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HomeMy WebLinkAbout6.i. Abatement Agreement for 13628 Birchwood Avenue EXECUTIVE SUMMARY City Council Regular Meeting Date: April 3, 2018 AGENDA ITEM: Abatement Agreement for 13628 Birchwood Avenue AGENDA SECTION: Consent PREPARED BY: Mitchell Scott, Chief of Police AGENDA NO. 6.i. ATTACHMENTS: Resolution, Abatement Agreement APPROVED BY: LJM RECOMMENDED ACTION: Motion to adopt Resolution 2018-28 - A Resolution Approving the Abatement Agreement for 13628 Birchwood Avenue. BACKGROUND Over the course of the past 18 months, the Rosemount Police Department has responded to a significant amount of criminal activity on or near the property located at 13628 Birchwood Avenue (the “Property”). The Property is owned solely by Mallory Carol Kaiser. This ongoing criminal activity has resulted in numerous arrests and criminal charges against multiple offenders, including offenses related to alcohol, controlled substances, and dangerous weapons. Although nuisance activities have occurred at the Property since August, it was recently learned that Ms. Kaiser has not been residing at the Property. While Ms. Kaiser is responsible for activities on the Property irrespective of whether she is living there, it was also recently learned that she is willing to cooperate with the City and abate these ongoing nuisances. Ms. Kaiser indicates that her ultimate goal is to sell the Property. Since communication with Ms. Kaiser’s attorney started in February, the Rosemount Police Department has seen improvements and there have been no additional criminal incidents at the Property since on or around that time period. Accordingly, rather than filing a district court action at this time, it is recommended that the City enter into an abatement agreement with Ms. Kaiser. The agreement provides strict terms and conditions related to the immediate abatement of public nuisances, including criminal activity, at the Property. Upon the execution of the agreement by both parties, any additional nuisance incidents at the Property would authorize the City to seek an injunction and request that the Property not be used for a period of one year. The abatement agreement will remain in place for three years unless or until (1) Ms. Kaiser sells the Property to a bona fide third party; or (2) the City seeks relief in district court due to additional nuisance activities. SUMMARY Staff recommends that Council adopt Resolution 2018-28 - A Resolution Approving the Abatement Agreement for 13628 Birchwood Avenue. 1 CITY OF ROSEMOUNT DAKOTA COUNTY, MINNESOTA RESOLUTION 2018- 28 A RESOLUTION APPROVING THE ABATEMENT AGREEMENT FOR 13628 BIRCHWOOD AVENUE WHEREAS, over the course of the past 18 months, the Rosemount Police Department has responded to numerous incidents of criminal activity on or near the property located at 13628 Birchwood Avenue (the “Property”); and WHEREAS, the owner of the Property is Mallory Carol Kaiser (the “Owner”); and WHEREAS, on August 14, 2017, the City served the Owner with a notice of nuisance pursuant to Minnesota Statutes, section 617.81, subd. 4; and WHEREAS, although subsequent nuisance activities have occurred on the Property since August 14, 2017, the Owner has recently indicated a willingness to cooperate with the City and abate these ongoing nuisance activities; and WHEREAS, pursuant to Minnesota Statutes, section 617.82, the Owner wishes to enter into an abatement agreement with the City in the general form attached hereto as Exhibit A (the “Abatement Agreement”); and WHEREAS, the City is willing to enter into the Abatement Agreement with the Owner in order to require that she immediately abate the ongoing nuisance activities. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Rosemount ratifies and approves the execution of the Abatement Agreement, as attached hereto as Exhibit A. The Mayor and City Clerk are authorized and directed to execute the Abatement Agreement, and City staff and consultants are authorized to enforce the terms and conditions of the Abatement Agreement as deemed necessary. ADOPTED this 3rd day of April, 2018. William H. Droste, Mayor ATTEST: Erin Fasbender, City Clerk A-1 EXHIBIT A ABATEMENT AGREEMENT [ATTACHED] 1 Kennedy David T. Anderson 470 US Bank Plaza 200 South Sixth Street Minneapolis MN 55402 & Graven (612) 337-9274 telephone (612) 337-9310 fax danderson@kennedy-graven.com http://www.kennedy-graven.com C H A R T E R E D MEMORANDUM To: Rosemount City Council From: David T. Anderson, assistant city attorney Re: Abatement Agreement for 13628 Birchwood Avenue Date: March 29, 2018 Recommended Action It is recommended that the City Council adopt Resolution 2018-XX – A Resolution Approving the Abatement Agreement for 13628 Birchwood Avenue. Discussion Over the course of the past 18 months, the Rosemount Police Department has responded to a significant amount of criminal activity on or near the property located at 13628 Birchwood Avenue (the “Property”). The Property is owned solely by Mallory Carol Kaiser. This ongoing criminal activity has resulted in numerous arrests and criminal charges against multiple offenders, including offenses related to alcohol, controlled substances, and dangerous weapons. As a result of this criminal activity at the Property, Ms. Kaiser has been criminally charged on more than one occasion with maintaining a disorderly house, a gross misdemeanor offense. However, due to the serious nature of the ongoing activities and the negative impact they have had on the surrounding community, it was determined that in addition to charging Ms. Kaiser criminally, the City should also seek to abate these activities civilly, pursuant to its authority under Minnesota Statutes, chapter 617. Minnesota Statutes, sections 617.80-87 authorize a municipality to require a property owner to abate public nuisances that relate to criminal behavior if said nuisances occur on or near the owner’s real property. Upon initiating enforcement pursuant to this statute, if the owner fails to either abate the nuisance or enter into and comply with an abatement agreement, the municipality is authorized to seek a district court order that effectively prohibits any use of the property for a period of one year. 2 In this case, the City first initiated the chapter 617 process with Ms. Kaiser on August 14, 2017. Although nuisance activities have occurred at the Property since August, it was recently learned that Ms. Kaiser has not been residing at the Property. While Ms. Kaiser is responsible for activities on the Property irrespective of whether she is living there, it was also recently learned that she is willing to cooperate with the City and abate these ongoing nuisances. Ms. Kaiser indicates that her ultimate goal is to sell the Property. Since communication with Ms. Kaiser’s attorney started in February, the Rosemount Police Department has seen improvements and there have been no additional criminal incidents at the Property since on or around that time period. Accordingly, rather than filing a district court action at this time, it is recommended that the City enter into an abatement agreement with Ms. Kaiser. The agreement provides strict terms and conditions related to the immediate abatement of public nuisances, including criminal activity, at the Property. Upon the execution of the agreement by both parties, any additional nuisance incidents at the Property would authorize the City to seek an injunction and request that the Property not be used for a period of one year. The abatement agreement will remain in place for three years unless or until (1) Ms. Kaiser sells the Property to a bone fide third party; or (2) the City seeks relief in district court due to additional nuisance activities. Conclusion To conclude, it is advised that the City enter into an abatement agreement with Ms. Kaiser in order to provide her with an opportunity to abate the nuisance activities and sell the Property. The agreement does not affect any ongoing criminal proceedings but rather only relates to the City’s civil enforcement of the public nuisance pursuant to Minnesota Statutes, chapter 617. Therefore, it is recommended that the City Council adopt Resolution 2018-XX - A Resolution Approving the Abatement Agreement for 13628 Birchwood Avenue. 1 518018v2 DTA RS220-386 ABATEMENT AGREEMENT This Abatement Agreement (the “Abatement Plan”) is made as of the 3rd day of April, 2018 by and between the city of Rosemount, a Minnesota municipal corporation (the “City”), and Mallory C. Kaiser (the “Owner”). The City and the Owner may be referred to collectively herein as the “Parties.” RECITALS WHEREAS, the Owner is fee owner of the real property located at 13628 Birchwood Avenue, Rosemount Minnesota 55068, and legally described on the attached Exhibit A (the “Property”); and WHEREAS, over the past 12 months, there have been multiple acts of public nuisance at the Property, as defined in Minnesota Statutes, section 617.81, subd. 2, including but not limited to, (a) the unlawful possession, storage, and use of controlled substances on the Property; (b) the unlawful use or possession of dangerous weapons on the Property; and (c) the existence of other conditions which unreasonably annoy, injure or endanger the safety, health, morals, comfort, or repose of a considerable number of members of the public; and WHEREAS, during those 12 months, although the Owner has only resided at the Property sporadically, the Owner has remained solely responsible for the Property; and WHEREAS, on August 14, 2017, pursuant to Minnesota Statutes, section 617.80 et. seq., the City properly served the Owner with written notice outlining the nuisance activities in accordance with Minnesota Statutes, section 617.81, subd. 4, a copy of which is attached hereto as Exhibit B (the “First Notice”); and WHEREAS, since the First Notice was served, there have been additional public nuisance incidents at the Property; and WHEREAS, the Owner has recently spent time in the custody of law enforcement and has also recently resided in an inpatient treatment facility; and WHEREAS, the Parties agree and acknowledge that due to the nuisance activities that have occurred since the First Notice was served, the City presently has the authority to file a civil nuisance action in district court; and WHEREAS, City staff recently made contact with the Owner and learned that she is willing to cooperate with the City in order to abate the ongoing nuisance activities at the Property; and WHEREAS, due to the owner’s desire to cooperate with the City and enter into this Abatement Plan, the City is willing to forego its present authority to file a civil nuisance action in district court; and 2 518018v2 DTA RS220-386 WHEREAS, on March 29, 2018, in light of the multiple acts of public nuisance that have occurred at the Property since the First Notice was served, along with the Owner’s present willingness to make efforts to abate these activities, the Owner was personally served through her attorney with a second written notice of public nuisance, a copy of which is attached hereto as Exhibit C (the “Second Notice”); and WHEREAS, the Parties acknowledge that the Second Notice was personally served on the Owner and, like the First Notice, meets all procedural and substantive requirements of Minnesota Statutes, section 617.81, subd. 4; and WHEREAS, pursuant to Minnesota Statutes, section 617.82, the Owner has made contact with the City within 30 days of being served with the Second Notice and has agreed to enter into this Abatement Plan in order to immediately address the ongoing public nuisance activities at the Property and to avoid a civil nuisance action by the City; and WHEREAS, the Parties, along with their attorneys, have each reviewed this Abatement Plan and agree to all terms and conditions provided herein. NOW, THEREFORE, in consideration of the mutual covenants and promises set forth in this Abatement Plan, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the Parties, the Parties hereby agree as follows: 1. Recitals. The above recitals are true and correct and are fully incorporated as part of this Abatement Plan. 2. Existence of Public Nuisance. The Owner hereby agrees and acknowledges that over the previous 12 months there have been multiple acts at the Property which constitute a public nuisance pursuant to Minnesota Statutes, section 617.81, subd. 2. 3. Abatement of Nuisance. The Owner hereby agrees to immediately abate all acts of public nuisance at the Property, including all of those activities described by Minnesota Statutes, section 617.81, subd. 2. Said activities include, but are not limited to, the following: (a) the unlawful sale, possession, storage, delivery, giving, manufacture, cultivation or use of controlled substances committed on the Property; (b) the unlawful use or possession of dangerous weapons on the Property; and (c) maintaining and permitting conditions on the Property which unreasonably annoy, injure or endanger the safety, health, morals, comfort, or repose of a considerable number of members of the public. The Owner understands that she is solely responsible for all activities that occur at the Property and, accordingly, any act of public nuisance at the Property by any person, regardless of the Owner’s presence or involvement therewith, shall be deemed a violation of this paragraph. 4. Additional Requirements. The Owner further agrees to the following in order to ensure that further public nuisance activities do not take place at the Property: 3 518018v2 DTA RS220-386 a. In the event that any unwanted persons enter onto the Property, the Owner agrees to trespass them immediately. Additionally, the Owner agrees to promptly report any incidents of unwanted entry onto the Property to law enforcement and cooperate with any police investigations stemming from such unwanted entry. b. During the entire term of this Abatement Plan, the Owner agrees to random visits to the Property by the Rosemount Police Department in order to ensure that all terms and conditions of this Abatement Plan are being complied with. This provision shall allow members of the Rosemount Police Department to enter onto the Property for the purpose of making contact with those present at the Property. c. The Owner has expressly indicated her willingness to sell the Property and the City is fully supportive of that desire. Accordingly, the Owner further agrees to make all reasonable efforts to sell the Property during the term of this Abatement Plan. In the event that the Owner sells the Property to a bona fide third party, this Abatement Plan shall immediately terminate in accordance with paragraph 6(a) below. 5. Additional Nuisance Activities. If one or more acts of public nuisance occur at the Property during the three-year term of this Abatement Plan, the City shall become immediately authorized to initiate a civil nuisance action and seek injunctive relief in accordance with Minnesota Statutes, sections 617.80-.87. The Owner hereby acknowledges that said lawsuit may result in an injunction preventing the Owner from using the Property for any purpose for a period of one year. 6. Term. This Abatement Plan shall commence on the date first written above and it shall remain in effect for three years unless otherwise terminated in accordance with this paragraph. This Abatement Plan shall terminate prior to the lapsing of three years if (a) the Owner sells the Property to a bona fide third party buyer, or (b) the City files a civil nuisance action against the Owner following any subsequent act of public nuisance in violation of this Abatement Plan. 7. Miscellaneous Provisions. a. No amendment or agreed-upon dissolution of this Abatement Plan shall be effective without the written consent of both Parties. b. This Abatement Plan may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. c. The Parties acknowledge that they have been represented by counsel in connection with the execution of this Abatement Plan and intend that no rules construing provisions of this Abatement Plan against the position of the drafter shall be applied. The Parties further represent and declare that in executing this document they have relied solely upon their own judgment, belief and knowledge, 4 518018v2 DTA RS220-386 or the advice and recommendation of their own independently selected counsel, and that they have not been influenced to any extent whatsoever in executing this document by any representations or statements except those expressly contained or referred to in this Abatement Plan. d. This Abatement Plan shall be governed by the laws of Minnesota. e. Any provision of this Abatement Plan which is deemed void or unenforceable may be severed from the remaining provisions without affecting the enforceability of the remaining provisions. f. This document represents the entire agreement between the Parties and supersedes in all respects any prior agreements of the Parties, whether written or otherwise, with respect to the subject matter. g. This Abatement Plan is conditioned upon the approval of the Rosemount City Council. IN WITNESS WHEREOF, the Parties have caused this Abatement Plan to be duly executed in their names and on their behalf as of the date first written above. CITY OF ROSEMOUNT: By: ____________________________ William Droste, Mayor By: ___________________________ Erin Fasbender, City Clerk THE OWNER: By: _______________________ Mallory C. Kaiser A-1 518018v2 DTA RS220-386 EXHIBIT A Legal Description of the Property Lot 2, Block 2, Biscayne Pointe 5th Addition, Dakota County, Minnesota. B-1 518018v2 DTA RS220-386 EXHIBIT B The First Notice B-2 518018v2 DTA RS220-386 B-3 518018v2 DTA RS220-386 B-4 518018v2 DTA RS220-386 C-1 518018v2 DTA RS220-386 EXHIBIT C The Second Notice C-2 518018v2 DTA RS220-386 C-3 518018v2 DTA RS220-386 C-4 518018v2 DTA RS220-386