The URL can be used to link to this page

3 Subdivision 185 Pleasant View J- Z « .u :J 0... a... « ~ . .ë;( a 'w I- (i) ~ CITY OF CHANHASSEN PC DATE: ltifte 1, 2QOO June 18, 2002 CC DATE: REVIEW DEADLINE: 7-9-02 CASE #: 2002-6 V AR B : Al-Jaff STAFF REPORT PROPOSAL: Variances for two lot area, two lot depth, and a house pad, to allow the subdivision of a Jot LOCATION: 185 Pleasant View Road - South of and adjacent to Pleasant View Road APPLICANT: Carl McNutt 185 Pleasant View Road Chanhassen, MN 55317 (952) 474-9148 PRESENT ZONING: Single Family Residential District - RSF 2020 LAND USE PLAN: Low Density Residential ACREAGE: 0.629 Acres (27,405 Square Feet) DENSITY: SUMMARY OF REQUEST: Multiple variances are requested to allow for the subdivision of a nonconfonning lot of record. If the Planning Commission recommends approval of these variances, the approval will be contingent upon a complete subdivision application submitted to the City and approved by the Planning Commission and City Council. Staff is recommending denial of the variances. Notice of this public hearing has been mailed to all property owners within 500 feet. LEVEL OF CITY DISCRETION IN DECISION-MAKING: The City's discretion in approving or denying a variance is limited to whether or not the proposed project meets the standards in the Zoning Ordinance for variance. The City has a relatively high level of discretion 1 ~~<J.ue .~ Carl McNutt Variance Jlme 1, 2002 June 18, 2002 Page 2 with a variance because of the burden of proof is on the applicant to show that they meet the standards in the ordinance. On June 4, 2002, the Planning Commission reviewed and tabled action on this item. The main issue dealt with the right-of-way for Pleasant View Road and if the city owns the R-O- W. AU new information wiD appear in bold. APPLICABLE REGULATIONS Zoning: Sec. 20-615. Lot requirements and setbacks. The following minimum requirements shall be observed in an "RSF" District subject to additional requirements, exceptions and modifications set forth in this chapter and Chapter 18: (1) The minimum Jot area is fifteen thousand (15,000) square feet. (3) The minimum lot depth is one hundred twenty-five (125) feet. (5) The setbacks are as follows: a. For front yards, thirty (30) feet. b. For rear yards, thirty (30) feet. c. For side yards, ten (10) feet. Subdivision: Sec. 18-57. Streets. (a) Streets shall be dedicated on the plat to the public. The location and design of streets shall consider existing and planned streets, reasonable traffic circulation, topographic conditions, runoff of storm water, public convenience and safety and the proposed land uses of property to be served. (b) Street right-of-way widths shall be consistent with the comprehensive plan and official map, and shall conform to county and state standards for trunk highways. If no such plans or standards are applicable, right-of-way widths shall not be less than the following: Street Right-of-Way Roadway! Classifications Widths (feet) Pavement Width (feet) Minor arterial 100 36 to 44 Collector 80 36 (I) Where a proposed subdivision is adjacent to a limited access highway, arterial or collector street, there shall be no direct vehicular or pedestrian access from individual lots Carl McNutt Variance J1tfte 1, 2QQ2 June 18,2002 Page 3 to such highways or streets. To the extent feasible access to arterial streets shall be at intervals of not less than one-fourth mile and through existing and established crossroads. Access along collector streets will be restricted and controlled on the fmal plat. BACKGROUND On August 28, 1989, this application appeared before the Board of Adjustments and Appeals. The Board denied the application unanimously because it resulted in two non-confonning lots. On September 11, 1989, this application was appealed to the City Council. The City Council denied the request unanimously. On March 28, 2000, this application was resubmitted. Mr. McNutt was informed that staff intends to recommend denial of the application. On April 17, 2000, the applicant withdrew his application. On May 10, 2002, the applicant resubmitted the application. SITE ANALYSIS The applicant is requesting variances to pennit the subdivision of a non-èonforming lot of record. The site is zoned Single Family Residential District and is located south and adjacent to Pleasant View Road. Accessed to the site is provided via a private street (pleasant Lane), which borders the property to the east. The parcel is long and narrow. It has an area of 27,405 square feet, depth of 87 feet, and width of 315 feet. The ordinance requires a minimum lot area of 15,000 square feet, a depth of 125 feet, and a width of 90 feet. The depth of this nonconfonning lot of record is deficient by 38 feet. The site contains a single-family house and a shed. The house maintains a 21 foot front yard setback, 19.07 foot rear yard setback, and a 6.2 foot side yard setback along the east side of the lot. The ordinance requires 30.feet front and rear yard setbacks and 10 feet side yard setbacks. The structure is legal nonconfonning. The shed meets minimum setback requirements. Summary of non conformities on this site: Lot Depth Front yard setback Rear yard setback Side yard setback Ordinance 125 feet 30 feet 30 feet 10 feet Existing 87 feet 21 feet 20.61 feet 6.2 feet Carl McNutt Variance JHRe 1, 2992 June 18, 2002 Page 4 ADDlicant's ReQuest The applicant is requesting to subdivide 27,405 square feet into two lots; however, complete subdivision plans (drainage, grading, utilities, house pad location, etc.) have not been submitted. The request will result in several zoning variances as well as subdivision variances. This report will focus on the zoning variances only. If the Planning Commission is willing to consider approving them, staff will add a condition making the approval contingent upon the applicant submitting a complete subdivision application to the city. The application must be approved by the Planning Commission and City Council. As mentioned earlier, the applicant is requesting to subdivide 27,405 square feet into two lots. Lot 1 is proposed to have an area of 13,920 square feet and Lot 2 is proposed to have an area of 13,485 square feet. The zoning ordinance requires a minimum of 15,000 square feet. Both lots are proposed to have a depth of 87 feet. The ordinance requires 125 feet. During the previous applications, there was a discussion dealing with the right-of-way for Pleasant View Road. It is staffs opinion that the right of way has been dedicated to the city based on the following information. The R-O- W for Pleasant View is, per city records, 66 feet wide. An EXISTING CONDITIONS survey conducted by DEMARS-GABRIEL LAND SURVEYORS, INC. on December 7, 1987, for the applicant, contains a legal description. This description identifies the area owned by Mr. McNutt. The right-of-way for Pleasant View is identified separately. (A surveyor obtains legal descriptions through County Recorder's Offices therefore assuming accuracy). The subject site, per the legal description, has dimensions of 87' x 315 feet. Also, discussions revolved around how this R-O-W was established. Roger Knutson, City Attorney stated, ''It can be established in many ways. One is by use. Under a State Statute, if the City or County or whoever, maintains a street for 6 years, plows it and takes care of it, the City owns it by adverse possession but they only own the traveled portion plus the shoulders necessary to maintain it. " Following the Planning Commission meeting, staff contacted the City Attorney to confirm the language in this report. He concurred with the finding and sent the statute and law case pertaining to this subject (copy attached). Based upon this language, and since the city has maintained Pleasant View Road (attached is an aerial from 1965 showing Pleasant View Road as a street), the right-of-way exists. Pleasant View Road is identified in the comprehensive plan as a collector road. The right- of-way width required by ordinance is 80 feet. When the property located north of the subject site was subdivided, they dedicated a 40 foot right-of-way. The second 40 feet will need to be dedicated from the subject property at the time of subdivision. The current total width of Pleasant View Road is 73 feet. An additional 7 feet are needed to meet the comprehensive plan, subdivision and zoning ordinance requirements. Also, the subdivision ordinance prohibits direct vehicular access to collector streets. The lot requested by the applicant will need a subdivision variance allowing access onto a collector street. Carl McNutt Variance IHRe 1, 2Q92 June 18, 2002 Page 5 The buildable area of Lot 1 has a depth of 27 feet. The ordinance requires a 60' x 60' house pad. Staff has stated in the past that homes can fit within an area with smaller dimensions, however, in this case, the buildable area depth does not allow for an adequate house pad to be placed on the lot. RSF DISTRICT COMPLIANCE TABLE Lot Area Lot Depth Lot Width Front yard setback Rear yard setback Side yard setback Ordinance 15,000 125 feet 90 feet 30 feet 30 feet 10 feet LotI 13,920 87 feet 160 feet NA NA NA Lot 2 13 ,485 87 feet 155 feet 21 feet 20.61/85 feet 6.2 feet Staff contacted the property owners, south of the subject site to find out if they had an interest in selling a portion of their property to minimize Mr. McNutt's variance. They stated that they have no interest in selling off any of the property. They raised concern regarding the drainage on the site. Staff explained that we are aware of the situation. If a subdivision was pursued, drainage will be addressed. VARIANCE FINDINGS The Planning Commission shall not grant a variance unless they find the following facts: a. That the literal enforcement of this chapter would cause an undue hardship. Undue hardship means that the property cannot be put to reasonable use because of its size, physical surroundings, shape or topography. Reasonable use includes a use made by a majority of comparable property within 500 feet of it. The intent of this provision is not to allow a proliferation of variances, but to recognize that there are pre-existing standards in this neighborhood. Variances that blend with these pre-existing standards without departing downward from them meet these criteria. Finding: The applicant does have reasonable use of the property. A single family home exists on the site. The adjacent properties within the same zoning district have similar lot area as shown in the area map. Granting a lot area and depth variances will set new standards in this neighborhood. Also, it will not only intensify the nonconfonnities of the existing lot, but rather create a new nonconfonning lot. Carl McNutt Variance ]HRe 1, 2992 June 18,2002 Page 6 There are lots within the Near Mountain and Fox Hollow Subdivisions that have an area of less than 15,000 square feet, however, these subdivisions are Planned Unit Developments and the average lot size within the entire subdivision is more than 15,000 square feet (see attachment 2). b. The conditions upon which a petition for a variance is based are not applicable, generally, to other property within the same zoning classification. Finding: The conditions upon which this variance is based are applicable to properties in the RSF zoning district. c. The purpose of the variation is not based upon a desire to increase the value or income potential of the parcel of land. Finding: Dividing the parcel into two and selling them will increase the value of the land. d. The alleged difficulty or hardship is not a self-created hardship. Finding: The hardship for the lot area variances is self-created. e. The granting of the variance will not be detrimental to the public welfare or injurious to other land or improvements in the neighborhood in which the parcel is located. Finding: Approval of the variances will not be in keeping with the spirit and intent of the zoning ordinance. There is a history of drainage issues on the southwest corner of this property. Based on the plans submitted, staff cannot evaluate this issue. f. The proposed variation will not impair an adequate supply of light and air to adjacent property or substantially increase the congestion of the public streets or increase the danger of fire or endanger the public safety or substantially diminish or impair property values within the neighborhood. Finding: The proposed variation will not impair an adequate supply of light and air to adjacent property or substantially increase the congestion of the public streets. Based upon these findings, staff is recommending denial of the lot area and depth variances. RECOMMENDATION Staff recommends the Planning Commission adopt the following motion: ''The Planning Commission denies variance request 2002-6 for lot area and depth variances and house pad variance as shown in attachment 3 based upon the findings presented in the staff report and the following: Carl McNutt Variance ]HRe 1, 2992 June 18, 2002 Page 7 1. The applicant has a reasonable use of the property." Should the Planning Commission recommend approval of this request, staff recommends the Planning Commission adopt the following motion: "The Planning Commission approves Variance 2002-6 for lot area and depth variances as shown in attachment 3 with the following condition: 1. The applicant shall submit a complete subdivision application to the City. The plan must be approved by the Planning Commission and City Council. ATTACHMENTS 1. Application and Notice of Public Hearing 2. Map showing properties within 500 feet with an area of less than 15,000 square feet. 3. Site survey. 4. Planning Commission minutes dated June 4, 2002. 5. Minnesota Statutes, 160.05. Dedication of roads. 6. Aerial photos from 1965 and present .' ·'1 CITY OF CHANHASSEN 690 COULTER DRIVE CHANHASSEN. MN 55317 (612) 937·1900 DEVELOPMENT REVIEW APPLICATION Jc(L. . I 5" (C··(Y- \/'t+ l c}-H S' ~~-r3D APPUCANT: ~dv/ F, .M S::I\/u"f- ADDRESS: / Irs- PI"';¡"iö v¡{ y, t w /fc/, 0/¡òVl/, ,'S"5Ùl fi7/Ý -j-r3i7 , TELEPHONE (Day time) (~.,.;lì ~7¿¡- c¡ / L¡fj OWNER: Ma rhlY' ~+- /1-, v ADDRESS: )"'<:1 t--vJ....___ ß7 ~IV '-' tr i' TELEPHONE: (I _ Comprehensive Plan Amendment - Temporary Sales Permit _ Conditional Use Permit - Vacation of ROW/Easements - Jnterim Use Permit X- Variance - Non-conforming Use Permit - Wetland Alteration Permit , _ PJanned Unit Development' _ Zoning Appeal ! _ Rezoning _ Zoning Ordinance Amendment _ Sign Permits _ Sign Plan Review _ Notification Sign - Site PJan RevieW- -X.. Escrow for Filing Fees! Attorney Cost.. ($50 CUP/SPRNACNARlWAP/Metes and Bounds, $400 Minor SUB) - Subdivision' TOTAL FEE $ A list of all property owners within 500 feet of the boundaries of the property must be Included with the élpplicatlon. Bußcling material samples must be submitted with site plan reviews. "Twenty-six full size folded copies of the plans must be submitted, including an By." X 11" reduced copy of 1ransparency for each plan sheet. - Escrow will be required for other applications through the development contract J01E- When multiple applications are processed, the appropriate fee shall be charged for each application. :"'*" o . .ux:AllON- ( /;J:i"' d/ ~FI1P1l9N S~~t I ,7WP J/6.r;;;..·S·¡; o,u·P,~ë;""~;\'S AhL·''''~·S';;'-?'1;~t'::t, d.¡.. b... t"b~,:; ~.d·. g ..;;. IIlrV CO¡'I1>V ·ft ,~ f. ~/{ 1 -f./'. " J /;1.)" ·do>, t !IV 71'" AI' f;2.()' , ; , ,~- TOTAlÃCFiÈAGE . '3 ~) WEItANDS PRESENT PRESENT ZONING REOUESTEDZONING PRESENT LAND USE DESIGNATION YES r/ NO REQUESTED LAND USE DESIGNATION REASON FOR THIS REQUEST ~ ,.., ;;.11'(/:1 /.....J......~·l -1-.,- ¡-I e1 I', +-t~~ ~.{ 1/;..11,' :) C.O I Q e",~..I. ,(;~·),t ~\c{\·".,.- ...',{. ;de .,·.·;1"'1.." /.,,,. ·¡.dL, 11,1.1,,,,¡,- ,{,Ii ~liktiO~ ~ud be ~~Plãt~li¡, full~nd be "tYP~writì¿nc.': o"r cle"a~y þrrntÛ"and"m¿sì-bt ~~ômfa~iéd/ gylâlfi~~im\non and plans required by applicable City Ordinance provisions. Before filing this application. you should confer with the Planning Department to determine the specific ordinance and procedural requirements applicable to your application. tV I II A determination of completeness of the application shall be made within ten business days of application submittal. A written notice of application deficiencies shall be mailed to the applicant within ten business days of application. This is to certify that I am making application for the described action by the City and that I am responsible for complying with all City requirements with regard to this request. ThIs application should be processed in my name and I am the party whom the City should contact regarding any matter pertaining to this application. I have attached a copy of proof of ownership (either copy of Owner's Duplicate Certificate of Trtle, Abstract of Title or purchase agreement), or I am the authorized person to make this appflCalion and the fee owner has also signed this application. 1 will keep myself informed of the deadlines for submission of material and the progress of this application. I further understand that additional fees may be charged for consulting fees, feasibility studies, etc. with an estimate prior to any authorization to proceed with the study. The documents and information I have submitted are true and correct to the best of my knowledge. The city hereby notifies the applicant that development review cannot be completed within 60 days due to public hearing requirements and agency review. Therefore, the city is notifying the applicant that the city requires an automatic 60 day extension lor development review. Development teview shall be completed within 120 days unless additional review extensions are approved by the applicant. C"ÆÝ :ft, 1)1 s. M llff Signature of Applicant ('4-1/\.-37. Mst)~ SlgnallJre of Fee Owner .9' /!ó~O(} Date .:J. 2.. 8' ,.- 0 0 Date Application Received on Fee Paid Receipt No. The appncant should contact staff for a copy of the staff report which will be available on Friday prior to the meeting. If not contacted, a copy of the report will be mailed to the applicant's address. . .'; .'Fci~i'''''~ .'."C'o.o"oj ..c C ..O,t ..c ::) .<I.O~ . .'( '-. . .'0'( .. c ;:). e. 01 . . c c . .,0,( ., J ~./ {'II CV (; ,~c 0' ",:) 6 Í1 v l / /, . '- ,~- , ..1 ']:'~) "..;"t ) 6 "7 L.I? C ) (~ 7 C) rc~,(/ ¡'»)'.OFuo'iI/1, "7.",/0// 177/ Vlê¡çhL",\', ;"".. a f S", ""¿'1J10 '\'''7 C' //(. I: Jc(.c '7<')rf¡~ Í\ -{ } ",.-ì\ ì i\',:-" J d ,.... <~ I. ~. . ¡. J. I,' (.. /./'" (Ie -.~ - \, )' '-- _ ¡I 'C"_ . .. - / ' Lv -' ~ 1,:1' 1: c I Jì ...-__ .) . ./ i:l~ / /; ,I· . I'.. £, ' ....::". ,'/ '\ . C· ",~, ,-'.- . ~\ ' \ -... ,I -_ '-'¡'IY J ." ~~rJ I Vv t''¡',:,-,..¡ .( ð c) .I':;' ,,' "1/ ':>" '. . . ro. r. -- =.r ~u '.J '-"I '..' ..C C ..ac ..C:'.IJQ ..c C . .'O-C ..ca.fJG ..ee..OC ..oo.eo l ~ I . .. V\ J P l; ... c h ò 5 e d )t) 7 1/1 0 ¡'~ <è e t¡r .... '''ðo> +..., ",,- "Ie. '\. ...,ì'r~V"v-'1 vo ¡- e. t ; )- "- '1; "V, 1 \ Ì1" s t ¿ ~ ~ .., Ó f- -[ ~ Ii:. .. it!¡, /ý');L) e / ¢.i-¡ Ej.- u\. r -:¡:f-e c~· ~ r1(-'\·v /¡. "'1 ~ I. .. V Ie \A",' V~')I (:!<J o .S C Vi,' "''\. 1!'-lea';ð"t- J,17' ;0 . Il t, Ô t! H': Ô:> î I~,.l P ¡" e\il" (:: (Î) 'S" e \'\ì ty ,~vl d \/\/ 0 -{ .¿ v T ~ ,- !,~ .>I:.J 1/,,- l{ "'. {I,.<.. ~í!, -; t· ~"c{ 0~' 'i:~, J r ,\ ,,\ \1 tiC ¡ i' ¿ t , Ó"1 ".-5. <3 11 Ó t ~".. 1[I<oI1-<'¡ V\-'<:¡,~ J) \. Ú¡",ty T/¡ é ::~ ic , ~ Vl..··Ull?¡. I J (p ¿ ~ <.? e-!; r.. . ~V' 1 / Í::-: ()" ~ S ¡.... '¡ 1;'j¡·J-. \.; .~. ~~, a,,; ¡.¡ ð t , eVeL_i Jh }-" -~ <{ i.,'''Y C' 11 ~ (,. . .~,' v ~ 1'- '. '--. ;:. '. ~C.C\.-j5 0. { r!¡~b ';ht~...·lhi l\'c-\, 5^ L v,,1 ~\: 1\"", (Ì j"¿'..'¡1-¡¡:'" ~ t. -.: 'f cI ¡ è ..J ,. r (¡ ;:) L¡'_. r\ ~. J , ) ,'" "'~ .H L'''y /.) I -!...I"J uj"/; . . . ., I','·,...· \ r", . I ~ :~,' /{ :.'> ~ . \ " _ ) / . -; I" :J /; j ·S 1'- ( l', ¡ -i I, at ('(Lí.:' ¡',_t (.. ~ {./¡ / y 1<,· .... it" ì,,' Y I .¡ ,../ )( CI , ,ì j ,-~.:> I ('~-"")'. ; -,; f..) {~ ( 1 .,' \, ~. J ( '1'."71 ~.,.J - ì /. , - :: '-: ) '__ ;"- I t. r /,.., I Ii- Y '5 ~ h', -e~ I ) i Ò> \< ,: 1-- / ~ C J"l ~- it " ,-I¿'>el< "I . - ,-, " { :. ',"J", )'-._:,:\ J \.vJ.,_.. ¡ . ,-, L.' ~ I ., '~ ~ rlr \."l..t:.-, tl<:" ./ i;~ t , I" ........ I II ; ....,." f--! \'j/ .I c- -¡J if (,'. S"- ¡;" ., . ".¡ ., .; :,'-" ,'\ \.\. "J r~ .,i_ + . ~. i ¡'( -:;' e-{- -( l.-: ~.~ ,'j t~ '-!:. L ", ~' /<.. ..) '..;..;:, i": '- ".~ + . I ... ì ('//-(('It( '.' > J. ~.....~ ,J, ):,. [) -- <',/V , . ~. I J- \.. ,.,( ~- ..:' .....\ ,. - ..J i- :':...¡..'; r ...r¿¡ ¿ \".> !.i:..;_~ , w ! . .~' '-.. C ,.',: -\ c ~"'v-< '-- ~ì!/ T,\¿ Co, ." ¡ l :~, ,.... /ê, . .¡ 1: lÎV<': L"\) } ,; .:," ,.' t' , . '-.·(tt.-Î J-I. If.;..:. !?v..lt- A list of all property owners within 500 feet of the boundaries of the property mu: application. Building maleRal samples Rlllst be submitted with she plan revIews. ;;:;::~ra~~ ~~e ~ ~~~~s of the plans Rlllst be !o..t,,,,lUed, h,..iIJdil'!I an ( 1fanspareAq' fOF each plan sheet. NOTE - When mu~iple appRcations are processed, the appropriate fee shall be charged for eae ... Esers'1f: ·"111 be r~tttiflcd for othLf applJ(,gUon& 1I1101:l9h n.é duv~lupm~lll "",,,nt.. NOTICE OF PUBLIC HEARING CHANHASSEN PLANNING COMMISSION MEETING TUESDAY, JUNE 4,2002 AT 7:00 P.M. CITY HALL COUNCIL CHAMBERS 7700 MARKET BLVD. PROPOSAL: Subdivision of Parcel Into Two Lots APPLICANT: Carl McNutt LOCATION: 185 Pleasant View Road NOTICE: You are invited to attend a public hearing about a proposal in your area. The applicant, Carl McNutt, is requesting subdivision of 27,405 square feet into two lots with variances, on property zoned Residential Single Family located at 185 Pleasant View Road. What Happens at the Meeting: The purpose of this public hearing is to inform you about the applicant's request and to obtain input from the neighborhood about this project. During the meeting, the Chair will lead the public hearing through the following steps: 1. Staff will give an overview of the proposed project. 2. The applicant will present plans on the project. 3. Comments are received from the public. 4. Public hearing is closed and the Commission discusses the project. Questions and Comments: If you want to see the plans before the meeting, please stop by City Hall during office hours, 8:00 a.m. to 4:30 p.m., Monday through Friday. If you wish to talk to someone about this project, please contact Sharmeen at 227-1134. If you choose to submit written comments, it is helpful to have one copy to the department in advance of the meeting. Staff will provide copies to the Commission. Notice of this public hearing has been published in the Chanhassen Villager on May 23, 2002. Smooth Feed Sheets™ -EVEN J & LINDA J MARGL 30 CASCADE PASS anhassen MN 55317 JREN E & DEBORAH H GORDON 51 NEAR MOUNTAIN BLVD anhassen MN 55317 JRMA R KEIVES 32 CASCADE PASS anhassen MN 55317 \RK F & SUSAN R BRADY 71 NEAR MOUNTAIN BLVD Jnhassen MN 55317 .VID S & SUSAN S REISS ) I NEAR MOUNTAIN BLVD mhassen MN 55317 LL Y D HEIKKILA & CHEL M LYNN I MOUNTAIN WAY mhassen MN 55317 ,RIC & DEBORAH CAMPBELL o CASTLE RDG mhassen MN 55317 UCE C & MARTHA S SCHULTZ . MOUNTAIN WAY mhassen MN 55317 RL J & KAREN M BICKLER MOUNTAIN WAY nhassen MN 55317 :EPH C & KAREN A CASEY MOUNTAIN WAY nhassen MN 55317 - LEONARD F & ROSEMARY MARQUART IO I CASTLE RIDGE CT Chanhassen MN 55317 MICHAEL P & JAMIE L MANNING 99 CASTLE RIDGE CT Chanhassen MN 55317 MARK L & LAURA L LARSON 97 CASTLE RIDGE CT Chanhassen MN 55317 CITY OF CHANHASSEN C/O BRUCE DEJONG ____, 7700 MARKET BLVD 'PO BOX 147 Cha~- MN 55317 MATTHEW KEEN 6360 NEAR MOUNTAIN BLVD Chanhassen MN 55317 THOMAS J & GERI L MURPHY 201 MOUNTAIN WAY Chanhassen MN 55317 THOMAS J & JAYNE MALLEN 95 CASTLE RIDGE CT Chanhassen MN 55317 MARGARET A WEIGEL 6370 NEAR MOUNTAIN BLVD Chanhassen MN 55317 WILHELMINE M SEBEK GALLAGHER 6390 NEAR MOUNTAIN BLVD Chanhassen MN 55317 KEVIN S COOPER 6380 NEAR MOUNTAIN BLVD Chanhassen MN 55317 (pS Use template for 5160@ BRIAN P & SARA B MUENCH 6400 NEAR MOUNTAIN BLVD Chanhassen MN 55317 DAVID A & KRISTIN B MAULE 211 MOUNTAIN WAY Chanhassen MN 55317 LEE & KAREN BORIL 93 CASTLE RIDGE CT Chanhassen . MN 55317 MARK A & LINDA P MCKENZIE 231 MOUNTAIN WAY Chanhassen MN 55317 CHARLES B & DEANNA L BAUER 241 MOUNTAIN WAY Chanhassen MN 55317 THOMAS J & JANE E HOGAN 221 MOUNTAIN WAY Chanhassen MN 55317 ERIC J ZORN 91 CASTLE RIDGE CT Chanhassen MN 55317 HUGO R MORALES & CARRIE L TROG 251 MOUNTAIN WAY Chanhassen MN 55317 BRIAN J & SUSAN M VOELKER 300 TIMBER HILL RD Chanhassen MN 55317 SAMUEL R JR & KATHLEEN ERWIN 6400 PLEASANT PARK DR Chanhassen MN 55317 Smooth Feed Sheets™ KATHERtNE A BERDAHL 6411 PLEASANT PARK DR Chanhassen MN 55317 MICHAEL R & DORIS ANDERSON 205 PLEASANT VIEW RD Chanhassen MN 55317 BRIAN J GRUNDHOFER 195 PLEASANT VIEW RD Chanhassen MN 55317 CARL F & MARGARET A MCNUTT 185 PLEASANT VIEW RD Chanhassen MN 55317 MARGARET A NELSON 135 PLEASANT VIEW RD Chanhassen MN 55317 HERBERT J & ELLA KASK 115 PLEASANT VIEW RD Chanhassen MN 55317 MICHAEL D & JULIE M DOUGLAS 65 PLEASANT VIEW RD Chanhassen MN 55317 GARY J & VICTORIA G ALEXANDER 55 PLEASANT VIEW RD Chanhassen MN 55317 MICHAEL A & MARY JANE NAROG 6410 PLEASANT PARK DR Chanhassen MN 55317 ~NOLD E & MARIE C SCHROEDER 6430 PLEASANT VIEW LN ::hanhassen MN 55317 --""'... BLAKE J & MARY P THORSON 6421 PLEASANT PARK DR Chanhassen MN 55317 TIMOTHY J MCNEILL 6441 PLEASANT VIEW cm Chanhassen MN 55317 ROGER B BONGARD 18195 CO RD 30 Chanhassen MN 55317 JOSEPH D & TRACY J DEZIEL 170 GRAY FOX LN Chanhassen MN 55317 BRET T ABBOTT 6420 PLEASANT PARK DR Chanhassen MN 55317 WAYNE A & JULIE K SIEBER 150 GRAY FOX LN Chanhassen MN 55317 STEPHEN G & SUSANNE THEISSEN 130 GRAY FOX LN Chanhassen MN 55317 DENNIS W & CHRISTINA HANSEN 6450 PLEASANT VIEW CIR Chanhassen MN 55317 JOSEPH E & NANCY F LEHMAN 6431 PLEASANT PARK DR Chanhassen MN 55317 PHILIP B SAILOR & WENDY M LANIGAN 6430 PLEASANT PARK DR Chanhassen MN 55317 Use template for 5160® GEOFFREY & ANDREA BROWN 6441 PLEASANT PARK DR Chanhassen MN 553 I 7 KELLY P BOWE 190 GREY FOX LN Chanhassen MN 553t7 JAMES & JOYCE NICHOLLS 6451 PLEASANT VIEW CIR Chanhassen. MN 55317 MICHAEL E O'CONNOR & MARCIA L O'CONNOR 110 GRAY FOXLN Chanhassen MN 55317 DARRELL DUANE & LINDA CRANDALl 240 FOX HOLLOW DR Chanhassen MN 55317 ANDREW B & JULIE S ROTHMAN 220 FOX HOLLOW DR Chanhassen MN 55317 LEN J & COLLEEN M GROSCHEN 6451 PLEASANT PARK DR Chanhassen MN 55317 MICHAEL B & MICHELLE M STORK 200 FOX HOLLOW DR Chanhassen MN 55317 CHET A OLINGER 180 FOX HOLLOW DR Chanhassen MN 55317 BRADLEY & DENISE MORRIS 170 FOX HOLLOW DR Chanhassen MN 55317 Smooth Feed Sheets™ Use template for 5160@ ICHAEL & MARGARET SCHRIEBER o FOX HOLLOW DR ¡anhassen MN 55317 .TRICIA K NICOL o BLUFF RIDGE CT anhassen MN 55317 FFREY M & DEIDRE L BISHOP ) BLUFF RIDGE CT anhassen MN 55317 ,EVEN W & KELLY K LEN 'HUNTERS CT anhassen MN 55317 .LENE F ARNOLD & !BIN L ARNOLD HUNTERS CT <::mhassen MN 55317 ·BERT & EDNA PETERSON ) BLUFF RIDGE CT mhassen MN 55317 fER D & JILL M SCHMIDT HUNTERS CT mhassen MN 55317 CD ~ , ¡:r j ¿ 1.1 " -t _. :>z :>.: a.: ...J a.: t) Fox ~ ¡ ¡ , , if- , ~ z e:{ .CJ) Ie:{ ,ILl 1.../ ~a. I I ~ I ~ !~ " ~ I! ~ ! 't-... Ii ~ , ~ , ~ ~ ~ ~ ~ .:, ~ I: ~ , ~~ j ~~ -"'-1...-- . :: ; ~ . ~~.~ I /"';~ . .... I . í n-;-- -_: - - - -j, ' I L;::.:!:- -.- -:---,:t;:=--.: \ ., --. -=-- ';~.~~- .-~::.~~:.~ ., ~.:: \=.~- ~.--" l"; . .---..,. ..~".r.. (IS 'u , . 3N -~- .~,- " !~;: ~/· ¡:! 0',1( : ~~..: ..~~-' .,,~~;;-~- . _!!;...~~~~tf3'd \ _f ,,;, I: : ......-- - - - -'. --.: !'~::-: '\. ....'*- I ~- -'~ . Ii.!! .'1:~r.; ¡It :1 ~.. r- I. I : ~ . .. : ...: :.. '" . ;... J,:o, ...: '1.0 \'_ I -. ~, I 1\. L; t,1 if I!q ,! 1,;\ nt i. ~ i; ". j ~t..~..._.¡ ''!' '1.\ ..1" ¡ -.~.-' .~ .' ::::::::I "\'._~. ..~.....~, C¡=' L.;;" 71. ~/V· . "j . ; J! .-'~ - -~. . , , ìo ~<:[ :0 ,0:: \-- ' ,~ ¡..... .., m<-::';¡ .......Q.!!. _.n......... ~ . , I ~ i '..."." ~ ; . , r :: ¡' i : ,~ I '~ .~ ,: . ~ - - - :~ I . ò. I .. .ò:; " " ~ t.. . . I ~ "i ~ I ' If ~ ¡ ~, ::~ ¡··IC / I 1/'.·' -. , ; ; I' ..~ " : 'J : , '·...rr ._ .:', ""e : f~1 I \L:~~ l.~~. r~~r , ,I' ,. \ ' ! J' .' i ..~,' M -Xô ~ (~~. : ~ j -...:.., /:-.~"', · e. . '--- '$. .,..,: .......... 3: ILl > .-.", .. ~ j -':"~ -.'- ,:.....,.............~ - .-'':' - --- , " ,~ ~ ~ ;. . \ ~... ~ ~ ~ ~ ~ , ! ~ ~ ~ ~ ~ ~ ~ ~ , , ~ ~ ~ ~ '~ ~ ~~ ,~ I / ..- ["~ " i. '. _ '" v.' ......... · ~ .,r.....' l. ~. ~ ,~. :', . .. ,y. . t J'. ,t",.~..tf""f1'ot... .. ~~ \. ~ '. · "'./ ,,¡-- o .J ~ /, , I ..... :., , ~ " ~/..... .~ ,,,:,.., ~ ! '.;:..) I I I I , , , I I, I I~ ~ ,: : I ,I ' ~~/.'~ at: I '<;;'}: I l ,,~. . . :.. ¡ " 171} "'/'_ .. I' "Þ:::-¡--r- ·'qi::~ ¡" ·"V'~ ,"" I ¡ I I "-.' ¡...,...~ , . ',' } ~ \ . i\....~,.:·~ \ ^-- --. . ~""':':c.;i¢~."~_ 1 .!'\'. ,,'._~ , -.,' !¥ Planning Commission Meeting - June 4, 2002 Slagle: I'll make a motion. I'd move that the Planning Commission table the variance request for 2002-5, 13 foot setback from Hickory Lane as it reads on our page 5, and 1 would also ask that as a part of that tabling that we request a written opinion from the City Forester as to that oak tree. Sidney: Okay, is there? Claybaugh: Second it. Slagle moved, Claybaugh seconded that the Planning Commission table Variance #2002.5, a 13 foot setback from Hickory Lane and a 13 foot setback from Red Cedar Road, and direct staff to obtain a written opinion from the City Forester regarding the oak tree. All voted in favor, except LiIlehaug who opposed, and the motion carried with a vote of 5 to 1. Sidney: It's 5- I in favor of tabling. LilIehaug: And I'd like to make a comment as to why. Sidney: Yes please. LilIehaug: I support the current variance here and I would approve it as it lies. Sidney: Thank you. PUBLIC HEARING: CONSIDER THE REOUEST FOR THE SUBDIVISION OF 27.405 SOUARE FEET INTO TWO LOTS WITH VARIANCES. ON PROPERTY ZONED RESIDENTIAL SINGLE FAMILY. LOCATED AT 185 PLEASANT VIEW ROAD. CARL MCNUTT. Public Present: Name Address Carl McNutt Brian Grundhofer Al Klingelhutz Carrie Bickford 185 Pleasant View Road 195 Pleasant View Road 8600 Great Plains Boulevard 9184 West 126th Street, Savage. Sharmin AI-Jaff presented the staff report on this item. Sidney: Okay we're going to have staff questions first and then we'll get to the applicant. Okay, questions of staff. Slagle: I just have one. Sidney: Okay. Slagle: Has the applicant given you a reason Sharmin, as to why they have not provided you with that complete subdivision plans? I'll also ask the applicant but I'm curious as to your thoughts. 19 Planning Commission Meeting - June 4, 2002 AI-Jaff: This application has been submitted in the past. This is the third time we're going to see this. We wanted some direction from the Planning Commission before we went into the engineering of the plans. Slagle: Have they provided any time before in history complete subdivision plan? Al-Jaff: Complete that included drainage, grading, no. Slagle: Okay. That's all. Feik: I can wait. Sidney: Go ahead. Sacchet: You just mentioned Sharmin, this was the third time this is being submitted. Is it pretty much identical? AI-Jaff: Yes. Sacchet: Pretty much identical, okay. AI-Jaff: Exactly identical. Sacchet: Exactly identical, okay. And then 1 wonder whether you can give us a little more an idea of how this right-of-way, you touch on the right-of-way issue in the staff report. I'm a little fuzzy about what exactly the status is of that right-of-way. 1 mean right-of-way's right-of-way. That's public property. AI-Jaff: It is public property. Sacchet: And part of it is being used by the roadway currently. AI-Jaff: Correct. Sacchet: And then there's a little more where we need it for snowplowing and all that. AI-Jaff: Correct. There is a gas main within that right-of-way. There is overhead electric poles. Lillehaug: Can I ask a question to help clarify this one? You indicated that per city records there is a property description for this parcel. AI-Jaff: Yes. Lillehaug: Does this clearly show, definitively where his north property line is? AI-Jaff: Absolutely and this legal description was provided by the applicant and it does not include the right-of-way. It is the 87 feet by 315 feet only. Sacchet: Then one last question quickly. If this were subdivided, the access to the newly created lot, where would that be accessed from? 20 Planning Commission Meeting - June 4, 2002 AI-Jaff: Off of Pleasant View Road. Sacchet: It would be off of Pleasant View Road? AI-Jaff: Yes. Sacchet: Okay. Okay, that's my questions. Thank you. Claybaugh: No questions. Sidney: Okay. The applicant? Feik: Oh I have a question first. I thought you'd come back. Sidney: Okay. Feik: Speaking of the right-of-way briefly again, when was the right-of-way established by the city? AI-J aff: I want to say sometime in 1950' s. Late 1950' s based upon some research that I did. Feik: Okay. You said part of the right-of-way is certain for the road bed and drainage. Part of the right-of-way is also for utilities? Is that correct? AI-Jaff: Correct. That's what's shown on the plan submitted by the applicant. Feik: Could the utilities be served adequately by an easement versus a right-of-way? AI-Jaff: Yes they could. Feik: Was this applicant to your knowledge owner when the right-of-way was taken? AI-Jaff: I'm not aware of that. 1 can't answer that question. I don't know. Feik: Okay. AI-Jaff: But even vacating a portion of the right-of-way will not fix that problem. Feik: 1 understand. Not totally. Okay, thank you. Sidney: I think the applicant would like to make a few comments. Carl McNutt: Yes, I'm Carl McNutt. Curly they call me. I got out of the Navy in '45. Moved to Chanhassen in '46. Bought the property on Pleasant View Road when it was still a township in 1952. At that time it was a gravel road. The township had to get another rod of road from us in order to blacktop it across there they said. I disagree with your assessment of the size of my lot because some of the literature you sent me, on page 2 it says. Under state statute it can be, if the city or county or whoever maintains a street for 6 years, plows it and takes care of it, the city owns it by adverse possession. 1 don't know what that means. Antagonistic possession. But they only own the traveled portion, plus the shoulders necessary to maintain it. After 6 years. The thing's been there since late 50's. As far as the gas lines and all that, we don't disturb them and 21 Planning Commission Meeting - June 4, 2002 they can get to them all the time. All I do is mow over them. All I do is mow and rake lawns and that last half, my neighbors Brian can attest to the fact that I spend at least 3 hours every 4 days mowing that half and raking leaves in the fall. And it serves no use to me anymore. The kids, when my kids were young they used to play ball, and the neighbors kids on the back property. No use to me at all any more and it's not detrimental to the area. If this thing, if this legal thing means anything, then I have in Lot 1, I would have. Okay, the roadway, the blacktop takes up 25 feet. My halfis 12 Y:z feet. We'll make it I3 feet to make it even. My lawn is 52 feet and there's 5 feet of bank that I mow all the time for the city. In other words a 57 foot front yard rather than 27. If we were to use what the city is not using anymore, all they're entitled to is what they're using the road for to plow and stuff. They can pile snow on my yard, I don't care about that. But if,l would use that, what's really available there. Lot 1 would be 107 by 160 feet or 17,120 square feet and that's way over your minimum. The Lot 2, which is my house on, would be 16,585 square feet. The only variance that 1 can see 1 really need is about 107 from· 125 is 18 feet. And I have the daughter and husband of my former neighbor want to build there. It would not be detrimental to the city of Chanhassen. It'd be in conformity of all the houses toward Highway 101. I'm 78 years old. I don't know how long I'm going to live there, but I want to stay there as long as I can but 1 can't afford to unless 1 sell the property. That's all I have to say. Sidney: Any questions for the applicant? Sacchet: Yeah, Mr. McNutt I do have a few questions for you if you may. This is third time you're bringing this application, identically apparently. What makes you think that this time it will go through. Carl McNutt: This is the first time I've seen that statute of this, from the state statute. That no longer belongs to you. That property no longer belongs to the city. It's only a 4 rod road. That's another thing that irked me. It's only a 4 rod road on that straight stretch. Around the comer, there's 2 rods and all the way around the lake is 2 rods. Why did they need a 4 rod road on that straight section just past me? Sacchet: Can you translate please? AI-Jaff: May I? Sidney: Yes. Al-Jaff: I need to make a clarification regarding the City Attorney's comments. And this was taken from 1998. 1989 when this application first appeared. What was in question at the time was, does the City own the right-of-way or don't they? And the City Attorney said if, his exact words were, it can be established in many ways. The City Council at the time asked the City Attomey how can right-of-way be established. His answer was, it can be established in many ways. One is by use. Under a state statute if the city or county or whoever maintains a street for 6 years, plows it and takes care of it, the city owns it by adverse possession. But they only own the traveled portion plus the shoulders necessary to maintain it. In this case there is a legal description submitted by the applicant that clearly indicates the right-of-way is owned by the city and 1 believe everyone on the commission maintains the boulevard that is owned by the city in front of their property. You mow it, but it's owned by the city. So Ijust wanted to make that clarification. "; '" -F Sacchet: So Mr. McNutt, if you may clarify. Are you trying to make a statement that you should have use of that right-of-way for the sake of your? 22 ~. f r Planning Commission Meeting - June 4, 2002 Carl McNutt: I've used it since 1959 probably. I've mowed the lawn. My lawn extends right out to that almost the edge of the blacktop, and all of this other property, 1 mow it all the time. The City has not touched it. Sacchet: And another question. You answered that question for me. Thank you. Another question. The neighbor's lot next to you, I guess that would be to the south. Carl McNutt: Pardon me? Sacchet: To the south. Is a similar shape. It's also one of those long, narrow things. Has there been any consideration that with combining, working together with the neighbor you have two narrow lots and between taking the space, the extra space of the. .. . Carl McNutt: ...discussed this with him and he's turned it overto his daughter. He's the administrator. He's discussing it. If you won't okay this 107 foot depth, which I think I'm entitled to, then 1 will buy some from him. 1 think he'll be. Sacchet: So there is a possibility in that direction, okay. And then finally last question. When I drove by and looked at your land there, it seemed like it's a little bit of a dip. Is it actually, is there, is it wet there or how does that? Carl McNutt: It's wet on the far 20 feet on the eastern end. Sacchet: On the eastern end. Carl McNutt: But a little fill would take of it. Sacchet: Okay. It's not significant enough that it's an issue then? Carl McNutt: No. Sacchet: Okay, that answers my question. Thank you sir. Feik: No questions of the applicant. Sidney: Okay. Claybaugh: No questions. Sidney: Thank you very much. Okay, this is a public hearing. Anyone wishing to address the commission, and 1 see Mr. Klingelhutz approaching the podium. Please state your name and address for the record please. Al Klingelhutz: I'm Al Klingelhutz. I live on 8600 Great Plains Boulevard in Chanhassen. It was just last week, I've known Curly for all the years he's been in Chanhassen. He was a strong supporter of me when I was mayor and the City Council, and 1 went down, he asked me to come down and look at his property to see what I thought about getting a variance for it. Looked at his house and his yard. Excellent shape. I think some of you probably were down there and looked at it. Looked at the neighboring houses. I drove around back in there. I looked at the plats and most of the plats in there, and where houses are setting on weren't much larger than what Curly is 23 Planning Commission Meeting - June 4, 2002 asking for here. I know it's not a lot that you can build a 3 V2 million dollar mansion on it or 4 million, but a nice 30 foot rambler with 3 bedrooms 1 think would work very well on that lot. And it would be a good addition in the neighborhood. ..for the city. You talk about a hardship. You saw Curly walk up here. I think he's in pretty near as bad a shape as I am. He walks rather slow and his wife is in bad shape. The day I was down there, Curly had taken her to the hospital because she had a long nose bleed that morning and when I was there, when I was there she was bleeding.. .again. I didn't even get through talking to Curly and he had to run her back to the hospital because it was a pretty bad deal. 1 can understand why Curly is having a hard time taking care of that large piece of land. People, I'm just a year older than Curly and 1 hope to stay at my place for many years. I hope as long as I live. But there's a time, I'm kind of fortunate myself. I've got.. .and he said if I can park my trailer in your shed, we'll keep your grass cut. .. . orders I'm not even supposed to cut it but.. .I'd have to come in for a subdivision on my property too. Then you always, most of the lots in that area are virtually the same size as the lots he's planning to subdivide... 1 think Curly does have a point. If the City didn't buy the 66 feet there, if only it was a 2 rod in the first place, there's a statute that says that if he maintains that for a period of 6 years, that it actually reverts back to the property owner or the original owners. I'm not sure if that's the way the lot was laid out originally. He hasn't got too big.. .maintaining the... but I sure feel it would be proper to give him a variance. If it was any other neighborhood that had all 15,000 or 20,000 foot lots I'd say no way, but if the neighborhood in the area is almost identical to this lot, I can't see too much wrong with it. Thank you. Sidney: Thanks. Anyone else wishing to address the commission? Please come forward. State your name and address. Carrie Bickford: I'm Carrie Bickford. I live at 9184 West 126th Street in Savage. And I'm the one who wants to build on it. 1 grew up on 195 Pleasant View Road. Curly was my neighbor, and I guess I don't understand much of this. 1 just want to put a house there. 1 have noticed when I grew up there you know it was woods, everywhere was woods and I've noticed now that they have these houses with no back yards and no side yards, so 1 was, I'm not on TV am I? I would have done my hair. But 1 noticed that even the house I grew up in, all of a sudden our lot is smaller. I don't know, maybe 1, well I probably got bigger but, so I was just, I guess the way 1 look at the lot it seems big enough compared to the people that live behind. You know like they have yards that are pretty small and I guess that's the thing now. People don't want to really maintain yards so they go for little ones. And I'm just babbling on because I really don't know what to say. Ijust am the one who wants to build there. We could take care of Curly and Marge, and I guess that's it. You know I have all my animals buried there, so... And I guess that's just it. Slagle: I have to ask you a couple questions. First, will you promise to come back every 2 weeks. And secondly, more seriously, would you be open, upon one of the commissioner's question as to the lot to the south, if that was to open up and be joined as a lot, would that be satisfactory to you to build on? Carrie Bickford: He's talking about Arnie and Dottie, right? Carl McNutt: It's still, it's big enough the way it is. It wouldn't make any difference really. Carrie Bickford: Yeah. I guess that's, I'm not smart enough for this. 1 guess that's up to Amie and Dotlie and Curly. I mean you're saying if we were to buy some of Arnie and Dottie's to make it longer? 24 Planning Commission Meeting - June 4, 2002 Slagle: See what we're trying to do obviously is we're trying to come up with a compromise that allows a lot that we don't have to approve a lot of variances, if any, to build a lot. Where right now if we just go on Mr. McNutt's remaining part of his property, we have to grant variances to do that. And as you've just witnessed in the last hour, granting variances requires some understanding and agreement or compromise regarding ordinances. And It's tough because if we grant lots of variances, then people who we don't grant variances to always wonder why they didn't get it. So we're just wondering if there's a compromise. If there is indeed a desire to purchase part of that land or work together to sell tbat land, that might be a good idea. 1 don't know enough about it yet to say whether or not it's a good idea but it might be and so I'm just wondering. Yeah, you wouldn't need all of it either as Commissioner Feik says. Carrie Bickford: Well. Slagle: So I'm just wondering your opinion and that's more for us to discuss as to whether we grant tbe one in front of us. That's sort of a hypothetical but I'mjust interested. I don't know, I'm fishing too. Carrie Bickford: 1 don't know because 1 know where his lot stops, and I'm not sure how Arnie and Dottie's works. Lillehaug: I think one of the underlying things here is it would cost more for you to obtain some of that additional property from the other property owners and would that be something that you would consider doing? Carrie Bickford: Well, 1 guess so. It all depends on money because I've been trying to move to Chanhassen for 7 years now. My whole family lives here. My mom's in Minnetonka. My sister's on Nez Perce and my other sister's in Excelsior, and we can't afford to get here. I mean it's insane and then Curly was like hummm. Maybe you could build a house there and you know he, I'm sure he'd be nice to us selling it to us but, so this was really our in. 1 got you know really excited. Otherwise you know it's $100,000 for a third of an acre and 1 don't have that money you know. 1 live in Savage in a little house so I guess it would all depend on price. If Arnie and Dottie would come up and say we want $50,000 for that little spot I'd be like, oh okay. I'm living in Savage then but otherwise I guess it's all, he's working on it with them I think. I don't know. Slagle: Do you guys ever rehearse this stuff? Carl McNutt: If he decides that he wants to make a jog with his land and sell it...l would pay for that extra land. Carrie wouldn't have to pay for it. Carrie Bickford: Well, that just makes it all different... You know for me I'm all for even more land you know. I'd love to buy it all but it's all money. I'm really trying not to look at the screen. What channel are we on? So 1 guess that's all I have to say. 1 don't know, I'd just like to move to Chan. Be by my family. By my dead animals. The woods. I'd like to stay by the woods but you guys have, not you guys, it's gone. The woods are gone where 1 used to play. Slagle: You know if you do move here you could apply for the Chanhassen Planning Commission. Carrie Bickford: I'd sit Ihere and go 1 don't know. And I did have a question about that oak tree. That other guy. How old was that? Is that an old oak tree? Is that why it's? 25 Planning Commission Meeting - June 4, 2002 Sacchet: Oh, it's over 100 years old. Sidney: What is the dimension on it? Sacchet: It's this big. Claybaugh: It's about a 36 inch trunk. AI Klingelhutz: That's the hardship. Carrie Bickford: So that's the whole thing that is stopping his variance is this oak tree? Claybaugh: No, it's complicated. Sacchet: We can't stop it. We're trying to help it. Feik: It depends on which one of us you ask. Carrie Bickford: I mean I'm all for saving the oak tree but 1 understand woods, but I'm not here to talk about that so,1 think that, any questions? Okay. Sidney: Thank you very much. Anyone else? We've got another person coming up to the podium. Please state your name and address please. Brian Grundhofer: My name's Brian Grundhofer. I live at 195 Pleasant View and Curly, he's obviously out there a lot working on his yard and 1 know it's quite a big spot and it's a lot of upkeep. I realize that. My concern with this subdivide is, is there's a considerable amount of big trees in the front of the property and I was just kind of curious if you have a plan that those would stay because there's about 6 trees probably in question that kind of line the boulevard there and that's kind of our screen from the road because Pleasant View's been, is very busy. Especially on that comer and people drive very quickly on that road, as you know. We've had the council of the area go there and kind of monitor people because they do speed excessively especially around that comer. So I guess that, and I do have an issue or feeling about drainage of that property because there is kind of a culvert in the back end of that property and my garage is also about 2 feet from the line that would be right in the comer of that. So that would be just my other concern I guess so if he has you know, plans for that, I'd like to at least see if the trees and other things would be, that would change the drainage of mine because my garage is on a low spot already and I have no concrete in my garage floor anymore because it's too much water. It's gone. It's literally gone and so, and I have a huge puddle in the front of my yard like every spring that just doesn't go away so there's no lawn that can really grow there because it's just so wet. 1 mean I could re-grade but then I'd cause problems for other people so it's just, I'm just kind of questioning these things I guess so that's aliI have. Sidney: Thank you. Anyone else? Carrie Bickford: Well the trees were actually. Sidney: Would you like to come up to the podium please. You can be on television again. Carrie Bickford: The trees was an attraction to me and my husband because we built in Savage and we have I maple tree and I red maple. And we love the trees. 1 would love to be able to 26 Planning Commission Meeting - June 4, 2002 work around that. I've actually thought about, ifllived there how I'd put a line of pine trees in. You know, we're all in for that privacy thing so 1 would want to save the trees. As with the flooding and stuff, 1 mean 1 remember when 1 was a kid, I used to swim in it. 1 don't think it floods like that anymore because you don't swim in there, and but I don't think it floods like that anymore. I drove by it tonight after the rain today and 1 saw a duck in there and 1 went hummm. But he wasn't swimming. He was eating so, but yeah. As for the trees we would love them and we'd like to add more so. Sidney: Thank you. Anyone else? If not, I'll close the public hearing. We have plenty of information here. Plenty of information. I'll look this way instead for comments from the commissioners. Lillehaug: Comments. First thing I'd like to comment is on that property line. 1 think it's an established property line and the city does have documentation and if the city doesn't have it, the county probably would. To move forward with approving anything, 1 guess I would have to see that an increase to the rear yard depth. The codes say they want 25, or 125 feet. If we look at the current property line and the depth, we need a 38 foot rear yard variance. And that's pretty significant. I guess I'd would suggest the applicant contact the. Carl McNutt made a comment from the audience that was not picked up on tape. Lillehaug: I'm not going to say that but if you are contesting that property line, I think that would be something that would have to be legally contested. With what I have in front of me, and 1 did go out and look at it and 1 met with you and 1 know this is, this is really important to you but the way 1 view it, that that property line is a legal property line. If you can contest it and prove to the city that that property line is inaccurate, then 1 would reconsider my position on this variance. Claybaugh: Let's see, where to start. Again the rear yard setback I agree with my fellow commissioner that in addition to other things, that's the greatest struggle to get beyond here. Again I understand and I can empathize with your frustration with contesting the lot line, but what we have in front of us tonight is too weigh a deviation from 87 to 125 feet for me to be supportive of. And if there's any way to address that, either with the city or county or otherwise, try and get that information rectified if in fact you are correct, then that would put it in a much more favorable light. That's all. Sacchet: This question about the property, the right-of-way property. We're not the instance. We're not the body to deal with that. We're way out of our league with that. If there is a question about whether that part of that right-of-way should be the applicant's based on having maintained and all that, that's not an issue that we can deal with as the Planning Commission. I'm not quite sure who would be the right authority to deal with that, but I'm very sure it's not us. So we're stuck looking at this based on information as presented to us, which is based on a legal description of the property, and 38 feet variance out of 100 something is a huge variance. I mean we spent the early part of the evening squabbling over a couple of feet. Now here we're talking about almost 40 feet, which is a huge proportion difference. And unfortunately, if that is the framework I say if that is the framework, because you question whetherthat's the framework and we have some statements from our one time mayor that indicate that indeed that would be a worthwhile thing to research, but if that is the case, getting 10 feet from the neighbor's lot is not going to solve the issue. What would solve the issue is if you take the whole slice of the neighbor's yard, because you have two narrow yards. You put the two narrow lots together and you get one that is big enough, so that could work. 1 want to be clear about that because 1 think, just thinking to get 10 feet is not solving the issue in this context right now. Then 1 have an issue 27 Planning Commission Meeting - June 4, 2002 also, which is secondary. I mean the access. 1 don't know how ideal it is to have another access from Pleasant View, so there are some concerns. But Ithink on the basis of what's in front of us, as the Planning Commission, we can't support that much variance. Carl McNutt: Apparently that description means nothing. I mean I'm not a lawyer. I wish I was. I wouldn't have to be living in a 2 bedroom house, but I could, how much do you think my neighbor would charge me to buy his whole parallel lot there? I'll bet $50,000. Sacchet: It's possible. Carl McNutt: And he might go with a IO or J5 foot jog in it, but not... Sacchet: I mean it's not up to us to comment to this but if they already have a narro·w lot, why would they make it more narrow? I mean I'd be concerned about that. Carl McNutt: Well then we're back to the legal thing, whether 1 own that property or not and I guess I'll have to get a lawyer. Sacchet: 1 would encourage you to pursue that avenue. Carl McNutt: Okay. Sidney: Well, the other country? Slagle: No, no. Just a quick question. If I can staff. Isn't the attorney's comments that are listed on page 3, was that recent? Aanenson: Yes. Sidney: 1989. Slagle: Or was that from' 87? AI-Jaff: When the right-of-way was discussed. Slagle: At what point was that again? Sidney: 1989. AI-Jaff: '89. Slagle: Okay. Have we asked the attorney if he has a same opinion? Different opinion today than he did then? AI-Jaff: No. Slagle: Just curious. Okay. Lillehaug: Is that a specific statement to this specific property? AI-Jaff: Yes. 28 Planning Commission Meeting - June 4, 2002 Lillehaug: Or is that just a general statement? AI-Jaff: Verbatim from minutes dealing with the right-of-way of this property. Lillehaug: But is he saying that is how, that this was obtained? AI-Jaff: No. LilIehaug: This is just an example of typically how it may be obtained? AI-Jaff: The question that was posed, how is right-of-way obtained. There was a question raised by Mr. McNutt saying that the city does not own this right-of-way, and that was the· city attorney's opinion. Slagle: Okay. I guess my last thought is, I would certainly encourage the applicant to, and maybe there's not a need for an attorney. Maybe it's just going down to the county, who knows. And having a meeting with city manager, I don't know, but it just seems like that's such a crucial part of this that I would make a pretty good effort to define whether that is indeed your land or indeed the city's. And if it's the city's, then you know what possible options are. And if it's your's, then hopefully you'll be back here fairly soon with an application similar to what you have and we'll see what happens. That's I guess the way I would go. Feik: 1 have another question for Shannin. Sharmin? Over here. Question for you. Not to beat a dead horse up but I'm trying to understand this right-of-way a little bit deeper. Is it your understanding that this right-of-way was taken by the city via adverse possession? Is that your understanding? AI-Jaff: No. Looking at a legal description. Feik: I understand the legal description. I'm understanding how we got to the legal description. AI-Jaff: It's never been detennined. Feik: I think quite frankly that that needs to be detennined. If it was taken by adverse possession, it is, there's very, very specific case law in the State of Minnesota regarding what you can take and what you can't take. Al-Jaff: Correct. Feik: And my advice to the applicant would be similar to the rest of staff, and my advice to staff as well is to research that. If the applicant did indeed own this parcel prior to that road being improved, prior to the right-of-way taken, then that survey that was provided to the county for filing was coming from the city. And my concern is that the city did indeed provide the proper infonnation that was relevant for the filing and that we didn't take too much, because if we took too much and this is inconsistent with the rest of the properties up and down the street, or we took it in anticipation of this being a wider road which it's not going to be, or we took it in anticipation of something else, and there's also statute regarding, we need to give it back. Al-Jaff: Assuming that, let's assume that a portion of the right-of-way does go back to Mr. McNutt, there is still a depth variance. 29 Planning Comnússion Meeting - June 4, 2002 Feik: Understand that but that's a different issue. Then we can address whether or not we want to address a different pad size and whether that's adequate based upon the young lady who wants to build a house, and that she is comfortable with that and that we can reasonably detennine that that is a livable standard house. Claybaugh: Yeah, it may go a long ways towards mitigating the degree of the variance. Sidney: Other questions? Feik: No that's it, thank you. Sidney: Okay. Sacchet: If I may ask one more question. Do we know how wide the next door lot is? The lot to the south? Because looking at the plat it seems to be slightly wider than Mr. McNutt's. Now we know Mr. McNutt's according to the description is 87, but since they're the same length, it'd be an interesting reference point to have. AI-Jaff: You're referring to the property to the south? Sacchet: To the south, yes. Which has the same east/west stretch. AI-Jaff: I will need to. Sacchet: Okay. Understand. This wasn't part of. Feik: Uli, I'm going to guess that's 33 feet wider. The distance of the taking. Sacchet: Well looking at the plat it doesn't seem to be that much wider. It seems just slightly wider. AI-Jaff: I believe it's 100 feet. Sacchet: It's 100 feet? AI-J aff: Yes. Sacchet: That would be about proportionate with how it's written, yeah. AI-Jaff: It is 100 feet. Sacchet: 100. So it's 13, okay. Okay, thank you. Sidney: Okay, any more comments? I guess I'll throw in my two cents here. 1 would just love to grant this, the variances for these two lots. However I guess 1 still, you know I'm really concerned that, like in the staff report on what has been explained on previous discussions about this applications, that we're creating a non-confonning lot. And somehow if we can get closer to, well I waDI to just say a few feet variance on some of these setbacks, I would feel a lot better. The 38 foot yard, rear yard setback for the rear yard I think is excessive and somehow that has to be worked out. And I guess where I'm leading is that 1 would like to take a vote on Ihis tonight, 30 Planning Commission Meeting - June 4,2002 although it seems like we've been tabling everything so far, and move it forward. I think one thing that would strengthen the application, this is directed to Curly, the applicant, that it would be important to understand if a smaller variance were granted, let's say for the rear yard setback, that that might help save some trees. Might mitigate some of the drainage problems. We're looking for something that would improve the overall lot appearance. Something. Carrie Bickford: Well that would be me. Sacchet: Of course. Sidney: So discussion about those aspects and access for the second lot, how that would be addressed might be helpful as well, so a bit more information would be useful. But at this point I guess I would not be in favor of granting variances based on the fact that we're defièient in all the dimensions except lot width. So anyway I'd like a motion please. Feik: Madam Chair, prior to making a motion I'd like to, I know we've tabled two others tonight, but my concern is that we treat the applicant fairly and that we do what's in the best interest...to unfortunately table it and do more research on exactly how that right-of-way was established and was it established properly. Sacchet: And if I may add, look into whether the claim of ownership of part of that right-of-way based on having maintained it. Whether that actually is something that stands. Feik: Well, and as well as compensation. If it was taken without compensation, that is another issue that the applicant needs to address. Sidney: And at this point we should ask the applicant, would you be willing to have some more time if we would table this to investigate those points? Carl McNutt: ... table it until I find out if 1 own the property or not? I have a question though. Slagle: Curly, hold on one sec. Just point of clarification though Madam Chair. The request of whether or not an applicant would be in favor of tabling or not tabling is more of a courtesy. We can choose to table it whether they agree or not. Sidney: Yes. Slagle: Okay, I want to make sure. Carl McNutt: All I want to say is if the county or whoever decides that I do own that property, could I get the 12 Y2 foot, could 1 get the 18 foot variance as is or would I still have to buy some property from the neighbor? Sacchet: We don't know yet. Feik: We'd need to address that at that time. Sidney: Yeah, that's a point where it would go back to staff for more discussion. Yep. Okay, motion please. 31 Planning Comnñssion Meeting - June 4, 2002 Feik: I'll make a motion. I will make a motion that the Planning Comnñssion table Variance #2002. . . AI Klingelhutz: I'd like to say a few words here. Sidney: It's closed, I'm sorry. AI Klingelhutz: .. . sitting up there and here.. .too young to remember even when the township was. Sidney: Mr. Klingelhutz. AI Klingelhutz: When that land down there was part of Chanhassen township, all the township roads at one time were 2 rods wide. 16 Y2 feet on each side of the road. And if this wasn't changed until 1989, I can't quite understand if Curly ever got any compensation for.. .land that they took on his side, I would say he should still be owning it. Because it actually was a taking and if you take a piece of land away from somebody, you should have to pay for it. Sidney: 1 think that's where we're at in trying to understand that so we're right in the middle of a motion and we'll, let's see if we can't finish that. Al Klingelhutz: Well L..I know there were some roads in the county that...were only 16 Y2 feet wide. But they were.. .101 from Chanhassen down to below the hill for 2 horses and a trailer. Sidney: Thank you. Okay. Feik: I will begin again. Madam Chair, I move that we table Variance Request #2002-6 for lot area and depth variance as shown in the attachment. Sidney: Okay. Claybaugh: I second it. Sacchet: I know if it's a tabling we can'l really make a friendly amendments but I would want to be real clear of the intent. Sidney: Direction for staff? Sacchet: Direction for staff, because we can't really get, yeah if you want to. Yeah, why don't you give that a shot please. Feik: I would direct staff to research the taking of the right-of-way and be able to provide both City Council and Planning Comnñssion the method, the time, the nature of compensation. Aanenson: I don't want to belabor this point but in 1989 it came to light that the city has possession of that property. We don't know if we can find that information out, and I don't believe it's our obligation. Feik: I understand we own it based upon the survey. Aanenson: Right. What we're going to. 32 Planning Commission Meeting - June 4, 2002 Feik: I'm wondering whether or not we took it legally. Aanenson: 1 don't know if we can find that information out. Feik: 1 think that's up to us to try though. Aanenson: We tried in the past. What we're going to back up is ask the city attorneys if it's our property. If it's our property then I'll have to ask him who's burden of proof it is. Feik: That's fine. You understand.. . Sacchet: That's fine. Aanenson: That's what 1 want to make clear on that. Feik: Okay. Feik moved, Claybaugh seconded to table Variance Request #2002-6 for lot area and depth variances. All voted in favor and the motion carried unanimously with a vote of 6 to O. Sidney: That concludes the public hearings for tonight, my goodness. Sacchet: That took a while. APPROVAL OF MINUTES: VIi Sacchet noted the Minutes of the Planning Commission meeting dated May 21, 2002 as presented. Acting Chair Sidney adjourned the meeting at 9:05 p.m. Submitted by Kate Aanenson Community Development Director Prepared by Nann Opheim 33 06/05/2002 11:31 FAX 6514525550 CAMPBELL KNl~SON PA IaJ 002 Page 1 of2 MN ST s 160.05 M.S.A. § 160.05 MINNESOTA STATIITES ANNOTATED TRANSPORTATION CHAPTER 160. ROADS, GENERAL PROVISIONS ROADS Copr. © West Group 2002. All rights reserved. Current through End of2001lst Sp. Sess. 160.05. Dedication of roads Subdivision I. Six years. When any road or portion of a road has been used and kept in repair and worked for at least six years continuously as a public highway by a road authority, it shall be deemed dedicated to the public to the width of the actual use and be and remain, until lawfully vacated, a public highway whether it has ever been established as a public highway or not. Nothing contained in this subdivision shall impair the right, title, or interest of the water department of any city of the first class secured under Special Laws 1885, chapter 110. This subdivision shall apply to roads and streets except platted streets within cities. Subd. 2. Roads on and parallel to railroad right-of-way. The continued use of any road by the public upon and parallel to the right-of-way of any railway company shall not constitute such a road a legal highway or a charge upon the town in which the same is situated, and no right shall accrue to the public 01" any individual by such use. CREDIT(S) 2001 Main Volume Laws 1959, c_ 500, art. 1, § 5. Amended by Laws 1973, c. 123, art. 5, § 7; Laws 1982, c. 424, § 40; Laws 1984, c. 562, § 5. HISTORlCAL AND STATUTORY NOTES 2001 Main Volume Derivation: St.1957, §§ 160.121, 160.131. Laws 1957, c. 943, §§ 13, 14. St.1953, §§ 160.19, 160.20. Laws 1949, c. 566, § J. Laws 1949, c. 158, § 1. St.l927, §§ 2590, 2591. Gen.St.1923, §§ 2590,2591. Laws 1921, c. 323, §§ 50, 51. Gen.St.1913, §§ 2563, 2564. Laws 1913, c. 235, §§ 76, 77. Rev_Laws 1905, §§ 1197, 1198. .../default wl&RS=WL W2. 75&VR=2.0&SV=Full&FN= _top&MT=Westlaw&CFID=O&CL Type={i/5/02 06/05/2002 11:31 FAX 6514525550 232 NW.2d 420 CAMPBELL KNUTSON PA 1li003 Page 1 of6 Supreme Court of Minnesota. Walter BARFNECHT, et aI., Appellants, v. TOWN BOARD OF HOLLYWOOD TOWNSHIP, CARVER COUNTY, Minnesota, Respondent. No. 44546. July 18, 1975. Owners ofland abutting gravel road instituted action against township, which had resolved to rebuild and improve the road, for injunctive relief or damages on ground that the road was initially established as a two-rod road and that defendants were taking their land to widen the road. The District Court, Carver County, Arlo E. Haering, J., found that the road was statutorily dedicated to width offour rods and plaintiffs appealed. The Supreme Court, Peterson, J., held that statute providing that wheIJ any road or portion thereof shall have been used and kept in repair and worked for at least six years continuously as public highway, it shall be deemed dedicated to public to width of two rods on each side of center line thereof, if construed to extend public dedication of road by public use to widths greater than that of actual public use, results in unconstitutional taking of property without due process oflaw, but that width of prescriptive easement acquired by public use of road is not linùted to portion of road actually traveled and may include shoulders and ditches that are needed and have actually been used to support and maintain the traveled portion. Reversed and remanded. West Headnotes [I] J5,çyÇjl.çl{Q1Çs. ~ ,:'"·94 Constitutional Law (;-92XlI Due Process of Law ·¡".,92k29 L~ Regulation of Use of Public Facilities or Services; Governmental Grants or Loans <;·~92k292 k. Streets and Highways. Most Cìted C~çJi (Formerly 92k278(1) -=.ill Dedication '.,'·H9! Nature and Requisites .:.;= !J2.~ k. Constitutional and Statutory Provisions. M!tst. Cited Ç,ases Statute providing that when any road or portion thereof shall have been used and kept in repair and worked for at least six years continuously as public highway, it shall be deemed dedicated to public to width of two rods on each side of center line thereof, if construed to extend public dedication of road by public use to widths greater than that of actual public use, results in unconstitutional talång of property without due process of law. 1o.1$.cAJ..l@,95.; M,:i.A.Co,!l~,a!t.h.§.2; Jl$.C.ð,CQI1,St. A!r\end.. J.4. [5l [2] KeyÇiteNotes ;·200 Highways ...Idefault.wl&RS=WL W2. 75&VR..z.O&SV=Full&FN= _ top&MT=Westlaw&CFID=0&DB=MN'6/5/02 06/05/2002 11:31 FAX 6514525550 CAMPBELL KNUTSON PA 141004 Page 2 of6 232 N.W.2d 420 "f.QOI Establishment ;'·"~OOJ;(A} Establishment by Prescription, User, or Recognition l,;.2QQJ4 k. Constitutional and Statutory Provisions. MQ.st. Cited Çases Privately Owned land cannot become public road by adverse use beyond portion so used merely by a statutory pronouncement to that effect. M...S.A. §§ 160.05, 160,05, subd. I; M..S.A.Çon~!. arU,§2; 1T~s.,!:~,A.Q:!I:1st. Amend. 14. [3J K;yÇite NPtes ~ .,..... U \) Dedication i,;"'U9! Nature and Requisites {".119kI6 Acts Constituting Dedication c,.-, IJ 9,k,:;!.Q Abandonment to or Acquiescence in Public Use ·,y·l!9Jc20(1) k. In General. Most Cite;4Ç~.es Dedication resulting from adverse public use of road arises from fact that the use gives owner notice that, ifhe means to dispute the rightfulness of public use, he must assert his right within a statutory period by physical action or suit. M.SA.§J6().O~. [4J [(eyCiteNotes B1 {.'·IJ9 Dedication <"'11.21 Nature and Requisites i '" 1 19kJ (:; Acts Constituting Dedication .:; JJ 914Q Abandonment to or Acquiescence in Public Use .,:,~ 119k2(J(1) k. In General. M.Q.fitÇ\te!\C<I$eS Statute providing that when any road shall have been used and kept in repair and worked for at least six years continuously as public highway, it shall be deemed dedicated to public provides a statute of limitations, the running of which estops an owner rrom denying existence of a public easement. M.S,.A._§§)60.05, ~60.0.~, subd. 1. [s] KeyÇiteNot~ B} ;,-, ¡ 19 Dedication (;. J 19TT Operation and Effect ·;;"·lJ9k4.9 Extent of Dedication >U.2k50 k. In General. MPst cited C~~ Dedication by public use cannot constitutionally exceed the amount of actual dedication. M.S.A.§.§ 16005, 160.05, subd. 1. f5I [61 KeyCite Notes ...Idefault.wl&RS~WL W2.75&VR~2.0&SV=Ful1&FN=_top&MT=WestlaW&CFlD=O&DB=MN 6/5/02 vu/u~/~UU~ ~~.~~ rAA OO~40Z055U CAMPBELL KNUTSON PA Ial005 Page 3 of 6 232 NW.2d 420 ...~ 119 Dedication ~,.·-119Tl Operation and Effect .;~-" U9k42 Extent of Dedication '''" U 91>$0 k Tn General. M9~J Çited Cases Statute relating to dedication of road by public use can operate to dedicate a road only to extent of· actual use over the statutory period. M.S.A. .§ ..1 60"05. ~ [7J l(<;YCÜe,Notes (p·200 Highways ~,. ~,Qm Establishment c··'ZOQI(A) Establishment by Prescription, User, or Recognition ·';'.~OOkU Operation and Effect (",,200kI4 k. Extent of Highway. M9$1 Çi~~ Cases Boundary of public highway acquired by public use is question of fact to be detennined by fact finder. M.s..A, § )6,0.0,'2. [~ Kevejr!1Notes, f31 1.,.20Q Highways ""'·ZQQI Establishment -..··--200IlA) Establishment by Prescription, User, or Recognition ..,.>200klJ Operation and Effect \,.·Z,0_QkI4 k. Extent of Highway. MQsl Cited C~ Width of prescriptive easement acquired by public use of road is not limited to portion of road actually traveled and may include shoulders and ditches that are needed and have actually been used to support and maintain the traveled portion. M.S..A._.U60.05. **421 Syllabus by the Court Minn.S!- 160.05. subd. 1, if construed to extend public dedication ofa road by public use to a width greater than that of actual public use, results in an unconstitutional taking of private property without due process oflaw. **422 *505 Schroeppel & Lilja and Thomas P. Lilja, Buffalo, Fablgren & Anderson and James W. Fab1gren, St. Paul, for appellant. Robert A. Nicldaus and Dwight J. Leatham, Chaska, for respondent. Warren Spannaus, Atty. Gen., John R. Murphy, Asst. Atty. Gen., St. Paul, amicus curiae, for State of Minn., favoring aff1IlI1ance. Robert W. Johnson and John R. Krouss, St. Paul, amicus curiae, for County Attys. Council, favoring affirmance. Mullin & Millhollin, Coming, Iowa, and Lee Sinc1air, Potomac, Md., amicus curiae, for National Farmers Org., favoring reversal. Considered and decided by the court en banco PETERSON, Justice. ...Idefault.wl&R.S=WL W2.75&VR=2.0&SV=Full&FN= _top&MT=Westlaw&CFID=O&DB=MN 6/5/02 06/05/2002 11:32 FAX 6514525550 232 N.W.2d 420 CAMPBELL KNUTSON PA 141006 Page 4 of6 The constitutional question presented by this appeal is whether Minn.st. 16Q.Q5, if construed to extend public dedication of a road to a width of 4 rods and not simply to the extent of actual use, results in a taking of private property without due process oflaw. Aß a substitute for the common-law creation of highways by prescription or adverse: use,ŒNI] the statute provides the following method for acquisition of highways by adverse public use (Minn. St. 16_0.0~, subd. 1): FN J. See, Casner, American Law of Property, Vol. II, s 9.50. 'When any road or portion thereof shall have been used and kept in repair and worked for at least six years continuously as a public highway, the same shall be deemed dedicated to the public to the width of two rods on each side of the center line thereof and be and remain, until lawfully vacated, a public highway whether the same has ever been established as a public highway or not; provided, that nothing herein contained shall impair the right, title, or interest of the water department of any city of the first class secured under Special Laws 1885, Chapter 110. This subdivision shall apply to roads and streets except platted streets within cities.' The facts giving rise to the question of the constitutionality of this statute are not complex. Plaintiffs, Mathias S. Schaust and Walter Barfuecht, both own tracts ofland in Carver County. Their land abuts a gravel road which has been maintained as a public road for a considerable number of years. The township established its public character pursuant to ~ !(iQ._05 by proving use and maintenance of the road for the statutory period of 6 years. In April 1970 the Town Board of Hollywood Township, defendant, resolved to rebuild and improve the road in question_ Bids were received for upgrading and sloping about 1 1/2 miles of township road. Easements for backsloping were sought from plaintiffs as adjoining landowners, but both plaintiffs ultimately *507 refused to give such easements. Road construction began in May 1970. Shortly thereafter, plaintiffs instituted this action for injunctive relief Or damages. Plaintiffs sought to show at trial that the road was initially established as a 2-rod road and that defendant was now taking their land to widen the road·ŒN2] The trial court made no distinct finding on the width of either the improved road or the road before 1970. The trial court, relying on s l60_.Q~, found that the road, acquired by public use, was statutorily dedicated to a width of 4 rods. Since the road improvement 'remained within the area of two rods on each side of the center line of the road as it existed before the improvement,' the trial court concluded that the land used by defendant was already part of the public **423 highway. It is this statutory basis of decision that frames the constitutional issue.[FN~J FN2_ Plaintiffs also argued on a motion for a new trial that the contractor had trespassed on their property by engaging in construction more than 2 rods beyond the centerline of the existing roadway. The trial court granted plaintiff Schaust a new trial on the question of damages for any such construction_ lli~~ The present appeal is not the first occasion this case has been before the court. In ~«-llliJJ.siY.To)'fIl ~pard ofJlQijY~º9d Town~hjp.1~;; Minn._~1l., 201:-.N..W.2d 64J¡ (1973), we dismissed the appeal on procedural grounds and did not reach the constitutional issue. Judgment in favor of defendant town board, upholding the constitutionality of the statute and vacating a temporary injunction, was subsequently .../default.wl&RS=WL W2. 7 5& VR=2.0&SV~FulI&FN= _ top&MT=Westlaw&CFII>=O&DB=MN 6/5102 06/05/2002 11:32 FAX 6514525550 CAMPBELL KNUTSON PA 1aJ007 Page 5 of6 232 NW.2d 420 entered by the district court. Plaintiffs now appeal from that judgment. The constitutional issue, having been properly raised by this appeal, was fust argued before a three-judge panel of this court. Because of the ùoportancc of the issues raised, the appeal was subsequently reargued before the full court. At that time, amicus curiae briefs wc:rc: filed by the National Farmers Organization in favor of plaintiffs and by the County Attorneys Council and the State of Minncsota in favor of defendant. Defendant contends, and the trial court agreed, that s .16(),º~ constitutionally provides that any road dedicated by adverse public use is dedicated to a width of 4 rods, regardless of the width of actual usage. Plaintiffs, however, assert that s. t~Q.05 is unconstitutional because no notice is provided when a width greater "'508 than that of actual use is taken and that, as a result, they bave·been denied property without the due process of law. U.S.Const. Amend. XIV; Mi.nn.Cr;m.st. I\rt. 1. .~_2; LarnbeI:tY. Califo.r:lli!l...~.~?Jì.s. 225, 7~$.~C;k~4.Q,2 L.~.~!;L22~ (1957), This is the first time that the 4-rod provision of ~ 160.05 has been challenged as being unconstitutional. [J] ~ [~J_ ~ As a result of the constitutional provisions cited above, we bold that Mmn,S.k!60.05 does not authorize a township to widen a road acquired by adveISe public use beyond that width actually acquired by such adverse use. Privately owned land cannot become public road by adverse use beyond the portion so used merely by a statutory pronouncement to that effect. [31 ~ [4] ~ A dedication resulting ftom adverse public use arises from the fact that such use serves to give the owner notice that, ¡fhe means to dispute the rightfulness of the public use, he must assert his right within a statutory period by physical action or suit.[FN4) The statute provides a statute oflimitations, the running of which estops an owner from denying the existence of a public easement. EN4.. We neither express nor ùoply an opinion as to whether the dedication-by-use statute (Minn.:::;.!. 16Q.05) requires actual notice as contrasted with constructive notice. See, generally, Mu.lJ!t,ne v. Ç~n1r§J. H.(I,r;l9YIi!f Ban~~. Irnst. C:o., 339 .U..::!. ~.o(i,. 70 S .Ct. 65;!, 94 L.Ed. ~J55(! 9SQ); W!!1k~y., City on~µtRbID.J¡º!),_~~2 U.S...U2...ns.,q. 20P..U"E.d...451 178 (195~). There is no contention in the instant case that plaintiffs lacked actual notice of the adverse use to the actual extent of such use. ~ [51. Public use cannot be said to apply to lands not actually used. There is no reason that an owner should know that he is required to dispute the rightfulness of a nonexistent user. A property owner thus receives no notice as to a public claim on any property in excess of that which has actually been used. Thus, a dedication by public use cannot constitutionally exceed the amount of actual dedication. Accord, Eag.eLy.,.Ma,çIg.e, 367.M!.g,bJ48,.13(¡ N..w~~9..HW 9(¡S); *509 yqnkery. QÇ,çaDª-çqµpty Ro~ºÇ9¡~., 17 Mich.App.436, 16~ N.W,2d 669 (1969); .~¡¡lte v. r.9rtrn~, 149 Mont..91,423 P.2d 56 <1.2(7). [6] 151 [71 ~ [8] ~ As a result, s J 60.Q5 may operate to dedicate a road by public use only to the extent of actual use over the statutory period. The boundary of a public highway acquired by public .../default.wl&RS=WL W2.75&VR=2.0&SV~Full&FN'" top&MT=Westlaw&CFID"'O&DB"'MN 6/5/02 · 06/05/2002 11:32 FAX 6514525550 232 N.W2d 420 CAMPBELL KNUTSON PA ~008 Page 6 of6 . use is a question of fact to be determined by the appropriate finder of fact. Amdt.v. ThOl11æj. 93 MÜm. .UPP N.W. 378 (l~(M); S.çlu:ackv. CP\m~.Qfa.f¡nnepi1J,!4.(i..Mi!Jn. 171, II8N,W. 484 (1920). The . width of the prescriptive easement, however, is not limited to that portion of the road actually traveled; it may include the shoulders and ditches that are needed and have actually been used to support and maintain the traveled portion. G.~~1ell v. SCQtl, 13~.So.2d 866.(Flª,AIm,1961); **424 Whitep.!;JJd.. y. Mississjp¡:!i .S.~t!:}Iighway Ç9.mm,~2,54 SQ.2c!,?5Z{Miss.1971); rl!Ht...,. Ingham County Road ~Qillm,,10 Mich.AP-1!. 43~.J98 N.W.2d 893 (1972). While our decision today will limit the dedication of public roads by adverse public use to the actual extent of such USe, it will not prevent governmental bodies ftom upgrading, widening, or improving public ways. A governmental body may always accomplish such goals by the process of eminent domain. Eminent domain proceedings, however, effectively provide private landowners with notice, due process of law, and the opportunity to secure just and fair compensation in return for the property taken. . Accordingly, the decision of the trial court is reversed and this matter is remanded for proceedings consistent with this opinion. Reversed and remanded. MINN 1975. BARFNECHT v. TOWN BD. OF HOLLYWOOD TP. END OF DOCUMENT Copr. © West 2002 No Claim to Orig. U.S. Govt. Works ..'/default.wl&RS=WL W2. 75& VR=2.0&SV=Full&FN= _top&MT=Westlaw&CFID=O&DB=MN 6/5/02