13. 2017.1.16 Letter to Soltis55 East Fifth Street, Suite 800
St. Paul, MN 55101
City Council Members
c/o Neil Soltis
City Administrator,
City of Scandia
14727 209th Street North
Scandia, MN 55073
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law
PROFESSIONAL
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January 16, 2018
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RE: Joseph and Katherine Reinhardt Application for Review of Denial of After the Fact
Permit Request, Application No. 2017 -SCA -4 ("Application")
Our File No. 18110.170001
Dear City Council Members;
I am writing to respond to the Memorandum submitted by the City Attorney dated January 12,
2018 ("Memorandum") concerning the Application of Joseph and Katherine Reinhardt
("Reinhardts"). I will label my response to correspond with the sections of the Memorandum.
Evaluation of Property as One Parcel
The City Attorney does not dispute that Minnesota Statutes, Section 462.358, Subd. 4b would
permit Reinhardts to convey Lot 19 that fronts Langley Avenue alone. It was in existence as a
separate tax parcel when Scandia's Development Code was adopted. Since they could convey
that lot separately, they could certainly sell it without City approval.
The Memorandum argues instead that the Council should construe the Reinhardts' separate lots
as "one aggregated parcel." The Memorandum then recites several considerations applicable to a
proposed development of a particular parcel. It is important to note that Reinhardts are not
applying to develop any part of their property at this time. They seek only to permit access to the
parcels they have identified as the Langley Lots, and the rear of the parcels they have identified
as the Layton Lots.
The Memorandum cites Murr v. Wisconsin, 137 S. Ct. 1933 (2017) to support the contention that
the Reinhardts' parcels must be evaluated as one lot. In response to that decision, however,
Wisconsin, recently adopted legislation that specifically allows the conveyance of a substandard
lot. See Wisc. Stat. 66.10015 (2) (e) (1), 2017 Wisconsin Act 67. Minnesota, however, already
Warren E. Peterson • Glenn A. Bergman • John M. Miller • Paul L. Dinger**t • Michael T. Oberle
Paul. W. Fahning* • Jared M. Goerlitz* • Dan M. Duffek* • Michael V. Schleisman
* Also Admitted in Wisconsin ** Also Admitted in Iowa t of Counsel
Page12
permits the conveyance of a substandard lot to protect owners of lots of record. Minn. Stat.
462.358, Subd. 4b.
Minnesota law has long recognized that governmental action that cuts off access to a particular
parcel is a compensable taking. See Minn. Const. Art. 1, Sec. 13, Underwood v. Town Bd. Of
Empire, 217 Minn. 385, 14 N.W. 2d 459 (1944), Johnson v. City of Plymouth, 263 N.W.2d 603,
605 (Minn. 1978). Lot 19 was platted with the intended access from Langley Avenue. If the
Reinhardts' request is denied, they will have no access to the Langley Lots and the rear of the
Layton Lots.
Driveway Alternatives
No feasible alternative access exists. Reinhardts previously used drives crossing neighboring
parcels to access the Langley Lots. They cannot use them now. The alternative cited by the TEP
involves the portion of Reinhardts' property lying south of their house. The Memorandum
identifies that route as 28 feet wide. Although it is not certain how that calculation was made, it
appears to have been based on a survey submitted in connection with a variance requested by the
prior owner of the Reinhardts' property in 2003.
Since that time, however, the 201 septic system was installed. The tank for that system extends
into the area south of the Reinhardts' house. The tank was installed behind a five foot tall
retaining wall. I have attached pictures and video of that area. The width of the opening between
the retaining wall, and the neighboring house is approximately 24 feet. The neighbor's house
falls approximately 4 feet on that side of the boundary. The Memorandum recites that a 5 foot
setback is required. Any drive constructed in the area must be set away from the retaining wall
to permit safe passage. The area available to construct such a drive is nowhere near the 28 feet
stated in the Memorandum.
The Memorandum states, without evidence, that any "slope in this southern route was created by
the current owners or a predecessor..." The area lying to the north of the Reinhardts' property,
and the pictures of the rear of their house submitted previously demonstrate the grade is largely
natural. Reinhardts have made no alteration. Even if it was altered by the Reinhardts'
predecessor, the alterations were made at a time when the Langley Lots were accessed over
neighboring drives. Reinhardts did nothing to contribute to the lack of access. Any drive
constructed in that area would be narrow, would require substantial fill, making it very steep, and
would cross the pipe running from the 201 septic tank and other utilities. Reinhardts would face
difficulty with snow removal and storage from any drive constructed in that corridor. Drainage
from any drive constructed in that corridor could cause damage to the Reinhardts' house and the
neighboring house. While it might be possible to pump the septic tank from the street, it would
be nearly impossible to bring in equipment into the area to replace or maintain the septic tank.
Further, fire equipment would have difficulty accessing the rear of Reinhardts' house.
Constructing a drive in this area presents practical difficulties unique to the property that
Reinhardts did not create.
Page 13
Removal of Trees
The area lying to the south of Reinhardts' house is further restricted by the presence of numerous
trees. The City acknowledges that it would require that Reinhardts obtain a permit to remove
trees in this area. The Reinhardts house is very close to its neighbor. Several of the trees screen
the two houses from each other. Removing them would adversely affect both Reinhardts and
their neighbor.
Lack of Permits
The Memorandum recites that Reinhardts would have to apply for other permits, again without
citing any authority. At the time Reinhardts submitted their pending Application, they intended
to seek all permits necessary for the drive they constructed off Langley Avenue. They sought
advice from City staff. They actually did submit an application for a driveway permit. I have
attached a copy. The packet sent to you includes a copy of the wetland permit application
Reinhardts submitted. City staff did not advise of any other required permits. The
Memorandum does not cite any authority for its list. Reinhardts ask that the Council grant their
Application, and any other required permits, or waive any other permits that may have been
required.
Variance
The Memorandum suggests that Reinhardts might need a variance. It provides no citation for
this statement. Again, Reinhardts relied on City staff when they submitted their Application.
Reinhardts have, however, satisfied the "practical difficulties" standard set out in Minn. Stat.
462.357, Subd. 6 (2). They did not create the problem. They were denied further use of the
historical access to the area. The Memorandum relies on the availability of an alternative
driveway route. As Reinhardts have demonstrated, the alternative relied on is not feasible. It
presents numerous "practical difficulties." Reinhardts constructed the drive to access an existing
building and the adjoining storage. No change in use of their property will result. The drive they
constructed is substantially similar to existing drives lying to the north and south along Langley
Ave. No alteration of the essential character of the area has occurred. Reinhardts have satisfied
all requirements necessary to establish they would receive any required variance.
Page14
Conclusion.
Reinhardts have done everything required of them. They have committed to restoring wetlands
to minimize the impact of their drive on wetland areas, and have arranged to purchase necessary
wetland credits as contemplated by the Wetland Conservation Act. They remain willing to fulfill
the terms of their Application.
PWF:
Encl.
cc: Andy Pratt, City Attorney (via email)
Clients (via email)