8.2. SR 07-15-2019
Request for Action
To Item Number
Mayor and City Council 8.2
Agenda Section Meeting Date Prepared by
General Business July 15, 2019 Zack Carlton, Planning Manager
Item Description Reviewed by
Hilltop Woods Estates Second Addition, 20655 Peter Beck, City Attorney
Victoria Drive
Reviewed by
Easement Vacation
Cal Portner, City Administrator
Plat of Hilltop Woods Estates Second Addition
Action Requested
Adopt, by motion, a resolution approving or denying the proposed vacation of existing roadway
easements on Lot 4, Block 1, Hilltop Woods Estates.
Adopt, by motion, a resolution approving or denying the plat of Hilltop Woods Estates Second Addition.
Background/Discussion
Case Nos. EV 19-02 & P 19-08
The City Council reviewed the proposed easement vacation and plat on June 17, 2019, and directed staff to
return with two resolutions one approving and one denying the plat and easement vacation.
Since the last meeting, attorneys for both the applicant and the neighbors opposed to the subdivision
submitted letters regarding the application. Following staff and legal counsel review, we find that the 1993
Developer Agreement, which following the practice at that time, was not approved by the City Council, does
not create a negative restrictive easement on the property and is not a legally sufficient basis for denial of this
subdivision.
Additionally, Condition 7 included in Council’s approval of the plat on May 17, 1993, requires that “A
Developer Agreement is entered into reflecting the stipulations of approval.” The 11 conditions of approval
do not prohibit development of additional lots north of Victoria Drive prior to a connection to the city street
system north of Victoria Drive. Meaning, the prohibition of lots described in the Developer Agreement was
not a condition imposed by the City Council as it was not a condition of approval for the final plat, and the
Council did not formally approve the Developer Agreement, and inherently the limit to future development.
As the limit to development was not directly approved by the City Council in 1993, the limit should not be
considered when reviewing the current request.
Finally, the language relied on in the Developer Agreement as a basis to deny this proposal to split lot 4 into
two lots is entitled “Future Phases” and reads, in its entirety:
(01) Future Phases - The Subdivision is the first phase of a development which may include future
lots. Final plat approval of future phases will be subject to such conditions as shall be imposed
The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional
service, and community engagement that encourages and inspires prosperity
by the City Council at the time of final plat approval, including extension of Victoria Drive
through the Subdivision to the north. No more lots will be allowed on Victoria Drive until and
unless a connection to the City street system is made to the north so that Victoria Drive is no
longer a dead end street.
This language contemplates a multiple lot future phase accessing an extension of Victoria Drive and
requires then an extended Victoria Drive be connected to the north. This language does not contemplate,
or prohibit, a split of lot 4 into two lots with no extension of Victoria Drive.
The proposed plat of Hilltop Woods Estates Second Addition satisfies the city’s standards for approval
of a subdivision. Enforcement of the Developer Agreement would ultimately be a private matter that
residents of the neighborhood could pursue without city involvement.
Financial Impact
None
Attachments
Council Packet dated June 17, 2019
Resident Letter dated June 11, 2019
Linda Schultz Letter submitted July 11, 2019
Larkin Hoffman Letter dated July 9, 2019
Felhaber Larson Letter dated July 11, 2019
Resolution approving the Easement Vacation
Resolution denying the Easement Vacation
Resolution approving the plat of Hilltop Woods Estates Second Addition
Resolution denying the plat of Hilltop Woods Estates Second Addition
ATTORNEYS AT LAW
Thomas J. Radio
612-373-8420
Facsimile: 612-338-4608
tradio@felhaber.com
July 11, 2019
VIA E-MAIL
peter@peterbecklaw.com
Mr. Peter K. Beck
Beck Law Office
4746 Sheridan Avenue South
Minneapolis, MN 55410
RE: HILLSTOP WOODS ESTATES, SECOND ADDITION
20655 VICTORIA NW, ELK RIVER, MN
Linda Schultz Lot Split Application
Our File No: 32012.001
Dear Mr. Beck:
I represent Linda Schultz, who is a co-applicant in the above-referenced matter.
After reviewing the key documents concerning the proposed lot split and the meeting
minutes that reflect the concerns of the neighbors, I have advised Ms. Schultz that the Elk River
City Council has a reasonable basis to approve the lot split application as proposed.
The chief objection of the neighbors is a concern about increased traffic on Victoria
Drive from the development of additional lots. They also point to the original Development
Agreement as a legal bar to the lot split. But, neither is a reason to deny the application.
1. The lot split will create only one new lot, upon which only one single-family
residence will be built. The traffic generated from one home will hardly create a
traffic congestion or safety problem; and
2. The 1993 Development Agreement is no longer legally effective to block this lot
split, which does not require Victoria Drive to be lengthened or substantially
changed from its original and approved design. The 1993 Development
220 South Sixth Street
Suite 2200
Minneapolis, MN 55402-4504
Phone: 612-339-6321
Fax: 612-338-0535
felhaber.com
Mr. Peter K. Beck
July 11, 2019
Page 2
Agreement was between the City and the original developer. By its owns terms,
the Development Agreement has been satisfied and is no longer operative and is
certainly not binding upon the current owners of the property. Additionally, the
Elk River City Council never formally approved the Development Agreement.
Accordingly, Ms. Schultz respectfully requests that her lot split application be approved
as supported by the following findings:
1. The lot split will create only one new lot.
2. Any further subdivision of either newly created lot will have to be approved by
the City and may be conditioned upon extending Victoria Drive.
3. The applicants and the purchasers of the newly created vacant lot will agree to no
further subdivision of their parcels without City approval, which could includeas
a condition of approval the construction of a road extending Victoria Drive to the
north.
4. The creation of an additional lot on Victoria Drive will not create any traffic
safety or congestion problems.
5. The 1993 Development Agreement between the City and the original developer
has been satisfied and no longer controls the applicant in the development of this
property.
6. The 1993 Development Agreement was never formally approved by the Elk River
City Council.
7. The application meets all 8 applicable developments regulations, as described in
the City Staff Report, prepared for the June 3, 2019, City Council meeting.
8. The creation of the additional lot on Victoria Drive will not require Victoria Drive
to be lengthened and the variance granted for Victoria Drive as a legal cul-de-sac
is still valid and operational.
9. The City recently approved another driveway opening onto Victoria Drive from
the property owned by Paul and Catherine Juenemann, which is adjacent to the
applicants’ property, and the 1993 Development Agreement was not found to be a
bar to that approval.
3149180.v1
Mr. Peter K. Beck
July 11, 2019
Page 3
10. The approval of the application will result in the donation of a substantial amount
of acreage to the City.
11. The lot split will not have a detrimental effect on the character of the
neighborhood.
If you need any further information about the application, please contact me. Thank you
for your consideration of these comments.
Very truly yours,
/s/ Thomas J. Radio
Thomas J. Radio
TJR/ope
cc: Ms. Linda Schultz (Via e-mail)
3149180.v1
City of Elk River
City Council
Resolution 19-____
A Resolution of the City Council of the City of Elk River Vacating Existing
Drainage and Utility Easements on Lot 4, Block 1, Hilltop Woods Estates
WHEREAS, pursuant to Minnesota Statutes Section 412.851, after two (2) weeks’
published and posted notice of the hearing and after mailing written notice of the hearing at
least ten (10) days before the hearing to each property owner affected by the proposed
vacation, the Elk River city Council conducted a hearing to consider the vacation of the
easements legally described on the attached Exhibit “A” (“Easements”); and
WHEREAS, the public hearing was held on June 3, 2019, before the City Council of the
City of Elk River on such request after the required published and posted notice had been
given, and all persons interested were given an opportunity to be heard at the public hearing;
and
WHEREAS, vacation of the Easements are appropriate as the parcel is being subdivided
and new easements will be dedicated with the recording of the plat; and
WHEREAS, it is in the public interest to vacate said Easements as new right-of-way and
easements will be established with the plat of Hilltop Woods Estates Second Addition
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Elk
River, Minnesota, as follows:
1. The Easements legally described on the attached Exhibit A are hereby vacated.
2. The City Clerk is directed to file a certified copy of this Resolution with the County
Auditor and County Recorder/Registrar of Titles in accordance with the terms of
this Resolution.
Passed and adopted this 15th day of July 2019.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk
City of Elk River
City Council
Resolution 19-____
A Resolution of the City Council of the City of Elk River Denying the
Vacation of Existing Drainage and Utility Easements on Lot 4, Block 1,
Hilltop Woods Estates
WHEREAS, pursuant to Minnesota Statutes Section 412.851, after two (2) weeks’
published and posted notice of the hearing and after mailing written notice of the hearing at
least ten (10) days before the hearing to each property owner affected by the proposed
vacation, the Elk River city Council conducted a hearing to consider the vacation of the
easements legally described on the attached Exhibit “A” (“Easements”); and
WHEREAS, the public hearing was held on June 3, 2019, before the City Council of the
City of Elk River on such request after the required published and posted notice had been
given, and all persons interested were given an opportunity to be heard at the public hearing;
and
WHEREAS, vacation of the Easements would only be appropriate if the underlying parcel
is subdivided and new easements dedicated with the recording of the approved plat; and
WHEREAS, by separate resolution the City Council has denied the proposed subdivision;
and
WHEREAS, it is not in the public interest to vacate said Easements as new right-of-way
and easements will not be established.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Elk
River, Minnesota, as follows:
1. The application to vacate the Easements legally described on the attached Exhibit A
is hereby denied.
Passed and adopted this 15th day of July 2019.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk
City of Elk River
City Council
Resolution 19-____
A Resolution of the City Council of the City of Elk River Making Findings of
Fact and Approving the Plat of Hilltop Woods Estates Second Addition
WHEREAS, Linda Schultz (“Applicant”) has applied (“Application”) for approval of a
subdivision to be known as Hilltop Woods Estates Second Addition at 20655 Victoria Drive
NW (Case No. P 19-08); and
WHEREAS, the record in this matter shall include all of the materials submitted to the
City Council in connection with the May 16, 2019, Application, including the staff reports
and all attachments thereto, all other written materials submitted to the City Council, and all
staff presentations and other testimony taken at the public meetings considering the
Application, all of which is incorporated and made a part of the findings of fact and this
resolution; and
WHEREAS, the City Council held a public hearing on June 3, 2019, to receive testimony
and evidence from city staff, the Applicant and any other persons regarding the Application;
and
WHEREAS, the Applicant and all others wishing to speak were given the opportunity to
present testimony to the City Council; and
WHEREAS, the City Council, at the conclusion of its June 3, 2019, public hearing on the
Applicant’s Application, directed staff to gather additional information regarding the
Application and continued the item to June 17, 2019; and
WHEREAS, the City Council held a public meeting on June 17, 2019, to review the
Application and all materials submitted for the public record, and to ask additional questions
of city staff; and
WHEREAS, the City Council, at the conclusion of its June 17, 2019, public meeting on
the Applicant’s Application, directed preparation of a resolution approving the Application
and incorporating the City Council’s findings of fact be prepared for the City Council to
consider.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Elk
River, Minnesota, makes the following findings of fact and decision with respect to the
Application by Linda Schultz for a subdivision to be known as Hilltop Woods Estates
Second Addition at 20655 Victoria Drive NW.
FINDINGS OF FACT
1. The property at 20655 Victoria Drive was platted as Lot 4, Block 1, in the plat
HILLTOP WOODS ESTATES, approved by the City Council on May 17, 1993.
2. The city also approved a variance allowing an extended cul-de-sac, Victoria Drive
NW, to provide access to the parcels within the subdivision.
3. The Developer Agreement (“Agreement”) regulating development of the property
and public improvements for Hilltop Woods Estates was signed on July 13, 1993.
4. The Agreement regulated development of the property and expired upon acceptance
of the public improvements described in the Agreement.
5. Elk River City Code states that in order for a subdivision to be approved, the request
must meet the eight findings outlined in Sec. 30-375. – Required findings;
The findings necessary for city council approval of the preliminary plat and the
final plat shall be as follows:
(1) The proposed subdivision is consistent with the zoning regulations (article
VI of this chapter) and conforms in all respects with all requirements of
this Code, including the zoning regulations and this article.
(2) The proposed subdivision is consistent with all applicable general and
specialized city, county, and regional plans, including, but not limited to,
the city's comprehensive development plan.
(3) The physical characteristics of the site, including but not limited to
topography, soils, vegetation, susceptibility to erosion and siltation,
susceptibility to flooding, and drainage are suitable for the type and
density of development and uses contemplated.
(4) The proposed subdivision makes adequate provision for water supply,
storm drainage, sewage transportation, erosion control and all other
services, facilities and improvements otherwise required in this article.
(5) The proposed subdivision will not cause substantial environmental
damage.
(6) The proposed subdivision will not conflict with easements of record or
with easements established by judgment of a court.
(7) The proposed subdivision will not have an undue and adverse impact on
the reasonable development of neighboring land.
(8) The proposed subdivision is not premature. A subdivision is premature if
any of the following exists:
a. Lack of adequate stormwater drainage.
b. Lack of adequate roads.
c. Lack of adequate sanitary sewer systems.
d. Lack of adequate off-site public improvements or support systems.
6. The City Council finds that all findings required for approval of the plat of
Hilltop Woods Estates Second Addition have been met becuase:
a. The subdivision only creates one new lot
b. Any further subdivision of either newly created lot will have to be approved
by the City Council and may be conditioned upon extending Victoria Drive.
c. The Agreement was never formally approved by the Elk River City Council,
and included conditions that were not specifically approved by the Council.
d. The creation of the additional lot on Victoria Drive will not require
extension of the existing cul-de-sac, and the variance granted for the cul-de-
sac length is still valid and operational.
e. The plat satisfies all eight findings outlined in Sec. 30-375 as required for
approval of a plat.
(1) The proposed subdivision is consistent with the zoning regulations as
the length of Victoria Drive was approved by variance and is not
proposed to be extended. Additional dimensional standards for lots in
the R-1a zoning district have also been met.
(2) The proposed subdivision is residential in nature and does not conflict
with any city, county, or regional plans – including the city’s
Comprehensive Plan.
(3) The physical characteristics of the site support subdivision and
development of the site for one additional parcel.
(4) The property will be served by private well and septic and makes
adequate provisions for all required facilities.
(5) The subdivision will not cause substantial environmental damage.
(6) The Agreement governing development of the property has expired
and the subdivision does not conflict with easements of record or with
easements established by judgment of a court. Approval of the
subdivision will require approval of an easement vacation (EV 19-02)
vacating the existing roadway easements on Lot 4, Block 1, Hilltop
Woods Estates. The easements will be replaced with dedicated right-
of-way as part of the proposed subdivision.
(7) The subdivision supports reasonable development of neighboring land
through the dedication of public right-of-way which will allow a future
extension of Victoria Drive to the north, and future roadway
connections to the east and west.
(8) The subdivision does not require extension of the existing road
network and all necessary facilities are in place to ensure the
subdivision is not premature.
Passed and adopted this15th day of July 2019.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk
City of Elk River
City Council
Resolution 19-____
A Resolution of the City Council of the City of Elk River Making Findings of
Fact and Denying the Plat of Hilltop Woods Estates Second Addition
WHEREAS, Linda Schultz (“Applicant”) has applied (“Application”) for approval of a
subdivision to be known as Hilltop Woods Estates Second Addition at 20655 Victoria Drive
NW (Case No. P 19-08); and
WHEREAS, the record in this matter shall include all of the materials submitted to the
City council in connection with the May 16, 2019, Application, including the staff reports
and all attachments thereto, all other written materials submitted to the City Council, and all
staff presentations and other testimony taken at the public meetings considering the
Application, all of which is incorporated and made a part of the findings of fact and this
resolution; and
WHEREAS, the City Council held a public hearing on June 3, 2019, to receive testimony
and evidence from city staff, the Applicant and any other persons regarding the Application;
and
WHEREAS, the Applicant and all others wishing to speak were given the opportunity to
present testimony to the City Council; and
WHEREAS, the City Council, at the conclusion of its June 3, 2019, public hearing on the
Applicant’s Application, directed staff to gather additional information regarding the
Application and continued the item to June 17, 2019; and
WHEREAS, the City Council held a public meeting on June 17, 2019, to review the
Application and all materials submitted for the public record, and to ask additional questions
of city staff; and
WHEREAS, the City Council, at the conclusion of its June 17, 2019, public meeting on
the Applicant’s Application, made findings of fact and directed that a resolution denying the
Application and incorporating the City Council’s findings of fact be prepared for City
Council consideration.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Elk
River, Minnesota, makes the following findings of fact and decision with respect to the
Application by Linda Schultz for a subdivision to be known as Hilltop Woods Estates
Second Addition at 20655 Victoria Drive NW.
FINDINGS OF FACT
1. The property at 20655 Victoria Drive was platted as Lot 4, Block 1, in the plat
HILLTOP WOODS ESTATES, approved by the City Council on May 17, 1993.
2. The Developer Agreement (“Agreement”) regulating development of the property
and public improvements for Hilltop Woods Estates was signed on July 13, 1993.
3. Section 6, Additional Conditions, paragraph (01), Future Phases, of the Agreement
states:
The Subdivision is the first phase of a development which may include future
lots. Final plat approval of future phases will be subject to such conditions as
shall be imposed by the City Council at the time of final plat approval,
including extension of Victoria Drive through the Subdivision to the north.
No more lots will be allowed on Victoria Drive until and unless a connection
to the City street system is made to the north so that Victoria Drive is no
longer a dead end street.
4. Section 7, General Provisions, paragraph (02), Binding Effect, of the Agreement
states:
The terms of the provisions hereof shall be binding upon, and inure to the
benefit of the heirs, representatives, successors and assigns of the parties
hereto and shall be binding upon all future owners of all or and part of the
Subdivision and shall be deemed covenants running with the land.
References herein to Developer, if there be more than one, shall mean each
and all of them. This agreement shall be placed of record so as to give notice
hereof to subsequent purchasers and encumbrances of all or any part of the
Subdivision, and all recording fees, if any, shall be paid by the Developer.
5. Elk River City Code states that in order for a subdivision to be approved, the request
must meet the eight findings outlined in Sec. 30-375. – Required findings;
The findings necessary for city council approval of the preliminary plat and the
final plat shall be as follows:
(1) The proposed subdivision is consistent with the zoning regulations (article
VI of this chapter) and conforms in all respects with all requirements of
this Code, including the zoning regulations and this article.
(2) The proposed subdivision is consistent with all applicable general and
specialized city, county, and regional plans, including, but not limited to,
the city's comprehensive development plan.
(3) The physical characteristics of the site, including but not limited to
topography, soils, vegetation, susceptibility to erosion and siltation,
susceptibility to flooding, and drainage are suitable for the type and
density of development and uses contemplated.
(4) The proposed subdivision makes adequate provision for water supply,
storm drainage, sewage transportation, erosion control and all other
services, facilities and improvements otherwise required in this article.
(5) The proposed subdivision will not cause substantial environmental
damage.
(6) The proposed subdivision will not conflict with easements of record or
with easements established by judgment of a court.
(7) The proposed subdivision will not have an undue and adverse impact on
the reasonable development of neighboring land.
(8) The proposed subdivision is not premature. A subdivision is premature if
any of the following exists:
a. Lack of adequate stormwater drainage.
b. Lack of adequate roads.
c. Lack of adequate sanitary sewer systems.
d. Lack of adequate off-site public improvements or support systems.
6. The City Council directed preparation of a resolution of denial on the grounds that
the application does not satisfy finding number six.
(6) The proposed subdivision will not conflict with easements of record or
with easements established by judgment of a court.
7. The City Council Finds that finding number six for approval of the plat of Hilltop
Woods Estates Second Addition has not been met because:
a. The plat would conflict with an easement of record. Specifically, section 6,
paragraph (01), of the Agreement which states “No more lots will be
allowed on Victoria Drive until and unless a connection to the City street
system is made to the north so that Victoria Drive is no longer a dead end
street.”
b. An extension of Victoria Drive is not proposed and Victoria Drive would
remain a dead-end street.
c. The Agreement creates a negative restrictive easement on all of the lots
created by the 1993 subdivision and, as such, is a conflicting easement of
record.
d. Paragraph 7, section (02), states that the Agreement is a covenant and
shall be binding upon, and inure to the benefit of the heirs,
representatives, successors, and assigns.
e. The covenants and restrictions of the Agreement remain binding,
including the restriction noted in Section 6, Paragraph (01), prohibiting
approval of additional subdivisions within Hilltop Woods Estates until
Victoria Drive is extended, and is no longer a dead-end cul-de-sac.
Passed and adopted this15th day of July 2019.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk
Hilltop Woods Estates 2ndLinda Schultz–
Subdivide Lot 4, Block 1, Hilltop Woods Estates into 2 binding.determined the Developer Agreement from 1993 is not Staff consulted with the city’s coprepare resolutions approving
and denying the platCC reviewed on June 17, 2019, and directed staff to lots. Council action, conditions of approval for the plat, development on Victoria Drive. from 1993 did not include
a requirement to limit -counsel and
Background
~~10.96 Acres7.5 Acres
Existing CulR/W to be dedicated-de-Sac
Proposed plat would on Victoria Drivecreate 11 buildable lots 17101020148
Cul-de-Sacs inTrottBrook Farms
Adopt a resolution approving or denying the requested applicant)Victoria Drive is no longer a deadbarring future subdivision of the properties until If a motion to approve is made,
staff recommends plat and easement vacation. -end. (proposed by
Action