HomeMy WebLinkAbout12-10-1979 Planning Packet<!• »
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I
II AGENDA
PLANNING COMMISSION MEETING
Monday, December 10, 1979
Council Chambers - 7:30 P.M.
CALL TO ORDER
1. Call to Order/Roll
PUBLIC HEARINGS AND PUBLIC INFORMATION MEETINGS
2.7:30 P.M. - Public Hearing - Proposed amendments to the Zoning
0^®i*^®nces regarding the location, height and construction of
fences, walls and screening area and height of access.
3.7:45 P.M. - Public Hearing - Proposed amendments to the Zoning
Oi^flinance regarding the number, area and height of accessory
buildings permitted on residential lots.
ACTION ITEMS
4. 4443 Robert S. Olson, 4665 Bayside Road - FINAL SUBDIVISION
WORK SESSION
5* #532 George R. Steiner, 700 County Road Six - SUBDIVISION
MIKE GAFFRON - PRESENTATION
6. Planning Based On Soil Conditions
APPROVAL OF MINUTES
7. Meeting of November 26, 1979
INFORMATION ITEMS
8. The next regular Planning Commission meeting will be held
January 14, 1980
9. Review Commercial Site Plan for First National Bank of Navarre
10. Planning Commission's comments on recent draft of Comprehensive Plan
1
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El a.f_/(>/ /f/g.
VILLAGE OF OlONO
VHitMl f inLLt
-
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TO:
FROM:
DATE:
Council and Planning Commission
Jeanne A. Mabusth, Zoning Administrator
December 4« 1979
SUBJECT: #443 Robert S. Olson, 4665 Bayside Road - FINAL SUBDIVISION
The applicant has c<xnpleted all of the requirements for final subdivision
approval* The barn on Lot 2, Block 1 sustained structural damage during
the spring of 1979; the structure was rebuilt in place.
Staff recommends approval of the Bayview Farms plat subject to the
conditions cited in the enclosed resolution.
ir^'■ f
city of OR.ONO
Cl T Y RESOLUTION OFTHI CITY COUNCIL
NO ________________
ORONO
A RESOLUTION APPROVING THE PLAT OF
BAYVIEW FARMS
IfHBREAS, the City of Orono is a mxinicipal 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 Robert S. Olson, the subdivider; and
WHEREAS, the subdivider has completed all requirements of
the platting regulations of the City, including:
Dedication of drainage and utility easements on the plat
Dedication (on the plat) of rights of way for public streets
and roads, shoim as County Road No. 84.
Dedication to the City of a Flowage and Conservation Easement
(Exhibit A) providing for limitations on the use of wetlands
and/or drainageways described therein.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of
the City of Orono hereby approves the plat of Bayvlew Farms, Hennepin
County, Minnesota; subject to the following conditions:
This plat approval also includes approval of setback
variances for the barn on Lot 2, Block 1 and the shed on
Lot 1, Block 1 which do not meet current required setbacks
from property lines.
The aforesaid plat shall be filed with the Hennepin County
Recorder's Office on or before June 11, 1980 together with
a certified original copy of this Resolution and an executed
copy of Exhibit A as noted above.
PAGE 1 OF 2
i
f • T - W
City of ORONO
\
CITY RESOLUTION OF THE CITY COUNCIL
NO ----------------------------
ORONO
The approval granted by this Resolution shall expire if the plat has ?
not been filed by the date specified above. In that events it will be I
necessary to file a new application with the City of Orono for subdivision \
review.
Dated this day of
William B. Van Nest» Mayor
ATTEST:
Walter R. Benson, Clerk/Administrator
PAGE _2 OF 2
BAY VIEW FARMS
1
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Mn3MNl
CITY of ORONO
Port Office Bos 66*Crysul Bay. MinncsoU 55323 •Monicipal Officca
Telephone 473-7357
Control No.500
TO:Timothy Peterson
280 Orono Orchard Rd. So.
Wayzata, MN
55391
Meeting Date 11-27-79
Notice Date
Copies to: Hugh Jaeger
20185 Cottagewood Ave.
Variance
Conditional Use Permit
Subdivision, Prellmlnar
Subdivision, Final
***»********^Hr-»i?##ff^#X8ftAA^**5i%jlr3rj>:***************************.fr*A**** **»*****■*****.
COUNCIL AtTfiON Vote: _i For _q. Against _ _Abstention
MOTION y-Qiincil revieweH PHa application innlntl'iny Staff reports aa «tont-
you, and listened to your attorney and to several neighbors. Council
tabled the matter until their December 11, 1979 meeting, formally
of HomrmHAyHahipg Ho
proven before a variance can be considered. These must be in to the City
Office by December 5, 1979. Council also requests your presence at the meet
ing, and submittal of the previously requested engineering data, including
an updated certification of the antenna height after your repairs of Nov. 1!
deadline date
X for submittal of new Information (application may be considered
formally withdrawn if information or explanation is not provided).
for Work Permit
application
for work to begin for work to be
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. Variance authority expires one year after approval.
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 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.
CITY of ORONO Control No.507
t
l*u«l OfTiw Boi 66*CrysUl Bay. MinnMoU 553^3 •Municipal Offica
Telephone 473-7357
TO;
Meeting Date ii
Notice Date _ _ _
Development Group Inc.
Box 286 Tonka West Offices
Spring Park, MN
55384
Copies to: Louis Oberhauser
1421 East Wayzata Blvd.
_ Variance
_ Conditional Use Permit
_ Subdivision, Prelimlnar)
_ Subdivision, Final
X Bldg. Review_ _ _ _ _ _ _ __
jH^**»***<nl^r^H>r<r»★§^^[^j^^j^^»ij^r^**^^^^>^l:^H?#^**^^•^»****★***************^*************»***l
COUNCIL ACTION Vote: For _ _ Against_ _Abstention
MOTION Council conceptually approved the revised plan as dated November 15,
1979, including conceptual approval of a variance for parking 10 ft. from th
front line, a conditional use permit for the driveway connection to the
Church lot (subject to City Engineer. MCWD and DNR review), and conceptual
rezonlng to B-4; subject to legal lot combination of the two parcels, in
stallation of a berm and landscaping along the highway per plans, and the
giving Ckf many ac poQgiHI^ if ♦■hig mi>y a Va>rianf!A
for parking spaces. All subject to the rezoninq being completed. The
next sten Is for vou to aonly for t^he rezoning - See Al Olson.
DEADLINE DATE _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
for submittal of new information (application may be considered
formally withdrawn if information or explanation is not provided).
for Work Permit
application
for work to begin for work to be
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. Variance authority expires one year after approval.
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 the City by deadline date.
Certified copies of official City Council Minutes may be obtained hy
contacting the City Clerk. Allow at least three weeks from meeting date.
CITY of ORONO Control No.474
IW Offic* Hoa 6fi*CrytUl Bay. MinnMoU &&333» Municipal OfTicaa
Telephone 473*7357
Ms. Kathleen Gluek t>^»mv
2440 No. Shore Drive ^73
Wayzata, MN
55391
Meeting Date ii-?7-7q
Notice Hate _ _
Variance
Conditional Use Permit
Subdlvlslr . Preliminar|
SubdlvlsJ Final
Copies to:
,V*************»******************************************************** ***»★***★**)
COUNCIL ACTION Vote: _3_ For _JL Against _ _Abstention
1 MOTION Council adopted attached Resolution 11094 approving vour final- - -
subdivision according to those conditions.
You must record the plat, resolution and flowage castmen^ and
return a receipt for such recording to the City on or before May 27, 1980.
DEADLINE DATE Mav 27^ 1980_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
for submittal of new Information (application may be considered
formally withdrawn if information or explanation Is not provided).
_ _ for work to be
completed
for Work Permit
application
for %rark to begin
WORK PERMITS ARE REQUIRED - contact Building Inspector before beginning
%fork.
VARIANCE APPROVAL Is limited to the extent shown on approved plans.
Do not change plans. Variance authority expires one year after approval.
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 the City by deadline date._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Certified copies of official City Coxincll Minutes aiay be ot>talned by
contacting the City Clerk. Allow at least three weeks from meeting date.
CITY of ORONO
f
l’«wl Offic* Boi 66*CryiUl Bay, MinnrKota 5r>323* Municipal OfTicca
Telephone 473-7357
Control No.494
TO:
Meeting Date November 27
Notice Date _ _ _ _ _ _
Henry Kingman
625 No. Ferndale
Wayzata, MN
55391
Variance
Conditional Use Permit
Subdivision, Prellmlnar}
Subdivision, Final
Copies to:
***»****iHr»*»***j^******************************************** A kkkkkkkkkkk kk-kirk-k**rtn
COUNCIL ACTION Vote: For _0_ Against _ _ Abstention
MOTION Council adopted attached Resolution 41095 formally approving your
variance oer ffoncepfeual approval on November 13._Sep item 6 on
page 4 for required grading plan to be submitted along with building
plans to allow site grading between the house and the shore. The effect
of this approval is to extend the same building envelope as was granted
to Nobel a year ago
iH^*AAAAA*****»**AA*AAAAjHlr**iir*A-******AAr*****AA**A'***************A***Ar»»AAA*AAAA**A*
DEADLINE DATE 11-27-1980 Variance Expiration_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
for submittal of new information (application may be considered
formally witndrawn if information or explanation is not provided).
for Work Permit
application
for work to begin for work to be
completed
WORK PERMITS ARE REQUIRED - contact Building Inspector before beginning
%»ork.
VARIANCE APPROVAL is limited to the extent shown on approved plans.
Do not change plans, variance authority expires one year after approval.
CONDITIONAL USE APPROVAL expires upon change of o«mership or use,
or on deadline date specified above.
PRELIMINARY SUBDIVISION APPROVAL - Applicant must provide all information
and/or improvements requited 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.
RESOLUTION NO. 1095 •
A RESOLUTION APPROVING
1X)T AREA, LOT WIDTH AND SIDE SETBACK VARIANCES
BUT DENYING LAKESHORE SETBACK OR HARDCOVER VARIANCES
FOR HENRY KINGMAN
WHEREAS, the City of Orono is a municipal corporation organized
and existing under the laws of the State of Minnesota; and
WHEREAS, the City has adopted zoning and flood plain management
ordinances pursuant to the authorities and jurisdictions
Citv bv Minnesota Statutes in order to promote the general public health,
safety and welfare and in order to protect the public interest against
ti»« dangers of flooding, flood damage or pollution of natural lakes and
wetlands; and
WHEREAS, Henry Kingman has applied for variances from certain
of the subject City ordinances for purposes of erecting a new single
family residence on a lot located at 1185 Ferndale Road West; and
WHEREAS, the Planning Commission and City Council have reviewed
said application and the Council makes the following finding of facts:
1. The lot is a single, separately owned parcel of land
containing 49,780 square feet of area, located in the
LR~1A Single Family Lakeshore Residential District which
district requires 2 acres (87,120 square feet) of land
per residences: Variance requested 37,340 square feet =
43% Section 34.352.
2. The lot is approximately 155 feet wide at its widest
point with approximately 135 feet of width at the shoreline
compared to LR-IA District requirements of 200 foot lot
width at the shoreline and at the building site:
requested 45 feet « 23% and 65 feet » 32% Section 34.352.
3. The applicant proposed a new house design and location
which includes side yard setbacks of 25 feet on the east and
29 feet on the west compared to LR-IA District requirements
of 30 foot side yard setbacks; Variances requested 5 feet “
17% and 1 foot - 3% Section 34.352.
4. In addition, the applicant proposed locating the house
55 feet from the Lake Minnetonka shoreline compared to the
minimum lakeshore setback of 75 feet required by both the
Zoning and Flood Plain Management ordinances: Variances
requested 20 feet = 27% Sections 31.831, 34.201, 34.202.
Resolution No. 1095
Page 2
5. The applicant proposed installation of a sewage holding
tank instead of a septic tank and on-site drainfield treatment
area which installation requires a variance from Section 22.20
Subdivisions 3 and 4 of the City’s On-Site Sewage Treatment
Code.
6. This same lot was the subject of an application for lot
area, lot width, side setback and holding tank variances by
John Nobel, application #429, which was approved by the
‘council on December 18, 1978. The Nobel application was based
upon a larger house design and included closer setbacks to
the side property lines, but included no request for any
lakeshore or hardcover variance.
7. In the approval of the Nobel application, and reaffirmed
in the review of this application, the Council finds that the
subject lot is a single-separately owned parcel which existed
prior to the effective date of the current LR-IA lot area and
lot width requirements and that there is no adjacent vacant
land available to increase the size of the subject property.
8. The Council finds that this lot is cf similar size and
configuration with adjoining and nearby lots which are built
upon and that approval of the lot area and lot width variance
request is necessary to preserve a substantial property
right for the applicant.
9. The Council finds that because of the narrowness of this lot,
approval of side yard setbac variances are necessary to
alleviate a demonstrated hardship in building on this property,
that side setbacks as proposed, or an approved for the Nobel
application, are consistent with required side setbacks in
other Districts with lot width requirements similar to the
actual size of this lot, and that approval of side setback
variances «rould not endanger the public health, safety or
welfare.
10. The Council finds that installation of a sewage holding
tank to service any house on this property is necessary because
of the high water table and low ground elevation of the property
which conditions preclude installation of a standard drainfield.
The Council finds that such approval is consistent with the
intent of the On-Site Sewage Treatment Code in such unusual
conditions, provided that the tank is properly and frequently
pumped and services according to the street requirements of
said Code.
11. The Council finds that the applicant has not presented
nor proven any hardship which would justify granting of any
variance to any lakeshore or wetlands setback, and further the
Jtesolution No. 1095
Page 3
I
Council finds that the house as designed and proposed by the
applicant, including all necessary driveways, turnarounds, fill,
and appurtenances, can in fact be located at least 75 feet
from the lakeshore line and at least 26 feet from the pond on
the property:
a. Applicants claim that a location closer to the lake
would reduce direct drainage from the house to the lake
is found to be unjustified in that the roof design
directs a majority of the water away from the lake, in
creasing the lake setback increases the opportunity to
direct all water away from the lake by appropriate site
grading, and increasing the lake setback increases the
grass and groundcover area capable of absorbing any
runoff which may be directed toward the 7*ke, all factors
being in keeping with the intent of such oetback to
provide adequate storm water filtration and pollution
protection for Lake Minnetonka.
b. Placing the house 75 feet from the shoreline will
not materially alter any view of the lake from such
house because of the shoreline configuration, the
location of adjoining houses and the large conifers
lining both property lines.
c. Placing the house closer to the pond will not materially
affect the apparent distance from the pond and will
not require encroachment on the required 26 foot setback
from the pond.
d. Placing the house where proposed %#ould actually result
in placement ahead of the adjacent house to the east
contrary to the intent of Section 34.201.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the
City of Orono hereby approves issuance of certain variances but denies
approval of other requested variances, having the effect of permitting
construction of a single family residence on the subject lot within
the allowable area shown on Exhibit A attached, pursuant to the following:
1. The Council hereby approves lot area and lot width variances
as requested.
2. The Council hereby approves renewal of the side yard setback
variances as approved for John Nobel in 1978, specifically
18 foot setback on the west and 23 foot setback on the east,
noting that this approval is more than requested by Henry
Kingman which allows for flexibility in relocating and/or
redesigning the Kingman proposal without further Council
action required.
HSSMiiiieeii
Resolution Ho. ^-095
Page 4
3. The Council hereby approves issuance of an On-Site
Sewage Treatment Code variance to permit installation and use
of a sewage holding tank subject to strict compliance with all
holding tank maintenance requirements.
4. The Council hereby denies approval of the requested
lakeshore setback variance, instead requiring that all
structures or hardcover of any kind shall be located at
least 75 feet from the shoreline of Lake Minnetonka and at
least 26 feet from the edge of the pond as shown on Exhibit A.
5. All structure construction including driveways, decks,
patios, planters, future accessory buildings, etc. shall occur
within the allowable area shown on Exhibit A except for the
driveway connection to the existing access easement, also
as sho%m on Exhibit A.
6. The minimum floor level of any building on this property
shall be 932.5 feet MSL as required by the Flood Plain
Management Ordinance and the State Building Code. A minimum
amount of fill necessary to achieve this elevation and to assure
proper structure drainage may be placed between the 75 foot
setback line and the high point of the lot located about
55 feet from the shoreline, provided a grading and drainage
plan showing all such fill shall be submitted with the
building permit application and shall be approved by the
City Engineer prior to issuance of the building permit.
No fill or construction grading shall occur within 50 feet
of the shoreline or within 26 feet of the edge of the pond.
7. Construction plans and permits shall be reviewed and
obtained pursuant to State Building Code requirements.
Adopted by the City Council this 27th day of November, ^979.
■6/rfl
William B. Van Nest, Mayor
Attest:
Walter R. /Benson, CClerk/A<iministrator
EXfffB/T A . -i£25.
FeKN041.£
M* mh4%
LAKESHORE & WETLANDS
REGULATIONS
DRONO ORDINANCE PROHIBITS
EXCAVATION. FILLING. GRADING.
DREDGING. TREE REi^OVAL OR
CONSTRUCTION OF ANY KIND
WITHIN 75 FT OF ANY SHORELINE
WITHIN 26 FT OF ANY WETLANDS
PERMITS ARE REQUIRED FOR
DOCKS. SEAWALLS. RIPRAP
\M^TC: s \
crry iPAiR \
FIP0O PLAI$J \ \
c.LCVJcn^ g 93l»5 \
FLOOft
15 w.sri
i c»'^y p«D.
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tAKe A^cc^
18 NORTH WESTKRN REl>ORTER. 2d BERin
NOV 1979
cm lE ORONQ
id any interference with this flow to their
iilury it a wroiif for which they are en*
tiled to an appropriate remedy.^ To pre«
vw such a wronf, injunction is an ap-
pr^riate remedy.” Morrill v. Saint An-
tho» Falls Water-Power Co., 26 Minn.
2221229. 2 N.W. 842, 847, 37 Am.Rep. 399;
irn ▼. People’s Ice Co., 82 Minn. 43,
^ 641, 51 L.R.A. 829, 83 Am.St.Rep.
id Schaefer v. Marthaler, 34 Minn.
N.W. 726. 57 Am.Rep. 73, supra.
Youn|ltown*s plan contemplates the tak-
in|[ of property without just compensation
and wimout condemnation proceedini^s as
prescrilw by the lease and statute. This
is a violtion of plaintiffs* private rights
which thl* will suffer not in common with
the puUiwenerally hut as a damage sole
ly to theiw^A private property.
Younfstwn objects that plaintiffs* dam
age, if any,was not been shown to be ir
reparable. A cases of this nature, the rule
has been momhed as expressed in Bilsbor*
row V. PiercA 101 Minn. 271, 276, 112 N.
W. 274, 276, Vhich involved damage re-
suiting from alrainage project:
^ Thlrelaxaticn of the rule re
quiring a prima%acie case of irreparable
damage as a condition of granting an in
junction in such a\ue as this, and a modi
fication of the enfVced standard of such
damage obvious im such decisions gen
erally, has been ex^’^ssly recognised by
this court.**
In Whittaker v. SVngvick, 100 Minn.
386, 392. Ill N.W. X. 297. 10 L.R.A.,
N.S., 921, 117 Am.StR% 703, 10 Ann^Cas.
528, it was stated: **were has been a
material modification in^ch cases of the
requiremenu that the inj» should .be ir
reparable and the legal Vemedy inade
quate.**
[21] We are of the option that the
complaint sufficiently allegeswhe injuries
whi^ will result if Youngmpwn*s pro
posed plans are put into opMtion, and
that the evidence sustains the <Mit*s find
ing that such operations, if penwted, will
constitute a trespass upon plaintiff^ ripari
an rights and that the nature S these
threatened injuries is such as tonentitle
plaintiffs to injunctive relief.
Afirmed.
Ns. SI72I.
Juiie«j94^
1. DsSIcatlsa
A street having been located by a plat
on the shore of a lake, its dedication to
the use of the public will be presumed to
have been intended to enable the public to
have access to the water for all proper
public purposes. Mjnn.Stl941, | 505.14.
2. Mualelpal corporatisas CafiS7(f)
Where it is proposed to vacate a
street which is located upon a lake shore,
the final test is whether the public interest
will be best served by discontinuing the
way.
S. Evideaes Cal0(5)
Judicial notice wiff be taken of the ex
tensive public use being made of Lake
Minnetonka for recreational purposes.
4. Msalelpal csrpsratlsas CafiS7(l)
The word *'useless**, as used in statute
permitting vacation of a street when it has^
become useless for the purpose for which
it was laid out, should not be given any re
stricted meaning, but should be given the
meaning of the term as commonly defined
as being of no use, uuserviceaMe, and an-
twerine no desired uuroose. Minii.St.194L
I 505.14.
See Worda sad fbrasca. PrrouNirat
Ediftoii. for an sdwr driritiros si
**Ustltts'*.
8. Maalslpal esrpsrallsas #->8S7fS|
In the absence of any showing that a
portion of street leadmg to the lake shore
had become **uselesiT, within meaning of
statute permitting vacation of street when
it becomes useless for the purpose for
which it was laid out, refusing to act aside
timely motion to reopen proceedings in
which decree vacating street was entered
was an abuse of disaetion. Mina.St.1941,
I 505.14.
5>llabur ly lb# Coswt.
1. A dedkatioo by pUt of a street upon
the shore of a meanderod lake will be pre
sumed to have been uttended to enable
the public to have access to the lake for all |
proper public purposea
2. The final test in determining wheth
er a street located laoo the shore of a
i
. •
» 9
• • . .
%n
3
plat
to
I to
: to
>pcr
1.14.
e a
ore,
:reit
the
€*-
^Ve
itute
haa
•hich
r re-
tbe
ftncd
I an-
\94\.
at
•f
Hat a
shore
If of
when
: lor
aside
;s in
itered
.Wl.
upon
e pre-
:nab1e
tor all
vbeth-
of a
APPUCATION OP BALDWIN
IS 9i,WJt4 IS4
HIb&
meandered lake may be vacated upon pe
tition of an interested property earner is
whether the public interest will be best
served by such vacatm.
3. Judicial notice will be taken of the
character of Lake Minnetonka.and the ex
tensive public use made of the lake for
recreational purposes.
4. The word ''useless** in Minn.St.194L
5 505.14 (Mason St.l927, | 8244), permit
ting vacation of a street when it is "use
less for the purpose for which it was laid
out,*' must be given its full and unrestricted
meaning.
5. Refusal to set aside a decree vacat
ing a public street located upon the shores
of Lake Minnetonka upon petition of an ad
joining owner not personally served with
notice of the vacation proceedings hM
erroneous.
Appeal from District Court, Hennepin
County; Levi M. Hall, Judge*
is owned by Albert Jacoby, who consented
in writing to the partial vacation of the
street
Appellants are the owners of a lake-shore
lot abutting on the same street and lying im
mediately east of the portion sought to be
vacated. They occupy their property only
during the summer months of each year
but, during such period, have occasion to
use the portion of Lake Street sought to
be vacated as their most direct connection
with county road No. 82, leading to Minne
apolis and Excelsior. They can, how
ever, by a more circuitous route, via West
Street, also reach the county road.
Lake Street was dedicated to public use /
in 1883 by the plat of Dennett's Addition to_^
Covington, hied in that year. However!
the portion of the street here involved has
never been graded or otherwise improved
by the township, and its use as a thorough
fare by the public generally has not been
extensive.
^ Proceeding in the matter of the applica-
g tion of Edward H. Baldwin and Hazel
I Baldwin to vacate a portion of Lake Street
V located on the north shore of St. Albans
\ Bay of Lake Minnetonka, Hennepin Coun-
X ty, wherein a decree was entered as prayed
I Arne Bergren and another subsequently
V filed a motion to set aside the decree. From
an order denying the motion Ame Bergren
and another appeal
Reversed
Thomas TaUakson« of Minneapolis, for
appellants.
O. J. Grathwol, of Excelsior, and John
son, Sands & Brumfield, of Minneapolis,
for respondeuti.
On August 14, 1942, on application of the
Baldwins, the district court made an order
fixing September 8 as the date of hearing
on their petition to vacate the portion of
Lake Street which has been described.
Pursuant to directions contained in the or
der for hearing, it was duly published and
posted and a copy served upon the chair
man of the township of Excelsior. The
order did not direct service upon appellants,
and they were not personally served, nor
did they have actual notice of the proceed
ings until after a decree of vacaiioo was
entered.
STREISSGUTH, Justice.
This is a proceeding under Minn.Stl941,
I 505.14, Mason Stl927, | 8244, for the
vacation of a short stretch of Lake Street
(about 150 feet) located on the north shore
of St. Albans Bay of Lake Minnetonka in
Excelsior township, Hennepin county, de
scribed as "All that part of Lake Street ly
ing between the southeasterly line of Coun
ty Road No. 82 and the southwesterly line
of West Street extended to the shore of
Lake Minnetonka, Bennett's Addition to
Covinron.** The petitioners, Edward H.
Baldwin and Hasel Baldwin, who are re
spondents here, own two lots, with a front
age of 50 and 51 feet respectively, abutting
00 Lake Street, while a third abutting lot
15K.W.2d-U|fi
When the matter came on to be beard in
district court no opposition appeared. The
trial court, after hearing the petitioners,
made appropriate findings, including one
following the language of the petition, viz.:
"That the portion of said Lake Street so
described is useless for the purposes for
which said street was laid out; that all of
the property owners abutting on said por
tion of said street are desirous of having
it vacated, and that said portion of said
street is now of no use to your petitioners
or to any other person for the purposes for
which said street was laid out.**
A decree vacating the described portion
of Lake Street was accordingly enierctLm
September 14, 1942.
All was well until the following spring,
when the Bergrens moved back to the lake
for the summer. With apparent innocence,
they began using the vacated portion of
";
f !
5-n
' •
18S »•*“
15 NORTH WESTERN REPORTER. M SERIES
for the BiWwin* warning h|W ^ «ooe1Unt$ the district court, by order
timie the use of the vacsied 2ted*Seplember 23. 1943, refused to set
he would be subject to 1*C 9 enraged aside iu former decree so as to permit a|^
doing to." Bergren SJ ^anu to be heard in opposition to the
hi,pre^ta^^ey t^nv*«^^^ **“ ****
happcnc^ tlie 19€2 dtCTCc and dca I is froin th*t order,
of a »o»^to appear in op- jjj | Throughout. €w>nnit the Berrrens to appear in op- | Throughout the proceeoings
o Jhe vacation of the «reet was owners have ^phtjuea
JSiTupon the Baldwins, as well as u^ ^ of the vacated
the oc«Snt and record owuct of other . „„et or thoroughfare ai^
«r«oertv. and upon the chairman . ,pp,jj,nn have another «ree» "
and record ow»^ of other . „„.t or *oroughUr« aij
* ^fMiertv •nd upon the chiirman o ^ appelUnts hivt another street as
AcofS^I witice of nKH ^ncctn to their property,
iTtiTiiAr*^" **’*”* s^cutm”
- - *• 7: i^riliir^^ings. They relied mamty upon t ■^□KH^fflfl«och consideration to the
cUims (1) that the Bergrens had not b^ |® Street, located as it is on the
^Tuk. sl^ I„d.« • f g'Hii Til ifflii Himii M
itrMt or thoroughfare untU
Baldwins filled in a portion ^Uke |trw ,l,o„ of Ae bay.
.djacent to the county r~d.^m«-^ Vj , 1|rilir,n^
Sf'srr “ca^eS'pSr
y miess to the public fw *>»« *S l!!l!!Lr nublii^ numoses," J« «
for >* for p«- PetltSm ol^i^t'^. ^ 259 K
used by the public w by apyw* . , w eop 530 beadnote:
!!I1 of Ae location of said street boo* between private individuals wth mem
sooincrij cw vn wawa
Supporting the Baldwina ta their ^i.Mt7 abounds, are of r*»»
to prevent a reopening of tlw (teipwunce," Witty v. Board of Co^
were the three toi^ 'rJrrfrs of NicoUet County. 76
alMarif asserted that. "PT ^79 N.W. 112. 113. and thu court has
with notice of the original neanng ~ i„ protKung tn^
they had made a complete investi^ i.«,«.».« » State. 52 Minn. 181, 53 N.W.
and had concluded that the portioo of L.ILA. 670, 38 Am.St.Rep. Ml;
Suemhere invMved "wa. -o good for^ £^1^^117 Minn. 369. 135 N.
purpose for which it was laid out JJ 1S3 ' Mate v. Korrer, 127 Mum. «,
public by the Erickschen v. County of Sib^. Min^mpervisora farther depoaod"ttot ^ ggs; in
ful purpom would be ler supra; In re Petition ®*
inter^^the public woaM be ^ „^V2d 803; Petraborg v.
by urder of thu court selimg as^ tb^ N^ ,74
2ilrjust what beneit the puMic ^ ^c»'. iSll And where, a. here, it is
js^rt^LS si:3*t jLr ^
h •
\
r*2
^ application or baldwih
itat which ~^^«i,?!^2."w^^^'^’”^‘“-“«r. ed V "®* *>“* which ««ure.t irs W w .u^”^'"""
SwlHif"''.'" •“"«*•• • *fc«fh"ih?!™ '•
hc& S- “’"; ”*" "“' ■''» «ow.2 .r.rpszsl^s
S'ucSf'"""'°T'?*’■'*"«
-na lo preserve for the cnmvm^» V •^cess t
of this and future fenerations all ImdiM t%i nt a k
W IThUcoun ___________ . . ■*!?• ’
•*^T1f ♦TT7?TT^^jyffPf5
WA. 11^^. rt r:-
Bennse of its wide >»|»»««tr ami ^ beuij of no nse; nn.
‘0 our nwtropoliun Sirt^,S^T*^ .w7r?,I^ "® «“«; “
V*«wed and used for hoi. W. P“n»ie.- Funk &sss-ju^iojr- Fu„k *
.kT ^ “« « fie state I». (2d Ed.) 19M l#icUona»y
ihi/r "t w ■”'<-^".:SiJU »_a»,iuhiy i..
lya
for the
«f«ste a
•PSh ■mem
¥
Igg llllUL 16 NORTH WESTERN REPORTER, 2d SERIES
precedent hy permittinf a fingk inroad,
however imill, upon the public's sharo of
the shore line, other inroads will inevitably
follow, until the aggregate becomes a red
threat to the public's free acceu to the
lake. To avoid any possibility of such a re
sult, the courts should with equal .vigor re
pulse the first, the second, and every other
assault upon the public domain.
If eternal vigilance is the price of pre
serving the full benefit of Minnmota's lakes
for all members of the public—as it is of
liberty—public officials must gladly pay
that price. They must not stand by, wholly
unconcerned, like Nero, who fiddled while
Rome burned, and permit public access to
our lakes to be cut off or reduced for sel
fish private purposes. Yet here town
supervisors appear to have been entirely ob
livious to the full import of the petition,
of the filing of which they received notice.
Not only did they fail to protest, but they
actually gave aid and comfort to the pe
titioners in their raid upon the public's con
servation chest
be supported by clear proof that the street
has in fact become "useless" to the public
in the full and unrestricted meaning of
that term.
Reversed.
• jin—
la ra LIPSCOMB,
Na. 337S9.
Supreme Cooit of Mlnoeiota.
June 2, 1044.
1. Attaraay aad ellaat ^39
Conviction of a felony cr a misde
meanor involving moral turpitude results
in disbarment as a matter of course, even
though sentence is suspended. Minn.St
1941,1481.15, subd.l(l).
The obvious purpose of providing notice
to the town supervisors of proceedings to
vacate a street or highway is to put these
officers on guard, so that the ifiteresu nf
the miblic imy be The
supervisor^o^iixcelsior township havingWpervisdrs oi nxceisior township having
failed in their duty in this respect and
having permitted a default to be entered, it
is at least understandable why the petition
was originally granted by the lower court
But when the court's decree vacating the
street was promptly atudeed by appellants
upon their receiving notice of the proceed
ing, the trial court should have been alert
to the public interest and, unhesitatingly,
should have reopened it; and this, not-
withsunding that appe^nts' motion to re
open was motivated principally by the an
ticipated damage to their own property.
Not to reopen the proceeding in the public
interest was a clear abuse of discretion, and
the order denying appeUanu* motion must
be reversed.
2. Afleraty and clltal ^39
The record of conviction of a felony
or a misdemeanor involving moral turpi
tude is conclusive in disbarment proceed
ing and cannot be questioned by proof
aliunde. Minn.SLl941, | 481.15, subd*
1(1).
I. Attaraey aai cllsat C»54
That money which client owed attor
ney. but refus^ to pay would have been
more than enough to take care of another
client's claim did not constitute tu^ »•
tenuating circumstances as wo^ justify
a reference of proceeding to disbar attor
ney for embesalement of second client's
money. Minn.SLl941, | 4B1.1S, subd. 1(1).
Proceeding on order to show cause why
Allen H. Lipsamb should not be dis
barred.
If in view of the importance we have
attached to the preservation of our lakes
and full access thereto for the public and
for posterity, respondents still desire to
urge that portion of Lake Street be
tween their property and St Albans Bay
has become "useless for (he purpose for
which it was laid out," they will be ac
corded that privilege. We may not have
all the facts. But respondents should un
derstand that any decree of vacation must
Respondent disbarred.
Philip Neville, Sec'y, State Board of
Law Examiners, of Minneapolis, for peti
tioner.
Henry G. Young, of Minneapolis, foi
respondent
PER^CURIAM.
' On October 27, 1943, respond^!, an at
torney at law didy licensed to practice in
our sute, pleaded guilty to an tnfonna-
»• •
t:
1’.
• f
I
• •
I •
i I
lion charging
$522 belonging
tenced to the f
a term of not
order of the di
sentence was s
on probation f
Respondent *
disbarred heca*
tence was suf
Icged cxtoiaai
swer admits th
money with f
priation of al
only explanati
this happened
ing from anotl
him, and that,
er money, it *
enough to tal
claim.