Tuesday, June 7, 2011

March 2011 City Council Decision

In March of 2011, the Lakeville City Council voted unanimously to agree to the recommendations made by city staff, the city attorney and the planning commission.

The recommendation and resolution passed was to agree to keep the conservation easement in place on the property and to agree to violate all of the provisions based on the clause “prohibited in perpetuity on the subject property without the written consent of the city".

Here are the provisions of the conservation easement:
  • Constructing, installing, or maintaining anything made by man, including but not limited to buildings, structures, walkways, clothes line poles, and playground equipment, except underground utilities.
  • Cutting, removing, or altering trees or other vegetation, except for noxious week or tree disease control.
  • Excavation or filling
  • Application of fertilizers, whether natural or chemical.
  • Application or chemicals for the destruction or retardation of vegetation.
  • The deposit of waste, yard waste, or debris.
  • The application of herbicides, pesticides, and insecticides, except for noxious weed control by or as directed by a governmental agency.
  • Outside storage of any kind.
  • Activity detrimental to the preservation of the scenic beauty, vegetation, and wildlife.
Basically all of these will be violated with the construction of a parking lot, a potential new building and a water drainage holding pond.

So the conservation easement remains in place but all of the provisions have been consented to be violated by the organization that was put in place with the responsibility to enforce them.

Feb 2011 Status Update

In February 2011, the Planning Commission for the City of Lakeville met to discuss a request by Malt-O-Meal to vacate/terminate the conservation easement in order to construct a parking lot, future building and for a drainage pond. 

Upon recommendation from the city staff and the Lakeville City Attorney, the recommendation was made to avoid any legal or court actions and that a provision in the conservation easement that provides that violations of the conservation provisions are "prohibited in perpetuity on the subject property without the written consent of the city" be used.

The recommendation of the Planning Commission forwarded to the City Council was to keep the conservation easement in place and that the City of Lakeville provide written consent to violate the provisions of the conservation easement.

Friday, December 3, 2010

Dillon's Rule on local government power

I found an interesting concept called "Dillon's Rule":
http://www.nlc.org/about_cities/cities_101/153.aspx
Dillon's Rule is used in interpreting state law when there is a question of whether or not a local government has a certain power

Thursday, December 2, 2010

Land Conservation Court Case Summaries

Found the following link:
http://learningcenter.lta.org/attached-files/0/95/9525/Case_Law_Summaries_-_LTA_-_Master_Doc_-_03-10.pdf

I did not see any examples of a city government deciding to terminate a conservation easement - it appears that most cases involve enforcement of the easement and interpretation of that; there are also examples in their of defining standing....

Wednesday, December 1, 2010

Malt-O-Meal Corporate Response to Conservation Easement

Regarding the Malt-O-Meal property in Lakeville, MN
The conservation easement in question is about 2.5 acres of the 12 acres we own. We realized the conservation easement existed on part of this land before we acquired the property.  However, the City of Lakeville indicated flexibility in considering removal of the conservation easement to support our future growth in Lakeville.  They are open to considering removal since there were no definitive reasons why the conservation easement was established in 1995. 
The Malt-O-Meal property is located in an industrial park area that includes light industry, commercial office space, a Holiday Inn, a retail strip mall, a McDonalds, a truck stop, and other commercial activity all within 150 yards of Interstate 35W. There are a total of 12 residential homes in the area, 7 of which share a property line with the conservation easement.
As part of our planning for future growth, we recently approached the city about the possibility of removal of the easement.  They indicated they would consider it at a public city council meeting in December of this year.  Prior to the council meeting, the city and Malt-O-Meal wanted to solicit input and answer questions of the neighbors whose property abuts the easement.  Malt-O-Meal hosted a meeting with these neighbors on November 23rd. 
In our discussions with neighbors, the city encouraged us to provide all potential possibilities for the long term future of this site.  Along with parking and drainage, we would have enough space to construct another office building on that land.  Therefore, we drew up plans that included a potential building as part of full disclosure to the neighbors.  While we don’t know if we will ever need that building, it is in the plans as an option to support our continued growth.
The Lakeville City Council will make the decision on whether the easement is removed.  They have indicated they will balance the needs of residential homes along with supporting our growth and increased jobs in the future. The opening of our Lakeville Technology Center in 2009 brought 200+ jobs to the city. Future expansion could add up to 100 more jobs. Of the 7 commercial businesses in the industrial park, Malt-O-Meal paid 50% of the property taxes in 2010 – over $190,000.
As always, Malt-O-Meal strives to be a good corporate citizen.  We respect all laws and policies that are in existence.  While we hope the Lakeville City Council elects to remove the conservation easement to support our future growth, we will abide by whatever decision they make on this issue. 

Redevelopment Act

See https://www.revisor.mn.gov/data/revisor/statute/2010/469/2010-469.pdf



The purposes of sections 469.001 to 469.047 are:
(1) to provide a sufficient supply of adequate, safe, and sanitary dwellings in order to protect the health, safety, morals, and welfare of the citizens of this state;
Public participation in activities intended to meet the purposes of sections 469.001 to 469.047 and the exercise of powers confined by sections 469.001 to 469.047 are public uses and purposes for which private property may be acquired and public money spent.


Can the land even be developed?


469.029 DISPOSAL OF PROPERTY
Subd. 2. Notice; public hearing; determination; terms and conditions
Every such lease or sale shall provide that the lessee or purchaser shall carry out or cause to be carried out the approved project area redevelopment plan or approved modifications thereof and that no use shall be made of any land or real property included in the lease or sale nor any building or structure erected thereon which does not conform to the approved plan or approved modifications thereof. In the instrument of lease or sale the authority may include other terms, conditions, and provisions in the judgment of the authority will provide reasonable assurance of the priority of the obligations of the lease or sale and of conformance to the plan over any other obligations of the lessee or purchaser, and also assurance of the financial and legal ability of the lessee or purchaser to carry out and conform to the plan and the terms and conditions of the lease or sale, to begin the building of any improvements within a period of time which the authority fixes as reasonable. The instrumentshall also include the terms, conditions, and specifications concerning buildings, improvements, subleases, or tenancies, maintenance and management, and any other related matters the authority may reasonably impose or approve, including provisions whereby the obligations to carry out and conform to the project area plan shall run with the land.

(See bolded text above)

Tuesday, November 30, 2010

Sale in 1995

I contacted the city and I have a copy of the sale agreement entered into by the City of Lakeville and New Morning Windows in 1995.  What is interesting is that this project was part of a special Housing and Redevelopment Authority (Minn Statute 469 https://www.revisor.mn.gov/statutes/?id=469&view=chapter).

Not sure if this helps at all that it was originally sold under this authority...:
469.040 TAX STATUS.
Subdivision 1.Declaration, essential public and governmental purposes.The property of an authority is public property used for essential public and governmental purposes

There was also the establishment of a separate restrictions and covenants section and property owners association consisting of the owners of the commercial properties - it does mention briefly the conservation easement in here also but no definitive explanation of why it was created...

The deed has the following text (Grantor = City of Lakeville; Grantee = New Morning Windows):
To have and to hold the same, together with all the hereditaments and appurtenances thereunto belonging in anyway appertaining, to the said Grantee, its successors and assigns, forever,

Provided:
...

Section 3:
The Grantee agrees for itself and its successors and assigns to or of the Property or any part thereof, hereinbefore described, that the Grantee and such successors and assigns shall:
(a) Devote the Property to, and only to an in accordance with the uses specified in any applicable Redevelopment Plan as amended and extended;
(b) Not discriminate on the basis of race, color, creed, national origin, or sex in the sale, lease, rental, or in the use or occupancy of the Property or any improvements erected or to be erected thereon, or any part thereof;
(c) Not cause the Property to be removed from the public tax rolls or to become exempt from assessment for general real estate taxes by reason of any conveyance, lease, abatement, or other action until the Maturity Date (as defined in the Agreement).

It is iintended and agreed that the above and foregoing agreements and covenants shall be covenants running with the land, and that they shall, in any event, and without regard to technical classification or designation, legal or otherwise, and except only as otherwise provided in this Deed, be binding, to the fullest extent permitted by law and equity for the benefit and in favor of, and enforceable by, the Grantor, its successors and assigns, and any successor in interest to the Property, or any part thereof against the Grantee, its successors and assigns, and every successor in interest to the Property, or any part thereof or interest therein, and any party in possession or occupancy of the Property or any part thereof.

In amplification, and not in restriction of, the provisions of the preceding section, it is intended and agreed that the Grantor and its successors and assigns shall be deemed beneficiaries of the agreements and covenants herein, both for and in their own right, and also for the purposes of protecting the interest of the community and the other parties, public or private, in whose favor or whose benefit these agreements and covenants have been provided.  Such agreements and covenants shall run in favor of the Grantor without regard to whether the Grantos has at any time been, remains, or is an owner of any land or interest therein to, or in favor of, which such agreements and covenants relate.  The Grantor shall have the right in the event of any breech of any such agreement or covenant to exercise all the rights and remedies and to maintain any actions or suits at law or in equity or other proceedings to enforce the curing of such breech of agreement or covenant, to which it or any other beneficiaries of such agreement or covenant may be entitled.