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Home My WebLink AboutCourt summons-2013 , - i , j I -�'Y� � �' �,�> 1�{�� i� �� , f-� � f �. , f�1� j , � . �;-a� �-�: ,,-; -�i�- c �_,��-,. , ��C ��%= � , /Z�<<�%;-r,� STATE OF MII��NESOTA DISTRICT COURT COLINTY OF HENNEPIN FOURTH JUDICIAL DISTRICT Ryan Alness and Stacy Alness, Court File No. Plaintiffs, Case Type: Civil vs. SUMMONS City of Orono, a Minnesota municipal RECEIVED . „a1 ;,�` � �..�� corporation, 1 �,�w � � (( _ " NOV 2 6 2013 ��r� ' Defendant. CITY OF ORONO TIiIS SUMMONS IS DIRECTED TO: THE ABOVE REFERENCED DEFENDANT 1. YUU ARE BEING SUED. The Plaintiff has staried a lawsuit against you. The Plaintiff's Complaint against you is attached to this summons. Do not throw these papers away. 7'hey are official papers that affect your rights. You must respond to this lawsuit even though it may not yet be filed with tl�e Court and there may be no court file number on this summons. 2. YOU MUST RCPLY WITHIN 20 DAYS TO PROTECT YOUR RIGHTS. You must give or mail to the person who signed this Summons a written response called an Answer within 20 days of the date on which you received this Summons. You must send a copy of your Answer to the person who signed this summons located at: Wilkerson & Hegna, P.L.L.P. Attn: Morgan Kavanaugh �300 Metro Blvd., Suite 300 Edina, MN 55439. 3. YOU MUST RESNOND TO EACH CLAIM. The Answer is your written response to the Plaintiff's Coinplaint. In your Ans�ver you must state whether you agree or disagree with each paragraph of the Complaint. If you believe the Plaintiff should not be given everything askcd for in thc Complaint, you must say so in your Answer. 4. YOU WILI, LOSE YOUR CASE IF YOU ll0 NOT SEND A W12ITTEN RESYONSE TO THF. COMPLAINT TO THE PERSON WNO SIGNED THIS SUMMONS. If you do not provide an Answer within 20 days, you will lose this case. You will not get to tell your side of ihe story, and the Court may decide against you and award the Plaintiff everything asked for in the Complaint. If you do not want to contest the claims stated in the Complaint, you do not need to respond. A default judgment can then be entered against you for the relief requested in the Complaint. A �U�`'' C�L'�d� ��. .� (n C�.,'�� ° �2a � � , 5. LEGAL ASSISTANCE. You may wish to get legal help from a lawyer. If you do not have a lawyer, the Court Administrator may have information about places where you can get legal assistance. Even if you cannot get legal help, you must still provide a written Answer to protect your rights or you may lose the case. 6. ALTERNATIVE DISPUTE RESOLUTION. The parties may agree to or be ordered to participate in an alternative dispute resolution process under Rule 114 of the Minnesota General Rules of Practice. You must still send your written response to the Complaint even if you expect to use alternative means of resolving this dispute. This action involves real property situated in the County of Hennepin, and State of Minnesota, legally described as follows: Lot 17, Lot 36, and that part of Lot 37 lying North of a line situated 25 feet South of and drawn parallel with the North boundary of said Lot 37, all in Skarp and Lindquist's Fernhill, Lake Minnetonka, Hennepin County, Minnesota AND Lot 7, "Skarp and Lindquist's Fernhill, Lake Minnetonka, Hennepin County, Minnesota WILKF,KSON & HEGNA, P.L.L.P. Dated: l � f a� ,2013 By��V " ( ^ Kyle J. Hegna(# 240 ) Todd J. Baumgartner(#0284397) Morgan W. Kavanaugh(#0391253) 7300 Metro Boulevard, Suite 300 Edina, MN 55439-2302 Telephone: (952) 897-1707 Facsimile: (952) 897-3534 ATTORNEYS FOR PLAINTIFF . • STATE OF MINNESOTA DISTRICT COURT COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT Ryan Alness and Stacy Alness, Court File No. Plaintiffs, Case Type: Other Civil vs. City of Orono, a Minnesota municipal VERIFIED COMPLAINT FOR corporation, DECLARATORY RELIF, OTHER RELIEF AND Defendant. PETITiON FOR WRIT OF MANDAMUS Plaintiffs Ryan and Stacy Alness ("Plaintiffs"), for their Verified Complaint and Petition for Writ of Mandamus against Defendant City of Orono ("Orono"), states and alleges as follows: YAKTIES,JURISDICTION AND VENUE 1. Plaintiffs are individuals residing in the State of Minnesota at 1169 North Arm Drive, Orono, Minnesota 55364. 2. On information and belief, Defendant City of Orono is a Minnesota municipal corporation located in Hennepin County, created existing under the laws of the , State of Minnesota and is a public corporate body. 3. The Minnesota District Court, County of Hennepin, has jurisdiction over all claims set forth in this Complaint because the Property at issue in this action is situated in the City of Orono, County of Hennepin, State of Minnesota. 4. Venue is likewise proper because the subject matter of the dispute and the events giving rise to the dispute all arose within Hcnnepin County, State of Minnesota. FACTUAL BACKGROUND 5. Plaintiffs own real property in the City of Orono, Hennepin County, State of Minnesota with an address of 1169 North Arm Drive, Orono, Minnesota 55364 (the"Property"), legally described as follows: 1 . ^� ` Lot 17, Lot 36, and that part of Lot 37 ]ying North of a line situated 25 feet South . of and drawn parallel with the North boundary of said Lot 37, all in Skarp and Lindquist's Fernhill, Lake Minnetonka, Hennepin County, Minnesota. (the "Off- lake Parcel"). AND Lot 7, "Skarp and Lindquist's Fcrnhill, Lake Minnetonka, Hennepin County, Minnesota. (the"Lake Parcel"). 6. On information and belief, the Property consists of two tax parcels that have been physically separate lots since at least 1933. 7. The Lake Parcel is on the opposite side of Elmwood Avenue and offset from the Off-lake Parcel by approximately 100 feet. 8. The Off-lake Parcel contains Plaintiffs' residence. 9. On information and belief, the Lake Parcel and the Off-lake Parcel have been commonly owned since 1969. 10. On information and belief, Plaintiffs' predecessors-in-interest used the Lake Parcel for dock and lake access purposes since 1969. 1 l. In 2001, Plaintiffs' predecessor-in-interest Kristi Roesler applied to the city for a variance in order to make the Lake Parcel buildable. 12. Defendant denied Kristi Roesler's variance application to make the Lake Parcel buildable. 13. Defendant then required Kristi Roesler to enter into a "Special Lot Combination Agreement" if she wanted to continue using the dock on the Lake Parcel as it had been used since 1969, which also contained numerous restrictions on the use of the Property (the "Restrictive Covenant"). Attached hereto as Exhibit A is a true and correct copy of the Special Lot Cornbination Agreement. 14. Defendant had been aware since at least the early 1980's that a dock had been located on the Lake Parcel. 15. The intent and purpose of the Restrictive Covenant was to continue to allow Kristi Roesler to continue using her dock on the Lake Parcel without a primary structure. 2 16. The Restrictive Covenant contains a covenant that completely restricted Kristi Roesler's ability to separately sell the Lake Parcel. 17. The Restrictive Covenant prohibited any use whatsoever of the Lake Parcel beyond use as lake access for the Off-lake Parcel. 18. The Restrictive Covenant purports to run with the land and Defendant alleges its binding upon Plaintiffs. 19. In 2007,Plaintiffs' purchased the Property from Aurora Loan Services, LLC. 20. In 2009, Minn. Stat. § 462.357 was amended to allow building on nonconforming . single lots of record located within a shoreland area, without variances from lot size requirements, provided that: "(1) all structure and septic system setback distance requirements can be met; (2) a Type 1 sewage treatment system consistent with Minnesota Rules, chaptcr 7080, can be installed or the lot is connected to a public sewer; and (3) the impervious surface coverage does not exceed 25 percent of the lot." 21. In 2013, Plaintiffs observed that the owner of Lot 9 commenced building on Lot 9. 22. The owner of Lot 9 is similarly situated as Plaintiffs' in that Lot 9 was used solely for lake access and dock purposes and the owner of Lot 9 owned a back lot with a residence. 23. The owner of Lot 9 was not required by Defendant to enter into a Special Lot Combination Agreement despite the fact that Defendant required Plaintiffs' predecessor-in-interest to restrict her ownership of the Lake Parcel to keep her dock. 24. In fact, it was later discovered by Plaintiffs that the owner of Lot 9 sold Lot 9 separately from his off-lake parcel for development purposes. 25. Thereafier, in mid-2013, Plaintiffs approached the city to obtain the necessary building permits to begin building a residence on the Lake Parcet. 26. Defendant informed Plaintiffs that they would not be allowed to build a residence on the Lake Parcel due to the Restrictive Covenants on the Property. 27. Defendant informed Plaintiffs that they were required to first submit a Subdivision Application, along with building plans for staff review and 3 . recommendation, which would then be subject to consideration by the Planning Commission and City Council. 28. Paragraph 7 of the Restrictive Covenant states that: "The terms and conditions of this indenture may be modified, amended or extinguished and thereafter Parcel A and B may be subdivided, sole separately or reduced in part only upon application by Grantor to Grantee for approval of a "Subdivision" in accordance with the platting code of the City in effect at the time of such application." 29. Plaintiffs complied with Defendant's request and submitted a Subdivision ; Application to city staff along with their building plans. 30. Plaintiffs' application was deemed complete by Defendant on August 20,2013. 31. City staff recommended denial of Plaintiffs' Subdivision Application, based on the Restrictive Covenant on the Property that barred building or selling the Lake Parcel, among other reasons, including the fact that a city lift station was located in the public right-of-way,blocking access to the Lake Parcel. 32. A Planning Commission Meeting was held on September 16, 2013 to consider Plainiiffs' application. 33. At said Planning Commission Meeting, Defendant admitted that hut for the Restrictive Covenant, Plaintiffs would be allowed to build on the Lake Parcel and sell the Off-lake Parcel. 34. Further, at the Planning Commission Meeting, Defendant admitted that the only thing preventing Plaintiffs' from building on the Lake Parcel was the Restrictive Covenant, and that Plaintiffs' building plans met all necessary requirements. 35. On information and belief, Defendant's built a lift station in the public right-of- way that has been and is preventing reasonably convenient and suitable access to Plaintiffs' Lake Parcel. 36. Despite the fact that it was Defendant that caused the access issue to Plaintiffs' Lake Parcel, Defendant's attempt to cite to the lack of access as an issue Plaintiffs were required to resolve as part of its building plans if the city decided to allow Plaintiffs' to build on the Lake Parcel. 37. The Planning Commission voted 4-3 to recommend to the City Council denial of Plaintiffs' Subdivision Application. 4 38. At the City Council meeting on October 14, 2013, Defendant again reiterated that but for the Restrictive Covenant, Plaintiffs would be able to build on the Lake Parcel and sell the Off-lake Parcel. 39. Further, Defendant again admitted on the record that the only thing stopping Plaintiffs' from building on the Lake Parcel was the Restrictive Covenant and that Plaintiffs' submitted building plans meet all other requirements. 40. The City Council voted 3-1 on a motion to direct city staff to draft a resolution for denial of the requested subdivision to extinguish the agreement. 41. On October 28, 2013, the City Council voted 3-0, with 2 abstaining, on the resolution denying Plaintiffs' Subdivision Application. 42. As a result of the foregoing, Plaintiffs are aggrieved by a decision by the City of Orono, and will be ineparably harmed by its wrongful actions, and are entitled to declaratory, equitable and other relief, terminating the Restrictive Covenant, and an order directing Defendant to approve Plaintiffs' application and building plans. COUNTI DECLARATORY JUDGMENT 43. Plaintiffs' restate and reallege paragraphs 1 through 42 of the Complaint. 44. Pursuant to Minnesota Statutes Chapter 555 and Rule 57 of the Minnesota Rules of Civil Procedure, an actual controversy exists regarding the parties' rights and obligations related to the Restrictive Covenant. ' 45. As such Plaintiffs request that the Court declare the rights, status and interest of the parties herein and that the Restrictive Covenant is unenforceable and void as a matter of law. 46. Plaintiffs are seeking declaratory judgment from the Court finding Defendant's action of exacting Plaintiffs' predecessor-in-interest to sign the Restrictive Covenant was without any basis in law and is unenforceable and void. 47. Plaintiffs also seek a declaratory judgment from the Court finding that the Lake Parcel is a buildable lot, directing Defendant to approve Plaintiffs' application and/or administratively dissolve the Restrictive Covenant, and directing Defendant to provide Plaintiffs with reasonably convenient and suitable access. 5 COUNT II BREACH OF CONTRACT 48. Plaintiffs' restate and reallege paragraphs 1 through 47 of the Complaint. 49. Pursuant to the Restrictive Covenant with Defendant in connection with the Property and based upon the facts alleged above, Plaintiffs had a valid and enforceable agreement and expectations with Defendant regarding the circumstances that would warrant termination of the agreement. 50. As a direct and proximate result of Defendant's actions and omissions in denying Plaintiffs' application, Defendant breached the agreement with Plaintiffs and subsequently, Plaintiffs has been damaged in an amount to be proven at trial, but reasonably believed to be in excess of$50,000.00. COUNT III EQUITABLE RELIEF 51. Plaintiffs restate and reallege paragraphs 1 through 50 of the Complaint. 52. Plaintiffs are entitled to have and did have an enforceable reasonable expectation of honesty, integrity and reasonable conduct by Defendant in its enforcement of the Restrictive Covenant. 53. Plaintiffs had an enforceable reasonable expectation that the Restrictive Covenant was for the sole purpose of allowing Plaintiffs predecessor-in-interest to continue using her dock and not to bar future development of the Lake Parcel; Defendant has violated this reasonable expectation. 54. Plaintiffs are entitled to equitable relief, including but not limited to, the termination of the Restrictive Covenant and approval of Plaintiffs Subdivision Application and building plans. COUNT IV SPECIFIC PERFORMANCE (IN THE ALTERNATIVE) 55. Plaintiffs restate and reallege paragraphs 1 through 54 of the Complaint. 56. Defendant and Plaintiffs predecessor-in-interest entered into a valid, binding agreement to allow Plaintiffs' predecessor-in-interest to continue use of her dock. 6 57. The Restrictive Covenant provides that the Restrictive Covenant can be terminated upon application to the city. 58. Because the circumstances have changed,the Lake Parcel is now a buildable lot. 59. Defendant has failed to perform as required under the Agreement by refusing to terminate the Restrictive Covenant as contemplated. 60. Such failure of Defendant to perform is a default under the Agreement. 61. Plaintiffs desire to proceed with building on the Lake Parcel, as would be allowed but for the Restrictive Covenant. 62. Plaintiffs cannot be sufficiently compensated except by specific performance of the Agreement and Plaintiff has no adequate remedy at law. COUNT V RECISSiON 63. Plaintiff restates and realleges paragraphs 1 through 62 of the Complaint. 64. Plaintiffs' predecessor-in-interest entered into the Restrictive Covenant based on the misrepresentations of the Defendant that it was solely to allow for a dock and would not bar future development of the Lake Parcel should circumstances change. 65. Despite a clear record to the contrary that the intent of the Restrictive Covenant was to allow Plaintiffs predecessor-in-interest to keep her dock, Plaintiffs discovered the representations made by Defendant was false and that Defendant now intends to use the Restrictive Covenant to prevent any development on the Lake ParceL 66. Based on the Defendant's misrepresentations, Plaintiffs are entitled to recission of the Restrictive Covenant. COU1�1T VI MUTUAL MISTAKE 67. Plaintiffs restate and reallege paragraphs 1 through 66 of the Complaint. 68. On July 23, 2001, Defendant and Plaintiffs' predecessor-in-interest entered into the Restrictive Covenant for the purposes of allowing a dock on the Lake Parcel. 69. Defendant and Plaintiffs' predecessor-in-interest did not accurately reflect the : actual purpose of the Restrictive Covenant. 7 70. The Restrictive Covenant as executed by the Defendant and Plaintiffs' predecessor-in-interest,failed to express the parties' true intentions. 71. The failure to allow for development of the Lake Parcel in the future should circumstances change that would allow for development was the result of mutua] mistake by Defendant and Plaintiffs' predecessor-in-interest. 72. Circumstances have changed that would allow for development of the Lake Parcel, so Plaintiffs' made an application to the city for subdivision and approval of their building plans. Defendant has refused to approval Plaintiffs' application. 73. Plaintiffs cannot be sufficiently compensated except by specific performance or termination of the agreement and Plaintiff has no adequate remedy at law. COUNT VII FAILURE TO llISCLOSE MATERIAL FACTS 74. Plaintiffs restate and reallege paragraphs 1 through 73 of the Complaint. 75. Defendant failed to disclose material facts to Plaintiffs' predecessor-in-interest,by representing to Plaintiffs' predecessor-in-interest that even though the purpose of the Restrictive Covenant was to allow for a dock Defendant would later use the Restrictive Agreement to prevent building in the future, even if circumstances changed, and used the Restrictive Covenant as an attempt to resolve the lift station access issue as to the Lake Parcel. 76. Upon information and belief, at the tirne Defendant made these representations to Plaintiffs' predecessor-in-interest, it knew they were false. 77. Upon information and belief, Defendant had knowledge of the reasons why it \ wanted to enter into the Restrictive Covenant, but did not inform Plaintiffs' predecessor-in-interest. 78. Plaintiffs' have been damaged by Defendant's failure to disclose this information in an amount to be proven at trial. COUNT VIII FRAUD/FRAUDULENT MISREPRESENTATION 79. Plaintiffs restate and reallege Paragraphs 1 through 78 of the Complaint. 8 80. Defendant made representations to Plaintiffs' predecessor-in-interest that were misleading or false. 81. Defendant made these representations on the record at a 2001 Planning Commission meeting and 2001 City Council hearing, specifically stating that the purpose of the Restrictive Covenant was to allow Plaintiffs' predecessor-in- interest to continue use of her dock. 82. Defendant knew or should have known that these representations were false or misleading, as now Defendant is using the Restrictive Covenant to bar building on the Lake Parcel even though circumstances have changed making the Lake Parcel buildable. 83. Defendant failed to fully disclose to, and has concealed from, Plaintiffs' predecessor-in-interest that the Restrictive Covenant would be used by Defendant to bar future building even if circumstances changed. 84. Defendant knew or in the exercise of due care should have known, that Plaintiffs' predecessor-in-interest would rely on such misrepresentations as stated in the city records. Alternatively, Defendant made such representations under circumstances that Plaintiffs' predecessor-in-interest would be justified in acting in reliance thereon. 85. Plaintiffs' predecessor-in-interest justifiably relied to Plaintiffs' predecessor-in- interest detriment upon the above misrepresentations and as a direct and proximate result thereof has sustained, and continues to sustain, direct and/or consequential damages in an amount which is yet undetermined but is believe to be in excess of$50,000. COUNTIX REFORMATION (IN THE ALTERNATIVE) 86. Plaintiffs restate and reallege paragraphs 1 through 85 of the Complaint. 87. On July 23, 2001, Defendant and Plaintiffs' predecessor-in-interest entered into the Restrictive Covenant for the purposes of allowing a dock on the Lake Parcel. 88. Defendant and Plaintiffs' predecessor-in-interest did not accurately reflect the actual purpose of the Restrictive Covenant. 9 89. The Restrictive Covenant is a written contract. 90. The Restrictive Covenant as executed by the Defendant and Plaintiffs' predecessor-in-interest, failed to express the parties' true intentions. 91. The failure to provide that the Restrictive Covenant would not bar future development of the Lake Parcel should circumstances change was the result of mutual mistake by Defenda�lt and Plaintiffs' predecessor-in-interest. 92. Accordingly,the Restrictive Covenant should be reformed by order of this Court. COUNT X MANDAMUS—INVERSE CONDEMNATION (IN THE ALTERNATIVE) 93. Plaintiffs restate and reallege paragraphs 1 through 92 of the Complaint. 94. This cause of action is brought pursuant to Minn. Stat. §§ 586.01 ct. seq for an order directing Defendant to commence Condemnation proceedings. 95. Defendant's requirement that Plaintiffs' predecessor-in-interest sign the Restrictive Covenant constitutes a taking for which Plaintiffs are entitled to just compensation and other damages including fees and costs. 96. Defendant's action in placing a lift station in the public right-of-way which blocks Plaintiffs' access to the Lake Parcel constitutes a taking for which Plaintiffs are entitled to just compensation and other damages including fees and costs. 97. Defendant has failed to commence a condemnation action as requested by Plaintiffs. 98. The failure of Defendant to comply with its legal duties constitutes a public wrong specifically injurious to Plaintiffs, and as there is no plain, speedy, and adequate remedy in the ordinary course of law, Plaintiffs are entitled to a writ of mandamus ordering Defendant to commence a condemnation action against Plaintiffs. COUNT Xi MANllAMUS 99. Plaintiffs restate and reallege paragraphs 1 through 98 of the Complaint. " 10 100. This cause of action is brought pursuant to Minn. Stat. §§ 586.01 et. seq for an order directing Defendant to administratively terminate the Restrictive Covenant, .; approve Plaintiffs' application and to declare the Lake Parcel a buildable lot. 101. The failure of Defendant to comply with its legal duties constitutes a public wrong specifically injurious to Plaintiffs, and as there is no plain, speedy, and adequate remedy in the ordinary course of law, Plaintiffs are entitled to a writ of mandamus ordering Defendant to administratively terminate the Restrictive Covenant, approve Plaintiffs' application and to declare the Lake Parcel a buildable lot. COUNT XII DUE PROCESS 102. Plaintiffs restate and reallege paragraphs 1 through 101 of the Complaint. 103. Defendant, acting under the color of statute of law, required Plaintiffs' predecessor-in interest to enter into the Restrictive Covenant without any basis in law to do so. 104. Defendants' actions have deprived Plaintiffs, as successors-in-interest, of constitutionally protected due process rights and have violated the Fifth Amendment and Fourteenth Amendment of the United States Constitution. 105. As a direct and proximate result of Defendant's violation of Plaintiffs' due process rights, the Fifth Amendment of the United States Constitution and the Fourteenth Amendment of the United States Constitution, Plaintiffs have been damaged in an amount as may be proven at trial, but reasonably believed to be in excess of$50,000.00. COUNT XIII NDICIAL REVIEW 106. Plaintiffs restate and reallege paragraphs 1 through 105 of the Complaint 107. Defendant, as a municipality within the State of Minnesota, is empowered to make decisions regarding municipal planning and zoning. 108. Defendant has failed to enact an ordinance, rule, or regulation that would allow Defendant to require its residents to enter into restrictive covenants in exchange 11 for not enforcing their ordinances and/or for Defendant not following the variance application process required. 109. Due to Defendant's failure to follow the law, the Restrictive Covenant is without any force or effect, and Plaintiffs are aggrieved by Defendant's decision to not administratively terminate the Restrictive Covenant, and are entitled to have the decision reviewed by this Court. 110. Plaintiffs' will be irreparably harmed by the actions of Defendant, and aze entitled to declaratory relief, requiring that Plaintiffs' application be approved and allow Plaintiffs to build on the Lake Parcel in accordance with their application. COUNT XIV ATTORNEYS FEES 111. Plaintiffs restate and reallege paragraphs l through I 10 of the Complaint. 112. As a result of the actions and omissions of Defendant, Plaintitfs have been required to retain the law office of Wilkerson& Hegna, PLLP. I13. Based on the foregoing, Plaintiffs are entitled to recover all costs incurred in connection with this action, including reasonable attorney's fees. WHEREFORE,Plaintiffs prays for the following relief: a. That the Court order that a writ of mandamus issue, compelling Defendant to terminate the Restrictive Covenant, approve Plaintiffs' application and deciare the Lake Parcel buildable and/or commence condemnation proceedings for its taking of property without just compensation, including the denial of reasonably convenient and suitable access as a result of the ]ift station; b. That the Court award Plaintiffs damagcs in excess of$50,000.00 suffered as a consequence of the City's violation of the United States Constitution; c. A declaratory judgment regarding the parties' rights and obligations related to the Restrictive Covenant; d. A declaratory judgment regarding Defendant's authority to exact restrictive covenants through special lot c�mbination agreements; 12 e. That the Court award Plaintiffs their costs, disbursements and reasonable attorney fees; f. That the Court award Plaintiffs any other such relief as the Court rnay deem just and equitable. WILKERSON & HEGNA, P.L.L.P. Dated: � � �2—� l 3 By: �~ Kyle J. Hegna# 0240 Morgan W. Kavanaugh#0391253 7300 Metro Boulevard, Suite 300 Edina,MN 55439-2302 Telephone: (952) 897-1707 Facsimile: (952) 897-3534 ATTORNEYS FOR PLAINTIFF ACKNOWLEDGMENT The undersigned hereby acknowledges that costs, disbursements and reasonable attorney and witness fees may be awarded to the opposing party or parties in this litigation if the Court should find that the undersigned acted in bad faith, asserted a claim or defense that is frivolous and that is costly to the other party, asserted an unfounded position solely to delay the ordinary course of the proceedings or to harass; or committed a fraud upon the Court. WILKERSON & IIEGNA, P.L.L.P. Dated: �� By: �� Kyle J. Hegna#202 X Morgan W. Kavanaugh#0391253 7300 Metro Boulevard, Suite 300 Edina,MN 55439-2302 Telephone: (952) 897-1707 Facsimile: (952) 897-3534 ATTORNEYS FOR PLAINTIFF 13 VERIFICATION AND ACKNOWLEDGEMENT l. I have read this document. To the best of my knowledge,•inf'ormation and belicf the information, contained in the document is well grounded in fact and is warranted by existing law. 2. I have not been determined by any court in Minnesota or in any other State to be a frivolous litigant or subject to an Order precluding me from servin�and filing this document. 3. I am not serving or filing this document for any improper pucpose, such as to harass the other party or to cause delay or needless increase in the cost of litigation or to commit a fraud on the Court. 4. I understand that if I am not telling the truth or if 1 am misleading the court or if I am serving or filing this document for any improper purpose,the court can order me to pay money to the other party, including the reasonable expenses incurred by the other party because of the serving or filing of this document such as court costs, and reasonable attorney's fees. ��z�-�--- � �� Piaintiff Ryan�lness � _.� Plaintiff Stacy ness , Subscribed and sworn to before me this a� day of ��'��,2013. Notary Public ��,,.�C.-c_��_..._�_._��J�-- � My Commission expires � �� a C�/ � ... ......., PATRiCiA A MADSEN � � NOTARY PUBUC-MINNESOTA C ; :`'� MY COMMISSION IXPIRES 113112018� , ......... . � � ;�tf , , �.�....r� r��t �� ` �' � o � . �.., , . �P� . /U � �, . �,rn � �.�..��c,b� � SCA��/�e� m A rT'-v c-� � ., � , ', �'� `O �� a O �V r�i � � �;o�-n �.,V 1 .�' 1 _' �c�`=�m `� i �� o � ` n � � '--. m'� � � �� 1'7'1 -,,,-1 �. N O m . �. � �. C r O ;z7 4w -G CA �y � '�`` �"� � SPECIAL LOT COMBINATION „� G�fARANTY TITLE� CNC. AGREEMENT ROX 1�3 �t�►��' This indenture is made and entered into this 23`d day of July, 2001, by Kristi Roesler�,`her heirs,successors and assigns(hereinafter collectively raferred to as"Grantor") � • and the City of Orono,a municipal corporation under the laws of the State of Minnesota,its successors and assigns (hereinafter ref�rred to as"Grantee"), • it � �1,�.l, �G �(1 e�+n.S N^ WITNESSETH: I� WI�REA5, Grantor is the owner of real property in the City of Orono, County of Hennepin, State of Minnesota,legally described as follows (and hereinafter collectively referred to as the"properties"); ,� Lots 17, 36 and the north '/z of 37, "SKARP AND LINQUIST'S "� FERN�-IILL LAKE MTKA" (hereinafter described as"Parcel A"); and Lot 7,"SILARP AND LINQUISTS'S FERNHILL LAKE MTKA" (hereinafter described as"Parcel B");and WHEItEAS, Parcel A and Parcel B are physically separated from each other which prevents their.being combined into one legally described lat�or parcal, and/or for the same or other reason the Hennepin Caunty Assessor cannot combine Parcel A and Parcet B into one parcel for tax purposes; and '4VHEREAS,notwithstanding the above it is the intent of Grantor and Graritee that Parcel A arid Parcel B are and sliall henceforth be continued in cvmmon ownership by the same person or persons, a�1d fiirther that Parcel A and Parcel B are intended to be used and/or developed in common by Grantor as if they were in fact one parcel instead of trvo, NOW T�-IEREFOR�, for and in consideration of the sum of One Dollar($1.00) and other valuable consideration, Grantor hereby covenants, grants, gifts, quit claims and conveys to Grantee the right to restrict, and Grantor hereby agrees to restrict,limit and preclude the ov�mership, use, improvement anc� development of Parcel A and Parcel B '�(NiBi7 ' , .� according to and under the conditions and covenants herein contained, as follows: 1. Grantor and Grantee agxee that Parcel A and Parcel B shall henceforth be contained in common use and ownership even if recorded as separate lots or parcels, and that Parcel A and Parcel B will not be used, conveyed, sold, leased or otherwise encumbered except together as if they were a single parcel. � 2, Grantor and Grantee agree that Parcel A shall be considered the primary parcel which may be used or developed for any principal use as may be permitted in the zoning district, subject to all performance standards and approvals required therefore. � 3. Grantor and Grantee agree that Parcel B shall be considered accessory to Parcel A;and that Parcel B may be used or developed for lake access purposes only, includirig the construction of a private dock,but no structures other than said permitted dock shall be constructed on Parcel B un.less specifically approved by the City Council pursuant to application by Grantor, 4. Grantee shall not issue any building permits, zoning variances or conditional use permits for any stn.icture or use on the properties inconsistent with the covenants contained herein. 5, Grantor hereby grants to Grantee the right Yo enter upon the above described properties for the purposes of inspection and enforcement of#he covenants contained herein, and to cause to be lawfully removed from these properties without any liability any structures, uses, substances and natural or unnatural materials inconsistent�vith the covenants contained herein. 6. In addition to any other remedy Grantee may have, the covenants and restrictions contained herein may be enforced by injunction, Grantor who is in possession of these properties shall pay ta Grantee all costs and expenses including attomeys fees incurred by Grantee in enforcin�the terms of thi� indenture. 7. The terms and conditions of this indenture may be modified, arnended or e,ctinguished and thereafter Parcel A and Parcel B may be subdivided, sold separately or reduced in part only upon application by Grantor to Grantee.for approval of a"Subdivision" in accordance with the platting code of the City in effect at the time of sucY�application. Page 2 of 4 8. Grantor agrees that recording of this indenture shall not vest any property rights in the properties and that any zoning of development authorities granted herein or hereinafter because of this indenture shall remain subject to future regulation, modification and/or lim.itation by Grantee ar other regulatory bodies in accordance with legally applicable and enforceable zoning or other ordinances of Grantee. 9. Grantor does not intend that the public should have any interest in the above properties 'by virtue of this indenture or othenvise, except as hereinabove set forth. ' All provisions hereof shall run�vith the land and shall extend to.and bind the heirs,successors,representatives, grantees or assigns of the respectxv�parties hereto. CIT F �RONO Granto p.,�. ,i '.7C�`;�..'vR;p'•'.I,.} • ! A � ry��0".q� \��<. r �.� C./� ti�.��'�� x��.,, �, Mayor „;r��+t ,�• jr:•�a-��: :' �.� ay��a,•,g�;�`:;:'�;��;;:,�,.;"'��j�'�:' �:3�y)tk;�r�t�9 i u�`��7:t..1 ..X } �h i.'r.�',�j,: . � ..�. i{)t'r��'t,}:1��:� : a,j.:��G", / � �%"�' � .t : ' b� � ��'; ;;� <'''�.: :�;�,r:� � ,, .lerk ��,,�,,�,� r��r�' .•r:,..�,,,v��Q.,.,�':.� r �:jj� ,+, •, ,,c �"�� [ ''-"��+�t t".�A��' fi'�t�4 . w �`,,,�, '�.. • .i, �'{ rh�.^ •M: '� ':y?��:.'. : � � � i. ; 'S. :i��,T`: S �F MINNESOTA ) . �, �;",.' ) ss. (City Ackno�vledgment) . COUNTY 4F HENNEPIN ) The foregoing instrument was acknowledged before me this 23�d day oFJuly, 2001, by Barbara A, Peterson and Linda S.Vee,Mayor and City Clerk, respectively, of the City of Orono, a Minnesota municipal corporatian, on bet�lf of th munici al corporativn. , /j°` • ./_.� ' � NOTARY PUBLIC , -,��M. LESKINEN �' �,, ��1 �dOS— ...:�'.Ib.� NdTARY PUBUC•MINNESOTA MyCatuNssionEzphesJan.s�,2oa� MY COMMISSYON EXPIRES Page 3 of 4 . STATE OF MINNESOTA ) ) ss. (Individual Acknowledgment) COUNTY OF HENNEPIN } On this 23rd day of July, 2001, before me,'j�Notary PubIic within and for said County,personally appeared � . l�GU,e -A� S�� w wM 5� known to me to be the person described in and who executed the foregoing i strument, • and acknowledged that he executed the same as his free act and deed. �� , �"'�b�"?,. M.,ART!�A P.WILLIANIS � �� /, � ) �o��: PlO7a�'i Fl�OUC•hiIPIMESOTA . f.;d�'�L�e%y'riL/� �.Y.C...0��:C �,:�i'� M1lyCcm:�i�shnExpirosJa,,,3f,zoas• NOTARY PUBL7C 'W hfa0.Yv W�'.oa'o 4�'o�i�P.b�41 This document is being recorded for the benefit of the City of Orono per Minnesota Statutes 38b.77. State Deed Tax Due Hereon: Exempt This instrument was drafted by: City of Orono P.O. Box 66 . Crystal Bay, MN 55323 952-249-4600