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2004-12-24 10393 51st Court NE Ltr l j "Also licensed in nlinois COURI, MACARTHUR & RUPPE, P.L.L.P. Attorneys at Law 705 Central Avenue East PO Box 369 St. Michael, MN 55376-0369 (763) 497-1930 (763) 497-2599 (FAX) courimacarthur@earthlink.net Michael C. Couri* Andrew J. MacArthur Robert T. Ruppe** David R. Wendorf Kristen H. Carr ""Also licensed in California December 24, 2004 Glen E. Schumann Moss & Barnett 4800 Wells Fargo Center 90 South ih Street Minneapolis, MN 55402-4129 Re: City of Albertville; 10393 51st Court N.E. Dear Mr. Schumann: Our office represents the City of Albertville. I have received a copy of your December 21, 2004 letter to Short Elliott Hendrickson, Inc. ("SEH") regarding the work that was done at 10393 51st Court N.E. in the City. There are several allegations in your letter that I believe are incorrect. I hope that this letter will set the record straight on these issues: 1. Trespass on your client's property. The City of Albertville has drainage and utility easements along the side lot lines and over various portions of your client's property. These easements were dedicated with the plat and predate your client's ownership of the property. The City has the authority to use these easements for drainage and utility purposes, including to inspect and repair drainage facilities. It is my understanding that SEH has traversed only upon the drainage and utility easements. Because SEH was doing so at the request of the City as the City Engineer (and thus with the authority of the City), SEH's actions cannot be construed as a trespass. 2. Damage to your client's property. I assume that the damage that you refer to was damage caused by machinery in excavating soil from wetland areas located within drainage and utility easements and in transporting that soil via a Bobcat over the drainage and utility easement area. This work was not done by SEH, but was performed by Edina Development Corporation ("EDC"), the original developer of the plat, pursuant to the wetland mitigation plan originally filed by EDC as part of its plat approval process. As I understand it, portions of your Glen E. Schumann December 24, 2004 Page 2 of3 client's property which are covered by drainage and utility easements either had or were supposed to have wetlands located within portions of these easements. As the developer of the plat, EDC is obligated by state law (Wetland Conservation Act) to monitor and maintain wetlands within its development for a period of five years after the development of the plat. Where wetlands are filled or otherwise impaired by the development without approval under the Wetland Conservation Act, the developer is required to restore those wetlands during this five year period. Upon realizing that wetlands located on your client's property were either filled or otherwise impaired, the City authorized EDC to restore these wetlands within the boundaries of the City's drainage and utility easement. Because the wetlands are an integral part of the approved drainage system located on the plat, the City was well within its easement rights to authorize EDC to restore the wetlands located within the easement. If EDC traveled or performed any work or caused any damage outside the City's easements, EDC (not the City) would be responsible for such damage, as the City did not authorize any work outside the easement areas. While your clients may consider the restoration of a wetland within a drainage easement on their property to be damage to their property, your clients took title to the property subject to the City of Albertville's Developer's Agreement, which in turn requires your client to abide by all wetland-related restrictions that were placed on the property as part of the approval process. Further, these wetlands are governed by state law and cannot be filled or altered without first complying with the Wetland Conservation Act. 3. Restoration of your client's property. It is my understanding in talking to the City Engineer that the ground froze before EDC had a chance to restore the ruts and other disturbances in the side yards. Restoration of these areas will occur in Spring, 2005, as such restoration is impossible when the ground is frozen. Any areas damaged by EDC that lie outside the easement area are the responsibility of EDC, not the City. However, if your client believes that areas outside the easement area have been damaged, the City would like to remain informed as to the extent of the damage and any progress in restoration of such damage by EDC. 4. Additional Holding Costs. Based upon the facts as I understand them, I do not believe that the City is liable for any additional holding costs that may be incurred by your client as a result of the work performed within the drainage easements. As noted above, the City has drainage easements over portions of this lot and authorized drainage-related work to be performed within these easements. These actions are consistent with the City's easement rights. Again, to the extent that EDC damaged your client's property outside of the easement area, such damage .: 1l Glen E. Schumann December 24, 2004 Page 3 of3 would appear to be the responsibility of EDC, not the City. I encourage you to take this issue up with EDC. Please feel free to contact me with any questions you may have regarding this matter. Thank you. Cc: Larry Kruse Pete Carlson Bob Moberg ;::1) (~ Michael C. Couri Couri, MacArthur & Ruppe, P.L.L.P.