HomeMy WebLinkAboutChapman Easement/2693 Shadywood Rd CITY of ORONO
O � � O Municipal Offices
Aq Street Address: Mailing Address:
2750 Kelley Parkway P.O. Box 66
,. ` 7 Orono,MN 55356 Crystal Bay,MN 55323-0066
4kEsHo4?"
DATE: March 22, 2012
TO: Street Files - 2693 Shadywood Road, 2695 Shadywood Road
FROM: Michael P. Gaffron
Assistant City Admi strator/ Long-Term Strategy
RE: Dock Rights Question - 2693 Shadywood Road
A potential buyer of this non-lakeshore property has requested City confirmation that the
property has rights to a dock extending from the easement over the adjacent lakeshore parcel at
2695 Shadywood Road.
The District Court in 1987 declared that the access easement created in 1983 via Document No.
1547565 was valid (See District Court Order, Document No. 1803854 dated February 11, 1987).
Therefore, the City does not dispute the validity of the access easement over the land.
The Court Order does not specifically address whether the access easement grants the right to
have a dock extending from the easement. The City is not in a position to confirm or deny the
legal ability to have a dock extension from the easement. It is clear from City Resolution No.
1102 which approved the plat of Chapman Addition on January 15, 1980 that the City did not
intend for 2693 Shadywood Road to be riparian to Lake Minnetonka.
Interested parties may wish to contact the Lake Minnetonka Conservation District (LMCD) to
discuss the issue of dock rights for 2693 Shadywood Road.
Attachments:
Document No. 1547565
Document No. 1803854
Telephone(952)249-4600 •Fax(952)249-4616
www.ci.orono.mn.us
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i(I _ _Y._ZA1100 !Inc RO). STATF.' '' /' ' . 1547565 _ _
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DUE UMW-71-64,2•• a,0
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iSTATEor DE T. 0 z-
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TAXATPM:.
, AGREEMENT iseri . "4. — 6 L.
By jk ; AL-. . -..'
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AGREEMENT, made this „2/tay of March, 1983, between Kenneth 0.
. Chapman and Patricia E. Chapman, husband and wife, of the County of
Hennepin, State of Minnesota, Parties of the First Part, and
Douglas J. Farley and Elaine C. Farley, husband and wife, of the County
of Hennepin, State of Minnesota, Parties pf the Second Part.
WHEREAS, Parties of the First Part represent that they are the
Amen i:can Elm:L.J.y 1 K.1 E I!.:I. ' .
owners orthat certain parcel of land located in Hennepin CO"unty, State
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of Minnesotg4 legally described as fpilows4
iP: -1100 7-1417 MI. 6 ET, , - •;
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Lot 2, Block 1, Chapman Addition 77rcr ,,,/, / /
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/11 WHEREAS, Parties of the2SecondPart representthatthey are the
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. owners of that certain parcel of land located in Hennepin. County, State
of MinAesotAELegallly(described as follows ! ; h- 'ween Kenneth 0.
[ Chapiln .1nd Patric .
the Col.
Lot 1, Block 1, Chapman Addition ni:y of
ifillPpin, State co' 'i, T' ' , and
- DouglaWngETIP4rti,vs of the Second -.part desire to acquire from c,. [•:.y
84rties9fachetEirstPart, and the Parties of the First Par are will-
ing togrant,[stor:the [Parties of the Second Part, an easement for,the,
Burpose.oflAblowing Parties, of the Second :Part to have
Minnetonkqrqxer4he property of the partes of the First Part as more
1 i
I fuilydescribed hereinafter and to maintain a dock on Lake Minnetonka; 1
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A ' NOW, THEREFORE, it is mutually agreed, as follows:
rt.. ..,op'nAd‘wotison of the sum of One-Dollar ($1 .0W, and, ot4ert
1
gqq0,and1744144-consideration, the receipt and sufficienoywhereof is f
kytrehyr,409miwkwAkied, the Parties of the First Part hereby give and
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ot
0 . Lot 1, .1.(-, ti_r:R : -0c1.!.ELDL
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i •• WHEREA5-, Par'lie, ' - ; r:,-rt ,:
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grant to the Parties of the Second Part, and to their heirs and
assigns, as an appurtenance to the premises owned by the Parties of the
Second Part, the full and free right, in common with the Parties of the
First Part, and their heirs or assigns, at all times hereafter, to
enter upon, walk upon, and pass over the following described property
for the purpose of access to the shoreline of Lake Minnetonka.
The easement created hereunder shall be over the following
described property located in the County of Hennepin, State of
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--"-'-'77'11x'' The Southeasterl 15 feet of Lot 2, Block 1, Chapman
51
Addition.
In addition, Parties of the Second Part, and their heirs and
assigns, shall have the right to maintain a dock for their exclusive
granr ^-n th > Parr' -.he .
use at the part of this easement immediately adjacent to Lake
Minnetonka.
Secor+' i' , t;E Y .., c.
IN WITNESS WHEREOF, the parties hereto have set their hands
, ,t.,,3 i.c_ :C,'
the day and year first written above. .
State of''Mi:hne ota .3' ss T , / . +.i:,cd pz oile-r y
County pf Hennepin
The foregoinginstrUMent was aaknow- ' •nneth O. hapman
ledged before mg this25th day of
a j Q.f/4.1 ..r:
I March 1983. By: 'Kenneth 0. Chapman 'r
& Patrice,,;,H,. ,Chapman,{,Husband & Wife a `cra p
E Cha
& Dougl s J. Farley & Elaine C. Farley, wilMO /
-. W ANN 3CFUYN� Husband & // • i II '
►�otu,.vatc• sowT Wife long as/ . a dry
t•; inm
", &h so".N,ri.^.wag Mo►.3,1987 4L.- C
nine . Farley j
cwo o State Deed Tax due hereon $2 20
hte, ., - --_-_.«.:�:- f' -day ,nc.
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LOMMEN, NELSON, SULLIVAN & COLE, P.A.
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otar iubMinneapolis, Minnesota 55402
` 1.'"NESS di Telephone, No. (612) 339- & 3.1a 137.1d:
Ithe !1.3>> :Inc „k:.ar
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IN PROCEEDING SUBSEQUENT TO INITIAL REGISTRATION OF LAND
File No. A-21902
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT lF1. Pi
In the matter of the Petition of
Robert F. Letendre, Sr_ and Theresa FEB 1 1 1987
L. Wiebe for an Order adding ORDER
appurtenant easement .
The above-entitled matter came on for hearing on the 7th wpm,
day of October . 1986 at Room A702 of the Hennepin County
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Government Center yin the City of Minneapolis, said County and ',,r
State, before the Deputy pcarnpier of Titles to whom said matter
has been duly referred pursuant to M.S.A. Section 508. 13, to hear
the evidence in' said cause -,:and report his conclusions -therefrom,
and who has filed his report herein; and the Court having duly
considered the::Petition, the evidenced adduced by the Petitioners
and the report' or reports of the Examiner, finds:
1. That,;:. on the 20th day of June, 1986, the Registrar of
Titles entered Certificate: of Title Number 681809 to Robert F.
Letendre, Sr. and Theresa L. Wiebe for land described as follows:
Lot. 1, Block 1, ',Ghapman Addition
t 2. That on the 28th day of January 1980, the Registrar;,of
Titles entered Certificate-„of Title Number 597888 to Kenneth O.
ghapman and Patricia E. Chapman for land described as follows: ,
a : . c ..Lot 2, Block 1„l.Chapman Addition •
3. That , each of tete aforesaid Certificates of TTitIe
""\_
gantains the memorial of :,agreement Document No. 1548565,- an (Y
easement dated March 25, 1983 creating an easement to enter upon, t��
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walk upon, and pass over the southeasterly fifteen feet of Lot 2,: --
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Block 1, Chapman Addition, in favor of and appurtenant to said
Lot 1.
4 . That Agreement Document No. 1547565 is a valid creation
of the easement described therein.
5 . That notice of these proceedings has been given to
Kenneth 0. Chapman, Patricia E. Chapman, Meritor Mortgage
Corporation, State Bank of Mound, and to parties, if any, in
possession of said Lots 1 and 2.
NCiii -THEREFORE, IT IS HEREBY ORDERED as follows: Set v.E,,,,.
1. That the Registrar of Titles show by memorial upon
Certificates of Title Numbers 681809 and 597888 that the access
easement created in Document No. 1547565 is valid.
2 . That upon issuance of further certificates of title for
the land • described in Certificate Title Number 597888, the
Registrar of Titles omit the memorials of Document Number 1547565_
and of this Order and in lieu thereof he carry into the body of % ,'a
each new certificate of title for said land, a recital as
f o l.lows:
Subject to an appurtenant easement for access to Lake
Minnetonka for the benefit of Lot 1, Block 1, Chapman
Addition, over the southeasterly fifteen feet of Lot
2, said block and addition; see Order Document Number
1263$5 ( here insert the document number
assigned to this Order) .
3. That upon issuance of future certificates of title for
the land described in Certificate of Title No. 6$1$0 the
Registrar of Titles omit the memorials of Document Number 1547565
and of this Order and in lieu thereof he carry into the body of u` "
each new certificate of title for said land, a recital as
follows:
azo:.
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. Together with an easement for access to Lake
Minnetonka over the southeasterly fifteen feet
Of Lot 2 , Block 1 , Chapman Addition; see Order
• Document No. (here insert
d the document number assigned to this Order) .
Datd:.
BY THE COURT:
a
iiiVAI A/V9A1V4
JUDGE OF DIS RI T COURT
. i
The foregoing facts were found
by me after due hearing and
the entry of this Order is
,•• •mm: •e� � ,;�, • ,,. ,
R(CHA- • S.LITTLE
Deputy Examiner of Titles
Date` ��49/ 5;17
FEE PMD
FEB 101987 f
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No. A-21902
STATE OF MINNESOTA D.ISTRICI' COURT
COUNTY OP HENNEPIN FOURTH JUDICIAL, DISTRICT
In the Matter of the Petition of
Robert T. Letendre, Sr. and
Theresa L. Wiebe,
in Relation to Certificate of ORDER
Title No. 681809 issued for/and
inhe County Coi ty of Hennepin and
State of Minnesota and legally
describes as follows:
Lot 1 , Block 1 , Chapman Addition.
The above-captioned matter came on for hearing before the
undersigned judge of Hennepin County District Court on the 20th
day of January, 1987. Petitioners Robert T. Letendre, Sr. and
Theresa L. Wiebe were represented by their attorney Bradley N.
Beisel , and the City of Orono was represented by their attorney
Kathleen Blatz.
Based on .the arguments of counsel , and upon all of the
files and proceedings herein, including '_.the ..'Affidavits and
Memorandums submitted in connection with the Motion of the Peti-
tioners, and the Court being fulls advised in the premises, it is
hereby ordered as follows:
1 . That the Claim of the City of Orono as set forth in the
Answer filed by them in the above-captioned matter be
dismissed, with prejudice, and on the merits. •
LET JUDGMENT BE ENTERED ACCORDINGLY.
JUIXGE OF DISTRICT COURT
Dated;
,..;72._/4,„()T . � - --- - -- l/
O. HAROL-D ODLAND
No . A-21902
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
In the Matter of the Petition of
Robert T. Letendre, Sr . and ANSWER OF CITY OF ORONO
Theresa L. Wiebe,
in Relation to Certificate of
Title No . 681809 issued for/and
in the County of Hennepin and
State of Minnesota and legally
described as follows :
Lot 1 , Block 1, Chapman Addition
The City of Orono, a Minnesota municipal corporation,
(hereinafter referred to as "Orono" ) for its Answer to the Order
to Show Cause in the above-referenced proceeding, states as
follows :
1 . Kenneth 0. Chapman- and Patricia E. Chapman formerly owned
a parcel of real estate ( hereinafter referred to as "Original
Parcel " ) which Original Parcel is now subdivided into two lots as
set forth on Exhibit A which are legally described as :
Lot 1, Block 1, Chapman Addition (hereinafter referred to
as "Letendre Parcel" ) and
Lot 2, Block 1, Chapman Addition (hereinafter referred to
as "Chapman Parcel " ) .
2. On October 10 , 1978 and November 13, 1978 , Orono ' s
Planning Commission considered a two-lot subdivision request
concerning the Original Parcel and conceptually approved a
horizontal division of the Original Parcel with only the Chapman
Parcel having riparian rights . The minutes of these meetings are
attached hereto as Exhibit B.
3. On December 11, 1978, Orono ' s Planning Commission denied
the Chapmans' application for subdivision because the proposed
subdivision did not meet Orono ' s subdivision area requirements .
4. On August 13, 1979, Orono ' s Planning Commission
recommended approval of a subdivision proposal by Kenneth 0.
Chapman and Patricia E. Chapman whereby the Original Parcel would
be horizontally divided into two parcels . The minutes of that
meeting, attached hereto as Exhibit C, reflect that only the
Chapman Parcel shall have riparian rights .
5. On August 28, 1979, Orono ' s City Council granted
preliminary approval of a two-lot division of the Original
Parcel. Again, the minutes of that meeting attached hereto as
Exhibit D, reflect that only the Chapman Parcel shall have
riparian rights.
6 . Orono ' s conditions of preliminary approval of the
subdivision request, dated August 30, 1979 and attached hereto as
Exhibit E, provide that the Chapman Parcel shall be riparian to
Lake Minnetonka and the Letendre Parcel shall "be non-riparian
with no lake access or dock rights. "
7 . On January 7, 1980, following submittal of the necessary
documents to permit subdivision, Orono approved the Chapman
Addition Plat by resolution attached hereto as Exhibit F. The
resolution contained the condition that only the Chapman Parcel
shall be riparian to Lake Minnetonka.
-2-
8. The basis of Orono' s approval of the subdivision of the
Original Parcel was that only the Chapman Parcel shall have
riparian rights and the Letendre Parcel shall have no riparian
rights.
9 . On March 25, 1983, the easement which is the subject of
this proceeding was granted by Kenneth 0. Chapman and Patricia E.
Chapman to provide lake access rights for the benefit of the
Letendre Parcel. The grant of this easement is invalid in that it
is directly in conflict with all representations made to Orono
that only the Chapman Parcel shall have riparian rights.
10 . On information and belief, Orono understands that the
purchase price of the Letendre Parcel to Petitioners was reduced
by approximately $40,000 because of the problems involving lake
access to the Letendre Parcel .
11 . Petitioners had actual or constructive notice that the
Letendre Parcel was to have no lake access across the Chapman
Parcel and Petitioners had actual or constructive notice that the
Letendre Parcel was to have no right to maintain a dock on Lake
Minnetonka.
WHEREFORE, Orono prays that the Petition be denied and that
this Court not issue an Order as set forth in the Order to Show
Cause.
-3-
Dated: October 21, 1986 .
POPHAM, HAItK, SCHNOBRICH, KAUFMAN & DOTY,
Ltd.
By
Thomas J. B4' riet, eg. No . y qty
Elizabeth A!` Thompson, Reg. No. 15250X
4344 IDS Cep, er 333-4800
Minneapolis, Minnesota 55402
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MINUTES OF A PLANNING COMMISSION MEETING HELD ON OCTOBER 10, 1978
Page 2
•
Mr. Day was present. The garage is already on the LOUISE DAY
premises and in the approximate area where it will 2314 Olive Avenue
be located. VARIANCE
(#425)
Frahm moved to approve the variance due to the
hardship of the lot layout. Motion seconded by
Wilson. Vote: Ayes (6) , Nays (0) . Motion passed
unanimously.
Mr. Stewart was present. Mabusth explained the DARRELL STEWART
request. This variance was previously approved 3185 North 'Shore Dr.
a year ago. It was noted that the new position VARIANCE
of the driveway would be a much safer condition. (#427)
The requirement of the previous application' s
approval that the two lots be combined has been
done. Alan Olson, City Planner, noted that only
one entrance should be allowed and that the turn
around should be on Mr. Stewart's property. He
also felt that the County would also limit the
number of exits when Mr. Stewart applied for the
permit for the curb cut.
Hassel moved to approve the variance due to the
hardship of the existing dangerous driveway
location as it is the only reasonable location
for the addition. Vote: Ayes (5) , Nays (0) ,
Abstained .(1) . Hannah abstained as Mr. Stewart
is his next-door neighbor.
Mr. Chapman and Mr. Moore were present. Major " KEN CHAPMAN
discussion was regarding the lot being divided 2695 Shadywood Road
with a front and rear lot instead of the side by SUBDIVISION
side as presented. The existing house will be Sketch Plan Review
moved. Only the front lot would have riparian (#428)
rights.
•
If the subdivision was approved, no variances for
construction would be approved.
1.. 71
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MINUTES OF A PLANNING COMMISSION MEETING HELD ON OCTOBER 10, 1978
Page 3
It was noted that Don Murphy, Hennepin County KEN CHAPMAN
Highway Department, after a preliminary review, 2695 Shadywood Road
advises that he would prefer a shared driveway SUBDIVISION
using the existing entrance. This will require Sketch Plan Review
a driveway easement through the western lot (#428) Cont.
to serve the east lot.
• Planning Commission indicated conceptual approval
of the lot division with a front and back lot
with only the front lot having riparian rights
and no construction variances would be granted.
WORK SESSION - Mr. and Mrs . Noble and their JOHN NOBLE
contractor, Mr. Alexander, were present. 1185 Ferndale
It was noted during lengthy discussion that CONDITIONAL USE
the wetlands had not been taken into considera- PERMIT & VARIANCES
tion of the lot area variance. It was felt that (#429)
when the wetlands were included the variance
would be approximately 70%. Staff will re-
estimate the dry buildable area and hardcover
calculations. The pond on the property is only
a part of a more extensive wetlands , therefore,
the reaction of the Conditional Use Permit was
not very favorable.
The applicant has requested holding tanks. Staff
will review the sewer situation in the area in
relation to this request. It was also noted that ' , p -
maybe the house was "too ambitious" for this lot .. t: '
The applicant questioned whether a neighboring ; +
division met the setbacks . Staff will review �`
the setbacks (McDonald division) , however, this
application is asking for several variances ,
some of high percentages .
•
Hammerel arrived. Wilson left. 7 : 20 P.M.
•
MINUTES OF A PLANNING COMMISSION MEETING HELD ON NOVEMBER 13, 1978
Page 5
Mr. Moore represented Mr. Chapman. As requested G/KEN CHAPMAN
by the Planning Commission, the drawings showed 2695 Shadywood Road
the horizontal division with only the front lot SUBDIVISION
having riparian rights and indicated the Flood (#428)
Plain and high water mark. Existing house and SKETCH PLAN REVIEW
garage would be moved. Planning Commission advised
Mr. Moore that because a lot area variance Is now
being granted (each lot is .95 acre) no variances
would be granted for construction of houses .
Planning Commission gave conceptual approval and
called for a Public Information Meeting to be held
December 11, 1978.
Mr. Ringer and Mr. Tomlinson were present. The JUDD RINGER
main discussion was regarding possibility of a 2240 Wayzata Blvd.
new light industrial zoning district. Planning SUBDIVISION/REZONIN
Commission indicated that they would favor this (#433)
' new zoning. Mr. Ringer was undecided, at this SKETCH PLAN REVIEW
time, as to the amount of land he would want to
have rezoned to this new zoning. The two houses
and accessory buildings would remain. The
landscaping would be undertaken by the University
of Minnesota as their winter project.
Mr. Herfurth was present. It was noted that the FRED HERFURTH
50' easement for the road had not been taken .into 225 North Ferndale
consideration and would have to be adjusted on SUBDIVISION, REZONII
the plan. Planning Commission requested a determin- CONDITIONAL USE PERI
ation of the sewer assessment procedure used. in VARIANCE
this area. Several members felt that Orono should (#434)
address the multiple dwelling issue. Herfurth
stated that he was requesting rezoning with a
definite plan not just asking for a rezoning
with no definite purpose.
;; :), "IF1
4410
MINUTES OF A PLANNING COMMISSION MEETING HELD ON AUGUST 13, 1979
PAGE 2
Hannah moved to table the application until the JOHN GUTHRIE
August 27, 1979 meeting when further documentation 325 Sixth Avenue No
of land area will be provided and with the understanding SUBDIVISION
that the flowage and conservation easement existing on Public Info . Meetin
Lot 2, Block 2, will remain in effect. Motion seconded (#499) Cont .
by Adams . Vote: Ayes (5) , Nays (0) . Motion passed
unanimously.
In discussion, the consensus of the Planning Commission
was that action would be taken at that meeting and the
application could go on to Council on-August 28, 1979 .
•
present.Chapman was He stated that if the division KEN CHAPMAN
were approved, the existing house would be removed; if 2695 Shadywood Road .
denied, the existing house would be renovated and SUBDIVISION
enlarged. Only the front lot will have riparian rights . (#428)
Two sewer stubs are present; however, the property has
only been assessed one sewer and one water unit. The
main concern with this application had been the division
of land into lots with substandard lot area . Ali
frarWilson moved to approve the subdivision recognizing
that the two lots are minimally substandard but taking
into account that a majority of the surrounding , +• .
neighborhood lots are substandard, contingent on the
property being assessed another sewer and water unit, ,
payment of a park dedication fee, and the existing
house must be removed prior to the issuance of any
building permit. Motion seconded by Jabbour.
Vote: Ayes (5) , Nays (0) . Motion passed unanimously.
Mr. Lindsay was present . All requirements have been JAMES LINDSAY
met. 2505 Kelly \venue
FINAL SUBDIVISION
Jabbour moved to approve the division in accordance (#448)
with the attached resolution (Page 2A & 2B) . Motion
seconded by McDonald. Vote: Ayes (4) , Nays (0) ,
Vacated Seat (1) Hannah - vacated his seat on this
application as he did not vote the last time it
appeared before the Commission as he was (and is)
involved in litigation on a similar matter and it
seemed consistent to refrain from voting this time.
•
MINUTES OF A PLANNING COMMISSION MEETING HELD ON AUGUST 13, 1979
PAGE 2
Hannah moved to table the application until the JOHN GUTHRIE
August 27, 1979 meeting when further documentation 325 Sixth Avenue No .
of land area will be provided and with the understanding SUBDIVISION
that the flowage and conservation easement existing on Public Info . Meeting
Lot 2, Block 2, will remain in effect. Motion seconded (#499) Coni. .
by Adams . Vote: Ayes (5) , Nays (0) . Motion passed
unanimously.
In discussion, the consensus of the Planning Commission
was that action would be taken at that meeting and the
application could go on to Council on August 28, 1979 .
Mr. Chapman was present . He stated that if the division KEN CHAPMAN
were approved, the existing house would be removed; if 2695 Shadywood Road
denied, the existing house would be renovated and SUBDIVISION
enlarged. Only the front lot will have riparian rights . (#428)
Two sewer stubs are present; however, the property has
only been assessed one sewer and one water unit. The
main concern with this application had been the division
of land into lots with substandard lot area .
Wilson moved to approve the subdivision recognizing
that the two lots are minimally substandard but taking
into account that a majority of the surrounding
neighborhood lots are substandard, contingent on the
property being assessed another sewer and water unit,
payment of a park dedication fee, and the existing
house must be removed prior to the issuance of any
building permit. Motion seconded by Jabbour.
Vote: Ayes (5) , Nays (0) . Motion passed unanimously.
•
Mr. Lindsay was present . All requirements have been JAMES LINDSAY
met. 2505 Kelly Avenue
FINAL SUBDIVISION
Jabbour moved to approve the division in accordance (#448)
with the attached resolution (Page 2A & 2B) . Motion
seconded by McDonald. Vote: Ayes (4) , Nays (0) ,
Vacated Seat (1) Hannah - vacated his seat on this
application as he did not vote the last time it
appeared before the Commission as he was (and is)
involved in litigation on a similar matter and it
seemed consistent to refrain from voting this time.
REGULAR MEETING OF THE ORONO COUNCIL, AUGUST 28 , 1979 Page 3
Mr. Alan Olson, City Planner, entered into the SUBDIVISION
record the request of Ken Chapman, 2695 Shadywood 2695 Shadywood Road
Road, for a subdivision, dated August 22 , 1979 , #}428
which states: Ken Chapman
Mr. Chapman, 2695 Shadywood Road, seeks preliminary
approval of a two-lot subdivision of 1. 90 acres
creating substandard lots in a one-acre minimum
zoning district. Each lot will consist of 0 . 95
acres requiring a variance of 0 . 10 sq. ft. or
5%. The existing access has been approved for a two
lot plat by the Hennepin County Highway Department.
The plat will be served by the existing driveway
that will require an access easement from the east
lot in favor of the west lot. Only the west lot
is to have riparian rights. All new structures
must meet setback requirements because no variances
will be allowed. The existing house on the propertyUA
'`
must be removed before a building permit is issued
for lakeside lot. Water and sewer service would
have to he approved for the newly created lot.
Brief History - I have enclosed the Planning Commission
Minutes covering the long "drawn out" review of this
subdivision and their recommendation of August 13 ,
• 1979 . The delays involved the applicant' s, absence
at _preliminary meetings, Planning Commission' s request
for applicant to acquire additional land from neighbor
to the south, Council' s decision on the Watson and
Williams area variance applications. At this point,
Mr. Chapman needs a decision by Council before he
proceeds with expensive remodeling and an addition
to the existing home. If he is allowed to plat,
a new home would be located closer to the lake
affording adequate setback from the division line.
Planning Commission approved plat based on the following
findings:
1. Degree of area variance is minimal - no other
variances required.
2. Surrounding neighborhood consists of substandard
lots - in consideration of area surveys of lot
for Watson application #462 .
3. Sewer and water available for newly created lot.
4 . No additional curb cuts off County Road 19 .
Conditions of approval
1. Payment of park dedication fee of $440 for newly
created lot.
2. Existing driveway to serve as access road and
curb cut to not exceed 22 ' , necessary deeding
of easement to accompany plat. (Continued)
• REGULAR MEETING OF THE ORONO COUNCIL, AUGUST 28 , 1979 Page 4
3. Existing house on lakeshore lot to be removed SUBDIVISION
before building permit is issued for new home. 2695 Shadywood Road
Council should consider a request for temporary (Continued)
occupancy of house until new one is available.
4 . West lot only, to have riparian rights .
5. No setback variances to be granted for construction.
Council Meeting - August 28, 1979
Hurr moved, Butler seconded, to appove the preliminary
subdivision request of Ken Chapman, 2695 Shadywood
Road, per the Planning Commission recommendations of
August 13, 1979 , subject to removing existing house
before building permit is issued. Motion, Ayes (4) -
Nays (0) .
Mrs. Holzer, her attorney Robert Mitchell, and CONDITIONAL USE PERMIT
Mr. Downey were present concerning the conditional 2677 Casco Point Road
use permit application of Alexander Holzer, 2677 Casco #436
Point Road. Alexander Holzer
Mr. Mitchell reviewed his letter of August 23 , 1979
explaining his revised plan with pictures and a diagram.
He stated that there would not be any underground
,pipes and that the installed ones would be removed.
Discussion included the ground elevations and drainage.
Mr. Mitchell stated that the elevation is eight inches
higher than Mr. Smerling' s yard. Mr. Downey stated
that no fill has been brought into the Holzer property
whereas, Mrs. Holzer stated that dirt from the foundation
was spread over the yard when it was installed.
Mayor Van Nest directed Mr. Mitchell to present to the
City Council a topo showing finished elevations and
drainage plan.
Mr. Gilbert, Mr. Smerling' s attorney, stated that
Mr. Mitchell has presented the same plan as previously
presented and does not feel that the Holzer' s have
complied with Council direction.
Massengale moved, Butler seconded, not to accept the
plan as presented in Mr. Mitchell' s letter of
August 23 , 1979. Motion, Ayes (4) - Nays (0) .
Mayor Van Nest moved, Massengale seconded? to direct
Mr. Mitchell to present a plan showing elevations
of Holzer' s house, yard and adjacent yards; that no
blocks be exposed at the front of Holzer house on
the south side and all around to a point where the
present wall intersects the 75 ' line on the Downey
side; that the wall on the Downey side, behind the
75 ' line, be stepped up to the height of the wall
between the two houses; that the wall he removed
two blocks from the front of Holzer house back to (Continued)
CITY of ORONO Control No . 428
Post Office Box 66•Crystal Bay, Minnesota 55323•Municipal Offices
Meeting Date. g-
Telephone 473-7357
Notice Date
TO:
Mr. Ken Chapman
2695 Shadywood Road Variance
Excelsior, Conditional Use Permit
Minnesota 55331 XX Subdivision, Preliminary
Subdivision, Final
Copies to: Gordon Coffin
-**************A A A***********A A A***************-A-**-A- ***********A-A-*** -A-kA A A -A-**-A-*-A
COUNCIL ACTION Vote: 4 For 0 Against Abstention
MOTION Council approved preliminary subdivision as per Planning Commission
recommendations. See attached memo for final subdivision application
requirements.
•
***A**A-k*****AAAAk************AAAA***********A AA*********AAA*kirk**AA*AAAAAA***; **
DEADLINE DATE August 24 , 1980
X for submittal of new information (application may be considered
formally withdrawn if information or explanation is not provided) .
for Work Permit for work to begin for work to be
application completed
WORK PERMITS ARE REQUIRED - contact Building Inspector before beginning
work.
VARIANCE APPROVAL is limited to the extent shown on approved plans .
Do not change plans .
CONDITIONAL USE APPROVAL expires upon change of ownership or use,
or on deadline date specified above.
XX PRELIMINARY SUBDIVISION APPROVAL - Applicant must provide all information
and/or improvements required for final approval. Contact Zoning
Administrator.
FINAL SUBDIVISION APPROVAL - Applicant must have drawings , resolution
and all other required documents recorded, with certification of such
recording returned to the City by deadline date.
Certified copies of official City Council Minutes may be obtained by
contacting the City Clerk. Allow at least three weeks from meeting date.
TO: Mr. Ken Chapman
FROM: Alan P. Olson, Village Planner
DATE: August 30 , 1979
SUBJECT: #428 Subdivision - Conditions of Preliminary Approval
PRELIMINARY APPROVAL CONDITIONS
1. Two (2) lot subdivision per August 19, 1978 sketch attached; 1
each lot approximately 41, 400 s . f.
2. South lot to be riparian to Lake Minnetonka.
3. North lot to be non-riparian with no lake access or dock rights .
4 . Access to both lots from County Road 19 to be on existing driveway,
with private easement for south lot through north lot.
pi -
5. Existing garage (on north lot) may remain, but lot line to be '
located to provide at least a 10 . 0 ' setback.
3
'6 . Existing house (on south lot) to be removed prior to construction
of new house. Options include :
a) removal before final plat approval
b) completion of a developer ' s agreement such that house will be
removed within one year of final plat approval
c) lot line relocation such that a 30 ' setback is provided to
existing house.
Applicant may choose the best alternative for his situation.
However, if the existing house is removed, a permit could be
issued for one new house (on either lot) before the plat is finaled.
7. New homes to meet all zoning code setback and hardcover requirements.
8. Payment of additional water and sewer assessments.
FINAL PLAT SUBMITTALS
1.✓ RECORD PLAT drawings in the form of two (2) mylar copies and one (1)
f,Z 79 copy reduced�to 1" = 200 ' .
Drawing to include:
a) lot lines located per preliminary survey.
b) show lagoon below elevation 929 . 4 as open water "Lake Minnetonka"
and dedicate to the public per St. Statute 505 . 01.
c) Dedication of "Drainage and Utility Easements" 10 ' wide along
perimeter property lines and 5 ' each side of internal property
line. Omit at lakeshore.
d) If a land remnant is included on the island, plat as an outlot.
August 30, 1979
Mr. Ken Chapman
2695 Shadywood Road
Subdivision
Page 2
FINAL PLAT SUBMITTALS (CONT. )
2 . Legal documents required (to be completed in duplicate) :
a) Evidence of access easement for driveway over north lot in
favor of south lot.
,,,,// b) If an island outlot is created, a Declaration of Covenants to
/"O be filed in the chain of title providing that this outlot will
always be owned in common with the south lakeshore lot and
will be reserved with an open space easement.
c) itle opinion addressed to the City. All persons indicated
therein as having property interest shall sign the plat and
all easements affected by such interest.
6f."' 3 . Fees to be paid: Total Due $1, 070 with subdivision
a) Legal and Engineer review costs - $50. 00
b) Park dedication fee per schedule - 1 new lot (ave. area . 95 acre)
$440. 00
c) Additional assessments due: „ ,,-40#
, i , D P-C`6
1 residential water unit - $580. 00
1 residential sewer connection - $225. 00 to be paid with building
permit.
'D 490 .1- S4c qzs3,6:
94o s7.o
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225” 225- / /
IZ5'S
1720
-I:4 Q
/-77777N1 i
f City of ORONO
r . r
RESOLUTION OF THE CITY COUNCIL
ir.T• ti;
.. x, ,moi //0.:Z
Lr.
: ''r.`, NO.
top F _ k11, A RESOLUTION APPROVING THE
'v -..,;: litY CHAPMAN ADDITION PLAT
WHEREAS, the City of Orono is a municipal corporation
organized and existing under the laws of the State of Minnesota; and
WHEREAS , the City Council of the City of Orono has adopted
subdivision regulations for the orderly, economic and safe development
of land within the City; and
WHEREAS , the City Council has considered the application for
a subdivision plat by Kenneth O. Chapman, the subdivider; and
WHEREAS , the subdivider has completed all requirement of the
platting regulations of the City, including:
1. Dedication on the plat of drainage and utility easements.
2. Payment to the City of a Park Dedication Fee in the
amount of $440. 00 for the one additional building site.
3. Payment to the City for all additional administrative,
engineering and legal costs incurred.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the
City of Orono hereby approves the Chapman Addition Plat, Hennepin County,
Minnesota, subject to the following conditions:
1. Lot 2, Block 1, Chapman Addition, riparian to Lake
Minnetonka.
2 . Lot 1 is to provide private access and utility easements
in favor of Lot 2.
3 . The aforesaid plat shall be filed with the Hennepin County
Recorder' s Office on or before July 15 , 1980 together with
a certified original copy of this Resolution.
The approval granted by this Resolution shall expire if the plat has not
been filed by the date specified above. In that event, it will be.
necessary to file a new application with the City of Orono for subdivision
review.
Dated this /5 day of J , 1980.
/47/
I ATTEST:
1 /44-7 ,14,,out
Walter R Benson, Clerk/Administrator
1
PAGE 1 OF 1
AFFIDAVIT OF SERVICE
STATE OF MINNESOTA )
ss . .
COUNTY OF HENNEPIN )
Elizabeth A. Thompson of the City of Minneapolis, County of
Hennepin, State of Minnesota, being duly sworn says that on the
21st day of October, 1986, she served the annexed Answer of City
of Orono on Bradley N. Beisel , Attorney for Petitioner , by mailing
to him a copy thereof, enclosed in an envelope, postage prepaid,
and by depositing same in the post office at Minneapolis,
Minnesota, directed to said attorney at his last known address at
1530 Pillsbury Center , Minneapolis, Minnesota 55402.
Elia�fbeth A. Thompson
Subscribed and sworn to before me ^r^^•NA+11AAA,Nn.,n„tt,,,, ., ,,, .
this 21st day of October , 1986 .
LLS �)cc;_ Y1 7
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i. Ar Ri r�it'ST _ .. SW* wrov R _ Q�. .
OY ` .. TAY —Hr.Tw ,.:..-.,moi
AGREEMENT, made this ?j'iav of March, 1983, between Kenneth 0.
Chapman and Patricia E. Chapman, husband and wife, of the County of
Hennepin, State of Minnesota, Parties of the First Part, and
Douglas J. Farley and Elaine C. Farley, husband and wife, of the County
of Hennepin, State of Minnesota, Parties of the Second Part. gg,
WHEREAS, Parties of the First Part represent that they are the pa[•f;.;;` r:
owners of that certain parcel of land located in Hennepin County, State ,, rr '-
sati ti ' ; S .
of Minnesota, legally described as follows- - y,••.•" `
q1 Lot 2, Block 1, Chapman Addition 1 r �ezf4.,.,.6
' .
WHEREAS, Parties of the Second Part represent that they are the
owners of that certain parcel of land located in Hennepin County, State
,..w-- --,..44. i",.,-
; s
of Minnesota legally described as follows: '<, ,t
r. f
,. ,yfl Lot 1, Block 1, Chapman Addition -;...;:?.I.P!.. s
WHEREAS, Parties of the Second Part desire to acquire from ,r 4^• ,:
Parties of the First Part, and the Parties of the First Part are will— yy- -_
ing to grant to the Parties of the Second Part, an easement for the ` �,..;
purpose of allowing Parties of the Second Part to have access to Lake Ae •
: :� _,
Minnetonka over the property of the Parties of the First Part as more ^;RY=-tet ,-
fully described hereinafter and to maintain a dock on Lake Minnetona; L+.
k ; 4qv, a ^l
• NOW, THEREFORE, it is mutually agreed, as follows: ^ice*
In consideration of the sum of One Dollar ($1.00), and other F `' l'.
good and valuable consideration, the receipt and sufficiency whereof is
hereby acknowledged, the Parties of the First Part hereby give and �
J
I
,
_
•
565
, t " ,,r, ., . of the Second Part , ,and to their heirs And
... , .. , AN An appurtenance to the premises owned by the Parties of the
'.Fran,! Part , the full and free right , in common with the Parties of the
First Part , and their heirs or assigns, at all times hereafter, to .V':;: -,,, --,'•
4
enter upon, walk upon, and pass over the following described property * ist �``
for the purpose of access to the shoreline of Lake Minn]tonka. * th' � =:
The easement created hereunder shall he over the following f,. ' J`7 ,.
described property located in the, County of Hennepin, State of + ie , Ai 4tY1":v•> �t
Minnesota: ..•.**'-, "'•_....``
< .vv0 The Southeasterly 15 feet of Lot 2, Block 1, Chapman as �. y
?�z %q Addition .
kf
L In addition, Parties of the Second Part, and their heirs andt
ass'•.',ns, shall have the right to maintain a dock for their exclusive .rte _ :. ....::
use at the part of this easement immediately adjacent to Lake
1 Minnetonka.
1
IN WITNESS WHEREOF, the parties hereto have set their hands
the day and year first written above
i Stats of Minnesota 1 as E / _'
�
i County of Hennepin ) `-
`me foregoing instrument was apknow- ne hChapman
ledged before me this 25th day of
,Naroh 1983. By: Kenneth O. Chapman , Al: f
�
:i Patricia E. Chapman, Husband & Wife •a c a / a••
, i Dougl U J. Farley 4 Elaine C. Farley,
t INEM
Husband L // , I , ILS
MAME 1 NNW Wife roug asp . a•!r y
WillimmiswomMom
NIONIMMOMMW
eindmh+.i.r.s r..it Mfg
a ne C. Farley
-s+r o State Deed Tax due hereon $4,10____
bf r , , daya, This instrument drafted by:
LOMMEN, NELSON, SULLIVAN & COLE, P.A. ,
�'� 120 TCF rs
• oar C c Minneapolis,
r Minnesota 55402
Telephone No. (612) 339-8131
V
JAN I61 i`
STATE OF MINNESOTA �J DISTRICT COURT
COUNTY OF HENNEPIN OURTH JUDICIAL DISTRICT
In the Matter of the Petition of
Robert T. Letendre, Sr . and
Theresa L. Wiebe,
MEMORANDUM OF CITY OF ORONO
in Relation to Certificate of IN OPPOSITION TO
Title No . 681809 issued for/and MOTION FOR SUMMARY JUDGMENT
in the County of Hennepin and
State of Minnesota and legally
described as follows :
Lot 1, Block 2 , Chapman Addition
INTRODUCTION
The issue in this case arises out of the City of Orono ' s
(City) objection to Letendre and Wiebe ' s (Petitioners) attempt to
add an invalid easement to the legal description of their
property.
In 1978 , Mr . Kenneth Chapman submitted an application to the
City to subdivide his lakeshore property into two lots . On October
10, 1978, the application was first reviewed by the Planning
Commission. The original subdivision plan brought forth by Mr .
Chapman divided his property vertically, creating two side-by-side
lots , each with approximately 117 feet of lakeshore . The proposed
side-by-side lots did not meet the City' s zoning code regulations
which required 140 foot width per lot . Therefore, the Planning
Commission suggested to Mr . Chapman that he change the
configuration of the subdivision so as to divide the property
horizontally and thereby create one lakeshore lot and one interior
lot .
At the conclusion of the review, the Planning Commission gave
conceptual approval to the proposed plat creating a lakeshore and
interior lot with the condition that only the lakeshore lot would
have riparian rights . See Exhibit A.
August 13 , 1979 , Mr . Chapman appeared again before the
Planning Commission with a revised plan, horizontally dividing his
property into two lots . Upon Mr . Chapman ' s agreement that only the
lakeshore lot would have riparian rights , the Planning Commission
forwarded its recommendation for approval to the City Council . See
Exhibit B .
On August 28th, 1979 , the City Council reviewed the Chapman ' s
Land Use Application and voted to approve the subdivision with the
condition, inter alia , that only the lakeshore lot was to have
riparian rights . See Exhibit C.
Mr . Allen Olson, then City Planner , sent a memorandum to Mr .
Chapman on the following day, indicating the City Council ' s
preliminary approval and setting forth the conditions to be met .
Included in the list of conditions were the conditions that only
the lakeshore lot could be riparian and that the interior lot was
to be non-riparian with no lake access or dock rights . See
Exhibit D. The interior lot is the lot currently owned by the
Petitioners .
Finally, on January 15 , 1980 , Resolution No . 1102 was passed
by the City Council approving the Chapman Addition Plat creating
Lot 1 and 2 , Block 1, Chapman Addition. The resolution set forth
the condition that only the lakeshore lot was to have riparian
rights . See Exhibit E.
-2-
In, or about March of 1983 , Mr . Chapman sold his interior lot
(Lot 1, Block 1, Chapman Addition now currently owned by Letendre)
to Douglas and Elaine Farley for $176 , 000 . 00 . See Exhibit F. On
March 25 , 1983 , the parties entered into the Agreement in violation
of the plat approval given by the City, in which Chapman gave the
owner of the interior lot an easement over the lakeshore lot (Lot
2 , Block 1) for the purpose of access to Lake Minnetonka and to
maintain a dock. See Exhibit G .
Eight months after the purchase of the lot from Chapman, the
Farleys sold their lot to E. Lowell and Lois Arneson for
$184 , 900 . 00 . See Exhibit H. The sale price represented a 5%
increase in approximately seven months .
In the spring of 1986 , the interior lot owned by Arneson was
sold to the Petitioners , Robert Letendre, Sr . and Theresa Wiebe .
The Petitioners paid $130 , 000 . 00 for the lot and house . See
Exhibit I . The purchase price paid by the Petitioners represents a
$54 , 900 . 00 decrease in price from the $184 , 900 . 00 paid by the
Arnesons . In other words , the Petitioners purchased the interior
lot at a price 30% below the price it sold for two and one--half
years prior to their purchase.
In the months preceding the Petitioners ' purchase of the
interior lot , the City staff received several phone calls
requesting information about the easement and docking rights
associated with the interior lot . The Building and Zoning
Administrator did not write down the name of the individuals
requesting information, but remembers that the calls were real
estate agents for the sellers and buyers , as well as interested
-3-
buyers of the property. In response to every request for
information, the City Zoning Administrator stated that the interior
lot did not have any riparian rights and that any agreement
creating such rights is invalid. The Building and Zoning
Administrator invited the real estate agents and potential
purchasers to review the City files pertaining to the Chapman plat
in order to verify the accuracy of her statements .
ARGUMENT
The Petitioner ' s motion for summary judgment should be denied
as a genuine issue as to material fact is present in this case.
Minn. R. Civ. P. 56 . 03 . The non-moving party has the benefit of
having the evidence viewed by the Court in a light which is most
favorable to him and is entitled to have all doubt and factual
inferences resolved against the moving party. Home Mutual
Insurance Co . v . Snyder 356 N.W.2d 780 (Minn. App. 1984 ) .
Chapter 507 of Minnesota Statutes , the "Conveyancing and
Recording Act" , sets forth the basic premise that unrecorded
interests in property are void as against any subsequent purchaser
in good faith and for valuable consideration of the same real
estate, whose conveyance is first duly recorded. Minnesota
Statutes §507 .34 (1985) .
A bona fide purchaser is one who gives consideration in good
faith without actual, implied or constructive notice of
inconsistent outstanding rights of others. Anderson v. Graham Inv .
Co . , 263 N.W.2d 382 (Minn. 1978) . An individual who has either
-4-
actual, implied or constructive notice of inconsistent outstanding
rights of others is not entitled to the protection of the Recording
Act. Ritchie v. Jennings , 233 N.W.2d 20, 21 (Minn. 1930) .
In the instant case the Petitioners were not bona fide, good
faith purchasers of the interior lot and therefore should not
obtain the protections of the Recording Act . In their affidavits ,
Petitioners openly admit that at the time of the purchase, the
docking rights , as set forth in the Agreement , were in question.
The Agreement specifically grants the owners of the interior lot a
right to an easement to maintain a dock. If the docking rights
were in question, the issue of the validity of the easement was
necessarily raised. In fact , the Petitioners stated in their
respective affidavits that they were informed that the dock which
came with their house may not conform with the City' s ordinances .
Such statements clearly demonstrate that Petitioners knew that the
validity of the agreement recorded and memorialized on their
Torrens Certificate was in question. The question of the
Agreement ' s validity occurred prior the Petitioners purchase of the
property and coincided with the phone calls to the City Building
and Zoning Administrator regarding the issue of the easement and
docking rights associated with the interior lot . The City Building
and Zoning Administrator consistently told the callers who were
directly involved the the sale and purchase of the property that
the agreement creating the easement was invalid.
Even if the Petitioners ' assertion that the only riparian
right in question was the right to maintain a dock is correct, the
Petitioners were still not bona fide, good faith purchasers of the
-5-
property. Minnesota case law clearly states that even if a
purchaser, paying valuable consideration, did not have actual
it
notice of a prior unrecorded interest , he would not be a bona fide
purchaser if he had knowledge of fact that ought to have put him on
an inquiry that would have led to a knowledge of a conflicting
interest . Anderson v . Graham Inv . Co . , 263 N.W. 2d 382 (Minn.
1978) . Given the fact that the Agreement gave the owners of the
interior lot an easement to have access to the lake and to maintain
a dock, and that the Petitioners admit that they had been informed
that the validity of the docking right may be in violation of the
City ordinances , the Petitioners had knowledge of facts that should
have led to proper inquiry of the City. Such inquiry would have
resolved the issues at hand, and provided the Petitioners with
actual knowledge that the Agreement creating the easement was
invalid .
Finally, the fact that the Petitioners purchased the interior
lot for $130 , 000 . 00 in 1986 -- $54 , 900 . 00 less than the lot sold
for in 1983 -- demonstrates that the Petitioners knew that the
interior lot did not have the riparian rights asserted at this
time . Furthermore, neighboring pieces of lakeshore property which
are limited in size, but which include the right to maintain a dock
have sold recently in the range of $16 , 000 to $17, 000 . See Exhibit
J and K. It is doubtful that the right to use a dock as is at
issue here, is of equal value to the right to own property and to
own a dock on the property. Therefore, the $54 , 900 . 00 (30% of the
previous selling price) drop in price cannot be solely attributable
to the questionable right to maintain a dock on lakeshore property
1 '.
-6- I
owned by another owner . Lakeshore lot values have consistently
been higher than interior lot values because of the riparian rights
attached to the lots . Such a market drop in the selling price can
only be attributed to the knowledge that the interior lot did not,
could not, enjoy the riparian rights associated with the lakeshore
property.
In closing, the City asks this court to deny Petitioners '
summary judgment motion on the grounds that the Petitioners knew
that the Agreement creating the easement was invalid. It would be
a travesty to allow the Petitioners to use the knowledge of the
invalidity of the easements to their benefit when negotiating the
purchase price of their home and then subsequently hide behind the
Recording Act to assert the validity of the easement . Arguably,
the petition to add the easement to the legal description was
brought solely to validate an invalid easement . The expenses
incurred by the Petitioners pursuing this matter would not
otherwise be necessary as the easement has already been
memorialized on the Torrens Certificate .
Summary Judgment is a "blunt instrument" and should be
employed only where it is perfectly clear that no issue of fact is
involved. Home Mutual Insurance Co . v . Snyder, 356 N.W. 2d 780
(Minn. App. 1984) . The material issue of the Petitioners '
knowledge is before this Court . The evidence presented by the City
-7-
clearly demonstrates that a genuine issue of fact exists and
therefore the City prays that the motion for summary judgment be
denied.
DATED: January 16 , 1987 .
Respectfully submitted,
POPHAM, HAIK, SCHNOBRICH, KAUFMAN & DOTY,
LTD.
By -40KA-5
Kathleen A. Blatz, Reg . No . 157648
4344 IDS Center 333-4800
Minneapolis , Minnesota 55402
Attorneys for City of Orono
-8-
I. 0
MINUTES OF A PLANNING COMMISSION MEETING HELD ON OCTOBER 10, 19Page 78
•
Mr. Day was present. The garage is already on the LOUISE DAY
premises and in the approximate area where it will . 2314
4Olive Avenue
be located. VARIACE
(#425)
Frahm moved to approve the variance due to the •
hardship of the lot layout. Motion seconded by
Wilson. Vote: Ayes (6) , Nays (0) . Motion passed
unanimously.
•
Mr. Stewart was present. Mabusth explained the DARRELL STEWART
request. This variance was previously approved 3185 North -Shore Dr.
a year ago. It was noted that the new position VA(ARIA]CE
of the driveway would be a much safer condition.
The requirement of the previous application's
approval that the two lots be combined has been
done. Alan Olson, City Planner, noted that only
one entrance should be allowed and that the turn
around should be on Mr. Stewart's property. He
also felt that the County would also limit the
number of exits when Mr. Stewart applied for the
permit for the curb cut.
Hassel moved to approve the variance due to the
hardship of the existing dangerous driveway
location as it is the only reasonable location
for the addition. Vote: Ayes (5), Nays (0) ,
Abstained •(1) . Hannah abstained as Mr. Stewart
is his next-door neighbor.
Mr. Chapman and Mr. Moore were present. Major
KEN CHAPMAN
discussion was regarding the lot being divided 2695 Shadywood Road
with a front and rear lot instead of the side by SUBDIVISION
side as presented. The existing house will be Sketch Plan Review
moved. - Only the front lot would have riparian (#428)
rights.
If the subdivision was approved, no variances- for
construction would be approved.
Atit
•
0
EXHIBIT A
8
MINUTES OF A PLANNING COMMISSION MEETING HELD ON OCTOBER 10, 1978
. Page
It was noted that Don Murphy, Hennepin County KEN CHAPMAN
Highway Department, after a Pareshf.mred nary w, 2695 SUBDIVISION Road
advises that he would prefer driveway
using the existing entrance. This will require Sketch Plan Review
a driveway easement through the western lot (0428) Cont.
to serve the east lot.
I Planning Commission indicated conceptual approval
of the lot division
with a front and back lot
with only the front lot having riparian rights
and no construction variances would be granted.
WORK SESSION - Mr. and Mrs. Noble and their - JOHN NOBLE
contractor, Mr. Alexander, were present. 1185 Ferndale
It was noted during lengthy discussion that CONDITIONAL USE
the wetlands had not been taken into considers- PERMIT & VARIANCES
tion of the lot area variance. It was felt that (0429)
when the wetlands were included the variance
would be approximately 70%. Staff will re-
estimate the dry buildable area and hardcover
calculations. The pond on the property is only
a part of a more extensive wetlands, therefore, -
'the reaction of the Conditional Use Permit was
not very favorable. .
The 'applicant has requested holding tanks. Staff
will review the sewer situation in the area in
relation to this request. It was also noted that Y 1 ' . -_;'
maybe the house was "too ambitious" for this lot "� ' ,rte :w
The applicant questioned whether a neighboring _ .
division met the setbacks. Staff will review
.
the setbacks (McDonald division) , however, this
application is asking for several variances,
Some of high percentages.
7;20 P.M.
Hanmmerel arrived. Wilson left. -
MINUTES OF A PLANNING COMMISSION MEETING HELD ON AUGUST 13, 1979
PAGE 2
Hannah moved to table the application until the
• JOHN GUTHRZE
August 27, 1979 meeting when further documentation 325 Sixth Avenue Nc
of land area will be provided and with the understanding SUBDIVISION
that the flowage and conservinieffectemMotionent lseconsting ded (#499) Conon Public t. Meet ii
Lot 2, Block 2, will remain s (0) . Motion passed
by Adams . Vote: Ayes (5) , Nays
unanimously.
In discussion, the consensus of the Planning Commission
was that action would o etoaCo�cilat tontAugustng 288nd 1979e
application could go
•
Mr. Chapman was present. He stated that if the division KEN CHAPMAN
were approved, the existing house wouldetdobredmoved; if 2_ SUBDIVISION95Shdywood Roar
denied, the existing house would be
enlarged. Only the front lot
have
theriparian
property basrights .
(#428)
Two sewer stubs are present; however,
only been assessed one sewer and one water unit. The
main concern with this application
had beenthe division
of land into lots with substandard ,
40 '
Wilson moved to approve the subdivision recognizing
that the two lots are minimally substandard but taking
into account that a majority of the surrounding
neighborhood lots are substandard, contingent on the ;mss
property being
assessed another sewer and water unit, -
payment of a park dedication fee, and the existing
house must be removed prior to the issuance of any
building permit. Motion seconded by Jabbour.
Vote: Ayes (5) , Nays (0) . Motion passed unanimously.
Mr. Lindsay was present. All requirements have been JAMES2LINDSAY
KellyAAvenue
met. FINAL SUBDIVISION
Jabbour moved to approve the division in accordance (#448)
with the attached resolution (Page 2A & 2B) . Motion
seconded by McDonald. Vote: Ayes (4) , Nays (0) ,
Vacated Seat (1) Hannah - vacated his seat on this
application as he did not vote the last time it
appeared before the Commission as he was (and is)
involved in litigation refrain similar
voting thistime.
ior� isramatter
and
it
seemed consistent
• EXHIBIT B '
MINUTES OF A PLANNING COMMISSION MEETING HELD ON AUGUST 13, 1979
9 79
PAHannah moved to table the application until the
JOHN GUTHRIE
August 27, 1979 meeting when further documentation 325 Sixth Avenue No.
of land area will be provided and with the understanding
P BDIcISION. Meeting
that the flowage and conservation easement existing on
Lot 2, Block 2, will remain in effect. tion ion seconded
(#499) Con .
by Adams . Vote: Ayes (5) , Nays (0) . passed
unanimously.
In discussion, the consensus of the Planning Commission
was that action would be taken at that meeting and the
application could go on to Council on August 28, 1979 .
Mr. Chapman was present. He stated that if the division KEN CHAPMAN
were approved, the existing house would be removed; if 22695Shadywood Road
denied, the existing hon� elwo�uwilld ehaverenovated
riparianand
rights. (#428) '
enlarged. Only the fro
Two sewer stubs are present; however, the property has
only been assessed one sewer and one water unit. The
,:min concern with this application had been the division
of land into lots with substandard lot area.
Wilson moved to approve the subdivision recognizing
that the two lots are minimally substandard but taking
into account that a majority of the surrounding
neighborhood lots are substandard, contingent on the
property being assessed another sewer and water unit,
payment of a park dedication fee, and the existing
_souse must be removed prior to the issuance of any
building permit. Motion seconded by Jabbour.
Vote: Ayes (5) , Nays (0) . Motion passed unanimously.
LINDSAY
Mr. Lindsay was present. All requirements have been JAMES505 Kelly Avenue
met. 2FINAL SUBDIVISION
Jabbour moved to approve the division in accordance ( 448)
with the attached resolution (Page 2A & NBa) . tion
seconded by McDonald. Vote: Ayes (4) , y ( ) ,
Vacated Seat (1) Hannah - vacated his seat on this
application as he did not vote the last time it
appeared before the Commission as he was (and is)
involved in litigation on a similar matter and it
seemed consistent to refrain from voting this time.
REGULAR MEETING OF Th.. ORONO COUNCIL, AUGUST 28, 1979 / Page 3
Mr. Alan Olson, City Planner, entered into the SUBDIVISION
record
record the request of Ken Chapman, 2695 Shadywood 2695 Shadywood Road
Road, for a subdivision, dated August 22, 1979, #428
which states: Ken Chapman
Mr. Chapman, 2695 Shadywood Road, seeks preliminary
approval of a two-lot subdivision of 1.90 acres
creating substandard lots in a one-acre minimum
zoning district. Each lot will consist of 0.95
acres requiring a variance of 0.10 sq. ft. or
5%. The existing access has been approved for a two
lot plat by the Hennepin County Highway Department.
The plat will be served by the existing driveway
that will require an access easement from the east
lot in favor of the west lot. Only the west lot
is to have riparian rights. All new structures
must meet setback requirements because no variances
will be allowed. The existing house on the property
must be removed before a building permit is issued
for lakeside lot. Water and sewer service would
have to be approved for the newly created lot.
Brief History - I have enclosed the Planning Commission
Minutes covering the long "drawn out" review of this
subdivision and their recommendation of August 13,
1979. The delays involved the applicant's absence ,
at preliminary meetings, Planning Commission's request
for applicant to acquire additional land from neighbor
to the south, Council' s decision on the Watson and
Williams area variance applications. At this point,
Mr. Chapman needs a decision by Council before he
proceeds with expensive remodeling and an addition
to the existing home. If he is allowed to plat,
a new home would be located closer to the lake
affording adequate setback from the division line.
Planning Commission approved plat based on the following
findings:
1. Degree of area variance is minimal - no other
variances required.
2. Surrounding neighborhood consists of substandard
lots - in consideration of area surveys of lot
for Watson application #462.
3. Sewer and water available for newly created lot.
4. No additional curb cuts off County Road 19.
Conditions of approval
1. Payment of park dedication fee of $440 for newly
created lot.
2. Existing driveway to serve as access road and
curb cut to not exceed 22' , necessary deeding (Continued)
of easement to accompany plat.
EXHIBIT C
• l
'
REGULAR MEETING OF TH,. RONO COUNCIL, AUGUST 28, -1979 Page 4
3. Existing house on lakeshore lot to be removed SUBDIVISION
ONood Road
before building permit is issued for new home.
Council should consider a request for temporary (Continued)
occupancy of house until new one is available.
4.' West lot only, to have riparian rights. ✓
5. No setback variances to be granted for construction.
Council Meeting - August 28, 1979
Hurr moved, Butler seconded, to appgove the preliminary
subdivision request of Ken Chapman, 2695 Shadywood
Road, per the Planning Commission recommendations of '✓
August 13, 1979, subject to removing existing house
before building permit is issued. Motion, Ayes (4) -
Nays (0) .
USE PERMIT
Mrs. Holzer, her attorney Robert Mitchell, and CONDITIONALT Casco PointUPERMIT
Mr. Downey were present concerning the conditional 2672676
use permit application of Alexander Holzer, 2677 Casco Alexander Holzer
Point Road.
Mr. Mitchell reviewed his letter of August 23, 1979
explaining his revised plan with pictures and a diagram.
He stated that there would not be any underground
pipes and that the installed ones would be removed.
Discussion included the ground elevations and drainage.
Mr. Mitchell stated that the elevation is eight inches
higher than Mr. Smerling's yard. Mr. Downey stated
that no fill has been brought into the Holzer property
whereas, Mrs. Holzer stated that dirt from the foundation
was spread over the yard when it was installed.
Mayor Van Nest directed Mr. Mitchell to present to the
City Council a topo showing finished elevations and
drainage plan.
•
•
Mr. Gilbert, Mr. Smerling's attorney, stated that
Mr. Mitchell has presented the same plan as previously
presented and does not feel that the Holzer's have
complied with Council direction.
Massengale moved, Butler seconded, not to accept the
plan as presented in Mr. Mitchell' s letter of
August 23, 1979. Motion, Ayes (4) - Nays (0) .
Mayor Van Nest moved, Massengale secondedi to direct
Mr. Mitchell to present a plan showing elevations
of Holzer's house, yard and adjacent yards; that no
blocks be exposed at the front of Holzer house on
the south side and all around to a point where the
present wall intersects the 75' line on the Downey
•
side; that the wall on the Downey, side, behind the
75' line, be stepped up to .the height of the wall
between the two houses; that the wall he removed
two blocks from ,the front of Holzer house hack to (Continued)
•
CITY of C RON-0 Ct��itrol No. 428
ffice Box 66•Crystal Bay,Minnesota 55323•Municipal Offices
Meeting Date. 57-o14--7 9
Telephone 473-7357 Notice Date
Mr. Ken Chapman Variance
2695 Shadywood Road Conditional Use Permit
Minnesotaesota55331
Excelsior, XX Subdivision, Preliminary
Subdivision, Final
)ies to: Gordon Coffin
•
JNCIL ACTION Vote: 4 For 0 Against Abstention
"ION Council approved preliminary subdivision as per Planning Commission
recommendations. See attached memo for final subdivision application
requirements.
DEADLINE DATE August 24 , 1980
X for submittal of new information (application may be considered
formally withdrawn if information or explanation is not provided) .
_ for Work Permit for work to begin for work to be
application completed
_ WORK PERMITS ARE REQUIRED - contact Building Inspector before beginning
work.
VARIANCE APPROVAL is limited to the extent shown on approved plans .
Do not change plans.
_ CONDITIONAL USE APPROVAL expires upon change of ownership or use,
or on deadline date specified above.
PRELIMINARY SUBDIVISION APPROVAL - Applicant must provide all information
and/or improvements required for final approval. Contact Zoning
Administrator.
_ FINAL SUBDIVISION APPROVAL - Applicant must have drawings, resolut'on
and all other required documents recorded, with certification of such
recording returned to t::e City by deadline date.
Certified copies of official City Council Minutes may be obtained by
contacting the City Clerk. Allow ; t least three weeks from meeting date.
.
TO: Mr. Ken Chapman
FROM: Alan P. Olson, Village Planner
DATE: August 30, 1979
SUBJECT: #428 Subdivision - Conditions of Preliminary Approval
PRELIMINARY APPROVAL CONDITIONS
1. Two (2) lot subdivision per August 19, 1978 sketch attached;.
each lot approximately 41,400 s.f.
2. South lot to be riparian to Lake Minnetonka.
a. ..forth lot to be non-riparian with no rake access -or dock rights.
4. Access to both lots from County Road 19 to be on existing driveway,
with private easement for south lot throughnorth lot.
.
5. Existing garage (on north lot) may remain, but lot line to be
located to provide at least a 10. 0' setback.
6. Existing house (on south lot) to be removed prior to construction
of new house. Options include:
a) removal before final plat approval
b) completion of a developer's agreement such that house will be
removed within one year of final plat approval
c) lot line relocation such that a 30' setback is provided to
existing house.
Applicant may choose the best rlternative for his situation.
However, if the existing house is removed, a permit could be
issued for one new house . (on either lot) before the plat is finaled.
7. New homes to meet all zoning code setback and hardcover requirements.
8. Payment of additional water and sewer assessments.
FINAL PLAT SUBMITTALS
1.✓ RECORD PLAT drawings in the form of two (2) myl r copies and one (1)
copy reduced�to 1" = 200' .
/-2,______/y ✓
Drawing to include:
a) lot lines located per preliminary survey.
b) show lagoon below elevation 929.4 as open water "Lake.Minnetonka"
and dedicate to the public per St. Statute 505. 01.
c) Dedication of "Drainage and Utility Easements" 10' wide along
perimeter property lines and 5' each side of internal property
line. Omit at lakeshore.
d) If a land remnant is included on the island, plat as an outlot.
EXHIBIT D
August 30 , 1979
Mr. Ken Chapman
2695 Shadywood Road
Subdivision
Page 2
FINAL PLAT SUBMITTALS (CONT. )
2. Legal documents required (to be completed in duplicate) :
a) Evidence of access easement for driveway over north lot in
favor of south lot.
b) If an island outlot is created, a Declaration of Covenants to
/eo be filed in the chain of title providing that this outlot will
always be owned in common with the south lakeshore lot and
will be reserved with an open space easement.
4111Pitle opinion addressed to the City. All persons indicated
therein as having property interest shall sign the plat and
all easements affected by such interest.
ji3. Fees to be paid: Total Due $1,070 with subdivision
a) Legal and Engineer review costs - $50. 00
b) Park dedication fee per schedule - 1 new lot (ave. area .95 acre)
$440. 00 �s�6
c) Additional assessments due: Ti40,44 11A °
1 residential water unit - $580.00
1 residential sewer connection - $225. 00 to be paid with building
permit.
0 490 - SAGf424- To
225" Zz5--
IS
7' 1720
•
,;A_.�; City of ORONO
•
Y :? s �.. RESOLUTION OF THE CITY COUNCIL
,,�" • NO. //�-Z
A RESOLUTION APPROVING THE
�r>:: CHAPMAN ADDITION PLAT
WHEREAS, the City of Orono is a municipal corporation
organized and existing under the laws of the State of Minnesota; and
WHEREAS, the City Council of the City of Orono has adopted
zubdivision regulations for the orderly, economic and safe development
of land within the City; and
WHEREAS, the City Council has considered the application for
a subdivision plat by Kenneth O. Chapman, the subdivider; and
WHEREAS, the subdivider has completed all requirement of the
platting regulations of the City, including:
1. Dedication on the plat of drainage and utility easements.
2. Payment to the City of a Park Dedication Fee in the
amount of $440. 00 for the one additional building site.
3. Payment to the City for all additional administrative,
engineering and legal costs incurred.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the
City of Orono hereby approves the Chapman Addition Plat, Hennepin County,
iinnesota, subject to the following conditions:
1. Lot 2, Block 1, Chapman Addition, riparian to Lake
Minnetonka.
2. Lot 1 is to provide private access and utility easements
in favor of Lot 2.
3. The aforesaid plat shall be filed with the Hennepin County
Recorder's Office on or before July 15, 1980 together with
a certified original copy of this Resolution.
The approval granted by this Resolution shall expire if the plat has not
been filed by the date specified above. In that event, it will be'
necessary to file a new application with the City of Orono for subdivision
review.
Dated this /.� day of J , 1980.
_01.1"2ee.
ATTEST: �L A(
�
Zi-ha ".11°‘
Walter R Benson, Clerk/Administrator
- PAGE 1 OF 1
EXHIBIT E
CITY ASSESSORS PROPERTY DATA RECORD
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Chapman aod Patricia E. Chatoon. husband sod wife. of the County of ;•;11!::•-.41,1"1
-'• ISennepin. State of Mianesota. Parties of the First Part. aid • -:-1. •i-,-.4 •
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Douala. .7. Farley snd Elaine C. Parley, husband end wife. of the County ..hi.. .-4.• '-4' .:
...::•,-;.;-......: • .!4.,;-- .- .-... .
of liossepla. State of Plinnesota. Parties of the Second Part.
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of iftenersta legally described as follows: .' ..-•`. ...V•74...s144# -
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The easement created hereunderAontw�d•r �,�,� � r„T,r�-';t
"-. described property located in the County of tlasanptw. State of 1 .1 i`:" ! `E
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CITY ASSESSORS SALES DATA SHEET
84-12-87 ORONO SALES P..GE
SALE PROPERTY
MLNIC: 38 ORONO
SEC: 21
•
00: 24
SUFFIX: 55
.PURCHASER AND LEGAL DESCRIPTION YEAR BUILT & TYPE OF
STREET ADDRESS
ARNESON LOIS & E LOWELL 21 117 23 24 55 - 0
2693 SHADYWOOD ROAD LIB1 CHAPMAN ADDITION
SALE PRICE: $ 184980 DATE: OCT. 1984 FIN.:
LAND AREA: • 050 F7 0.00ACRES DEED TYPE: OTHER FIN.
LAKESHORE? LAKE NAME:
GROUND FLOOR: 8 V. BSM'T FIN: 8.00 $FIREPLACES: 8 NO CENTRAL AIR
2ND & 3RD FL.: 0 BATHS: $0FULL $0-3/4 $8-1/2 0
GBA: 8 BEDROOMS-MAIN: 8 OTHER BRS: 8 GARAGE: 0
W.O.(LIN.FT.): 0 CONVENTS
T0TALSFOR55
TOTALSFOR24
TOTALSFOR21
•
•
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PHOTO OF SUBJECT
•
• EXHIBIT H
' • 4.41t5;W' • 1
CITY ASSESSORS SALES - -el 61
DATA SHEET � ;Kil Hiiif;s�;:1E��;" :pr/, !:
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RESIDENTIAL SALES DATA
ADDRESS 2693 Shadywood Rd
PID # 21 117 23 24 55
CITY OF ORONO
LAKE NAME
PROPERTY DESCRIPTION MARKET DATA
LAND:
Land Area 43995.6 Sale Amount . .$ 130000
Topography
Shoreline
Sale Date 5 86
Eff, Front Footage 0
BUILDING:
Year Built 0 Effective $/FF 0
Story Height 8
Ground Floor Area 0 Seller Arneson,lois & Lowel
Gross Bldg Area 0 Buyer Letendre,r. & Wiebe,
Garage Sq. Ft . 0
Water=l Sewer=3 Gas=4 0
EXTRAS:
117700
Fireplace 8 Porch GP=1 SP=2 0
Deck Sq. Ft 0
Baths: (full ) 8 (3/4) 8 (1/2) 0
Finished Basement 8
Ce:itral A. C.= 1 0
Lineal Ft. Walkout 0
Comments:
Information Source: File
Submited By: City Assessor
Date: 86-08-07
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EXHIBIT K
J
C•
JAN 6 iggDISTRICT COURT
STATE OF MINNESOTA 12)
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
In the Matter of the Petition of
Robert T. Letendre, Sr. and
Theresa L. Wiebe,
AFFIDAVIT OF JEANNE A.
in Relation to Certificate of MABUSTH
Title No. 681809 issued for/and
in the County of Hennepin and
State of Minnesota and legally
described as follows :
Lot 1, Block 2, Chapman Addition
Jeanne A. Mabusth, having been first duly sworn on oath
states and deposes as follows :
1. That I am the Building and Zoning Administrator for the
City of Orono ( "City" ) and have served in this capacity since
October, 1983.
2. That prior to becoming the Building and Zoning
Administrator I worked for the City for five years as the City
Zoning Administrator.
3. That since January 1, 1975, the City has not allowed
the creation of new lakeshore lots that did not meet the required
lineal width standards at lakeshore.
4. That the Chapman' s subdivision application (Zoning File
No. 428) was assigned to me in October 1978.
5 . That on October 10, 1978, Kenneth Chapman, the
subdivision applicant, and David Moore, the applicant 's real
estate agent, presented a sketch plan of a subdivision before the
Orono Planning Commission that would have divided Mr. Chapman ' s
property along a vertical subdivision line . Each proposed lot was
designated with approximately 117 lineal feet of shoreline. The
Planning Commission recommened against the proposal because each
lot did not meet the required width standard of 140 feet of
shoreline per lot. The Planning Commission advised the applicant
and his real estate agent to redesignate the division line so as
to divide the property horizontally, thus creating an interior lot
and a lakeshore lot . The Planning Commission then indicated
conceptual approval to the applicant if such a change was made
with only the lakeshore lot having riparian rights. See Exhibit A.
6. That on August 13, 1979 the horizontal division
received a recommendation of approval by the Planning Commission.
The recommendation forwarded to the City Council included a
condition that only the lakeshore lot was to have riparian
rights. See Exhibit B.
7. That on August 28, 1979, the Orono Council accepted the
Planning '-ommission' s recommendation and formally granted
preliminary approval of the two lot plat subject to the condition
that only the lot that abutted the lakeshore was to have riparian
rights. See Exhibit C.
8. That on August 30, 1979, the Orono staff drafted a
memorandum entitled Conditions of Preliminary Approval ; a copy of
which was sent to both Mr. Chapman and Mr. Moore. In that memo,
two of the conditions specifically advised that the lakeshore lot
was to be riparian to Lake Minnetonka and that the interior lot
was non-riparian with no lake access or dock rights . See
Exhibit D.
-2-
•
approved
That on January 15, 1980, the Council the
final plat of Chapman Addition per Resolution 1102 . That
resolution advised, in the conditions of approval section, that
Lot 2, Block 1, Chapman Addition was riparian to Lake Minnetonka .
See Exhibit E.
10. That since approximately 1985, I have received phone
calls questioning the existence of riparian rights for an interior
lot. The phones calls that I received were made by persons who
identified themselves as being directly involved in the sale and
purchase of the interior lot, including real estate agents for
both the seller and buyer as well as interested buyers . I
consistently advised the callers that the Chapman Addition was a
recent plat approved per standards for lakeshore development and
noted that according to the Council ' s Resolution, only the
lakeshore lot was to have riparian rights . I also advised that
the City would not grant a building permit to the owners of the
interior lot for the construction of a dock on the lakeshore lot,
owned by Chapman, pursuant to §10.02 of the City Ordinance Code
which provides that accessory structures, such as docks, can only
serve the principal structure on the lot on which the accessory
structure is built.
11. That I told the telephone callers that the pertinent
documents relating to the riparian rights in questions were
available for their review in the City offices and that the files
would be made available during city hours .
12. That the persons involved in the sale and purchase of
the interior lot knew, prior to the April, 1986 sale to
-3-
Letendre/Wiebe, from our conversation as well as official City
documents that the easement was invalid. i
FURTHER YOUR AFFIANT SAITH NOT.
--k--i- 0 . /r <'d .-/—z f-
Jayne A. Mabusth
Subscribed and sworn to before
me this / 6bAday of January,
1987 .
al
Notar !ublic
II
JEAN M.KARIUS
5863e ='1i; NOTARY PUBLIC—MINNESOTA
HENNEPIN COUNTY
My Commission Expires Oct Z3,1991
x t
—4—
i • ) 1
MINUTES OF A PLANNING COMMISSION MEETING HELD ON OCTOBER 10, 1978
Page 2
• 4
•
Mr. Day was present. The garage is already on the LOUISE DAY
premises and in the approximate area where it will 2314
4AOlive Avenue
be located. (#425)
Frahm moved to approve the variance due to the .
hardship of the lot layout. Motion seconded by
Wilson. Vote: Ayes (6) , Nays (0) . Motion passed
unanimously.
Mr. Stewart was present. Mabusth explained the DARRELL STEWART
request. This variance was previously approved 3185 North •Shore Dr.
a year ago. It was noted that the new position VARIANCE
of the driveway would be a much safer condition. (#427)
The requirement of the previous application' s
approval that the two lots be combined has been i ,
done. Alan Olson, City Planner, noted that only
one entrance should be allowed and that the turn
around should be on Mr. Stewart's property. He
also felt that the County would also limit the •
number of exits when Mr. Stewart applied for the
permit for the curb cut.
Hassel moved to approve the variance due to the
hardship of the existing dangerous driveway .
location as it- is the only reasonable location .
for the addition. Vote: Ayes (5) , Nays (0) ,
Abstained .(1) . Hannah abstained as Mr. Stewart
is his next-door neighbor.
I,
Mr. Chapman and Mr. Moore were present. Major KEN CHAPMAN
discussion was regarding the lot being divided 2695 Shadywood Road
with a front and rear lot instead of the side by SUBDIVISION
side as presented. The existing house will be Sketch Plan Review
moved. - Only the front lot would have riparian (#428)
rights.
If the subdivision was approved, no variances• for
construction would be approved. I '
lig • i
. ?c, *$ rml i ,
. . A 0 i
EXHIBIT A
i
•
r )
MINUTES OF A PLANNING COMMISSION MEETING HELD ON OCTOBER 10, 1978
Page 3
It was noted that Don Murphy, Hennepin County KEN CHAPMAN
Highway Department, after a preliminary review, 2695 Shadywood Road
advises that he would prefer a shared driveway SUBDIVISION
using the existing entrance. This will require Sketch Plan Review
a driveway easement through the western lot (p428) .Cont.
to serve the east lot.
•
Planning Commission indicated conceptual approval
of the lot division with a front and back lot
with only the front lot having riparian rights
and no construction variances would be granted.
•
WORK SESSION - Mr. and Mrs. Noble and their JOHN NOBLE
contractor, Mr. Alexander, were present. 1185 Ferndale
It was noted during lengthy discussion that CONDITIONAL USE
the wetlands had not been taken into considera- PERMIT b, VARIANCES
tion of the lot area variance. It was felt that (#429)
when the wetlands were included the variance
would be approximately 707.. Staff will re-
estimate the dry buildable area and hardcover
calculations. The pond on the property is only
a part of a more extensive wetlands, therefore,
'the reaction of the Conditional Use Permit was
not very favorable.
•
The applicant has requested holding tanks. Staff
will review the sewer situation in the area in
relation to this request. It was also noted that
maybe the house was "too ambitious" for this lot 441 •_
The applicant questioned whether a neighboring
division met the setbacks. Staff will review �•
the setbacks (McDonald division) , however, this
application is asking for several variances,
some of high percentages.
•
Hammerel arrived. Wilson left. 7:20 P.M.
f }
MINUTES OF A PLANNING COMMISSION MEETING HELD ON AUGUST 13, 1979
PAGE 2
aannah moved to table the application until the JOHN GUTHRIE
August 27, 1979 meeting when further documentation 325 Sixth Avenue Nc
of land area will be provided and with the understanding SUBDIVISION
that the flowage and conservation ectemMotionlseconded (#499) Conon Public t. Meet ix
Lot 2, Block 2, will remain in eff
by Adams . Vote: Ayes (5) , Nays (0) . Motion passed
unanimously.
In discussion, the consensus of the Planning Commission
was that action would bnetoaken at CounciltontAugustng 288nd 1979e
application could go 0
Mr. Chapman was present. He stated wouldthatbefthe removed; if division 695E hadywood Roar
PMAN
were approved, the existing houseSUBDIVISION
earg, the sthegfronthouse
lotwould
willehaverenovated
riparianand
rights . (#428)
enlarged. Only
Two sewer stubs are present; however, the property has
only been assessed one sewer and one water unit. The
main concern with this applicationlot
had
been
the division
of land into lots with substandard
Wilson moved to approve the subdivision recognizing
that the two lots are minimally substandard but taking
into account that a majority of
c
the surrounding
on the nin ''�•
neighborhood lots are substandard,
property being assessed another sewer and water unit, -
payment of a park dedication fee, and the existing
house must be removed prior to the issuance of any
building permit. Motion seconded by Jabbour.
- )1°1? C'
Vote: Ayes (5) , Nays (0) . Motion passed unanimously.
LINDSAY
Mr. Lindsay was present. All requirements have been JAMES55 Kelly aYenue
met. 2FINAL SUBDIVISION
Jabbour moved to approve the division in accordance (#448)
with the attached resolution (Page 2A & 2B) . Motion
seconded by McDonald. Vote: Ayes (4) , Nays (0) ,
Vacated Seat (1) Hannah - vacated his seat on this
application as he did not vote the last time it
appeared before the Commission as he was (and is)
involved in litigation iorefrainsfromar votinger thisdit
time.
seemed consistent
EXHIBIT B
}
MINUTES OF A PLANNING COMMISSION MEETING HELD ON AUGUST 13, 1
9 79
PAHannah moved to table the application until the
JOHN GUTHRIE
August 27, 1979 meeting when further documentation 325 Sixth Avenue No.
of land area will be provided and with the understanding SUBDIVISION
that the flowage and conservation
emMotionseconded (#499) Coni.
inMon Public Info . Meeting
Lot 2, Block 2, will remain in offectMotion passed
by Adams . Vote: Ayes (5) , Nays (0) .
unanimously.
In discussion, the consensus of the Planning Commission
was that action would obettoa��cilt tontAugustng 28and 1979e
application could go
Mr. Chapman was present. He stated that if the division KEN CHAPMAN
were approved, the existing house would be removed; if 2695 Shadywood Road
denied, the existing house would be renovated and
SUBDIVISION
enlarged. Only the front lot howeveravtheiPropertyan rights .
(#428)
Two sewer stubs are present;
only been assessed one sewer and one water unit. The
main concern with this application had been the division
of land into lots with substandard lot area.
Wilson moved to approve the subdivision recognizing
that the two lots are minimally substandard but taking
into account that a majority of the surrounding
neighborhood lo$ substandard,
sewercontingent
waternthe
unit,
property being assessed
payment of a park dedication fee, and the existing
house must be removed prior to the issuance of any
building permit. Motion seconded by Jabbour.
Vote: Ayes (5) , Nays (0) . Motion passed unanimously.
•
Mr. Lindsay was present. All requirements have been JA2505MES Kelly LINDSAY
Avenue
met. FINAL SUBDIVISION
Jabbour moved to approve the division in accordance (#448)
with the attached resolution (Page 2A & NaB) . Motion
seconded by McDonalcaedhisseaton this
°tyats ) y
Va0) ,
cated Seat (1) Hannah
application as he did not vote the last time it
appeared before the Commission as he was (and is)
involved in ltta ° similar
matter
d
it
seemed consisentorefrainfrom vo ingthis time.
REGULAR MEETING OF ThL ORONO COUNCIL, AUGUST 28 , 19791/// Page 3
Mr. Alan Olson, City Planner, entered into the ✓SUBDIVISION
record the request of Ken Chapman, 2695 Shadywood 2695 Shadywood Road
Road, for a subdivision, dated August 22, 1979 , #428
which states: Ken Chapman
Mr. Chapman, 2695 Shadywood Road, seeks preliminary
approval of a two-lot subdivision of 1. 90 acres
creating substandard lots in a one-acre minimum
zoning district. Each lot will consist of 0. 95
acres requiring a variance of 0. 10 sq. ft. or
. 5%. The existing access has been approved for a two
lot plat by the Hennepin County Highway Department.
•
The plat will be served by the existing driveway
that will require an access easement from the east
lot in favor of the west lot. Only the west lot
is to have riparian rights. All new structures
must meet setback requirements because no variances
will be allowed. The existing house on the property
must be removed before a building permit is issued
for lakeside lot. Water and sewer service would
have to be approved for the newly created lot.
Brief History - I have enclosed the Planning Commission
Minutes covering the long "drawn out" review of this
subdivision and their recommendation of August 13,
1979. The delays involved the applicant' s absence ,
at preliminary meetings, Planning Commission' s request
for applicant to acquire additional land from neighbor
to the south, Council' s decision on the Watson and
Williams area variance applications. At this point,
Mr. Chapman needs a decision by Council before he
proceeds with expensive remodeling and an addition
to the existing home. If he is allowed to plat,
a new home would be located closer to the lake
affording adequate setback from the division line.
Planning Commission approved plat based on the following
findings:
1. Degree of area variance is minimal - no other
variances required.
2. Surrounding neighborhood consists of substandard
lots - in consideration of area surveys of lot
for Watson application #462.
3. Sewer and water available for newly created lot.
4. No additional curb cuts off County Road 19.
Conditions of approval
1. Payment of park dedication fee of $440 for newly
created lot.
2. Existing driveway to serve as access road and
curb cut to not exceed 22' , necessary deeding (Continued)
of easement to accompany plat.
EXHIBIT C
I
•
REGULAR MEETING OF THL 'RONO COUNCIL, AUGUST 28, 1979 Page 4
3. Existing house on lakeshore lot to be removed SUBDIVISION
before building permit is issued for new home. 2695 Shadywood Road
Council should consider a request for temporary (Continued)
occupancy of house until new one is available.
4. West lot 'only, to have riparian -rights. ✓
5. No setback variances to be granted for construction.
Council Meeting - August 28, 1979
•
Hurr moved, Butler seconded, to applove the preliminary
subdivision request of Ken Chapman, 2695 Shadywood
•
Road, per the Planning Commission recommendations of '✓
August 13, 1979, subject to removing existing house
before building permit is issued. Motion, Ayes (4) -
Nays (0) .
Mrs. HOlzer, her attorney Robert Mitchell, and CONDITIONAL USE PERMIT
Mr. Downey were present concerning the conditional 2677 Casco Point Road
use permit application of Alexander Holzer, 2677 Casco #436
Point Road. Alexander Holzer
Mr. Mitchell reviewed his letter of August 23, 1979
explaining his revised plan with pictures and a diagram.
He stated that there would not be anv underground
pipes and that the installed ones would be removed.
Discussion included the ground elevations and drainage.
Mr. Mitchell stated that the elevation is eight inches
higher than Mr. Smerling's yard. Mr. Downey stated
that no fill has been brought into the Holzer property
whereas, Mrs. Holzer stated that dirt from the foundation
was spread over the yard when it was installed.
Mayor Van Nest directed Mr. Mitchell to present to the
City Council a topo showing finished elevations and
• drainage plan.
Mr. Gilbert, Mr. Smerling's attorney, stated that
Mr. Mitchell has presented the same plan as previously
presented and does not feel that the Holzer' s have
complied with Council direction.
Massengale moved, Butler seconded, not to accept the
plan as presented in Mr. Mitchell' s letter of
August 23, 1979. Motion, Ayes (4) - Nays (0) .
Mayor Van Nest moved, Massengale secondedb to direct
Mr. Mitchell to present a plan showing elevations
of Holzer's house, yard and adjacent yards; that no
blocks be exposed at the front of Holzer house on
the south side and all around to a point where the
present wall intersects the 75' line on the Downey
side; that the wall on the Downey side, behind the
75' line, be stepped up to •the height of the wall
between the two houses; that the wall he removed
two blocks from the front of Holzer house hack to (Continued)
'CITY of C RON® Cuatrol No. 428
Office Box 66•Crystal Bay,Minnesota 55323•Municipal Offices Meeting Date ,4- 9
Telephone 473-7357 Notice Date
Mr. Ken Chapman Variance
ExConditional Shadywood Road Conditional Use Permit
Excelsior,
Minnesota 55331 XX Subdivision, Preliminary
Subdivision, Final
ipies to: Gordon Coffin
**AAAA ****kAAAAkAAAAAAA AAAAAAA.
OUNCIL ACTION Vote: 4 For 0 Against Abstention
OTION Council approved preliminary subdivision as per Planning Commission
recommendations. See attached memo for final subdivision application
requirements .
1,
DEADLINE DATE August 24, 1980
X for submittal of new information (application may be considered
formally withdrawn if information or explanation is not provided) .
for Work Permit for work to begin for work to be
application completed
WORK PERMITS ARE REQUIRED - contact Building Inspector before beginning
work.
VARIANCE APPROVAL is limited to the extent shown on approved plans .
Do not change plans.
CONDITIONAL USE APPROVAL expires upon change of ownership or use,
or on deadline date specified above.
PRELIMINARY SUBDIVISION APPROVAL - Applicant must provide all information
and/or improvements required for final approval. Contact Zoning
Administrator.
_ FINAL SUBDIVISION APPROVAL - Applicant must have drawings, resolution
and all other required documents recorded, with certification of such
recording returned to City by deadline date.
Certified copies of official City Council Minutes may be obtained by
contacting the City Clerk. Allow at least three weeks from meeting date.
TO: Mr. Ken Chapman
FROM: Alan P. Olson, Village Planner i
DATE: August 30, 1979
SUBJECT: #428 Subdivision - Conditions of Preliminary Approval
PRELIMINARY APPROVAL CONDITIONS
1. Two (2) lot subdivision per August 19, 1978 sketch attached;.
each lot approximately 41,400 s.f.
2. South lot to be riparian to sake Minnetonka.
a. .North lot to be non-riparian with no lake access or dock rights.
4. Access to both lots from County Road 19 to be on existing driveway,
with private easement for south lot through north lot.
5. Existing garage (on north lot) may remain, but lot line to be
located to provide at least a 10. 0' setback.
6. Existing house (on south lot) to be removed prior to construction
of new house. Options include:
a) removal before final plat approval
b) completion of a developer's agreement such that house will be
removed within one year of final plat approval
c) lot line relocation such that a 30 ' setback is provided to
existing house.
Applicant may choose the best alternative for his situation.
However, if the existing house is removed, a permit could be
issued for one new house (on either lot) before the plat is finaled.
7. New homes to meet all zoning code setback and hardcover requirements.
8. Payment of additional water and sewer assessments.
FINAL PLAT SUBMITTALS
1.✓ RECORD PLAT drawings in the form of two (2) myl r copies and one (1)
copy reduced�to 1" = 200 ' .
/-Z.1 i ✓
Drawing to include:
a) lot lines located per preliminary survey.
b) show lagoon below elevation 929.4 as open water "Lake_Minnetonka"
and dedicate to the public per St. Statute 505. 01.
c) Dedication of "Drainage and Utility Easements" 10 ' wide along
perimeter property lines and 5 ' each side of internal property
line. Omit at lakeshore.
d) If a land remnant is included on the island, plat as an outlot.
EXHIBIT D
•
August 30, 1979
Mr. Ken Chapman
2695 Shadywood Road
Subdivision
Page 2
FINAL PLAT SUBMITTALS (CONT. )
2. Legal documents required (to be completed in duplicate) :
a) Evidence of access easement for driveway over north lot in
favor of south lot.
b) If an island outlot is created, a Declaration of Covenants to
be filed in the chain of title providing that this outlot will
always be owned in common with the south lakeshore lot and
will be reserved with an open space easement.
• itle opinion addressed to the City. All persons indicated
therein as having property interest shall sign the plat and
all easements affected by such interest.
/ 3. Fees to be paid: Total Due $1, 070 with subdivision
a) Legal and Engineer review costs - $50. 00
b) Park dedication fee per schedule - 1 new lot (ave. area . 95 acre)
$440. 00 \Ls
c) Additional assessments due: sem! 1 1 "a
1 residential water unit - $580. 00
1 residential sewer connection - $225. 00 to be paid with building
permit.
490 SAc, few-
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a '
:,,�-:•,. > ;J ; City of ORONO
/ `I -� RESOLUTION OF THE CITY COUNCIL
ti /�
•.� s�t,.
r�.._ � NO. 0-Z
;Q d _ A RESOLUTION APPROVING THE
k ;.,:_.. CHAPMAN ADDITION PLAT
WHEREAS, the City of Orono is a municipal corporation
organized and existing under the laws of the State of Minnesota; and
WHEREAS, the City Council of the City of Orono has adopted
subdivision regulations for the orderly, economic and safe development
of land within the City; and
WHEREAS, the City Council has considered the application for .
a subdivision plat by Kenneth O. Chapman, the subdivider; and
WHEREAS, the subdivider has completed all requirement of the
platting regulations of the City, including:
1. Dedication on the plat of drainage and utility easements.
2. Payment to the City of a Park Dedication Fee in the
amount of $440. 00 for the one additional building site.
3. Payment to the City for all additional administrative,
engineering and legal costs incurred.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the
City of Orono hereby approves the Chapman Addition Plat, Hennepin County,
Minnesota, subject to the following conditions:
1. Lot 2, Block 1, Chapman Addition, riparian to Lake
Minnetonka.
2. Lot 1 is to provide private access and utility eas"ments
in favor of Lot 2.
3. The aforesaid plat shall be filed with the Hennepin County
Recorder's Office on or before July 15, 1980 together with
a certified original copy of this Resolution.
The approval granted by this Resolution shall expire if the plat has not
been filed by the date specified above. In that event, it will be'
necessary to file a new application with the City of Orono for subdivision
review.
Dated this /.C- day of d , 1980.
/ k/f
AT‘TES�T: /474`'`"'� //76'-'
Walter R Benson, Clerk/Administrator
Administrator
PAGE 1 OF 1
EXHIBIT E •
•
I
STATE OF MINNESOTA 610 ;
q
Fug
J DISTRICT COURT
COUNTY OF HENNEPIN O RTH JUDICIAL DISTRICT
In the Matter of the Petition of
Robert T. Letendre, Sr . and
Theresa L. Wiebe,
AFFIDAVIT OF MARK E.
in Relation to Certificate of BERNHARDSON
Title No. 681809 issued for/and
in the County of Hennepin and
State of Minnesota and legally
described as follows :
Lot 1, Block 2, Chapman Addition
Mark E. Bernhardson, having been first duly sworn on oath
states and deposes as follows :
1. That I am the City Administrator for the City of Orono
( "City" ) and have been since May 1, 1985.
2. That in my capacity as the City Administrator I have
dealt with this matter under the direction of the City Council.
3. That prior to granting a subdivision request of
lakeshore property, the City Council has consistently conditioned
approval upon the applicant ' s agreement that only lakeshore
property with adequate lakeshore frontage would remain riparian
with all the rights therein.
4. That such a condition was included in the Resolution
approving the Chapman Addition plat which granted Chapman the
right to subdivide his property and thereby create the lakeshore
lot and the interior lot, which is now in question.
5. That the assessment records of the City show that the
interior lot, now in question, was sold by Chapman to Douglas and
Elaine Farley for $176, 000 as indicated on the certificate of
value. See Exhibit F.
6. That the same property was sold again in October of (°
1983 by Farleys to the E. Lowell and Lois Arneson for $184, 900.
This represents an increase in value of approximately 5 percent in
a period of just eight months . See Exhibit H.
7. That the same property was sold by the Arnesons to
Robert Letendre, Sr. and Theresa L. Wiebe for $130, 000 in April of
1986. This significant drop in value represents a decrease of
approximately 30 percent after two and a half years of ownership
by the Arnesons . See Exhibit I .
8. That Mr . Letendre and Ms. Wiebe both admit in their
respective affidavits, that they had knowledge that the validity
and legality of the dock was in question prior to the purchase of
their home on the interior lot of the Chapman Addition and that
they had been informed that the dock may be in violation of City
Ordinances.
9. That the questions regarding riparian rights on the
property in question were received by city staff prior to the sale
by Arneson to Letendre/Wiebe and that the staff consistently
informed the callers that the interior lot had no riparian rights
and that such rights would be in violation of City ordinances and
pertinent resolutions.
10. That Letendre and Wiebe had actual knowledge, or should
have had constructive knowledge that the easement was in fact
invalid and therefore were able to purchase the house on the
interior lot for a substantially reduced price .
-2-
11. That in recent years fee title to parcels of property
that are unbuildable yet provide riparian access to lots have sold
for approximately $16 to 17, 000 for fee title. See Exhibits J &
K. Therefore, even if the docking question could stand on its
own, the significant drop in value of approximately $55, 000 cannot
be attributed solely to the legal issues surrounding the dock.
FURTHER YOUR AFFIANT SAITH NOT.
iI ,.
f
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(17 ;
n
Mark E. Bernhardson
Subscribed and sworn to before
me this / ,D-day of January,
1987
a .
asa . _._
Notar •ublic
111
JEAN M.KARIUS it
• ,( NOTARY PUBLIC—MINNESOTA
5864e • 1' HENNEPIN COUNTY
MY Comraiz Expires Oct 23, 1991
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CITY ASSESSORS SALES DATA SHEET
04-12-07 ORONO SALES PAGE
SALE PROPERTY
MUNIC: 38 ORONO
SEC: 21
00: 24
SUFFIX: 55 •
.PURCHASER AND LEGAL DESCRIPTION YEAR BUILT & TYPE OF BUILD::
STREET ADDRESS
ARNESON LOIS & E LOWELL 21 117 23 24 55
2693 SHADYWOOD ROAD L181 CHAPMAN ADDITION
SALE PRICE: $ 184900 DATE: OCT. 1984 FIN. :
LAND AREA: • OSO FT 0.0GACRES DEED TYPE: OTHER FIN.
LAKESHORE? LAKE NAME:
GROUND FLOOR: G % BSM'T FIN: 0.00 #FIREPLACES: 0 NO CENTRAL AIR
2ND & 3RD FL.: 0 BATHS: #OFULL 40-3/4 40-1/2 0
GSA: 0 BEDROOMS-MAIN: 0 OTHER ERS: 0 GARAGE: 0
W.O.(LIN.FT.): 0 COMMENTS
TOTALSFOR55
TOTALSFOR 24
TOTAL SFOR 21
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RESIDENTIAL SALES DATA
ADDRESS 2693 Shadywood Rd
PID # 21 117 23 24 55
CITY OF ORONO '
LAKE NAME
g
PRO°ERTY DESCRIPTION MARKET DATA
LAND:
Land Area 43995.6 Sale Amount . .$ 130000
Topography
Shoreline
Sale Date 5 86
Eff, Front Footage 0
BUILDING:
Year Built 0 Effective S/FF 0 '
I Story Height 0
Ground Floor Area 0 Seller Arneson,lois & Lowel
Gross Bldg Area 0 Buyer Letendre,r. & Wiebe,
Garage Sq. Ft . 0
Water=1 Sewer=3 Gas=4 0
EXTRAS:
117700
Fireplace 8 Porch GP=1 SP=2 3
Deck Sq. Ft 0
Baths: (full ) 0 (3/4) 0 (1/2) 0
X Finished Basement 0
Central A. C.= 1 0
Lineal Ft. Walkout 0
Comments: i=
Information Source: File II
Submi ted By: City Assessor
Date: 86-08-07il
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EXHIBIT K
POPHAM, HAIK, SCHNOBRICH, KAUFMAN & DOTY, TO'
JN�
MEMORANDUM
TO: Mark Bernhardson
FROM: Kathleen Blatz
DATE: January 9 , 1987
RE: Letendre
Enclosed herein find copies of the Notice of Motion and
Motion, Memorandum in support of Motion, and Affidavits regarding
the Letendre matter . I would appreciate it if you would review
them and make any appropriate comments that come to mind . I will
discuss this matter with you next week .
KAB/jk
5817e
cEaw Offices of
SCHOLLE AND SCHOLLE, Ltd.
1530 PILLSBURY CENTER
MARK SCHOLLE 200 SOUTH SIXTH STREET SCBCRB.AY OFFICE
THOMAS L JOHNSON MINNEAPOLIS,MINNESOTA 55402-1413 7100 NORTHLAND CIRCLE
BRADLEY N. BEISEL BROOKLYN PARK,MN 55428
OF COUNSEL (612)338-1330 612-533-2900
STEPHEN G.SCHOLLE
JOHN E.CRABTREE III
LESLIE C. SCHOLLE,RETIRED
January 7, 1987
Ms. Kathleen A. Blatz
Attorney at Law
4344 IDS Center
Minneapolis, MN 55402
Re: Letendre and Wiebe/City of Orono
No. : A-21902
Our File No. : 4946-86
Dear Ms. Blatz:
Enclosed herewith and served upon you by U.S Mail, please find a
copy of the following pleadings in regard to the above-captioned
matter:
1. Notice of Motion and Motion.
2. Memorandun in Support of Motion.
3. Affidavit of Barbara Osmondson.
4. Affidavit of Lee Ann Seaman.
5. Affidavit of Theresa L. Wiebe.
6. Affidavit of Robert F. Letendre, Sr.
Thank you.
Very truly yours,
SCHOLLE AND SCHOLLE, LTD.
s
Q /2" c&di?"
„47 (Bradley N Beisel
BNBf
Enclosures
No. A-21902
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
In the Matter of the Petition of
Robert T. Letendre, Sr. and
Theresa L. Wiebe ,
in Relation to Certificate MEMORANDUM IN SUPPORT
Title No. 681809 issued for/and OF MOTION
in the County of Hennepin and
State of Minnesota and legally
described as follows:
Lot 1 , Block 1 , Chapman Addition.
INTRODUCTION
This case results from a petition for an order to add an
appurtenant lake access easement to the legal description of a
piece of Torrens property.
The property at issue is Lots 1 and 2, Chapman Addition,
which constitute all of Chapman Addition in Orono, Minnesota.
The property was platted by Kenneth O. Chapman and spouse in
1980 . The Chapmans still own Lot 2 of Chapman Addition ( the
"Chapman parcel" ) . Lot 1 of Chapman Addition is owned by the
Petitioners ( the Letendre parcel) . A copy of the Plat of Chapman
Addition is attached hereto as Exhibit A.
On March 25, 1983 the Chapmans executed an Agreement which
conveyed to the then owners of the Letendre parcel, an appurte-
nant easement for access to the shoreline of Lake Minnetonka over
the southeasterly 15 feet of the Chapman parcel (see attached
-1-
Exhibit B) . The easement was specifically directed to the owners
of the Letendre parcel at that time, "and to their heirs and
assigns, as an appurtenance to the premises". This Agreement was
duly memorialized on the certificates of title to both the
Chapman and Letendre parcels and remains a memorial on both
certificates to the present day.
The Petitioners, Robert T. Letendre and Theresa L. Wiebe
purchased the Letendre parcel in May of l985. They immediately
thereafter retained an attorney for the purpose of bringing the
petition referenced in the caption of this suit which sought to
have the legal description to the property amended to specifical-
ly include the lake access parcel. Just prior to a default hear-
ing on said petition , an appearance was made by the City of Orono
which asked for and received permission to submit an answer to
the Petition. The City of Orono filed an Answer requesting that
the Court not issue an order as requested by Petitioner. The
grounds for this answer are allegations that Mr. Chapman, in
connection with the platting of Chapman Addition, promised the
City of Orono that riparian rights would not be granted to the
Letendre parcel. The City of Orono also alleges that "Petition-
ers had actual or constructive notice that the Letendre parcel
was to have no lake access across the Chapman parcel. . ." .
The Petitioners have submitted affidavits from both Peti-
tioners, and from both the listing agent and the selling agent of
the Letendre parcel when they purchased it, denying that there
was any actual knowledge of any contension on the part of the
-2-
City of Orono that the easement was in any way invalid. Rather,
the petitioners were informed of just the opposite, that the lake
access easement was a valid appurtenance to the Letendre parcel.
It is the position of the petitioners that, under the recording
act and under the Torrens act, the Petitioners are purchasers in
good faith and for valuable consideration of the property,
including the easement, and that any alleged unrecorded right of
the City of Orono to keep the property free of riparian rights is
void.
ARGUMENT
MS §507.34 , states, in pertinent part,
"Every conveyance of real estate shall be recorded
in the office of the county recorder of the county
where such real estate is situated; and every such
conveyance not so recorded shall be void as against
any subsequent purchaser in good faith and for valu-
able consideration of the same real estate where any
part thereof, whose conveyance is first duly
recorded, and as against any attachment levied
thereon or any judgment lawfully obtained at the
suit of any party against the person in whose name
the title of such land appears of record prior to
the recording of such conveyance."
This statute, part of the "recording act" annunciates one
of the most fundamental doctrines of Minnesota real estate law:
An unnrecorded conveyance is void as against subsequent purchases
in good faith and for valuable consideration of the same real
estate or any part thereof whose conveyance is first duly
recorded. (see eg 16 Dunnell Minn. Digest 2d "Recording Act"
§4.00 et seq [3rd 3d 1980] ) . Any grantees thus deprived of their
property are left with an action against the original
-3-
grantor. (Gill v. Russell, 23 Minn 362 , 1877 ) .
Orono's position amounts to a claim that it is the benefi-
ciary of an oral restictive covenant placed on the Letendre
parcel by Chapman in exchange for platting approval from Orono.
Orono made no effort to place any document empodying this Agree-
ment in the public record. In fact, they never even bothered to
prepare such a document or have Mr. Chapman sign it. They merely
point to statements allegedly made by Mr. Chapman at City Council
meetings. Such statements, even if found to be binding as
between Mr. Chapman and the City of Orono, do not even begin to
comply with the requirements of the recording act so as to be
binding against an innocent third party.
The policy favoring the public recording of interest in
real estate so as to give rise to constructive notice to the
public is embodied in the Torrens Act, Chapter 508 of Minnesota
Statutes. MS §508.25, states, in pertinent part:
Every person receiving a Certificate of Title pur-
suant to a decree of registration and every subse-
quent purchaser of registered land who receives a
certificate of title in good faith and for a valu-
able consideration shall hold it free from all
encumbrances and adverse claims, excepting only the
estates, mortgages, liens, charges and interest as
may be noted in the last certificate of title in the
Office of Registrar. . . "
Chapter 508 goes on to state, in Section 508.48, that an
instrument affecting title which is filed with the registrar and
memorialized on the certificate has the same effect as it would
if it had been recorded on unregistered property. Section 508.48
-4-
•
states, in pertinent part:
"Every conveyance. . . which would effect the title to
registered land under existing laws, if recorded , or
filed with the county recorder, shall, in like
manner, effect the title to registered land if filed
and registered with the registrar in the county
where the real estate is situated, and shall be
notice to all persons from the time of such regis-
tering or filing of the interest there created.
Under Section 508.49 of the Torrens Act, the conveyance of
an interest in real estate less than fee interest does not
result in a new Certificate of Title , but rather is memorialized
on the existing Certificate of Title as is the case on the Certi-
ficate on the Letendre parcel. Hence, when the lake access ease-
ment was filed , a memorial of the easement was made on the Certi-
ficate of Title to the Letendre parcel. In the case of an appur-
tenant easement benefiting the subject property, the practice has
grown up of bringing a proceeding subsequent to the initial
registration of title for purposes of passing on the validity of
the granting of the easement. After such a proceeding , the ease-
ment is then made a part of the body of the certificate of title
in essence becoming part of the legal description of the
property.
After the petition in this case was filed, the Examiner of
Titles issued a report finding:
3. That each of the aforesaid Certificate of Title
contains the memorial of agreement Document 1548565, an
easement dated March 25, 1983, creating an easement to
enter upon , walk upon and pass over the Southeasterly 15
fees of Lot 2, Block 1 , Chapman Addition, in favor of and
appurtenant to said Lot 1. [A copy of the full Report of
Examiner is attached hereto as Exhibit Cl .
-5-
No right or interest in the City of Orono whatsoever is
reflected on the Certificate of Title to the Letendre parcel. In
fact, the Examiner does not even require that the City be noti-
fied of the hearing on the petition.
The basic facts of this case are not in dispute. It is not
disputed for instance that the petitioners are the registered
owners of the Letendre Parcel , and that their Certificate of
Title contains on it a memorial of the agreement granting to the
property an appurtenant easement for access to the shore of Lake
Minnetonka over part of the Chapman parcel. It is also undis-
puted that no reference whatsoever on any certificate of title to
either Lot in Chapmans Addition has ever been filed or memorial-
ized by the City of Orono relative to its alleged right to keep
the Letendre parcel free of riparian rights.
Clearly, the contension of the City of Orono that they
have some right to keep the Petitioners from obtaining the order
they seek depends upon their demonstration that the Petitioners
were not "purchasers in good faith and for valuable considera-
tion" . Admittedly, this is a fact question. However , both
Petitioners as well as their realtor and the realtor representing
the party who sold the Letendre parcel to them, have submitted
affidavits which are on file with the Court in which they confirm
that they had no knowledge whatsoever of the claim of the City of
Orono, or anyone else for that matter, that the easement giving
the Letendre parcel access to the lake was in any way invalid.
Under Rule 56.05, when a party moving for summary judgment
-6-
submits affidavits supporting his motion , "an adverse party may
not rest upon the mere averments or denials of his pleadings but
must present specific facts showing that there is a genuine issue
for trial. If he does not so respond, summary judgment, if
appropriate,ro riate, shall be entered against him." The City has
presented no facts tending to show that the petitioners were not
purchasing in good faith of the lake access easement.
All allegations by the City of Orono as to representations,
..greements or promises made by Mr. Chapman in connection with the
platting of his property are irrelevant to this proceeding
because those alleged promises were never reduced to an instru-
ment which was memorialized on the Certificate of Title to the
property, and because the petitioners had no actual knowledge of
them.
Further, allegations of the City of Orono that the peti-
tioners were aware that the dock existing on the property when
they purchased it may not he a legal dock, in the sense that it
may not comply with the provisions of the Lake Minnetonka Conver-
sation District are similarly irrelevant. The Petitioners do not
seek a determination regarding the validity of the existing dock,
or of anything having anything to do with dock rights on the .c
property. That is a question that the Petitioners readily admit
must be taken up with the appropriate authorities in the future.
The Petitioners merely seek to have a determination made that the
easement granting access to Lake Minnetonka is valid.
-7-
CONCLUSION
The instrument granting the appurtenant lake access ease-
ment to the Letendre parcel was properly memorialized on the
Certificate of Title. Nothing reflecting the alleged restriction
in favor of the City or Orono keeping said parcel free of ripari-
an rights has ever been memorialized or even reduced to writing.
The only possible factual issue in this case is whether or
not the Petitioners had actual knowledge of the alleged agreement
between Chapman and the City of Orono relative to riparian rights
on the Letendre parcel. The Petitioners have submitted affida-
vits from themselves, backed up by an affidavit of their realtor
and an affidavit of the realtor representing the party they
purchased from stating unequivocally that the Petitioners had no
knowledge of any alleged agreement between Chapman and the City
of Orono nor of any allegation or claim of right of the City of
Orono. The City has submitted nothing in support of their asser-
tion that the petitioners are not good faith purchasers of the
lake access easement.
Clearly this is an appropriate case for summary judgment
and Petitioners Motion for an order dismissing the answer of the
City of Orono should be granted.
Respectfully submitted, SCHOLLE AND SCHOLLE, LTD.
Dated: November 18, 1986 BY
BRADLEY N. BEISEL #6191
Attorney for Petitioners
1530 Pillsbury Center
200 South Sixth Street
Minneapolis, MN 55440
Phone: ( 612) 338-1330
-8-
IN PROCEEDINGS SUBSEQUENT TO INITIAL REGISTRATION OF LAND
A-21902
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
In the matter of the Petition of )
ROBERT F. LETENDRE, SR. and )
THERESA L. WIEBE, ) REPORT OF EXAMINER
)
For an Order Determining the )
Validity of a Certain Easement. )
TO THE HONORABLE JUDGES OF THE DISTRICT COURT OF HENNEPIN COUNTY:
Pursuant to the Court's Order of Reference, your Examiner has investigated the
matters and facts set forth in said Petition and finds and reports as follows:
1. That on the 20th day of June, 1986, the Registrar of Titles entered Certificate
of Title No. 681809 to Robert F. Letendre, Sr. and 'Theresa L. Wiebe for land described as
follows:
Lot 1, Block 1, Chapman Addition.
2. That on the 28th day of January, 1980, the Registrar of Titles entered
Certificate of Title No. 597888 to Kenneth O. Chapman and Patricia E. Chapman for land
described as follows:
Lot 2, Block 1, Chapman Addition.
3. That each of the aforesaid Certificates of Title contains the memorial of
agreement Document No. 1548565, an easement dated March 25, 1983, creating an
easement to enter upon, walk upon and pass over the Southeasterly 15 feet of Lot 2,
Block 1, Chapman Addition, in favor of and appurtenant to said Lot 1.
4. [I assume there will be evidence at the hearing to support a finding in the
Order to be entered herein] That agreement Document No. 1547565 is a valid creation of
the easement described therein.
5. That notice of these proceedings should be given to Kenneth O. Chapman,
Patricia E. Chapman, Meritor Mortgage Corporation, State Bank of Mound [respective
- 1 _ EXHIBIT C
mortgagees of said Lots 1 and 2] and to parties, if any, in possession of said Lots I and 2,
said notice to be by service upon them of an Order to Show Cause returnable before this
Court at Room A-702 of the Hennepin County Government Center at 2:00 p.m. of a
Tuesday to be therein designated. Said notice must advise said parties that they show
cause, if any they have, why the Order as hereinafter recommended should not be entered.
I therefore recommend upon the return of said Order to Show Cause and upon due
proof of the foregoing matters at the hearing herein, no valid objection to the contrary
then appearing, that this Court enter an Order as follows:
1. That the Registrar of Titles show by memorial upon
Certificates of Title Nos. 681809 and 597888 that the access
easement created in Document No. 1547565 is valid.
2. That upon the issuance of future Certificates of Title for the
land described in Certificate of Title No. 597888, the Registrar
of Titles omit the memorials of Document No. 1547565 and of
• this Order and in lieu thereof he carry into the body of each
new Certificate of Title for said land, a recital as follows:
Subject to an appurtenant easement for access to Lake
Minnetonka for the benefit of Lot 1, Block 1, Chapman
Addition, over the Southeasterly 15 feet of Lot 2, said
Block and Addition; see Order Document
No. _ (here insert the document number
assigned to this Order).
3. That upon the issuance of future Certificates of Title for the
land described in Certificate of Title No. 681809, the Registrar
of Titles omit the memorials of Document No. 1547565 and of
this Order and in lieu thereof he carry into the body of each
new Certificate of Title for said land, a recital as follows:
Together with an easement for access to Lake
Minnetonka over the Southeasterly 15 feet of Lot 2,
Block 1, Chapman Addition; see Order Document
No. (here insert the document number
assigned to this Order).
All upon the filing with the Registrar of Titles of a certified copy
of this Order.
Respectfully submitted this 17th day of July, 1986.
RICHARD W. EDBLOM, Examiner of Titles
l '
DHN/ By
Deputy Examiner f Titles
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EXHIBIT B