Loading...
HomeMy WebLinkAbout12.A. Park and Open Space Encroachment-8051 Horizon Dr I L. f) · CITY OF SHAKOPEE MEMORANDUM To: Mayor and City Council Mark McNeill, City Administrator From: Jamie Polley, Park, Recreation and Natural Resources Director Peter Ouchakof, Natural Resources Intern Subject: Park and Open Space Encroachment -8051 Horizon Dr Meeting Date: July 21,2009 INTRODUCTION: The resident of the encroachment on Park and Open Space at 8051 Horizon Dr is appealing the PRAB's decision to the City Council. BACKGROUND: On May 2,2006 the City Council approved Resolution No, 6417, a Resolution Implementing a Program to Mark Boundaries of Park, Open Space and Conservation Easements. On September 16, 2008 the City Council approved Resolution No. 6806, a Resolution of the City of Shakopee adopting the Process to Remove Park, Open Space and Conservation Easement Encroachments (Attachment A). Staff completed marking the boundaries of all conservation easements, park land and open space and has been completing the process to correcting the encroachments. On June 22,2009 the resident exercised their right, under Step 4. D. 1 and appealed the encroachment on park and open space to the PRAB. The PRAB reviewed the encroachment and recommended 4-2 to allow the pond to remain but to move or remove the waterfall, wood pile and all other structures onto the resident's property. The resident is now exercising their right under Step 4. D. 2 to appeal the PRAB's decision to the City Council (Attachment B). DISCUSSION The resident is seeking the City Council's review of the park and open space encroachment located at 8051 Horizon Dr. The encroachment in question is a landscaped pond. City staff initially visited the site on May 29,2009. At that time, the staff determined that a portion of the pond crossed into the Park and Open Space area. Following the notice to the resident, the resident of the property promptly requested that a staff member re-visit the property with the resident present to determine the exact location ofthe easement. Using a GPS unit, it was determined that a portion of the pond, as well as a landscaped garden and several structures on the north end of the pond, did cross into the Park and Open Space area. The boundary line crossed the pond roughly 6 feet from the north end ofthe pond, and spanned roughly 12 feet through the pond. Pictures of the encroachment are included as Attachment C. The resident stated that they were aware that their backyard was adjacent to the Park and Open Space area, but were not aware that the pond crossed over the boundary. According to the resident, a pond built by the previous owner was present at the time the current residents purchased the house. The current residents remodeled and upgraded the old pond, but kept it in the same location. They believed the placement of the pond was within the boundary based on the location of the previous pond. REQUESTED ACTION: Ifthe City Council concurs move to allow or remove all or portions ofthe encroachment located at 8051 Horizon Dr. Page 2 of2 A TT ACHMENT A RESOLUTION NO. 6806 A RESOLUTION ADOPTING A PROCESS TO REMOVE PARK, OPEN SPACE AND CONSERVATION EASEMENT ENCROACHMENTS WHEREAS, Resolution No. 6417 of the City of Shakopee City implemented a program to mark boundaries of park, open space, and conservation easements; and, WHEREAS, the City of Shakopee Park and Recreation Advisory Board recommended the City Council adopt a resolution implementing a process to remove encroachments from park, open space and conservation easements. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SHAKOPEE, MINNESOTA, that it hereby approves and adopts the following process to remove park, open space and conservation easement encroachments: LEVEL WORK TO BE COMPLETED Meet with all staff to be included in the process Step 1 A. Agree to a plan for marking boundaries and encroachment issues B. Involvement and approval ofEAC, PRAB, and City Council Notices to residents A. Identify residents living next to park, open space, or conservation easements Step 2 B. Create link to online mapping for residents C. Notify residents of deadline to correct encroachments D. Notify residents that they can call and request a boundary marking but that it will be completed as quickly as possible otherwise E. Provide residents with staff contact information Field work A. Reference mylar for property corner iron monuments , Step 3 B. Locate property corner iron monuments C. Install boundary markers D. Identify potential encroachment issues and document with photo E. Create GIS database of existing and newly installed boundary markers F. As requested, meet with residents regarding boundary markers Encroachment Corrective Actions A. Send follow-up letter with photo to residents with encroachment issues B. Residents will have 10 working days to respond to the request to have the encroachment removed and area restored within 60 days C. Provide residents with restoration activities to be completed as a result of the Step 4 encroachment - case by case issue D. Complete second inspection following timeframe to have encroachment removed and take photos for records E. If encroachment issue corrected provide resident with thank you letter F. If encroachment issue not corrected the following process will be completed: 1. Letter sent from City Attorney 2. City Attorney will file a Court Order BE IT FURTHER RESOLVED that it hereby approves the City of Shako pee Park and Recreation Advisory Board to address and resolve park and open space encroachment issues with residents. BE IT FURTHER RESOLVED that it hereby approves the City of Shako pee Environmental Advisory Committee to address and resolve conservation easement issues with residents. Adopted in session of the City Council of the City of Shako pee, Minnesota, held this _ Day of ,2008. John J. Schmitt Mayor of the City of Shakopee ATTEST: City Clerk ATTACHMENT B To: Ms. Jamie Polley and Shakopee City Council July 7, 2009 We will be appearing before you on July 21, 2009, to resolve a dispute between the Shakopee Park Board and ourselves. The property in question is at 8051 Horizon Drive in Shakopee. The property abuts park land or open space. The boundaries were not clearly marked, nor was there any evidence that the area was intended as anything but open space, as there are no trails or public access. This is an old suburb development. We are a married couple who purchased this property in 2000. The pond and stream bed were in existence at the time of purchase as indicated by a copy ofthe sales brochure. Thus the water feature is more than 10 years old. The existing pond and structure were re-lined three years ago, and a waterfall filtration system was added. In 2008, a park ranger measured our back yard, which we then discovered was smaller than we understood it to be. A part of the pond and the waterfall extend into park preserve. We would have never added the waterfall in that space, had we been aware of this encroachment. We did not change the original pond that existed there. The ranger stated that he did not think this would present a problem, as there was no hard construction such as buildings or fences on the property. The encroachment, with the exception of the filtration system and liner, is entirely natural, made of stone, gravel, mulch and plantings. There are fish in the pond. A pump is kept on in the winter, providing year-round open water which has become a haven for wild animals and birds. To our knowledge, there is no other open water all winter, nor any other open, accessible water in the immediate area without animals crossing a highway. The park board, in a divided vote, allowed the pond and the greenery to remain, but ordered the waterfall removed. There are a number of problems with this order: *Without replacing the entire filtration system, as mentioned by landscaper Brad Tabke, chair of the park board, (who voted to retain the waterfall) the pond will become stagnant and mosquito-ridden, polluting the drinking water of the animals and birds. *To remove the waterfall would require removing the entire pond and large boulders surrounding it, bringing in large quantities of earth and relining the pond. The entire area would have to be redone. * We would have to attempt to keep the koi and other fish alive during this process and not disturb the nesting owls and other wildlife which currently live in harmony on the land. This include turkeys, many deer, occasional hawks, raccoons, woodchucks, fox, and sometimes coyotes. *It is impossible to remove the waterfall without traversing the forest with heavy equipment such as a backhoe or bobcat, as our property is now terraced and in- accessible. The city would have to give us as permit to cross the area. Heavy boulders will need to be removed which cannot be done by hand. This can stress tree roots and land. *The damage done in removing the waterfall would be greater than any problem it presents by remaining intact. The shifting of land could lead to erosion and degradation of the area. We believe that the pond and waterfall are much more an asset to the woods and wildlife than a liability. We would like to keep the terracing and natural plants and organic ground cover, along with the pond and waterfall. Therefore, we suggest the following options: *The city of Shakopee could give us an easement for approximately ten feet of encroachment. We will maintain the filtration and water expenses. We will add no development of any type beyond what is in place. We are willing to remove our woodpile, small benches and statues onto our property. *The city of Shakopee could sell us approximately ten feet encroachment the width of the property (or if preferred, the width of the waterfall and pond area.) We will continue to maintain the waterfall and pond and allow free access of wildlife. *We could donate the waterfall to the city of Shakopee and agree to maintain it as long as we own the property. The park board discussed returning the preserve to its natural state. We are unclear as to what the natural state of a forest is which is second or third-growth. This area is heavily covered in buckthorn and tree-choking vines, some of which we have cleaned out. Is this "natural?" We do not understand why there has been little effort to remove non-native species. The park board used the term "zero-tolerance" for encroachment. We believe that city council meant for flexibility to exist, which is why they built an appeal process. We sincerely request that some consideration be given to allow this idyllic space to remain undamaged. Yours very truly, Linda Green and Richard Wett ~ - -=,.-, ,', . fA ~, . , ... ,', , .,.... . .' ...~Y:..t~ .. -I/. ' fa'... "~.\" ..,' ~""~"''''.'''' ~ I . .. . ....... .,.",.. ....... . . ~.._ __~. -N_. ~ ...-......-.-...".~ _- ....-j ~....... ------ .., -~ Larkin /~.A-( Hoffin~ Larkin Hoffman Daly & Lindgren Ltd. 1500 Wells Fargo Plaza 7900 Xerxes Avenue South Minneapolis, Minnesota 55431-1194 GENERA" 952-835-3800 FAX; 952-896-3333 WEB: www.larkinhoffinan.com July 17,2009 , Mayor John 1. Schmidt City Council Member Steven Clay City Council Member Patrick Heitzman City Council Member Terry Joos City Council Member Matt Lehman ] 29 South Holmes Street Shakopee, MN 55379 Re: 8051 Horizon Drive - Pond Issue Dear Mr. Mayor and City Council Members: We represent Linda Green and Richard Wett, the owners of the property located at 8051 Horizon Drive, in Shakopee, with regard to the issues that have arisen between the City of Shakopee (the "City") and our clients concerning the pond, waterfall and related landscaping (the "Pond") located on our clients' property and the City's adjoining property. This matter is scheduled to be heard by the City CounciJ at its regular meeting on July 21. This letter follows up our clients' correspondence to you dated July 7, 2009. . . . ," . As you know, our clients have owned. the property upon 'which a portion of the Pond is located since 2000. The Pond was in existence at the time that our clients purchased their property. While we understand that the City has an interest in maintaining and protecting its property rights with regard to its various property holdings and easements in the City, the Pond does not threaten the City's interest in its property nor detract from the natural state and beauty of the City's property. In fact, the Pond enhances the natural benefits and aesthetics of the City's property and provides critical habitat for wildlife in the area. Moreover, there has been no neighborhood opposition to the Pond. In fact, our client's neighbors have expressed their support for the Pond remaining in its current state. Characterizin:g the Pond as an encroachment mischaracterizes the nature of the situation. The Pond is an amenity which benefits and enhances the City's property and the public in general; an amenity which was paid for entirely by our clients and the previous owners of the property. It is certainly not without precedent for a private citizens group, residential homeowners association or developer to construct and maintain cenain amenities located in City parks and other City owned property. In those situations, the City has recognized the value of those additional amenities for the public. Similarly; the Pond represents a similar opportunity for the City. Our clients have offered a variety of solutions to this matter which recognizes the City' sdesire to protect its property rights and maintain control over its property, while at the same time preserving the Pond in its current state. Our clients are more than willing to continue to maintain July 17,2009 Page 2 the Pond in its current state at their sole cost and expense in exchange for the City's agreement to allow the Pond to exist in its current state. Our clients have expressed a number of ways to document such an arrangement, including an easement or some sort of maintenance and use agreement. Additionally, our clients would be willing to purchase that portion of the City's property upon which the Pond is located subject to negotiation of a fair price for the property. Our clients remain hopeful that an amicable solution can be reached with the City Council on Tuesday night regarding this situation. . The Park Board's decision would require our clients to remove the waterfall currently in use with the Pond. Removing the waterfall would cause much more disruption and damage to the natural state of the City's property than allowing the Pond to remain in its current state. Additionally, such removal would cause our clients to incur costs and expenses that are unnecessary, given the circumstances. On behalf of our clients we respectfully request that the Council reverse the Park Board's decision 'in favor of a compromise which allows the Pond to continue to exist in its current state. r look forward to speaking with you and resolving this matter on Tuesday. Please contact me should you have any questions or concerns. ~lYBo an N. Boe, for arkin Hoffman Daly & Lindgren Ltd. 1264324.1 ):2. A . MJCJNloo-b ?fjfta;Jt/&J 9/C and f!Jif'Jiuw [f5ffaJCne6 7960 Horizon Dr. Shakopee Mn. 55379 Phone (952)-403-9833 cjbarnesus@yahoo.com July 18, 2009 Members of the Council. Shakopee Mn Dear Council Members The undersigned, Charles M. Barnes and M. Jane Barnes of the above address would like you to consider giving a variance to Linda and Rick Green on their property for a waterfall and ponding feature. They have continued to beautify their property in the years they have lived in our neighborhood, and we are grateful for all that, they have done. Please consider their request. Sincerely, Signature e~ ':nt. ~. ~