4.0. 07-12-2005
Item #4.
MEMORANDUM
TO:
FROM:
Board of Adjustments
Chris leeseberg, Planner 4-
DATE: July 26, 2005
SUBJECT: Case No. V 05-02
Request by A & R land Development for a lot Size Variance
Request
The applicant is requesting a variance to the required lot sizes in the A-1 zoning district.
location
22656 Meadowvale Road
Zoningl land Use
A 1 (Agricultural Conservation) / RR (Rural Residential)
60 Day Rule
In order to comply with Minnesota Statute 15.99 (60 - Day Requirement), action must be
taken on this request by August 26, 2005
Attachments
. Location Map
. Applicants Narrative
. Preliminary Plat
. Information from David and Sylvia Stadden Regarding Property Line Dispute
Planning Department Mission: the orderly development of a livable and sustainable E.lk River community.
Board Adjustments / V 05-02
July 26, 2005
Page 2
Overview
The subject property is a 31.73-acres parcel which is bound by Meadowvale Road on the east
and County Road 79 (22Sth Avenue) on the south. The corporate boundary of Elk River
forms the western property line with Big Lake Township.
Analysis
This property is located in an area that will have 2 % acre lot minimums starting in January
2010. The applicant has elected to subdivide the property at this time as opposed to waiting
until that date.
The legal description of the applicant's property provides for 31.73-acres. Sherburne County,
as a condition of approval, will obtain 2.24-acres of right-of-way for future road
improvements and off street trail corridors. This leaves the applicant with 29.49-acres of
land to subdivide.
The Al zoning district requires lot sizes to be a minimum of 10-acres. The proposed plat
would create three 9.83-acre parcels. The lot area variance would not be needed if the
property were serviced by city streets that may not require additional right-of-way. Aside
from the total acreage, the lots comply with the dimensional requirements for the Al zoning
district.
In order to grant a variance from the literal interpretation of the ordinance, the following
five conditions must be met:
1. Literal enforcement if the ordinance will cause undue hardship.
Literal enforcement would reduce the number of lots able to be created to two. This
may create an economic hardship for the applicant, but this cannot be the sole hardship
for granting the variance.
2. The hardship is caused l!J special conditions and circumstances, which are peculiar to the properry and
the structure involved and which are not characteristic of, or applicable to, other lands or structure in the
same area.
The hardship is caused by special conditions particular to the property. The property is
bound by two County roads and the County is requiring additional right-of-way in fee
title as a condition of approval. If the County were to request the additional right of way
as an easement, the minimum lot area of 10 acres would be met as the applicant would
still own the land underlying the easement.
3. The literal application if the provisions if this ordinance would deprive the petitioner if rights e,!jqyed l!J
other properties in the same district under the terms if this ordinance.
Other properties that have 30+ acres without the need to provide additional right-of-way
have the ability to develop the land into three parcels.
S:\PLANNING\Case FiIes\2005\ V 05-02 A & R Land Dev\ V 05-02_BA.doc
Board Adjustments / V 05-02
July 26, 2005
Page 3
4. The special conditions and circumstances are not a consequence 0/ the petitioner's own action or inaction.
The special conditions were not created by the petitioner; they were created by
Sherburne County requiring additional right-of-way.
5. The variance will not be iJ?jurious to or adverselY qffect the health, sqfery or we!fare 0/ the residents 0/ the
ciry or the neighborhood where the propertY is located and will be in keeping with spirit and intent 0/ the
ordinance.
The request would not adversely impact other properties in the vicinity, as the requested
reduction in lot area is not significant (less than 2%) and this area will see lot area
minimums of 2 % acres in less than five years.
PropertY Line Dispute
The applicant and staff have received correspondence from Mr. & Mrs. Stadden regarding a
property line dispute. The area of land in question is approximately a %-acre piece of land
on the west side of the ditch indicated on the preliminary plat. Property line disputes are a
matter of civil action and the City does not become involved with these disputes.
The property line dispute has no impact on the variance request. Regardless of the outcome
of the dispute, the applicant will have 30+ acres prior to the subdivision request and staff
would still recommended approval of the variance request based on the same five criteria.
However, if the overall lot size is reduced, the preliminary plat (which is an Administrative
Subdivision that only the City Council reviews) will have to be adjusted accordingly and new
plans submitted.
Recommendation
Staff recommends that the Board of Adjustments recommend approval of the request.
S:\PLANNING\Case Files\2005\ V 05-02 A & R Land Dev\ V 05-02_BA.doc
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Case Number: V 05.02
A & R LAND DEVELOPMENT
Additional Information for Variance Request
Written Narrative Explaining the Following Five Items:
Item 1
That literal enforcement of the ordinance would cause undue (unnecessary, unavoidable, extreme) hardship.
ResDonse
The legal description of the property provides for 31.73 acres.. Allowing for a 33 foot right-of-way for 225th
Avenue and County Road 32 reduces available area for the three lots to 30.06 acres (3 lots at 10.02 acres
each). A requirement for an additional 17 feet of right-of-way for County Road 32 (Meadowvale Road)
reduces the available lot area to 29.49 acres (3 lots at 9.83 acres each). The additional right-of-way
requirement is unavoidable. Sherburne County routinely requests additional right-of-way for projects of this
nature. Additional right-of-way is necessary in order for the County to meet their long range plans and goals.
Literal enforcement of the ordinance would cause unnecessary hardship by reduction in lots. The loss of
area for right-of-way does not diminish the site in so far as its ability to accommodate septic systems, well
locations, driveway locations and house/accessory building locations as can be seen on the preliminary plat
exhibit. This project, as presented, saves the County from having to purchase right-of-way for future
expansion of County Road 32. .
Item 2
The hardship is caused by special conditions and circumstances which are peculiar to the land and the
structure involved and whi~h are not characteristic of or applicable to other land and structure in the same
district.
ResDonse
Special conditions and circumstances for this proposed project site exist in so far as it accesses from County
Road 32. The need for a variance would not exist if this parcel was located in an area served by local street
of66 feet of right-of-way or smaller.
Item 3
Literal application of the provisions of the ordinance would deprive the applicant of rights enjoyed by other
properties in the same district under the terms of the ordinance.
ResDonse
Other property owners having parcels of same characteristics (length, width, and area) would enjoy the right
to plat the land into three, ten acre lots without the need to provide right-of-way to the extent that is being
required at this time by Sherburne County.
Item 4
The special conditions and circumstances are not a consequence of the petitioner's own action or inaction.
Response
The petitioner did not create the parcel configuration, size or location. The petitioner has not created the
need for additional right-of-way. The County is acting upon the opportunity to obtain "right-of-way for a
future project without cost to the County.
Item 5
The variance will not be injurious to or adversely affect the health, safety or welfare of the residents of the
City or the neighborhood wherein the property is situated and will be in keeping with the spirit and intent
of the ordinance.
Response
The variance will provide for a total of three lots (one existing lot and two proposed). There is sufficient
room to accommodate well, septic systems, driveways, home and accessory building sites, all in accordance
with current setbacks and ordinances. There are no new roads being created. There are no wetland impacts.
The character of the neighborhood is maintained with the large lot concept. No other lot splits can be
accomplished without other City services (sewer/water) and/or ordinance modifications.
___It 225I1lA......- V_ReqaCSl.062005
22577 l47th Street
Elk River, MN 55330
July 19, 2005
Elk River Planning Commission
(Acting as the Board of Adjustments)
Elk River City Council
c/o Michele McPherson
Director of Planning
13065 Orono Parkway
Elk River, MN 55330
RE: Case No.V 05-02
(Request by A & R Land Development for a lot size variance)
Case No. P 05-10
(Request by A & R Land Development for a simple plat to subdivide one parcel
into three lots.)
To Whom It May Concern:
As of this date, July 19,2005, the west boundary concern for this A & R Development
property has not been resolved.
The most recent survey and acreage measures of this property would become inaccurate
should the property's west boundary be resolved to be the centerline of the private ditch,
as has been assumed and used by the involved property owners.
Communication concerning this property and attempted resolution for this western boundary to be the
centerline of the private ditch is attached:
1. Notice of Public Hearing for June 20, 2005
2. Chris Leesburg letter tabling Case No. P 05-10 until August 1, 2005; a variance is to be
considered at the July 26, 2005 Board of Adjustments Meeting.
3. Notice of Public Hearing: Board of Adjustments Meeting - July 26,2005; City Council
Meeting - August 15, 2005.
4. Stephen H. Munstenteiger letter to A & R Land Development - dated June 22, 2005.
5. Stephen H. Munstenteiger letter to Michele McPherson, Director of Planning - dated June 22,
2005.
6. Michele McPherson letter to Steven H. Munstenteiger - dated June 23,2005.
7. James W. Hess letter to Stephen H. Munstenteiger - dated June 24, 2005.
8. Stephen H. Munstenteiger letter to James W. Hess wi enclosures - c4ited July 6, 2005.
Sincerely,
~~ >+~<C'~cK~
David J. Stadden and Sylvia L. Stadden
CITY OF ELK RIVER
NOTICE OF PUBLIC HEARING
The Elk River City Council will conduct a public hearing on Monday, June 20, 2005 at 6:30 p.m. at
Elk River City Hall, 13065 Orono Parkway, to consider a request by A & R Land Development for a
Simple Plat to subdivide one parcel into three lots (Meadowvale), Case No. P 05-10.
General description of the subject property is the northwest comer of County Road 32 (Meadowvale
Road) and 225th Avenue. Legal description of the subject property is that part of the Northwest
Quarter of th€ Southwest Quarter of the N01"I:hwest Qearter, SeeciGfi 6, Te:Wnship 33,~R.ange 26,
Sherburne County, Minnesota.
As part of the review process for requests of this nature, we attempt to notify all property owners at
least 350 feet in distance from the subject property. The tax records from the Sherburne County
Auditor's Office indicated that you own property within or near the 350-foot requirement.
All interested persons are invited to attend the public hearing to express their questions and! or
comments. Hearing impaired persons planning to attend who need an interpreter or other persons
with disabilities who require auxiliary aids should contact Joan Schmidt, City Oerk, at 635-1000 by
June 15, 2005. If you would like information regarding the above-described public hearing notice,
please call Elk River City Hall at 635-1000.
Michele McPherson
Director of Planning
S:\PLANNlNG\Case Files\2005\P 05-10 Meadowvale\Legal notice. doc
13065 Orono Parkway
Elk River, MN 55330
June 15,2005
Dear Neighbor,
The public hearing scheduled for Monday, Juile 20, 2005 a.t 6:30 p.m. at Elk River City Hall,
13065 Orono Parkway, to consider a request by A & R Land Development for a Simple Plat
to subdivide one parcel intaLh.ree lotr (M:eadowvale);-Case No. P OS-lo-is beingtabled-until""
the August 1. 2005 City Council meeting. The applicant will be applying for a variance to be
considered at the July 26, 2005 Board of Adjustments meeting. You will receive a separate
public notice to notify you of that meeting.
Chris Leeseberg
Planner
j,
Phone: 763.635.1000
Fax: 763.635.1090
www.ci.elk-river.ron.us
CITY OF ELK RIVER
NOTICE OF PUBLIC HEARING
The Elk River Planning Commission acting as the Board of Adjustments will. conduct a public
hearing on Tuesday, July 26,2005 at 6:30 p.m., at Elk River City Hall, 13065 Orono Parkway to
consider a request by A & R Land Development for a lot size variance, Case No. V 05-02.
If the Board of Adjustments denies the request or an appeal is made by any interested party, the
application will. automatically be forwarded to the City Council for consideration. The meeting will.
be held on Monday, August 15, 2005 at the Elk River City Hall, 13065 Orono Parkway.
General description of the subject property is the northwest comer of County Road 32 (Meadowvale
Road) and 225m Avenue. Legal description of the subject property is that part of the Northwest
Quarter of the Southwest Quarter of the Northwest Quarter, Section 6, Township 33, Range 26,
Sherburne County, Minnesota.
As part of the review process for requests of this nature, we attempt to notify all property owners at
least 350 feet in distance from the subject property. The tax records from the Sherburne County
it. Auditor's Office indicated that you own property within or near the 350-foot requirement.
All interested persons are invited to attend the public hearing to express their questions and! or
comments. Hearing impaired persons planning to attend who need an interpreter or other persons
with disabilities who require auxiliary aids should contact Joan Schmidt, City Clerk, at 635-1000 by
July 21, 2005. If you would like information regarding the above-described public hearing notice,
please call Elk River City Hall at 635-1000.
Michele McPherson
Director of Planning
S: \PLANNING\Case Files \2005\ V 05-02 A & R Land Dev\Legal notice.doc
Stephen H. Munstenteiger
Gretchen R. Severin
Debra J. Klatt
Stephen H. Munstenteiger
Law Offices, P.A.
Attorneys and Counselors at Law
Anoka Professional Building
Suite 300
403 Jackson Street
Anoka, Minnesota 55303-2372
FAX (763) 421-3817
(763) 421-2300
http://munstenteigerlaw.wld.com
June 22, 2005
A & R Land Development
Attention: Reggie Powell
510 Freeport Avenue, Suite F
Elk River, MN 55330
RE: David and Sylvia Stadden
Boundary Issue/Meadowvale
Elk River City Planning Case No. P 05-10
Dear Mr. Powell:
Enclosed is a letter, which we recently sent to the City of Elk River. We did this,
because we did not know whether or not the property line West of the ditch was
included in the computation of your 10 acres. We thought this issue should be
addressed now.
My clients are firm in their belief that they should be the lawful owners of all of the
property lying West of the centerline of the existing ditch. We can do this with a simple
exchange. of deeds. Please let me know, if you would consider doing the deed
exchange. '
Sincerely,
SHM/mab
Enclosure
Copy: David and Sylvia Stadden
/
Stephen H. Munstenteiger
Law Offices, P.A.
Attorneys and Counselors at Law
June 22,2005
Michele McPherson
Director of Planning
City of Elk River
13065 Orono Parkway
Elk River, MN 55330
RE: A & R Land Development
Proposal of Subdivision at
Meadowvale Road and 225th Avenue
Dear Ms. McPherson:
Stephen H. Munstenteiger
Gretchen R. Severin
Debra J. Klatt
Anoka Professional Building
Suite 300
403 Jackson Street
Anoka, Minnesota 55303-2372
FAX (763) 421-3817
(763) 421-2300
http://munstenteigerlaw,wld.com
We received your notice pertaining to the public hearing on the request by A & R Land
Development to divide one parcel into three lots (Meadowvale), Case No. P 05-10: As
we understand it, the matter was tabled until the City Council meeting on August 1,
2005.
The purpose of this letter is not to object to the development, per se. Rather, we want
to point out a potential problem regarding the West boundary of the property, which lies
adjacent to our property.
The drawing provided by A & R Land Development, showing its preliminary plat,
indicates that the property, as described for legal purposes, actually lies to the West of
the drainage ditch. My clients have always treated the property that lies West of the
ditch as their property. I am sure that you are familiar with the doctrine of the practicql
location of boundaries, which must come up fairly often relating to the establishment of
a legal right to an area that has been used for 15 years or more. '.
In the instant case, we are confident that a Court would enter a Decree vesting title irJ
my c1iehts for all of the A & R parcel that lies West of the ditch. I believe we a're talking
about a strip of land approximately 25 feet wide. .
Michele McPherson
City of Elk River, Director of Planning
June 22, 2005
Page Two
We just wanted to go on record with this problem. If you would like to follow-up with me,
please do not hesitate to call me. I am sending a copy of this letter to A & R.
Sincerely,
STEPHEN H. MUNSTENTEIGER LAW OFFICES, P.A.
."
S HM/mab
Copy: David and Sylvia Stadden
A & R Land Development
Hess Law Office P.A.
A Professional Association
James W. Hess
Attorney at Law
June 24, 2005
Mr. Stephen H. Munstenteiger
Stephen H. Munstenteiger Law Office, P.A.
403 Jackson Street, Suite 300
Anoka, MN 55303
RE: WESTERN BOUNDARY OF A&R PROPOSED PLAT
I
Dear Mr. Munstenteiger:
Please know that I represent A&R Land Development, LLC. This letter is written in response to
your communication dated June 22,2005, to A&R Land Development, as well as your
communication dated June 22,2005, to Michelle McPherson of the City of Elk River.
I am interested in learning more about your claim for 'the practical location of the boundary.
Your letter states that David and Sylvia Stadden have "treated the property. ., as their property."
In order for me to consider how to proceed, I would like for you to tell me the evidence you
reviewed to support this claim.
Are you alleging that there was an agreement as to boundary line? If so, I ask that you kindly
advise me whether this agreement was oral or in writing, with whom your clients made the
agreement, the date and terms of the agreement, and the other party to the agreement.
Are you instead alleging simply that you used the property and claim it by adverse possession?
If you are, I would like for you to describe to me the various uses your clients made of this
property and the time periods involved.
A&R has not decided on any particular approach. Instead, we hope to be able to consider your
claim once we are certain of your legal theories and the evidence that supports them.: I am
hopeful that we can continue to discuss this and r~solve the issues without expensive, time
consuming, and unpleasant litigation.
19230 Evans Street. Suite 202. Elk River, Mn. 55330
Telephone 763.241.4855' Facsimile 763.274.1452' JamesHess@AOL.com
JUN 2 7 2005
Mr. Stephen Munstenteiger
June 24,2005
Page 2
I look forward to receipt of your response and thank you in advance for your prompt attention to
this matter.
Sincerely,
Reg Powell, A&R Land Development, LLC
Stephen H. Munstenteiger
Gretchen R. Severin
Debra J. Klatt
Stephen H. Munstenteiger
Law Offices, P.A.
Attorneys and Counselors at Law
Anoka Professional Building
Suite 300
403 Jackson Street
Anoka, Minnesota 55303-2372
FAX (763) 421-3817
(763) 421-2300
July 6, 2005
http://munstenteigerlaw.wld.com
James W. Hess, Esq.
Hess Law Office, P.A.
19230 Evans Street, Suite 202
Elk River, MN 55330
RE: My Clients: David and Sylvia Stadden
Your Clients: A&R Land Development, LLC
Dear Mr. Hess:
I have enclosed some materials that were sent to me by my clients. Rather than my
regurgitating same, I am simply forwarding them on to you as is.
I suppose that the most apparent evidence of adverse use of the area of the boundary
dispute is the fact that the ditch was maintained by my client and the grass or "hay" on
my client's side of the ditch has been faithfully mowed by my client. In the materials that
j am enclosing, there is some reference to the fact that the prior owner of the A&R
property concurs that the parties contemplated the fact that the ditch was the boundary
line.
I would like to have the centerline of the ditch established by survey, and then we can
exchange deeds. I think this would be the fairest and simplest course of action for all
concerned. Before we hire a surveyor, I should consult with you about using A&R's
surveyor.
Thank you for your cooperation.
Sincerely,
R LAW OFFICES, P.A.
SHM/mab
Enclosures
Copy: David and Sylvia Stadden
David and Sylvia Stadden
22577 14th Street
Elk River, MN 55330
763-441-3469
The 79-acre piece of property bordering the ditch north of 22Sth Avenue presently owned
by David and Sylvia Stadden was previously owned by:
Leo and Gladys Stadden ( 1941 - 1976) - parents of David
John Magney (late 1800's -1941) -parent of Gladys
The field has been used, and the private ditch has been regularly maintained by the
Staddens, both Leo and David. The Stadden field is tiled into the eastern ditch, and that
Stadden field also has surface runoff valleys draining into the east ditch.
1. Billing invoice and cancelled check show 1997 ditch cleaning.
(paid by D & S Stadden) L-Pine Excavating, contractor. (A conversation was had with Ed
Shimek prior to the 1997 cleaning. Mr. Shimek told David Stadden that the ditch cleaning was not a benefit to him, so he would
not be contributing to the cleaning cost.) Mr. Shimek was the owner of the property east of the ditch prior to A & R Land
Development, LLL
2. Cancelled checks from 1987 ditch cleaning. (paid by Leo Stadden and D & S
Stadden) D& S Stadden check shows their partial payment to Leo; Leo's checks
to Ed Lande, contractor.
3. Cancelled check from 1986 beaver dam removal in the ditch. (Paid by D & S
Stadden) Brenteson, contractor.
4. Cancelled checks from 1980 I 1981 ditch cleaning. (Paid by D & S Stadden)
Edwards Fields & Sons, contractor.
Previous to the 1980's ditch maintenance had also been done by the 'bordering neighbors', with Leo Stadden
included as one of that group.
July 2005: A telephone conversation was had with Arnie Peterson, who owned t~e property and sold it to
the Shimeks. (Arnie and his parents, Bert and Ella Peterson, had lived on the property since the 40:s.)
Arnie agreed that: the ditch had always been considered the boundary between the Peterson and Sta~den
properties. (Arnie remembers the ditch always being there --. .he got stuck in it; going cross-country: at less
than 5 years of age --- when his dog went home: without him, his dad came looking for him. Arnie' is now
70 years of age.)'
Cancelled check copies are not being included here, but were included
with the lawyers' exchange of information.
1. L-Pine Excavating check: $1,306.25
2. Ed Lande checks: $1,072.50 and $68.00
3. Brenteson Construction check: $50.00
4. Edward Fields & Sons checks: $765.00 and $225.00
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Ul MEADOWV ALE I hereby certify that th:s plan, specif- DATE: 6/2/05 REV DATE DESCRIPTION
\- I John Oliver & Associates, Inc. cation. or report was prepared by me NO.
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'::I ELK RIVER, MN Ci1Jil Engineering, Land SUMley(ng. Land Planning or under my direct supervision and
z 680 Dodge Avenue that I om a duly Licensed Land DRAWN BY: SMK
" FOR Elk River, Minn..ota 55330 Surveyor under State of Minnesota
0 Statutes Sections 326.02-326.15. HECKED BY: RMB
'1 R DEVELOPMENT 763-441-2072 FAX 763-441-5665
_\ A & ti?lf-M-. WG: 8530-10PPLAT
Offices in: Elk River, BurnsviUe Signature: EXT:
and Brooklyn Center, Minnesota. Rick M. Blom, PLS
PRELIMINARY PLAT Dote: 6/2/05 Lie. No. 21729 FILE NO.: 8530.10-03
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