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HomeMy WebLinkAboutRe: retaining all/water issue MRS. ROBERT H. GASCH 1030 TONKAWA ROAD LONG LAKE, MINN. 55356 i� !�!%U lY&72&lW' hQ ltta�-Ll #7XI lir�Gl ,cam iync� �rGc�t��t ��� 66 ZE- LI-a0aL"V 7c&to Ewl�-zvea�� ez"I - �n� L � � �rnMC-:7D 14Tc�y jtt�aw� o' "&)Eazke+-) ll -Ma 771 .Yau AalCcs)614 BRANCH OFFICES Minnesota Allied Adjusters, Inc. GI ,�rr► En Albert Lea P.O.Box`848 P.O. Box 583479 ■ Minneapolis, MN 55458 ■ Direct (612) 376-4300 ■ Fax (612) 376-4399 Albert Lea,MN 56007 QpR81991 (507)373-7502 Rochester P.O.Box 994 OF ORONO Rochester,MN 55903 CITY (507)289-0042 Fairmont P.O.sox 15 April 7 , 1997 P. O. Box 583479 Fairmont,MN 56631 Minneapolis, MN 55458-3479 (507)235-5565 (612) 376-4300 Virginia Fax No. : 612 376-4399 P.Box 1205 ( ) Virginia,MN 55792` (218)741-6965 Willmar- P.O.Box 915`' Willmar,MN 56201 (320)231-2026 Bruce Vang Mankato Cit of Orono P.O.Box 3523 Y Mankato,MN 56002 P.O. Box 66 (507)387-5468 Crystal Bay, MN 55323-0066 Faribault P.O.Box 433 Faribault,MN 55021 RE: BRS Claim No. . 11016684 (507)334-2217 Trust Member : City of Orono Owatonna P.O.Box 666 Date of Loss ? Owatonna,MN 55060 Claimants : Robert & Debra Edmunds (507)451-5644 Our File No. : MPS27645 Hutchinson P.O.Box 159 Hutchinson,MN 55350 Dear Mr. Vang: (320)587-9465 Brainerd P.O.sox 763 P g We represent the League of Minnesota Cities Brainerd,MN 56401 Insurance Trust (LMCIT) on behalf of the City of (218)828-8258 Orono. We wish to thank you for your time extended Duluth to us in our meeting with Lyle Ohman on April 4 P.O.Box 56- 9 Y P r Duluth,MN 55801 1997 . We are writing this letter as a follow up to (218)723-8339 that meeting and a reminder of a meeting scheduled St.cloud ' :O. to meet with the claimants at their home adjacent to P' Box 1163 � St.Cloud,MN 56302 the house under construction at 2 : 00pm on April 14, (320)259=9766 1997 . North Dakota Fargo We remind you to have with you a packet of materials P.O,Box 9z55 - Y Y Fargo,ND 58106 which illustrate what occurred on the adjacent (701)z35 7484 property and our reasoning with respect to our Grand Forks position on the claim. We request that P.O.sox 120)9 P you make a q Grand Forks,ND 58208 second copy of the same packet to provide to us so (701)775-3867 we can be sure our file was documented exactly as to South Dakota what was provided to the claimants. Sioux Falls P.O.Box 1174 Sioux Falls,SD 57101 We look forward to meeting with you on Monday, April (605)357-0275 14 , 1997 . Hopefully the meeting will facilitate the MilP.O.Box 1004 claimant's understanding of the situation to the Milbank,SD 57252 extent that they will see that their retaining wall (605)432-6201 was required by their construction as opposed to Arizona being needed because of an error on the part of the Phoenix Cit of Orono. .Arizona All Claims Y 11801 N.Tatum Blvd. Phoenix,AZ 85028- (602)997-5877 Tucson,: Arizona All Claims P.O.Box 13162 Tucson,Az 85732 (602)745-5601 1973 — Our Twenty-Fourth Year — 1997 A Member of Berkley Risk Management Services Group City of Orono BRS Claim No. : 11016684 Our File No. : MPS27645 April 7, 1997 If you have any questions regarding this letter, please feel free to contact me directly at 376-4311. Very truly yours, ALDL�I EtD,, ADJUSTERS, INC. , Robert S. Brown RS dkw cc: Ronald Moorse City Administrator City of Orono P.O. Box 66 Crystal Bay, MN 55323-0066 2 f5PANCH OFFICES Minnesottao Allied Adjusters, Inc. { Minnesota AlbertLea P.O.Box 848 P.O. Box 583479 ■ ;Minneapolis, ;VIN 55458 ■ Direct (612) 376-4300 ■ Fax (612) 376-4199 Albert Lea,MN 56007 RECEIVED (507)373-7502 Rochester P.O.Box 994 APR 2 1 1997 Rochester,MN 55903 (507)289-0042 Fairmont �il 1 y Lei' Uf1VwJ P.O.Box 15 Fairmont,MN 56031 (507)235-5565 April 17, 1997 P. O. Box 583479 Virginia Minneapolis, MN 55458-3479 P.O.Box 1205 (612) 376-4300 Virginia,MN 55792 (218)741-6965 Fax No. : (612) 376-4399 Willmar P.O.Box 915 Willmar,MN 56201 (320)231-2026 Mankato P.O.Box 3523 Mankato,MN 56002 Robert and Debra Edmunds (507)387-5468 1030 Tonkawa Road Faribault Orono, MN 55356 P.O.Box 433 Faribault,MN 55021 (507)334-2217 Owatonna RE: BRS Claim No. 11016684 P. 6 Owatonna,.MN Trust MbCit of Orono MN 550 550600 rusMember Y (507)451-,644 Date of Loss ??/??/?? Hutchinson Claimant Robert and Debra P.O.Box 159 Hutchinson.MN 55350 Edmunds (320)587-9465 Our File No. MPS 2 7 6 4 5 Brainerd P.O.Box 763 Brainerd,MN 56401 Dear Mr. and Mrs. Edmunds: (218)828-8258 Duluth We represent the League of Minnesota Cities P.O.Box 56 Insurance Trust LMCIT on behalf of the Cit of Duluth.MN 55801 ( ) Y (219)723-8339 Orono. We have investigated the above-captioned St.Clod matter, and to date, have not seen evidence that the P.O.Box 1163 St.Cloud,MN 56302 expenses you have incurred to build a wall adjacent (320)259-9766 to your home resulted from negligence, wrongdoing or North Dakota failure to meet responsibility on the part of the Fargo City of Orono. P.O.Box 9255 Fargo,ND 58106 ( 01)235-7484 We met with you and Bruce Vang on the afternoon of Grind Forks Monday, April 14, 1997. We spent an extended amount P.O.Box 12019 Grand Forks,ND 58208 of time during which you and your contractor and (701)775-3867 myself and Bruce Vang attempted to discuss all South Dakota issues. We are writing at this time to summarize Sioux Falls the conclusions we have reached as a result of the P.O.Box 1174 Sioux Falls,SD 57101 investigation. We also wish to point out that we (605)357-0275 are certainly willing to hear out and investigate Milbank any additional points that you feel should be looked P.O.Box 1004 Milbank,SD 57252 into. From the information presently available, (605)432-6201 however, it does not appear that we will be able to Arizona make any reimbursement to you for your expenses Phoenix related to the building of the wall adjacent to your Arizona All Claims 11801 N.Tatum Blvd. home. Phoenix.AZ 85028 (602)997-5877 Tucson Arizona All Claims P.O. Box 13162 Tucson.Az 85732 (602)745-5601 1973 — Our Twenty-Fourth Year - 1997 A?lemher 4 Burklec Risk%lanagemen[fan Jcr Group Mr. and Mrs. Edmunds BRS File No. : 11016684 Our File No. : MPS27645 April 17, 1997 The first relevant issue relates to whether or not the City had an obligation to you personally with respect to protecting your property from water running off the adjacent property. As a general rule, City inspectors are not representing individual property owners when they conduct their inspections. They are representing the general interests of the City of Orono. In this case, however, they did work with the adjacent property owner and the previous owner of your property to address any additional water runoff onto your property created by new construction on the adjacent property. The inspector was not representing the interests of either property owner while measures to handle runoff were being addressed at the time of construction on the property adjacent to your home. It is also important to mention that the two adjacent property owners, the real parties at interest, did seem to concur with respect to the measures that should be taken on the adjacent property. The city inspector's obligation in all of this was to represent the general interests of the City of Orono. We do not feel that the inspector had undertaken a direct duty to either the prior owner of your property or to any subsequent owners of that property to guarantee that no water would come onto the property from neighboring land. City inspectors have no duty to accomplish this. Even if they did have such a duty, a question would arise with respect to whom the duty might be owed. At the time that the construction occurred next to your property, you did not own it. The previous owner of the property participated in and agreed to the measures that were taken by the adjacent property owner. In essence, the actions that were undertaken constituted an agreement between the prior owner of your property and the owner of the adjacent property regarding what should be done. We do not think that the City would have had any obligation to either party to press for something different than they had agreed to. Further, we question whether you as new owners of the property would have a right to claim that any party had an obligation to change anything agreed by the prior owner of your property. Generally, property is bought as is, including its circumstances relative to conditions on adjacent property. In order to breach a duty one must, in the first place, have a duty. As previously indicated, we do not believe the City had a direct duty to you personally to protect the property at 1030 2 Mr. and Mrs. Edmunds BRS File No. : 11016684 Our File No. : MPS27645 April 17, 1997 Tonkawa Road from runoff from adjacent property. We do, however, wish to comment upon whether they had made any errors or committed any negligent acts anyway. We do not feel that they did. The adjacent property owner has no obligation to prevent water from running off of his property onto the property of another except when he alters the land in some way to increase the nature of the runoff. In that case, he is responsible only to correct any increase in the nature of the runoff caused by his alterations. The city inspectors were attempting to see that accommodations were made for any increases in the amount of runoff caused by the most recent construction on the adjacent property. They feel that they accomplished this objective. They actually believe that the accommodations made by the adjacent property owner took care of not only the increase in runoff, but some of the pre-existing runoff. The inspectors point out that your property at 1030 Tonkawa Road is more or less the low point in the area and that water has historically run off adjacent property through your property to the lake. They indicate that the previous owner of your property frequently complained of water problems. You had inquired regarding whether or not the City undertook to solve those problems, but we point out their only efforts would have been related to any increase in runoff caused by construction on adjacent properties. We do have the impression that you feel the neighbors and the City should have taken care of all the water that runs onto your property from adjacent property. To my knowledge, that has never been the law. The principle has long been that one takes care of any increase in the nature of runoff from their property that results from their own construction or alteration of the grade on their property. The City would have no right or obligation to require any landowner to do more. We also wanted to comment on the issue of damages. From our discussions with the two city inspectors, your contractor and with you, we question whether you could have got by with a lesser wall even if the small surface stone wall at one time contemplated by your neighbor had been constructed. It seems regardless of whether or not the previously contemplated wall had been constructed, you would have had to build a wall from the depth of your excavation for your underground garages to the base 3 Mr. and Mrs. Edmunds BRS File No. : 11016684 Our File No. : MPS27645 April 17, 1997 of that surface wall, a distance of approximately 91 , which we believe is the height of the wall you have built. We realize that you also did some swale work on the adjacent property. Whether or not the entire setup constitutes an improvement over what your contractor had originally contemplated is not quite clearly proven to us. We do not feel that the $13,716.25 that you are claiming as damages has been clearly established. We believe part of the dollar figure you refer to relates simply to the fact that the excavations you have undertaken required a more substantial wall than was originally contemplated. To summarize, we point out that in order for a claim to be made, there must be a duty and that duty must be breached, and the breach of that duty must result in damages. We do not see that there was a duty owed to you by the city inspectors at the time the construction was undertaken on the adjacent property. The city inspectors' duties were to the city of Orono in general, and we do not feel that those duties were breached. The relationship between your property and the adjacent property was part of an agreement between the previous owner of your property and the owner of the adjacent property. To a certain extent, that agreement becomes part of the condition of the property, which we presume you purchased on an as is basis from the prior owner. All issues of liability aside, we do question whether you really suffered significant damages because the small surfaced stone wall originally contemplated by the adjacent property owner was never installed. We realize that much of the reasoning presented in this letter and during the course of our discussions on April 14 may be new to you, and we therefore do make clear our willingness to hear from you with any response with respect to any points that you feel are not valid. We also point out that there may be other defenses to your claim which have not been outlined in this letter. This letter is not intended to be a perfect, all-inclusive legal summary, but merely an indication of our position and the reasons we believe that our position is correct at this time. We are always willing to hear your point of view. Although we can make no promise regarding any change in our opinion or 4 Mr. and Mrs. Edmunds BRS File No. : 11016684 Our File No. : MPS27645 April 17, 1997 position, we will endeavor to look thoroughly into any issue you raise. We may be reached directly by telephone at 376-4311. Very truly yours, ALLIED ADJUSTERS, INC. jq0&)Z--i �-� S1M<je1\'j Robert S. Brown RS lal cc: Jo Hook Berkley Risk Services, Inc. cc: BZ=e 'VAbg, City of brono', 170 Box 8 , -'Cry�C t3 `Bay, IST 55323-0066 cc: Ronald Moorse, City Administrator, City of Orono, PO Box 66, Crystal Bay, MN 55323-0066 cc: Tom Rerah, Ameristar Agency, Inc. , 8421 Wayzata Blvd. , Suite 301, Golden Valley, MN 55426-1355 5 May 21, 1997 CITY OF v KEITH WATERS n & ASSOCIATES, Inc. DESIGNERS&BUILDERS 10340 Viking Drive Suite 110 Eden Prairie MN 55344 (612)942-1060 fax(612)942-1058 License Number-0001508 Mr. Bruce Vang Building Inspection Department City of Orono P.O. Box 66 Crystal Bay, MN 55323 Re . 1030 1020 Tonkawa Rd. Retaining Wall Dear Bruce: I know this wall is not your favorite topic and I don't want to unnecessarily add to your work load. However, after much cost and turmoil, we have solved a serious drainage problem. It makes sense to keep it solved. The Williams at 1020 Tonkawa Rd. are planning to landscape the area in the drainage channel and we have some concerns. I have included a copy of the letter I sent them. Could you follow up with this? I think the City should review this, but don't know if it will be you or the City Engineer. Give me a call when you get a chance. Thank you. Sincarely, r Keith Waters KW/hks cc: Robert Edmunds 5/21/97 Doug & Marge Williams KEITH WATERS 1020 Tonkawa Rd. &ASSOCIATES Inc. Orono, MN 55364 DESIGNERS&BUILDERS 10340 Viking Drive Ref: Driveway and Retaining Wall at Edmunds Property Line Suite 110 Eden Prairie Dear Doug & Marge: MN 55344 612)942-1060 fax(612)942-1058 You are planning to landscape your yard including the strip on the south License Number-0001508 side of your home. When you called, you indicated that you are in the process of obtaining designs and quotes from landscape companies. I want to inject a note of caution here. The space between your home and Edmunds boulder wall is designed and engineered as a drainage swale to channel huge amounts of runoff from your front yard and driveway to the lake. It is designed in the following layers: the ground is shaped into a 'V' shape to channel the water away from the wall and your home. A heavy fabric is placed over the grqund. This fabric carries the water and prevents the erosion of the soil below. The fabric continues behind the boulder wall and prevents water from washing the soil out between the boulders and undermining the wall. The large stones, known as "rip-rap", are placed over the fabric. They slow waterFlow, protect the fabric from deteriorating from sunlight, and most importantly hold the fabric in place. The point of this discussion is that no holes should be cut into the fabric, nor should the drainage swale be altered. If you wish to change the color of the stones, you should cover the existing "rip-rap"with different color stone. Huge amounts of water pour through this channel. If the water gets into holes cut for a shrub or tree, it can washout the shrub, undermine the fabric, and ultimately undermine the wall and the earth along your property line. You should view this area as a functional area first and then a landscape design area. You should pass this data on to any landscape contractor you may use and have the City of Orono review and approve any landscape plans. You wanted us to contribute to changing the rock color in this area. We will contribute up to $200.00 worth of rock to cover the existing "rip-rap". I have attached notes from Bob Edmunds of conversations he has had with the Wall Engineer, Wall Contractor and Landscape Architect regarding this issue. Also attached is a note sent to Bruce Vang, the City of Orono Inspector. In summary, when you landscape, tell your contractor not to cut holes in the fabric or change the drainage system. Please call with any questions. Sincerely, Keith Waters KWthks cc: Robert Edmunds it