HomeMy WebLinkAboutDrainage Issue October 2005-Jan 2006WALDRON LAW OFFICES, LTD.
JOHN B. WALDRON
ATTORNEY AT LAW
1951 CONCORDIA STREET
WAYZATA, MINNESOTA 55391-9320
TELsaxoNE (952) 471-0940
FAX (952) 4714859
ranuary 27, 2006
Mr. Greg Gappa
Director of Public Services
City of Orono
P.O. Box 66
Crystal Bay, MN 55323-0066
Re: Stephen Paidosh Residence
4300 North Shore Drive, Orono
Dear Mr. Gappa:
E C EIVEO
IA N 3 0 2006
CITY OF ORONO
email jbw cr waldronlaw.com
website www.waldronlaw.00m
VIA FACSIMILE AND U.S. MAIL
I represent Stephen Paidosh and the purpose of this letter is to further discuss the
issues raised in the letter from Mr. Paidosh to the Orono City Administrator and others dated
October 27, 2005, and your reply letter to Mr. Paidosh of November 4, 2005.
As you know, the City of Orono is already well underway in a project which will
direct upstream runoff to the City lot adjacent to the easterly boundary of the Paidosh
property at 4300 North Shore Drive. We assume this project will now be completed in the
spring, although we now have an additional concern that spring z unoff will create further
problems since there are currently no control systems in place to slow down the water that
is now piped directly to the upper portion of the City lot next to the Paidosh property. Mr.
Paidosh has previously expressed his concerns to you that this concentrated amount of runoff
will (1) on the upper course of the water running down the City lot, possibly erode or
destabilize the ground around his house foundation, possibly causing further problems to a
foundation which has already settled significantly in the past, and (2) on the lower course of
the water running down the City lot, probably contribute to a pre-existing isting flooding problem
near his Lakeshore, which already typically becomes unusable for some period of time
following significant rainfall.
Please be advised that the situation the City of. Orono is creating for Mr. Paidosh could
give riseto a common law cause of action for nuisance or trespass. In this regard, we direct
uk Rapids, 422 N.W.2d 708 (Minn. 1988).
you and the City Attorney to Chabot. v. City of Sa
In Chabot, the Minnesota Supreme Court recognized that:
A city can be liable for trespass or nuisance caused by such an increased flow of water
or by a change in the flow of water which affected its normal and natural flow. See
Wilson v. Ramacher, 352 N.W.2d 389, 394 (Minn.1984).
Minnesota State Bar Association Board Certified Specialist in Real Property Law
Mr. Greg Gappa
Director of Public Services
7anuary 27, 2006
Page 2
Id, at 713. For example, the Court noted that:
Ti is possible that plaintiff could have shown that ...the city had approved a number
of building permits in the immediate vicinity of the [plaintiffs] home which added
additional run-off of water .... He could perhaps have shown by expert testimony
that these permits increased the risk of damage to the plaintiff s home.
Id. it
at 713-714. The Chabot Court did not reach this particular issue since was not properly
preserved below. Nonetheless, the principle is still applicable.
In the case of the Paidosh property, the City, by its own direct actions, is increasing
the flow of water onto the Paidosh property, thus creating an even clearer case of liability for
trespass and nuisance than by merely granting building permits to third persons who in turn
create a water problem. In addition, the City of Orono, through its own ordinances,
recognizes the problem caused when private property owners attempt to do the very thing
that Orono is now in the process of doing itself. See Orono Ordinance Sections 5&
2(l)(e)(making it a misdemeanor for a person to increase the volume or velocity of surface
water runoff leaving his property without a regulatory permit from the City) and 7&-674
(prohibiting developments and uses that result in water runoff causing floods, erosion or
deposits on adjacent properties).
We understand that the weir system proposed for the upper part of the City lot may
or may not address Mr. Paidosh's first concern, although Mr. Paidosh has not been presented
with any detailed, formal drawings of this proposed system. We request the opportunity to
review such plans prior to any further construction. We also request your written opinion as
the City Engineer that the water control system in this upper course will not have the adverse
effect that Mr. Paidosh reasonably fears it will.
With respect to the lower course of the City lot, your letter of November 4 states that
"a swale will be graded across the flatter slope grass area to keep the water on the City
property. No work will be completed in the area within about 200' of the lake as this area is
so flat that it is not possible to grade the area to drain any better than it does today."
We take exception to this statement. The reality is that the last 200' of the City lot is sloped
so that it drains directly towards the Paidosh property (see contour map attached to your letter
ofNovember 4) . In fact, the City previously allowed the adjacent property owner to increase
the slope away from his house. This area could and should be re -graded so as to continue
the swale right down to the water's edge. This will properly prevent any increase flow of
water on the City lot from reaching the Paidosh property and increasing its existing flooding
problem. If the City is concerned about too much runoff reaching the lake in this area, then
the City could create other structures within the swale area (such as so-called "rain gardens"
or "tree trenches") or plant other vegetation to absorb more water before it reaches the lake
(so long as any such structures do not involve any ponding of water which could create a
mosquito problem).' As an alternative, or in addition, the City could bring in extra fill for
'See, for example, the types of runoff control devices which will be installed in the
City of Mound's Lost Lake development, as recommended by the Minnehaha Creek
Watershed District.
Greg Gappa
Director of Public Services
January 27, 2006
Page 3
the lakeshore portion of the Paidosh property, so that the City's water stays on the City's lot.
All of this work should obviously be done before the City completes its current project, or
access to the lakeshore for this grading will be rendered impossible or much more difficult.
Your November 4 letter also states that the City's project "does not change the overall
drainage patter77 since this water previously reached the City property after flowing across
the three Park Drive properties." (Emphasis added.) While this statement may be true in
some respects, it ignores the fact that, in the course of crossing these three other properties,
there was much opportunity for the water to seep into the ground, since it was crossing
vegetated surfaces at a slower velocity, as opposed to now where it is being funneled across
and through impervious surfaces at a much higher velocity. In addition, the water was
diverted by running into other obstacles such as buildings, driveways, and other impervious
surfaces. The fact remains that the construction of the new home upstream and the other
neighbors' efforts to reduce the increased flowage of water onto their properties (such as a
trench dug near the top of the Palm driveway) have resulted in the Paidosh property
remaining saturated for longer periods of time after rainfalls. The Paidosh family has
tolerated this condition over the past rainy season while their neighbors negotiated with the
City to resolve the problem. They never imagined the City's solution would be too permanently
and more efficiently, via the new storm sewer system, divert all the water in their direction. In
the past, the Paidosh property only had to take the water that came from part of the Palm
property (pre- trench), a large portion of the Riviere property, the City's property and the
Paidosh property. Now, with the City's new project, the Paidosh property is taking water from
the street and properties from four doors east.
Your letter also states that "this project is not going to substantially change the
existing conditions." W e submit this is also not true, for the reasons stated above. In
addition, contrary to the letter, you have already admitted to Mr. Paidosh when you were on
the site that his property will, in fact, receive more water after the completion of this prof ect
than before.
Given the above considerations and the potential liability to the City in continuing
with this project as is, we xespectfully request that the City of Orozao seriously consider and
discuss with Mr. Paidosh a more creative solution to the water problem in this neighborhood
than the solution it is presently pursuing.
Thank you for promptly considering and addressing the c
Sirj'cerely,
7
cc; Mr. Stephen Paidosh
Ron Moorse, City Administrator
B. Waldron
stated in this letter.
k
v�
November 4, 2005
Mr. Stephen Paidosh
4300 North Shore Drive
Orono MN 55364
Dear Mr. Paidosh;
CITY of OR N"
Municipal Offices
Street Address; Mailing Address;
2750 Kelley Parkway k P,O. Box 66
Orono, MN 55356 PCrystal Bay, MN 55323.0066
This letter is in response to your October 27th letter to the City regarding ahe Park Drive
drainage project. This project is to install curb and gutter and a catch basin and pipe to
divert the water flow from Park Drive that currently flows across 1447 and 1453 Park
Drive onto the platted 50' wide City Right of way between your residence and 1453 Park
Drive. Water from 500`of the street and adjacent areas drains across these two properties
resulting in erosion on the steep slopes and also water in the home basements. Riprap
check dams will be installed on the tipper steep slope gravel area of the City land which
currently is eroding, and a swale will be graded across the flatter slope grass area to keep
the water on the City property. No work will be completed in the area within about 200'
of the lake as this area is so flat that it is not possible to grade the area to drain any better
than it does today. This area is also close to the lake level, wet, and has poor soils and any
grading work in this area will create more problems than are solved.
On Friday October 28`"' Scott Oberaigner and 1 met on site with you to discuss this
project. At this meeting we reviewed the approved grading plan for the new residence at
1435 Park Drive and a copy of this plan is included with this letter. This plan shows that
the drainage pattern for the new house matches the existing house drainage pattern with a
ridge across the front yard, Most of property drains towards the lake with part of the front
yard and the driveway draining towards the street. Swales have been graded to positively
drain the water towards the lake along both property lines. This property conforms to the
City impervious surface and structural coverage regulations. The new house matches the
existing house elevation, the new driveway elevation of 970.4 at the front of the garage
compares to an existing elevation of 970.3 in this area.
Telephone (952) 249-4600 � rax (952) 249-4616
wwtiv.ci.orono.ran.us
I have also attached a map with aerial photography, property lines, and 2' elevation
contours for this area. The contours show that the drainage patter is towli•ds the
northwest across the City property. This project will divert the street water from flowing
across 1435, 1447, and 1435 Park Drive onto the upper portion of the City property
which does not change the overall drainage pattern since this water previously reached
the City property after flowing across the three Park Drive properties. The lakeshore area
is very flat with a high water table because the elevation of this area is only several feet
above the lake level, that this area can be wet at times is not unexpected, and this project
is not going to substantially change the existing conditions.
This project will be completed using City Stormwater Utility Funds which are obtained
from an annual charge to all properties on utility bills and from Stormwater Trunk Fee
charges from new development projects, These Ainds are used to operate and maintain
the City's stormwater drainage system and to complete stormwater projects to correct
drainage problems. Funding for these stormwater projects is based on the following
priorities.
1. Protection of existing structures from stormwater damage. •
2. Prevention of erosion problems.
3. Prevention of low area flooding that does not threaten structures.
Property owners are responsible for handling stormwater drainage on their properties,
However, when public street drainage is causing property damage or erosion, the City has
been completing projects with Stormwater Utility Funds to direct the street drainage to
more appropriate outlets. This project is a priority for City Handing because the public
street drainage is causing both wet basements and erosion, and it is appropriate to redirect
the street drainage away from houses onto City property where erosion can be controlled
and structures are not impacted by the stormwater,
Thank you for your assistance. Please contact me at 952-249-4621 or by email should
you have any questions.
Sincerely;
Greg Gappa
Director of Public Services
ggappar@ci,orono,mn.us
Copy; Mark Palm and Pamela Schlender, 1447 Park Drive
Timothy Riviere, 1453 Park Drive
Ron Moorse, City Administrator
Mayor Peterson and Council Members
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to
October 27�h, 2005
City Administrator, Mayor arrd Council
City of Orono
2750 Kelly Parkway, P.O. Box 66
Crystal Bay, MN 55323
Dear Mr. Moorse,
Iri light of my recent phone conversation with Greg Gappa on Tuesday, October 25th here
is a letter documenting my concerns of the proposed plans by the City of Orono to
increase the watershed of Park Drive to city property adjacent to 4300 North Shore Drive
and 1453 Park Drive,
My initial issue is why the city taxpayer should incur the cast of tlae city modifications
when the problem initiated from the construction of the new home at 1435 Park Drive,
Why doesn't the city pursue more aggressive. alterations to the new home's landscaping
at the new homeowner's expense to eliminate or greatly reduce the problem before
spending taxpayer money to alter water flow onto the city's and my property? Potential
solutions could be tying in the street side downspouts and adding a driveway grate into an
underground drainage system to discharge the water to the back side of the new home. A
Swale could be formed to divert run off from the front yard to the back of the home
between the properties of 1435 and 1447 I effectively used this technique at a foriner
residence of mine on the lake and it was very effective and low cost to implement.
T am sympathetic to the wet basement issues of the residences located at 1447 & 1453
Park Drive which is the direct result of the landscaping issues related to the corlstr action
of the new home at 1435 Park Drive, I am also concerned about the proposed city plan to
divert additional water flow to city property which is adjacent to my property. A large
portion of both properties are at the same level, From observing the flow of water during
major or frequent rain storns the city property and a portion of my property does not
completely drain into the lake but pools tip within 10 to 30 feet from the lake. i feel it is
unfair to render longer periods of my property unusable by diverting additional watershed
to that area of the combined properties. Not until the pooling water evaporates are we
able to mow the grass without damaging the sod or use my property for recreational
activities. Any implementatiop of the city's plan to curb and divert additional water onto
the city property adjacent to my properly should include a swale within city's property to
ensure the water continues to the lake. A more esthetically pleasing alternative would be
to provide a minor re -grade of a portion of the city property and my property to ensure
that the water does not pool up but continues into the lake (Reference Chapter 78
"Zoning Regulations", Article 4, Section 78 "Drainage").
t
Again, I feel the city has a fiduciary responsibility to ensure that t11e property causing the
problem has exhausted all reasonable solutions before the taxpayer and the local adjacent
properties owners are burden by city's proposed solution. The problem should be
resolved at the source of the problem at 1435 park Drive. The proposed solution by the
city should only be implemented once the fiduciary responsibility has been met. In my
opinion the city has not met thisresponsibility as of October 27, 2005. I would like a
written response within seven business days of October 27"', 2005 from the City of Orono
with the assurance that the city will address any hardship that occurs to n-ry property if the
city goes ahead with its plan to divert more watershed to its property between 1453 Park
Drive and my property at 4300 North Shore Drive,
I can be reached at (W) 763-494-5433 and (H) 952-472-4217. My residences is at 4300
North Shore Drive Orono, MN 55364,
Regards,
Stephen Paidosh
Cc; Mark Palm
Tim R.iviere
Greg Gappa