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10.a Tii Gavo Conservation Easement Amendment Request - CC Memo 1 | P a g e Date of Meeting: February 18, 2025 To: Honorable Mayor and Members of the City Council From: T.J. Hofer, Consultant City Planner Re: Tii Gavo Conservation Easement Amendment Request City staff have identified an issue with an improvement on the Protected Land within the Tii Gavo Conservation Easement. The developer and Homeowners Association have requested that the Conservation Easement be amended to address the issue. BACKGROUND As part of the approval for the Tii Gavo subdivision with the initial plat, a Conservation Easement was recorded against parts of the property described as, “Outlots A, B, D, E, F, and G, TII GAVO.” This Conservation Easement prohibits development or land disturbance of any kind within these areas aside from specific exceptions detailed in Section 5 of the Conservation Easement. The City approved the Final Plat of Tii Gavo 2nd Addition with Resolution 2022-35 on October 18, 2022. With the review of that application, a shared driveway was shown to be located between Lot 1, Block 2, and Lot 4, Block 1, which would be located in part of Outlot B. This shared driveway was not one of the specific exceptions identified within the Conservation Easement. The October 18, 2022, staff report to the City Council for the Final Plat stated: Lot 1, Block 2, and Lot 4, Block 1 are proposed to utilize a shared driveway, as shown by the access easement that runs north between the two lots. Wetlands and easements prevent individual driveways from adequately serving those two lots. Lot 4, Block 1 has a Manage 3 wetland on it, while Lot 1, Block 2 has a Manage 2 | P a g e 1 wetland on it. Drainage easements also cover portions of each lot. A Development Agreement between the applicant and the city will be required to ensure proper installation and construction of the subdivision. Further, in Resolution 2022-35 the following condition was included: 5. The applicant shall update the current Development Agreement and Conservation Easement to include the proposed improvements for Tii Gavo 2nd Addition, which shall be approved by the City Council. Based on the current version of the Conservation Easement, staff believes that it was never amended or updated to reflect the construction. The shared driveway has been constructed at this time and the City recently received an application for a building permit for Lot 1, Block 2, which is when the issue was identified. If the Conservation Easement is not amended the disturbance of this area within the Conservation Easement must be considered a violation of the Conservation Easement. Staff worked with the developer to establish a date for the Conservation Easement to be amended to allow for the building permit to be issued. At this time the building permit has been issued and staff stated that if the Conservation Easement is not amended, a stop work order may be issued. Both the developer, Jaren Johnson of Guidance Homes, Inc. (“developer”), and the Homeowner’s Association, Tii Gavo Community Association, Inc. represented by Dan Bushard, have made a request to the City to have the Conservation Easement amended. Within Johnson’s request a date of March 18, 2025, was given as a deadline for amending the Conservation Easement. OVERVIEW OF REQUEST The City Council has been asked to consider an amendment to the Conservation Easement (Washington County Doc. 3655398) for the Tii Gavo subdivision. The request from Johnson is attached and requests the following: Please accept this memo as a written request to amend the conservation easement filed upon Outlot B, TII GAVO, as per document number 3655398. The purpose of this amendment is to accommodate the shared driveway, utilities, and stormwater needs for Lots 4, Block 1 and Lot 1, Block 2, TII GAVO SECOND ADDITION. The second phase of TII GAVA has been developed consistently with the 3 | P a g e original intent of the approved preliminary plat from 2006. The shared driveway was omitted from Item 5 (Construction Category) as one of the approved improvement exceptions, and we are requesting its inclusion. The deadline for amendment of the Conservation Easement is March 18, 2025. As part of the request staff requested documents showing the ownership of the parcel and obligations under the Conservation Easement, draft language to be placed in the Conservation Easement, and an exhibit showing the area in question with a legal description. Staff have received an exhibit showing the area in question with a legal description. Review Criteria The Conservation Easement includes language regarding the process of amending the Easement in Section 27 of the Easement: 27. Amendment. The parties may amend this Conservation Easement provided that such amendment (i) shall not impair or threaten the Conservation Values of the Protected Land, (ii) shall not affect the perpetual duration of this Conservation Easement, (iii) is approved by the City, which approval shall not be unreasonably withheld, and (iv) shall not affect the qualification of this Conservation Easement under Minnesota Statutes, Sections 84C.01-84C.05. The “parties” referenced within Section 27 refer to the City of Scandia (“City”) and Big Marine Lake Development, LLC (“Owner”). Within the Conservation Easement item C. states that the land within the Conservation Easement is referred to as the “Protected Land” and that the Protected Land shall be conveyed to TII GAVO Community Association, Inc. (the “Association”) along with all obligations and liabilities of the Owner. Proof of ownership of the Outlot has not been provided as part of the request, but Washington County records indicate that Outlot B is owned by “Tii Gavo Community Assoc Inc.” Based on County records, staff believe it is reasonable to assume that the obligations within the Conservation Easement have been transferred to the Association. When considering an amendment to the Conservation Easement, the document states that the amendment: (i) shall not impair or threaten the Conservation Values of the Protected Land, (ii) shall not affect the perpetual duration of this Conservation Easement, (iii) is approved by the City, which approval shall not be unreasonably withheld, and (iv) shall not affect the qualification of this Conservation Easement under Minnesota Statutes, Sections 84C.01-84C.05. STAFF ANALYSIS The request from the developer and the Association is consistent with the approved plans for Tii Gavo 2nd Addition and past staff reports appear to indicate that the amendment was intended to be completed. 4 | P a g e Staff have discussed if the amendment is approved, how to implement it into the Conservation Easement and would recommend adding a new Section after Section “27. Amendment”, rather than adding the requested area to the exempted area in Section 5. If the Council wishes to approve the amendment, the Council may wish to consider the following options: 1. Identify with specificity uses of the easement area and expressly limit use, including prohibiting expansion or alteration. 2. Requiring a Shared Private Driveway Easement subject to the Conservation Easement, as amended. The Conservation Easement is the controlling document in case of any conflicts or ambiguities. The Shared Driveway Easement must be reviewed and approved by the City as well as any amendments, and the City must receive a copy of the recorded documents. 3. Limiting access to the private lots and prohibiting private access to the Protected Land via the shared driveway. 4. The City may retain unfettered use of the Easement Area and may use the area to access the Protected Land, however, the shared driveway shall not act as a general public right-of-way. 5. All costs regarding the shared driveway should be the responsibility of the property owners, such Repair, Maintenance, Replacement. 6. A provision that prohibits adverse impacts on remainder of the Protected Land. Additionally, the City may wish to consider the following questions: 1. Does the City want to have the right to repair, maintain, and replace if private lot owners do not? 2. Does the City want an indemnity provision to protect the City from damage to the area or connecting right-of-way, streets, and wetlands? Should insurance be required? 3. The area was included in the grading plan for the development, but does the City have any additional concerns about runoff or other adverse impacts on remainder of the Protected Land or surrounding area that should be addressed? COUNCIL ACTION The City Council should consider the amendment request from the developer and the Association through the criteria established in the Conservation Easement. If the Council finds the amendment consistent with the development and the Conservation Easement, the Council may request the developer or the Association prepare the necessary 5 | P a g e documents to amend the Conservation Easement. The Council may also direct staff to prepare the necessary documents, with any costs incurred due to the request to be reimbursed by the developer or the Association. If the Council finds the amendment is not consistent with the development and the Conservation Easement, the Council should establish findings as to why the amendment is not consistent and direct staff to prepare a resolution for denial with said findings. Attachments A. Location Map with 2024 Aerial from Washington County B. Conservation Easement (Washington County Doc. 3655398) C. Resolution 2022-35 D. Sheet C1.1 and C1.2 from Tii Gavo Second Addition Civil Drawings, reviewed and approved with Resolution 2022-35 E. Request from Jaren Johnson, dated January 22, 2025 F. Shared Driveway Exhibit for Conservation Easement Amendment 71 4.3 © Bolton & Menk, Inc - Web GIS 0 Legend Location Map This drawing is neither a legally recorded map nor a survey and is not intended to be used as one. This drawing is a compilation of records, information, and data located in various city, county, and state offices, and other sources affecting the area shown, and is to be used for reference purposes only. The City of Scandia is not responsible for any inaccuracies herein contained. Disclaimer: 2/14/2025 10:59 AM 500 Feet City Limits Parcels 01/17/2025 Lot Lines Parks MNWASH24_Property_492888E99528N.sid Red: Band_1 Green: Band_2 Blue: Band_3 MNWASH24_Property_458568E231528N.sid Red: Band_1 Green: Band_2 Blue: Band_3 MNWASH24_Property_458568E199848N.sid Red: Band_1 Green: Band_2 Blue: Band_3 MNWASH24_Property_458568E170808N.sid Red: Band_1 Green: Band_2 Blue: Band_3 MNWASH24_Property_453288E123288N.sid Red: Band_1 Green: Band_2 Blue: Band_3 MNWASH24_Property_450648E279048N.sid Red: Band_1 Green: Band_2 Blue: Band_3 MNWASH24_Property_450648E255288N.sid Red: Band_1 Green: Band_2 Blue: Band_3 MNWASH24_Property_450648E144408N.sid Red: Band_1 Green: Band_2 Blue: Band_3 CITY OF SCANDIA, MINNESOTA CC RESOLUTION NO. 2022-35 TII GAVO 2ND ADDITION FINAL PLAT FOR A MAJOR SUBDIVISION WHEREAS, J Johnson Development, on behalf and with consent of the property owners Big Marine Lake Development, LLC, has made application for a Final Plat for a Major Subdivision to permit `Tii Gavo 2nd Addition', creating eight lots located on outlots I, J, and K of the Tii Gavo subdivision; and WHEREAS, the property is legally described as follows: All that part of Government Lot 2, Section 33, Township 32 North, Range 20 West, Washington County, Minnesota which lies westerly of the following described line: Commencing at the northeast corner of said Section 33; thence North 89 degrees 25 minutes 27 seconds West, bearings are oriented to the Washington County Coordinate System, NAD 83, along the north line of said Section 33, a distance of 1610.52 feet to the point of beginning of said described line; thence South 12 degrees 56 minutes 27 seconds East, a distance of 615 feet more or less to the shoreline of Big Marine Lake and said described line there terminating. AND Government Lot 4, Section 28, Township 32 North, Range 20 West, Washington County, Minnesota. AND Government Lot 5, Section 28, Township 32 North, Range 20 West, Washington County, Minnesota. G That part of Government Lot 6, Section 28, Township 32 North, Range 20 West, Washington County, Minnesota, lying Westerly of the center line of Newgate Avenue North. CC Resolution No.: 2022-35 Page 2 of 3 AND That part of Government Lot 7, Section 28, Township 32 North, Range 20 West, Washington County, Minnesota, lying Westerly of the center line of Newgate Avenue North and lying Southerly of the following described line: Commencing at the Northwest corner of said Government Lot 7; thence on an azimuth from South 179 degrees 18 minutes 23 seconds, oriented to the Washington County Coordinate System, North Zone, along the West line of said Government Lot 7, a distance of 780.18 feet; thence on an azimuth of 101 degrees 57 minutes 18 seconds deflecting to the left 77 degrees 21 minutes 05 seconds) a distance of 860.92 feet to a point; side point being on the center line of Newgate Avenue North; thence on an azimuth of 207 degrees 23 minutes 17 seconds, along said center line, a distance of 300.00 feet to the point of beginning of the line to be described; thence on an azimuth of 284 degrees 07 minutes 16 seconds a distance of 722.83 feet to a point on the West line of said Government Lot 7 distant 1045.56 feet South of said Northwest corner of Government Lot 7 and said line there terminating; and WHEREAS, the Scandia City Council approved the Final Plat and Conditional Use Permit for Tii Gavo on June 5, 2007, with conditions; and WHEREAS, the Planning Commission reviewed the request for a Preliminary Plat for a Major Subdivision, Variance from setback requirements from a Natural Environment Lake, and an amendment to the previously approved Conditional Use Permit for the Tii Gavo subdivision at a duly noticed Public Hearing on July 5, 2022, and recommended that the City Council approve the request with conditions on August 2, 2022; and WHEREAS, the Scandia City Council approved the Preliminary Plat, Variance, and an amendment to the previously approved Conditional Use Permit for Tii Gavo on August 16, 2022, with conditions; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCANDIA, WASHINGTON COUNTY, MINNESOTA, that it should and hereby does approve the request of for a Final Plat for a Major Subdivision, Tii Gavo 2nd Addition. FURTHER BE IT RESOLVED, that the following conditions of approval shall be met: 1. The applicant is permitted to create eight lots, as shown on the plans submitted to the city and reviewed with this request. 2. The proposed eight lots shall adhere to the setback requirements as approved with the Preliminary Plat. 3. The applicant shall acquire any required permits from the watershed district, and comply with their requirements. CC Resolution No.: 2022-35 Page 3 of 3 4. The applicant shall address the comments from the City Engineer in the letter dated October 3, 2022. 5. The applicant shall update the current Development Agreement and Conservation Easement to include the proposed improvements for Tii Gavo 2"d Addition. a. No permits shall be issued until the Development Agreement is signed and approved by the City Council, and financial securities are received. 6. All other requirements of the existing Conditional Use Permit shall remain in full force and effect. 7. The applicant shall secure any other applicable Federal, State, County, and local permits required for the project. 8. The applicant shall pay all fees and escrows associated with this application. Adopted by the Scandia City Council this 18th day of October, 2022. 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