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
Friday, December 3, 2010
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....
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)
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.
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.
Monday, November 29, 2010
McQuillin Law of Municipal Corporations
Found this reference in the Salzburg vs Dowd case (http://www.landprotect.com/files/37037360.pdf) on page 25:
McQuillin, The Law of Municipal Corporations 47:17 ("A gift to a municipal corporation for charitable purposes cannot, after the municipality accepts it, be renounced or conveyed away so as to defeat the charity")
and 28:25 ("when the trust is accepted, the municipal corporation assumes the same burdens and is subject to the same regulations that pertain to other trustees. The duty to administer the donation or charitable fund agreeable to the expressed wish of the donor of testator will be enforced in equity, and, where circumstances warrant such action, the municipal corporation may be removed or replaced as trustee")
McQuillin, The Law of Municipal Corporations 47:17 ("A gift to a municipal corporation for charitable purposes cannot, after the municipality accepts it, be renounced or conveyed away so as to defeat the charity")
and 28:25 ("when the trust is accepted, the municipal corporation assumes the same burdens and is subject to the same regulations that pertain to other trustees. The duty to administer the donation or charitable fund agreeable to the expressed wish of the donor of testator will be enforced in equity, and, where circumstances warrant such action, the municipal corporation may be removed or replaced as trustee")
Sunday, November 28, 2010
Meeting Notes - Easement Answers
The city indicated that the conservation easement was not put in place as part of any planning commission meeting requirement. My notes show that the city indicates that they have copies of correspondence from 1995 between the owner/developer of the residential lots (my house in Lakeview Estates) and the city regarding concerns that the residential property developer had about the commercial buildings being so close to the residential lots.
The New Morning Windows building was originally going to be on the property now owned by Malt-O-Meal but it was moved to where it is now and as part of the "land sale agreement" for the New Morning Windows purchase of 14.4 acres, the conservation easement was put in place.
The argument now being put forward by the city is that the conservation easement is no longer needed since the commercial property is now owned by a new owner (since New Morning Windows sold the 4.5 acres to Malt-O-Meal) and that the development is a parking lot and office building rather than any expansion of the window manufacturing or expansion by the original owner. The city's other justification is that there are no conservation easements on either of the neighboring office park properties - only on these 700 feet that are adjacent to the Lakeview Estates residential lots.
This is all interesting given the city's own web site new resident guide "Conservation easements are a partnership between the landowner and the City to forever protect the environmental features of the property" and "In conservation easement areas, the landowner agrees to restrict certain uses of the land and obligates future landowners to the same restrictions"...
The problem I have with this is that I relied on that conservation easement when I bought and built my home - I did my research in 1998 and never would have built here had the conservation easement not been in place. I am now hoping that any information that would indicate that the easement was put in place to protect the homeowners (my home for example) would be enough to give me "standing".
The New Morning Windows building was originally going to be on the property now owned by Malt-O-Meal but it was moved to where it is now and as part of the "land sale agreement" for the New Morning Windows purchase of 14.4 acres, the conservation easement was put in place.
The argument now being put forward by the city is that the conservation easement is no longer needed since the commercial property is now owned by a new owner (since New Morning Windows sold the 4.5 acres to Malt-O-Meal) and that the development is a parking lot and office building rather than any expansion of the window manufacturing or expansion by the original owner. The city's other justification is that there are no conservation easements on either of the neighboring office park properties - only on these 700 feet that are adjacent to the Lakeview Estates residential lots.
This is all interesting given the city's own web site new resident guide "Conservation easements are a partnership between the landowner and the City to forever protect the environmental features of the property" and "In conservation easement areas, the landowner agrees to restrict certain uses of the land and obligates future landowners to the same restrictions"...
The problem I have with this is that I relied on that conservation easement when I bought and built my home - I did my research in 1998 and never would have built here had the conservation easement not been in place. I am now hoping that any information that would indicate that the easement was put in place to protect the homeowners (my home for example) would be enough to give me "standing".
Why was the easement created?
My first assumption was that it had to do with the drainage to the wetland, but as I have reviewed this further and also from an offhand comment by the city administrator (Mielke) in the meeting, he mentioned that the owner of the property to the north was concerned about the commercial development directly south which would impact his sale of these residential lots (my house).
My current thinking is that the conservation easement was put in place as a buffer between the Lakeview Estates (residential property) and the commercial property in order to placate potential homeowners concerns about building so close to commercial property. The plat for Lakeview Estates was first created in May 1995 which is exactly the same time that the commercial properties were being approved.
The problem is finding more information about this. When I went to the city previously to do some research and get minutes from 1995 planning and council meetings, the only way I can get access to view those is to pay 25 cents per page for printed copies even though I only really want 1 or 2 pages. They have these stored digitally but when I asked whether there was any way I could just browse through them and print specific pages, I was told that no it was not possible (city deputy clerk). That does not lend itself very well to doing this research.
The main question I am now looking to answer is:
Is there any documentation to indicate why the conservation easement was put in place and specifically that it was put in place to create a buffer between the homeowners and the commercial property?
The other question that I now have is are there other conservation easements in place in Lakeville and has the city taken any action on those historically also?
I have no doubt in my mind that this will move fast - as soon as the city council votes to terminate the conservation easement, there will be bulldozers on that land making room for the parking lots and future building. I wonder if the city already has a request to approve a parking lot project within the easement - they said no, but I don't know that I can trust anything the city says at this point and it would not surprise me that they have it in their hands already and can't actually submit it until the council votes to terminate.
It's like the prior statement "the city has no record of the easement" - yes, because it's a county recorded document, not a city recorded document...
My current thinking is that the conservation easement was put in place as a buffer between the Lakeview Estates (residential property) and the commercial property in order to placate potential homeowners concerns about building so close to commercial property. The plat for Lakeview Estates was first created in May 1995 which is exactly the same time that the commercial properties were being approved.
The problem is finding more information about this. When I went to the city previously to do some research and get minutes from 1995 planning and council meetings, the only way I can get access to view those is to pay 25 cents per page for printed copies even though I only really want 1 or 2 pages. They have these stored digitally but when I asked whether there was any way I could just browse through them and print specific pages, I was told that no it was not possible (city deputy clerk). That does not lend itself very well to doing this research.
The main question I am now looking to answer is:
Is there any documentation to indicate why the conservation easement was put in place and specifically that it was put in place to create a buffer between the homeowners and the commercial property?
The other question that I now have is are there other conservation easements in place in Lakeville and has the city taken any action on those historically also?
I have no doubt in my mind that this will move fast - as soon as the city council votes to terminate the conservation easement, there will be bulldozers on that land making room for the parking lots and future building. I wonder if the city already has a request to approve a parking lot project within the easement - they said no, but I don't know that I can trust anything the city says at this point and it would not surprise me that they have it in their hands already and can't actually submit it until the council votes to terminate.
It's like the prior statement "the city has no record of the easement" - yes, because it's a county recorded document, not a city recorded document...
Attorney General Response
I received a letter from the MN Attorney General today which mentions that the Minnesota courts have NOT yet interpreted the meaning of "authorized by any other law" in the Minnesota 84C03 Statute and that my letter will be reviewed with regard to the charitable trust issues I mentioned. The other items mentioned were to check if there was language saying it could only be terminated by a court order or if it gives the city the right to rescind it (there is no language regarding termination or rescission) or if it specifically gives any other third party a right of enforcement (it does not). So bottom line is that they are not committing to intervene but they left the door open that they are continuing to review this.
This appears again to be a problem of "standing" - can I as a public citizen be considered "authorized by any other law" to intervene in the conservation easement? That has not been defined yet by Minnesota. Even the Minnesota Association of County Administrators mentions the Minneosta Environmental Rights Act http://www.maca-mn.org/mncountyhandbook/AMC-Chapter16.pdf (Page 4) but would that be sufficient to be considered "authorized by any other law".
This appears again to be a problem of "standing" - can I as a public citizen be considered "authorized by any other law" to intervene in the conservation easement? That has not been defined yet by Minnesota. Even the Minnesota Association of County Administrators mentions the Minneosta Environmental Rights Act http://www.maca-mn.org/mncountyhandbook/AMC-Chapter16.pdf (Page 4) but would that be sufficient to be considered "authorized by any other law".
Wednesday, November 24, 2010
Neighborhood Meeting with Malt-O-Meal
Last night, Malt-O-Meal hosted a meeting at their offices for the affected neighbors. They presented a conceptual layout of the parking lot and building.
There were 2 people from the city there also (Mielke and Olson) and they gave information about no decision being made yet since the city council would have to decide. No timeline but indications were that the decision would occur relatively soon since the parking lot design needs to be finalized.
I asked specifically why was the easement put in place originally and they did not provide an answer, although there was brief mention regarding some indication that there were concerns by the original Lakeview Estates landowner about the proximity of the commercial buildings and the impact of being able to sell and develop the residential lots.
I followed up and asked if the easement was potentially put in place to protect the residential plat sales from proximity to the commercial buildings, then what has changed between 1995 and now and my answer was that this property now has a new owner (Malt-O-Meal).
There were 2 people from the city there also (Mielke and Olson) and they gave information about no decision being made yet since the city council would have to decide. No timeline but indications were that the decision would occur relatively soon since the parking lot design needs to be finalized.
I asked specifically why was the easement put in place originally and they did not provide an answer, although there was brief mention regarding some indication that there were concerns by the original Lakeview Estates landowner about the proximity of the commercial buildings and the impact of being able to sell and develop the residential lots.
I followed up and asked if the easement was potentially put in place to protect the residential plat sales from proximity to the commercial buildings, then what has changed between 1995 and now and my answer was that this property now has a new owner (Malt-O-Meal).
Tuesday, November 23, 2010
Open Government Site
The Open Government site provides a forum for expressing thoughts on a number of items including the outdoors and the environment.
I created a post:
http://ideas.usda.gov/ago/ideas.nsf/0/5839B5AEE9CDA2C4862577E20070C1F7
I created a post:
http://ideas.usda.gov/ago/ideas.nsf/0/5839B5AEE9CDA2C4862577E20070C1F7
Saturday, November 20, 2010
City of Lakeville and Malt-O-Meal
The City of Lakeville featured Malt-O-Meal during a fairly long segment in the council meeting on June 7, 2010.
http://www.ci.lakeville.mn.us/departments/cableshow_council060710.htm
http://www.ci.lakeville.mn.us/departments/cableshow_council060710.htm
Friday, November 19, 2010
Another reference to city responsibility
Searching for conservation easement, I found this on FindLaw:
http://realestate.findlaw.com/easements/conservation-easements.html
Property Entry and Inspection
The organization that holds the easement has the right to enter and inspect the property and is legally obligated to assure that the property is in compliance with the terms of the easement.
The city is saying they can cancel the agreement. In the terms of the agreement, the city was given the unilateral authority through their written consent to allow the prohibited activities. But what about the "intent" of the agreement - wouldn't allowing building or rescinding the agreement go against the conservation intent that this was set up in perpetuity?
http://realestate.findlaw.com/easements/conservation-easements.html
Property Entry and Inspection
The organization that holds the easement has the right to enter and inspect the property and is legally obligated to assure that the property is in compliance with the terms of the easement.
The city is saying they can cancel the agreement. In the terms of the agreement, the city was given the unilateral authority through their written consent to allow the prohibited activities. But what about the "intent" of the agreement - wouldn't allowing building or rescinding the agreement go against the conservation intent that this was set up in perpetuity?
Thursday, November 18, 2010
Talk with Malt-O-Meal
I had a 30 minute phone conversation last night with Malt-O-Meal Vice President of Business Development Paul Holzhueter who is also the primary contact on all of the letters we have received.
I expressed my confusion about this action that Malt-O-Meal is taking with this conservation easement and that I really can't find any negative information published about the company. This just seems so out of character for them. His response back was that yes they are a good company and it is the City of Lakeville's decision. When I pointed out that by buying the land, they took over the easement agreement and that it is Malt-O-Meal's actions also that are causing this by buying the 4.5 acres separately and turning their back on preserving this land, he said that this was a city matter and the city is saying that they can terminate the agreement or agree in writing to allow any of the prohibited activities. While that might align with the actual text of the agreement - does that really align with the intent? Unfortunately it appears that no one else can question this since we lack "standing"...
I also mentioned that it would be a multiple win if they bought the 25 acres owned by the school district but he said that it is not convenient since there would be a building in-between. He also mentioned that Malt-O-Meal could expand their existing building to be as close as 30 feet to the homes that are further west - interesting comment - those neighbors had better watch out!
When I mentioned the 70 foot drainage easement and the 100 foot drainage easement flowing into the wetland, he said that the city was extremely concerned about drainage and that there is an existing drain pipe on the property within the drainage easement and that's why 100 feet are needed. The city still maintains that they have no idea why this conservation easement was put in place.
It was a very calm discussion and it became obvious to me as I was already sure that it is just the formality of a vote to make the rescission of the conservation easement a "done deal". I don't have any leverage here to convince them of what is the right thing to do - but I guess that's my perspective - I just can't imagine signing an agreement that says protect the land forever in its natural state and then going back on it. My personal values are that you are bound by it and not just until something that you think is better comes along. I guess I am just very naive. And more than that, extremely disappointed.
I expressed my confusion about this action that Malt-O-Meal is taking with this conservation easement and that I really can't find any negative information published about the company. This just seems so out of character for them. His response back was that yes they are a good company and it is the City of Lakeville's decision. When I pointed out that by buying the land, they took over the easement agreement and that it is Malt-O-Meal's actions also that are causing this by buying the 4.5 acres separately and turning their back on preserving this land, he said that this was a city matter and the city is saying that they can terminate the agreement or agree in writing to allow any of the prohibited activities. While that might align with the actual text of the agreement - does that really align with the intent? Unfortunately it appears that no one else can question this since we lack "standing"...
I also mentioned that it would be a multiple win if they bought the 25 acres owned by the school district but he said that it is not convenient since there would be a building in-between. He also mentioned that Malt-O-Meal could expand their existing building to be as close as 30 feet to the homes that are further west - interesting comment - those neighbors had better watch out!
When I mentioned the 70 foot drainage easement and the 100 foot drainage easement flowing into the wetland, he said that the city was extremely concerned about drainage and that there is an existing drain pipe on the property within the drainage easement and that's why 100 feet are needed. The city still maintains that they have no idea why this conservation easement was put in place.
It was a very calm discussion and it became obvious to me as I was already sure that it is just the formality of a vote to make the rescission of the conservation easement a "done deal". I don't have any leverage here to convince them of what is the right thing to do - but I guess that's my perspective - I just can't imagine signing an agreement that says protect the land forever in its natural state and then going back on it. My personal values are that you are bound by it and not just until something that you think is better comes along. I guess I am just very naive. And more than that, extremely disappointed.
Star Tribune Article
The Minneapolis Star Tribune printed an article about this:
http://www.startribune.com/local/south/108041899.html?page=1&c=y
Very balanced - what is missing here is that the conservation easement is attached to the property and is supposed to be binding on all future landowners and the city. Malt-O-Meal is saying that this is a city matter but it takes both parties in the agreement to cancel.
I also found that there was a city council meeting on June 7, 2010 where Malt-O-Meal was highilghted as the Lakevlle "Spotlight on Business" http://www.ci.lakeville.mn.us/departments/cableshow_council060710.htm
I now have no doubt that this is definitely going to happen. I looked at prior meeting minutes from the city council where residents spoke up against other actions and it never resulted in any reversals - the city's plans always proceed with a full yes vote.
http://www.startribune.com/local/south/108041899.html?page=1&c=y
Very balanced - what is missing here is that the conservation easement is attached to the property and is supposed to be binding on all future landowners and the city. Malt-O-Meal is saying that this is a city matter but it takes both parties in the agreement to cancel.
I also found that there was a city council meeting on June 7, 2010 where Malt-O-Meal was highilghted as the Lakevlle "Spotlight on Business" http://www.ci.lakeville.mn.us/departments/cableshow_council060710.htm
I now have no doubt that this is definitely going to happen. I looked at prior meeting minutes from the city council where residents spoke up against other actions and it never resulted in any reversals - the city's plans always proceed with a full yes vote.
Tuesday, November 16, 2010
Minnesota Environmental Rights Act
Interesting text - not sure if it has any direct relevance:
https://www.revisor.mn.gov/statutes/?id=116B&view=chapter
https://www.revisor.mn.gov/statutes/?id=116B&view=chapter
The legislature finds and declares that each person is entitled by right to the protection, preservation, and enhancement of air, water, land, and other natural resources located within the state and that each person has the responsibility to contribute to the protection, preservation, and enhancement thereof. The legislature further declares its policy to create and maintain within the state conditions under which human beings and nature can exist in productive harmony in order that present and future generations may enjoy clean air and water, productive land, and other natural resources with which this state has been endowed. Accordingly, it is in the public interest to provide an adequate civil remedy to protect air, water, land and other natural resources located within the state from pollution, impairment, or destruction.
Lakeville Resident Guide
Interesting information recognizing conservation easements on page 37 of the Lakeville "Resident Guidebook" http://ci.lakeville.mn.us/departments/departmentspdf/residentguide.pdf:
In an effort to preserve natural areas within Lakeville, especially adjacent to wetlands, the City has established conservation easement agreements with some landowners. Conservation easements are a partnership between the landowner and the City to forever protect the environmental features of the property while allowing private ownership.
In conservation easement areas, the landowner agrees to restrict certain uses of the land and obligates future landowners to the same restrictions. While each agreement is unique, the typical conservation easement agreement prohibits any activity that would be detrimental to the scenic beauty, vegetation, or wildlife on the property including:
+ Construction, installation, or maintenance of anything man-made.
+ Altering or removing trees or vegetation, except for weed control approved by the City.
+ Excavating or filling.
+ Using either natural or chemical fertilizers, herbicides, pesticides, or insecticides.
+ Depositing yard waste, waste, or debris.
The conservation easement agreement allows the City to enter the property to enforce compliance with the terms of the agreement, or remove diseased trees or noxious weeds.
For more information, call Environmental Resources at 952- 985-4520.
In an effort to preserve natural areas within Lakeville, especially adjacent to wetlands, the City has established conservation easement agreements with some landowners. Conservation easements are a partnership between the landowner and the City to forever protect the environmental features of the property while allowing private ownership.
In conservation easement areas, the landowner agrees to restrict certain uses of the land and obligates future landowners to the same restrictions. While each agreement is unique, the typical conservation easement agreement prohibits any activity that would be detrimental to the scenic beauty, vegetation, or wildlife on the property including:
+ Construction, installation, or maintenance of anything man-made.
+ Altering or removing trees or vegetation, except for weed control approved by the City.
+ Excavating or filling.
+ Using either natural or chemical fertilizers, herbicides, pesticides, or insecticides.
+ Depositing yard waste, waste, or debris.
The conservation easement agreement allows the City to enter the property to enforce compliance with the terms of the agreement, or remove diseased trees or noxious weeds.
For more information, call Environmental Resources at 952- 985-4520.
Vermillion River Watershed
I contacted the Vermillion River Watershed Organization http://www.vermillionriverwatershed.org/ in the hope that they would provide some oversight into the drainage easements that flow into the wetland.
I received a response back that This matter is within the City of Lakeville’s jurisdiction with regards to platting and water resource ordinance implementation
They suggest working with the City of Lakeville!
I received a response back that This matter is within the City of Lakeville’s jurisdiction with regards to platting and water resource ordinance implementation
They suggest working with the City of Lakeville!
Another property option
I did mention another option: there is a 25 acre undeveloped lot next to the easement lot which is owned by the school district. Since the recent school district referendum failed, I mentioned that by selling this land, the school district could raise funds, the city would have more land in the tax base and would be business friendly, Malt-O-Meal would have a large piece of land that could be used to build their office park and they could keep the conservation easement in place and show their concern for the environment..
Unfortunately, I have no leverage to get this done - Malt-O-Meal already has the 4.5 acre piece of property and it sounds like they have some sort of plans drawn up (the work session indicates that they are planning a holding pond on the northeast corner). And the City of Lakeville has the full power to alter the 4.5 acre land to accommodate the building and parking lot. The school district lot would require money spent by Malt-O-Meal to buy it, agreement by the school district, and work by the city.
Unfortunately, I have no leverage to get this done - Malt-O-Meal already has the 4.5 acre piece of property and it sounds like they have some sort of plans drawn up (the work session indicates that they are planning a holding pond on the northeast corner). And the City of Lakeville has the full power to alter the 4.5 acre land to accommodate the building and parking lot. The school district lot would require money spent by Malt-O-Meal to buy it, agreement by the school district, and work by the city.
Business Friendly
I am finding out that everyone but me appears to have known that the City of Lakeville and the residents of Lakeville really don't have any interest in protecting the environment - everyone "chuckles" when I mention "environment" and "Lakeville" in the same sentence. Unfortunately,. I am just figuring that out now.
In some further discussions, it appears that the conversations betwen Malt-O-Meal and the City of Lakeville have been going on for quite a while. Why else would a company buy 4.5 acres of land with a 2.5 acre encumbrance if they did not get some very solid assurances that they would be able to build on it? This appears to have been a "done deal" long before the initial story came out.
It appears that the city has some incredible amount of power without oversight:
They can:
I did find the following in the Lakeville City Code (Chapter 75) for this property which is zoned "Office Park":
I. Usable Open Space: Every effort shall be made to preserve natural stormwater basins and features of the land to create passive open spaces
I don't know that this does me any good since who would enforce it and "every effort" could be interpreted a number of ways - or the city could just decide to remove this from their code.
I have contacted the DNR and they will not engage, the Soil and Water Conservation district referred me to the City of Lakeville, the Dakota County surveyor's office pointed me to the City of Lakeville...
In some further discussions, it appears that the conversations betwen Malt-O-Meal and the City of Lakeville have been going on for quite a while. Why else would a company buy 4.5 acres of land with a 2.5 acre encumbrance if they did not get some very solid assurances that they would be able to build on it? This appears to have been a "done deal" long before the initial story came out.
It appears that the city has some incredible amount of power without oversight:
They can:
- Cancel the conservation easement since only they and Malt-O-Meal are parties
- Replat the property without having to record it with the County (according to the county surveyor's office)
- Remove the 70 foot north-south drainage easement that separted the lots in the original plat
- They can even alter or remove the 100 foot east-west drainage easement so the building could be 40 feet from the property line
- Allow a holding pond on the property which would impact the down slope wetland owned by the city
I did find the following in the Lakeville City Code (Chapter 75) for this property which is zoned "Office Park":
I. Usable Open Space: Every effort shall be made to preserve natural stormwater basins and features of the land to create passive open spaces
I don't know that this does me any good since who would enforce it and "every effort" could be interpreted a number of ways - or the city could just decide to remove this from their code.
I have contacted the DNR and they will not engage, the Soil and Water Conservation district referred me to the City of Lakeville, the Dakota County surveyor's office pointed me to the City of Lakeville...
Nov 15, 2010 Lakeville City Council Meeting Public Comment
I made the following comments to the Lakeville City Council during the 3 minute public comment section of the agenda (Nov 15, 2010):
The City of Lakeville
· constructing anything made by man. including but not limited to buildings, structures and walkways
· cutting removing or altering trees or vegetation
· excavation or filling
and
· Activity detrimental to the preservation of the scenic beauty, vegetation, and wildlife
The City of Lakeville
I did some research and found a definition within the United States Treasury regulations1 entitled “Qualified conservation contributions” . It says, “To be considered an eligible donee under this section, an organization must be a qualified organization, have a commitment to protect the conservation purposes of the donation, and have the resources to enforce the restrictions”
Let me just repeat that one phrase again “have a commitment to protect the conservation purposes of the donation” – in the case of this conservation easement, that would be the City of Lakeville
In 2009, the Malt-O-Meal Company purchased the property containing the conservation easement
In 2010, Malt-O-Meal let it be known that they had no intention of honoring the permanent conservation easement which had been written to preserve the original nature of the land in perpetuity.
The following is an excerpt from a Minnesota Department of Natural Resources publication2,
An easement is recorded on a property’s title and “runs with the land;” that is, it is legally binding on not only the present landowner but all future owners of the property. The organization or agency that holds the easement is responsible for regular monitoring (and, if necessary, legal action) to ensure that the terms of the easement are upheld.
I come in front of you today requesting that you consider the effect and impact of decisions you will be asked to make soon regarding rescinding an agreement the City of Lakeville
This is not simply a matter of a zoning change or approving a variance, this decision has more far reaching implications in that it would in effect send the message that the City of Lakeville cannot be relied upon to honor long term agreements and commitments to protect the environment.
The same DNR publication has a quote from Andrea M. Peterson who was the Mayor of Grand Marais, from 1992 to 1996 describing our shared responsibility to protect our resources for future generations and describes how, under her leadership, the Grand Marais City Council voted unanimously to establish a perpetual conservation easement on sixty acres of city-owned land.
My question for the Lakeville City Council and each of you personally is “what messages and decisions do you want to leave as your legacy?”
Monday, November 15, 2010
Picture of drainage easement to wetland
There is a 1 acre wetland to the east (upper right of picture) owned by the city that the 100 foot drainage easement flows into. Interesting that the original plat which had lot separation running north-south had a 70 foot drainage easement between the lots and flowing into the 100 foot area to the north. I guess when Malt-O-Meal combined the property on the right with the extra 4.5 acres, that 70 foot easement just went away. The conservation easement is shown in the green box - only about 2.5 acres.
Friday, November 12, 2010
Pioneer Press Article
An article was published today in the St. Paul Pioneer press:
http://www.twincities.com/localnews/ci_16591658?nclick_check=1
Community and Economic Development Director Dave Olson stated again that the city doesn't have any record of why the easement was created. That's technically true - it's a county recorded document, not a "city recorded" document. This just reinforces that the city does not even recognize that they agreed in 1995 to act as the steward to preserve this property...
Malt-O-Meal also states that they don't have plans to build on that property right now. If that's the case, then there should be no problem in keeping the conservation easement in place.
http://www.twincities.com/localnews/ci_16591658?nclick_check=1
Community and Economic Development Director Dave Olson stated again that the city doesn't have any record of why the easement was created. That's technically true - it's a county recorded document, not a "city recorded" document. This just reinforces that the city does not even recognize that they agreed in 1995 to act as the steward to preserve this property...
Malt-O-Meal also states that they don't have plans to build on that property right now. If that's the case, then there should be no problem in keeping the conservation easement in place.
Thursday, November 11, 2010
Drainage Easement flowing into Wetlands
The purchase of Malt-O-Meal of the additional 4.5 acres and putting a parking lot and building on the land will most likely alter the flow of water into the one acre wetland area to the east (parcel ID 224420201000).
The original plats were rectangular and the separation of the Lot 1 where the Malt-O-Meal building is and the Lot 2 where New Morning Windows has their building had a 70 foot drainage and utility easement on the dividing line between those properties (35 feet on either lot) that flowed into the 100 foot drainage and utility easement and down hill into the one acre wetland lot.
By combining the Lot 1 with the 4.5 acre top portion of Lot 2, the prior platted 70 foot drainage and utility easement is now going to be covered by the planned parking lot and office building.
The original plats were rectangular and the separation of the Lot 1 where the Malt-O-Meal building is and the Lot 2 where New Morning Windows has their building had a 70 foot drainage and utility easement on the dividing line between those properties (35 feet on either lot) that flowed into the 100 foot drainage and utility easement and down hill into the one acre wetland lot.
By combining the Lot 1 with the 4.5 acre top portion of Lot 2, the prior platted 70 foot drainage and utility easement is now going to be covered by the planned parking lot and office building.
Lakeville work session minutes published
The meeting minutes for the work session that was held on Oct 25th have been published:
Minutes of the November 1, 2010 City Council meeting, November 8, 2010 Special Council meeting and the October 25, 2010 Council work session
What I find interesting is that the original plat was a rectangular site that Malt-O-Meal purchased with the existing building. Malt-O-Meal purchased the additional 4.5 acres of which 2.5 acres (155 by 700 feet) were the area with the combined conservation easement and drainage/utility easement so it would appear that their plan all along was to convince the City to vacate the easement so they could put the parking lot and office building within the 4.5 acres.
Original plat documents:
http://gis.co.dakota.mn.us/platsearch/pdfs/plats/28-25-2.pdf
http://gis.co.dakota.mn.us/platsearch/pdfs/plats/28-25-1.pdf
The Malt-O-Meal change to add the additional 4.5 acres to the east (right in the GIS image) can be seen on the current Dakota County GIS site:
http://gis.co.dakota.mn.us/website/dakotanetgis/
the Parcel ID (Parcel Search) is 222450002101
Minutes of the November 1, 2010 City Council meeting, November 8, 2010 Special Council meeting and the October 25, 2010 Council work session
What I find interesting is that the original plat was a rectangular site that Malt-O-Meal purchased with the existing building. Malt-O-Meal purchased the additional 4.5 acres of which 2.5 acres (155 by 700 feet) were the area with the combined conservation easement and drainage/utility easement so it would appear that their plan all along was to convince the City to vacate the easement so they could put the parking lot and office building within the 4.5 acres.
Original plat documents:
http://gis.co.dakota.mn.us/platsearch/pdfs/plats/28-25-2.pdf
http://gis.co.dakota.mn.us/platsearch/pdfs/plats/28-25-1.pdf
The Malt-O-Meal change to add the additional 4.5 acres to the east (right in the GIS image) can be seen on the current Dakota County GIS site:
http://gis.co.dakota.mn.us/website/dakotanetgis/
the Parcel ID (Parcel Search) is 222450002101
ITEM #3 – Malt-O-Meal Expansion Review
Shortly after Malt-O-Meal purchased the Hearth Technologies site, they also purchased an additional 4.5 acres of adjoining property to the east which was owned by New Morning Windows. The northern 155 feet of the New Morning Windows property contains a conservation easement which was granted to the City by the owners of New Morning Windows when they purchased the property in 1995. The conservation easement does not allow for development or improvements to be constructed on the property. Malt-O-Meal is looking to the future at plans to remodel 29,000 square feet of office space in their existing building to accommodate an additional 100 employees and is also anticipating a future second building on their property. Current parking areas will need to be expanded to provide capacity for additional employees. City Council action would be needed to remove the conservation easement.
North of this property are single family homes with a natural berm and tree line screening most of the homes from this easement. Malt-O-Meal will hold a neighborhood meeting to allow these residential property owners to review the concept plan. Malt-O-Meal will add more screening if needed to lessen the impact to these homes. Storm water runoff can be accommodated through a ponding area on the northeast corner of the site.
Council felt that Malt-O-Meal should be encouraged in the growth of their business and directed staff to work with them on an appropriate long-range site plan for best utilizing their property. Council further directed staff to work with Malt-O-Meal to schedule a neighborhood meeting to present their concept plan.
Wednesday, November 10, 2010
Copy of Conservation Easement
Here are the 5 pages of the 1995 conservation easement between New Morning Windows and the City of Lakeville:
New Morning Windows
I found a link to the company who originally created the easement: New Morning Windows at http://newmorningwindows.com/index.htm
They appear to have conservation interests in the forefront and have a link to environmental stewardship http://newmorningwindows.com/stewardship.htm along with a description of the work and analysis they have done to using renewable wood resources (http://newmorningwindows.com/pdf/Stewardship.pdf).
It is unfortunate that the wishes of a company like this to preserve a piece of land in its natural state in perpetuity can be wiped out so easily and so quickly by another company that would rather have a parking lot and building.
They appear to have conservation interests in the forefront and have a link to environmental stewardship http://newmorningwindows.com/stewardship.htm along with a description of the work and analysis they have done to using renewable wood resources (http://newmorningwindows.com/pdf/Stewardship.pdf).
It is unfortunate that the wishes of a company like this to preserve a piece of land in its natural state in perpetuity can be wiped out so easily and so quickly by another company that would rather have a parking lot and building.
Growth and additional jobs
Malt-O-Meal sent a letter to local homeowners adjacent to the conservation easement. In that letter. Malt-O-Meal describes their discussions with representatives from the City of Lakeville and their parking lot and building expansion to facilitate their growth and the additional jobs.
With the tough economy as we are in, that's an argument that is very compelling.
In the same letter, Malt-O-Meal indicates that they intend to add parking and drainage into part of the conservation easement and also that it is favorable to use part of the conservation easement for a new building.
What is being lost in all of this discussion is that there is a permanent conservation easement defined as binding on all owners of the property in perpetuity. Malt-O-Meal is clearly coming out and saying that they don't care that there was a permanent conservation easement protecting that portion of the property and they want to put a parking lot and building on it. They are asking the City of Lakeville to partner with them in removing the conservation easement - the message is "let's cancel that conservation easement intended to protect the land forever in its natural undisturbed state and put a parking lot and building on it". They are convincing the city that "growth and jobs" is what is important and not any agreement or commitment made by the City 15 years ago to act as custodian and ensuring the wishes of the original land owner are enforced.
Unfortunately, that's the direction we are heading - the letter indicates that the City of Lakeville is receptive to considering removal of the conservation easement "to facilitate our growth and the additional jobs" and "the City Council has the authority to approve removal of the easement in a council meeting".
With the tough economy as we are in, that's an argument that is very compelling.
In the same letter, Malt-O-Meal indicates that they intend to add parking and drainage into part of the conservation easement and also that it is favorable to use part of the conservation easement for a new building.
What is being lost in all of this discussion is that there is a permanent conservation easement defined as binding on all owners of the property in perpetuity. Malt-O-Meal is clearly coming out and saying that they don't care that there was a permanent conservation easement protecting that portion of the property and they want to put a parking lot and building on it. They are asking the City of Lakeville to partner with them in removing the conservation easement - the message is "let's cancel that conservation easement intended to protect the land forever in its natural undisturbed state and put a parking lot and building on it". They are convincing the city that "growth and jobs" is what is important and not any agreement or commitment made by the City 15 years ago to act as custodian and ensuring the wishes of the original land owner are enforced.
Unfortunately, that's the direction we are heading - the letter indicates that the City of Lakeville is receptive to considering removal of the conservation easement "to facilitate our growth and the additional jobs" and "the City Council has the authority to approve removal of the easement in a council meeting".
Tuesday, November 9, 2010
Wyoming Case and Attorney General justification
The following article published in the Wyoming Law Review provides an in depth review of the case of Hicks v. Dowd and the Wyoming Attorney General's suit of Salzburg v. Dowd which "supports the position taken by the Wyoming Attorney General – that conservation easements conveyed as charitable gifts for the purpose of protecting the conservation values of the land they encumber in perpetuity constitute restricted charitable gifts or charitable trusts and, thus, such easements cannot be terminated without court approval obtained in a cy pres or similar equitable proceeding"
The link to the document is at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1542648
The link to the document is at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1542648
References to responsibilites
The Treasury Regulations in 1.170A-14 (http://www.wildlaw.org/easements/TreasReg1-170A-14-a-d.html) describe the role of the organization put in place to enforce the intent of the easement as:
To be considered an eligible donee under this section, an organization must be a qualified organization, have a commitment to protect the conservation purposes of the donation, and have the resources to enforce the restrictions.
It appears that the underlying assumption in this is that the organization entering into the agreement has "a commitment to protect the conservation purposes of the donation".
I also found a publication on the Minnesota DNR site that also appears to reinforce this general concept:
http://files.dnr.state.mn.us/assistance/sourcebook.pdf
An easement is recorded on a property’s title and "runs with the land;" that is, it is legally binding on not only the present landowner but all future owners of the property. The organization or agency that holds the easement is responsible for regular monitoring (and, if necessary, legal action) to ensure that the terms of the easement are upheld.
It is just unfortunate that this is just a general concept regarding the responsibilities of the organization holding the easement and apparently not something that can be strictly enforced.
I am finding out that the bottom line is that a permanent conservation easement is only as good as the organization holding the easement and put in charge of monitoring and enforcing the terms and their commitment to doing so.
To be considered an eligible donee under this section, an organization must be a qualified organization, have a commitment to protect the conservation purposes of the donation, and have the resources to enforce the restrictions.
It appears that the underlying assumption in this is that the organization entering into the agreement has "a commitment to protect the conservation purposes of the donation".
I also found a publication on the Minnesota DNR site that also appears to reinforce this general concept:
http://files.dnr.state.mn.us/assistance/sourcebook.pdf
An easement is recorded on a property’s title and "runs with the land;" that is, it is legally binding on not only the present landowner but all future owners of the property. The organization or agency that holds the easement is responsible for regular monitoring (and, if necessary, legal action) to ensure that the terms of the easement are upheld.
It is just unfortunate that this is just a general concept regarding the responsibilities of the organization holding the easement and apparently not something that can be strictly enforced.
I am finding out that the bottom line is that a permanent conservation easement is only as good as the organization holding the easement and put in charge of monitoring and enforcing the terms and their commitment to doing so.
Monday, November 8, 2010
Best interests
I had a discussion the other day about the conservation easement, Malt-O-Meal's decision to not honor it and the City of Lakeville's willingness to go along with not honoring that agreement. The comment was made that "it's good to bring jobs into Lakeville".
I thought for a while about this and agree that it is good for a City to be business friendly and bring additional companies into the city. I fully support being business friendly, but the bigger issue here is the honoring of an agreement and the intent of the original landowner who placed the conservation easement on this property.
The U.S. Treasury, when recognizing conservation easements, requires "To be considered an eligible donee under this section, an organization must be a qualified organization, have a commitment to protect the conservation purposes of the donation, and have the resources to enforce the restrictions".
Can the City of Lakeville, who willingly enters into an agreement to protect a piece of property in perpetuity, really be considered committed to protect the conservation purposes of the donation when they will allow a parking lot and office building to be built within that easement?
But getting back to the comment of business friendly, is the city better off cancelling a prior permanent agreement to preserve a piece of land to allow a parking lot and office building or are they better served by holding to the preservation principles and telling Malt-O-Meal that there are plenty of other open pieces of land available in the City of Lakeville and zoned appropriately without permanent conservation easements that will accommodate their building plans? Directing the company to purchase additional properties that are not encumbered actually better serves the interest of the residents of the City of Lakeville and also recognizes the role the city took on to protect the conservation purposes.
This is not simply a question about changing zoning or allowing variances or approval of a building. The question lies in the commitment of the City of Lakeville to honor and enforce the wishes and intentions put into a legal conservation easement document and the city's written commitment, evidenced by the city signing and recording the document, to enforce the intent of the document permanently.
I thought for a while about this and agree that it is good for a City to be business friendly and bring additional companies into the city. I fully support being business friendly, but the bigger issue here is the honoring of an agreement and the intent of the original landowner who placed the conservation easement on this property.
The U.S. Treasury, when recognizing conservation easements, requires "To be considered an eligible donee under this section, an organization must be a qualified organization, have a commitment to protect the conservation purposes of the donation, and have the resources to enforce the restrictions".
Can the City of Lakeville, who willingly enters into an agreement to protect a piece of property in perpetuity, really be considered committed to protect the conservation purposes of the donation when they will allow a parking lot and office building to be built within that easement?
But getting back to the comment of business friendly, is the city better off cancelling a prior permanent agreement to preserve a piece of land to allow a parking lot and office building or are they better served by holding to the preservation principles and telling Malt-O-Meal that there are plenty of other open pieces of land available in the City of Lakeville and zoned appropriately without permanent conservation easements that will accommodate their building plans? Directing the company to purchase additional properties that are not encumbered actually better serves the interest of the residents of the City of Lakeville and also recognizes the role the city took on to protect the conservation purposes.
This is not simply a question about changing zoning or allowing variances or approval of a building. The question lies in the commitment of the City of Lakeville to honor and enforce the wishes and intentions put into a legal conservation easement document and the city's written commitment, evidenced by the city signing and recording the document, to enforce the intent of the document permanently.
Sunday, November 7, 2010
Long shot possiblities
I found an article regarding what appears to be a similar issue (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=903845) which indicated:
Perpetual conservation easements are not merely private contracts between the owner of the land and the holder of the easement. Easement terminations - as well as amendments that are inconsistent with the stated purpose of the easement - require court approval in a cy pres proceeding, where appropriate consideration will be accorded to both the intent of the easement grantor and the interests of the public. In situations where the holder of a perpetual conservation easement simply agrees to amend (or terminate) the easement in contravention of its stated purpose, the charitable trust rules permit the state attorney general (or, if the attorney general declines to become involved or is ineffective, a party with a "special interest") to object.
There is also another interesting article at http://www.conservationlaw.org/publications/05-ThirdPartyEnforcement.pdf which reviews the same situation of "standing".
The bottom line here appears to be that without the state attorney general stepping in and classifying conservation easements as enforceable as a trust through the attorney generals authority to enforce trusts, the parties can agree to terminate the agreement and since there are only two parties to the agreement, no one else has "standing" to enforce it.
In effect, conservation easements written between two parties such as a landowner and a government entity and specifically including language as "permanent" and declared "in perpetuity" can be cancelled simply by the landowner or a new landowner ("Malt-O-Meal") deciding not to honor the conservation agreement and then convincing the government entity ("City of Lakeville, Minnesota') to agree to cancel or rescind the agreement.
It appears that conservation easements, even though they are legal documents entered into and identified as "permanent" and binding on the "grantor", successor and assigns", are actually only as good as both parties and ultimately the receiving entity entering into the conservation easement and the ability and willingness of the entity to act as custodian and steward of the intent.
The agreement between the original party, in this case it was "New Morning Windows, Inc." and the second party which is the City of Lakeville, a Minnesota Municipal Corporation. The agreement calls for a "permanent easement for conservation purposes" and prohibits in perpetuity a number of items including constructing of buildings, structures, walkways, cutting or removing trees or other vegetation, excavating or filling, deposit of waste, yard waste, or debris, outside storage, or "activity detrimental to the preservation of the scenic beauty, vegetation, and wildlife" without the written consent of the City.
When Malt-O-Meal purchased the property in 2009, the recorded property included this permanent conservation easement on a portion of the total property. Malt-O-Meal has decided that they do not intend to honor that prior agreement and instead want to build a parking lot and office building. In order to do this, they have to obtain agreement from the City of Lakeville and specifically the Lakeville City Council where both parties would agree to cancel or rescind the permanent conservation easement.
Amazingly enough, this is all it will take for the agreement to be cancelled. The new company (Malt-O-Meal) purchases the property, decides that the prior owner's intent to preserve the land in perpetuity for scenic beauty, vegetation, and wildlife is not something they want to honor and they start talking with the City of Lakeville to agree with them to ignore the intent of the prior landowner and go back on the commitment the City of Lakeville made in 1995 to act as custodian and steward of the permanent agreement.
There have been precedents in the other cases where others have tried to intervene, but it looks like this has to do with something called "standing". The conservation agreement was entered into between the owner of the land ("grantor") and the accepting entity ("grantee') and no other party can come in and try to enforce those parties to honor that agreement.
The agreement between the original party, in this case it was "New Morning Windows, Inc." and the second party which is the City of Lakeville, a Minnesota Municipal Corporation. The agreement calls for a "permanent easement for conservation purposes" and prohibits in perpetuity a number of items including constructing of buildings, structures, walkways, cutting or removing trees or other vegetation, excavating or filling, deposit of waste, yard waste, or debris, outside storage, or "activity detrimental to the preservation of the scenic beauty, vegetation, and wildlife" without the written consent of the City.
When Malt-O-Meal purchased the property in 2009, the recorded property included this permanent conservation easement on a portion of the total property. Malt-O-Meal has decided that they do not intend to honor that prior agreement and instead want to build a parking lot and office building. In order to do this, they have to obtain agreement from the City of Lakeville and specifically the Lakeville City Council where both parties would agree to cancel or rescind the permanent conservation easement.
Amazingly enough, this is all it will take for the agreement to be cancelled. The new company (Malt-O-Meal) purchases the property, decides that the prior owner's intent to preserve the land in perpetuity for scenic beauty, vegetation, and wildlife is not something they want to honor and they start talking with the City of Lakeville to agree with them to ignore the intent of the prior landowner and go back on the commitment the City of Lakeville made in 1995 to act as custodian and steward of the permanent agreement.
There have been precedents in the other cases where others have tried to intervene, but it looks like this has to do with something called "standing". The conservation agreement was entered into between the owner of the land ("grantor") and the accepting entity ("grantee') and no other party can come in and try to enforce those parties to honor that agreement.
Conservation Easement - amazing findings
When is a permanent conservation easement not permanent?
When someone can buy a piece of land with an existing conservation easement to protect that property, decide not to honor that prior agreement and convince the second party of the agreement who was entrusted to protect the property to go along with terminating it.
That's exactly what is happening with Malt-O-Meal and the City of Lakeviile, Minnesota
When someone can buy a piece of land with an existing conservation easement to protect that property, decide not to honor that prior agreement and convince the second party of the agreement who was entrusted to protect the property to go along with terminating it.
That's exactly what is happening with Malt-O-Meal and the City of Lakeviile, Minnesota
An article in the October 30th Life & Times newspaper (http://www.thisweeklive.com/2010/11/03/malt-o-meal-considers-expanding-lakeville-site/) describes how Malt-O-Meal is requesting that the Lakeville City Council vacate a recorded permanent easement on a property that Malt-O-Meal recently purchased and wants to build a new office building. Malt-O-Meal's request indicates that they have no intention of honoring the prior landowner's permanent conservation easement to protect the land for scenic beauty, vegetation and wildlife that was entered into by the prior landowner and the City.
A copy of the conservation easement is recorded with Dakota County Minnesota which is dated July of 1995 between New Morning Windows, Inc and the City of Lakeville granting "a permanent easement for conservation purposes over, under, and across the north 155.00 feet" and indicating that any construction, excavation, or "activity detrimental to the preservation of scenic beauty, vegetation, and wildlife" would require the written consent of the City. This has already happened since Malt-O-Meal has recently created a large dirt mound within a portion of the 155 foot conservation easement.
The timeline is:
In April of 1995, the plat for Fairfield Business Campus was created.
In July of 1995, a permanent conservation easement was recorded between New Horizon Windows and the City of Lakeville for an area of about 2.5 acres to protect the land as undeveloped and undisturbed open space
In September of 2009, Malt-O-Meal purchased the property
In September of 2010, Malt-O-Meal requested that the City of Lakeville vacate a portion of the permanent conservation easement on the property
I see this as a bad precedent if a company can buy a piece of land and then decide to not honor an existing conservation easement and the City's ability to rescind a permanent agreement they entered into. I believe the decision will be made rather quickly since when I talked to the staff at the City of Lakeville, they expressed that it was unfortunate that the article had been published in the local paper and that they are moving forward with their review and recommendations regarding a new parking lot and building.
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