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Home My WebLink AboutItem 08March 17, 2011 Item No. MARCH 21, 2011 CITY COUNCIL MEETING MALT -O -MEAL CONSERVATION EASEMENT CONSENT Proposed Action Staff recommends adoption of the following motion: Move to approve a resolution granting consent to Malt -O -Meal to conduct certain activities within a conservation easement as presented. Passage of this motion will allow Malt -O -Meal the ability to construct building, parking, and stormwater treatment basin improvements within the existing 155 foot wide conservation easement located on the northeast portion of their property at 20802 Kensington Boulevard subject to the seven conditions and restrictions listed in the attached resolution prepared by the City Attorney. Overview Malt -O -Meal representatives have submitted an application to vacate an existing conservation easement located on their property in the Fairfield Business Campus. The conservation easement is located on the northerly 155 feet of the 4.5 acre parcel Malt -O -Meal purchased in 2009 from New Morning Windows and added to their 7.4 acre parent parcel, which Malt -O -Meal purchased from Hearth Technologies also in 2009. Malt -O -Meal purchased the additional 4.5 acre parcel with the intent of expanding their parking lot and building to accommodate the growth of their business. A public hearing was held at the February 17, 2011 Planning Commission meeting to consider the conservation easement vacation request. Owners /representatives of four neighboring homes on Jutland Path spoke at the public hearing, as did the Executive Director of the Lakeville Area Chamber of Commerce. At the direction of the City Attorney, the Planning Commission recommended denial of the conservation easement vacation and instead, on a vote of 5 -1, recommended the City Council provide written consent to allow Malt -O -Meal to construct certain improvements within the conservation easement area subject to eight (8) stipulations. Primary Issues to Consider • Why was the conservation easement established? • Were the neighboring homeowners informed of Malt- O- Meal's expansion plans? • Why adopt the resolution instead of vacating the conservation easement? • Why does the resolution include seven (7) stipulations when the Planning Commission's recommendation included eight (8) stipulations? • How do the building and parking lot restrictions agreed to by Malt-O -Meal differ from Zoning Ordinance requirements for the OP, Office Park District? Supporting Information • Staff analysis of issues • Resolution • Revised site and concept plans • March 15, 2011 letter from Malt -O -Meal • February 17, 2011 Planning Commission meeting minutes • February 17, 2011 letter and petition from neighboring homeowners Februa 11, 2011 planning report orey, PI Daryl ing Director Financial Impact: $ None Budgeted: Y/N Source: Related Documents (CIP, ERP, etc.): Notes: Staff Analysis of Issues • Why was the conservation easement established? The conservation easement was established in 1995 with the City Council's approval of the New Morning Windows conditional use permit for the purpose of providing additional buffer area, above and beyond what was required by the Zoning Ordinance, between the New Morning Windows manufacturing use and the undeveloped (at that time) single family residential property to the north. Prior to the construction of New Morning Windows, which included extensive grading in the conservation easement area, the conservation easement area was either farmed or left fallow. Following the construction of New Morning Windows the area of the conservation easement was seeded. The conservation easement area does not include any wetlands, woodlands or other natural features commonly found on land covered by a conservation easement. • Were the neighboring homeowners informed of Malt -O- Meal's expansion plans? Malt -O -Meal representatives hosted two neighborhood meetings, on November 23, 2010 and on January 19, 2011, to present their proposed business expansion plans to the neighboring homeowners to the north. Malt -O -Meal representatives have revised their plans in an attempt to address concerns raised at the neighborhood meetings. • Why adopt the resolution instead of vacating the conservation easement? The City Attorney's office reviewed the existing conservation easement document and Minnesota State Statutes and is recommending the City consent to allow Malt -O -Meal to conduct certain activities (i.e. building and parking lot expansions and stormwater treatment basins) as opposed to vacating all or a portion of the conservation easement. The City Attorney's letter dated February 8, 2011 is attached as Exhibit G to the February 11, 2011 planning report prepared by Associate Planner Allyn Kuennen. • Why does the resolution include seven (7) stipulations when the Planning Commission's recommendation included eight (8) stipulations? At their February 17, 2010 meeting the Planning Commission recommended the City Council provide written consent to allow Malt -O -Meal to construct certain improvements within the conservation easement area subject to the eight (8) stipulations listed in the February 11, 2011 planning report with an amendment to the wording of one of the stipulations (number 4). Stipulation number 4 was amended to require the same setback for the parking lot adjacent to the existing building and located outside the conservation easement area as was required for the parking lot expansion within the conservation easement. Since stipulation numbers 3 and 4 address the parking lot setback for the area both within and outside the conservation easement, the stipulations were combined to avoid redundancy. • How do the building and parking lot restrictions agreed to by Malt -O -Meal differ from Zoning Ordinance requirements for the OP, Office Park District? The stipulations recommended by the Planning Commission and agreed to by Malt -O -Meal are significantly above and beyond the OP District requirements as identified in the table below: OP District Malt -O -Meal Building Setback 40 feet 40 feet (outside conservation easement) 100 feet (w /in conservation easement) Parking Setback 20 feet (abutting residential) 50 feet Building Height 6 stories or 65 feet 2 stories or 40 feet Landscape Screen 8 feet (evergreens) 20 feet (evergreens) Staff Analysis of Issues • Why was the conservation easement established? The conservation easement was established in 1995 with the City Council's approval of the New Morning Windows conditional use permit for the purpose of providing additional buffer area, above and beyond what was required by the Zoning Ordinance, between the New Morning Windows manufacturing use and the undeveloped (at that time) single family residential property to the north. Prior to the construction of New Morning Windows, which included extensive grading in the conservation easement area, the conservation easement area was either farmed or left fallow. Following the construction of New Morning Windows the area of the conservation easement was seeded. The conservation easement area does not include any wetlands, woodlands or other natural features commonly found on land covered by a conservation easement. • Were the neighboring homeowners informed of Malt -O- Meal's expansion plans? Malt -O -Meal representatives hosted two neighborhood meetings, on November 23, 2010 and on January 19, 2011, to present their proposed business expansion plans to the neighboring homeowners to the north. Malt -O -Meal representatives have revised their plans in an attempt to address concerns raised at the neighborhood meetings. • Why adopt the resolution instead of vacating the conservation easement? The City Attorney's office reviewed the existing conservation easement document and Minnesota State Statutes and is recommending the City consent to allow Malt -O -Meal to conduct certain activities (i.e. building and parking lot expansions and stormwater treatment basins) as opposed to vacating all or a portion of the conservation easement. The City Attorney's letter dated February 8, 2011 is attached as Exhibit G to the February 11, 2011 planning report prepared by Associate Planner Allyn Kuennen. • Why does the resolution include seven (7) stipulations when the Planning Commission's recommendation included eight (8) stipulations? At their February 17, 2010 meeting the Planning Commission recommended the City Council provide written consent to allow Malt -O -Meal to construct certain improvements within the conservation easement area subject to the eight (8) stipulations listed in the February 11, 2011 planning report with an amendment to the wording of one of the stipulations (number 4). Stipulation number 4 was amended to require the same setback for the parking lot adjacent to the existing building and located outside the conservation easement area as was required for the parking lot expansion within the conservation easement. Since stipulation numbers 3 and 4 address the parking lot setback for the area both within and outside the conservation easement, the stipulations were combined to avoid redundancy. • How do the building and parking lot restrictions agreed to by Malt -O -Meal differ from Zoning Ordinance requirements for the OP, Office Park District? The stipulations recommended by the Planning Commission and agreed to by Malt -O -Meal are significantly above and beyond the OP District requirements as identified in the table below: CITY OF LAKEVILLE DAKOTA COUNTY, MINNESOTA RESOLUTION NO. RESOLUTION CONCERNING CONSENT TO CONDUCT CERTAIN ACTIVITIES WITHIN A CONSERVATION EASMENT WHEREAS, Malt -O -Meal is the fee owner of property located at 20802 Kensington Boulevard, Lakeville, Minnesota 55044, and legally described as provided in the attached Exhibit "A" ( "Subject Property "); WHERAS, the north 155.00 feet of Lot 2 within the Subject Property ( "Conservation Easement Premises ") is subject to a Conservation Easement dated July 1, 1995, recorded on July 26, 1995 as Torrens Document No. 322815 ( "Conservation Easement "); WHEREAS, within the Conservation Easement Premises, Malt -O -Meal desires to expand its parking area to accommodate up to 100 additional employees for its current building and is considering a future two story office building and associated parking areas; WHEREAS, the Conservation Easement prohibits the activities proposed by Malt -O- Meal within the Conservation Easement Premises without written consent by the City; WHEREAS, prior to construction of the current building on Lot 2, Block 1, FAIRFIELD BUSINESS CAMPUS, the Conservation Easement Premises alternated between being farmed and left fallow for several decades and during construction of the building on Lot 2, the Conservation Easement Premises was subject to extensive grading with construction of the building, water and sanitary sewer trunk lines located within the Conservation Premises, and a berm adjacent to the single family residential area along the north property line; WHEREAS, the area within the Conservation Easement Premises does not include any wetlands or environmentally sensitive areas; WHEREAS, in light of the foregoing, the City finds that limited activities within the Conservation Easement Premises would be appropriate; NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Lakeville, Minnesota that consent is hereby granted to allow construction of parking areas, office building, and stormwater treatment basins within the Conservation Easement Premises, subject to the following conditions and restrictions: 156439v03 r03/15/2011 1. Any future building constructed within the Conservation Easement Premises is limited to a height of two stories. 1 The City Clerk is instructed to record certified copies of this resolution in the Office of the Dakota County Register of Deeds or Registrar of Titles as the case may be. ADOPTED this day of , 2011 by the City Council of the City of Lakeville, Minnesota. ATTEST: Charlene Friedges, City Clerk 156439v03 r03/15/2011 2. Any future building constructed within the Conservation Easement Premises must be setback a minimum of 100 feet from the north property line of the Subject Property. 3. Any current and future parking areas must be setback a minimum of 50 feet from the north property line of the Subject Property. 4. A minimum of 25 white pine trees or similar species, with a minimum height of 20 feet at the time of planting must be installed along the entire length of the north property line of the Subject Property. In addition, smaller evergreen trees must be planted along the north property line of the Subject Property to further enhance the buffer yard screening. A detailed landscape plan showing all existing and proposed plantings must be submitted for review and approval by City staff. 5. All parking lot and exterior building lighting must be directed away from the residential properties to the north. 6. Uses within any future building are limited to research and development or general office. 7. All future site improvements must be reviewed by the City prior to the commencement of work to insure compliance with City Ordinances. CITY OF LAKEVILLE BY: Mark Bellows, Mayor 2 Lot 1, Block 1, FAIRFIELD BUSINESS CAMPUS, according to the recorded plat thereof, Dakota County, Minnesota. AND That part of Lot 2, Block 1, FAIRFIELD BUSINESS CAMPUS, according to the recorded plat thereof, Dakota County, Minnesota, lying Northerly of the following described line: Commencing at the Northwest corner of said Lot 2; thence South 00 degrees 08 minutes 44 seconds West, assumed bearing, along the West line of said Lot 2 a distance of 290.84 feet to the beginning of the line to be described; thence North 87 degrees 49 minutes 18 seconds East a distance of 700.58 feet to the East line of said Lot 2, distant 265.15 feet from the Northeast corner of said Lot 2, and said line there terminating. (Torrens Property) 156439v03 r03/15/2011 EXHIBIT "A" Legal Description of Malt -O -Meal Property 3 eE eE i 1 4: , .. 1 I .I 1 ni 1 � _r I �� r 1 III, v1 Imo•" \i:\1;1 I, :1711 I � 1I � • 1 11 I I I ..I r 1 : 11 1 1 I' I /` I: - „.' ' 1 j j ` it I I � � - f f � ; � 1 1 1 � I� i A . . ., . .Q I I \ II I I i i`` '� 31� d N OIlO3S \ \ 11 1 1 1 I I I. �/ I i`I \\ 111 111 i ii J; 1 11 I � I i / . 1 \I 1 1 1 f �� l•1 . ' V �il� I III \ \o i III I(� Po.. \ \ \\'`111 �— � 11 1 1 ' I �i r ”' � I/,Y; 11 1� i �I rk 1`1� 1 11 } II _Io_ 1 111 iI ii ` /� II i 11 \ \ ' ,� (I�Y i r1 \ \\\ j , i , \ \ \ _ 1 1 ---I J l i i. s PROPERTY LINE I FT' 0 O d . G v av tv � p V L Main Wk N - m R ' s N C o D O � m o rt 0 a- 0 a 0 N � 3 0 — n 3 r•- I m IV O 0 Inur 77 1 ::I I ::I PROPERTY LINE ° e 40. O V j Gv n i it C Cb OJ C (D 0 0 - _ co m 7 O 0 0 O (D _ 31A V NOLL3 O r i 1 1111 1111 111111111111L 111111111111 4) I I I I I I I I I lag CD PROPERTY LINE C CD 1 o- JIIIIIIIIIIII} IIIIIIIIIIeIII — J •e r�r i -L PROPERTY LINE .°s 1. S$� 8 _ �♦ 0 L r I/ 0 Mr. David Olson City of Lakeville 20195 Holyoke Ave. Lakeville, MN 55 20802 Kensington Boulevard • Lakeville, MN 55044.952- 322 -8000 3/ Dear David, As you aware, Malt -O -Meal initiated an expansion of our Lakeville office building last fall. We completed that expansion in January. Our expansion requires increased parking and associated drainage plan. If we keep that parking and drainage system on our main site, we would be very limited for future growth here in Lakeville. However, if we are able to use land that it is within the conservation easement on the 4.5 acres we acquired from New Morning Windows, it would provide for continued growth. We would use part of that land for parking and drainage, with future possibility to add another building. To facilitate this plan, we applied to vacate the existing conservation easement. The city outlined a process that included a review of our application by the Lakeville Planning Commission. That meeting occurred February 17th and the Commission recommended denial of the application for vacation of easement. However, city staff had provided another alternative that involved the city consenting to certain activities being allowed within the current conservation easement. The Planning Commission reviewed that option, and recommended that it be approved by the Lakeville City Council. The Lakeville City Council will now address this conservation easement issue at its meeting on March 21 We reviewed the provisions that are within the consent as recommended by the Planning Commission. We have come to the conclusion that the provisions of the consent would allow us to expand in an acceptable manner for future growth. Therefore, if the City Council elects to approve the resolution concerning consent to conduct certain activities within a conservation easement (as it is written), Malt -O -Meal would withdraw our application for vacation of the conservation easement. It appears that the consent is a reasonable compromise that maintains the conservation easement, while allowing Malt -O -Meal growth options in the future. If the consent is approved as written, we will operate within the terms of the consent. Thanks for your support on this issue, and thanks in advance for the City Council's consideration of the same. Sincerely, Paul Holzhueter V.P. Business Development Malt -O -Meal Company Quality Cereals Since 1919 Ayes: Blee, Grenz, Drotning, Maguire, Lillehei, Davis. Nays: 0 Break at 8:24 p.m. Reconvened at 8 : 35i r m ITEM 7. MALT -O -MEAL COMPANY Planning Commission Meeting February 17, 2011 Page 10 Exterior lighting shall be installed according to the lighting plan approved b e City Council and in compliance with the Zoning Ordinance require - ts. 14. The trash en ure shall be constructed according to the approved plans and according to - . oning Ordinance requirements. 15. The future chapel and c . oom addition to Hosanna Lutheran Church are allowed by the Planned Um 1 evelopment and shall be subject to the approval of a building permit and structed according to the approved plans. Chair Davis opened the public hearing to consider the application of Malt -O -Meal Company for the vacation of a conservation easement at the Malt -O -Meal Technical Center, located at 20802 Kensington Drive. The Recording Secretary attested that the legal notice had been duly published in accordance with State Statutes and City Code. Paul Holtzhueter, Vice President of Business Development from Malt -O -Meal, presented an overview of their request and the Company's short and long range growth plans for their Lakeville facility. Mr. Holtzhueter stated that Malt -O -Meal has made a commitment to Lakeville. Efficiency is important to them. He indicated that they want to expand on this site and keep everything at one location in Lakeville. He stated they want to be good neighbors to the residential homeowners to the north. Kevin Rolfes, Design Consultant and Stephen Mastey, Landscape Consultant spoke about landscaping and buffers. Their main objective for this site is to preserve the buffer area along the north property line. In addition, they want to enhance the buffer area by strategically placing some large white pines between the Malt -O- Meal property and the neighbors to the north. They have proposed a conceptual landscape plan but they indicated the most effective way to implement the landscape plan is to wait until spring to perform a site analysis and inventory the existing trees in an effort not to damage them or their roots when installing the new trees. Chair Davis opened the hearing to the public for comment. Richard Henderson, 20067 Jutland Place Planning Commission Meeting February 17, 2011 Page 11 Associate Planner Allyn Kuennen presented the planning report that included an analysis of Malt -O- Meal's expansion plans, comments from the adjacent neighbors, and review of the conservation easement by the City Attorney. Mr. Kuennen stated staff recommends forwarding the easement vacation application to the City Council with a recommendation that Option Three as listed in the February 11, 2011 planning report and as recommended by the City Attorney be approved. Mr. Kuennen stated that this option would allow the City Council to provide written consent to Malt -O -Meal to construct additional parking adjacent to the existing building and to allow the future construction of an office building and associated parking areas and stormwater treatment basins within the existing conservation easement contingent on Malt -O -Meal complying with the eight development standards that are listed in the February 11, 2011 planning report. Vice Chair Lillehei suggested that Mr. Kuennen explain why the conservation easement vacation is before the Planning Commission tonight. Mr. Kuennen stated that Malt -O -Meal approached the city for permission to construct parking and a future office building within the conservation easement. The City Council reviewed Malt -O- Meal's request at a work session. The City Council directed staff to have Malt -O -Meal apply for an easement vacation, schedule a public hearing at a Planning Commission meeting to obtain public comment, and have the Planning Commission provide the City Council with a recommendation that addresses Malt- 0-Meal's request and concerns expressed by the adjacent residential property owners. Mr. Henderson feels that the issues are not being addressed for an objective decision on the easement. He feels that the conservation easement vacation will have a negative impact on the neighbors. Mr. Henderson indicated that this easement vacation should not be allowed without the following being considered: • A cost - benefit analysis should be prepared. • Negative impacts on the property values. • There is no history of a conservation easement ever being vacated. • The neighborhood is an environmentally sensitive area. Mr. Henderson stated that it comes down to whether Malt -O -Meal is going to respect the neighbor's quality of life. Bart Gernander, Attorney for Jim Reitter Jim Reitter, 20690 Jutland Place Todd Bornhauser, Chamber of Commerce Executive Director Planning Commission Meeting February 17, 2011 Page 12 • Mr. Gernander indicated that zoning is an important issue here. The residential area is zoned RS -2, Single Family Residential. A lot of impervious surface area is going to be added if the property is developed as proposed by Malt -O -Meal and stormwater runoff should be considered. • Malt -O -Meal has asked for a wish list. They have not shown that they need to vacate this easement. • There will be a direct negative impact on residential property values. • It appears that Malt -O -Meal has options that would not infringe upon the conservation easement. • Showed a picture of what he sees from his bedroom window. • Quoted from the City Code the purpose of the RS -2 District. • Quoted a section of the January 20, 2011 Planning Commission work session notes. • Did not see anything in the conservation easement document that says anything about the conservation easement being put there due to manufacturing. • Quoted selected provisions of the 2008 Comprehensive Plan. • Felt that Malt -O -Meal should have showed other alternative parking and expansion plans that would be outside the conservation easement. • Referred to a wetland area northeast of the site within the residential area. Mr. Bornhauser thanked the Planning Commission members and staff for their time and effort on resolving issues over the years. Mr. Bornhauser was hopeful that this can be resolved to everybody's satisfaction. He indicated that tonight's meeting has three examples where flexibility is needed as the City continues to expand. Mr. Holtzhueter commented that they are trying to be good neighbors. He clarified that he feels the reason the conservation easement was put there in the first place was to keep manufacturing uses from coming within 150 feet of the residential area. On the area of their property without the conservation easement, Malt -O -Meal could legally construct a building within 40 feet of the neighbor's property line and parking within 20 feet to the neighbor's property line, but they are proposing to keep the existing building over 100 feet away and parking adjacent to the existing building 40 feet away from the property lines. The proposed future building will be be over 100 feet away and the parking adjacent to the proposed future building will be set back a minimum of 50 feet from the residential properties. Shelly Carney, 20676 Jutland Place She wanted to reiterate the fact that the neighbors know that Malt -O -Meal is trying to be a good neighbor. She does not believe nor does the definition suggest that this easement should no longer be there. Ms. Carney felt that there is probably more of a reason to have it in place due to the expansion of the City. Brian Carney 20676 Jutland Place Planning Commission Meeting February 17, 2011 Page 13 Thanked the neighbors for their proposal. Commented on their beautiful backyards and how much money they have put into them to make them this way. He hopes that the City of Lakeville maintains the integrity of their codes and that Malt -O -Meal does the right thing. Jeff Wellen, 20684 Jutland Place Mr. Wellen reiterated that most of the neighbors have put significant revenue into their backyards. He highly respects Malt -O -Meal. He does believe that there will be a drop in the value of the homes. He also believes there are other options, probably to the south that Malt -O -Meal should consider before building in the conservation easement. 11.10 Motion was made and seconded to close the public hearing at 9:41 p.m. Ayes: Grenz, Drotning, Maguire, Lillehei, Davis, Blee. Nays: 0 Chair Davis explained that property value impacts is beyond the purview of the Planning Commission. Chair Davis asked staff to point out the wetland that is northeast of the Malt -O- Meal property referred to by Mr. Reitter. Chair Davis asked for comments from the Planning Commission. Discussion points were: • Commissioner Drotning commented that everything in the ordinance is open to interpretation. The residential neighborhood adjacent to the Malt -O -Meal site never would have been developed if you interpreted the ordinance and Comprehensive Plan as outlined by Mr. Reitter. • Chair Davis asked the City Attorney to comment on their options for voting on the easement vacation application. Assistant City Attorney Poehler indicated that staff's recommendation on the easement vacation is for denial and for City Council to consider Option 3, providing written consent to allow certain improvements in the conservation easement subject to the 8 stipulations listed in the planning report. • Chair Davis thanked Mr. Bornhauser for his comments regarding the Planning Commission and staff. • Commissioner Grenz asked about the use of white pines for screening. Malt- 0-Meal's landscape architect said they have had a great success rate with them and they are a local native tree. • The Planning Commission agreed that Malt -O -Meal is making concessions to be good neighbors. Malt -O -Meal could build a 6 story building but are committing to only 2 stories. In addition, they are proposing 20 foot white pines when they are only required to plant 6 -8 foot trees, as well as increasing the parking setback from 20 to 50 feet. • The Planning Commission wanted the neighbors to realize that a buffer zone between different zoning districts does not have to be an easement. The buffer typically includes berming, landscaping, fencing, or even another building. • The Planning Commission discussed tabling this agenda item until they get more detailed plans from Malt -O -Meal on the proposed landscaping. • Commissioner Drotning stated that the Planning Commission will make the tough decisions. The City has the authority to make changes to the conservation easement. He is okay with allowing improvements in the conservation easement area, but feels Malt -O -Meal needs to provide a more detailed landscape plan to address the concerns raised by the neighbors. Break at 10:17 p.m. Reconvened at 10:23 p.m. 11.11 Motion was made and seconded to table this agenda item. Planning Commission Meeting February 17, 2011 Page 14 Chair Davis indicated that the Planning Commission needs to provide staff with guidance and determine an option that works for the City, the neighbors and Malt- 0-Meal. Prior to the vote being taken, the Planning Commission members discussed exactly what they would be trying to accomplish by tabling this agenda item. They suggested having Malt -O -Meal prepare more detailed landscape and site plans. Ayes: Grenz, Maguire. Nays: Drotning, Lillehei, Davis, Blee. Motion to table the conservation easement vacation request failed. Planning Commission Meeting February 17, 2011 Page 15 Mr. Morey commented that the 20 foot white pines proposed by Malt -O -Meal greatly exceed Zoning Ordinance requirements and would potentially have a greater impact on the existing trees in the buffer area if they were not properly located. As such, it is important for Malt -O -Meal to carefully evaluate the exact placement of the 20 foot white pines in order to more effectively enhance the existing landscape buffer and reduce the impacts of future parking lot and building expansions on the neighboring homeowners. As Malt -O- Meal's landscape architect has stated, it would be best to perform the evaluation in the spring when the weather permits. Mr. Morey pointed out that stipulation 5 does state that a detailed landscape plan must be submitted for review and approval by City staff. Mr. Morey also pointed out that the public hearing is closed so there would be no additional public input if the easement vacation is tabled to a future Planning Commission meeting. After discussion, Commission members agreed to amend Stipulation 4 to read "The parking lot adjacent to the existing building must be set back a minimum of 30 50 feet from the north property line as shown on Exhibit F." Break at 11:18 p.m. Reconvened at 11:25 p.m. Chair Davis asked Mr. Morey and the Assistant City Attorney if the Planning Commission can break their recommendation into two motions. It was determined that two motions could be made. 11.12 Motion was made and seconded to recommend denial of the vacation of a conservation easement at the Malt -O -Meal Technical Center, located at 20802 Kensington Drive. Ayes: Drotning, Maguire, Lillehei, Davis, Blee, Grenz. Nays: 0 11.13 Motion was made and seconded to recommend that City Council provide written consent to allow Malt -O -Meal to construct additional parking adjacent to the existing building and to allow the future construction of an office building and associated parking areas and stormwater treatment basins within the existing conservation easement, subject to the following 8 stipulations, as amended: 1. Any future building is limited to a height of two stories. 2. Any future building must be set back a minimum of 100 feet from the north property line as shown on Exhibit F of the February 11, 2011 planning report. 3. Any future parking areas within the conservation easement must be set back a minimum of 50 feet from the north property line as shown on Exhibit F of the February 11, 2011 planning report. 4. The parking lot adjacent to the existing building must be set back a minimum of 50 feet from the north property line. 5. A minimum of 25 white pine trees or similar species, with a minimum height of 20 feet at the time of planting, must be installed on the existing berm along the entire length of the north property line. In addition, smaller evergreen trees are to be planted along the north and south property lines to further enhance the buffer yard screening. A detailed landscape plan showing all exiting and proposed plantings must be submitted for review and approval by City staff. 6. All parking lot and exterior building lighting must be directed away from the residential properties to the north as shown on Exhibit F of the February 11, 2011 planning report. 7. Uses within any future building are limited to research and development or general office. 8. All future site improvements must be reviewed by the City prior to the commencement of work to insure compliance with City Ordinances. Ayes: Maguire, Lillehei, Davis, Blee, Drotning. Nays: Grenz. Commissioner Grenz did not think that everyone is accepting of this solution. There being no further business, the meeting was adjourned at 11:28 p.m. Respectfully submitted, r Penny Breviecording Secret ry 3/03/11 ATTEST: Planning Commission Meeting February 17, 2011 Page 16 4 February 17, 2011 Dear City of Lakeville Planning Commission and City Council, I have prepared this letter to submit to the Planning Commission meeting on February, 17, 2011, concerning the decision on whether or not to vacate the conservation easement adjacent to Jutland Place. I have concerns that key issues are not being addressed or reviewed for an objective decision on the easement, as outlined in this letter. If not addressed, these issues could call into question the integrity of the process in the decision. The City Council should not vacate the easement because of the negative impact it will have on the quality of life of adjacent homeowners, reduction in the property values of their homes, and because this proposed vacating of the Easement is "prohibited in perpetuity" as stated on the Easement. As such, this decision should be made taking into full consideration a review of existing policy and laws on the subject of easements; whether it is fair and equitable to vacate and easement; treatment of easements in other cities; and a cost - benefit analysis of expansion options by the landowner that will not require vacating the easement. Furthermore, there should be an evaluation of economic impacts to the homeowners if the easement is vacated. I do not see these important issues being addressed. If these issues are fairly reviewed and evaluated, I believe it can only lead to a decision to not vacate the easement. Listed below are the issues that if evaluated fairly should lead to a decision to not allow Malto Meal (MM) to vacate the easement. All of these issues were either addressed at previous meetings with the MM and the City or have been communicated to Lakeville City officials from Jutland Place resident Jim Reitter. A Cost - Benefit Analysis of an MM Expansion Option that does not require vacating the easement has not been performed: MM should provide an expansion project concept that does not require vacating the Easement. This can be accomplished with the use of Below Grade parking and more efficient use of green space. I am surprised that MM has not provided a non- easement project concept, despite it being requested in past meetings. My analysis shows that it is feasible, albeit at a higher cost, with a section of below grade parking and more efficient use of green space. The eastern slope of the ground to the south of the easement should support drainage requirements for a below grade section. This combined with better space utilization of green space could make the expansion possible without encroaching on the easement, and keeping the expansion away from ALL OF THE HOMES on Jutland Place. I have a background in this area, and a license in Civil Engineering. There cannot be an honest decision to vacate the easement without a cost benefit analysis of project concept(s) that do not require vacating the easement Determine Negative economic impact on property values by building on the conservation easement: I am surprised that past discussions have attempted to completely side -step the issue of loss in property values to homeowners that will result from vacating the easement and building on the easement. Upon the city agreeing to allow MM to build on the easement, that fact WILL HAVE TO BE DISCLOSED in any real estate transaction or listing, and will result in an immediate drop in property value for all homes (I estimate between 10 -15 percent). This should be one of the most important issues at this stage of project concept analysis, to include reviewing compensation to the homeowners if there were to be a decision to vacate the conservation easement. We have been told there is not comparative data to go by. The irony of this is that the reason why there is no data is because we can find NO RECORD OF ANOTHER MINNESOTA CITY vacating a conservation easement under similar circumstances! Policy towards conservation easements in other Minnesota cities PROTECTS the easements: An objective and impartial review of this easement must require an evaluation of what other MN cities have done, how they have handled similar issues of maintaining conservation easements, both in city policy towards easements and actual decisions made regarding vacating of an easement. I don't see how the City of Lakeville can make a decision on the easement without consideration of how other cities have handled this issue. Apparently this had not been done. Jim Reitter has gathered some relevant documentation and facts in this area. As an example, the city's of Monticello, Minnetonka, and Shakopee all specify clear policies that conservation easements are to be maintained. If the city is going to vacate the conservation easement, there should be research to identify other cities in Minnesota that have made recent similar decisions to vacate a conservation easement.' The City of Lakeville's own definition of a "Conservation Easement" specifies that it should "forever protect the environmental features of the property ": The City of Lakeville website contains the "Lakeville Resident Guidebook." Page 37 of the Guidebook specifies that 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 particular, the conservation easement "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." City of Lakeville policy designates Jutland Place as "Environmentally Sensitive ": The Lakeville Estates plat for the Jutland Place homes identifies is zoned as RS -2 "Environementally Sensitive ". According to the Lakeville City Code (Chapter 51: RS -2, SINGLE - FAMILY RESIDENTIAL DISTRICT - 11 -51 -1: PURPOSE:)), the purpose of the RS -2 district is to provide an option for low density single - family detached residential dwelling units and directly related, complementary uses in environmentally sensitive areas of the city as defined by the comprehensive plan. (Ord. 867, sec. 96, 5 -17- 2010). A neighborhood designated as "Environmentally Sensitive" should not be considered for vacation of an easement that was put in place in part to address the issue of being environmentally sensitive. Lakeville City Code on an office Park district requires every effort to create "passive open spaces ": The Lakeville code provides further support for maintaining the conservation easement. In the Lakeville City Code, Chapter 75: O -P, OFFICE PARK DISTRICT, 11- 75 -13: DESIGN AND PERFORMANCE STANDARD, the following minimum requirements shall be observed in the O -P district subject to additional requirements, exceptions and modifications set forth in this title: I. Usable Open Space: Every effort shall be made to preserve natural stormwater basins and "features of the land to create passive open spaces." To vacate the easement would be contrary to the intent of this code. Minnesota State Government guidance specifies that a conservation easement should be "perpetual ": In the Jan 2005 INFORMATION BRIEF, the Minnesota House of Representatives Research Department: Conservation Easements [Page 2] answered the question: What is a conservation easement? "A conservation easement is a set of restrictions a landowner voluntarily places on his or her property in order to preserve its conservation values. The conservation values of the property and the restrictions that preserve those values, along with the rights reserved by the landowner, are detailed in a legal document known as a conservation easement. This document is filed with the local county land records. A conservation easement is conveyed to a government agency or nonprofit conservation organization qualified to hold and enforce easements. Most conservation easements through public or private "entities are perpetual." They apply to the current owner and all future landowners, permanently protecting the property." Vacating the conservation easement would be against Minnesota Department of Natural Resources guidance: Minnesota Department of Natural Resources Advises that a Conservation Easement is a Legal Tool for "Permanent Protection" of the Land. The Minnesota Department of Natural Resources (DNR) Publication (1997): NATURAL AREAS: PROTECTING A VITAL COMMUNITY ASSET, Page 38 -39 addressed the issue of Conservation Easements. It delineates Conservation Easement as being a legal tool for "permanent protection of the Land." It stated that a common misunderstanding ( "Myth ") is that the owner of property with a conservation easement can later change his or her mind and develop the land. The DNR publication specified as "Fact" that the easement is a legally binding on the present owner and all future owners of the land, regardless of whether the owner is a public agency or private individual (Reference Chapter 84C of the Minnesota State Statutes) Discussion of shrubbery/landscaping barriers prior to decision on easement: MM will likely be required to go beyond existing code in providing shrubbery and landscaping barriers for any project expansion. However, these barriers should be part of the plan when a business development abuts a residential area. Furthermore, these shrubbery /landscape barriers will do little to mitigate the loss in property values by building on the easement. All discussions on shrubbery /landscaping barriers, upon approval of the project concept, should be incorporated into a memorandum of understanding between the City and MM. Prior to a decision to vacate the easement, however, I do not believe it is appropriate to focus on mitigation measures that would be required if the easement were to be vacated. This would also call into question the integrity of the process on the easement decision by addressing mitigation measures in advance of the decision. Wedge issue between Neighbors: It has been suggested that MM could expand their facility all the way to the property lines of the home towards the cul de sac on Jutland Place. First, this would not be allowed UNLESS approved by the City approved. Second, and more disturbing, is that the THREAT OF THE DEVELOPMENT could be having the impact of creating a wedge issue between neighbors regarding the issue of vacating the easement. I hope there is agreement that approaching issues in this manner could undermine the integrity of the process of working out a harmonious solution. b The Conservation Easement on the Malto Meal Property contains no Language that allows it to be "Modified or Terminated." The easement's intent was to "prohibited in perpetuity" anything "manmade" on the easement. To emphasize a critical point, I am concerned that a project concept has not been provided on how MM would develop the expansion without building on the easement. If MM did perceive a risk that the City Council might not approve building on the easement, MM should have prepared basic project concept drawings to show how MM would do the expansion without encroaching on the easement, or to show too negative of an impact to the development. Furthermore, if MM truly believed that they would not be able to expand their facility without encroaching n the easement, then WHY WOULD MM HAVE PURCHASED the property prior to a decision on whether to vacate the easement? This is a key question that - above all others - could call into question the integrity of the decision to vacate the easement being an impartial one. We should all agree that a decision to vacate the easement must not be "fait accompli." I have concerns... State policy, the policy of other MN cities, the policies of the City of Lakeville itself, a consideration of "fair and equitable," and homeowner property rights lead to a conclusion that the conservation easement should be maintained. At the end of the day, I believe the issue comes down to this simple choice: Will the rights of a small group of Lakeville homeowners be protected and respected, or will a big business interest be allowed to violate those rights? Thank you for considering my points. Si Rich. enderson 20664 Jutland Place, Lakeville, MN 55044 REGARDING THE CONSERVATION EASEMENT LOCATED BEHIND JUTLAND PLACE IN THE CITY OF LAKEVILLE. I AM OPPOSED TO THE CITY OF LAKEVILLE GRANTING APPROVAL TO THE LAND OWNER TO ENCROACH UPON OR VACATE THE CONSERVATION EASEMENT. DATE: ! 20A, ADDRESS: ADDRESS: PETITION SIGNATURE: NAME: PLEASE RETURN TO RICHARD HENDERSON, 20664 JUTLAND PLACE REGARDING THE CONSERVATION EASEMENT LOCATED BEHIND JUTLAND PLACE IN THE CITY OF LAKEVILLE. I AM OPPOSED TO THE CITY OF LAKEVILLE GRANTING APPROVAL TO THE LAND OWNER TO ENCROACH UPON OR VACATE THE CONSERVATION EASEMENT. DATE: C 1 1 SIGNATURE: NAME: PETITION r-... ? (/ .-1 / --p T1;, ADDRESS: ( '\101-'1 PLEASE RETURN TO RICHARD HENDERSON, 20664 JUTLAND PLACE REGARDING THE CONSERVATION EASEMENT LOCATED BEHIND JUTLAND PLACE IN THE CITY OF LAKEVILLE. I AM OPPOSED TO THE CITY OF LAKEVILLE GRANTING APPROVAL TO THE LAND OWNER TO ENCROACH UPON OR VACATE THE CONSERVATION EASEMENT. DATE: SIGNATURE: r° / NAME: JfeC `Z= PETITION ADDRESS: ,17/,' lz-7,1% /1 a _C--,rea/r PLEASE RETURN TO RICHARD HENDERSON, 20664 JUTLAND PLACE REGARDING THE CONSERVATION EASEMENT LOCATED BEHIND JUTLAND PLACE IN THE CITY OF LAKEVILLE. I AM OPPOSED TO THE CITY OF LAKEVILLE GRANTING APPROVAL TO THE LAND OWNER TO ENCROACH UPON OR VACATE THE CONSERVATION EASEMENT. DATE: I JV SIGNATURE: NAME: APJPA/' LAx.EuIvLC rnutiJ PETITION lic Nos-o) ADDRESS: 2 ff ce+ jVJ V it PLEASE RETURN TO RICHARD HENDERSON, 20664 JUTLAND PLACE REGARDING THE CONSERVATION EASEMENT LOCATED BEHIND JUTLAND PLACE IN THE CITY OF LAKEVILLE. I AM OPPOSED TO THE CITY OF LAKEVILLE GRANTING APPROVAL TO THE LAND OWNER TO ENCROACH UPON OR VACATE THE CONSERVATION EASEMENT. DATE: SIGNATURE: NAME: PETITION • ° I : I'M 11 PLEASE RETURN TO RICHARD HENDERSON, 20664 JUTLAND PLACE 1 REGARDING THE CONSERVATION EASEMENT LOCATED BEHIND JUTLAND PLACE IN THE CITY OF LAKEVILLE. I AM OPPOSED TO THE CITY OF LAKEVILLE GRANTING APPROVAL TO THE LAND OWNER TO ENCROACH UPON OR VACATE THE CONSERVATION EASEMENT. DATE: // -7i( SIGNATURE: NAME: ADDRESS: PETITION 0 (q (,, PLEASE RETURN TO RICHARD HENDERSON, 20664 JUTLAND PLACE REGARDING THE CONSERVATION EASEMENT LOCATED BEHIND JUTLAND PLACE IN THE CITY OF LAKEVILLE. I AM OPPOSED TO THE CITY OF LAKEVILLE GRANTING APPROVAL TO THE LAND OWNER TO ENCROACH UPON OR VACATE THE CONSERVATION EASEMENT. DATE: ? a1C11•A NAME: ici\g5weks PETITION ADDRESS: Jvz . LAC- PLEASE RETURN TO RICHARD HENDERSON, 20664 JUTLAND PLACE Memorandum City of Lakeville Planning Department To: Planning Commission _ From: Allyn Kuennen, AICP4_� Associate Planner Date: February 11, 2011 Subject: Packet Material for the February 17, 2011 Planning Commission Meeting. Agenda Item: Malt -O -Meal Conservation Easement Vacation. REQUESTED ACTION Malt -O -Meal has submitted an application to vacate a 155 foot conservation easement located along the north property line as shown on Exhibit E. BACKGROUND INFORMATION Malt -O -Meal, located at 20802 Kensington Drive, has indicated a desire to expand their office facilities within the Fairfield Business Campus. Malt -O -Meal has recently completed a remodeling project of the building that will provide office space for an additional 100 employees which will be relocated to or hired at this site during the next several years. A parking deferment was granted for the Malt -O -Meal property in 2010 to allow for further analysis of the various options for locating the required additional parking that will need to be constructed in 2011. Malt -O -Meal is also considering the possible future construction of a two story office building and associated parking areas east of their existing building within the 4.5 acre area acquired from New Morning Windows in 2009 as shown on Exhibit F. The Fairfield Business Campus consists of seven businesses and was developed by the City of Lakeville. The City sold land to companies in an effort to build the City's tax base and reputation as a home for corporate and professional industries. In 1995 the City sold the first parcel of land to New Morning Windows which was 14.5 acres in size. During the platting review process for New Morning Windows there were concerns expressed by the owner of the undeveloped residential property to the north regarding possible noise and traffic issues from the proposed loading dock area and possible fumes from the manufacturing of windows. City records indicate that in an effort to address these concerns a conservation easement was placed on the north 155 feet of the New Morning Windows property to provide an additional buffer area between the loading dock uses and manufacturing operations of New Morning Windows from the adjacent undeveloped residential property to the north. The conservation easement has several conditions including the prohibition of constructing, installing or maintaining anything manmade within the easement without the written consent of the City. 1 In 2009 Malt -O -Meal purchased the former Heat -N -Glo /Hearth Technologies property that is directly west of the New Morning Windows facility. In 2009 Malt -O -Meal also purchased the northern 4.5 acres of the New Morning Windows property that included the 155 foot conservation easement. Malt -O -Meal purchased the 4.5 acres and combined it with their existing property with the intent to construct additional parking adjacent to their current building and for the future construction of an office building and associated parking. Malt -O -Meal has completed a short and long term planning process for both expansion options at this location in Lakeville. This includes the expansion of their existing parking lot including the necessary stormwater treatment and the possible future construction of an office building. Based on this planning Malt -O -Meal has submitted the application to vacate the 155 foot conservation easement. EXISTING CONDITIONS The Malt-O -Meal property currently includes an 81,000 square foot office building with space for up to 300 employees. The area adjacent to the building includes the required parking areas and landscaping and includes the required 30% open space for uses within the OP, Office Park District. The 4.5 acre area purchased from New Morning Windows and subsequently added to the Malt -O -Meal property is currently undeveloped. Prior to the construction of the New Morning Windows facility the area alternated between being farmed and left fallow for several decades. The area that includes the conservation easement does not include any wetlands, steep slopes or natural vegetation or features. The 155 foot conservation easement area underwent extensive grading with the construction of the New Morning Windows facility and the construction of the berm adjacent to a single family residential area along the north property line. Subsequent to the construction of the New Morning Windows facility the conservation easement area was planted with a variety of prairie grasses. Within the 155 foot conservation easement is a 100 foot drainage and utility easement as shown on Exhibit E for water and sanitary sewer trunk lines that were installed approximately 30 feet deep in 1995 to serve the New Morning Windows facility and the other lots within the Fairfield Business Campus. As shown on Exhibits B and C, the site is zoned OP, Office Park District which is consistent with the Comprehensive Land Use Plan which guides the area to be developed as an Office Park. The surrounding land uses include single family residential homes to the north, office and light manufacturing to the south and west and undeveloped Office Park zoned property to the east. NEIGHBORHOOD MEETINGS Malt -O -Meal hosted two neighborhood meetings on November 23, 2010 and on January 19, 2011. Malt -O -Meal presented the proposed parking lot expansion plans adjacent to the existing building and plans for the possible construction of a conceptual office building located east of their existing building. The majority of the adjacent residential property owners attended both meetings. The main concerns expressed by the neighbors included vacating a conservation easement they thought was permanent, increased traffic and headlight glare, decreased privacy, water and drainage issues and decreased property values. Malt -O -Meal has attempted to address a number of these concerns by proposing the following measures: 1. Limit the height of future buildings to two stories (six stories allowed by ordinance). 2 2. Maintaining a minimum building setback of 100 feet from the north property line (40 foot setback required by ordinance). 3. Maintain a minimum parking lot setback from the north property line of 30 feet adjacent to the existing building and 50 feet with any parking areas proposed within the conservation easement that is proposed to be vacated (a 20 foot landscaped buffer area and setback is required by ordinance). 4. Plant additional pine trees on the existing berm along the entire length of the north property line. 5. Direct all parking lot and exterior building lighting away from the residential properties to the north. CONSERVATION EASEMENT VACATION REQUEST Staff has reviewed the conservation easement application and the request from Malt -O -Meal to construct additional parking adjacent to their existing building and for the possible future construction of a two story office building and associated parking area within the conservation easement. The attached letter from Andrea McDowell Poehler (Exhibit G) outlines the City Attorney's review and analysis of the conservation easement vacation request. The City has the following options: 1. Completely vacate and eliminate the conservation easement as requested. • According to the City Attorney's analysis this option would result in a court action. In addition this option would allow any future development to be subject only to the development standards of the Zoning and Subdivision Ordinances and the restrictions of the drainage and utility easement with no other special provisions or restrictions. 2. Partially vacate the conservation easement by modifying the boundaries. • According to the City Attorney's analysis this option would also result in a court action. This option would also allow any future development to be subject only to the development standards of the Zoning and Subdivision Ordinances and the restrictions of the drainage and utility easement with no other special provisions or restrictions. 3. Provide written consent to allow certain uses and actions within the existing conservation easement as allowed by the conservation easement document. • According to the City Attorney's analysis the City has the right to grant written consent to allow certain uses and actions within the existing conservation easement as provided for within Paragraph 1 of the conservation easement document (Exhibit D). Therefore, the City can provide written consent to allowing Malt -O -Meal to construct additional parking adjacent to the existing building and to allow the future construction of an office building and associated parking within the existing conservation easement without vacating it. 4. Deny the request to modify or vacate the conservation easement. • This option would result in Malt-O -Meal being limited to expanding within the area outside of the conservation easement and would restrict Malt -O -Meal to expanding 3 their existing building within the setbacks as allowed by the Zoning and Subdivision Ordinances. The City Attorney's review and analysis of the options indicates that if the City desires to allow Malt -O -Meal to expand as shown in Exhibit F, the best course of action for the City to pursue is Option 3 which is to provide a written consent allowing Malt -O -Meal to construct additional parking adjacent to the existing building and to allow the future construction of an office building and associated parking within the existing conservation easement. RECOMMENDATION Staff recommends forwarding the easement vacation application to the City Council with a recommendation that Option Three as listed above and as recommended by the City Attorney be approved. This option would allow the City Council to provide written consent to Malt -O -Meal to construct additional parking adjacent to the existing building and to allow the future construction of an office building and associated parking areas and stormwater treatment basins within the existing conservation easement contingent on Malt-O -Meal complying with the following development standards: 1. Any future building is limited to a height of two stories. 2. Any future building must be setback a minimum of 100 feet from the north property line as shown on Exhibit F. 3. Any future parking areas within the conservation easement must be setback a minimum of 50 feet from the north property line as shown on Exhibit F. 4. The parking lot adjacent to the existing building must be setback a minimum of 30 feet from the north property line as shown on Exhibit F. 5. A minimum of 25 white pine trees or similar species, with a minimum height of 20 feet at the time of planting must be installed on the existing berm along the entire length of the north property line. In addition, smaller evergreen trees are to be planted along the north property line to further enhance the buffer yard screening. A detailed landscape plan showing all existing and proposed plantings must be submitted for review and approval by City staff. 6. All parking lot and exterior building lighting must be directed away from the residential properties to the north as shown on Exhibit F. 7. Uses within any future building are limited to research and development or general office. 8. All future site improvements must be reviewed by the City prior to the commencement of work to insure compliance with City Ordinances. The following exhibits are attached for your review: Exhibit A — Location Map Exhibit B — Zoning Map Exhibit C — Land Use Map Exhibit D — Conservation Easement Document Exhibit E — Conservation Easement and Drainage and Utility Easement Location Map Exhibit F — Malt-O -Meal Site Plan, Future Concept Plan & Section Details (Dated 2.17.11) Exhibit G — City Attorney Legal Analysis 4 Il��li�!;iiliii11'h h 1I! City of Lakeville Location & Zoning Map Malt -O -Meal Conservation Easement Vacation Exhibit A -4, **, • mi oriwilfsgt-10 II* Whilititt ARA City of Lakeville Zoning Map Malt -O -Meal Conservation Easement Vacation Medium Density Residential m Office Par iitite,1, 0 is\ iso 0 111 AIN IP Office Park Office Park .` 1.11:x..9 MM itokl±1: r111 Public & Quasi Public City of Lakeville Land Use Map Malt -O -Meal Conservation Easement Vacation Exhibit C EXHIBIT "B" TO SCHEDULE J - PERMITTED ENCUMBRANCES CONSERVATION EASEMENT INSTRUMENT made this day of C , 1995, by and between NEW MORNING WINDOWS, INC., a Minnesota corporation, hereinafter referred to as "Grantor ", and the CITY OF LAKEVILLE, a Minnesota municipal corporation ( "City "). WITNESSETH: The Grantor, in consideration of good and valuable consideration paid by the City, the receipt and sufficiency of which is hereby acknowledged, grants unto the City a permanent conservation easement for the purposes set in this instrument, over, under, and across the premises described in the attached Exhibit A ( "subject property"). 1. Grantor, for itself, its successors and assigns, agrees that•the following are prohibited in perpetuity on the subject property without the written consent of the City: A. 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. B. Cutting, removing, or altering trees or other vegetation, except noxious weed or tree disease control. C. Excavation or filling D. Application of whether natural or chemical. E. Application of chemicals for the destruction or retardation of vegetation. F. The deposit of waste, yard waste, or debris. G. The application of herbicides, pesticides, and insecticides, except noxious weed control by or as directed by a governmental agency. 21209:02/02/95 LKVL:NEW MORNING RNK:RL04/13/95 WINDOWS TIF AGR. EXHIBIT D 1 H. Outside storage of any kind. 1. Activity detrimental to the preservation of the scenic beauty, vegetation, and wildlife. 2. Grantor, for itself, its successors and assigns, further grants the City the affirmative right, but not the obligation to do the following on the subject property: Enter upon the subject property at any time to enforce compliance with the terms of this instrument. 3. Part of the land within the conservation easement is also within a public drainage and utility easement. The drainage and utility easement may be used for drainage and utility purposes notwithstanding the conservation easement. (SEAL) 21209:02/02/95 RNK:RL04 /13/95 J -5 GRANTOR: NEW MORNING WINDOWS, INC. BY: CITY OF LAKEVILLE BY: C .u-I& AND Charlene Friedges, i Clerk LKVL:NEW MORNING WINDOWS TIf AGR. r i STATE OF MINNESOTA ) )ss. COUNTY OF 7a(�,.J, ) The foregoing instrument was , 1995, by corporation, on its behalf. MIRA HOLLIDAY NDT SOTA DAKOTA COUNTY q `. -••� *Commission Expires Jan.31, 2000 STATE OF MINNESOTA ) )ss. COUNTY OF DAKOTA ) The foregoing instrument acknowledged before me this c27mday of 1995, by Duane R. Zaun and by Charlene Friedges, respectively the Mayor nd City Clerk of the City of Lakeville, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. • MIRA HOLLIDAY NOTARY PUBLIC- MINNESOTA DAKOTA COUNTY My Commission Expires,Jan,.11, 2000 DRAFTED BY: Campbell, Knutson, Scott & Fuchs, P.A. 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, Minnesota 55121 (612) 452 -5000 RNK:srn knowledged before me this 07th-day of the of Morning Windows, Inc., a Minnesota 7 k a NOTARY PUBLId 21209:02/02/95 LKVL:NEW MORNING RNK:RL04/13/95 WINDOWS TIF AGR. Conservation Easement Description; Exhibit "A" to Conservation Easement A permanent easement for conservation purposes over, under, and across the north 155.00 feet of Lot 2, Block 1, FAIRFIELD BUSINESS CAMPUS, according to the plat on file in the office of the Registrar of Titles, Dakota County, Minnesota. Saki permanent easement contains 2,491 acres, more or less. 212D9:02/02/95 LKVL:NEW MORNING RNK:RLD4 /13/95 J-7 WINDOWS TIF AGR. EXHIBIT E o cr O V 0 Ni O D 5 3 co 5 @ 1 1 1 11 1 1 41 llllllllllllllllll V � r 4- PROPERTY LINE , I •I • • I I ' S 8 g�� iyi • 0 m MIA 31A V NOI103S 1 i 1 Thomas J. Campbell Roger N. Knutson Thomas M. Scott Elliott B. Knetsch Joel J. Jamnik Andrea McDowell Poehler Soren M. Mattick John F. Kelly Henry A. Schaefer, III Alina Schwartz Samuel J. Edmunds Marguerite M. McCarron 1380 Corporate Center Curve Suite 317 • Eagan, MN 55121 651- 452 -5000 Fax 651- 452 -5550 www.ck- Iaw.com Mr. Daryl Morey City of Lakeville 20195 Holyoke Avenue Lakeville, Minnesota 55044 CAMPBELL KNUTSON Professional Association February 8, 2011 Re: Conservation Easement — Malt -O -Meal Dear Daryl: Pursuant to your request, I have reviewed the Conservation Easement for the Malt- 0-Meal property, originally granted to the City by New Morning Windows, Inc. on July 1, 1995. The Conservation Easement is subject to the terms of Uniform Conservation Easement Act, as provided under Minnesota Statute Chapter 84C, and the laws relating charitable trusts, which generally provide that a conservation easement is unlimited in duration unless the easement itself provides otherwise. Because the Malt -O -Meal Conservation Easement provides that it is a permanent easement with terms that apply in perpetuity, the Grantor is limited in its ability to modify the terms of the easement, except as follows: (i) by the specific terms of the easement; or (ii) through a court action to modify the terms of the easement. In this case, the specific terms of the Conservation Easement prohibit the activities identified under Paragraph 1, unless the Grantor obtains the consent of the City. The prohibited activities include A. B. C. D. E. F. G. H. I. Constructing ... anything made by man ... . Cutting, removing or altering vegetation, ... Excavation or filling. Application of fertilizers, ... . Application of chemicals ... . Deposit of waste ... . Application of herbicides, ... Outside storage, and Activity detrimental to the scenic beauty, vegetation, and wildlife. The foregoing Conservation Easement restrictions would prohibit the expansion requested by Malt -O -Meal. However, under the terms of the Conservation Easement, the proposed expansion could be allowed without an amendment to the EXHIBIT G A Mr. Daryl Morey February 8, 2011 Page Two Conservation Easement by obtaining the City's consent to allow the foregoing prohibited activities. The Conservation Easement would remain in place, subject to the activities consented to by the City, if any. There is no provision within the Conservation Easement that specifically allows for modification, amendment or actual vacation of all or any portion of the Conservation Easement or its premises. Thus, the only way to modify, amend or vacate the Conservation Easement would be through a court action as noted in (ii) above. This action would be subject to challenge by a third -party with right of enforcement or a person authorized under law and may require the Grantor to establish that the "purpose and object of the donor's charity are imperfectly expressed through the Conservation Easement." This option includes significantly more cost and expense through processing a court action, particularly if challenged. In addition, there is no guarantee of success. If the City desires to allow the Malt -O -Meal expansion, the simplest and least costly option would be for Malt -O -Meal to submit a request for City consent to conduct the necessary activities under Paragraph 1 of the Conservation Easement together with a site plan for review and for the City to consent to the necessary activities with any appropriate conditions. Very truly yours, Campbell Knutson Professional Association Andrea McDowell Poehler