HomeMy WebLinkAbout7.a. Continued Public Hearing for Vacation Request by CNC Development
EXECUTIVE SUMMARY
City Council Regular Meeting: February 2, 2021
AGENDA ITEM: Continued Public Hearing for a Request
by CNC Development IV, LLC, for the
Vacation of a Drainage and Utility
Easement over Outlot B, Emerald Isle 1st
Addition
AGENDA SECTION:
Public Hearing
PREPARED BY: Anthony Nemcek, Planner AGENDA NO. 7.a.
ATTACHMENTS: Resolution; Chronology of Actions and
Correspondence; Applicant’s Timeline of
Actions and Correspondence; Updated
Memorandum from City Attorney dated
January 14, 2020; Site Location Map;
Easement Vacation Sketch (Emerald Isle
1st Addition); Ponding Exhibit
APPROVED BY: LJM
RECOMMENDED ACTION: Motion to adopt a resolution approving the vacation of a
portion of the blanket drainage and utility easement over Outlot B, Emerald Isle 1st Addition,
subject to conditions.
BACKGROUND
This request was reviewed by the City Council during a public hearing at its regular meeting on January 19,
2021. During the meeting, the applicant and their attorney objected to staff’s recommendation to only
vacate a portion of the drainage and utility easement dedicated over the entirety of Outlot B, Emerald Isle
1st Addition. The applicant did not agree with the proposed use of the existing drainage and utility
easement for regional ponding associated with improvements to the intersection of Akron and County
Road 42 (Dakota County Project 42-156). The regional ponding location is consistent with proposed
ponding for the site project as approved by the Master Development Plan PUD. The applicant indicated
that the County had approached the prior owner for purchase of the ponding easement, and that they
should similarly be offered compensation for use of the easement for regional ponding purposes. The
Council continued the public hearing to the February 2nd meeting and directed staff and the City Attorney
to have further discussions with Dakota County about the timing of and reasoning behind the withdrawal
of the offer to purchase.
Following the continuance of the public hearing, City staff along with the City Attorney, met with County
transportation staff to discuss the purchase offer and when the offer was withdrawn. The timing of the
platting, offer, technical discussions, and process were all discussed. Staff confirmed a representative from
Dakota County will be in attendance for the public hearing to answer Council questions. Staff also
received correspondence from the applicant which provides information, and commentary, about the plat
approval, discussions with City and County staff, and timing of the easement purchase offer and
withdrawal.
The timeline of events indicates that in May the original property owners were sent a letter indicating the
County interest in acquiring a ponding easement. The letter was sent right after project approval which
included Master Development Plan PUD approval. In July, the County sent an offer of purchase letter. On
or around August 14th, the applicant submitted a request for approval of the final plat for Emerald Isle 1st
2
Addition, which was granted by the Council on September 15th, 2020. The final plat included the
dedication of a drainage and utility easement over Outlot B, which included the area that would be used
for ponding along County Road 42. Neither the applicant nor their attorney objected to the dedication of
the drainage and utility easement at either the Planning Commission meeting or the City Council meeting.
On September 22, 2020, one week after the approval of the final plat, the County Attorney sent a letter to
the applicant (who at that point had acquired the property) notifying them that the offer to purchase the
ponding easement required for Project 42-156 was withdrawn. It was only after the offer was withdrawn
that the applicant’s attorney, on September 30, 2020, sent a letter to the City and County objecting to the
blanket drainage and utility easement over Outlot B. Although the applicant’s attorney expressed concern
over dedication of the blanket easement in September, the applicant filed the final plat in early October,
with the drainage and utility easement provided. The City Attorney has indicated that, legally, the Council
is not required to vacate any portion of the blanket easement because the plat has already been filed and
the applicant does not have the right to now challenge the dedication requirement. However, the Council
may vacate a portion of the easement if it deems that is in the public’s interest.
In the conversations with the County, the main driver of the decision to move forward with an offer to
acquire the easement was the need to have all the plans and easement acquisition finalized in time for the
signal project to be implemented in 2021. Because private development plans and proposals can have
fluid timelines, the County’s project schedule needed to remain on track regardless of development factors.
Should eminent domain be needed, it is a lengthy process which could impact the signal project timing if
not accomplished in the timely manner. The County representative will be able to respond to questions at
the Council meeting.
To aid in providing clarity on the easement acquisition topic, staff has provided a more robust chronology
of events relating to the city and county actions associated with the platting and easement dedication than
in the previous packet. All documentation is attached, although review of the chronology page will provide
some understanding about the separate, but parallel, activities of the City and County. The applicant has
also provided a chronology, with comments that is included in the packet. Finally, please note the updated
memorandum from the City Attorney addressing issues raised by the applicant in January and new
information from the County.
CONCLUSION AND RECOMMENDATION
Based upon the information from the County, the City Attorney and the applicant, staff has not changed
the recommendation from January. Staff asserts that the drainage and utility easement was legally obtained
through the platting process and the use of the easement for ponding is consistent with the use of a
drainage and utility easement. Additional information has been provided by the County to better clarify the
timing of the offer and the reason for the offer. County and city staff will be available for discussion at the
meeting along with the applicant and his representatives.
Staff recommends approving the vacation of a portion of the blanket drainage and utility easement over
Outlot B, Emerald Isle 1st Addition, subject to conditions.
CITY OF ROSEMOUNT
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2021-
A RESOLUTION APPROVING THE VACATION OF A PORTION OF THE BLANKET
DRAINAGE AND UTILITY EASEMENT OVER OUTLOT B, EMERALD ISLE 1st ADDITION
WHEREAS, the City of Rosemount received an application from CNC Development IV, LLC, 3000
County Road 42 West, Burnsville, MN (Applicant) for the Final Plat of Emerald Isle 2nd Addition; and
WHEREAS, on January 19, 2021, the City of Rosemount City Council reviewed and approved the Final
Plat for Emerald Isle 2nd Addition; and
WHEREAS, a blanket drainage and utility easement was dedicated to the City over all of Outlot B in the
plat of Emerald Isle 1st Addition, which was filed and is of record with the County; and
WHEREAS, the entirety of Outlot B of Emerald Isle 1st Addition is being replatted as part of Emerald Isle
2nd Addition; and
WHEREAS, the Applicant subsequently requested that the City vacate the entirety of the blanket drainage
and utility easement over Outlot B, Emerald Isle 1st Addition in order to facilitate development of the
second addition of Emerald Isle; and
WHEREAS, the City has determined that vacation of a portion of the existing blanket drainage and utility
easement over Outlot B is reasonable and in the public interest; and
WHEREAS, the City required the vacation of a portion of the existing blanket drainage and utility
easement over Outlot B as a condition of its approval of the Emerald Isle 2nd Addition plat; and
WHEREAS, the City Council conducted a public hearing on the vacation on January 19, 2021; and
WHEREAS, the City Council continued the public hearing to its February 2, 2021 meeting.
NOW, THEREFORE, BE IT RESOLVED, the Council of the City of Rosemount hereby approves the
vacation of a portion of the blanket drainage and utility easement over Outlot B, Emerald Isle 1st Addition,
subject to the following:
1. The areas over Outlot B needed by the City for onsite and regional stormwater ponding and for
the extension of the storm sewer to the eastern boundary of Outlot B shall be excluded from the
area of the easement that is being vacated and shall be preserved as part of the existing drainage
and utility easement.
2. City staff is authorized and directed to obtain an updated legal description for the vacated area
of Outlot B. City staff is also authorized and directed to obtain an updated legal description for
the areas of the easement over Outlot B that are being preserved for onsite and regional
stormwater ponding and the extension of the storm sewer to the eastern boundary of Outlot B.
City staff is authorized to work with the City Attorney to effectuate the vacation, including, but
not limited to, attaching the applicable legal descriptions of the vacated area and the areas being
preserved to this Resolution.
ADOPTED this 2nd day of February 2021, by the City Council of the City of Rosemount.
2
__________________________________________
William H. Droste, Mayor
ATTEST:
___________________________________
Erin Fasbender, City Clerk
Kennedy Mary D. Tietjen
150 South Fifth Street, Suite 700
Minneapolis MN 55402
&
Graven (612) 337-9277 telephone
(612) 337-9310 fax
mtietjen@kennedy-graven.com
http://www.kennedy-graven.com
C H A R T E R E D
MEMORANDUM (UPDATED)
To: Rosemount Mayor and City Council
From: Mary Tietjen, city attorney
Re: Emerald Isle 2nd Addition
Date: January 14, 2021 (Updated January 29, 2021)
I have reviewed the letters submitted by Peter Coyle, attorney for CNC Development IV, LLC,
objecting to certain conditions of the final plat approval for Emerald Isle 2nd Addition. Mr. Coyle also
sent a letter dated September 30, 2020, to staff and myself objecting to the dedication of the blanket
drainage and utility easement over Outlot B of the Emerald Isle 1st Addition plat. These objections
were presented, notwithstanding the fact that the plat has since been filed with the County and the
easement is currently in place.
As is clear from the agenda for the meeting on January 19th, 2021, City staff is recommending the
Council grant CNC’s request to vacate the blanket easement, but preserve those areas that will be
needed for all (project and regional) stormwater ponding purposes within the approved Master
Development Plan area. Vacation of the blanket area addresses CNC’s concerns that the easement
created a “cloud on title”. The City’s (and County’s) anticipated uses of the preserved dedicated areas
are not only consistent with the purpose and scope of a drainage and utility easement, but are tied to
the stormwater drainage and ponding needs within the approved Master Development Plan area, and
are thus within the City’s statutory authority to require dedication of such areas. In addition, it is
expected that the Developer will be utilizing the proposed dedicated drainage and utility easement for
an infiltration pond as part of future phases of development. The Developer’s objection that the plat
condition for preserving the dedication of the drainage and utility easement for ponding purposes is
premature, appears inconsistent with the Developer’s request for extension of the storm sewer to
accommodate future development needs.
January 29, 2021 Update
In response to some of the issues and questions that arose during the Council meeting on January
19, I wanted to provide some additional information regarding the City’s legal authority related to
dedication requirements. As mentioned above, the City has statutory authority to require
dedication of land for public purposes as part of the platting process. Minn. Stat. § 462.358
authorizes municipalities to adopt subdivision regulations and provides that: “The regulations may
require that a reasonable portion of the buildable land . . . of any proposed subdivision be dedicated
to the public or preserved for public use as streets, roads, sewers, electric, gas, and water facilities,
storm water drainage and holding areas or ponds and similar utilities and improvements . . .” Minn.
Stat. § 462.358, subd. 2b (emphasis added). Thus, the City’s requirement that the developer
dedicate a reasonable amount of land for ponding and drainage purposes is authorized by state
statute.
In the case of Crystal Green v. City of Crystal, 421 N.W.2d 393 (Minn. Ct. App. 1988), the
Minnesota Court of Appeals acknowledged that the city of Crystal was acting pursuant to its
statutory authority when it required the developer to “dedicate a portion of the proposed
subdivision for future use as a frontage road [needed by MnDOT for future use] in order to gain
plat approval”. In addition, the Court ruled in Crystal Green that dedication is final and irrevocable
once the plat is filed. Like the applicant here, the developer in the Crystal case argued that the
city’s dedication requirement constituted a taking of property. During the plat hearings in the
Crystal case, the developer objected to the dedication requirement (“under protest”), but
nevertheless received final plat approval and filed the plat with the county. The Court ruled that
the developer could not challenge the dedication requirement after the plat was approved and filed.
Id. at 395. See also County of Hennepin v. Begin, 443 N.W.2d 860, 863 (Minn.Ct.App.1989)
(holding dedication of land was effective when final plat was filed); Maplewood Development,
Inc. v. City of Maplewood, (1997 WL 785704; Minn. Ct. App., Dec. 23, 1997) (unpublished
decision) (ruling that developer could not challenge city of Maplewood’s requirement that it
dedicate to the city a portion of the subdivision for storm water drainage because the developer
recorded a final plat that included the city’s storm water drainage dedication). Although the
Council is not precluded from now vacating a portion of the easement if it deems doing so is in
the public interest, the Council would not be legally required to vacate any portion of the blanket
drainage easement dedicated on the already-filed plat.
The applicant has also complained that it is not appropriate for the County to make use of the
drainage and utility easement for ponding purposes. However, in my opinion, a drainage and utility
easement, by definition, allows for such use. The state statute governing plats defines a “drainage
easement” as: “. . . an easement for the purpose of controlling, preserving, and providing for the
flow or storage of water.” Minn. Stat. § 505.01, subd. 3(b). The use of the easement for ponding
purposes is consistent with the definition of a platted drainage and utility easement.
All those drainage and utility easements, originally dedicated on the
recorded plat of EMERLAD ISLE, Dakota County, Minnesota, and now
to be vacated, which lie within Outlot B, said plat.
EASEMENT VACATION
I hereby certify that this survey, plan or report was prepared
by me or under my direct supervision and that I am a duly
licensed Professional Land Surveyor under the laws of the
State of Minnesota.
Signed this 17th day of November, 2020
For: James R. Hill, Inc.
By:
Marcus F. Hampton, Land Surveyor, MN License No. 47481
SKETCH & DESCRIPTION
FOR: CNC DEVELOPMENT
2999 WEST C.R. 42, SUITE 100, BURNSVILLE, MN 55306
PHONE: 952.890.6044 www.jrhinc.com
PLANNERS / ENGINEERS / SURVEYORSDRAWN BYDATEREVISIONSPLM11/17/2020CAD FILEPROJECT NO.PAGE 1 OF 223388-vac.dwg23388
EASEMENT
VACATION
SKETCH & DESCRIPTION
FOR: CNC DEVELOPMENT
Page 2 of 2 James R. Hill, Inc.
Scale: 1"=300'PROJECT NO. 23388-vac
Staff Chronology
Chronology of Approvals and Correspondence, Including Meeting Minutes
(Additional information as compared to 1/19/2021 meeting in red)
February 26, 2020 The Rosemount Planning Commission reviews and recommends approval
of the Planned Unit Development Master Development Plan with
Rezoning, Preliminary Plat, and Comprehensive Plan Amendment for
Emerald Isle
April 2020 City engineering staff and consultant for County project meet with
applicant to discuss ponding needs related to Dakota County Project 42-
156.
May 19, 2020 The City Council approves the Planned Unit Development Master
Development Plan with Rezoning, Preliminary Plat, and Comprehensive
Plan Amendment for Emerald Isle.
May 21, 2020 County sends letter to property owner notifying them of the County’s
intention to acquire a portion of the property for ponding associated with
Dakota County Project 42-156.
July 16, 2020 County submits offer of $55,000 to acquire ponding area.
August 14, 2020 The applicant submits a request for final plat approval of Emerald Isle 1st
Addition.
August 21, 2020 The final plat for Emerald Isle 1st Addition is sent to the County for review
by the Dakota County Plat Commission. A blanket drainage and utility
easement is shown on the plat.
August 25, 2020 The Rosemount Planning Commission reviews and finds the final plat for
Emerald Isle 1st Addition consistent with the preliminary plat and
recommends approval. Neither the applicant, nor their attorney, objected to
the dedication of the drainage and utility easement over Outlot B at the
meeting.
September 15, 2020 The City Council approves the final plat of Emerald Isle 1st Addition
including the dedication of a blanket drainage and utility easement over
Outlot B. Neither the applicant, nor their attorney, objected to the
dedication of the drainage and utility easement over Outlot B.
September 22, 2020 Dakota County Attorney sends letter to property owner notifying them that
the offer to acquire the land for ponding is withdrawn.
September 30, 2020 Applicant’s attorney sends letter to the City and County objecting to the
blanket drainage and utility easement over Outlot B, Emerald Isle 1st
Addition.
October 6, 2020 Applicant records plat of Emerald Isle 1st Addition dedicating a blanket
drainage and utility easement over Outlot B, Emerald Isle 1st Addition.
November 13, 2020 Applications are submitted for the final plat of Emerald Isle 2nd Addition
and vacation of the blanket drainage and utility easement.
December 11, 2020 Applicant’s attorney sends letter to the City objecting to the blanket
drainage and utility easement over Outlot B.
December 14, 2020 Rosemount Planning Commission finds the final plat for Emerald Isle 2nd
Addition consistent with the preliminary plat and recommends approval.
January 12, 2021 Applicant and applicant’s attorney send letters to the City objecting to the
blanket drainage and utility easement over Outlot B, Emerald Isle 1st
Addition.
January 14, 2021 Memorandum from City Attorney in response to letter from applicant’s
attorney.
January 19, 2021 The City Council holds a public hearing for the vacation of the drainage
and utility easement over Outlot B Emerald Isle 1st Addition. After
discussions by the applicant, staff, attorneys and Council the item was
continued to the next meeting, February 2, 2021. The final plat request was
also continued
January 28, 2021 The applicant submitted information, including chronology and
commentary regarding dedication of the easement, conversations with staff
and County, letters from County, etc. The entire packet is provided for the
Council’s information.
EXCERPT FROM FEBRUARY 26, 2020 PLANNING COMMISSION MEETING MINUTES
5.b. Request by CNC Development IV, LLC., for Planned Unit Development Master Development Plan with
Rezoning, Preliminary Plat, and Comprehensive Guide Plan Amendment Approval to develop 151 single-family lots.
(20-09-PUD, 20-10-PP, 20-11-RZ, 20-12-CP))
Planner Nemcek gave a brief summary of the staff report for the Planning Commission.
Kenninger inquired about the proposed land use change map and if Flint Hills has first right of refusal adjacent to the
subject property. Nemcek stated that is correct. Kenninger stated that the left over commercial, east of the site, would be
effectively abandoned.
Schmisek stated that he has a concern about losing any commercial property but thought that little piece would be cut
off. Another concern is that of the additional traffic on Connemara Trail. Schmisek inquired if there are any talks about
changing the intersection at Connemara and Akron, such as a round-about or a signal light. Lindquist stated signal lights
will be installed at Akron and County Road 42 but none are proposed at Connemara.
Reed inquired about the flow of the sidewalks on Connemara Trail. Engineer Smith stated that the trail and sidewalk
along Connemara Trail will be extended into this subdivision and that Dakota County will be installing an underpass
under County Highway 42 so that pedestrians will have a safer place to cross the highway in this area.
The public hearing opened at 6:58 pm.
Public Comments:
Kenninger inquired how the new single-family home owners will be notified that an apartment building is also planned
to be built near their new homes.
Rick Osberg, Engineer, James R. Hill, Inc., stated that they have been working with staff to get to today’s plan. The
property owners do not have an interested party to build the apartment currently. Besides the fact that the property is
guided for high density there isn’t much information to give to a potential buyer.
Rivera questioned if the stub road would be a future through road. Nemcek stated that is correct.
MOTION by Rivera to close the public hearing.
Second by Schmisek.
Ayes: 5. Nays: 0. Motion Passes.
The public hearing was closed at 7:03 pm.
Additional Comments:
Kenninger stated that her biggest concern was with changing the zoning of this area. But also agrees that this is a great
use of the land. She would like to ensure that the 151 new homeowners are aware that there will be a future apartment
building on the property next to this site. She requested that be added as a condition of approval.
Reed stated that since having the trail system continue through Connemara Trail he is in favor.
Schmisek inquired if there will be access from the development to Connemara Trail. Nemcek stated that from the
commercial there will be one access point onto Connemara Trail.
MOTION by Freeman to recommend that the City Council approve a Comprehensive Guide Plan
amendment to reguide 20 acres of the development site from MDR-Medium Density Residential to LDR-Low
Density Residential and the southeast 10 acres of the site from CC-Community Commercial to HDR-High
Density Residential.
Second by Reed.
Ayes: 5. Nays: 0. Motion Passes.
MOTION by Schmisek to recommend the City Council approve the Preliminary Plat for Emerald Isle, subject
to the following conditions:
a. Approval of a Planned Unit Development Master Development Plan with Rezoning.
b. Approval of a Comprehensive Plan Amendment reguiding the site to LDR and HDR.
c. Conformance with all the requirements of the City Engineer as detailed in the attached memorandum
dated February 26, 2020.
d. Payment of $513,400 as cash-in-lieu of park dedication.
Second by Freeman.
Ayes: 5. Nays: 0. Motion Passes.
MOTION by Rivera to recommend approval of the Planned Unit Development Master Development Plan
with rezoning of the property for AG-Agriculture to R1 PUD-Low Density Residential Planned Unit
Development and R4 PUD-High Density Residential Planned Unit Development, subject to the following
conditions:
a. Execution of a PUD Agreement.
b. Approval of a Comprehensive Plan Amendment reguiding the site to LDR and HDR.
c. The front building elevation design shall include one of the following elements:
i. Three and a half (3.5) feet of brick or stone wainscoting, excluding doors, windows or the
wall behind the front porch;
ii. A front porch with railing that extends at least 30% of the width of the front elevation,
including the garage;
iii. A side entry garage;
iv. Or, no more than 70% lap siding, excluding doors and windows.
d. A deviation from City Code Section 11-4-5 F.1. to reduce the interior lot minimum area of 10,000 to
8,125 square feet and corner lot minimum area from 12,000 to 10,625 square feet.
e. A deviation from City Code Section 11-4-5 F.2. to reduce the minimum lot width from eighty (80)
feet to sixty-five (65) feet for interior lots and from ninety (90) feet to eighty-five (85) feet for corner
lots.
f. A deviation from City Code Section 11-4-5 F.5. to reduce the side yard setback from ten (10) feet to
seven and one half (7.5) feet except in areas where existence of larger drainage and utility easements
require additional setbacks.
g. A deviation from City Code Section 11-4-5 F.6. to reduce the rear yard setback thirty (30) feet to
twenty-five (25) feet.
h. A deviation from City Code Section 11-4-5 F.9. to increase the maximum lot coverage from thirty
percent (30%) to thirty-five percent (35%) lots more than 9,750 square feet in area.
i. Incorporation of the recommendations from the City Engineer in a review memorandum dated
February 26, 2020, relative to drainage, grading, street design, easements, utilities, and the adjacent
sidewalks.
j. A temporary cul-de-sac shall be constructed at the stub of Street D.
k. Subdivision monuments shall be subject to sign permits and normal zoning standards.
l. The applicant shall receive approval from the Metropolitan Council for any connection to the Met
Council sanitary interceptor line.
m. Payment of a landscape surety in the amount of $97,020.
n. The applicant must receive final site and building plan approval for the R-4 High Density residential
portion of the project.
o. The developer post a sign on the multi-family site indicating that the property is a future apartment
building site.
Second by Schmisek.
Ayes: 5. Nays: 0. Motion Passes.
EXCERPT FROM THE MAY 19, 2020 CITY COUNCIL MEETING MINUTES
NEW BUSINESS
9.a. Request by CNC Development IV, LLC., for Planned Unit Development Master Development Plan
with Rezoning, Preliminary Plat, and Comprehensive Guide Plan Amendment Approval to develop 151
single-family lots
Community Development Director Lindquist informed councilmembers of the request staff received from
CNC Development for approval of a Planned Unit Development Master Development Plan with Rezoning
to develop 151 single-family lots.
Ms. Lindquist noted staff is evaluating the width lot size requirements and staff recommends that lots over
11,000 square feet meet the R1 lot coverage standard of 30%. Staff is comfortable with the current lot size
proposed.
Councilmember Essler questioned whether a park is included with the current plan and Director of Parks &
Recreation Schultz noted the future plan is to serve a park to the east.
The developer was present and stated due to the pandemic the construction is not likely to take place until
spring of 2021.
Motion by Weisensel Second by Essler
Motion to Adopt a Resolution approving a Comprehensive Guide Plan Amendment to reguide 20 acres of
the development site from MDR-Medium Density Residential to LDR-Low Density Residential and the
southeast 10 acres of the site from CC-Community Commercial to HDR-High Density Residential
Ayes: Weisensel, Block, Droste, Essler, Freske Nays: None.
Motion carried.
EXCERPT FROM THE AUGUST 25, 2020, PLANNING COMMISSION MEETING MINUTES
Consent Agenda:
a. Approval of the July 28, 2020, Regular Meeting Minutes.
b. Continuance of the Request by KJ Walk, Inc. for Comprehensive Plan Amendment, Rezoning, Planned Unit
Development and Final Site and Building Plan, and Preliminary and Final Plat Approval (Simple Plat)
associated with the Rosewood Commons hotel and senior living mixed use. (20-30-PUD, 20-35-SP, 20-36-RZ,
20-37-CP)
c. Request by CNC Development IV, LLC for Final Plat Approval of Emerald Isle 1st Addition. (20-40-FP)
No items were pulled for discussion. Chair Kenninger confirmed that any public comment received on the KJ
Walk project at the prior meeting would be included in the packet for the subsequent meeting.
MOTION by VanderWiel
Second by Schmisek
Ayes: 7. Nays: 0.
EXCERPT FROM THE SEPTEMBER 15, 2020 CITY COUNCIL MEETING MINUTES
CONSENT AGENDA
Motion by Weisensel Second by Freske
Motion to approve consent agenda with item 6.f. Re- Designation of Polling Places for 2020
Elections removed.
a. Bills Listing
b. Minutes of the September 1 2020 Regular Meeting Proceedings
c. Minutes of the September 1 2020 Work Session Proceedings
d. City Council Special Meeting Date
e. Donation Acceptance – Police Equipment Fund
f. Re- Designation of Polling Places for 2020 Elections
g. Accept Tort Liability Insurance Limits
h. Request by CNC Development IV, LLC for Final Plat Approval of Emerald Isle 1st
Addition
Ayes: Weisensel, Block, Droste, Essler, Freske
Nays: None. Motion carried.
September 30, 2020
Greta L. Bjerkness
Assistant County Attorney
Dakota County Judicial Center
1560 Highway 55
Hastings, Minnesota 55033
Kim Lindquist
Community Development Director
City of Rosemount
2875 145th Street West
Rosemount, MN 55068
VIA EMAIL
greta.bjerkness@co.dakota.mn.us
kim.lindquist@ci.rosemount.mn.us
Re: Emerald Isle 1st Addition
Dear Ms. Bjerkness and Ms. Lindquist:
We represent CNC Development IV, LLC (“CNC”) with regard to the first addition plat of
Emerald Isle. Specifically, we are writing to object to the City of Rosemount’s (“City”)
unlawful imposition of a blanket drainage and utility easement (“DUE”) over Outlot B of that
plat. We further object to Dakota County’s (“County”) purported intention to site a stormwater
facility on a portion of Outlot B as part of Dakota County Project 42-156 without the express
written consent of the landowner and payment of fair market value for the encumbered property.
Taken together, absent consent and compensation to the landowner, we believe the actions of the
City and County constitute an unlawful taking of land without just compensation.
We understand the City required that CNC include a blanket DUE over Outlot B with the final
plat for Emerald Isle 1st Addition. We are unaware of any legal justification for the City’s
requirement, inasmuch as the City characterizes this action as a placeholder pending further
platting involving such outlot. Moreover, to my knowledge, no use of an outlot is permitted
under City regulations until such time as it is platted and permitted for an authorized use. No
application has been filed by CNC to replat Outlot B. Therefore, the required DUE is, in our
opinion, unauthorized and an unnecessary cloud on title.
Separately, we understand that the County, on approximately July 14, 2020, proposed in writing
to purchase for $55,000 temporary and permanent easements from the then owners of what is
now referred to as Emerald Isle, for the construction of the referenced stormwater facility. The
ownership of the property has since been conveyed to CNC on approximately September 8,
Greta L. Bjerkness
Kim Lindquist
September 24, 2020
Page 2
2020. Thus, CNC stands in the shoes of the former landowners to whom the County’s written
offer was made. Subsequently, the County, by letter dated September 22, 2020, withdrew its
written offer, stating its intention to pursue the necessary easements through “the platting
process.” We understand this to mean that the City and/or the County intend to compel the
conveyance of the required stormwater easements as a condition of plat approval relating to
Outlot B.
On behalf of the owners of Emerald Isle, we respectfully demand that neither the City nor the
County take any action to site a stormwater facility on CNC’s property without prior agreement
of CNC and payment of fair market value. If you wish to discuss this letter, please do not
hesitate to call me.
Sincerely,
Peter J. Coyle, for
Larkin Hoffman
Direct Dial: (952) 896-3214
Direct Fax: (952) 841-1704
Email: pcoyle@larkinhoffman.com
cc: Mary Tietjen, Esq.
4843-0462-4077, v. 1
December 11, 2020
Kim Lindquist
Community Development Director
City of Rosemount
2875 145th Street West
Rosemount, MN 55068
Mary D. Tietjen, Esq.
Kennedy & Graven, Chartered
Fifth Street Tower
150 South Fifth Street, Ste. 799
Minneapolis, MN 55402
BY EMAIL
Re: Emerald Isle 2nd Addition
Dear Ms. Lindquist and Ms. Tietjen:
We represent CNC Development IV, LLC with respect to its Emerald Isle development in the
City of Rosemount (the “City”). Previously, we wrote to the City and Dakota County with
regard to the City’s unlawful imposition of a blanket easement condition on the plat of Emerald
Isle 1st Addition, Outlot B. At the time, CNC Development objected to the City’s demand for
the easement, which has the effect of clouding title to any future sale or use of the property
without affirmative City action to remove the easement. As a consequence of the City demand,
Dakota County withdrew a then-pending offer to purchase land within the area encompassed by
Outlot B for use as a future stormwater pond, stating that the City’s imposition of an easement
over the outlot negated the need to purchase it from CNC. The action of the City, in tandem with
Dakota County, effects a taking without payment of just compensation to CNC Development.
CNC Development has now submitted its application for Emerald Isle 2nd Addition, which
proposes to remove the unlawful easement over a reconfigured Outlot B. At the City’s request,
Outlot B was sized to allow a multi-family project to be pursued at some future point in time.
We understand the City is again insisting that Outlot B be encumbered with a new blanket
easement notwithstanding no use of Outlot B is currently planned for it. We restate our
objection to this proposed condition of platting.
Minnesota law provides specific authority for the City to review and approve proposed plats to
address specific uses and requirements associated with active development. Minnesota law does
not allow the City to unilaterally impose easement conditions on property that is not being
reviewed for an active use. We understand City staff has confirmed it has no requirement in its
Kim Lindquist
Mary D. Tietjen, Esq.
December 11, 2020
Page 2
subdivision ordinance to support its easement condition, even if state law were to allow it.
Rather staff asserts it is City policy to make this demand over property which the County has
conveniently identified for use as a pond. The City’s and County’s coordinated effort to take
valuable property without payment of just compensation is improper and should be rejected
when the plat application for Emerald Isle 2nd Addition advances through the City approval
process.
Please include this letter in the record of proceedings relating to Emerald Isle. If you have
questions, please feel free to call me directly.
Sincerely,
Peter J. Coyle, for
Larkin Hoffman
Direct Dial: (952) 896-3214
Direct Fax: (952) 841-1704
Email: pcoyle@larkinhoffman.com
cc: CNC Development IV, LLC
Rosemount Mayor and City Council
4836-6369-2500, v. 1
EXCERPT FROM THE DECEMBER 14, 2020 PLANNING COMMISSION MEETING MINUTES
6.a. Request by CNC Development IV, LLC for Final Plat Approval of Emerald Isle 2nd Addition (20-59-FP)
Planner Nemcek gave a summary of the staff report for the Planning Commission.
Rick Osberg, James R. Hill Inc., 2999 County Road 42 West, Burnsville, stated that they contest the southern drainage
and utility easement being requested along Akron Avenue. He indicated this is not needed for the 2nd Addition currently
before the City.
Bill Ryan, CNC Development, stated that Dakota County had offered him money when they needed the additional
ponding and now, they’ve changed their mind. Mr. Ryan stated that he would like to be fairly compensated.
Staff indicated that obtaining the ponding easement is similar to obtaining other easements necessary for regional
development like obtaining easements for Autumn Path. The issue raised by the applicant has been discussed with the
City Attorney who is comfortable with the city’s request. The item will be addressed when the application and requested
vacation go before the City Council; however, staff wanted to allow the applicant an opportunity to get their concerns
on record.
MOTION by Reed to recommend that the City Council approve the Final Plat for Emerald Isle subject to the
following conditions:
1. Execution of a Subdivision Agreement.
2. Drainage and utility easements with storm sewer infrastructure may contain fences but shall be
required to include gates to provide truck access; shall prohibit sheds or other accessory structures;
and shall prohibit landscaping that would impede drainage.
3. The final plat shall include all easements as requested by City.
4. Provision of $39,270 for landscaping surety.
5. Payment of $193,800 for Fee-In-Lieu of Park Dedication.
6. Compliance with the conditions and standards within the City Engineer’s Memorandum dated
December 7, 2020.
7. A drainage and utility easement shall be dedicated over all required regional and site ponding areas,
including the southern area of Outlot B and the pond south of Connemara Trail.
8. Final approval of the Comprehensive Plan Amendment by the Metropolitan Council.
Second by Marlow.
Ayes: 6. Nays: 0. Motion Passes.
January 12, 2021
Kim Lindquist
Community Development Director
City of Rosemount
2875 145th Street West
Rosemount, MN 55068
Mary D. Tietjen
Kennedy & Graven, Chartered
Fifth Street Tower
150 South Fifth Street, Ste. 799
Minneapolis, MN 55402
Greta Bjerkness
Assistant Dakota County Attorney
1560 Highway 55
Hastings, MN 55033
BY EMAIL
Re: Emerald Isle 2nd Addition
Dear Ms. Lindquist, Ms. Tietjen and Ms. Bjerkness:
We represent CNC Development IV, LLC with respect to its Emerald Isle development in the
City of Rosemount (the “City”). We previously wrote to the City and Dakota County with
regard to the City’s and County’s unlawful imposition of a blanket easement on the final plat of
Emerald Isle 1st Addition, Outlot B. The action of the City, in tandem with Dakota County,
effects a taking without payment of just compensation to CNC Development.
CNC Development has now submitted its application for Emerald Isle 2nd Addition, which
proposes to remove the unlawful easement over a reconfigured Outlot B. We understand the
City and County are, again, insisting that Outlot B be encumbered with a new storm water
ponding easement notwithstanding no use of Outlot B is currently planned for it as part of the
pending 2nd Addition plat. We restate our objection to this proposed condition of platting.
The City’s and County’s coordinated effort to take valuable property from CNC Development
without payment of just compensation is improper and should be rejected when the plat
application for Emerald Isle 2nd Addition advances through the City approval process. Instead,
we request the City and County support the approval of the 2nd Addition without any public
easement condition on Outlot B.
Kim Lindquist
Mary D. Tietjen, Esq.
Greta Bjerkness, Esq.
January 12, 2021
Page 2
Please include this letter in the record of proceedings relating to Emerald Isle. If you have
questions, please feel free to call me directly.
Sincerely,
Peter J. Coyle, for
Larkin Hoffman
Direct Dial: (952) 896-3214
Direct Fax: (952) 841-1704
Email: pcoyle@larkinhoffman.com
cc: CNC Development IV, LLC
Rosemount Mayor and City Council
4836-6369-2500, v. 3
Kennedy Mary D. Tietjen
150 South Fifth Street, Suite 700
Minneapolis MN 55402
&
Graven (612) 337-9277 telephone
(612) 337-9310 fax
mtietjen@kennedy-graven.com
http://www.kennedy-graven.com
C H A R T E R E D
MEMORANDUM
To: Rosemount Mayor and City Council
From: Mary Tietjen, city attorney
Re: Emerald Isle 2nd Addition
Date: January 14, 2021
I have reviewed the letters submitted by Peter Coyle, attorney for CNC Development IV, LLC,
objecting to certain conditions of the final plat approval for Emerald Isle 2nd Addition. Mr. Coyle also
sent a letter dated September 30, 2020, to staff and myself objecting to the dedication of the blanket
drainage and utility easement over Outlot B of the Emerald Isle 1st Addition plat. These objections
were presented, notwithstanding the fact that the plat has since been filed with the County and the
easement is currently in place.
As is clear from the agenda for the meeting on January 19th, 2021, City staff is recommending the
Council grant CNC’s request to vacate the blanket easement, but preserve those areas that will be
needed for all (project and regional) stormwater ponding purposes within the approved Master
Development Plan area. Vacation of the blanket area addresses CNC’s concerns that the easement
created a “cloud on title”. The City’s (and County’s) anticipated uses of the preserved dedicated areas
are not only consistent with the purpose and scope of a drainage and utility easement, but are tied to
the stormwater drainage and ponding needs within the approved Master Development Plan area, and
are thus within the City’s statutory authority to require dedication of such areas. In addition, it is
expected that the Developer will be utilizing the proposed dedicated drainage and utility easement for
an infiltration pond as part of future phases of development. The Developer’s objection that the plat
condition for preserving the dedication of the drainage and utility easement for ponding purposes is
premature, appears inconsistent with the Developer’s request for extension of the storm sewer to
accommodate future development needs.
EXCERPT FROM THE JANUARY 19, 2021 CITY COUNCIL MEETING MINUTES
7.a. Public Hearing for a Request by CNC Development IV, LLC, for the Vacation of a
Drainage and Utility Easement over Outlot B, Emerald Isle 1st Addition
Community Development Director Lindquist briefed Council on the request staff received from
CNC Development IV to vacate a blanket drainage and utility easement that was dedicated over all
of Outlot B of Emerald Isle 1st Addition in order to facilitate development of the second phase of
Emerald Isle. However, the applicant’s attorney (Peter Coyle) has indicated that the City cannot
require dedication of a blanket easement and that areas located in Outlots A & B are for future
development. Mr. Coyle stated the county withdrew their offer of $55,000 for temporary and
permanent easements for a portion of the area needed for ponding. The applicant is requesting
neither the City nor Dakota County take any action to site a stormwater facility on CNC’s property
without prior agreement of CNC and payment of fair market value for a drainage and utility
easement.
City Attorney Mary Tietjen explained to the Council that based on statutory authority to require
dedication of such areas the staff recommendation to vacate all but a portion of the blanket
easement is lawful and it’s use for ponding is consistent with the purpose and scope of a drainage
and utility easement. City Attorney Tietjen also stated based on the timing of the objection received
from the applicant, as the objection was not received until after the 1st Addition plat dedicating the
blanket drainage and utility easement was approved by the City Council. The City has legal authority
to require dedication easements through this process. Ms. Lindquist noted, the ponding area for
local and regional drainage was approved in the Master Development Plan.
Councilmembers questioned the timing of the approvals, objections, offer and the county
involvement. Council is requesting City Attorney Tietjen have further conversations with the County
to determine their timing and reasoning for withdrawing the offer. Developer, Bill Ryan, was also
presented and informed Council he would provide the timeline of the details but was unable to
provide the information this evening. Councilmember Essler requested staff have engagement with
the County on the specific questions asked this evening.
Councilmember Block questioned whether the City has a policy in place for this or is it something
the City has done in the past. Ms. Lindquist stated use of a blanket easement is quite common as
developers often don’t want to carve out specific easements for a utility line or grading in a future
phase.
Based upon the questions the Council has, Council was in favor of keeping the public hearing open
until February 2nd. At that time, Council will also be asked to take action on the final plat as the
preference is to take action on both items at the same time. It was requested that a representative
from Dakota County be present for the meeting to speak to this issue.
Mayor Droste opened the public hearing at 8:16 PM.
Motion by Essler Second by Block
Motion to continue the public hearing until the next council meeting on February 2, 2021.
Ayes: Essler, Freske, Weisensel , Block, Droste
Nays: None. Motion carried.
City Attorney Mary Tietjen noted that to continue the public hearing is to table the resolution as
well.
Applicant’s Timeline and
Correspondence
Emerald Isle/Courteau Property
Ponding and Blanket DUE Chronology
Prepared by Rick L. Osberg, PE – James R. Hill, Inc.
January 25, 2021
Feb 26, 2020 Preliminary plat for Emerald Isle receives PC recommendation for approval; no inclusion
of a DUE for county or regional ponding on preliminary plat. The staff report to the Planning
Commission makes no mention of regional ponding. (The approved Planned Use Development Master
Development Plan includes high density concept on Outlot B, depicting the concept apartment building,
potential parking and stormwater management. The stormwater models and drainage narrative
submitted to the city with the preliminary plat depicted the ponding of on-site stormwater only. Offsite
runoff was not accounted for in the modeling.)
April 20, 2020 Contacted by Brian Erickson – City Engineer, to meet and discuss ponding related to
County 42 project.
April 21, 2020 Met virtually with Brian Erickson and Eric Fosmo – Kimley Horn. County project was
described, and alternatives for ponding were presented. Schematic of ponding was shown at the
meeting. I saved a screenshot of schematic shown to me. Discussion was verbally shared with
developer. Developer initially responded in objection to the ponding but had further questions. I
drafted a response with questions to Brian Erickson with questions for city.
May 19, 2020 Preliminary plat considered and approved by City Council; no reference to or discussion
of a DUE for county or regional ponding.
May 21, 2020 Received first offer letter from Dakota County to Courteau/Margaret Eustice (land
owner) to purchase DUE for regional pond. Letter Attached
May 22, 2020 Email from Megan Rhoads - Dakota County. Acquisition Guide and offer letter was sent
in email.
May 27, 2020 County Appraiser, Josh Folland, contacted Courteau/Margaret Eustice for a meeting to
review area for proposed county pond.
June 8, 2020 Meeting on site with developer, Margaret Eustice, county appraiser, myself. In
discussing the potential purchase of the ponding easement, Margaret recounted historical dealings her
family had with DCTC and Dakota County, which soured the relationship. She expressed that the
Courteau family was not in favor of selling an easement for ponding.
June 9, 2020 Email to Brian Erickson. I identified issues with the location of the proposed ponding.
June 9, 2020 Margaret Eustice emails Megan Rhoads, stating they do not wish the pond to be
constructed on their property.
June 10, 2020 Invitation to meet with Brian Erickson and Eric Fosmo
Jun 11, 2020 Virtual meeting with Brian Erickson, Eric Fosmo, developer, Margaret Eustice and
myself. Various reasoning was presented about why the chosen location was the best suited for the
county. City supported idea of establishing this as regional ponding, and as so, certain stormwater
credits would be allowed when developed. We suggested the alternative of constructing the pond on
Bester Property to east (where topography is lower which is identified as Regional Ponding on City
Stormwater Plan.)
June 15, 2020 Megan Rhoads emails Margaret Eustice describing next steps for acquisition by
purchase. Offer letter forthcoming.
July 2, 2020 Communication from me to Brian Erickson and developer. Emerald Isle’s drainage
model and revised preliminary drainage plans have still not been reviewed by city. Models were
resubmitted to city in March 17, 2020, in response to Preliminary Plat comments. Developer would like
the City to model the stormwater, such that it demonstrates no negative impact to development
potential of the Courteau property. If the city could demonstrate that combined (regional) ponding was
constructed and would not negatively impact development of the site, they may consider negotiating
the purchase with the county.
July 14, 2020 Email to Stephane Smith – Assistant City Engineer, inquiring about a stormwater review
memo. City’s consultant, Bill Alms – WSB, issued a memo June 10, 2020, having reviewed the plans re-
submitted March 13, 2020. I learned of the memo in a phone conversation Mr. Alms and emailed to
follow up.
July 16, 2020 Dakota County issues an offer letter to Courteau for $55,500. Letter attached
Aug 13, 2020 Emerald Isle final plat application submitted to City without blanket DUE on Outlot B.
(The submitted construction plans depicted public sanitary sewer, storm sewer and drainage that were
to be constructed by the developer. It was understood that an easement of some form would need to
be granted to the city for these developer-installed improvements, in addition to the city trunk storm
sewer. The plans did not show any grading or ponding near County Road 42.) Since the means of
granting the easement had not yet been discussed, no easements were shown on the plat for the initial
submittal.
Aug 17, 2020 Developer engaged in contract for obtaining 2nd appraisal of the of the ponding
easement.
Aug 19, 2020 Email from Stephanie Smith, noting City condition of blanket easement over Outlot B.
Objection was raised, related to potential impact on property. City insisted this was “policy.” No
inference was made attributing this requirement to accommodate county ponding. (Rather, I assumed
the necessity for a blanket easement on Outlot B related to the aforementioned plat improvements.)
This condition for the blanket easement was memorialized in August 25, 2020 Engineering memo. This
memo had attached a memo from WSB dated August 20, 2020, in which review comments now directed
the design for the apartment site drainage model to be treated as regional, even though no formal plans
or grading plans had been furnished for the apartment site.
Aug 20, 2020 Revised final plat, now showing a blanket DUE over Outlot B, sent back to city. Revisions
were expedited to stay on track for August 25 PC meeting.
Aug 25, 2020 Final Plat for Emerald Isle receives PC recommendation for approval with blanket DUE
over entire Outlot B.
Sept 8, 2020 Final plat corrections are sent back to Dakota County for review before making mylars.
This is the first time the County would have seen the final plat with the blanket DUE shown over entire
Outlot B.
Sept 8, 2020 Developer closes on the sale of the purchase of the property from Courteau
Sept 15, 2020 Final Plat for Emerald Isle considered and approved by CC
Sept 17, 2020 Final plat signatures completed.
Sept 22, 2020 County issues letter withdrawing the offer to purchase easement. Letter attached
Sept 23, 2020 Report completed for 2nd appraisal
Oct 6, 2020 Final plat recorded.
4844-1515-4392, v. 1