recommended The planning commission again [1] A municipality has no inherent pow- gated to the DNR.5 These statutes vesting [5] Orono further claims it has implied �}
recommended denial because it felt a 150- ern, but only such powers as are expressly central planning of and control over the authority to regulate dredging from the 1
foot dock to reach navigable water was a conferred by statute or are implied as nec-
reasonable alternative to dredging.' 5. The pertinent statutes read in part as follows: eluding but not limited to the construction,
essary in aid of those powers which are The purpose of Laws 1967.Chapter 905 is to reconstruction, repair• removal, abandon-
The Orono city Council's consideration of expressly conferred. Village of Brooklyn centralize the operating authority of the de- ment.the making of any other change,or the
Welsh's application was delayed at his re- Center v. Rippen, 255 Minn. 334, 96 partment of natural resources in a commis- transfer of ownership of dams, reservoirs, 1 '
quest for several months. Ultimately, N.W.'d 585 (1959); Minnetonka Electric
sioner and his deputy in lieu of the commis- control structures,and waterway obstructions
_ Welsh requested that the application be sioner and several operating divisional di- in any of the public waters or wetlands of the
Co. v. Village of Golden Valley,273 Minn. rectors; to coordinate the management of the state.
reactivated. The Orono city conned, with 301, 141 N.W.2d 138(1966). If the activity public domain; to eliminate duplication of Minn.Stat. § 105.38 (1982) (emphasis added).
Welsh present, voted to deny the a Iica- effort and function; and to best serve the
p Y pp is one peculiarly subject to local regula- It shall be unlawful for the state,any per-
lion in concept and requested the city plan- public in the development of a long range son,partnership,association,private or pub- i
•
don—based upon the nature of the activity program to conserve the natural resources of lie corporation,county,municipality or other ; �
per to draft a resolution of denial. The and its customary area of performance— the state. political subdivision of the state,to construct. +
draft resolution was scheduled for review Minn.Stat. § 84.024 (1982) (emphasis added). i1
the necessary implied powers in aid of reconstruct,remove.abandon,transfer own-
on July 12, 1982. Although Welsh was In order to conserve and utilize the water
g carrying out express SLaCUtOr: power is ership.or make any change in any reservoir,
resources of the state in the best interests of dam or waterway obstruction on any public •
P •
notified,he declined to attend this meeting. construed liberally. However, if a matter the people of the state.and for the purpose of
water: or in any manner,to change or dimin-
The council, therefore, tabled the matter presents a statewide problem, the implied promoting the public health, safety and wel- i
without discussion. p p fare,it is hereby declared to be the policy of ish the course.current or cross-section of any 'I
necessary powers of a municipality to regu- public waters, wholly or partly within the
the state:
On September 13. 1982. the city council late are narrow! construed unless the leg- state.by any means,including but not limited
., p Y narrowly (1)Subject to existing�gfets all public wa• to,filling,excavating,or placing of any mate•
heard a final summary of the evidence and islature has expressly provided otherwise. tern and wetlands are subject ro the control of g P g E.
the state. rials in or on the beds of public waters.with- t
testimony regarding its denial of the dredg- Rippen, 255 Minn. at 337, 96 N W.2d at out a written permit from the commissioner
ing permit. Welsh was notified of this 588. p previously obtained. Application for such
(3)The state shall control and supervise,so P permit shall be in writing the commission-
. far as practicable.any activity which changes Pe g
4. Although a 150-foot dock length would require such variances had been granted in the past and er on forms prescribed by him.
a zoning ordinance variance, the city, in an would be approved if Welsh agreed to the alter- or wftfc will change the course, current, or P
=sworn affidavit of its city planner, alleged native. cross-sect ion of public waters or wetlands,in- Minn.Stat.§ 1 05.42 subd. 1(1982).
- - - -
IIIIIII MI • OM IIIIIII MI N • MI • • • • NM I MN • MI
0-Y
^ . tE
�,. ti= 6 � fry 5,� i. 1 � :• �s - .. -
` 122 Minn. 355 NORTH WESTERN REPORTER. 2d SERIES WELSH v. CITY OF ORONO Minn. 123
Cite an 353 N. . 117 Minn. 191131
enabling act permitting municipal zoning. 6120.5800, subp. :3 (1983). Orono has pro- indicate that the demarcation between mu- state law reflecting public policy clearly
Minn.Stat. § 462.357,subd. 1 (19520 The mulgated such conditional or special permit nicipal and DNR regulation is at the wa- delegates to the DNR exclusive authority
city argues the authority to regulate "the uses within floodways. Orono Zoning Code ter's edge. NR 83(c)(3)(cc) (1982), recodi- to grant or deny dredging permits, state
uses of land for • ' • flood control or 31.832. Within these conditional uses is fled at Minn.Rule 6120.3300, subp. 4C. law is also clear that dredging approval is
other purposes" necessarily includes the the provision requiring Welsh to obtain a (19831. conditional upon compliance with municipal
power to regulate the dredging of iak- permit for"dredging or excavation of ma- By enacting sections 84.024, 105.38 and regulations governing flood plain and
ebeds. The zoning statute expressly dole- terial from any lakebed, pond, or wetland 105.42, the legislature has clearly estab- shoreland areas. Minn.Stat. § 104.04,
gates land use regulation to municipalities. or from land adjacent thereto." Orono
„ fished that in order to regulate, supervise subd. 1 (1982); Minn.Stat. §§ 105.42, subd.
It cannot reasonably he interpreted to in- Zoning Ordinance;,1.8 _(b,2. and control public waters of the state, all la, 105.485(1982).
elude an implied power to regulate dredg- DNR flood plain regulations, however, authority over dredging the lakebeds of
ing in lakebeds of public waters. state that any proposed work in the beds of public waters is centralized in the DNR. [91 Consequently,Orono does have jur-
[6] Orono further claims implied power public waters to change its course,current The duties of the DNR with respect to the isdiction to regulate disposition of dredge
to regulate dredging from the express pow- or cross-section is "subject to" the provi- management and control of public waters spoil either upon the flood plain or the
sions of Minn.Stat.ch. 105(1982),including is clearly dominant. Municipalities have no
er granted to municipalities to regulate di P shoreland areas to insure disposition con-
the DNR's permitting process for dredg- implicit power granted to them by the legis- sistent with its flood plain and shoreland
flood plains by Minn.Stat. ch. 104 119$_) P P gt
(the Flood Plain Management Act). Pursu- tng See. e.g.. N.R. 59(e)(1), recodified at lature to grant or withhold dredging per- management ordinances,and this would in-
.. ant to that act, Orono has adopted a flood Minn.Rule 6120.5900, subp. 6 (1983); see mits in public waters. The trial court cor-
P elude the type and location of any shore-
'' plain management plan. Orono Zoning also Minn.Stat. § 105.42 (1982); 6 MCAR reedy determined that the DNR has exclu-
1.5022 et .seq., recoditied at Minn. Rule land riprapping. It follows that the trial
Code 31.800-.395. A flood plain is defined sive jurisdiction and authority to regulate
a 6115.0200 et seq. The DNR permitting court s order to Orono to refrain "from
in state law as an area"adjoining a water- dredging in beds of public waters in City which has been or hereafter may he statute, however, does require that 0-p y interfering" with Welsh's proposed dock
sofa and that local ordinances of the Cit of and riprapping the shoreland was oven
covered by the regional flood." Minn.Stat. proved dredging be completed in a manner Orono which purport to regulate such ac- overly
• 8 104.02, subd. 3 (1982). The state law cons istent with local flood plain manage- tivity are null and void. broad and must be vacated.
also defines floodway as "the channel of ment and shoreland management ordi-
g y nances. Minn.Stat. § 105.42. subd. la [7.81 The trial court also enjoined (10] 3. Welsh appeals from the trial
the watercourse and those portions of th (198.0 Orono from "interfering" with plaintiff's court's denial of attorney fees claimed an-
.
, :t adjoining flood plains which are reasonably efforts to build a permanent dock and place
The legislature, in enacting Minn.Stat. P P der 42 U.S.C.§ 1988(1982). Because Oro-
required to carry and discharge the region- riprap shoreline protection. Although Oro- no had filed its notice of appeal prior to the
• al flood." Minn.Stat. § 104.02, subd. 4 § 84.024 (1982) and Minn.Stat. §§ 105.38 no has no authority to regulate dredging in
(1982). and 105.42,subd.1(1982)made it clear that g g trial court's order denying attorney fees,
the public policy of this state is that the the lakebed, the legislature has granted it Orono argues the trial court was without
Pursuant to section 104.04, local govern- DNR is to have exclusive authority to authority to regulate by ordinance the loca- jurisdiction any
ments may develop flood plain manage- lion,construction and use of docks on pub-
.il urisdiction to make an order or render
grant or deny permits for dredging in lak- any decision affecting the order appealed
ment ordinances which may include but are lie waters within its jurisdiction.' More-
y ebeds of public waters. That being so,we More-
from. State v. Bentley, 216 Minn. 146, 12
not limited to "the delineation of flood decline to judicially grant an implied power over,it has been granted legislative author- N W.2d 347 (1943), overruled on other
plains and floodways,"the"preservation of ity for local zoning. authority tat. § 462.357, w
P Y P in a municipality to regulate dredging from subd. 1 (1982). The authority granted to grounds. State ex rel. Peterson v. Ander- "."'w,y
the capacity of the flood plain to carry and the Flood Plain Management Act. son. 220 Minn. 139, 19 N.W.2d 70 (1945).
discharge regional floods," the "minimize- municipalities under this zoning statute can
lion of flood hazards,"and the"regulation Orono next claims an implied power to reasonably be interpreted to allow Orono to Even after an appeal is perfected,the trial
• of the use of land in the flood plain." regulate dredging from the Shoreland Man- control and regulate the disposition of court does retain jurisdiction over matters
' agement Act. Minn.Stat. § 105.485(1982). dredge spoil on municipally-zoned land. In- collateral and supplemental to the decision
The state DNR has promulgated reguia- This act, however is expressly limited by
deed, the DNR dredging permit issued to on the merits. State v. Barnes, 249 Minn.
• tions under the act which,in part.authorize definition to the regulation of certain land Welsh is expressly conditioned upon proper 301, 81 N W.2d 864 (1957); see also Minn.
•
local government to enact special permit adjacent to waterways, not to lakebeds. spoil disposition. Furthermore, although R.Civ.App.P 108.03.
I.
uses within the floodway which have low Minn.Stat.§ 105.485,subds.1 and 2(19S2);
flood damage potential and will not ob- NR 82(d) (1982), reeoditied at Minn.Rule 7. Minn.Stat.§412.221, subd. 12 (1982), which Orono's zoning code provides for permanent
StruN:food flows during a regional flood. 61 20.2500 (1983). Moreover. the regale- provides city authority to regulate the design docks within the flood plain management ordi-
1. N.r?. 38(b) (1982), recodified at Minn.Ruie tions enacted pursuant to section 105.485 and dimensions of docks. provides as follows: nances of its zoning code. A permanent dock is
, ue Harbors, docks. The council shall have a conditional use. Orono Zoning Code 31--
f,- 6. In pertinent part Minn.Stat.§462.357•subd.I recreation,agriculture,forestry,soil conserve- power to establish harbor and dock limits and 332(b)(3). It may be allowed if a conditional
(1982)provides: lion,water supply conservation,soil conservation by ordinance regulate the location.construe- use permit is obtained. Orono Zoning Code
For the purpose of promoting the Lion and use of piers. docks. wharves, and 32.400-490. In addition,if dock length exceeds
g public of shorelands,• • •access to direct sunlight boat houses on navigable waters and fix rates Orono s zoning code requirements,a length var-
'i health,safety, morals and general welfare.a for solar energy systems, • " •flood control of wharfage. The council may construct and iance would be required. Orono Zoning Code '
municipality may by ordinance regulate' ` * or other purposes and may establish Stan- maintain public docks and warehouses and by 32.300-.371.
the uses of land for trade.industry,residence, dards and procedures regulating such uses. ordinance regulate their use.
,
c 124 Minn. :355 NORTH WESTERN REPORTER. 2d SERIES STATE V. [BARRA Minn.
5
Cite x,.355 N.W2d 125(Minn. 19841
[III This court has never addressed the (13] This case does not raise a tondo- process scrutiny as other criminal .:lutes.
question of timeliness of post-judgment mo- mental civil rights issue such as voting STATE of Minnesota. Respondent, U.S.C.A. Const.Amends.5, 14.
1. . tions for attorney fees under 42 U.S.C. rights, jury or job discrimination. school v. 3. Constitutional Law x273,'3)
3 1988. The federal courts have resolved desegregation, or the like. This is not an lizabeth Ann IBARRA, Appellant. Defendant, who admi ed that she
the issue in several different ways. See action for private enforcement of civil knew she was required inform welfare
Note. Timeliness of Post-.Judgment Jib- rights,hut rather a private action question- No. C0-82-I346.
agency if child's father•. . living with her
lions ybr-Attorney's Fees Under the Civil ing a municipality's regulatory jurisdiction prime Court of Minnesota. and that she knew sh= would be ineligible
Rights Attorney'. Fees .4 wards Act. 16 under state law Thus, this action is not •Valparaiso U.L.Rev 355(1982). Some fed- within the spirit of section 1988 fee awards Aug. 31, 1984. for AFDC benefits i child's father lived in
their home,but wh. denied on her applica-
eral courts have applied no time limits to considering the legislative history of the Rehea ' g Denied Oct. 8, 1984. lion form and on subsequent redetermina- jj
motions if characterized as being collateral law and case interpretation. Martin v. tion forms that ther lived with them,was 9
and independent of the merits. Obin u. Hancock, 466 F.Supp. 454 (D.Minn.1979);
district.No.9 of the International Associ- Green v. Carbaugh,460 F.Supp.1193(E.D Defendant s convicted in the Dis- not denied du process on theory that eligi- 04
5
ation of Machinists and Aerospace Work- Va.1978): Naprstek v. City of Norwich, trict Court, Waton an County, Harvey A.
bility requir= ent of child's parent's "cov-
ers, 651 F.2d 574(8th Cir.1981)(Title VII). 433 F.Supp. 1369 (N.D.N.Y.1977); Boland Holtan, .J., of wron_ ully obtaining aid to tinned abs rice from the home" was too
• We have adopted the supplemental or col- v. City of Rapid City, 315 N W.2d 496 families with depend- t children benefits, vague to 'orm basis for criminal prosecu-
lateral proceeding approach in interpreting (S.D.1982). The essentially private nature and she appealed. T'• Supreme Court, lion. . . .�, §§ 256.12, subds. 14, 15, 256. d
a state inverse condemnation attorney fee of Welsh's action constitutes sufficient spe- Coyne, J., held that: (1 defendant, who 98; U L.A.• Const.Amends.5, 14. d
provision. Spaeth v. City of Plymouth, cial circumstances to deny an award of admitted that she knew e was required Security P y f y Y I. ocial Securit and Public Welfare
344 N W.2d 815 ;Minn.1984). We there section 1988 fees. Because that is one of to inform agency if child's '•ther was liv- 1=18 d
held a claim for attorney and expert wit- the alternative reasons given by the trial ing with her was not denied d - process on Common ordinary meaning of AFDC 4
ness fees pursuant to Minn.Stat.§ 117.045 court for denying the attorney fees, the grounds of vagueness of eligibi'y require- eligibility requirement of child's parent's
(1982)"should be treated as a matter inde- order denying them cannot be said to be an meat of parent's "continued abs- ce from "continued absence from the home" is i
pendent of the merits of the litigation." abuse of discretion. the home", C2) evidence was suffi•ient • clear, and lack of knowledge of technical
344 N W.2d at 825. We perceive no reason We affirm the trial court's order holding support conviction; (3) once State s .b- definition does not result in criminal liabili-
why we should not apply the same ap- that Orono lacked jurisdiction to deny a fished putatively absent father's resi.'rice ty. M.S. §§ 256.12, subds. 14, 15, 256.98;
proach in resolving timeliness of post-judg- dredging permit. We affirm the trial ( or regular presence in home, it w • .t U.S.C.A. Const.Amends. 5, 14. if
attorney fees. We reverse and vacate the ,
ment motions for attorney fees under 42 court's order denying Welsh section 1988 required to delve into father's rel. ionshi.
i
U.S.C. § 1988. Since a petition for attor- with child to show that there was o depri- 5. Constitutional Law 1.273.7(1) f
ney fees is collateral to the merits, it may trial court's order that Orono refrain from vation of parental guidance or .pport; (4) Since gravamen of prosecution of indi- [
/ be heard and decided after perfection of an "interfering with"Welsh's attempt to build State was required to prove oneligibility •uals who misrepresent or conceal mate- 3
appeal by a party. a permanent dock and place riprap shore only under program through •hich defend- ria facts with intent of obtaining welfare I
R ant obtained assistance; a • (5)defendant assis nce for which they know they are
I" [12] We now turn to the merits of Protection. We remand to the trial court to
was entitled to reduction ' restitution for ineligi. e is individual's concealment or mis-
Welsh's claim that the trial court erred in in turn remand to the city council of the
denying him attorney fees. The Congres- City of Orono to consider Welsh's applica- two months that father .ttended technical represe .tion, recipients of AFDC or oth- :....w„.
sional history of section 1988 reveals that tion in respect to building a permanent school and lived in ano er city, er types . welfare remain within confines: )
k Affirmed as mod'led. of law as .rig as they respond honestly
the attorney fee provision was primarily dock,disposing of dredge spoil,and riprap and truthful to agency's questions and
enacted to encourage civil private attorney ping the shoreline. I Wahl, .J., diss' ted with opinion in
demands for formation, and thus, due
E general actions as enforcement aids to the Affirmed in part, reversed in part and which Yetka,J.,j.ned.
P It P process is not v.lated as long as individu-
Civil Rights Act. S.Rep.No.94-1011,94th remanded. als are informed 'f their responsibility to
Cong.. 2d Sess.. 1-2, reprinted in [1976] be truthful and to eport any changes in
U.S.Code Cong. &Ad.News 5908,5909-10. 1. Constituti. al Law c=258I2) their household co ditions to agency.
Although section 1988 leaves an award of General due process standard demand- M.S.A. § •256.98; U.S.'.A. Const.Amends.
• attorney fees to the discretion of the court, i ed of cri nal statutes is that they must 5, 14.
the United States Supreme Court requires O T<EYxUMBFN:15(FM not be s. vague that persons of common
. an award of attorney fees to a prevailing intellig- ce must guess at their meanings. 6. Social Security and •ublic Welfare
party unless special circumstances would U.S.C. . Const.Amends. 5, 14. x18
render an award unjust. Neuman r. Pig- To convict defendant fo wrongfully
gie Park Enterprises, Inc., 390 U.S. 400, 2. C nstitutional Law x258(1) obtaining AFDC benefits in excess of
402, 88 S.Ct. 964. 966, 19 L.Ed.2d 1263 Regulation which is used as basis for 82500,State must prove beyond r:asonable
(1968). criminal liability is subject to same due doubt that defendant obtained assistance, •
I
- - MI 11.111 UM NM MN - IIIIII MB -
LAW OFFICES
GRANNIS, GRANNIS, FARRELL & KNUTSON
DAVID L. GRANNIS- 1874-1961 PROFESSIONAL ASSOCIATION TELECOPIER.
DAVID L.GRANNIS,JR.- 1910-1980 POST OFFICE Box 57 (612)455-2359
VANCE B.GRANNIS 403 NORWEST BANK BUILDING DAVID L. HARMEYER
VANCE B. GRANNIS,JR. 161 NORTH CONCORD EXCHANGE ELLIOTT B. KNETSCH
PATRICK A.FARRELL MICHAEL J.MAYER
' DAVID L. GRANNIS,III SOUTH ST. PAUL, MINNESOTA 55075 TIMOTHY J.BERG
ROGER N.KNUTSON TELEPHONE(612)455-1661
August 15, 1988
' Ms. Jo Ann Olsen
Chanhassen City Hall
690 Coulter Drive, Box 147
Chanhassen, Minnesota 55317
RE: Wetland Alteration Permits
Dear Jo Ann:
' Pursuant to your request, enclosed please find proposed
ordinance amending Chapter 20, Article VI of the City Code
concerning wetland alteration permits.
Very truly yours,
GR.qNN ., GRANNIS, FARRELL
' KNUTS•►.,wA' m-
BY Mil, +•
' RNK:srn Rorer N. Knutson
Enclosure
1
AU G 1 1988
GI I Y OF CHANIF,ASS N
ORDINANCE NO.
CITY OF CHANHASSEN
CARVER AND HENNEPIN COUNTIES, MINNESOTA
AN ORDINANCE AMENDING CHAPTER 20, ARTICLE VI
OF THE CHANHASSEN CITY CODE CONCERNING
WETLAND ALTERATION PERMITS
THE CITY COUNCIL OF THE CITY OF CHANHASSEN ORDAINS:
Section 1. Chanhassen City Code Section 20-421(11) is
amended to read: I
Diggings, dredging, filling in a Class A or B wetland,
including public waters lying wholly within the City of
Chanhassen.
Section 2. This ordinance is effective immediate upon its
passage and publication. I
ADOPTED by the City Council of the City of Chanhassen this
day of , 1988.
CITY OF CHANHASSEN
BY:
Thomas L. Hamilton, Mayor
ATTEST: I
Don Ashworth, City Manager I
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