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13. Reinhardt submittal to Board of Appeals 2017.1.1655 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 pfb law PROFESSIONAL ASSOCIATION January 16, 2018 Via email Phone 651-291-8955 Facsimile 651-228-1753 Visit us online: www.pfb-pa.com (651)290-6917 pfahning(@,pfb-pa.com 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)