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
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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
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