HomeMy WebLinkAboutRe: Easement rights/dock,etc Fig 2_3 3 C eviv4
REED & POND, LTD.
ATTORNEYS AT LAW
5424 SHORELINE DRIVE
P.O.BOX 9
MOUND,MINNESOTA 55364-0009
ROGER W.REED PHONE 612/472-2222
Real Property Law Specialist' FAX 612/472-2254 ANN C.THIES
STEPHANIE M.YOUNG
PAUL L.POND
Certified Civil Trial Specialisr KAY L.DUNN
NANCY C.REHBERGER
Certified by the Minnesota State Bar Association Legal Assistants
June 20, 1996
Tom Barrett
Popham, Haik
3300 Piper Jaffray Tower
222 9th Street South
Minneapolis, MN 55402
Dear Mr. Barrett:
My client, John Ericson, recently approached the City of Orono with his plan to put up a
dock pursuant to certain easement rights he acquired with the title to his property.
Jeanne Mabusth asked him to have his attorney send you a letter describing these
rights and his intentions.
In 1993, my client purchased Lots 17 & 18, "Willey's Navarre Addition, Lake
Minnetonka" together with a non-exclusive right to use a portion of Lot 13, Wallace's
Addition to the Village of Minnetonka Beach. I have highlighted the language shown in
the abstract entry of a deed to a predecessor in title. I also enclose a copy of the deed
to said Lot 13 which makes it subject to the same rights. The document number
1553158 referred to is a previous deed to Lot 13 from James Willeys(who owned much
property in the area), personal representative to Alfred and Jessie Elkin, filed August 6,
1929. The reservation is the same and the grantor also reserves the right to convey
this easement to others in the future.
My client, as stated, wishes to put up a dock so as to utilize his boating rights over the
25 foot strip. He has not approached the current owners of Lot 13 yet, but as you can
see, they were given notice of the easement rights in the conveyance to them.
Please give me your comments.
Very truly yours,
REED & POND, LTD.
A.,1
Stephanie M. Young
SMY:ns
Enclosures
/, J Jt -a t w CoLi �� 17--3/4'4.- ,-.Oj p ! j - U4e)1�-.- 4J4 I) �\/N-�(ee.. � -.t.
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W.m.rr D..4 11 teer.M.t.0 Yi....,.n.
•• _1•41•l.r.t 10 j..,v..... Form No. 5-M sn,w..m.v,,(w..c.,..,..s;.e'17t..t.(t•,u I
900x23J 9 PM 57() 331x340
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zrbiss 3nbenture, .Made thls...:-.....21414 .day of._....,..„.QC.tober...�.....•.._—.,29..61.4 I •
Constance L. Holmberg, single, . •
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. ' of the County of..........•Henutepin•_..._. ._ and State oj.... .._...... .Ilinno30ta _...._._:.., Part••Y•••-
• of the first part,and Joseph..R....Lofrano..aui_.+lirCinia...E._Lofrano.,.has.tancl..anat...xita., .___,__..-
.._._........_.._. — of the County of .
-.Hennepin:. .... ...... .._...-.....and State.'f. ..11innesota...._ ..parties of the second part,
rattntstrttb. That the said party ...of the first part,in eons[rlerntian of the suers of..... ..._. __ •
••01M•Da:UR-(41.00)-and•.other...good.•anal..v.aluable_conaideration...._.:_ _ ..._...ffit/fial, •
to ... ber.......... in hand paid by the said parties a/the second part,the receipt whereof Is hereby aeknoreL-
ederd,do ea.hereby'Cruet, thereain,Sell,and Conrep unto the said parties of the second part as Joint . •
tenants and not as tenants in cot.trnnn. their assigns, the survivor of said parties, and the'!wird and
neatens of the sort•lrvr,Forever,all the tract....'or panel.... of land lying and !Primo In the County of
IIe.nr.epin and Slate of Minnesota,described as follows, to-wit:
•
• Lot 13, Wallace's Addition to the Village of Minnetonka Beach,
•
according to the plat thereof on file and of• record in the office
of the Register of Deeds in and for •said County of Henrepin and
• State of t.:innesota; subject to any and all unpaid installments of
,� special assessments payaLle without penalty other than interest with •
tJ the taxes assessed for the year 3:961 and subsequent years; subject to
U restrictions, reservations and easements of record, if sty, and including •
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ran easement for private, bathing and boating purposes as reserved in deed
Document Ho. 1553156; and also subject to a certain first mortgage in the
original sum of Eight Thousand One Hundred Dollars (4i:,10O.00) dated •
June: 27, 1956, to The•;,:inneapolts Savings and Loan Association;
•
`r;.,( ..1 oowresersoeutrnrurs
.,...rf ktAx biro TA
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X DEED TAX
1ua, ti ,Fiewits1; +_~":6}"rb,Fit.•
t\IL \LLI0.1NC ..4:1.11...,..'''.' • ..'"..r.'" . Qioto •'a'i 1.1. **.1 : :13Arl11.i,53,
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State Tax due hereon J1t.95 Rev. ,1,.95 •
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tro Nebt anb to}C?otb the*amr. Toirthrr with all the hereditaments and appurtenances there--
unto beton eine or in anywise appertaining, to the said parties of the second part, their assigns, the sus, •1 ,
*Fluor of said parties,and Nu heirs and assigns of the survivor.forever,the said parties of the aecond part
• taking as Joint tenants and sot as tenants In common.
' and the said ....Constar.ce.L...Holmberg......... . ............ ......._......_ . . . .. ................. ..... ..
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part y of the first part,for heree.lt, her heirs,e,Trralnri and administrators do as
covenant frith the sold parties of the second part,theirresetrns,thesurricarof mild parties,and the heirs
i and neatens of the eurrlror,that.....aha.-is••.....trelt'sepal in fee of the lands anti pertains aforesaid and
• ha a goad el flit to sell and convey the some In Manner and form aforesaid, and that the same are
free gene.* all inrambMncra. except as stated above;
. ._ .. . .
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F 1 r f #791417 '�"'�oOTC E7 1 - - _ .... . .
* : zr�r �� a 19i ziv
.1,,,,,. .0:1/4:F;•,;:,,-'-r.•'....:4:•::'' .....-A,4;,,...::::,.. z!1-' • , • •Consideration 00.'00
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John C: Hursh , ` Satisfaction of•lNo: 37, ',,.-.• .,,;.
42.' To .. : : , • Dated Sept. 16, 1916.
James Wiley, widower Filed Sept. 18, 1916, 2:50 pm.
#816819 • ' . ' .. Book 936, of;Mtgs .- cage 103;•c:::1
• James Wiley, widower . • Warranty Deed
43 • To Dated Dec. ' 10, 1917.
Joseph .Befgquist Filed Jan. 2, 1918, 12 m. •
#877938 Book 848 of Deeds page 460
Consideration $500. 00 .
Lot 18, Said Addition .
Subject to building restrictions
Also the 'right•.:to Use : for private bathing and boating:purposes only
in common with others to whom a similar right has heretofore been
granted, or may hereafter be granted the following described land;
All that part of Lot 13, Wallace 's Addition to Village of Minnetonka
Beach, which lies north of the North line of the County Road, crossit
said lot and west of a. line drawn through said lot .parallel to the
West,line thereof and distant 25,' feet from. said west line.
44 Taxes 1913 to 1916 inclusive paid. ,
45,, : For, Judgment. and Bankruptcy Searc}�; SeeCe'rtificate...Attached
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Dated Apr. 19, 1881
• Filed Apr. 21, 1942, 11: 50 a.m.
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Book 417 of. Misc. , page 41
Confirming sale made Apr. 16, 1881 by administrator - - - of Lot 6,,�.
Section 17, Township. 117, Range 23 in the County-of..Hennepin, State
Minnesota, to Richard B. Angus, James J. Hill, Robert B. Langdon and
David C. Shepherd for $1500.00.
•
John J. Hanson and Warranty Deed
Mary Hanson, his wife, Dated Aug. 28, 1922
as Joint tenants. Filed Dec. 1, 1922, 2: 20 p.m.
_-0gl'23 to Book 976 of Deeds, page 362
Joe Bergquist Consideration $1300.00
Doc. No. 1118409 Lot 17, Wiley' s Navarre Add: ; ' '
Lake Minnetonka, also the right t
use for private bathing and privy
boating purposes only in common w
others to whom a similar right has been granted the following:
All that part of Lot 13, Wallace ' s Add. ; to Village of Minnetonka
• Beach which lies North of North line of County Road crossing said lc
and West of a line drawn through- said lot parallel to West .line thei
and distant 25 feet from said West line .
Subject to building restrictions.
53 In the matter of the Estate of Probate Court, Hennepin County,
Joe Bergquist, Deceased - Minnesota.
Doc. No. 1469902 Case No. 33118
Certified Copy Decree of Distribi
Dated Oct. 10, 1927
Filed March 9, 1928, 2:40 p.m.
Book 1134 of Deeds, page 532
'
Debts paid. Deceased died intestate, Jan. 4, 1927. Personal Propel
$2789. 32. Left surviving: Jennie Bergquist, widow and one of his
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heirs-at-law and Helen Bergquist, daughter and Ruby Bergquist, daug:
who are his next of kin and only other heirs-at-law.
Real Estate: Lot 17, of Wiley' s Navarre Addition, Lake Minnetonka.
(Other properties not in question not shown)
Assigned to: Jennie Bergquist the whole of said above described ho• '
premises for and during the term of her natural life , and to each o:
• Helen Bergquist and Ruby Bergquist an undivided one-half thereof in
• subject however to the life estate of said Jennie Bergquist therein
To each of Jennie Bergquist, Helen Bergquist and Ruby Bergquist, an
i divided one-third of all other above described real estate in fee.
•
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124 SEE EK 137 uISC PG 234 AND NOTE 1 r REARRANGE4ENT OF LOTS 49—, ' �I.°0`
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RECEWED JUN 2 8 1996
POPHAM HAIK
S C H N O B R I C H & K A U F M A N, LTD.
DENVER,COLORADO PIPER JAFFRAY TOWER, SUITE 3300 WASHINGTON, D.C.
TEL 303-893-1200 TEL 202-824-0000
222 SOUTH NINTH STREET
MINNEAPOLIS, MINNESOTA 55402-3336 INTERNATIONAL AFFILIATION:
MIAMI,FLORIDA TEL 612-333-4800 • FAX 612-334-8688 BEIJING,CHINA
TEL 305-530-0050 TEL 011861-5135261
THOMAS J. BARRETT, ESQ.
DIRECT DIAL(612) 334-2676
June 27, 1996
Stephanie M. Young
Reed & Pond, Ltd
5424 Shoreline Drive
P.O. Box 9
Mound, Minnesota 55364-0009
Re: Your letter of June 20, 1996
Dear Ms. Young:
I have your letter in which you enclose certain title documents and inquire, on behalf
of Mr. Ericson, as to his legal rights to build a dock. Although it appears from the deed that
Mr. Ericson has a right, as against the owner of lot 13, to an easement for private bathing and
boating purposes, it is also clear that the easement does not purport to grant any right as
against the City of Orono with respect to that easement.
The area involved here is and LR-1C district, and a dock is considered an accessory
use in that area. Orono City Code Sec. 10.02(1) Accessory uses are not permitted in that
zoning area without the presence of a principal use where both the accessory and the principal
use are in common ownership. The law on this matter is extensively discussed in Stodola v.
City of Orono, (Minn App.1994), attached to this letter, which is an unpublished case under
the provisions of Minnesota Statute 480A. 08. The case addresses the options of a shared
dock and of an individual dock in a way which is still the law in Orono.
After you have had a chance to review the case, please call to discuss.
Very truly yours,
Thomas J. ir
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Enclosure
cc: Jeanne Mabusth (w/o encl.)
082/22117864 6/27/96 - ,,
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11.0M PktiINGI ; li;„�)�; ..; -) 7D'`
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STATE OF !'IINNESOTA
IN COURT OF APPEALS
C2-93=2445
Crippen, Judge
Hennepin County
District Court File No. 91-8308
Richard Stodola, et al . , Jeffrey A. CarsonSteven C. Hey
Respondents, Carson and Clelland
305 Brookdale Corporate Center
6300 Shingle Creek Parkway
Minneapolis, MN 55430
vs .
City of Orono, Leon R. Erstad
Sandra L. Jones
Appellant. Erstad & Riemer, P.A.
1000 Northland Plaza
3800 West 80th Street
Minneapolis, MN 55431
Filed June 21, 1994
Office of Appellate Courts
Considered and decided by Forsberg, Presiding Judge, Crippen,
Judge, and Mulally, Judge.'
UNPUBLISHED OPINION
CRIPPEN, Judge
Appellant City of Orono challenges the district court' s
determination that the city acted arbitrarily and capriciously in
refusing to allow respondents to build a shared dock. Appellant
also contends that the district court exceeded its authority in
'Retired judge of the district court, serving as' judge of the
Court of Appeals by appointment pursuant to Minn. Const. art . VI
5 2 .
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ordering the city to adopt a specific shared dock proposal . We
reverse.
FACTS
In September 1987, respondents Richard Stodola and Merrit
Peterson bought a lot in the City of Orono from Ewald Gustaf son for
the purpose of building a dock, but noc a residence, on the
property. Glen Tillotson owned an adjoining lot that had a house
on it. At the time of the purchase, there was an existing dock
that had been constructed in 1960. The existing dock was believed
to, be on Tillotson' s property, but it was later discovered it was
on respondents' property.
In a letter dated July 30, 1987 , Gustafson' s attorney wrote
Peterson:
This is to inform you that Mr. Gustafson was told by
a member of the staff of the city of Orono that it is
necessary to own a home nearby in order to place a dock
on a piece of property in Orono . We understand that you
have made your own investigation and are willing to take
your chances in convincing the city of Orono to grant you
a variance.
We just want to be on record as not having made any
guarantees
regard
es copy of this letter so that. we may have
roperty. Would
you kindly sign a
it in our files .
Peterson signed the letter and dated it September 24 , 1987.
Respondents built a new dock in the spring of 1988 . Shortly
after they built it, the city "red-tagged" the dock, indicating
that it was an illegal dock . The city wrote to Peterson to inform
him that the dock was illegal .
After meetings with city officials , respondents filed a
variance application, seeking "authority to construct boat dock on
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0,111 �r VKVrvv ® CIG4(w) lu
V0/41/YO IU:3Y LY :U4/ IU 140:1Y.5
a nonbuildable lot (no primary structure) . " The planning
commission denied respondents' proposal and the city council passed
a resolution citing the following reasons for denial :
(A) The lack of the principal structure means that there
is no individual responsible for protecting the dock nor
the boats maintained at that dock.
(8) An adjacent
neigonhbTractorF.
[Tilosn) already has a dock
[the 1960 dock) located
(C) The property is not wide enough to provide adequate
parking. * * *
(D) Approval of the use of an accessory structure such as
a dock, without a principal structure would establish a
negative precedent in dealing with a similar requests for
lots of similar size.
Respondents later sent a memo co the city council , outlining
the concerns the city council expressed and suggesting a different
proposal that they thought would satisfy thosa concerns .
Respondents proposed conveying some property to Tillotson to
provide him legal access to the lake, and building a single common
dock to be shared by Tillotson, Peterson, and Stodola.
At a city council meeting, the council denied the shared dock
proposal . At a later meeting, the council adopted a resolution
denying the shared dock proposal . The resolution indicated that :
Council refused to accept the interpretation
of the accessory use/structure
on the following
proposed by applicants
findings :
(A) The City has never credited a preliminary
structure on an adjacent property to allow
accessory uses or structures on lots that did
not sustain principal residences .
(B) The credit of the principal residence for.
• an accessory use/structure. serving an adjacent
property will establish a negative precedent
•
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1.111 vi vlwnv vlt,.-.1,wdiv VV/GI/ 7V IV..77 1_1' .V.)/ IV IVV. 17.7
for the City when dealing with similar
requests for accessory uses and structures on
unbuildable, substandard lots.
(C) The applicants' proposed
ordinancesatien of
in
the accessory str
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complete conflict with the original intent of
the code.
Orono, Minn. , Resolution 2576 (Feb. 13, 1989) . The resolution
required the removal of the dock and it was subsequently removed by
Tillotson.
In May 1991, Stodola and Peterson filed a complaint , alleging:
(1) illegal removal of a non-conforming boat. dock, (2)
unconstitutional taking, (3) arbitrary and capricious conduct, (4)
vague and ambiguous regulations, and (5) denial of equal
protection. The trial court determined that the denial of
respondents ' application was arbitrary and capricious, and ordered.
the city to approve respondents' application for a shared dock . It
stayed the order for 30 days to allow the parties an opportunity to
negotiate the specific terms of the shared dock project . When the
parties could not agree, the court issued an order adopting
respondents ' proposal . This appeal followed.
DECISION
In zoning matters, this court independently reviews the record
and the city' s decision. western Co lea v Ci v o A den
$ills, 281 N.W.2d 865, 868 (Minn. 1979) . For both legislative
(zoning) and quasi-judicial (special use permits and variances) ,
decisions by a city, the standard of review is whether the action
was reasonable. VanLandechoot v. City of Mendota Heiekta, 336
N.W.2d 503 , 508 (Minn. 1983) . The nature of the ::tion bears on
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CLTY 01. OKUNO II 61 C4 M7 I U U6/C•1/yI U:5V LJ :U6/1U NO:193
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what is reasonable :
In enacting a zoning ordinance or in amending an
ordinance to rezone, the approach is legislative; what is
involved is a kind of municipal planning in which a wide
range of value judgments is considered. On the other
hand, in granting or denying a special use permit, the
inquiry is more judicial in character since the zoning
authority is applying specific use standards set by the
zoning ordinance to a particular individual use.
Norm v, City of Coon Rapids, 313 N.W. 2d 409, 417 (Minn. 1981) .
Thus, a zoning authority is less circumscribed by judicial
oversight when it acts legislatively than when it acts in a quasi-
judicial role. Id.
Still, a municipal decisionmaking body has broad discretionary
power to deny an application for a variance . VanLandschoot, 336
N.W. 2d 503 , 508-09 (Minn. 1983) . The fact that a court reviewing
the action of a municipal body may have arrived at a different
conclusion, had it been a member of the body, does rot invalidate
the judgment of the city officials if they acted in good faith and
within the broad discretion accorded them by statutes and the
relevant ordinances . ;d, at 509 . Invariance cases, reasonableness
is to be measured by the standard set out in the local ordinance .
j at 508 n. 6 .
The city argues that its decision to deny the shared dock
proposal was legislative, and chat even if the decision were quasi-
judicial, it still was reasonable. The city argues that, because
under the Orono City Code an accessory use is limited to the
exclusive use of the principal supporting structure , any dock on
Tillotson' s land can be for the use of the people living in .
Tillotson' s house only.
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C1•.i l' or VKVIVV f b'144(SU5"IU W 1196 10:39 D :07/10 N0:193
The parties do not make it clear whether respondents are
seeking a declaration that the ordinance permits the shared dock
proposal, or whether they seek a variance from the ordinance as the
ordinance does not permit such a use. There is , at least
initially, an ordinance interpretation question.
The Orono City Code defines "accessory use or structure" as a
"use or structure subordinate to and serving the principal use or
structure on the same lot and customa ily incid.: .l thereto. "
Orono, Minn. , § 10 .02 (1) (1984) . The code also defines "use-
accessory" as a "use subordinate to the principal use on a lot and
exclusively used for purposes incidental to those of the principal
use. " I.,,, 5 10 . 02 (72) . The code provides that : "No accessory
building or structure shall be constructed on any lot prior to the
time of construction of the principal building to which it is
accessory. " ,fid. , § 10 . 03 , subd. 9 (A) . The code indicates that a
dock is an accessory use under section 10 . 23 , subd. 5 (A) , which
lists " (a) ny accessory use as regulated in the ' R-1A District and
'private docks ' subject to the City Code and other applicable
regulations including boat storage density regulations" as a
"permitted accessory use . "
Construing these provisions together, we conclude: (1) a dock
is an accessory use, and (2) the definition of the accessory use
and the prohibition against building an accessory use before a
principal use indicate that the code presumes there has to be a
primary structure on the property in order for an accessory
structure to be permitted.
•
-6-
byl l vi viwsw v�LTI.,+vlly
t vv/LI/ /V 1V.J! LJ' .vv/ Iv 17v. 17J
� .
Thus, building a boat dock without a primary structure on the
property would not be permitted by the code . This construction
explains the denial of respondents ' first dock proposal . At issue
in this appeal is respondents ' shared dock proposal .
The code makes it "unlawful for any person to engage or
participate in business use or joint use without first having
obtained a license therefor from the City. " Id„ § 5 .42 , subd. 2 .
The code defines "joint use" as "more than two persons joining for
the purpose of using lakeshore property for swimming, bathing,
fishing, docking or mooring boats, or for any other purpose . " Id„
subd. 1F. In this case, Tillotson and respondents wished to use
the same piece of property for docking boats . In addition, the
code indicates that "private" docks are a permissible accessory
use. The use of the dock by both Tillotson and respondents did not
seemingly transform it into a business use, but the proposal did
not call for a purely private dock for the Tillotson home . The
definition of "use-accessory" provides that it is a use
"exclusively used for purposes incidental to those of the principal
use. " J.�_,_, § 10 . 02, subd. 72 . In this case, the principal use,
the house, was Tillotson' s . The accessory use, the dock, was
respondents ' . The use of the dock by respondents would not have
been incidental to Tillotson' s use of his house and the dock would
not have been exclusively used for purposes incidental to the
house. Read together, these provisions did not permit respondents '
shared dock proposal .
Next, we consider whether respondents were entitled to 'a
-7-
Irf'OF ORONO ® 6124730510 vol c I/ » , - -
•
variance. The district
court correctly noted that the shared dock
by the city
sal addressed some of the concerns expressed
proposal proposal . But addressing the
council regarding the original dock pro P
concerns raisedy
b the first proposal did not necessarily
address
Even though the shared
the concerns raised by the second proposal .
dock proposal may not have had the disadvantages of the earlier
The city council
roposal, it had disadvantages all its own.
dock P es in denying the variance -
properly considered these disadvanCa9
The Orono City Code provides that:
in applications for variance, the Council
In consideringori the health,
consider the advice and
ariane up recommendation of the Boar
d
shallproposed existing and
and the eandctel the ofP the community, danger ofd
anticipated
and welfare light and air,
anticipated traffic conditions, and the effect on values
risk to the public safety, onvale s
of p, in the surrounding area. Before grantinganea
of property shall hear requests for
the Council stances
variance, provisions of this Chapter in i^
from wher theirh literal
strict enforcement would
to s the duindividua
because
eof circumstances unique variances
individual beopert and to grant such
property under consideration, will be in
o
when it is demonstrated that such actionsintent of this Chapter .
keepingny with the spirit
The code defines "undue
Orono, Minn- 6 10 . 08 , subd. 3A (1984) •
hardship a
r, The property
in question cannot be put to
1
reasonable use if used under conditions allowed by the
official controls .
2 . Thelight of the landowner s due
ebythtoe circumstanCes
unique to his property not created
* *
special conditions applying to the structure o
i The and in question are peculiar to such property
l
immediately adjoining property.
* *
granting of . the proposed variance will not in
The comfort , morals, or in any
any way impair health, safety,
-8- -
W6124730510
06/21/96
10:39 0 :10/10 N0:1
other respect be contrary to the intent of the Z
Code,zd, Zoning
, eubd. 3 (A) (1) .
As the city correctly argues respond
purchased the eats were aware when
Property that they might they
without 9 not be able
obtaining a variance to build a dock
structure. because the property had no
Respondents plight is primary
doing. In addition, at least partially
in denying the variance y their own
concern that it would set a negative � the
"tY cited the
property; precedent
P Y: respondents ' "hardship" for other Pieces of
P wasa con
firth not dition unique to
their piece of property
considered ermore, the
the shared dock city reasonably
the tonin proposal to be contrary to the aim
5 Code. As measured b s of
Orono Cit Y the standards
Y Code, the cit set forth in the
Y s action in denying respondents '
shared
dock proposal was reasonable.
Because we determine that the cit
it Y s de
Proposal w denial c._' res
as reasonable pondents �
we do not reach
district court exceeded its the issue of
whether the authority in orderin
adopt a specific shared dock g the
city to
Rproposal .
Reversed.
4
'June 15 1994
•
_9_
Frame 235 DL./v&
!' CITY of ORONO
Municipal Offices
• -,, Gni/
Street Address: Mailing Address:
IkesuOy 2750 Kelley Parkway P.O. Box 66
Orono, MN 55356 Crystal Bay, MN 55323-0066
September 13, 1996
John Ericson
1620 Shadywood Road
Wayzata, Minnesota 55391
Dear Mr. Ericson:
I have reviewed the information you provided, including the letter to City Attorney Tom Barrett
from Stephanie Young, the Lofrano deed to Lot 13 noting the easement for "private bathing and
boating purposes", the title entries noted, and the letter of response from City Attorney Barrett dated
June 27, 1996 including the Stodola case.
You are claiming that the "easement for bathing and boating purposes" over the westerly 25' of Lot
13, Wallace's Addition to the Village of Minnetonka Beach, gives you the right to construct a dock
on that property, to serve the owner(s) of Lots 17 and 18, Wiley's Navarre Addition Lake
Minnetonka. Lots 17 and 18 are not riparian and are located some 600' distant from Lot 13. Both
Lots 17 and 18 as well as Lot 13 are within the City's LR-1C, Single Family Lakeshore Residential
Zoning District in which "private docks" is an accessory use subject to the City code and other
applicable regulations, including boat storage density regulation(Zoning Code Section 10.25, Subd.
5[A]).
By definition, "accessory use or structure" is "a use or structure subordinate to and serving the
principal use or structure on the same lot and customarily incidental thereto" (Zoning Code Section
10.02). The principal use of Lot 13 is the single family residence existing on Lot 13. Any dock on
or in the lake adjacent to Lot 13 therefore can only be used by the owners/occupants of Lot 13.
Based on the above noted code sections, City staff cannot issue a building permit for construction
of a new dock on/adjacent to Lot 13 to serve Lots 17 and 18.
Your Lots 17 and 18 are not unique. A number of other off lake properties in the Navarre area have
similar "bathing and boating" easements over four City-owned parcels between Crystal Bay Road
and Lake Minnetonka a few hundred feet west of Lot 13. The City has similarly taken the position
that those off-lake owners do not have the right to construct docks on the lakeshore parcels. The
only difference between that situation and your situation is that the lakeshore parcels owned by the
City are vacant, which provides an even greater basis for denial. This is because no accessory
structure may be placed on a parcel of land that does not have a principal structure.
Telephone (612) 473-7357 • FAX 473-0510
John Ericson
September 13, 1996
Page 2
I am enclosing a copy of the Zoning Code sections noted above as well as Section 5.42, "Joint Use
of Lake Facilities". It appears that your proposed use does not fit any of the categories defined as
joint use in Section 5.42, Subd. 1(E), because Lots 17 and 18 are not riparian lots, nor are they non-
riparian lots within a subdivision adjacent to the lake, Based on this, the City would not be able to
issue a joint use dock license if you and the owners of Lot 13 were to apply for such a license.
Further, it would appear that your proposed use would not meet Section 5.42, Subd. 5(A) which
would limit a new joint use to one boat slip per 50' of shoreline. Lot 13, at 50' of width, would
therefore only be allowed one slip under the joint use standards,which slip would serve the principal
residence on Lot 13.
In summary,your construction of a dock on the "bathing and boating easement" over Lot 13 would
not be permitted. If you have further questions,please feel free to contact me at 473-7357.
Sincerely,
/'
vs,....,e p ,.._., -,,,-
,.
Michael P. Gaffron
Asst. Planning & Zoning Administrator
MPG/ch
Enc.
cc: Jeanne A. Mabusth, Building &Zoning Administrator
Tom Barrett, City Attorney
§ 10 .02
SEC. 10.02. DEFINITIONS. As used in this Zoning Chapter the
following words and phrases shall mean:
1. "Accessory Use or Structure" - A use or structure
subordinate to and serving the principal use or structure on the
same lot and customarily incidental thereto.
2. "Agriculture" - The utilization of land by raising
plants, trees or shrubs or the raising of domestic animals or fowl,
or both, for the purpose of selling to secure a profit.
3. "Airport or Heliport" - Any land, water, or structure
which is used or intended for use for the landing or take-off of
aircraft, and any appurtenant land or structure used or intended
for use for port buildings or other port structures or right-of-
way.
4. "Alley" - A public right-of-way which affords a
secondary means of access to abutting property.
Source : Municipal Code
Effective Date: 9-14-67
5. "Animal Unit" - The following animals constitute one
animal unit equivalency: one cow or steer, one horse, donkey or
burro, three sheep or fifty fowl.
Source : Ordinance No. 172
Effective Date: 1-1-75
6 . "Automobile Repair-Major " - General repair ,
rebuilding of trailers, including body work, framework and major
painting service.
7. "Automobile Repair-Minor" - The replacement of any
part or repair of any part which does not require the removal of
the engine head or pin, engine, transmission or differential;
incidental body and fender work, minor painting and upholstering
service when said service above stated is applied to passenger
automobiles and trucks not in excess of 7,000 pounds gross rating.
8. "Auto Reduction Yard" - A lot or yard where two or
more licensed motor vehicles or the remains thereof are kept for
the purpose of dismantling, sale of parts, sale as scrap, storage,
or abandonment.
9. "Basement" - A portion of a building located partly
underground, but having half of the floor-to-ceiling height below
the average grade of the adjoining ground.
10. "Basement Walkout" - A basement having an entrance at
grade level.
ORONO CC 242 (4-1-84)
§ 10 .24
Subd:,, 2. Permitted Uses. Within any "LR-1B" One Family
Lakeshore Residential District, no structures or land shall be used
except for one or .more of the following uses :
A. Any permitted use as regulated in the "R-1A"
District.
Subd. 3. Conditional• Uses. With ' any "LR-1B" One
Family Lakeshore Residential District, no st cture or land shall
be used for the following'\,uses except by con itional use permit:
A. Any conditional use ,s regulated in the "R-1A"
District.
. Subd. 4. Accessory Ues. ;%Within any "LR-1B" One Family
Lakeshore Residential District no' accessory structure or use of
land shall be permitted except f'81. one or more of the following
uses :
A. Any accessory use "as regulated in the "R-1A"
District and 'private docks' subject to the City Code and other
applicable regulations, including boat density regulations.
Subd. 5 . Area, Height, Lot Width\and Yard Requirements.
A. Height. No structure or wilding shall exceed
2-1/2 stories or' thirty feet in height except as provided in
Section 10 .75 .
/'� B. Lots. The following minimum requirements shall
be observed:
Side Yard \Side Yard
Lot Lot Front Adjacent to Rear Adjacent to
Are Width Yard Another Lot Yard Street
1 re 140 feet 35 feet 10 feet 30 feet 35 feet.
SEC. 10.25. LR-1C ONE FAMILY LAKESHORE RESIDENTIAL DISTRICT.
Subd. 1. Purpose. The "LR-1C" One Family Lakeshore
Residential District is intended to provide a district which will
allow a combination of medium density residential development and
limited agricultural activity. Planned residential developments
may be allowed by conditional use permits. The proposed land use
may not endanger the quality of storm water runoff into Lake I
Minnetonka. Because of the location of the district near Lake
Minnetonka, special regulations are necessary to protect that
natural resource from the effects of intense development. The
district shall have immediate access to highways and public
sanitary sewer.
ORONO CC 285 (4-1-84)
§ 10 . 25
Subd. 2. Lakeshore Set Back, Hard Cover and Tree Removal
Regulations. (See Section 10 .22) .
Subd. 3. Permitted Uses. Within the "LR-1C" One Family
Lakeshore Residential District, no land or structure shall be used
except for one or more of the following uses :
A. Any permitted use as regulated in the "R-1A"
District.
Subd. 4. Conditional Uses. Within any "LR-1C" One
Family Lakeshore Residential District, no structure or land shall
be used for the following uses except by conditional use permit:
A. Any conditional use as regulated in the "R-1A"
District except that a Planned Residential Development shall not be
limited to detached single family dwellings only.
Subd. 5. Accessory Uses. Within any "LR-1C" One Family
Lakeshore Residential District, the following uses shall be
permitted' accessory u:.es:
A. Any accessory use as regulated in the "R-1A"
District any 'private docks' subject to the City Code and other
applicable regulations, including boat storage density regulations.
Subd. 6 . Area, Height, Lot Width and Yard Requirements .
A. Height. No structure or building shall exceed
2-1/2 stories or thirty feet in height except as provided in
Section 10 .75 .
B. Lots. The following minimum requirements shall
be observed:
Side Yard
Lot Lot Front Side Rear Adjacent to
Area Width Yard Yard Yard Street
1/2 acre 100 feet 30 feet 10feet 30 feet 15 feet
_.
SEC. 10.26. LR-1C-1 ONE FAMILY LAKESHORE RESIDENTIAL
SUBDISTRICTS. \\
Subd. 1. Lakeshore Set Bak, Hard Cover and Tree Removal
Regulations. (See Section 10:22)
Subd. 2. Permitted ses, Conditional Uses, and Accessory
Uses.
A. Any use/as regula ed in the "LR-1C" District.
s
ORONO CC 286 (4-1-84)
ORDINANCE # 1 1 7 , 2ND SERIES
AN ORDINANCE TO AMEND THE ORONO MUNICIPAL CODE BY REVISING
SECTION 5.42 AND ADDING SECTION 5.43 RELATING TO BUSINESS AND JOINT USE
OF LAKE FACILITIES
The City Council of Orono ordains as follows: •
SECTION 1. Section 5.42 is hereby amended as follows:
SEC. 5.42. BUSINESS AND JOINT USE OF LAKE FACILITIES.
Subd. 1. Definitions. For the purpose of this Section, the following terms
have the meanings given them:
A. "Boat Slip, Water" means a structure, space, dock or other thing
designed or used for the docking, mooring or storing of a boat temporarily or permanently in
or on water, including mooring posts, buoys or other devices.
B. "Boat Slip, Land" means a structure, space or other thing designed
or used for storing a boat temporarily or permanently on land adjacent to a lake, whether it is
located on or off the licensed premises.
C. "Business-er Decking, Mooring, or Storing Boats" means renting
or otherwise providing space, including boat buoys, for docking, mooring or storing three or
more beats belonging to persons ether than the owner or occupant of the property. "Boat Slip.
Permanent" means a boat slip on land or water used for the storing of a given boat on a long-
term or yearly basis.
D. "Commercial Boat Deck Business" means providing space for
docking, meer- g er storing boats for a fee, or boats used in a trade or business, including,
without limitation, providing rented spaces, boat buoys-, space for keeping-boats owned by the
licensee and held for sale, display, rental, or otherwise used in connection with a boat or marina
boats. "Boat Slip. Transient;` means a boat slip on land or water used for the temporary storage
of many different boats for (shor' periods of time.
E. ��" - - :. - - -- •.-- -.
-- --- , - --- - . - . . . . --. ._ - -
other structures related to the main dock. "Joint Use" means more than two adjacent riparian
landowners joining for the purpose of using lakeshore property for swimming, bathing, fishing,
docking or mooring boats, or for any other purpose. Joint use includes the following activities:
1. More than two adjacent riparian landowners sharing in the
•
1
use of a single dock. -
2. An association of riparian and/or non-riparian landowners
within a subdivision adjacent to the lake sharing a dock or dock system providing permanent
boat slips for the members.
3. In the RS zoning district only, a not-for-profit organization
or association providing transient boat slips for stakeholders or a property used for day use
recreation or overnight camping purposes.
F. "Joint Use" means more than two persons joining for the purpose
. .-; • - . :: - - . - .":• "b, :. . ••"b, •."b� _. . ' .. 'b :.. ,
any other purpose.
G. "Business Use" means engaging in the business of docking,mooring
Subd. 2. License Required. It is unlawful for any person to engage or
participate in business use or joint use without first having obtained an annual license therefor
from the City.
Subd. 3. - ' c
.. --• . --. •-b :: - . ' - . •
-. -: •' � -. • • • License
Application. Any person or group of persons making application for a joint use license shall do
so on forms provided by the City and shall provide such information as may be deemed
necessary by the Council in order to act on such application. The fee for license applications
shall be set by ordinance.
Subd. 4. Business Use Standar-ds. All-lausiness-use applications shall provide
information showing compliance with the following standards:
b
Subd. 4. Public Hearing. Upon filing of any application for license, the
Council may call a hearing upon such notice as it may deem appro•riate. No such hearing shall
be mandatory, but wholly within the discretion of the Council. except that a hearing shall be
•
2
held at the request of the applicant in.cases of license revocation or denial.
Subd. 5. Joint Use Standards. Joint uses shall adhere to the following
standards:
A. Any association of riparian and/or non-riparian landowners within
a subdivision adjacent to the lake which initiates a new joint use shall adhere to LMCD
regulations and no such use shall have more than one boat slip per 50 feet of shoreline as
measured by a straight line between the points at which the side lot lines meet the OHWL.
Further. all such use shall adhere to the Shoreland Management Regulations of Section 10.56.
B. Any joint use in the RS zoning district by a not-for-profit
organization or association providing transient boat slips for stakeholders of a property used for
day-use recreation or overnight camping purposes shall be allowed only in conjunction with a
valid conditional use permit for said use issued by the Council.
C. Parking facilities not allowed. No joint use shall be approved
which necessitates provision of parking stalls or which creates the need for parking on any street
right-of-way.
SECTION 2. Section 5.43 is hereby added as follows:
SEC. 5.43. MARINA BUSINESS LICENSE.
Subd. 1. Definitions. For the purpose of this section, the terms "Boat Slip,
Water", "Boat Slip. Land", "Boat Slip, Permanent", and "Boat Slip, Transient" shall have the
meanings given them in Section 5.42. The following terms have the meanings given them:
A. "Business Use" means engaging in either a marina business or the
business of docking, mooring or storing boats.
B. "Marina Business" means engaging in one or more of the permitted,
accessory or conditional uses allowed within the B-2 zoning district.
C. "Business of Docking, Mooring or Storing Boats" means renting
or otherwise providing space, including boat buoys, for docking, mooring or storing one or more
boats belonging to persons other than the owner or occupant of the property, except when
licensed as a joint use.
Subd. 2. License Required. It is unlawful for any persons to engage or
participate in business use without first having obtained an annual license therefor from the City.
Subd. 3. License Application. Any person or group of persons making
license application for business use shall do so on forms provided by the City and shall provide
3
such information as may be deemed necessary by the Council in order to act on such application.
The fee for license application shall be set by ordinance.
Subd. 4. Public Hearing. Upon filing of any application for license, the
Council may call a hearing upon such notice as it may deem appropriate. No such hearing shall
be mandatory. but wholly within the discretion of the Council, except that a hearing shall be
held at the request of the applicant in cases of license revocation or denial.
Subd. 5. Business Use License Standards. Businesses required to be
licensed under this section shall be subject to the requirements and performance standards of the
B-2 Zoning District and per the following business use license standards:
A. Insurance Required. Each business shall provide certification of
liability insurance coverage for the duration of the license period.
B. The primary business operator on the property shall be the
licenseholder. and shall be responsible for notifying the City of any and all businesses subleased
on the premises. Such secondary businesses shall not be separately licensed but shall be allowed
only when in conformance with the provisions of the B-2 zoning district standards.
C. Operation Standards. Each business licensee shall adhere to the
following minimum operation standards:
1. Parking facilities on the site shall be managed so as to
eliminate traffic or parking congestion. eliminate illegal on-street parking, and avoid pedestrian
traffic through neighboring property.
2. Boat engine testing and charging shall be limited to the hours
8:00 a.m. to 6:00 p.m.
3. Retail sales and service shall be limited to the hours 7:00
a.m. to 10:00 p.m. except as necessary to accommodate normal fishing activity or private use
of premises stored boats.
4. The site shall be kept neat and orderly, and free of garbage.
5. On land storage of boats shall be managed so as to eliminate
any view obstructions for traffic entering and leaving the site.
6. Parking and on-land storage of boats, trailers, materials and
equipment shall be limited to those locations shown on an approved site operation plan, which
plan shall be submitted or updated as part of the annual license application. Such site operation
plan shall also indicate seasonally variable uses.
4
7. Lights shall be shielded from the road, the lake, and adjacent
properties.
Subd. 6. Business Use Licenses Limited to B-2 Zone. No business use shall
be licensed in any zoning_district other than B-2. except that when a business use is allowed by
ordinance in another zoning district, such use conducted in said district shall not be required to
obtain a license.
Subd. 7. License Revocation. Failure to adhere to the business use license
standards of Subd. 5 (A through C) shall be cause for license suspension or revocation per the
provisions of this chapter.
SECTION 3. Adoption and Publication. This ordinance shall be published in THE PIONEER
and THE LAKER and shall become effective immediately upon publication. Adopted by the
City Council of Orono on the 28th day of June, 1993 by a vote of 3 ayes, 1 nay and 1
abstention.
A ST:
•
•Iii/A-LI
Dorothy M `.11in, City Clerk Edward J. Call an, Jr., Mayor
Published in :the.:Laker and Pioneer newspaper the week of
August 9, 1993 .
•
•
• 5