5.4. SR 12-09-2002River
MEMORANDUM
Item # 5.4.
TO:
FROM:
DATE:
SUBJECT:
Mayor and City Council
Pat Klaers, City Administrator
December 9, 2002
Tim Smith House Removal Issue (Continued from November
2S, 2002)
This agenda item was continued (as requested by Mr. Smith) from the City Council meeting
held on November 25, 2002. Attached is the backup material from that meeting.
Per Council direction, the city sent Mr. Tim Smith an invoice for $9,900. This is the penalty
amount ($100 per day) pursuant to the order for permanent injunction and judgment that
was agreed upon by the city and Mr. Smith for each day after July 1, 2002, that the house in
question was not removed. Mr. Smith received this bill, called me, and requested to come to
the November 25, 2002, City Council meeting, in order to explain the unusual circumstances
that he ran into, which caused a delay in the house removal.
Attached for your information is some of the background material relating to the agreement
that was reached in the summer of 2000. The Council should note that the city incurred legal
expenses related to the enforcement of the Smith Conditional Use Permit in 2000. On a
positive note, it should be acknowledged that the goal of the city, which was the removal of
the house and garage, has been accomplished.
S~ Coumil/ Pat/ Smilh Tim
P lver
INVOICE
Due Da~e
m~/os/o2
Invoice~
2002560
Inv Date
1~/o6/o2
Total Due
9,900.00
Ref # Customer ID
2080 SMITH
Page
!
TIMOTHY SMITH
T.J. PROPERTIES
403 MAIN ST
ELK RIVER MN 55330
Make Checks Payable To:
City of Elk River
13065 Orono Parkway
P O Box 490
Elk River, MN 55330
Quantity Izem Description Price Amount
99.00~ MISC Penalty pursuant to the Order I00.0000 9,900.00
for Permanent Injunction and
Judgement assessed at $i00 for
each day after July 1,2002
that the house was not removed
from Lots 3,4 and Bloock 15,
Village of Elk River as
required by the Order.
(Conditional Use Permit 94-!7) RECEIVED
July 30 days
August 31 days
September 30 days
October 8 days
Subtotal: 9,900.00
Total Due: 9,900.00
FINANCE CHA2~GE OF 1.5% ADDED IF NOT PAID BY DUE DATE. '~
o~4 ........ t~(3 P,~ ,St)C~ · ~'.]k- River_ N[N 55330 · TDD & Phone (763) 441-/4_0 · Fax (763) 441-7425
Christopher J. Johnson
City Prosecutor
Jennifer O. Snyder
Legal Assistant
July 2, 2002
Ikiver
City Attorney
13065 Orono Parkway, Box 490 · Elk River, MN 55330
Phone: 763.441.7420
F:ux: 763.441.7422
www. ci.dk-river, mn.us
Tim Smith
TS Construction
403 Main Street
Elk River, MN 55330
Dear Mr. Smith:
Thank you for taking the time to meet with me this morning. It's my understanding that
you've made arrangements to move the house located at 413 Main Street. You'll be
moving it to Princeton. The exact date of the move will depend on the moving company's
schedule. It's my understanding that you hope it will be moved within a couple of weeks.
I've enclosed a copy of the Stipulation, Order for Permanent Injunction and Judgment, and
Judgment for your review. These documents outline the terms of the agreement you
reached in settlement of the lawsuit.
It was nice meeting you this morning.
City Pre
CJJ:js
Enclosures
Iohnson
Let me know when the house gets moved.
STATE OF Mi2CNTSOTA
COUNTY OF SHER_BUR_N-E
City of EIk River, Minnesota,
Plaintiff,
VS.
Timothy A. Smith
and T.J. Properties,
Defendants.
DISTRICT COURT
TENTH fUDICIAL DISTRICT
CASE T'rTE: OTHER
FILE NLFMBEK: C4-00-1191
STIPULATION, ORDER FOR
PERMANENT INJUNCTION AND
J-UDGIViENT, AND JUDGIVIENT
STIPULATION
The above-named parties hereby stipulate to settlement of this action according to
the terms of the Order for Permanent Injunction and Judg-ment set forth below. The above-
named parties stipulate to the following facts:
WHEREAS,
1. The City of Elk River, Minnesota ("City") is a municipality with.in the
County of Sherbume, State of Mirmesota and is organized under the laws of the State of
Minnesota; and
2. · Defendant Timothy A. Smith ("Smith") is an individual residing in the
City of Eik River wi~in Sherbume '-' '"
co.unL:'; and
3. Defendant T.J. Properties ("TJT") is a partnership under the laws of the
State of Minnesota; and
4. Smith is a partner in Defendant TJ'P, and was so at all times relevant to the
matter referenced herein; and
5. TTP is the record owner of two parcels of real property at 403 and 413
Main Street, Elk R/ver, Minnesota ("Property"), legally described together as:
Lots .3, ~- and 5; Block 15, Village of Elk River, Sherburne
County, Minnesota; and
OC?"2fi 'm~R
" ,;.[HRE OONal FAX
&,'v=lo-r'~.'.~: ~n :b,= ~r, op:r't"y, k~-a-n a~ Cand{d.o~al Us~ P,-nni.'~ ~o. 94-]
The CUP as granted by the Elk Rk~cr Civ/Council on
"'.q conditions on thc dcvelopmem permitted on thc
~ ("Condition Y'). Condition 3 r~u6-es r~movd fi, om the
The CUP is ~rnbodi~! in ~ offld~l docuracnt enrklM "O
Con~tion¢~l Usc" ~t doc~t k d~d A~t 3~ 1~4 ~d w~ rcc~
cf the ~.'v ~f~cially entitl~ "~d~ ~t~g ~u~Iional Usc," is au~
A.s of August ~, 1997, the House had not been removed fi
and
.~.~ o£th¢ dat~ hereof, ~: I-io,,,~ h~ not bee~a removed fix
and
: Thc CI~'. tnszirutcd thb acrlon :o s~curt Dcfc-nd~nm' r~rnc
frvm th:'
NOW. Ti4ER. EFOKE,
'Iqqg P~,TIE~ H£R.EBY S'ITP~ATE to entry of thc 0taler:
].Ajtmcvc,n ~d )udgmem se~ froth below ~qu~g Dcfcnd~nm to compl]
3 of 9~t C't v~ not Iat~ ~ J~y 1, 2~2, ~d
other t ,, ..r the O~d~ For F~m~t
TJ. PROPERTIES
Datc. d ,' :'1 ' ~} 2000.
Timothy
r. 0.3
City for a
("Otto");
20, 199,~
incl~ng
'.~e date of
.:l~- Gr'.mtbg
:;e~ by the
. oOrr:ct copy
~d h~'cto ~
m the Property:
the ~-operty;
'al of thc House
r Permanent
.~ith Condition
.adz~t~ to all
below.
2000.
TS CONST IWC
TIMoT~Y ^' s~drr~
?, O~
p, IN14E NOOMAN
P.O. Box No. 1 ~gv
St. c;oud, ~e~ta 563~ .1
Tcl~hon~: ¢20) 25l-fi7~'
MOO~ &:
Aaomc~ for Pl~indff
3400 Ci~
33 Socth S~x~ S~et
ORDER FOR PERMANENT INJUNCTION AND JUDGMENT
Based upon the above Stipulation and based upon all the files and submissions
herein, IT IS HEREBY ORDERED THAT:
1. A Permanent Injunction is hereby entered against the Defendants in this
action. The Defendants and each of them are required to compty with Condition Number
3 of the City's Conditional Use Permit No. 94-17. To wit, Defendants will arrange for
and ensure the removal of the House from the Property, as described in the Stipulation
above, to be completed not later than July 1, 2002. Upon compliance with this Order for
Permanent Injunction and Jud~m-nent, Defendants shall certify such compliance to this
Court by filing with the Court Administrator an affidavit executed by at least one of the
Defendants or one of their counsel referencing this Order for Permanent hajunction and
Judgment and setting forth the facts constituting Defendants' compliance with this Order
for Permanent Injunction and Judgment.
2. Defendants shall not, individually or collectively, alienate or transfer any
interest in the real Property subject to the CUP (which Property is legally described as:
Lots 3, 4 and 5, Block 15, Village of Elk RiVer, Sherburne County, Minnesota) until
Defendants have certified their compliance, as 'set forth above, with the terms of this
Order for permanent Injunction and Judgrnem, unless any and alt parties to whom an
interest in the Property is to be transferred have first filed with this Court an
acknowledgement of and consent to the terms of this Order for Permanent Injunction and
Judg-ment.
3. In the event that Defendants or any successor owner of the Property fail
to comply with the terms of this Order for Permanent Injunction and Judgment, such
failure will constitute contempt of this Court. The civil penalty for such contempt is
hereby assessed at $100 for each day after July 1, 2002 on which the Defendants or any
successor owner of the Property are in such contempt. Such penalty shall continue to
accrue~ to be assessed, and to be due and payable so this Court until Defendants or any
successor owner of the Property have certified to this Court their compliance, and make
pa.v'ment in full of any accrued civil penalty as set forth in this Order for Permanent
Injunction and Judgment.
4. Defendants' contempt of court for failure to comply with the terms of ti-is
Order for Permanent Injunction and Jud=~ment shall be demonstrated by an A_fi]davit
executed by a representative of the City or its counsel stating that Defendants have failed
to remove the House from the Property according to the terms of this Order for
Permanent Injunction and JudgTnent. Such affidavit evidence shall constitute conclusive
proof of Defendants' failure to comply with this Order for Permanent Injunction and
Judgment, and the penalties herein set forth for Defendants' failure to comply with this
Order for Pen~nanent Injunction and JudgTnent shall be due and Payable to this Court
irmmediately upon the filing of such evidence with this Court.
~. NOTWITHSTANI)IN'G RULE 125 OF THE MNN'SSOTA GENERAL
RULES OF PF,.ACTIC[, LET/UDOMENT BE ENTERED IlVfMEDL~.TELY ,KND
FORTHWITH.
Dated this . day of ,2000.
Judge of the District Court
JUDGMENT
Based upon the above Stipulation and Order for Peru:anent Injunction and
Judgment:
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this .. day of ,2000.
Judge of the DistrSct Court
GP:738191 v3
C~t ~
E]k'fRiver
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
Tim Smith
Jerry Smith
Pat Klaers
City Administrator
August 21, 2000
Lawsuit Settlement
Thank you for taking the time to meet with me to discuss the residential house
next to your business. In very layman terms, I would suggest the following:
The house and garage be entirely removed from the
site and the site be in a safe, developable condition no
later than July 1, 2002.
2. If the above condition is not met, a fine of $100 per day
will be paid to the city.
As this would be a lawsuit settlement you would be obligated to pay the fine.
Enforceability of this fine is an important condition for the city.
An executive session of the Council to discuss this proposal will be held on
August 28, 2000.
13065 Orono Parkway · P.O. Box 490 · Elk River, MN 55330 · TDD & Phone: (.6121) 441-7420 · Fair: (612) 441-7425