7.1. SR 07-15-2019Request for Action
To
Item Number
Mayor and City Council
7.1
Agenda Section
Meeting Date
1july15,
Prepared by
Public Hearin�
2019
Zack Carlton, Planning Manager
Item Description
Reviewed by
Easement Vacation: Western Avenue in Westwood
Peter Beck, City Attorney
Subdivision
Reviewed by
Cal Portner, City Administrator
Action Requested
Adopt, by motion, a resolution vacating a portion of the right-of-way platted as Western Avenue
contingent upon closing of the sale of the property at 13008 Island View Drive and with the condition that
the resolution will not be recorded until after the City Council approves a boundary line adjustment placing
the septic system and shed on the same parcel as the home at 13008 Island View Drive.
Background/Discussion
The western border of the Westwood Subdivision includes a dedicated public right-of-way (ROW) known as
Western Avenue. The ROW was dedicated with the plat in 1953, but has not been developed for public use.
Previous owners of the property to the west, 13008 Island View Drive, constructed a shed and septic system
on the ROW without approval by the city. The current property owners purchased the parcel in 2006
believing the improvements were located on their parcel.
Ownership of the ROW and encroachments of the improvements has been the subject of a lawsuit, John &
Elaine Dryer v. City of Elk Diver, & SNL Island View Properties, LLC, Case File No. 71 -CV -18-705. The parties
have agreed to a contingent settlement agreement and vacation of the Western Avenue ROW is a necessary
condition upon which the full settlement of the lawsuit is contingent.
The proposed vacation does not include the portion of the ROW abutting dedicated park land south of
13002 Island View Dr., and as dedicated with the Westwood Subdivision plat. Park access will continue to be
provided to the park as additional ROW dedicated with the Westwood Subdivision plat, known as Park
Avenue, runs along the east side of the park.
The city made the request to vacate said ROW and supports the vacation as it is in the public interest as
taxable property within the city will increase, and the vacation is a necessary step to settling the lawsuit.
Vacation of the ROW will transfer the property to the parcel to the east (13002 Island View Dr.), meaning
the septic system and shed for 13008 Island View Dr. would be on the neighbor's property. To address this
situation, the settlement agreement also includes a provision that the property lines will need to be adjusted to
transfer ownership of the vacated ROW to 13008 Island View, ensuring all improvements are associated with
the appropriate parcel. Approval of the boundary line adjustment by the Council is also a perquisite to
recording the vacation, as noted in findings of the attached resolution and the condition of approval for the
proposed vacation.
The Elk River Vision
A wehoMing community with revolutionary and spirited resourcefulness, exceptional P,` 01 W E H E 8 6 T
service, and community engagement that encourages and inspires prosperity INAMIRE1
Financial Impact
None
Attachments
■ Lake Access Exhibit
■ Resolution
■ Vacation Exhibit
N:APublic Bodies\Agenda Packets\07-15-2019\Final\7.1 sr Western Ave Vacation.docx
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City of Elk River
City Council
Resolution 19-
A Resolution of the City Council of the City of Elk River to Vacate a Portion
of the Right -of -Way Platted as Western Avenue
WHEREAS, the Council, on its own motion, proposes to vacate a portion of the right-
of-way platted and publicly dedicated as Western Avenue on the Plat for Westwood
Subdivision ("Westwood Plat") which was originally approved by the Sherburne County
Board of Commissioners on February 4, 1953; and
WHEREAS, the western border of Westwood Subdivision is demarcated on the
Westwood Plat by Western Avenue, a dedicated public right-of-way by language, which
states, in relevant part, "hereby dedicate to the public and for the public use forever all
avenues, streets, park, and Outlot A." ("Western Avenue"); and
WHEREAS, SNL Island View Properties, LLC owns a single-family home at 13002
Island View Drive, Elle River, Minnesota. The house and lot are located on the southern
half of Lot 6 and Lots 7-10, Block 5 of Westwood Subdivision; and
WHEREAS, Westwood Subdivision is bordered to the west by Island View
Subdivision; and
WHEREAS, the plat for Island View Subdivision ("Island View Plat") was approved
by the Sherburne County Board of Commissioners on July 12, 1961; and
WHEREAS, Western Avenue has been the subject of a lawsuit, John & Elaine Dryer v.
City of Elk River, & SNL Island View Properties, LLC, Case File No. 71 -CV -18-705
("Lawsuit"); and
WHEREAS, the Lawsuit concerned, in part, the encroachment onto Western Avenue of
a septic system and shed utilized by the adjacent property owned by John and Elaine
Dryer ("Dryers"), 13008 Island View Drive, legally described as: Lot 14, Block 1, Island
View Subdivision; and
WHEREAS, the parties to the Lawsuit executed a Contingent Settlement Agreement,
dated July 1, 2019, ("Settlement Agreement"); and
WHEREAS, pursuant to the Settlement Agreement, SNL Island View Properties, LLC
("SNL") agreed to purchase 13008 Island View Drive; and
A
WHEREAS, the Closing of the purchase has not yet occurred, and the Purchase
Agreement between SNL and the Dryers contemplates approval of this Resolution; and
WHEREAS, the Settlement Agreement contemplated the vacation of the Right -of -Way,
defined below, as part of a global resolution of the Lawsuit; and
WHEREAS, after vacation of the Right -of -Way, the Settlement Agreement also
contemplates that SNL will seek a boundary line adjustment across plat boundaries to
unify the property underlying the Right -of -Way with 13008 Island View Drive, so that
the septic system will be in the parcel boundaries of 13008 Island View Drive; and
WHEREAS, there are no utilities in the right-of-way; and
WHEREAS, pursuant to Minn. Stat. § 412.851, after two (2) weeks' published and
posted noticed of a public hearing and after mailing written notice of a public hearing at
least ten (10) days before the hearing to each property owner affected by the proposed
vacation, the Elk River City Council has conducted a hearing to consider the vacation of
that portion of a right-of-way labeled as "Proposed Street Vacation" and legally described
on the attached Exhibit 1 ("Right -of -Way"); and
WHEREAS, a public hearing was held on July 15, 2019, before the City Council of the
City of Elk River after published and posted notice had been given, and all persons
interested were given an opportunity to be heard at the public hearing; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Elk
River, Minnesota, makes the following:
FINDINGS
A. The vacation proposed is contemplated by the Settlement Agreement and is a
necessary step to settling the Lawsuit.
B. The right-of-way has never been improved or open for use by the public for
travel, and there no known public utilities.
C. The City has an interest in ensuring that the septic system at 13008 Island
View Drive is properly contained within the boundaries of the parcel as
expanded. The vacation is, therefore, a necessary condition precedent to the
boundary line adjustment being sought by SNL.
D. The Closing of the Property at 13008 Island View Drive is contingent upon
the City's approval of a boundary line adjustment and the vacation
contemplated herein.
E. The proposed vacation will allow the City to retain the right-of-way south of
the vacated portion as shown on Exhibit 1 and, therefore, the City will be able
to expand the Park directly adjacent to the right-of-way.
F. For the foregoing reasons, it is in the public interest to vacate the Right -of -
Way as shown on the attached Exhibit 1.
G. The proposed vacation shall not affect existing easements for utilities therein.
A
H. The proposed vacation shall not be recorded with Sherburne County until after
City Council approval of a boundary line adjustment that places the septic
system and shed on the same parcel as the home at 13008 Island View Drive.
DECISION
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Elk
River, Minnesota, as follows:
1. The Right -of -Way legally described on the attached Exhibit 1 is hereby
vacated contingent upon the Closing of the Property at 13008 Island View
Drive. The vacation shall not affect existing easements for utilities therein.
2. The City Clerk is hereby directed to file a certified copy of this Resolution
with the County Auditor and the County Record/Registrar of Titles in
accordance with the terms of this Resolution.
Passed and adopted this 15th day of July 2019.
ATTEST:
Tina Allard, City Clerk
John J. Dietz, Mayor
EXHIBIT 1
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--N.W. corner of the South
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WESTWOOD SUBDIVISION.
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Westerly extension of the --ter/ South Line of Lot 10,
South Line of Lot 10, Block 5, WESTWOOD
Block 5, WESTWOOD SUBDIVISION. 1 1
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Proposed Street Vacation Description
That part of Western Ave. as dedicated in the plat of WESTWOOD SUBDIVISION, Sherburne
County, Minnesota which lies North of the extension West of the South line of Lot 10, Block 5 in
said WESTWOOD SUBDIVISION and South of a line extended westerly from the Northwest
NORTH
Corner of the South half of Lot 6 in said Block 5 to Northeast corner of the plat of ISLAND VIEW,
on file in said Sherburne County
0 50
PROJECT NO. ELK19007
FILE NAME: ELK007 Exhibit.dwg
Western Ave R/W Vacation City of Elk River -
Western Ave R/W dedicated to city in 1953.portion of the R/W. Settlement of the lawsuit is contingent on vacation of a adjacent property owners and the city.Use of the R/W was subject
of a lawsuit between in 1978.Adjacent home (13008 Island View Drive) constructed No public improvements in the R/W since.vote from Council. City initiated vacation proceedings –requires
4/5ths
Background
R/W includes improvements the west (13008 Island View). constructed by the property owner to
Vacation Exhibit
Adopt the resolution vacating a portion of the Western Ave R/W, with the conditions noted in the memo.
Action