1994-06-30 Drainage Issues
06- 30-13'34 [14: 5:::iPf'1 FP[lf'l PRDZLd I LLLRL,JDFF I CE
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4;37321D F; ~ 02
$, Rtul'Zwill
RA DZ' 1171 if',"
'J)":m,, "r,',lJ.lJ
W OFFICE
a:r LlIW
705 Cenrral Avenue East
PO Box 369
Sf. i\.1ichtlel, Alll55J 76
(612) 497~1930
(512) 497.2599 iF AX)
JU1V:c 0 1994
gg~li'IJl~*~t,i'Q___'r.~.r;RTV'ILx,E CITY COUNC:r~..ll~I;R~
Albertville City Council Members
city of l~lbertville
l?0, Box:. 131
y M.~ 55301
He J . ..,tI.
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.
Rs: psyk VI drainage issues.
De'.:u-
COunciln1fi.antbers:
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It is the intent of this letter to clarify, at;i:?~ll as
legal issues surrounding the gr:\nting of fibal plat
psyk VI subdivision in light of the drainag-e;;.5;;ssues
psyk property and the Marx property. In an';.effcrrt to
historical drainage of the properties involviid~' Thora
i'iiu_bmi tted a composi te of the topography for the
!;}o.sed on a 1981 aerial fly-over i along with a 1972
of a portion of Psyk's property. Together, these
tcrpog.raph:ie.s provide the best indication of what the historical
of the property has been.
calculations accompanying the topographies ShO\'l that upon
Psyk's VI addition, a reduction in the acreage
Psyk's property to Marx property will occur (from
acres). The drainage from the remaining 18.47 acres
;/~;rted to the wetlands on the south portion of psyk f s
and no longer drains onto !1arx property. It is my
t:.hat most of the grading for this subdivisioLi was
Iotith the grading for Psyk's V addition.
Doug has proposed constructing a temporary pond on lot 1
on the north eastern portion of his property. This pond will store
lr,ost of the water from Psyk's VI addition, with a controll~d
release on to the Marx property and ultimately into the Marx
wetland. As such, Psyk/s VI addition appears to modify the
h:istoricr11 drainage in a way that reduces and controls the total
flow onto the Marx property. In addition, Psyk would escrow an
of funds estimated to cover his share of any costs incurred
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Albertville City Council
June 30, 1.994
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by Marx in constructing the storm sewer that will ultimat9.1y"drain
into the Marx wetland. These funds would be available~o the
developer of the Marx: property at such time as the storm$}~wer is
installed on the Marx property. ..
There are two main drainage issues here. The first deals with
the effect between the landowners themselves (Psyk and MarX); the
second deals tNith the effect between the City and the landoWI;lers.
Generally, a landowner has a right to drain water onto his
neighbor's la.nd where that water historically has flowed. The
landowner also has a right to mOdify that drainage, even to the
point of draining additional water onto his neighbor' is land,
provided the benefit to the first landowner is greater than the
detriment to his neighbor. In this instance, Psyk proposes to
modify the drainage to the Marx property by reducing the total
amount of water drained but concentrating its flow from the pond
proposed to be located on lot 1. This does not appear to act as a
burden upon the Marx property, but instead appears to all~viate
some of the water problems. As such, I doubt that altering the
drainage in this way would be actionable as between Marx and PSYk,
as Marx would probably not be able to prove that his land was
damaged in any way.
The second issue relates to potential City liability from
granting final plat approval to Psyk's VI addition. The Obvious
source of a threat of litigation would be from Marx, based on the
theory that by granting plat approval, the City in some way damaged
his land. However, as discussed above, it is unlikely that Marx
property will be damaged as less water will drain on his property,
and thus unlikely that he would have a good case against the cityw
Even if the city would be named in a lawsuit, psyk would be
contractually bound (under the terms of the Developer's Agreement)
to indemfiify the City for any damages that may be paid by the city
and for all expe.nses incurred by the City (including .a!1;.t~:r;I,ley/s
fees) ~ Given these facts, I believe the risk to the .q~'#i';:I1tq be
small in approving the final plat. 1. ,'li:i,IJi L;
\ ,'H;(; IJ
Under Minnesota law, a city must grant final pla~U'~roval
within 60 days after the landowner requests it, provided the
landowner has met all of the conditions placed on the preliminary
plat approval. According to City records, Psyk's VI addition Was
granted preliminary plat approval in spring of 1992, subject to
four conditions: 1) DNR determination of ~etlands on the south of
the property (not the Marx wetland); 2) SUbmission of an erosion
plan; 3) Determination of park dedication; and 4) MPCA approval of
sewer hOOkups. It appears that the potential runoff problem. with
the Marx property was not identified as an issue at preliminary
plat approval.
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Albertville City Council
June 30, 1994
Page Three
A DNR wetlands mi tiqation plan was approved by the Ci ty
Council on August 3, 1992. MPCA approval was granted with the
completion of the sewer plant, and the current consensus among the
Council is to defer the dedication of parkland until the parks
commission can decide where it would like to locate parks on later
psyk additions. Erosion plans are generally submitted i~~ediately
prior to signing the developer's agreement. In short, it appears
that psyk has met or can quickly meet all of the conditions for
final plat approval.
Under state statutes, psyk can make a strong case that the
city must grant final plat approval. If that were to happen, the
city probably would not be able to force psyk to place a pond on
lot 1 or to escrow funds to help defray the cost of Marx storm
sewer construction, both of which psyk has agreed to do voluntarily
if the City grants final plat approval.
In summary, it is my belief that the City's position on this
matter will probably not get :much better than what currently
exists. The chances of Marx suffering any significant damage are
small, which reduces the chances of the City being sued by Marx.
In addition, the City will be afforded a fair amount of protection
under the indemnity provision of the developer's agre~m;:nt with
psyk and from the pond/escrow money to be provided by psyk. If
psyk pushes his rights under the statute, the pond/escrow money
offer will almost certainly be withdrawn, potentially increasing
the chance that the Marx property will suffer damage.
I would suggest that the Council take a hard look at this
issue at this time. I believe that Psyk's ponding and escrow
proposal offers the City a reasonable degree of protection from
potential damages, and recommend that the Council consider granting
final plat approval if there are no other outstanding issues to be
resolved. If the city tables the matter such that psyk will loss
a building season, psyk is likely to push the issue, which in turn
is likely to worsen the City's position on this matter.
This issue will be on the agenda fer Tuesday I' s meeting.
Please contact me if you have any questions regarding this matter.
Sincerely,
C:h - f/ /J/.~.
/ V~A'1.J.J" ( ,
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Michael C. Couri
RADZWILL LAW OFFICE
TiJTAL F'. 04
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