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HomeMy WebLinkAbout3255TO: Chad Miller, Engineering Director, City of Edina FROM: m Eppel, 4118 Sunnyside Road DATE: May 30, 2024 SUBJECT: Sunnyside Alley Easements Chad, thank you for your time yesterday. As I thought about our conversation, I realized that what was likely confusing the alley access issue was reference to the 1994 easement that was granted to the City of Edina. The 1994 easement was granted simply to provide the City with access to the privately owned alley, which would allow the City to maintain the pavement. The easement was purposely structured to retain private--and collective--ownership of the strip of land abutting the paved alley and extending to the northern lot lines of the thirteen properties included in the perpetual easement of 1928. The 1928 easement is the easement that is relevant to the matter at hand. The 1928 easement was created for the exclusive use and benefit of the then-present and future owners of the thirteen properties involved. The easement created a private roadway affording each of the owners and their successors continuous access to their individual lots, passing over the lots of the others. The land extending from the northern edge of the private roadway to the northern lot lines of the thirteen lots was designated as a common park or boulevard strip for the exclusive and joint use of the thirteen parties. The 1928 easement among the homeowners also stipulates that no single owner or group of owners can diminish the exclusive rights of the other owners, and each individual owner has veto rights over an action by another owner or group of owners to grant access across the common park or boulevard strip. Thus, any action to grant access across this "common park or boulevard" requires the approval of all thirteen homeowners. As we were structuring the 1994 easement there was an expressed desire on the part of the homeowners to make sure that nothing about the 1994 easement negatively impacted or diminished the protections that were created in 1928. Thus, at the suggestion of the City, we obtained an external legal opinion to ensure that the intent/protections of the 1928 agreement would not be impacted by the 1994 easement. We retained Robert Christianson of Best and Flanagan to review the 1928 document provided by the City as well as the proposed 1994 easement to provide assurance that the 1994 agreement did not in any way impact the provisions of the 1928 agreement. Attached is a copy of Mr. Christianson's legal opinion dated September 23, 1994. As you will note, Mr. Christianson provided assurance that any action to grant access to the north of the paved alley requires approval of all thirteen homeowners, per the terms of the 1928 perpetual agreement. I trust that you will be able to locate a copy of the 1928 perpetual easement agreement among the thirteen owners and their successors. In addition to a copy of Mr. Christianson's legal opinion, I am enclosing a copy of the map provided---and color-coded by---the City Engineer's office in 1994. I trust that this explanation has been helpful. If you have any questions, please give me a call at 651-528-0094. Again, thank you for your time and assistance with this matter. Jim Eppel 651-528-0094 BEST 8C FLANAGAN ATTORNEYS AT LAW Direct Dial: 341-9710 ROBERT L. CROSBY LEONARD M . ADDINGTON ROBERT R. BARTH N. WALTER GRAPE ALLEN D. BARNARD RICHARD A. PETERSON ROBERT J. CHRISTIANSON, JR FRANK J. WALz FRANK VooL MARINI'S W. VAN PUTTEE, JR. DAVID B. MORSE JOHN A. BURTON, JR. JAMES C. DIRAGLEs ROBERT L. MELLER, JR. JUDITH A. ROUNSILESKE SCOTT D. ELLER CHARLES C. BERQUIST GEORGE 0. LUDCKE E .Jossuff LAFAvE GREGORY D. SOULE CATHY E. GORLIN PATRICK B. HENNESSY TIMOTHY A. SULLIVAN BRIAN F. RICE DANIEL R.W. NELSON TRACY J. VAL, STEENBURGH DAVID J. ZURICH STEVEN R. KRUGER JAMES P. MICHELS PAUL E. KAHINSHI JOHN P. BOYLE Ross C. EORMELL 'CINDY J. LARSON CAREN SCHERB GLOVER MARY E.SHEAREN CATHERINE J. COURTNEY KEITH J. NELSEN BARBARA M. Ross TRACY F. EOCHENDORVER JEANNICE M. REDING SARAH CHIPPER MADISON ROBERT D. MAHER DAVID H JOHNSON PAUL J. HARMON WILLIAM J. MORRIS MICHAEL L. Moos MICHAEL R. Pin 4000 FIRST BANK PLACE 001 SECOND AVENUE SOUTH MINNEAPOLIS, MN 55402 -4331 TELEPHONE 10121 339 -7121 TELECOPIER 10121 339 - 5697 Or COUN5111. JOHN R. CARROLL JAMES D. OLSON ROBERT M. SHARE ARCHIBALD SPENCER WARD B. LEWIS JAMES I. BEST MOO 1088 RonERT J. FLANAGAN 15981074 September 23, 1994 Mr. James W. Eppel, Jr. 4118 Sunnyside Road Edina, MN 55425 Re: Private Easements Dear Mr. Eppel: You requested me to prepare an agreement among the owners of Lots 1 through 13, Block 1, Country Club District Fairway Section which would have the effect of precluding an owner of one of said lots from providing access from the newly created public alley to the property immediately to the north of said lots. After reviewing the applicable documents and public records, it is my opinion that such an agreement is neither necessary nor advisable because the existing private easement for boulevard or common park purposes remains in full force and effect and provides a buffer between the public alley and the property to the north. In order to understand why I have come to the foregoing conclusion, it is necessary to analyze the June 15, 1928 Agreement among the owners of Lot 11, Block 15 and Lots 1 through 12, Block 1, Country Club District Fairway Section. I have attached a copy of the same to this letter. The owners of said lots created a perpetual easement for the exclusive use and benefit of the present and future owners and occupants of Lots 1 through 12, Block 1 (individually, a "Lot," collectively, the "Lots"). The main easement was created across the northern 20 feet of the Lots and all of Lot 11, Block 15. The easement was created for two purposes. The south fourteen feet thereof was to be used by the parties for private roadway purposes affording each owner and their successors continuous ingress and egress to their Lot over the Lots of the others. The north six feet thereof was to be used as a common park or boulevard strip for the exclusive and joint use of the parties. Thus, each owner of a Lot granted an exclusive right to pass over and use the north twenty feet of his Lot to the other owners of the Lots and obtained the same exclusive right back from the other owners as to each of their Lots. No owner can individually and unilaterally diminish the exclusive rights of the other owners. Once the exclusive rights were granted by an owner of a Lot, they Mr. James W. Eppel, Jr. September 23, 1994 Page 2 cannot be taken back nor can additional rights adverse to the initial rights be granted to non- beneficiaries of the exclusive rights because those rights are possessed by the other owners of the Lots and there is nothing left for the original grantor or his successor to give. Therefore, each owner of a Lot has a veto over a proposed action by another owner of a Lot or a combination of owners of Lots which would be adverse to that owner's exclusive right to use the easements for their intended purposes. The granting of a driveway easement over the common park or boulevard to the property to the north would be a use incompatible with the common park or boulevard. The City's alley easement does not abut the property to the north as can be seen on the enclosed map. As you can see, the boulevard or common park easement continues intact along the northern lot lines. The City's alley easement encroaches on the boulevard or common park easement to some degree but the common park or boulevard is never less than approximately four feet in width. In addition, the private roadway easement continues to exist to the south of the City's alley easement. It is never less than approximately 2 feet in width to the south. The City's alley easement is only effective because it was granted by all of the owners. Because the property to the north of the public alley does not abut thereto, it is inaccessible from the public alley without one of two events occurring. First, it is possible that the City could exercise its right of eminent domain to obtain the fee title (or an additional easement) to the remaining boulevard or common park land. This would have the effect of removing the buffer and cause all of the common park or boulevard to be owned by one owner. Second, it is also possible that all of the owners of the Lots could act in concert and grant one or more of the lots to the north of the Lots an access easement across the remaining boulevard or common park land. As to the former, the City would have to establish a public purpose and pay damages. As to the latter, the petition to the City and the granting of the public alley easement by each owner is an example of joint action which can modify the existing situation and create rights in others. If you discern that one of the owners of a Lot or an owner of property to the north is doing anything which would indicate that access has been granted or obtained over the common park or boulevard without the consent of the owners of the Lots or there is activity adverse to the use of the property as a common park or boulevard, you should take immediate action. Failure to take immediate action may create an estoppel situation whereby the failure to enforce your rights in a timely fashion may cause you to lose them. Mr. James W. Eppel, Jr. September 23, 1994 Page 3 If you have any questions or if I can provide you with any additional information, please call me. Yours very truly, Robert J. hristianson, Jr. RJC:rsr Enclosure IUC:22026 SUNNYSIDE ROAD 5\' 1\16\C\ 4219 4221 1 4229 4225 \\ %R0 45 ST. -C" W. 4133 4131 n UIai 4129 5 6'5000 FENCE 4200 4120 6 4202 BIT. 3.5' CHAIN LINK 14 4218 5' HOOD FEtICE CONST. LIMIT '1, 13 4216 55 "11.111 cmc. GAR 4211 5 LGAB. 0015014 2' BIT. DAY. _L :1011E HALL All tO O 2" CAR. c l:. 01 1 9 BIT. 6'HOOD FKC CONC. rewmorg CONC. & DEAD TREE THIS AREA REMOVE BUSHdS F 1 -- 01.1,7 -v- _m_LI;IGTEIE GA AU -_U o II\ I \\ 2 3 3 GAB. 3 5' CHA In LINK taK--- OIL 12 4214 4217 4 4209 11 6 10 4210 GAA I 4208 9 7 APPROXIMATE EDGE OF NEW CONST. coA;15 LINK MCC (4-atiaLl in = 30' 8.0 BOTTOW I' 6000 WALL 3.5' CHAIN LINE 16 GAA. COLIC. 4'8000 SIC '0511 BIT. CON. BIT. I. 15' SPFIUCE I 6'14000 FENCE 3 2 LAW KO ON STONE .11rALL BIT. I HOOD FENCE CONC. CONST. LIMIT MEllf $LACK 15 HED To reit-fp 4114 4204 BIT. CHAIN LINK 7' K001) 0050 I k—G-AT-1 11 4212 B 0 MUFT1211' 4206 4118 4116 COLIC IS' SPRUCES 0 1 I 4112 CONTRACTOR NOTES'. SUBCUT EXISTING ALLEY 11' AVERAGE DEPTH INSTALL 12'WIDE X B' CL: 5A AGG. BASE INSTALL WWIDE X 3' 2331 BIT. WEAR MAT JACKHAMMER OR COLTER WHEEL ALL JOINTS ALLE" TO HAVE 3' INVERTED CROWN _ _ —ONO • 1111 Co111-91.1 PARK OI EOL1LEVA FAY CASEHeArT COP..611.11k1A4 uOr/.-ti-i 6 LOTS 1-12,8(.00c I AmID /.76/4SA 6.1 OF LOT II, E O CITY'S CASEFIE4.4T MICR CONMOAJ PARI Of?. SOULEVARO EASC/4WT O wrijo pplik/e. koANAJAY EASEMEMT 6D.R161klAk-1.-Y SOu-rH 5) OF 110Y:74 20 OF 4415 3,Oce I ,4111> 5007H 14' D EASEmekrT OVEP PRIVATE ROADWAY M5E4fElfT copttl IS II') 140115 20' or Lor 111 LOCK IS) OF BLOCK IS)