2007-05-04 Hedlund Memorandum, Revised Affidavit Mundstock, Affidavit of Service, Check05/04/2007 FRI 16:32 FAX 612 339 7655 Arthur Chapman Law U 001/037
KETTERING SMETAK & PIKALA P.A.
Attorneys at law FAX
500 Young Quinlan Building TRANSMITTAL
81 South Ninth Street
Minneapolis, MN 55402-3214
Telephone (612) 339-3500
Fax (612)339-7655
www.arthurchapman.com
TO:
Wright County Court Administrator 763-682-7300
John Markert, Esq. 952-841-0041
Cindi Matt, Esq. 763-682-4465
Steve Yoch, Esq. 612-338-0535
Jason Kuboushek, Esq. 952-946-1501
FROM. • Anton J. van der Merwe, Esq.
ACKS&P
FILE: 36039
DATE: May 4, 2007
TOTAL NUMBER OF PAGES (including this page): 1-1
DOCUMENTS:
1. Hedlund Engineering, Inc. 's Memorandum in Response to the City ofAlbertville's Motion for
Summary Dismissal and in Support Of Gold Key Development's Motion for Summary Dismissal;
2. Revised Affidavit of Brian Mundstock;
3. Affidavit of Service; and
4. 880.00 Check for motion and faxtiling fee.
The information contained in this fax message is attorney privileged and confidential information intended onlyfor the
use of the individual or entity named above. Ifthe reader of this message is not the intended recipient, they are notified
that any dissemination, distribution, or copying ofthis communication is strictly prohibited Ifthis communication has
been received in error, please contact Arthur, Chapman, Kettering, Smetak & Pikala, P.A. at (612) 339-3500. Thank
you.
Ifyou have problems receiving, please call (612) 339-3500 and ask for sender of this fax.
05/04/2007 FRI 16:32 FAX 612 339 7655 Arthur Chapman Law
U 002/037
A muRC HAPMAN
KETTERING SMETAK & PIKALA P.A.
(nmmeys atimv
500 Young Quinlan Building
81 South Ninth Street
Minneapolis, MN55402-3214
Telephone (612) 339-3500
Fax (612) 339-7655
unuw.arthurchapinan.com
AN EQ UAL OPPORTVM fY EMPLOYER
May 4, 2001
Wright County Court Administrator
Wright County District Court
10 2nd Street NW
Buffalo, MN 55313
Anton J. Van der Merwe
ATTORNEYATLAW
DrREcTDL4L (612) 375-5905
A.IVANDERMERWE a(4RTHURCHAPMAN. COM
Via Facsimile (763-682-7300)
and U.S. Mail
RE: T/C Homes, Inc. v. City ofAlbertville and Gold Key Development v. Hedlund Engineering Services,
Inc.
Court File Nos: 86-06-CV-4997 / 86-CV-06-2998
Our File No: 36039
Dear Court Administrator:
Enclosed herewith for filing, please find the following documents:
1. Hedlund Engineering, Inc.'s Memorandum in Response to the City of Albertville's Motion
for Summary Dismissal and in Support Of Gold Key Development's Motion for Summary
Dismissal;
2. Revised Affidavit of Brian Mundstock; and
3. Affidavit of Service.
The revisions to Mr. Mundstock's affidavit dated April 16, 2007 add paragraphs 26 and 27 to address the
latest available information provided by the City regarding proposed additional water storage sites in the
County Ditch # 9 watershed.
By copy of this correspondence and its enclosures, all counsel of record are being served with same.
Yours truly,
,7
A ton J. van der Merwe
AJV/kab
Enclosures
cc: John Markert (w/encl) (via facsimile 952-841-0041)
Cindi Matt (w/encl) (via facsimile 763-682-4465)
Steve Yoch (w/encl) (via facsimile 612-338-0535)
Jason Kuboushek (w/encl) (via facsimile 952-946-1501)
05/04/2007 FRI 16:32 FAX 612 339 7655 Arthur Chapman Law
U 003/037
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05/04/2007 FRI 16:33 FAX 612 339 7655 Arthur Chapman Law
U 004/037
STATE OF MINNESOTA
COUNTY OF WRIGHT
TIC Homes, Inc. a Minnesota corporation,
Plaintiff,
V.
City of Albertville,
Defendant/Third-Party Plaintiff,
V.
Short Elliott Hendrickson, Inc.,
Third -Parry Defendant.
T/C Homes, Inc., a Minnesota corporation,
Plaintiff and Cross Claimant,
vs.
Gold Key Development, Inc., a Minnesota corporation
Defendant/Third-Party Plaintiff,
vs.
Hedlund Engineering,
vs.
City of Albertville,
Third -Party Defendant,
Defendant/Third-Party Plaintiff,
vs.
Short Elliott Hendrickson, Inc.
Third -Party Defendant
Page -1-
DISTRICT COURT
TENTH JUDICIAL DISTRICT
CASE TYPE: DECLARATORY JUDGMENT/
BREACH OF CONTRACT
Judge
Court File: 86-CV-06-2998
05/04/2007 FRI 16:33 FAX 612 339 7655 Arthur Chapman Law
U 005/037
HEDLUND ENGINEERING, INC.'S MEMORANDUM IN RESPONSE TO THE CITY OF
ALBERTVILLE'S MOTION FOR SUMMARY DISMISSAL AND IN SUPPORT
OF GOLD KEY DEVELOPMENT'S MOTION FOR SUMMARY DISMISSAL
INTRODUCTION
On December 1, 2006, the City of Albertville unilaterally and unlawfully breached its Development
Agreement with Developer Gold Key. It did so by falsely claiming that the Prairie Run residential
development violated City ordinances when Gold Key:
i. graded 16 of 52 building pads at incorrect elevations, and
ii. installed an inadequate and deficient drainage system.
The record shows that the City's claims are false, because:
I. all 52 building pad elevations complied with, and exceeded, the Development
Agreement and the City of Albertville's zoning and subdivision ordinances in
effect in 2004 with respect to structure low opening elevations, and
ii. drainage was properly designed to provide a permanent and rate controlled
solution for the discharge and removal of all natural water that accumulates
on the property
The City, notthe Developer, breached the contract, and is legally responsible for the damages caused
to the Developer. The City is obliged, as a matter of law, to withdraw its moratorium and proceed to honor
building permits and certificates of occupancy with respect to pending and existing construction on the
property. For these reasons, including the reasons set our by Gold Key Development in its moving papers,
the motion for summary judgment by Gold Key Development must be granted and the City of Albertville's
motion denied.
2. PARTIES AND SIGNIFICANT NON-PARTIES
a. Parties
i. City of Albertville - Defendant and Third Party Plaintiff municipality in Wright
County, Minnesota.
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05/04/2007 FRI 16:33 FAX 612 339 7655 Arthur Chapman Law U 006/037
ii. Gold Key Development, Inc. Plaintiff Gold Key is a developer of land and single
family and town -home developments in Minnesota. Development activities includes
locating the ground, providing the entitlements, arranging the financing, and
disposing of the building lots. Prairie Run is Gold Key's only development in the
City of Albertville.
iii. Hedlund Engineering, Inc. Third Party Defendant. In about the Spring of2003, Gold
Key asked Hedlund, an independent consultant engineer, to determine how feasible
it was to develop Prairie Run. Hedlund did the initial civil engineering and land
survey. As the project developed, Gold Key limited Hedlund's participation to just
the design, platting (actual lot layout), and grading of the development.
iv. T/C Homes. Plaintiff general contractor that entered into agreementswith GoldKey
to have options to purchase and build upon certain lots on the Property. Based upon
the City's refusal to issue certificates of occupancy and building permits, Gold Key
is unable to fulfill the terms of its option agreements with T/C Homes because it
cannot convey buildable lots to the builder.
V. Short Elliot Hendrickson ("SEH"). Independent consultant engineer. The City of
Albertville contracted with SEH in approximately January 1995 to provide
engineering services to the City, including `review" services for all preliminary and
final plat submissions. As City Engineer, SEH's duties were to review all
engineering submittals and make determinations and to advise the Albertville City
Council whether the street, storm sewer, storm water ponding, sanitary sewer and
municipal water designs submitted by a property owner or developer met the
requirements of the City's zoning and subdivision ordinances. The City of
Albertville terminated its contract with SEH in approximately January 2005.
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b. Significant non-parties
Bolton & Menk (`B&M"). Independent consultant engineer. The City ofAlbertville
contracted with Bolton & Menk to replace SEH as the City Engineer in
approximately January 2005. Bolton & Menk has been assisting the City in the
Prairie Run development dispute.
ii. Northwest Associated Consultants ("NAC"). Independent city planning services.
Alan Brixius from NAC was the City Planner at the time of the Prairie Run
development and through all phases of the planning, review, and approval process.
3. THE RECORD DEMONSTRATES HEDLUND'S COMPLIANCE WITH GRADING AND DRAINAGE
REQUIREMENTS
This dispute has its source in the Planned Unit Development Agreement ("Development Agreement")
between Gold Key and the City of Albertville, dated July 16, 2004. With respect to the required grading
elevations, the Development Agreement at ¶ 13 (I), prescribed the lowest elevation at which Hedlund could
place any to -be -built structures as follows:
Developer shall not place any structure at an elevation such that the lowest grade opening
is less than two feet above the highest known surface water level or ordinary high water
level or less than one foot above the 100-year flood level of any adjacent water body or
wetland. If sufficient data on high water levels is not available, the elevation of the line of
permanent aquatic vegetation shall be used as the estimated high water elevation. When fill
is required to meet this elevation, the fill shall be allowed to stabilize and construction shall
not begin until the property has been approved by the Building Inspector or a professional
soils engineer. Development Agreement, ¶ 13 (I) at p. 12 2
IHedlund Engineering adopts by reference the Statement of Undisputed Material Facts set out by Gold Key
Development in its moving papers. Further, as a matter of judicial and practical economy, all documents referenced
herein by Hedlund are already on file with the Court as part of the submittals by Gold Key Development, including
also the documents referenced in the Affidavits of Cindi Matt, Dean Johnson, and Brian Mundstock, and will not be
reproduced unless so requested by the Court.
2It is helpful to think of the permanent line of aquatic vegetation as a line of differentiation between aquatic
grasses and weeds, on the one hand, and dry land grasses and weeds on the other.
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City Attorney Couri has testified that he drafted the Development Agreement. The language of ¶ 13 (1) of
the Development Agreement closely tracks the requirements ofthe corresponding zoning ordinance in effect
at the time, Zoning Ordinance § 1000.9, Subd. (d) s
It is undisputed that Hedlund provided all his engineering design information to the City
Administrator, the City Engineer, the City Attorney, and the City Planner at every stage of the Prairie Run
development process, from the concept planning stage to the final approval stage, and beyond that through
each revision to the grading plan required by the City. And at every stage of the process, the City approved
the elevations used by Hedlund.
a. The Concept Plan
In early 2003, Hedlund prepared concept plans for the residential portion of the Prairie Run. He
determined that available information regarding high water levels for the development was the line of
permanent aquatic vegetation, the third measure of high water levels set out in the ordinance (and later in the
Development Agreement). At the time, neither Gold Key nor Hedlund were aware of information sufficient
to determine either the highest known water level, or the 100 year flood level for the development, the other
two measures of the high water levels described in the ordinance (and later in the Development Agreement).
Consequently, and pursuant to the express and mandatory terms of the ordinance' (and later ¶13 (I) of the
3"No structure, except docks and retaining walls, shall be placed at an elevation such that the lowest floor,
including basement floor, is less than two feet (2') above the highest known surface water level or ordinary high
water level, or less than one (1) foot above the 100-year flood level, if determined, of any adjacent lake, pond,
stream, watercourse or wetland. If sufficient data on known high water levels is not available, the elevation of the
line of permanent aquatic vegetation shall be used as the estimated high water elevation. When fill is required to
meet this elevation, the fill shall be allowed to stabilize, and construction shall not begin until the property has been
inspected by the Building Inspector."
4"If sufficient data on known high water levels is not available, the elevation of the line of permanent
aquatic vegetation shall be used as the estimated high water elevation." Zoning Ordinance § 1000.9, Subd. (d) (in
pertinent part, emphasis added).
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Development Agreement'), Gold Key through Hedlund Engineering used the permanent line of aquatic
vegetation to estimate the high water levels for the development. This fact is undisputed.
On February 3, 2003, the City Council directed Gold Key to work with City staff and to proceed
through "normal avenues" towards City Council approval of the development. Accordingly, during the initial
months of 2003, Dean Johnson of Gold Key and Randy Hedlund of Hedlund Engineering had several
meetings with City staff, including City Engineer Peter Carlson (SEH), City Attorney Michael Couri, and
City Planner Alan Brixius (NAC) about the concept plans.' The purpose of the meetings was for Gold Key
to present the working details of the proposed development and for the City representatives to provide
comment, input, and suggestions about the development.
The high water elevation estimated by Hedlund using the permanent line of aquatic vegetation
pursuant to a contractually endorsed method derived from the zoning ordinance, was 947.5 feet above sea
level. Accordingly, and using this elevation as the "ordinary high water level" described in the ordinance
(and incorporated in to the Development Agreement), Hedlund added two (2) feet to the 947.5 foot elevation
as prescribed by the ordinance (and later by the Development Agreement). In other words, the lowest
permissible grade opening established by Hedlund was at least 949.5 feet' But, out of an abundance of
caution, Hedlund went further than the ordinance required and raised the minimum elevations by an
additional one foot for added safety. These facts are not disputed.
At this point in time, therefore, the record shows that the minimum elevations for the lowest
grade openings of all 52 building pads was at least 950.5 feet above sea level, or three (3) feet above
5"If sufficient data on high water levels is not available, the elevation of the line of permanent aquatic
vegetation shall be used as the estimated high water elevation." (Emphasis added). Development Agreement, dated
July 16, 2004, ¶ 13 (I)
6Johnson Dep.28-30.
This prescribed allowance adds two feet to the estimated high water elevation, providing at least a two foot
buffer of soil beneath the home even in the most wet of foreseeable circumstances.
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U 010/037
the ordinary high water level, whereas the Development Agreement only required the lowest grade
opening to be no less than two feet above the ordinary high water level.
b. Preliminary Plat Approval
On June 12, 2003, Gold Key submitted an application for approval of the preliminary plat of Prairie
Run, including the grading and drainage plans drafted by Hedlund.' After reviewing the preliminary plat
submissions, City Planner Brixius issued a Planning Report with the following recommendation:
Upon review of the proposed project, it is staffs view that ... the preliminary plat
subdividing the site into 52 single family residential lots are generally consistent with .. .
the standards of both the Zoning and Subdivision Ordinances. As such, staff recommends
approval of both the rezone and the preliminary plat, subject to the conditions listed within
this report.'
One listed condition was that "The submitted grading and drainage plan will be subject to review and
approval by the City Engineer." The City Engineer Carlson was copied on this Planning Report.
The day before the Planning Report was issued on June 25, 2003, there was a storm event in
Albertville. The City received multiple complaints from homeowners whose homes were damaged or flooded
during this event.10 Many of the homes that flooded were in developments that drained into County Ditch
# 9 adjacent to the proposed Prairie Run development." City Engineer Carlson knew about the flooding
complaints.12 City Building hispector Jon Sutherland took photographs of houses affected by the flooding
and showed them to City Administrator Kruse and City Engineer Carlson.13 However, no one from the City
staff or the City Engineers shared the photographs with Hedlund, or raised any concerns with Gold Key or
BDep. Ex. 67.
9Dep. Ex. 5,
30Sutherland Dep. 28, 124.
"Sutherland Dep. 28-30.
12Sutherland Dep. 13, 18-20, 32-34, 50-51, 54, 57-58,
13Sutherland Dep. 15-18, 20-22.
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Hedlund about the potential effect of the flooding on the future Prairie Run development.14
The photographs taken by Sutherland at the time of the 2003 storm are the same photographs that
were unearthed by Bolton & Menk in 2006 and used to establish the "highest known surface water level" that
the City now sets against Hedlund's 2004 grading elevations to declare them deficient. (Described in detail
below).
On August 4, 2003 the City Council approved the preliminary plat of Prairie Run at a meeting of the
City Council, subject to review and comment by the City Engineer," City Engineer Carlson was present at
the meeting but made no comments and raised no concerns about the grading or drainage plans, despite the
fact that he knew about the flooding issues with County Ditch #9 and was in the process of conducting a
flood study of the County Ditch # 9 watershed as a result of the 2003 storm event."
At this point in time, the record shows that the minimum elevations for the lowest grade
openings of all 52 building pads were still at least 950.5 feet above sea level, or three (3) feet above the
ordinary high water level, whereas the Development Agreement only required the lowest grade
opening to be no less than two feet above the ordinary high water level.
c. Final Plat Approval
Gold Key and Hedlund continued to work with City staff, the City Engineer, and the City Planner
in the period following approval of the preliminary plat." During this same time period, in September or
October 2003, City Engineer Carlson presented his analysis of the impact of the June 2003 rain event on the
County Ditch 99 watershed at a City Council meeting.`$ In November 2003, Hedlund's office contacted
14Sutherland Dep. 16, 84; Carlson Dep. 144.
15Dep. Ex. 67.
76Carlson Dep. 81-82.
17Johnson Dep. 28-30; 33-34; 47-49.
is Carlson Dep. 87-90.
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Carlson's office for input regarding requirements for the Prairie Run pond system, includingwhat size storm
Hedlund had to provide for on the property, and the size of the proposed storage ponds on the property.19 At
no time during the preliminary and final plat approval process did the City Engineer or City Administrator
inform Hedlund about the flood study or inform Hedlund about concerns with flooding in the County Ditch
# 9 watershed.
On or about April 19, 2004, Jim Shultz from SEH (acting as the City Engineer during the temporary
absence of Pete Carlson) called Hedlund regarding some concerns with certain pad elevations in light of the
rain event the previous year in 2003 20 SEH directed that elevations for 11 of the lowest of the 52 pads be
raised. Accordingly, Hedlund revised all 11 pad elevations to between 952.5 and 953.0 feet, but at least two
feet above a high water level of 950.5 feet provided Jim Schulz.21 As of this revision date, therefore, the
lowest grade opening elevations of all pads at Prairie Run equaled or exceeded 952.5 feet. The City Engineer
accepted without change the elevations of the remaining 41 pads/lots.
On June 2, 2004, City Planner Brixius advised City Administrator Kruse in writing that
Based on our review, we find that the Prairie Run final plat is consistent with the approved
preliminary plat and has complied with the conditions of the preliminary plat approval.
Staff recommends approval of the final plat. , "
i9Dep. Ex. 71.
20Schultz himself does not recall this, although he does not disagree with Hedlund's recollection. Schulz
Depo 36-37. Schultz recalls instead that the elevation information he gave Hedlund was derived from the Brian
Wolters culvert study, specifically the culvert "headwaters" elevation estimate of 951.5 from that study. Schulz
Depo, 27-31, In fact, Hedlund's recollection is more likely accurate for two reasons: (1) The SEH flood study
analysis of the 2003 event, information Schulz was aware of at the time he spoke to Hedlund (Schulz Depo 37-38),
determined a high water level of 950.5 (Nafstad 68); and (2) the revised elevations for all 11 pads were set at
between 952.5 and 953.0 feet which corresponds to setting the levels at two feet above the 950.5 elevation Hedlund
says Schulz gave him to use as the high water level.
2]The eleven lots raised were Lots 8 and 9, 14 through 19, and 26 thru 28, Block 2.
22Dep. Ex. 78.
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The earlier condition that the grading and drainage plan in the preliminary plat was subject to review and
approval by the City Engineer was no longer mentioned and was not a condition for final plat approval 23 City
Engineer Carlson was copied on the City Planner's recommendation.
The City Council approved the Final Plat of Prairie at its meeting on June 7, 2004. City Engineer
Carlson was present at the meeting but failed to inform the City Council that SEH had not yet reviewed the
grading and drainage plans for the Prairie Run development." At this point, the City Administrator and the
City Planner all agree it was reasonable for Gold Key and Hedlund to assume that the plans they submitted
had been reviewed and approved by the City Engineer."
The undisputed record shows that Hedlund complied with every requirement imposed by the City,
responded to every concern raised by the City, and submitted grading and drainage plans that were approved
by the City. In fact, pursuant to Paragraph 13.I. of the Development Agreement, the lowest grade opening
at Prairie Run was to have been 949.5 feet (two feet above the 947.5 line of permanent aquatic vegetation).
The grading plan actually submitted by Hedlund, approved by the City, and incorporated into the
Development Agreement, set the lowest grade openings at a minimum of 952.5 feet after the April 19, 2004
revisions requested by the City Engineer.
In other words, at the time of final approval, the lowest grade openings of all 52 building pads
were at least five (5) feet above the "ordinary high water level' of 947.5, whereas the Development
Agreement only required the lowest grade opening to be no less than two feet above the ordinary high
water level.
23Carlson Dep. 116-119; Kruse Dep. 48-50.
24Carlson Dep. 123-125.
25Kruse Dep. 42, 92-93; Brixius Dep. at _
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d. First Revised Grading Plan Approval
Colleen Allen from the Wright County Soil and Water Conservation District, wrote a letter to
engineer Todd Udvig of SEH on or about October 1, 2004, setting out seven enumerated items of concern
regarding Prairie Run (City Engineer Carlson and Hedlund were copied on the letter):
One final, but most important note of caution. Our office remains concerned about the
flooding potential with regards to ditch 9 [County Ditch # 9]. We have seen this whole area
back up and flood when ditch 9 backs up. We think that the city should do a comprehensive
hydrologic study of ditch 9, including everything that drains into it, to determine flooding
potential and review possible opportunities for remedial measures "
SEH asked Hedlund to respond to the concerns raised in Ms. Allen's Ietter, which Hedlund promptly did by
detailed letter to Mr. Udvig dated October 13, 2004, including that he had addressed the concern about ditch
# 9 backing up by raising eleven building pad elevations as a result of his discussion with City Engineer
Schulz in April 2004 " Nevertheless, Hedlund revised the grading plan with respect to wetland mitigation
on or about October 14, 2004 with the involvement and knowledge of Mr. Udvig." No grading or drainage
deficiencies were identified and there was no request at this time to revise any building pad elevations.
At this point in time, therefore, the lowest grade openings of all 52 building pads were still at
least five (5) feet above the "ordinary high water level" of 947.5 as approved by the City Council on
June 7, 2004, whereas the Development Agreement only required the lowest grade opening to be no
less than two feet above the ordinary high water level.
e. Second Revised Grading Plan Approval
In approximately September of 2005, the City of Albertville experienced a significant rain event.
None of the homes already built on the Prairie Run property were flooded as a result of this rain event.
However, due to some water overtopping a small portion of a cul de sac at the south-western corner of the
26Dep. Ex. 38
27Dep. Ex. 54. Hedlund Dep. 92, 129, 155-56,
29Hedlund Dep. 154-55.
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development near County Ditch # 9 and the box culvert under County Road 18 (Jason Avenue), the City
suspended a building permit which it had previously issued on a home that Gold Key wanted to build on one
of the cul de sac lots until such time as the grading plan was revised. During this time the City discovered
a letter written in November 2000 by Brian Walters, an engineer for a concrete products company, regarding
replacement of the culvert under County Road 18 (Jason Avenue). In the letter, Walters estimated a culvert
"headwaters" elevation of 951.5 feet for culvert sizing purposes. Despite the limited purpose of the Walters
elevation estimate, the new City Engineer Adam Nafstad from Bolton & Menk decided that this elevation
represented a 100 year flood elevation for the Prairie Run development and instructed Hedlund to use this
elevation to revise the grading plans for lots 7 - 13 of block # 2.
Hedlund did as City Engineer Nafstad required, raising the elevations of the unbuilt lots to 953.5,
or two feet above the 951.5 culvert "headwaters" elevation, and prepared a revised the grading plan for the
entire development to incorporate the revisions required by the City Engineer. Hedlund's October 11, 2005
revised plans were then approved, the City issued the building permit, and Gold Key went ahead with plans
to build on one of the raised lots.
In short, at this point in time, the lowest grade openings of all building pads without houses
already built on them were raised to 953.5 feet, at least six (6) feet above the "ordinary high water
level" of 947.5, and the lowest grade openings of all houses already built was at least 952.57 feet, at
least five (5) feet above the "ordinary high water level" of 947.5, whereas the Development Agreement
only required the lowest grade opening to be no less than two feet above the ordinary high water level.
4. THE CITY ERRONEOUSLY DECLARES DEFAULT
Despite the fact that the City had just approved Hedlu nd's latest revised plans, on November 29,
2005, City Attorney Couri wrote a letter to Gold Key notifying the developer that the Prairie Run
development was in default of paragraph 13.F. of the Development Agreement for failing to use the culvert
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elevation in the first place when the original grading and drainage plans were prepared in 2004 29 According
to Couri, "it has been discovered that the grading plan for the Prairie Run plat does not account for the 100-
year flood elevation (calculated at 951.5 by Wright County) ...":
After several recent rainfall events, it has been discovered that the grading plan for the
Prairie Run plat does not account for the 100 year flood elevation (calculated at 951.5 by
Wright County) of an existing box culvert where County Ditch # 9 passes under Jason
Avenue. The location of the box culvert is in the southwest corner of the development and
County Ditch # 9 is the outlet for storm water run-off from the site. City staff is of the
opinion that this discrepancy occurred as a result of an error in Hedlund's calculations.
It is undisputed that Hedlund did not know about the culvert elevation until the Walters letter was provided
to him in November 2005" Nor is it disputed that the City Engineer had the culvert letter in its possession
at least as early as July 1, 2003, prior to approval of Hedlund's preliminary plat for Prairie Run"
Nevertheless, and despite the fact that, within 30 days of the Couri letter of default, Walters rejected
the City's use of his culvert elevation estimate (by letter dated December 29, 2005) writing that "the purpose
of the 100-year flood estimate is to assist in the selection of the proper culvert size, not to establish 100-year
flood levels for zoning purposes,i32 the City exercised its option to refuse to allow construction or
development work to proceed until the development was brought into compliance with ordinances.
According to Couri, "until a study is done to determine whether this elevation is correct, the City accepts this
elevation as the correct elevation.""
The new City Engineers, Bolton & Menk, were commissioned to do the study and, in February 2006,
Bolton & Menk, issued the first of two flood studies of the county ditch # 9 watershed. The study determined
29Couri letter to gold Key dated 11/29/05. In fact, Brian Walter's 951.5 elevation was for culvert sizing
only and was not meant to be for flood plain zoning purposes; Walter's confirmed this in a 12/29/05 letter to
Attorney John Brennan.
30Hedlund dep. 156-60.
31Carlson dep. 73-78.
32Walters 12/29/05 letter to Attorney John Brennan
33Couri Letter, 11/29/05.
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a 100-year flood elevation of 950.9 feet above sea level 34 In April 2006, Bolton Menk amended its flood
study and revised its 100 year flood elevation downward to 949.9 feet above sea level. The amended study
also established a "highest known surface water elevation" of 951.47 feet above sea level derived from
photographs taken by City Building Inspector Sutherland of the June 2003 flood event.
On December 1, 2006, the City informed Gold Key that, based upon this "highest known" elevation
of 951.47 feet, and a 100 year flood elevation of 949.9 feet, the development was in default of paragraph
13.F. of the Development Agreement for having violated ordinances in effect on June 7, 2004 at the time of
plat approval. The City has taken this position even though it is undisputed that the revised elevations were
determined more than two years after the City approved the plat as being in compliance with ordinances in
effect at the time of plat approval in June 2004.
The City also indicated for the first time on December 1, 2006 that it believed the drainage system
for the Prairie Run development was deficient and that the infrastructure of the entire development, including
streets and ponds, needed to be raised.i5
ARGUMENT
A. THE UNDISPUTED RECORD SHOWSTHATHEDLUNDMETANDEXCEEDED THE GRADING
AND DRAINAGE REQUIREMENTS OF THE DEVELOPMENT AGREEMENT
THE ELEVATIONS OF ALL 52 BUILDING PADS COMPLIED WITH, AND EXCEEDED, THE
DEVELOPMENT AGREEMENT AND THE CITY'S ZONING AND SUBDIVISION
ORDINANCES IN EFFECT IN 2004 WITH RESPECT TO STRUCTURE LOW OPENING
ELEVATIONS
The Planned Unit Development Agreement ("Development Agreement") between Gold Key and the
City, dated July 16, 2004, included specific provisions related to grading (i.e., elevations) and drainage of
the property. According to 113 (I) of the Development Agreement, the property was to be graded so that
34"2006 County Ditch No. 9F]ood Study" Dep. Ex. 2.
35As of the date of the City's Notice of Default on December 1, 2006, thirteen homes had been built. Of
these, the City has issued Final Certificates of Occupancy on six while the remaining seven have Temporary
Certificates of Occupancy.
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structures were placed at elevations above estimated high water levels: No structure could be placed at an
elevation such that the lowest grade openingi6 was
less than two (2) feet above the highest known surface water level, or ordinary high water
level, or
less than one (1) foot above the 100 year flood level of any adjacent water body or wetland,
[provided that], if sufficient data on high water levels is not available, the elevation of the
line of permanent aquatic vegetation shall be used as the estimated water elevation."
At the time Hedlund prepared his concept plans for the Prairie Run development, the applicable ordinance
set out an identical three -tiered measure of high water levels (as set out above). City Attorney Couri drafted
the Development Agreement and there can be no dispute that the contracting parties intended to specifically
address the elevation issue in their contract.
The City does not deny that the Gold Key/Hedlund properly calculated the elevations for the low
openings of the homes based upon the line of permanent aquatic vegetation. The record shows that
information that could have been used to estimate the "highest known surface water level" and the "100 year
flood level" was available to the City at the time Hedlund prepared the grading plans for Prairie Run, but that
such information was never made available to Gold Key or to Hedlund at any time during the design and
approval stage of the development. In fact, the record shows that the City used the information in its files for
the first time in 2006 to determine the "highest known surface water level" and the "100 year flood level'
for the Prairie Run development. The City's December 2006 notice of default seeks to impose these after -
the -fact elevations upon the development plan approved by the City Council on June 7, 2004.
Significantly, despite its initial pleadings and although the full text of the pertinent portion of
the notice of default by the City Administrator is set out in the City's Brief at page 11, the City's Brief
36Examples of a "lowest grade opening" in a home without a basement is the bottom of a sliding door or
the low point in a window well. In a home with a full basement, the lowest grade opening is a basement window or
the bottom slider of the basement door in a walkout.
"Development Agreement, dated July 16, 2004, ¶ 13 (I) at p. 12 (paraphrased, emphasis added).
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completely fails to address the elevations issue and presents no facts, no affidavit, no expert
engineering opinion, and no argument to support its claims regarding the elevations alleged to be in
violation of ordinances.
2. THE DRAINAGE WAS PROPERLY DESIGNED TO PROVIDE A PERMANENT AND RATE
CONTROLLED SOLUTION FOR THE DISCHARGE AND REMOVAL OF ALL NATURAL
WATER THAT ACCUMULATES ON THE PROPERTY
The executed Development Agreement also contained provisions relating to the drainage of water
from the property. Accordingly, the Development Agreement required the developer to "install storm water
retention/water quality ponds and basins ... as shown on the Grading, Drainage and Erosion Control Plan
attached as Exhibit D" (Development Agreement, ¶ 3 E), and required the developer to comply with "any
federal, state, county or city drainage requirements" (Development Agreement, ¶ 10). The Development
Agreement specified that "all grading, drainage.... issues ... shall be subject to review and approval by the
City Engineer." Development Agreement, ¶ 1 C. It is undisputed that Hedlund's Grading, Drainage and
Erosion Control Plan was approved by the City on June 7, 2004 and attached as Exhibit D to the
Development Agreement executed by Gold Key and the City on July 16, 2004.
The City's December 2006 notice of default from the City Administrator alleged three drainage -
related violations: (1) that the post -development 100 year storm peak discharge run-off rate exceeds the pre -
development 100 year storm peak discharge run-off rate; (2) thatthe post development run-offrate discharges
at more than one-half of the pre -development run-off rate; and (3) that the surface and underground drainage
systems for the development do not adequately remove all natural drainage from the property and do not
provide a permanent solution for the removal of all natural drainage that accumulates on the property. City
Brief page 11.
On behalf of Gold Key and Hedlund Engineering, expert engineer Brian Mundstock has analyzed
the HydroCAD drainage calculations that Hedlund performed for the property. Mundstock concludes that
Hedlund properly accounted for the standard variables regarding each subcatchment for the Prairie Run
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development, including drainage, reach, and ponds, for both the pre -development drainage run-off rates and
the post -development drainage run-off rates, taking into account 2, 10, and 100 year flood events. Mundstock
concludes that
(1) the drainage was properly designed to provide a permanent solution for the adequate
removal of all natural drainage that accumulates on the property;
(2) the water capture, storage, and discharge system as designed, including all storage pond
capabilities aggregated for this purpose, provided a post development discharge run-off rate
from the property that did not exceed more than one-half of the pre -development discharge
run-off rate; and
(3) the drainage system provided a post -development 100 year storm peak discharge run-off rate
from the property that did not exceed the pre -development 100 year storm peak discharge
run-off rate.
Mundstock Affidavit ¶¶ 16,17,18. Moreover, Mundstock has calculated the pre -development drainage run-
off rates and the post -development drainage run-off rates of Hedlund's design, and concludes that the water
capture and pond system designed by Hedlund not only provided significantly more storage than the
ordinances required, but that the drainage system designed by Hedlund provided a run-off rate well within
the maximum drainage run-off rates permitted by ordinance. Mundstock Affidavit ¶ 19.
Significantly, although the City's Brief purports to address the drainage in section I of its
Argument, the City's Brief presents no facts, no affidavit, and no expert engineering opinion to
support the City Administrator's claims regarding the drainage items alleged to be in violation of
ordinances. The only "evidence" offered by the City is the assertion that Hedlund himself has conceded
such drainage violations in his deposition testimony. City Brief, p. 12 & 14.
However, the text of Hedlund's answers to the line of questioning in his deposition" with respect
to both the elevation issue and the drainage issues clearly shows that, in the absence of clearly focused
deposition questions, Hedlund assumes information now known (but not known to Hedlund at the time he
prepared his plans) regarding the highest known and 100 year flood levels based on the 2003 flood, as well
38Hedlund Dep. 178-179; See City Brief p. 12.
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as the information regarding flooding in the County Ditch # 9 watershed derived from the 2003 flood event.
The extracted testimony makes clear that Hedlund's answers are predicated upon the City's erroneous
position that the governing high water levels against which Hedlund's grading and drainage plans are to be
measured are the recently discovered highest known and 100 year flood levels as determined by the City
Engineer in 2006, as well as upon the recently developed information regarding flooding in the County Ditch
# 9 watershed (the several flood studies by the City Engineers, discussed below).
Hedlund's earlier testimony (not referenced in the City's Brief) makes clear exactly what he is saying
regarding elevations and drainage:
Q And it's true the ordinances weren't being met, correct?
Mr. van der Merwe: Objection, calls for a legal conclusion.
A I don't know. It depends on whose numbers you look at.
By Mr. Kuboushek [for the City]:
Q Well, you looked at the ordinances in preparing those plats, right?
A Right.
Q And you know what your elevations are, correct?
A Yes.
Q And certain provisions of the City's ordinances are not being met, correct?
A I don't know. It depends on which hundred -year elevation you use. It's a moving target. I
have seen three of them, maybe four.
Q So is it your position that there are certain elevations that meet the City's requirements?
Mr. van der Merwe: Objection. Counsel, just so the record is clear, I think we need -- I
think you need to focus on a particular time frame or a particular set of plans that have a
particular date. Because these plans have gone through several iterations. It's our
understanding based upon the December 1, '06 letter that the City is claiming that the
5/14/04 plans -- that those elevations are in violation of the elevations as established in
2006, the hundred -year high water and the highest known. So if you could just focus on a
particular time frame and which elevations you are talking about, I think that's the trouble
this witness is having.
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Mr. Kuboushek: Okay 39
Undeterred, the City's unfocused line of deposition questioning persists:
Q As you sit here today do you believe the storm water holding ponds meets all of the City
ordinance requirements?
A No.
Q What requirements don't they meet?
A Well, when everything is one large lake you obviously have no rate control. I don't know
what can really be done about that. It's not just this subdivision. It's a twenty -three -
hundred -acre watershed that has issues.
Q But would you agree that Prairie Run's holding ponds don't meet the requirements?
A I can't imagine anybody's do.
Q So that's a yes to Prairie Run's as well?
A Yes.
Mr. van der Merwe: Given the context of the water backing up is this witness' testimony,
counsel.
Mr. Kuboushek: Correct.
Mr. van der Merwe: Once it becomes a lake this witness is saying, there is no more drainage
control rate and there cannot be.
THE WITNESS: Right 40
As Hedlund makes clear in a portion of his testimony not presented in the City's Brief, but from the very
same page as the testimony relied upon by the City:
[I]n a perfect world our outlets should be at the hundred -year high water so that you are
obtaining that rate control all the time. That means your system is higher so it's sufficiently
carrying away water. But when it's inundated and under water, that storm sewer system is
not working like it should for that very rare event."
39Hedlund Dep. 95-96.
40Hedlund Dep. 97-98.
4'Hedlund Dep. 179.
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This is the context of Hedlund's comments in his deposition. Hedlund is saying that in those rare
circumstances of overland flooding during large storm events in the County Ditch # 9 watershed area when
the ditch is at peak water levels and "everything is one large lake," that even in a world of perfectly designed
drainage systems, such a system will be overwhelmed and cannot discharge accumulated water at the
required rate. This is not an admission, as urged by the City, that the drainage system as designed for Prairie
Run is in violation of ordinances in effect in 2004 when Hedlund prepared the Prairie Run grading and
drainage plans.
The City's Brief completely ignores the fact that the City of Albertville has a 2,300 acre watershed
flooding problem associated with County Ditch # 9. This ditch runs along the western boundary of the Prairie
Run property from north to south, and carries the water discharged from Prairie Run through the box culvert
under County Road 18 on the south-western corner of Prairie Run. Expert engineer Mundstock has analyzed
this problem (as have the City Engineers, discussed below) and has calculated that even without the 33.7 acre
Prairie Run development, the flooding of critical areas in the 2,300 acre County Ditch # 9 watershed still
occurs due to the inability of the ditch to adequately drain elevated water levels from the watershed. He
concludes that all drainage facilities on Prairie Run are more than adequate to control and remove natural
drainage as required by governing ordinances, and that the drainage facilities at Prairie Run are compromised
only when the watershed is experiencing flooding and County Ditch # 9 is at peak water level elevations.
Mundstock Affidavit ¶ 27. In short, absent the periodic flooding of the County Ditch # 9 watershed,
there is no problem or deficiency with the Prairie Run drainage system.
The City's Brief fails to mention the fact that the City is well aware of the larger watershed flooding
problem and has commissioned two flood studies concerning County Ditch # 9 watershed flooding between
2003 and 2006.
a. Flood Study Report, June 23, 2004, by Short Elliot Hendrickson
In the first report, the City's previous City Engineer, Short Elliot Hendrickson (SEH), produced a
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Flood Study Report on June 23, 2004, that studied the damaging impact of flood events such as the June 2003
storm on the County Ditch # 9 watershed. Concluding that data for the June 24-25, 2003 storm event "show
that the [County Ditch # 9] drainage system will flood for this extreme event", the City Engineer
recommended that
An additional option for lessening potential flooding in the Albert Villas area, would be to
require new developments north and west of this area that contribute run-off to County
Ditch # 9, to pond and store more run-off water than is typically required. This may help
reduce downstream flooding problems." SEHReport § 4 ModelingResuIts and Conclusions.
Despite the fact that the Prairie Run development is immediately north-east of the Albert Villas development
and lies within the County Ditch # 9 watershed, and was just such a "new development" referred to in the
report, and despite the fact that the Flood Study Report was published on June 23, 2004, just two weeks after
the City approved the Prairie Run development plans on June 7, 2004, neither the fact of a flood study in
progress nor the fact that the watershed floods was passed on to Hedlund at the time he was preparing
his grading and drainage plans for Prairie Run "
Not only did the City Engineer fail to provide Hedlund with information in its files regarding
potential flooding in the County Ditch # 9 watershed that it possessed at the very time Hedlund was preparing
his grading and drainage plans for Prairie Run and submitting them to the City for review, but the City
Engineer failed to review Hedlund's grading and drainage plans, and was present when the City Council
approved the Prairie Run plans just two weeks before the City Engineer presented a Flood Study Report to
the City on potential flooding in a watershed area that includes Prairie Run.
b. 2006 County Ditch No. 9 Flood Study, Bolton & Menk
Current City Engineers Bolton & Menk also studied the flooding caused by County Ditch # 9 and
issued two reports during 2006.43 In the amended report of October 2006, the City Engineer's "ultimate"
42Carlson Dep. 52-53, 69.
43Bolton & Menk issued two flood study reports in 2006, the first in April and then an amended report in
October. 2006.
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solution to the flooding caused by County Ditch # 9 is to add storage volume upstream of the Albert Villas
development (where the most serious flooding of houses occurred in 2003) in the City of St Michael
(immediately south of the Prairie Run development) at an estimated cost of over one million dollars. Bolton
& Menk also recommend an "emergency overflow ditch"to bypass Albert Villas in "extreme rainfall events
greater than the 100-year 24-hour storm." Clearly, resolution by the City of the County Ditch # 9 flooding
problem is integral to a resolution of the high water levels inundating the Prairie Run drainage system. As
Bolton & Menk state in an engineering report prepared for flood mitigation improvements as recommended
in their 2006 County Ditch No. 9 Flood Study:
The results [of the proposed improvements] indicate that the high water elevations, when
compared with the results from the County Ditch # 9 Flood Study, would be reduced
approximately 0.7-ft to 2.4-ft in critical areas of the watershed where homes experienced
water problems in the past. These areas include the pond of the west side of Albert Villas,
the large wetland in Albert Villas and elevations of County Ditch # 9 both upstream and
downstream of County Road 18.44
County Ditch # 9 runs though Prairie Run which is immediately upstream of County Road 18. The high water
elevations that would be reduced by "approximately 0.7-fit to 2.4-ft" by the proposed improvements clearly
include Prairie Run, the closest, most immediate, and most obvious "elevations of County Ditch # 9 ...
upstream ... of County Road 18."
The City is all too aware after studying the flooding issue since 2003 that the flooding associated
with County Ditch # 9 is awidespread problem that impacts multiple areas in the watershed, including Prairie
Run, and that the City itself has to deal with the problem. Council meeting minutes from April 2, 2007, show
that the flood mitigation problem associated with County Ditch # 9 is current and ongoing, including Council
discussion of the cost of the Flood Mitigation Project now being estimated at $950,000. It is disingenuous
for the City's Brief to argue Hedlund's responsibility for elevated water levels on Prairie Run without even
mentioning the City Engineers' multiple flood studies associated with County Ditch # 9, the documented
U1I110
49Preliminary Engineering Report, 2006 Flood Storage Mitigation, § 5. "Improvement Results," October
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flooding impact on areas in the watershed that include Prairie Run, or the Flood Mitigation Project.
This is a 2,300 acre watershed flooding problem that cannot be resolved by tinkering with a 33.7 acre
development within the watershed, which is why the City is currently engaged in a flood mitigation project
for the County Ditch # 9 watershed and is considering a one million dollar flood mitigation plan to fix the
problem.
B. THE UNDISPUTED RECORD SHOWS THAT IT IS THE CITY, NOT GOLD KEY, THAT
BREACHED THE DEVELOPMENT AGREEMENT
The Development Agreement between Developer and the City is an enforceable contract. The City
has breached the Development Agreement by unreasonably and erroneously declaring Gold Key to be in
default of the Development Agreement and by refusing to issue certificates of occupancy and building
permits because of alleged deficiencies in elevations and drainage. Contrary to the City's declaration of
default, the City, and only the City, breached the Development Agreement when it committed a series of
indisputable errors:
First Error: Whereas the Development Agreement and the corresponding City Ordinance specifically
direct the developer to use the line of permanent aquatic vegetation as the estimated high water level
absent sufficient available information on eitherthe "highest known surface water level" or the"100
year flood level" above which houses must be built, the City has declared the development in default
for using the line of permanent aquatic vegetation as the estimated high water level for the
development when it is undisputed that Hedlund did not have sufficient information made available
to him on either the highest known water level or the 100 year flood level at the time he prepared
his grading and drainage plans that were approved by the City on June 7, 2004.
Second Error: The City's November 29, 2005 notice of potential default is based upon a culvert
sizing "headwaters" elevation known to the City to be inapplicable as a I00 year flood elevation but
used by the City as a 100 year flood elevation "of sorts", and imposed upon the development nearly
eighteen (18) months after the City approved the development based upon the line of permanent
aquatic vegetation as the estimated high water level for the development.
Third Error: The City's December 1, 2006 notice of default is based upon a "highest known surface
water level" and "100 year flood level" elevations that were unknown to the Hedlund at the time the
City approved the development in 2004, and determined for the first time by the City Engineer in
2006, two years after the City approved development based upon the line of permanent aquatic
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vegetation as the estimated high water level for the development.
Forth Error: The City's notice of default alleges that the drainage system at Prairie Run does not
adequately remove all natural drainage from the property and that the post -development rate of
drainage of natural water from the property exceeds the rate of discharge permitted by the
Development Agreement and the relevant City Ordinances, based upon nothing more than an
unsubstantiated assertion by a City Administrator, whereas expert engineering analysis shows that
the drainage system not only meets but exceeds ordinance requirements.
The City simply cannot sustain its claims that the Prairie Run grading and drainage "as shown on
the grading plan dated 5/14/04 or as constructed" violate the Development Agreement between Gold Key
and the City. In fact, the City's Brief presents no facts, no affidavit, and no expert engineering opinion to
support the City Administrator's claims regarding either the elevations or the drainage items alleged to be
in violation of ordinances. The facts show that whereas the Development Agreement and the corresponding
City Ordinance specifically direct the developer to use the line of permanent aquatic vegetation as the
estimated high water level absent sufficient information on either the "highest known surface water level"
or the "100 year flood level" above which houses must be built, the City's notice of default is based upon
"highest known surface water level" and "100 year flood level" elevations that were unknown to the
developer at the time the City approved the development in 2004, and determined for the first time by the
City Engineer in 2006, two years after the City approved development based upon the line of permanent
aquatic vegetation as the ordinary high water level for the development.
Moreover, it strains credulity for the City to allege in December 2006 that Hedlund's elevations do
not meet the requirements for being one foot above the 100 year flood level of 949.9 established by Bolton
& Menk in 2006, when Hedlund's elevations were revised per the City Engineer's instruction in October
2005 to be two feet above the 100 year flood elevation of 951.5 allegedly established by the culvert size
report. The facts show that, at the time of the December 2006 notice of default, there were no as -built low
opening elevations or unbuilt low opening elevations where the lowest proposed opening was less than 952.5
feet above sea level, or nearly three(3) feet above the new 100 year flood level of 949.9 feet above sea level
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that the City determined in 2006. Moreover, the Development Agreement only required low opening
elevations to be not less that one (1) foot above the 100 year flood level.
With respect to drainage, the argument that Hedlund conceded such drainage violations in his
deposition testimony is a specious and disingenuous effort to divert attention away from the real issue --that
absent periodic flooding of the County Ditch # 9 watershed, there is no problem or deficiency with the
drainage system at Prairie Run.
The indisputable fact attested to by the City's own flood studies is that the City of Albertville has
a 2,300 acre watershed flooding problem associated with County Ditch # 9. This problem is not attributable
to the 33.7 acre Prairie Run drainage facilities, a development that comprises only 1.5% of the total area of
the watershed. Neither can the watershed flooding problem be resolved by adjusting the drainage capabilities
of Prairie Run, especially in light of the fact that engineering analysis shows that even without the Prairie
Run development, the flooding of County Ditch # 9 still occurs due to the inability of the watershed to
adequately drain elevated water levels. The City knows all too well that the flooding associated with the
County Ditch # 9 watershed is a widespread problem that impacts multiple areas in the watershed, including
Prairie Run, which is why the City is engaged in a one million dollar flood mitigation project for the County
Ditch # 9 watershed.
It is undisputed that neither Gold Key nor Hedlund Engineering did anything other than abide by the
Development Agreement and City directives in every aspect of the design and development of the Prairie Run
project. At every stage of the development, from the plan review process leading up to and including the
final approval by the City Council in June 2004, Gold Key and Hedlund worked with City Administrator
Kruse, City Attorney Couri, City Planner Brixius, and City Engineer Carlson, to ensure the development
complied with all requirements and ordinances. At no time before the development was well underway, with
lots being sold and homes being built, did the City Administrator, City Attorney, City Planner, or City
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Engineer raise any concerns or objections to any aspect of the development.
It would be unjust, inequitable and unreasonable for the developer to have to raise the infrastructure
of the entire development, including streets and ponds, unbuilt lots and as -built houses, based upon high
water elevations determined for the first time more than two years after the City and the City Engineer
approved the development plat, when such information was unknown to the developer or the developer's
engineer at the time the City approved the grading and drainage plans in 2004 and when the grading went
ahead pursuant to the approved grading plan and when the developer and various builders incurred significant
expenses in reliance upon the approved grading and drainage plans.
CONCLUSION
The City's argument is conclusory and circular: `You, Gold Key, violated the ordinances because
we say you did and, therefore, you breached the Development Agreement.' The City's position is without
merit. The undisputed record shows that all 52 building pad elevations complied with, and exceeded, the
Development Agreement and the City of Albertville's zoning and subdivision ordinances in effect in 2004
with respect to structure low opening elevations, and that drainage was properly designed to provide a
permanent and rate controlled solution for the discharge and removal of all natural water that accumulates
on the property.
The City, not the Developer, breached the contract, and is legally responsible for the damages caused
to the Developer. The City is obliged, as a matter of law, to withdraw its moratorium and proceed to honor
building permits and certificates of occupancy with respect to pending and existing construction on the
property.
For these reasons, including the reasons set our by Gold Key Development in its moving papers, the
motion for summary judgment by Gold Key Development must be granted and the City of Albertville's
motion denied.
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Dated: 1 /Gt LZ1 2007 ARTHUR, CHAPMAN, KETTERING,
SMETAK & PIKALA, P.A.
BY: e/d✓�
Robert . Ketteri g, Jr. (#55499)
Anton J. van der Merwe (#226166)
500 Young Quinlan Building
81 South Ninth Street
Minneapolis, MN 55402
Telephone: 612-339-3500
ATTORNEYS FOR HEDLUND
ENGINEERING, SERVICES, INC.
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STATE OF MINNESOTA
COUNTY OF WRIGHT
DISTRICT COURT
TENTH JUDICIAL DISTRICT
CASE TYPE: Declaratory Judgment/Breach of Contract
Court File No. 86-CV-06-2998
VUiu 1 uy 1 CVV1Vjj111VIIL, 111U., a.1V HUMNVLa UVIIJVISL1011,
Plaintiff,
vs.
City of Albertville,
Defendant/Third Party Plaintiff,
VS.
Short Elliott Hendrickson, Inc.,
Third Party Defendant.
T/C Homes, Inc., a Minnesota corporation,
Plaintiff,
VS.
i
Gold Key Development, Inc., a Minnesota corporation
Defendant/Third Party Plaintiff,
VS.
Hedlund Engineering,
Third Party Defendant,
vs.
I
City of Albertville,
Defendant/Third Party Plaintiff,
VS.
Short Elliott Hendrickson, Inc.
Third Party Defendant,
Court File No. 86-06-CV-4997
REVISEDAFFIDAVIT OF
BRIAN MUNDSTOCK
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STATE OF MINNESOTA )
) ss.
COUNTY OF WRIGHT }
Brian Mundstock, being first duly sworn upon oath, states and alleges as follows:
1. I am a Professional Engineer and principal of Sunde Engineering, PLLC at 10830
Nesbitt Avenue South, Bloomington, Minnesota 55437-3100.
2. I have been extensively involved in preparing site layout, grading, drainage,
utility and erosion control plans for complex residential, commercial and public projects, as well
as engineering activities, analysis of plats, hydrological studies, grading plans and other issues
relating to public and private development since 1987.
I attach my curriculum vitae for reference.
4. I have reviewed the initial pleadings, as well as correspondence, reports and
studies exchanged between the parties in discovery in the above -captioned matter.
5. It is my professional opinion, based on my experience as a Professional Engineer,
that in all situations, including platting and development of residential subdivisions, that regional
and area flood levels, including but not limited to, the 100-year flood level, are set by the
appropriate local governmental authority, which could include the city, county or watershed
district, or the Federal Emergency Management Agency.
6. In my professional opinion, based on my experience as a Professional Engineer,
in residential developments, the developer gets direction from the appropriate local governmental
authority as to what to do in terms of establishing the minimum structure elevations for proposed
developments. Typically the local governing authority will tell the developer what the 100-year
flood levels are, or, if a comprehensive hydrological study has not been conducted of the
surrounding watershed, the local governing authority will tell the developer what to use as the
estimated high water level.
7. In my professional experience, it is not only necessary, but essential, that this
area -wide or regional determination of the 100-year flood level be performed by the local
governing authority. Such studies and analyses necessarily evaluate properties and water levels
far beyond that of any individual property owner. In this case, the watershed that was apparently
studied by Bolton Menk in 2006 encompassed in excess of 2300 acres, of which the Prairie Run
subdivision only made up approximately 35 acres.
S. Permitting individual property owners, or developers, to set area or regional 100-
year flood levels would lead to a serious problem of "piecemeal' establishment of flood levels,
which could lead to serious discrepancies and errors which could be, and are in my experience,
always avoided by the government setting such flood levels.
2
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9. In this case, the Development Agreement and Zoning Ordinance § 1000.9, Subd.
(d), specifically allow use of the line of permanent aquatic vegetation to estimate the "high water
elevation" for the Prairie Run development. The "high water elevation" is the functional
equivalent of the "ordinary high water level" but is to be distinguished from the "highest known
surface water level", each of which are distinct terms of art used in the Development Agreement
and derived from the ordinance. The high water elevation or ordinary high water level for the
Prairie Run development was based upon the line of permanent aquatic vegetation, and the
grading plans relative to the preliminary and final plat reflected this.
10. In my experience, if the City Engineer had any problems or issues with the line of
permanent aquatic vegetation being used as the estimated high water Ievel for Prairie Run
development, or if the City needed any additional information or wanted the Developer to use a
different figure as the estimated high water level, then the City would let the Developer know
this very early on in the process. Given the City's complete silence regarding the developer's use
of the line of permanent aquatic vegetation to estimate the high water elevations for the Prairie
Run development, and given the fact that the Development Agreement and the relevant
ordinance specifically allow use of this method to estimate the high water level, the developer
was entitled to use it and to rely upon it in the absence of information or instructions from the
City to the contrary.
If. Reliance on the line of permanent aquatic vegetation as the estimated high water
mark is always subject to review by the appropriate governing authority.
12. In my professional experience, one of the normal and expected duties of a City
Engineer is to review the preliminary and final plat submissions designed by a developer's
engineer, including grading, drainage and storm sewer plans, to determine whether there are any
engineering issues or deficiencies with those submissions, and to determine whether those
submissions are in compliance with the pertinent City ordinances and/or the Development
Agreement, as the case may be. In my professional experience, if the City Engineer has any
concerns about the plat submissions, or notices any deficiencies or if the submissions fail to
comply with City ordinances or the Development Agreement, the City Engineer always
communicates those concerns or deficiencies to the City Council, who, in turn, either approves
or denies the plat, or requires the developer to revise the plat submissions, based upon the
comments of the City Engineer. In my professional experience, the City Engineer always
conducts this review prior to final plat approval. In my professional experience, the failure of the
City Engineer to conduct this review of the plat submissions is a breach of the duty of care and
professional standards in the profession.
13. It is my professional opinion, based on my experience as a Professional Engineer
and the information provided to me, that the Prairie Run grading plan dated 5/14/04 complies
with the Development Agreement and the City of Albertville's zoning and subdivision
ordinances in effect in 2004 with respect to structure low opening elevations.
14. It is my professional opinion, based on my experience as a Professional Engineer
and the information provided to me, that all of the proposed structure elevations in the residential
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portion of the Prairie Run grading plan dated 5/14/04 are accurately determined with respect to
the line of permanent aquatic vegetation, and are consistent with the Development Agreement
and the relevant City ordinance that allows use of this method to estimate high water levels. I
have analyzed the 5/14/04 grading plan approved by the City council in June 2004 and have
determined that all of the proposed structure low opening elevations for each of the 52 lots were
at least 950.5 or three (3) feet above the high water level of 947.5 derived from the line of
permanent aquatic vegetation used to estimate high water levels for the development.
15, Specifically, with respect to the Prairie Run grading plan dated 5/14/04, it is my
professional opinion, based on my experience as a Professional Engineer and the information
provided to me, that there is no existing or proposed structure low opening elevation in the
residential portion of the Prairie Run development that violates City of Albertville's zoning and
subdivision ordinances in effect in 2004 based upon a high water elevation of 947.5 as derived
from the line of permanent aquatic vegetation as used to estimate high water levels for the
development.
16. With respect to the drainage calculations for the Prairie Run development as of
5/14/04 or as constructed, it is my professional opinion, based on my experience as a
Professional Engineer and the information provided to me, that there is no violation of the
requirement that the post -development 100 year storm peak discharge run-off rate should not
exceed the predevelopment 100 year storm peak discharge run-off rate.
17. With respect to the drainage calculations for the Prairie Run development as of
5/14/04 or as constructed, it is my professional opinion, based on my experience as a
Professional Engineer and the information provided to me, that there is no violation of the
requirement that the post development discharge run-off rate should not exceed more than one-
half of the pre -development discharge ran -off rate.
18. With respect to the drainage calculations for the Prairie Run development as of
5/14/04 or as constructed, it is my professional opinion, based on my experience as a
Professional Engineer and the information provided to me, that there is no violation of the
requirement that the surface and underground drainage systems for the development should be
designed to provide a permanent solution for the adequate removal of all natural drainage that
accumulates on the property.
19. Specifically, with respect to the drainage calculations for the Prairie Run
development as of 5/14/04 or as constructed, it is my professional opinion, based on my
experience as a Professional Engineer and the information provided to me, including my analysis
of the developer engineer Hedlund's drainage calculations attached to his deposition as Exhibit
48 (and attached to my affidavit as Exhibit A), that Hedlund properly accounted for the standard
variables regarding each subcatchment for the Prairie Run development, including drainage,
reach, and ponds, for both the pre -development drainage run-off rates and the post -development
drainage run-off rates, based upon 2, 10, and 100 year events, and that the drainage was properly
designed to provide a permanent solution for the adequate removal of all natural drainage that
accumulates on the property, that the water capture, storage, and discharge system as designed,
including all storage pond capabilities aggregated for this purpose, provided a post development
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discharge run-off rate from the property that did not exceed more than one-half of the pre -
development discharge run-off rate, and provided a post -development 100 year storm peak
discharge run-off rate from the property that did not exceed the predevelopment 100 year storm
peak discharge run-off rate.
20. It is my professional opinion, based on my experience as a Professional Engineer,
that a 100 year storm would produce 5.9 inches of rain in 24 hours, and that such a storm has a 1
out of 100 chance of occurring in any given year. A storm that produces 8.5 inches of rain in 4
hours could be akin to approximately a 5,000 year storm, and such a storm has a .02 percent
chance of occurring in any given year.
21. To the extent the city, county or watershed district possessed any analysis,
reports, or studies that indicated high water levels that potentially impacted a proposed
development, in my experience, this information is always given to the developer or engineers
involved in a particular project. To the extent such information was available and not given to
the developer, I believe this was a serious mistake on behalf of the local governing authority and
its engineers and was an oversight contributing directly to any problems at the site.
22. In my 13 years of experience as a professional engineer, I am unaware of any
situation where a municipality has, after -the -fact, imposed a moratorium of the type
contemplated in the Prairie Run Development based upon data developed after final plat
approval.
23. Engineers, builders and developers rely upon the city's approval of plats in
proceeding with development of a subdivision. The practical ramifications of a moratorium on an
approved plat has profoundly negative implications for all parties involved; negative problems
include, but are not limited to, adverse impacts on sewer levels, water pipe levels, streets, roads,
curbs, size of available building pads, and holding ponds and other drainage facilities on a site.
24. It is my professional opinion, based on my experience as a Professional Engineer
and the information provided to me regarding the specific lots at issue in this case, including lots
not built upon as well as structures constructed on the Prairie Run development since 5114104
pursuant to any of the revised grading plans up to and including the 11/16/05 revised grading
plan, that even in relation to the new highest known elevation of 951.47 feet above sea level that
the City determined in 2006 requiring structures to be a minimum of 953.47 above sea level,
there is no unbuilt lot where the lowest proposed opening is less than 953.5 feet above sea level,
and not one of the six as -built homes has a low opening that is less than 952.57 (range between
0.4 and 0.9 feet below 953.47).
25. It is my professional opinion, based on my experience as a Professional Engineer
and the information provided to me regarding the specific lots at issue in this case, including lots
not built upon as well as structures constructed on the Prairie Run development since 5114/04
pursuant to any of the revised grading plans up to and including the 11/16/05 revised grading
plan, that even in relation to the new 100 year flood level of 949.9 feet above sea level that the
City determined in 2006, there is no as -built low opening elevations or unbuilt low opening
elevations where the lowest proposed opening is less than 952.5 feet above sea level..
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26. 1 have reviewed City Engineer Bolton & Menk's engineering judgement that the
best solution to the flooding caused by County Ditch # 9 is to add storage volume upstream of
the Albert Villas development in the City of St Michael that would reduce high water elevations
by "approximately 0.7-ft to 2.4-ft in critical areas of the watershed" that include Prairie Run.
Although i have not yet been provided with Bolton & Menk's HydroCAD calculations for their
flood mitigation plan, the data provided by Bolton & Menk shows that the additional storage
volume upstream of the Albert Villas development in the City of St Michael as proposed by
Bolton & Menk will lower high water levels in the Prairie Run development by approximately
8.4 inches during a 100 year flood event (13&M0082). Assuming the accuracy of Bolton &
Menk's data, it is my professional opinion, based on my experience as a Professional Engineer
and the information provided to me, that the proposal to add storage volume upstream of the
Albert Villas development in the City of St Michael will eliminate the risk of flooding (i.e.,
water entering the low opening of a home) on the Prairie Run development during a 100 year
flood event.
27. Regarding the City proposal dated 4/25/07 to install a "compensatory storage
system upstream of the Prairie Run plat" in a currently undeveloped parcel of land, I am not able
to analyze this proposal without specific engineering information concerning the dimensions and
capacity of the proposal. However, I have calculated that even without contribution of any water
from the Prairie Run property, the water levels in the County Ditch # 9 watershed still reach the
highest known flood elevations when the watershed is experiencing flooding and County Ditch #
9 is at peak water levels. In other words, the flood elevations in the watershed area that includes
the Prairie Run property are independent of the drainage from the Prairie Run development, and
the drainage facilities at Prairie Run are compromised only when the watershed is experiencing
flooding and County Ditch # 9 is at peak water levels. ,
FURTHER YOUR AFFIANT SAYETR NOT.
Subscribed and sworn to before me
this day of,Z&y 2007.
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STATE OF MINNESOTA )
)ss
COUNTY OF HENNEPIN )
AFFIDAVIT OF SERVICE VIA FACSIMILE AND U.S. MAIL
Kimberly A. Bartlett, of the City of Buffalo, County of Wright, being first duly sworn on oath
deposes and states that she is a secretary in the office of Arthur, Chapman, Kettering, Smetak &
Pikala, P.A., 500 Young Quinlan Building, 81 South Ninth Street, Minneapolis, MN 55402-3214,
and on May 4, 2007, she served the following documents:
1. Hedlund Engineering, Inc.'s Memorandum in Response to the City ofAlbertville's
Motion for Summary Dismissal and in Support Of Gold Key Development's Motion for
Summary Dismissal; and
2. Revised Affidavit of Brian Mundstock.
(Re: T/C Homes, Inc. v. City of Albertville and Gold Key Development v. Hedlund
Engineering Services, Inc.; Our File: 36039)
upon the following person(s) by facsimile and placing a copy of each in an envelope properly
addressed to such person(s) at his\her\their last known address, and the envelope, with postage
prepaid, was deposited in the United States Mail in Minneapolis, Minnesota, for delivery by the
United States Postal Service, as directed by said envelope:
Cindi Matt, Esq.
Johnson, Larson, Peterson & Matt, P.A.
908 Commercial Drive
Buffalo, MN 55313
Facsimile: 763-682-4465
Jason Kuboshek, Esq.
Iverson Reuvers
9321 Ensign Ave. S.
Bloomington, MN 55438
Facsimile: 952-946-1501
Subscribed and sworn to before me
this 4"'da of Ma�1007.V��
KAi?EN 1r, BECKE BACiH
i•;OT,4RY PUBLIC - MINNESOTA
mfy Cornsissioa Expires Jan. 31, 2010
Steve Yoch, Esq.
Felhaber, Larson, Fenlon & Vogt, P.A.
444 Cedar St., Suite 2100
St. Paul, MN 55101-2136
Facsimile: 612-338-0535
John A. Markert
Coleman, Hull & Van Vliet, PLLP
8500 Normandale Lake Blvd., Suite 2110
Minneapolis, MN 55437
Facsimile: 952-841-0041