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HomeMy WebLinkAboutUntitled City of Oak Park Heights 14168 Oak Park Blvd. N• Box 2007.Oak Park Heights, MN 55082• Phone (651) 439-4439• Fax (651) 439-0574 March 5th, 2008 ATTENTION: OPH STAFF MEMBERS - SECURE MINI - STORAGE - - MEMORIAL AVE. THANK YOU 010n-vb fe ERIC JOHNSON CITY ADMINISTRAT R ' 3)0(re ECKBERG_ LAMMERS gni ATTORNEYS AT LAW Stillwater Office: 1809 Northwestern Avenue Writer's Direct Dial: (651)351-2118 Stillwater, Minnesota 55082 (651)439-2878 Fax(651)439-2923 Writer's E-mail: mvierling@eckberglammers.com Hudson Office: 2417 Monetary Boulevard Hudson, Wisconsin 54016 February 28, 2008 (715)386-3733 Fax(651)439-2923 PERSONAL & CONFIDENTIAL www.eckberglammers.com Eric Johnson City Administrator City of Oak Park Heights 14168 Oak Park Boulevard North Oak Park Heights, MN 55082 Re: City of Oak Park Heights v. Secure Mini Storage, et al. Court File No. CO-06-7138 Dear Eric: Following up on the meeting that we had with the Council the other night, I am writing this letter as a reminder to the City relative to this matter. Even though the current lawsuit has resulted in the City receiving an adverse ruling on the collection of its fees at this time, I do not read the Court's order as precluding the collection of these fees at a later time should Secure Mini Storage attempt to connect to additional services for the City of Oak Park Heights or expand a connection for those services already connected. Consequently, I would ask and suggest that you have the internal departments of the City review your process and protocols for tracking these matters and •_ e, both in the building department and in public utilities,as well as finance,be flag!-. so that if at - yltime they come back to the City for any type of conditional utility work or connec 'I ns,that the is e of the charges can be raised again at that time and collection can be pursued. If your ve any quest'; s on the matter,please feel free to contact me. Your. ve • y, 0001°.°— M. k J. Vierling MJV/sdb • ECKBERG, LAMMERS, BRIGGS, WOLFF 8 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation FEB-12-2418 14:15 FROM-WASHINGTON CT? COURT SCHEDULING 651 430 6300 T-681 P.002/012 F-285 . • District Court State of Minnesota Tenth Judicial District Washington County Court rite Number: 82-00-06-007138 Case Type: Civil Other/Misc. Notice of Entry of Judgment In Re: CITY OP OAK PARK HEIGHTS MEH vs.SECURE MINI STORAGE LIMITED PARTNERSHIP&PUBLIC STORAGE You are notified that judgment was entered on February 10, 2008. 17 7 Dated: February 11;2008 Christina M. Volkcrs Court Administrator By:— ------ -- Deputy Court Administrator Washington County District Court 14949-62nd St.N;PO Box 3802 Stillwater MN 55082 651-430-6263 cc: MARK J VIERLING TREVOR STEWART OLIVER FEB-12-2(08 14:15 FROM-WASHINGTON CTY COURT SCHEDULING 651 430 6300 T-681 P.003/012 F-285 File# STATE OF MINNESOTA F WASNiNGTON COUNTY DISTRICT COURT F DiTRICT COURT FEB x COUNTY OF WASHINGTON L1 0 2008 TENTH JUDICIAL DISTRICT ! _ k Case Type: CIVIL City of Oak Park Heights, a By COU T AbMINISTRA70R D Minnesota Municipal corporation, Deputy Plaintiff, ORDER vs. Court File No.'CO-06-7138 Secure Mini Storage, a Limited Liability Partnership and Public Storage, Inc., Defendants. On November 16, 2007, the above-entitled matter came before the Honorable Mary E. Hannon, Judge of District Court, at the Washington County Courthouse, Stillwater, Minnesota pursuant to the parties' cross-motions for summary judgment. Plaintiff was represented by Mark J. Vierling and Jennifer A. Nodes. Defendants were represented by Patrick J. Kelly. Based upon all the files, records, and proceedings herein, the Court hereby makes the following: ORDER 1. Defendants' Motion for Summary Judgment on Plaintiffs account stated and unjust enrichment claims is hereby GRANTED. 2. Plaintiff's Motion for Summary Judgment on its account stated and unjust enrichment claims is hereby DENIED. FEB-12-2008 14:15 FROM-WASHINGTON CTY COURT SCHEDULING 651 430 6300 T-681 P.004/012 F-285 3. Plaintiff's Complaint against Defendants Secure Mini Storage, LLP and Public Storage is hereby DISMISSED with prejudice. 4. The attached Memorandum of the Court is incorporated herein by reference. 5. The Washington County Court Administrator shall serve a true and correct copy of this Order and Memorandum by U.S. Mail upon counsel for the above-named parties and any pro se parties. There being no reason for delay, LET JUDGMENT BE ENTERED ACCORDINGLY. BY THE COURT: Signed at Chambers Stillwater, Minnesota This / day of , � �'/e , 2008 Honorabl ir- ary E. Hannon Judge of District Court Tenth Judicial District Pursuant b Rule 58,Rules of CM1 Procedure,I hereby certify that the above Order constitutes the judgment of this court. Christina .Volkers,Court Administrator Date:A • `t� 5]� B .' • A .;161 _ 2 FEB-12-20,08 14:15 FROM-WASHINGTON CTY COURT SCHEDULING 651.430 6300 T-681 P.005/012, F-285 • • MEMORANDUM City of Oak Park Heights v. Secure Mini Storage, et al. Court File No.: CO-06-7138 FACTS In their cross-motions for summary judgment, the parties agree that the following facts are not in dispute. In its Amended Complaint, the City of Oak Park Heights (hereinafter "Plaintiff'), seeks damages from Secure Mini Storage and Public Storage (hereinafter "Defendants") related to unpaid connection charges assessed by Plaintiff against Defendants for a municipal water, sewer and road improvement project. The necessity of the connection charges which are the subject of this lawsuit was established by Plaintiff in February 1991 when Plaintiff adopted Resolution 91-01-08, On July 28, 1998, Plaintiff passed Resolution 98-07-46 amending the city connection fee charges. Between 1998 and 1999, the property located at 5710 Memorial Avenue North was acquired by Plaintiff through annexation. To assist in the financing related to the water, sewer and road improvement project for the annexed area, Plaintiff approved the imposition of connection charges for municipal water, storm sewer and sanitary sewer services. The property located at 5710 Memorial Avenue North consequently became subject to the connection fee charges. Defendant Secure'Mini Storage owned and occupied the property located at 5710 Memorial Avenue North at that time. In late December 1998, Mr. Anthony Valvoulis, on behalf of Defendant Secure Mini Storage, wrote a letter to Plaintiff seeking clarification of the $102,714.00 in connection charges that were expected to be levied against the 5710 Memorial Avenue North property. On or around this time, Defendant Secure Mini Storage applied for a conditional use permit to build two additional storage buildings on the 5710 Memorial FEB-12-2008 14:15 FROM-WASHINGTON CTY COURT SCHEDULING 651 430 6300 T=681 P.006/012 F-285 Avenue North property, Plaintiff responded to Mr. Valvoulis' inquiry by letter dated January 11, 1999. On May 7, 1999, Mr. Valvoulis again wrote a letter to Plaintiff seeking clarification and an explanation of the $102,714.00 connection charge. Plaintiffs Engineer and Architect firm responded to Mr. Valvoulis,: by letter, dated August 3, 1999 with an explanation and breakdown of the connection charges. Mr, Valvoulis did not submit payment to Plaintiff for the connection charge after receiving the August 3, 1999 letter. The parties agree that they never reached an express agreement regarding the amount owed to Plaintiff for connection charges related to the property located at 5710 Memorial Avenue North. On September 29, 1999, Plaintiff issued a conditional use permit to Defendant Secure Mini Storage for the property located at 5710 Memorial Avenue North; however, payment of the outstanding $102,714.00 was not requested or required from Defendant Secure Mini Storage at the time the permit was approved and/or issued by Plaintiff. Pursuant to Plaintiffs Resolution Number 98-07-46, effective August 1, 1998, "no connection shall be made to any municipal utility system until such time as the connection fees as calculated and determined by the office of the City Engineer have been collected." However, on February 7, 2000, the 5710 Memorial Avenue North property was connected to municipal water., sanitary sewer and storm sewer services even though Defendant Secure Mini Storage had not made payment of the $102,714.00 connection charge. In October 2004, Defendant Public Storage acquired Defendant Secure Mini Storage and its physical assets, including the property located at 5710 Memorial Avenue North. In March 2005, Plaintiff conducted an internal audit of its accounting 4 FEB-12-2008 14:15 FROM-WASHINGTON CTY COURT SCHEDULING 651 430 6300 T-681 P.007/012 F-285 records and learned that Defendant Secure Mini Storage had never made the $102,714.00 payment related to the connection charges from 1998. To date, Defendants have not paid the $102,714.00 connection charge. The parties could not reach agreement as to whether Defendants were required to submit payment of the $102,714.00 connection charge to Plaintiff and this lawsuit ensued in 2006. Defendants accepted service of Plaintiffs Amended Complaint on October 13, 2006. Plaintiffs Amended Complaint was filed with the Court on November 2, 2006. Defendants' Answer has never been filed with the Court. On October 17, 2007, Defendants filed their Notice of Motion and Motion for Summary Judgment requesting that the Court dismiss Plaintiff's claims pursuant to Rule 56 of the Minnesota Rules of Civil Procedure. On October 19, 2007, Plaintiff filed its Notice of Motion and Motion for Summary Judgment requesting that the Court enter judgment in its favor and against Defendants.' LAW AND ANALYSIS 1. Summary Judgment Standard Summary judgment is appropriate if there is no genuine issue as to any material fact and if either party is entitled to judgment as matter of law. Minn. R.' Civ. P. 56.03. • . While the party moving for summary judgment must demonstrate that no genuine issue of material fact exists, Theile v. Stich, 425 N.W.2d 580, 583 (Minn. 1988), the In its Motion, Plaintiff argues that it is entitled to judgment as a matter of law relative to its request for payment of the $102,714.00 because the connection charges were authorized by statute and imposed in a just and equitable manner. The Court declines to address this argument for two reasons. First, neither of Plaintiff's claims in Its Amended Complaint requires the Court to make a determination of whether the connection charges were just and equitable. Second, it is not clear that Defendants have ever formally challenged whether the connection charges are just and equitable as Defendants'Answer was never filed with the Court. 5 FEB-12-2008 14:16 FROM-WASHINGTON CTY COURT SCHEDULING 651 430 6300 T-681 P.008/012 F-285 nonmoving party carries the burden of presenting facts beyond his or her averments or denials showing that there is a genuine issue for trial. Minn. R. Civ. P. 56.05. The trial court, in reviewing a motion for summary judgment, may not weigh the evidence or make factual determinations. Fairview Hosp. & Health Care Serv. v. St. Paul Fire &Marine Ins. Co., 535 N.W.2d 337, 341 (Minn. 1995). A genuine issue may exist even if it appears unlikely that the opposing party will prevail at trial. City of Coon Rapids v. Suburban Eng'g, Inc., 167 N.W.2d 493, 497 (Minn. 1969). However, where "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial," DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A material fact is one that will affect the result or outcome of the case, depending upon its resolution. Zappa v. Fahey, 245 N.W.2d 258, 259-60 (Minn. 1976). 2. Account Stated Plaintiff argues that it is entitled to judgment as a matter of law on its account stated claim because. Defendants have impliedly assented to the $102,714.00 connection charge through their actions. Defendants argue that they are entitled to summary judgment on Plaintiffs account stated claim because there are no facts upon which Plaintiff can show that there was an account stated between the parties. An account stated is an agreement that a statement of account between the parties is correct. Meagher v. Kavli, 88 N.W.2d 871, 880 (Minn. 1958). "In stating an account, two elements are necessary: there must be a mutual examination of the claims 6 FEB-12.2908 14:16 FROM-WASHINGTON CTY COURT SCHEDULING 651 430 6300 T-681 P.009/012 F-285 of each other by the parties; and that there be a mutual agreement between them as to the correctness of the allowance of the respective claims and the balance." Id. at 881. The minds of the parties must meet upon the amount of the claim allowed. Id. The agreement may be implied as well as express, and it may be inferred where the statement is rendered by one party and acquiesced in by the other. Id. at 880. Where the debtor renders a statement of the account and the creditor protests that it is incorrect, there is no agreement and no account stated. Id. For instance, if the account is rendered by one party, and the other party makes no objection to it, after examination, it may be legitimately inferred that the receiving party was satisfied with the account as rendered. Id. at 881, Likewise, if the account is made by one party, mailed to the other, and the latter does not communicate objections within a reasonable time, it may be Inferred that the receiving party was satisfied with the account. Id. Based on the record presented to the Court, it is clear that there is no account stated between the parties. There is no dispute that no express agreement was ever made as to the connection charge owed to Plaintiff by Defendants. It is undisputed that Mr. Valvoulis, on behalf of Defendant Secure Mini Storage, twice sought clarification and explanation of the connection charge. Such actions by Mr. Valvoulis unequivocally negate any mutual agreement to the connection charge. Plaintiff argues that Defendants impliedly acquiesced to the connection charge by applying for and accepting a conditional use permit knowing that payment of the connection charge was required at the time of the approval of the permit. The Court is not persuaded by Plaintiffs argument. Defendants' acts of applying for and.receiving a Nconditional use permit are insufficient as a matter of law to evince a promise by Defendants to pay. .7 FEB-12-2008 14:16 FROM-WASHINGTON CTY COURT SCHEDULING 651 430 6300 T-881 P.010/012 F-285 Plaintiffs act of issuing a conditional use permit to Defendants without requiring G rng payment, in contradiction to its own policy, does not amount to implied acquiescence by Defendants to the connection charge. Based upon these facts, the Court finds that it is undisputed that an account was never stated. Therefore, Plaintiff's Motion for Summary Judgment on its account stated claim is DENIED and Defendants' Motion for Summary Judgment on Plaintiffs account stated claim is GRANTED. 3. Unjust Enrichment Plaintiff argues that it is entitled to summary judgment on its unjust enrichment claim because it is clear that the parties' relationship is not government by a contract, Defendants' failure to pay the connection charge amounts to unlawful conduct and because Defendants have received a benefit by being connected to the municipal infrastructure. Defendants assert that they are entitled to summary judgment and that the Court must dismiss Plaintiff's unjust enrichment claim because Minnesota Statutes section 444.075, the enabling statute, does not impose personal liability upon Defendants for unpaid connection charges. In relevant part, Minnesota Statutes section 444.075, subdivision 3e provides the following: - [t]he governing body may make the charges a charge against the owner, lessee,occupant or all of them and may provide unpaid charges to the county auditor with tax s against the property served for collection as other taxes are collected.2 2 Minnesota Statutes section 444.075 was amended in 2004. The above-cited portion of section 444.075 was renumbered by the amendments, but was not substantively changed. 8 FEB-12=2208 14:16 FROM-WASHINGTON CTY COURT SCHEDULING 651 430 6300 T-681 P.011/012 F-285 A claim for unjust enrichment is an equitable claim that arises when one party gains a benefit from another party illegally or unlawfully. Midwest Sports Mktg., Inc. v. Hillerich & Bradsby of Canada, Ltd., 552 N.W.2d 254, 268 (Minn. App. 1996). However, "equitable relief cannot be granted where the rights of the parties are governed by a valid contract." Id. (quoting U.S. Fire Ins. Co. v. Minn. State Zoological Bd., 307 N.W.2d 490, 497 (Minn.1981)). In order to establish a claim for unjust enrichment, "the claimant must show that another party knowingly.received something of value to which he was not entitled, and that the circumstances are such that it would be unjust for that person to retain the benefit." Schumacher v. Schumacher, 627 N.W.2d 725, 729 (Minn. App. 2001). After a review of the pleadings, exhibits, and arguments regarding Plaintiff's claim for unjust enrichment, the Court concludes that summary judgment, in favor of Defendants, on Plaintiff's unjust enrichment claim is appropriate. Based upon the clear language of the enabling statute, section 444.075, subdivision 3e, there is no personal liability on the part of Defendants for unpaid connection charges.3 Consequently, Defendants could not have acted unlawfully or illegally in not paying the $102,714.00 to Plaintiff for the connection charge and Plaintiffs unjust enrichment claim fails as a matter of law. Therefore, Plaintiff's Motion for Summary Judgment with regard to its claim for unjust enrichment is DENIED and Defendants' Motion for Summary Judgment on Plaintiff's unjust enrichment claim is GRANTED. 3 See Independent School Dist. of White Bear Lake v. City of White Bear Lake, et aL,292 N.W. 777, 781- 82 (Minn. 1940). •9 FEB-121008 14:16 FROM-WASHINGTON CTY COURT SCHEDULING 651 430 6300.. T-681 P 012/012 F-285 4. Doctrine of Laches Both parties submitted argument to the Court regarding Defendants' that Plaintiff's claims are barred by the doctrine of laches. Having allegation granted Defendants' Summary Judgment Motion and dismissed Plaintiffs Amended Com declines to address those arguments. plant, the Court CONCLUSION For the above stated reasons, Plaintiffs Motion for Summary Judgment on its claims for account stated and unjust enrichment is hereby DENIED. Defendants' Motion for Summary Judgment in their favor and against Plaintiff is hereby Plaintiff's Complaint against Defendants shall be DISMISSED GRANTED. with prejudice. The Court Administrator shall immediately enter judgment accordingly. 9Y• M.E.H. 10 ECKBERGA, LAMMERS ATTORNEYS AT LAW Stillwater Office: 1809 Northwestern Avenue Stillwater, Minnesota 55082 (651)439-2878 Writer's Direct Dial: (651)351-2102 Fax(651)439-2923 Writer's Email: Hudson Office: jnodes@eckberglammers.com 2417 Monetary Boulevard Hudson, Wisconsin 54016 November 9, 2007 (715) 386-3733 Fax(651)439-2923 www.eckberglammers.com Mr. Trevor S. Oliver Kelly&Fawcett, P.A. 444 Cedar Street, Suite 2350 St. Paul,MN 55101 Re: City of Oak Park Heights v. Secure Mini Storage Limited Partnership and Public Storage Limited Partnership and Public Storage,Inc. Court File No. 82-00-06-7138 Dear Mr. Oliver: Enclosed herewith and served upon you by U.S. Mail please find Plaintiff's Statement of the Case regarding the above-referenced matter. Yours very truly, Jennifer A. Nodes JAN/sdb Enclosure cc: Eric Johnson ECKBERG, LAMMERS, BRIGGS, WOLFF VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning I Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation ECKBERG 44,41, LAMMERS rAt" ATTORNEYS AT LAW Stillwater Office: 1809 Northwestern Avenue Stillwater, Minnesota 55082 (651)439-2878 Writer's Direct Dial: (651)351-2102 Fax(651)439-2923 Writer's E-mail: Hudson Office: jnodes@eckberglammers.com 2417 Monetary Boulevard Hudson, Wisconsin 54016 November 9, 2007 (715) 386-3733 Fax(651)439-2923 www.eckberglammers.com Court Administrator Civil Division Washington County Government Center 14949 - 62nd Street North P.O. Box 3802 Stillwater, MN 55082 Re: City of Oak Park Heights v. Secure Mini Storage Limited Partnership and Public Storage,Inc. Court File No. 82-00-06-7138 Dear Administrator: Enclosed herewith for filing please find Plaintiff's Statement of the Case and Affidavit of Service by Mail regarding the above-referenced matter. Yours very truly, Jennifer A. Nodes JAN/sdb Enclosure cc: Eric Johnson ECKBERG, LAMMERS, BRIGGS, WOLFF 6 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/ Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation s STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: 14/Other Civil City of Oak Park Heights, Court File No: CO-06-7138 Minnesota municipal corporation, Judge: Mary E.Hannon Plaintiff, PLAINTIFF'S STATEMENT OF THE CASE v. Secure Mini Storage Limited Partnership and Public Storage, Defendant. 1. All parties have been served with process. The case is at issue and the Plaintiff, City of Oak Park Heights submits this Statement of the Case. 2. Estimated trial time: 3 days hours(estimates less than a day must be stated in hours). 3. Court trial is provided for in this case. 4. Concise statement of the case including facts Plaintiff(s) intend to prove and legal basis for claims: In 1991, the Plaintiff, City of Oak Park Heights, established utility connection fee charges in relation to sanitary sewer, water main, and storm sewer, the basis of which were calculated using square foot acreage. These connection charges were reviewed periodically, and in July of 1998, were $2,310.00 per acre for sanitary sewer, $4,010.00 per acre for municipal water, and $5,080.00 for storm sewer. Sometime between 1998 and 1999, the Plaintiff acquired property located at 5710 Memorial Avenue North through annexation, and thereafter approved a municipal utility improvement project for the area. To assist in financing the project, the Plaintiff approved the imposition of connection charges for municipal water, storm sewer, and sanitary sewer. In late December of 1998, the City received a letter from Mr. Anthony Valvoulis, on behalf of Secure Mini Storage, requesting information relative to the fee of$102,714.00 being assigned to the property located at 5710 Memorial Avenue. The letter sought clarification on the amounts and timing of the fees that were expected to be levied against the property, in order for Mr. Valvoulis to make a sound decision in regards to the business' budget and building plans. After receiving a response from the Plaintiff, Mr. Valvoulis once again inquired as to the basis for the fee. The inquiry specifically addressed the time period in which the connection fee would have to be paid. The Plaintiff responded to the inquiry, outlining the breakdown for the fees, and explaining to Mr. Valvoulis that the A fees were computed using previous comprehensive studies estimating the cost for major trunk facilities to serve the entire City, divided by the portion for which each property represented in regards to acreage. The Plaintiff further explained that the fees would be due upon connection. The City received no response from Mr. Valvoulis. On September 29, 1999, a permit was issued for the Secure Mini Storage site located at 5710 Memorial Avenue, although no connection fee was paid. On February 7, 2000, the property was connected to municipal water, sanitary sewer, and storm sewer. The connection fee remained outstanding. Although Secure Mini Storage received the benefit of connection on February 7, 2000, they failed to compensate the Plaintiff for such benefit until, on March 10, 2005, after conducting an internal audit revealing the missed payment, the Plaintiff initiated a letter to Secure Mini Storage advising of the failure and requesting payment in full. The Plaintiff learned shortly thereafter that Secure Mini Storage had been acquired by Public Storage in October of 2004. The letter advising of such also indicated that the connection fee was being contested on the basis that they were calculated incorrectly and that the doctrine of laches applies. It is the position of the Plaintiff that the connection charges imposed upon the Defendant were calculated in a manner authorized by statute, and were just and equitable. Additionally, it is the position of the Plaintiff that the Defendant assented to the state amount of the connection charge and was unjustly enriched by the subsequent connection to services provided by the Plaintiff. 5. Concise statement of the case indicating facts Defendant(s) intend to prove and legal basis for defense and counterclaim: See Defendant's Statement of the Case. 6. List the names and addresses of witnesses known to either party that either party may call. Indicate the party who expects to call the witness and whether the party intends to qualify that witness as an expert. (Attach additional sheets if necessary.) Party Name/Address Please Indicate if Of Witness Expert Witness Plaintiff Eric Johnson City Administrator City of Oak Park Heights Plaintiff Dennis Postler City Engineer Bonestroo 2335 West Hwy. 36 St. Paul,MN 55113 Plaintiff Judy Holst Finance Director City of Oak Park Heights 7. In claims involving personal injury, attach a statement by each claimant, whether by complaint or counterclaim, setting forth a detailed description of claimed injuries and an itemized list of special damages as required by the rule. Indicate whether parties will exchange medical reports. N/A 8. In claims involving vehicle accidents, attach a statement describing the vehicles with information as to ownership and the name of insurance carriers, if any. N/A [If more space is needed to add additional information or parties, attach a separate sheet typed in the same format.] The undersigned counsel certify that the foregoing is true and correct. ECKBERG,LAMMERS,BRIGGS, WOLFF&VIERLING,P.L.L.P. Dated:November �' ,2007 By: / J fer A. odes E�� csq. (#0352172s) Attorneys for Plaintiff Suite 110 1809 Northwestern Avenue Stillwater,Minnesota 55082 (651)439-2878 Kelly & Fawcett, P.A. ATTORNEYS AT LAW ■Trevor S. Oliver OF COUNSEL: McGUIGAN&HOLLY,PLC toliver@kellyandfawcett.com November 6, 2007 I,G YOUR Mark Vierling i \ FORMATION Eckberg, Lammers,Briggs Wolff&Vierling,PLLP 1809 Northwestern Avenue, Suite 110 Stillwater, MN 55082 RE: ADR in City of Oak Park Heights v. Secure Mini Storage Memorandum in Response to Plaintiff's Motion for Summary Judgment Dear Mr. Vierling, Enclosed herewith is the Memorandum in Response to Plaintiff's Motion for Summary Judgment. I have filed the original copy with the Court. Please contact me if you have any questions. Respectfully yours, KELLY & FAWCETT, P.A. latetice, Trevor S. Oliver TS /sd) Cc: Amar Kharouf,PS 444 CEDAR STREET,SUITE 2350• SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781• FACSIMILE 651-223-8019 www.kellyandfawcett.com Kelly & Fawcett, P.A. ATTORNEYS AT LAW OF COUNSEL: •Trevor S. Oliver McGUIGAN&HOLLY,PLC toliver@kellyandfawcett.com November 6, 2007 Court Administrator Washington County Government Center 14949 162nd Street N. Stillwater, MN 55082 RE: Oak Park Heights v. Secure Mini Storage, Court File No.: 83-00-06-7138 Dear Sir/Madame: Enclosed herein for filing please find the Memorandum in Response to Plaintiff's Motion for Summary Judgment on the above-entitled matter. Also enclosed, please find a check in the amount of$55.00 for our response to the Plaintiff's Motion. Please feel free to contact me with any questions or concerns in this regard. Respectfully yours, KELLY & FAWCETT, P.A. __ Trevor S. Oliver TSO sd Enc. Response to Motion Affidavit of Service 444 CEDAR STREET,SUITE 2350• SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 • FACSIMILE 651-223-8019 www.kellyandfawcett.com STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: 14—Other Civil City of Oak Park Heights, a Court File No. 82-00-06-7138 Minnesota municipal corporation, Plaintiff, MEMORANDUM IN RESPONSE TO vs. PLAINTIFF'S'S MOTION FOR SUMMARY JUDGMENT Secure Mini Storage Limited Partnership and Public Storage, Inc., Defendant. INTRODUCTION Plaintiff and Defendant have both moved for summary judgment on the outstanding claims of account stated and unjust enrichment raised by Plaintiff. In response to Plaintiff's motion materials, Defendant refers the court to its Memorandum and materials supporting Defendant's motion for summary judgment regarding the issues of unjust enrichment and laches. In this response to Plaintiff's motion, Defendant responds to Plaintiff's contrived attempts to get around the clear requirement for an acquiescence to the amount under the doctrine of accounts. In essence, Plaintiff has conceded its case when it says in its Memorandum, "the City and the Defendant admittedly never reached an express agreement in regards to the amount of monies due." Plaintiff's Mem. at 9. Judgment as a matter of law is appropriate in this case and the Court should award that judgment to Defendants on both of Plaintiff's claims. ARGUMENT A. The City's Failure to Collect its Charges Before Issuing a Permit Does Not Imply Defendants' Acquiescence to the Debt. Having admitted that the City and Defendants never reached express agreement on the correctness of the debt, Plaintiff seeks to create an implication of acquiescence to the debt on the part of Secure Mini Storage and/or Public Storage. Plaintiff curiously chooses the City's issuance of a permit to Secure Mini Storage as the conduct implying acceptance of the debt. Implied acquiescence requires Plaintiff to show conduct on the part of Secure Mini Storage which would reasonably imply a promise to pay. See Kenyon Co. v. Johnson, 174 N.W. 436 (Minn. 1919); American Druggists, Inc. v. Thompson Lumber Co., 249 N.W.2d 569, 573 (Minn. App. 1984). Plaintiff has no evidence to make such a showing. However it may choose to spin the event, the City issued building permits to Secure Mini Storage in September, 1999 without collecting these fees, in contradiction to its policy. There is no correspondence or conversation attached to the building permit issue that would allow an implication of a promise to pay. According to City policy, as stated in Mr. Anderlik's letter, a promise to pay later would be inadequate to obtain a permit, anyway—the City required cash payment "at the time the building permit is issued." Plaintiff's Memo. at Ex. E. The City allowed no installment payments or payments over time. Id. Thus, if Secure Mini Storage truly accepted Mr. Anderlik's reasoning and acquiesced to the debt, they would have come to City Hall with a check for the full amount, presuming that without payment, there would be no permit. Since that didn't happen, there is no conceivable way that Secure Mini Storage's receipt of a building permit implied a promise to pay the debt. Other events further indicate that there was no connection between the City's actions and any promise by Secure Mini Storage to pay a debt. Secure Mini applied for conditional use 2 permits from the City earlier in 1999, following its first set of objections about the amount of the connection charges. Plaintiff's Memo. at Ex. D. Secure Mini Storage obtained approval of the conditional use permits from the City while still questioning the amount of the debt in question here. Id. Later, in 2000, the City apparently connected the Secure Mini Storage property without any further contact or correspondence with Secure Mini Storage, despite the clear directive in the City's ordinance that "no connection shall be made to any municipal utility system until such time as the connection fees ... have been collected." Plaintiff's Memo. at B. Again, applying City policy, it would have been useless for Secure Mini Storage to make promises to pay. On none of the three occasions in which we would normally expect the City to demand payment before action did Secure Mini Storage make statements or conduct itself in a way which would imply acceptance of the stated amount. While not argued here, Plaintiff may argue that Secure Mini's retention of the statement for a period of years amounts to implied acquiescence of the debt. This argument will fail because Secure Mini made early objections to the debt. Only retention without questioning the correctness of the charge can amount to acquiescence if other circumstances are present. American Druggists at 573. However, the retention of the statement must be accompanied by other circumstances indicating the party's intent to acquiesce to the debt. Meagher v. Kavli, 88 N.W.2d 871, 880 (Minn. 1958). In fact, "mere retention of the bill in silence, unaccompanied by other circumstances, should seldom, if ever, be held to be an acceptance," Id. at 882. Thus, because Secure Mini objected to the $102,417 connection charge in late 1998, and never agreed to an amount, Plaintiff cannot assert that years of silently refusing to pay is an acquiescence to the debt. In the end, there are no facts available which the Plaintiff can use to establish an account stated. The Court should grant judgment to Defendants on that count. 3 B. The City's Charge to Defendants' Property is Not Just and Equitable. While the issue is not directly raised by Plaintiff's Complaint, Defendants maintain that the connection charge sought in the case was not derived in a just and equitable manner. As Plaintiff acknowledges, a city's authority to demand connection charges is limited by the requirement that those charges be "just and equitable." Minn. Stat. § 444.075, subd. 3 (2006). Plaintiff has always used an acreage-based method of calculating connection charges. Plaintiff's Memo., Postler Aff. Prior to 2006, Plaintiff's calculation method made no distinctions among property uses or their impact upon system usage. Plaintiff Memo at Ex. A and B. Defendants operate a mini-storage business on the properties in question, a land use which has minimal need for municipal water and sanitary sewer, and the need is only on one of the three lots used by Defendants for storage units. Plaintiff Memo. at Ex. C and D. The use of an acreage charge without regard for the type of use leads to a drastically inflated result for uses like Defendants'. The Legislature agreed with this reasoning when, in 2004, it amended § 444.075 to prevent cities from using square footage or area-based charges when computing sanitary sewer charges. Minn. Stat. § 444.075, subd. 3(a)(4) (2006). While recognizing that the restriction was not in the statute when Plaintiff originally developed these charges, Defendant asserts that the amendment is a clear and convincing statement that acreage-based charges are not "just and equitable" for sanitary sewer and municipal water connection charges. The 2004 amendments served to clarify the meaning of "just and equitable," and that clarification should be applied to any current dispute over the validity of connection charges. CONCLUSION No facts exist which would allow Plaintiff to establish its claim of an account stated, and as argued in Defendants' motion for summary judgment, Plaintiff is not entitled to quasi- contractual relief. The Plaintiff plainly and simply failed to follow the directives of the enabling 4 legislation, at both the city and State levels, which required it to contract with landowners and collect charges prior to connection. As a result, both of its causes of action against Defendants must fail, and the Court should grant Defendants judgment as a matter of law on all claims against them. Dated: November 7, 2007 KELLY AND FAWCETT,P.A. -f Trevor S. Oliver (#304888) Attorney for Defendants 2350 UBS Plaza 444 Cedar Street Saint Paul, MN 55101 (651) 224-3781 5 ECKBERG • LAvL�ERS Stillwater Office: ATTORNEYS AT LAW 1809 Northwestern Avenue Stillwater, Minnesota 55082 • (651)439-2878 Fax(651)439-2923 Writer's Direct Dial: (651)351-2118 Hudson Office: Writers Email: 2417 Monetary Boulevard mvierling@eckberglammers.com 2007 Hudson,Wisconsin 54016 October 18, (715) 386-3733 Fax(651)439-2923 www.eckberglammers.com Via Courier Mr. Trevor S.Oliver Kelly&Fawcett,P.A. 444 Cedar Street, Suite 2350 C 0 py St. Paul,MN 55101 Re: City of Oak Park Heights v. Secure Mini Storage Limited nd icedublP rtnersStoragehilnc. and Public Storage Limited Partnership a Court File No. 82-00-06-7138 Dear Mr. Oliver: Enclosed herewith and served upon you personally please find the following documents in regards to the above-referenced matter: 1. Plaintiff's Notice of Motion and Motion for Summary Judgment; 2. Plaintiffs Memorandum Of Law In Support Of Motion For Summary Judgment; 3. Affidavit Of Judith Hoist In Support Of Motion For urn/filar u gnnent; and, 4. Affidavit Of Dennis M. Postler In Suppo •f Motion For Summary Judgment. • • Yours very trul Mark J. Vierling MJV/sdb Enclosure cc: . Eric Johnson ECKBERG, LAMMERS, BRIGGS, WOLFF Fh VIERLING, PLLP Family Law i Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning! Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation ECKBERG LAMMF,RS ATTORNEYS AT LAW Stillwater Office: 1809 Northwestern Avenue Writer's Direct Dial: Stillwater, Minnesota 55082 (651)351-2118 (651)439-2878 Fax(651)439-2923 Writer's E-mail: mvierling@eckberglammers.com Hudson Office: October 18, 2007 2417 Monetary Boulevard Hudson, Wisconsin 54016 (715)386-3733 Court Administrator Fax(651)439-2923 Civil Division www.eckberglammers.com Washington County Government Center 14949 - 62nd Street North P.O. Box 3802 C 0 y Stillwater, MN 55082 Re: City of Oak Park Heights v. Secure Mini Storage Limited Partnership and Public Storage,Inc. Court File No. 82-00-06-7138 Dear Administrator: Enclosed herewith for filing in the above-referenced matter please find the following documents: 1. Plaintiff's Notice of Motion and Motion for Summary Judgment; 2. Plaintiff's Memorandum Of Law In Support Of Motion For Summary Judgment; 3. Affidavit Of Judith Holst In Support Of Motion For S • •, . -.. - nt; and, 4. Affidavit Of Dennis M. Postler In Support Of Moti• - or Summary J •gment. Also enclosed please find this firm's check in the am• nt of$55.00 for e motion filing fee. Yours ery t , Mark J. Vierling MJV/sdb Enclosure cc: Eric Johnson ECKBERG, LAMMERS, BRIGGS, WOLFF VIERLING, PLLP Family Law/ Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT City of Oak Park Heights, a Case Type: Minnesota municipal corporation, Court File No: C0-06-7138 Judge: Mary E. Hannon Plaintiff, v. NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Secure Mini.Storage Limited Partnership and Public Storage, Defendant. TO: THE DEFENDANT ABOVE-NAMED, SECURE MINI STORAGE LIMITED PARTNERSHIP, AND PUBLIC STORAGE, AND ITS ATTORNEY, TREVOR S. OLIVER, ESQ., KELLY AND FAWCETT, P.A., 444 CEDAR STREET, SUITE 2350, ST. PAUL, MINNESOTA, 55101. PLEASE TAKE NOTICE, that on the 16th day of November, 2007 at 9:00 o'clock a.m., or as soon thereafter as counsel can be heard, at the Washington County Government Center, Stillwater, Minnesota, before the Honorable Mary E. Hannon, Judge of District Court, the Plaintiff will move the Court for an order as follows: 1. Finding that the Secure Mini Storage Limited Partnership and Public Storage, ("Defendant") is the owner of certain real property located at 5710 Memorial Avenue North, in the City of Oak Park Heights, County of Washington, State of Minnesota, legally described as follows: Kern Center 2nd Addition Lot-008 Block-002, P.I.D. 0602920210004. 2. Finding that the above-referenced property was connected to, and has subsequently received the benefit from, municipal water, sanitary sewer and storm sewer services by the City of Oak Park Heights ("Plaintiff'), since on or about February 7, 2000. 3. Finding that the Plaintiff has the statutory authority to charge, and has adopted, reasonable fees for the connection to municipal water, sanitary sewer and storm sewer utilities pursuant to Minnesota Statute § 444.075, and has maintained this authority since the Defendant's connection on or about February 7, 2000. 4. Finding that Plaintiff charged the reasonable fee of$ 102,714.00 to Defendants for the connection to, and subsequent use of, municipal water, storm sewer and sanitary sewer utilities for the benefit of the Property, since on or about February 7, 2000. 5. Finding that due to a clerical oversight, no connection charges were collected at the time of initial connection,but were subsequently discovered as unpaid in 2005. 6. Finding that the Plaintiff contacted the Defendant and has made reasonable efforts to resolve the matter of the unpaid connection fees. 7. Finding that the Defendant has had the benefit of connection to the city utilities and has not paid the fees prescribed by the Plaintiff for utility connection. 8. Finding that Plaintiff is entitled to damages in the amount of$102,714.00, plus interest as allowed by law, and Plaintiff is entitled to recover its costs and disbursements incurred in this matter. This motion is based upon: 1. Memorandum of Law in Support of Motion for Summary Judgment; 2. Minnesota Statute § 444.075; 3. The affidavit of Judy Holst, Deputy Clerk Finance Director for the City of Oak Park Heights; 5. The affidavit of Dennis M. Postler, City Engineer for the City of Oak Park Heights appending thereto documents certified to by the City as records within its official files.' All responsive pleadings shall be served and mailed to or filed with the Court Administrator no later than nine (9) days prior to the scheduled hearing. The Court may, in its discretion,disregard any responsive pleadings served or filed with the Court Administrator less than five(5)days prior to such hearing in ruling on the motion or matter in question. ECKBE; : AMMERS,BRIGGS, W. FF&VIERLING,P.L. . Dated: /P, 2007. By: Mark J. Vierling, Esq. ,... Attorney I.D. 112823) (7)aziy/A a-7?etrh./2-) Jennifer A.Nodes Esq. Attorney I.D. 0352172 Attorneys for Plaintiff City of Oak Park Heights 1809 Northwestern Avenue Stillwater, Minnesota 55082 (651)439-2878 • Documents No. 1 and 2,being the 1995 and 2006 Environmental Impact Statements,were authored by the Minnesota Department of Transportation and approved by that department,the Wisconsin Department of Transportation and the Federal Highway Works Administration. ACKNOWLEDGMENT Pursuant to Minn. Stat. §549.211,the party or parties represented by the undersigned attorneys acknowledge(s) that costs, disbursements, and reasonable attorney and witness fees may be awarded to the opposing party or parties for actions in bad faith; the assertion of a claim or a defense that is frivolous and that is costly to the other party; the assertion of an unfounded position solely to delay the ordinary course of the proceedings or to harass; or the commission of a fraud upon the Court. ECKBERG,LAMMERS,BRIGGS, WOLFF&V '+ +G, '. .P. Dated: 2007. Y: 111101 Mark .Vierling, sq. ) Attorn,_..for Plaintiff Suite 110 1809 Northwestern Avenue Stillwater,Minnesota 55082 (651)439-2878 c DI STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT City of Oak Park Heights,a Case Type: Minnesota municipal corporation, Court File No: CO-06-7138 Judge: Mary E. Hannon Plaintiff, v. MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR Secure Mini Storage Limited Partnership SUMMARY JUDGMENT and Public Storage, Defendant. INTRODUCTION Plaintiff City of Oak Park Heights submits this Memorandum of Law in support of its Motion for Summary Judgment. Based upon the pleadings and affidavits submitted and the following legal arguments and authorities, summary judgment is clearly warranted and Plaintiff respectfully requests that its Motion for Summary Judgment be granted. STATEMENT OF MATERIAL FACTS NOT IN DISPUTE This case centers upon the imposition of connection fees by the Plaintiff City of Oak Park Heights ("City") and the collection of such fees imposed upon the Defendant. Relevant to these proceedings, the connection charges which are subject to dispute in this matter were established in the City of Oak Park Heights in February, 1991, when the City adopted Resolution 91-01-08. (See Exhibit"A" attached hereto and incorporated by reference.) The utility connection charges were divided by sanitary sewer, water main, and storm sewer, and were calculated based on square foot acreage. The schedule was reviewed periodically at first, then annually starting in 1998. (See Exhibit "A"to Affidavit of Dennis M. Postler in Support of Motion for Summary • Judgment.) On July 28, 1998, the City passed Resolution 98-07-46, modifying and amending the city connection charges to $2,310.00 per acre for sanitary sewer, $4,010.00 per acre for municipal water, and$5,080.00 per acre for storm sewer. (See Exhibit"B" attached hereto and incorporated by reference.) Sometime between 1998 and 1999,the property located at 5710 Memorial Avenue North was acquired by the City through annexation via Order from the Minnesota Municipal Board. Following the acquisition of this property, the City approved a municipal utility improvement project for the area. In order to assist in the financing related to the improvement project,the City approved of the imposition of connection charges for municipal water, storm sewer, and sanitary sewer. The property at 5710 Memorial Avenue North,therefore,became subject to the connection fee charges authorized under City Resolution 98-07-46. In late December of 1998, the City received a letter from Mr. Anthony Valvoulis, on behalf of Secure Mini Storage, requesting information relative to the fee of$102.714.00 being assigned to the Secure Mini Storage site located at 5710 Memorial Avenue North. (See Exhibit"C" attached hereto and incorporated by reference.) The letter sought clarification on the amounts and timing of the fees that were "expected"to be levied against Secure Mini Storage pursuant to the improvement project, in order for Secure Mini Storage to "make a sound decision" in regards to the business' 1999 budget and building plans. On May 7, 1999, after receiving a response from City officials, Mr. Valvoulis sent a letter to the City of Oak Park Heights requesting further clarification on the basis for the connection charge of$102,714.00. (See Exhibit"D" attached hereto and incorporated by reference). The inquiry specifically addressed the time period in which the connection fee would have to be paid. Mr. Valvoulis followed this request with a subsequent letter and request on July 25, 1999, once again reiterating his desire to understand why the 2 Secure Mini Storage site was subject to the connection charge of$102,714.00. On August 3, 1999, the City responded to Mr. Valvoulis' letter, outlining the breakdown of the $102,714.00 connection charge for the facility's connection to sanitary sewer, storm sewer, and municipal water. (See Exhibit"E" attached hereto and incorporated by reference.) The response specifically addressed the process used to determine the connection charge, indicating that"The acreage charge rates were computed in previous comprehensive studies by estimating the cost for the major trunk facilities to serve the entire City of Oak Park Heights divided by the area to be served by these improvements."The letter advised Mr. Valvoulis that the "combination of connection charge and the estimated assessments for the Mini Storage site results in a cost of just under 39 cents per square foot of land area which is similar to or less than most other suburban costs for utility service to commercial land uses." The letter further advised Mr. Valvoulis that these charges were being applied in a uniform manner across all development entities within the City of Oak Park Heights, and that it was the opinion of the City Engineer, the drafter of the letter, that the charges were fair and equitable for the services provided. The City received no subsequent response from Secure Mini Storage in regards to the connection charges, leaving the City to believe that they had been satisfied with the response. As to Mr. Valvoulis' concerns regarding the timing of the payment of$102, 714.00,the City, on at least two occasions, advised Mr. Valvoulis that the payment of the connection charge would be due in full upon the acquisition of a permit to connect to the systems. See Exhibit"F" attached hereto and incorporate by reference; see also Exhibit"E". In addition, city policy remained consistent in that the payment of all connection charges were required, in cash, at the time of acquisition of a permit to connect,without the possibility of payment over time. See Exhibit"E." 3 On September 29, 1999, a permit was issued for the Secure Mini Storage site in the Kern Center, or the property located at 5710 Memorial Avenue North. Despite being advised on several occasions that the full amount of the connection charge would be due on September 29, 1999,the day the permit was issued, no payment was ever received. In addition, no efforts were taken by Secure Mini Storage which would indicate an action or attempt at action on behalf of the Defendant to contest the method used to calculate the connection charge or the City's authority to impose such a fee. See Affidavit of Judy Hoist in Support of Motion for Summary Judgment. On February 7, 2000, the property located at 5710 Memorial Avenue North was connected to municipal water, sanitary sewer, and storm sewer. On that date, Secure Mini Storage received the benefit of connection, and continued to exploit this benefit until, on March 10, 2005, after conducting an internal audit revealing the missed payment, the City initiated a letter to Secure Mini Storage advising of the failure and requesting payment in full. (See Exhibit "G" attached hereto and incorporated herein by reference.) On September 8, 2005, the City Attorney for the City of Oak Park Heights received a letter from counsel for Public Storage, Inc., the current owner and operator of the property at 5710 Memorial Avenue, advising that Public Storage had acquired the business entity which formerly owned and operated the Secure Mini Storage, and it's physical assets, in October of 2004. The letter also advised that the parties were contesting the connection charges based on several contentions, of which only two remain. The Defendant Secure Mini Storage, now a wholly-owned subsidiary of Public Storage, continues to contend that the City's delay in enforcing the outstanding connection fee balance triggers the doctrine of laches, preventing such enforcement, and that the calculation of the connection fees is unreasonable as applied to the facility located at 5710 Memorial Avenue, and therefore, again 4 prevents full enforcement. The City has continued to contend that the delay did not cause prejudice, as required by the doctrine of laches, and the connection fees were calculated in conformance with the applicable laws at the time of development. The City has initiated the current action in support of such position. ARGUMENT I. SUMMARY JUDGMENT STANDARD The summary judgment procedure is designed to "secure the just, speedy, and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Under Minnesota Rule of Civil Procedure 56 (c), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to judgment as a matter of law." Only disputes over facts that might affect the outcome of the suit under the governing substantive law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material only when its resolution affects the outcome of the case. See id. Summary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial. Celotex Corp., 477 U.S. at 322. Once the moving party has made a prima facie case that entitles it to summary judgment, the burden shifts to the nonmoving party to produce specific facts that raise a genuine issue for trial. Fed. R.Civ.P. 56 (e); Sphere Drake Ins., PLC v. Trisko, 24 F.Supp.2d 985 (D.Minn 1998). The nonmoving party may not merely rest upon allegations or denials in its pleading, but must set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial. 5 Forrest v. Kraft Foods Inc., 285 F.3d 688, 691 (8th Cir. 2002). I. PLAINTIFF IS ENTITLED TO JUDGMENT AS A MATTER OF LAW RELATIVE TO ITS REQUEST FOR PAYMENT OF $102,714.00 AS THE CONNECTION CHARGES WERE AUTHORIZED BY STATUTE, AND IMPOSED IN A JUST AND EQUITABLE MANNER. The City of Oak Park Heights is a"statutory city," meaning it is a municipal corporation that has not adopted a home rule charter as provided for under Minnesota law. See Minn. Stat. §410.015. As a limited statutory creation, the City has no inherent powers beyond those "expressly conferred by statute or implied as necessary in aid of those powers which have been expressly conferred."Mangold Midwest Co.v. Village of Richfield, 143 N.W.2d 813, 820 (Minn. 1966). In relation to the present matter,Minn. Stat. §444.075 expressly provides authority for a statutory city to construct and maintain waterworks systems, main sewers, and sewage disposal plants. Among the mechanisms authorized to pay for the construction, improvement, maintenance, and operation of such facilities, a municipality may impose reasonable charges "for the use and for the availability of the facilities and for connections with them." Specifically, Minn. Stat. §444.075, subd. 3,provides, in part: Subd.3 Charges; net revenues. To pay for the construction,reconstruction, repair, enlargement,improvement, or other obtainment and the maintenance, operation and use of the facilities, the governing body of a municipality or county may impose just and equitable charges for the use and for the availability of the facilities and for connections with them and make contracts for the charges as provided in this section...The charges may be imposed with respect to facilities made available by agreement with other municipalities, counties or private corporations or individuals, as well as those owned and operated by the municipality or county itself. Charges made for service directly rendered shall be as nearly as possible proportionate to the cost of furnishing the service, and sewer charges may be fixed on the basis of water consumed, or by reference to a reasonable classification of the types of premises to which service is furnished, or by reference to the quantity, pollution qualities and difficulty of disposal of sewage and storm water produced, or on any other equitable basis including,but without limitation, any combination of those referred to above...Charges for the connections to 6 the facilities may in the discretion of the governing body be fixed by reference to the portion of the cost of connection which has been paid by assessment of the premises to be connected, in comparison with other premises, as well as the cost of making or supervising the connection. Authorization to impose a connection charges does not require consent or agreement from the owner, lessee, or occupant, although the statute does permit a person, company, or corporation located and doing business inside or outside the municipal or county limits to connect with the facilities upon terms and payment as may be prescribed or contracted for. Minn. Stat. §444.075, subd. 5. Rather, Minn. Stat. §444.075 clearly grants the Plaintiff's discretionary authority to impose any combination of use, availability and connection charges to finance municipal sewer and water facilities. See Crown Cork& Steal Co. v. City of Lakeville, 313 N.W.2d 196 (Minn.1981). When imposing fees pursuant to Minn. Stat. § 444.075, Minnesota courts have held that municipalities have maximum flexibility, as well as broad latitude and discretion. See Crown Cork& Steal Co. v. City of Lakeville, 313 N.W.2d 196 (Minn.1981); Golden Rule Estates Owners Association v. City of Crosslake, 2005 WL 1514436. (Attached). This discretion is limited by language found in Minn. Stat. Minn. Stat. §444.075, subd. 3, warranting that the charges must be "just and equitable."The authorizing statute, however, is to be construed as including a non-exhaustive list of ways in which municipalities may charge users in an equitable manner. See JAS Apartments, Inc. v. City of Minneapolis, 668 N.W.2d 912, 915 (Minn. Ct. App. 2003). The Minnesota Supreme Court has interpreted the above-quoted language from §444.075, subd. 3 as "evidencing an effort by the legislature to merely set forth permissible methods of calculating connection charges, i.e. connection charges may be set by reference to the actual cost of connection as well as by reference to assessments paid by the connecting property, or, 'in the discretion of the governing body,' by any other method, as long as the connection charge is, in the language of the statute, 'just and equitable.' Crown Cork at 201. Utility rate-making is a legislative act entitled to deferential judicial review. In re Request of Interstate Power Co. for Authority to Change Rates, 574 N.W.2d 408, 412-413 (Minn. 1998); St. Paul Area Chamber of Commerce v. Minn. Pub. Serv. Comm'n.,312 N.W.2d 250, 253-254 (Minn. 1997). As such, a court should uphold an established rate system unless it is shown by clear and convincing evidence to be in excess of statutory authority or results in unjust, unreasonable, or inequitable rates. Daryani; City of Moorhead v. Minn. Pub. Util. Comm'n, 343 N.W.2d 843, 846 (Minn. 1984); St. Paul Area Chamber of Commerce, 312 N.W.2d at 254. This requires a factual determination by the court, allowing for summary judgment upon proper findings. Perfect equality in establishing a rate system is not expected, nor can quality be measured with mathematical precision. See e.g., Daryani v. Rich Prairie Sewer and Water District, 2006 WL 619058 (Attached); R.K. Rutherford v. City of Omaha, 183 Neb. 398, 160 N.W.2d 223, 228 (Neb. 1968); Hickory Twp. V. Brockway, 201 Pa.Super 260, 192 A.2d 231, 236 (Pa. Super. Ct. 1963). Rather, "only a practical basis must be used in establishing a rate system, and apportionment of utility rates among different classes of users may only be roughly equal." Daryani; Hickory Twp., 192 A.2d at 236. In Crown Cork, the Court of Appeals held that the lack of benefit to the Plaintiff's property, although material in the evaluation of a special assessment under Minn. Stat. §444.075, subd. 4, was not a requirement for the imposition of charges permitted under Minn. Stat. §444.075, subd 3. Id. at 201. In the case at bar, the Defendant has failed to present any evidence or theory which would prove, by clear and convincing evidence,that the connection charges imposed by the Plaintiff City of Oak Park Heights upon the Defendant are unjust or unequitable. The lack of any 8 genuine issue as to any of the material facts in this case clearly support the position that the Plaintiff is entitled to summary judgment as a matter of law. II. PLAINTIFF IS ENTITLED TO JUDGMENT AS A MATTER OF LAW, AS THE DEFENDANT ASSENTED TO THE STATED AMOUNT OF THE CONNECTION CHARGE AND WAS UNJUSTLY ENRICHED BY THE SUBSEQUENT CONNECTION TO SERVICES PROVIDED BY THE PLAINTIFF. Generally, an "account stated" is a promise by the debtor to pay a stated sum of money which the parties have agreed upon as the amount due. 29 Williston on Contracts §73:55 (4th Ed.) An agreement between the parties is an essential element of an account stated. 1A C.J.S. Account Stated §16. However, it is not essential that the account be stated in any particular form. 29 Williston on Contracts §73:55 (4th Ed.). Any evidence indicating an admission by the debtor to the creditor of a stated indebtedness claimed by the latter will furnish a good basis for implying a promise. Id.. Evidence of assent to an account stated may consist of an express statement or may be implied from the debtor's conduct. Id. (emphasis added). Consequently, in the case at bar, the City and the Defendant admittedly never reached an express agreement in regards to the amount of monies due. However, such agreement is not mandated by the statute authorizing the imposition of connection charges. Rather, the authority to impose is expressly granted to the City by statute, subject to the condition that the charges be just and equitable. As such, the City is not prohibited from relying on the theory of implied consent based upon the Defendant's conduct. Clearly, the Defendant, through receipt of letters sent to Mr. Valvoulis, was advised that the connection charge was non-negotiable and would be due upon receipt of a permit. Armed with this knowledge, the Defendant applied for and obtained a permit from the City on September 29, 1999. As such, by virtue of the Defendant's actions or conduct, the Defendant 9 accepted and assented to the connection charge as set forth by the City. This assent supports the notion that elements of an "account stated" have been met, as the City's assent can be inferred from the implementation of the charge. Since acquiescing to the connection charge through the attainment of a building permit, the Defendant obtained connection to municipal water, sewer, and storm sewer and has been receiving the benefit that ensues from this connection since, despite the non-payment of the connection charge. Redefined, the Defendant has continued to obtain the benefit of the efforts of the City related to developing, maintaining, and supervising the municipal connections, but has failed to appropriately compensate the City for fees lawfully authorized under Minn. Stat. §444.075. The Defendant has never rejected this benefit received from the City. In a situation in which no express contract completely governs the rights of the parties, the theory of unjust enrichment is an equitable claim that arises when a party gains a benefit illegally or unlawfully. Stein v. O'Brien, 565 N.W.2d 472, 474 (Minn. Ct. App. 1997)(quoting Midwest Sports Mktg., Inc. v. Hillerich& Bradsby of Canada, Ltd., 552 N.W.2d 254, 268 (Minn Ct. App. 1996), review denied (Minn. Sept. 20, 1996)). A claim of unjust enrichment does "not lie simply because one party benefits from the efforts or obligation of others, but instead lies where one party was unjustly enriched in the sense that the term "unjustly" could mean illegally or unlawfully. Christie v. Marberg, 421 N.W.2d 748, 751 (Minn. Ct. App. 1988). See also First National Bank of St. Paul v. Ramier, 311 N.W.2d 502, 504 (Minn. 1981). Toassert an unjust enrichment claim, the City must first establish that the Defendant's rights and obligations arise out of something other than a contract. See American Compensation Ins. Co. v. Blue Cross Sheild of Minnesota, 2001 WL 69480 (Attached). Then, the City must identify some illegal or unlawful conduct by the Defendant that benefited that party. Id. Finally, the City must supply 10 evidence of a benefit received by the Defendant. In the case at bar, the Defendant's obligation to pay a connection charge for municipal water, sewer, and storm sewer arose out of the statutory scheme of Minn. Stat. §444.075 and several City resolutions. As such, no express contract exists which would guide the parties on how to resolve disputed issues or appropriately remedy any complications which may present themselves. Because the Defendant's rights and obligations to the City arise out of something other than an express contract, the City has satisfied the first element in asserting an unjust enrichment claim. To the second element necessary to assert an unjust enrichment claim, the failure of the Defendant to provide for the payment of the $102,714.00 owed the City pursuant to the authority granted in Minn. Stat. §444.075 and several City resolutions, amounts to unlawful conduct by the Defendant. The imposition of a connection charge authorized under Minnesota statute forces a legal obligation upon the Defendant for payment, insomuch that a delinquent account may be collected as a tax pursuant to Minn. Stat. §444.075, which provides in part: The governing body may make the charges a charge against the owner, lessee, occupant or all of them and may provide and covenant for certifying unpaid charges to the county auditor with taxes against the property served for collection as other taxes are collected. Certainly, failure to pay a connection charge, which could lawfully be converted to a tax, is unlawful conduct within the context of the law. As such,the failure of the Defendant to pay the connection fee authorized by statute amounts to unlawful conduct within the context of an unjust enrichment claim. Finally, as to the third element necessary to assert an unjust enrichment claim, the Defendant has undoubtedly received a benefit from obtaining a connection to municipal water, sewer, and storm sewer. By connecting to the municipal infrastructure, the Defendant is 11 accessing facilities which include existing and future trunk and interceptor sanitary sewers,trunk water main and water main oversizing, pressure reducing stations, sewage lift stations, force mains, wells, pumps, pumphouses, water storage tanks, and related appurtenances. In addition, the Defendant is receiving the benefit of the efforts of the City in maintaining and supervising these fixtures and services. However,these benefits have been received without subsequent payment for them, as imposed by the City and authorized by statute. As discussed in the City Engineer's letter to Mr. Valvoulis on August 3, 1999, all development occurring in the City of Oak Park Heights paid the same area or connection charged, which was applied uniformly to recover the costs incurred in developing and maintaining such. It is difficult to imagine an argument that would support the exclusion of the Defendant from the same obligation that was imposed upon other developers for the same benefits of service. III. PLAINTIFF IS ENTITLED TO JUDGMENT AS A MATTER OF LAW AS THE EQUITABLE DOCTRINE OF LACHES IS NOT APPLICABLE. The equitable doctrine of laches is available to prevent the granting of relief to a party who has unreasonably delayed the assertion of a legal right and has thereby prejudiced others and made it inequitable for the court to grant the relief requested. Aronovitch v. Levy, 56 N.W.2d 570, 574 (1953); Fetsch v. Holm, 52 N.W.2d 113, 115 (1952). The purpose of laches is "to prevent one who has not been diligent in asserting a known right from recovering at the expense of one who has been prejudiced by the delay."Aronovitch, at 574. Delay alone does not amount to laches unless, in addition, injury has also resulted. McQuillin § 49:9 The basic question is "whether there has been such an unreasonable delay in asserting a known right,resulting in prejudice to others, as would make it inequitable to grant the relief prayed for." Fetsch v. Holm, 52 N.W.2d 113, 115 (1952). In Klapmeir,the Minnesota Courtof 12 Appeals held that a landowner's claim of defective notice in an assessment appeal was not barred by laches, despite the fact that the landowner failed to discover the assessment until 1981, although his 1980 tax bills clearly showed the levy and provided notice of such. The court went on to conclude that because there was "absolutely no evidence or testimony taken at trial concerning prejudice to the town"the landowners claim could not be barred by the doctrine of laches. Id. In the case at bar,the court may find that the City delayed assertion of the right to the connection charges. However,the Defendant has failed to offer any factual evidence which supports the notion that this delay was unreasonable or that it was in any way predjudiced by the delay. Rather,the Defendant was given more than sufficient notice of the impending connection charges that would be due upon application and obtainment of a permit, and had the opportunity while transitioning from Secure Mini Storage to Public Storage to contact the City to determine if fees or assessment were due, but simply chose not to. Even if, arguendo, the delay was unreasonable, it is well settled that delay alone does not amount to laches unless, in addition, injury has also resulted. McQuillin §49:9. The Defendant has not provided even a scintilla of factual evidence that would support the theory that they have been prejudiced or injured by this delay. The fact that the Defendant is now being asked to pay a fee that was knowingly anticipated and due on September 29, 2000, does not equate to a factual prejudice. Absent any facts to support prejudice or injury,the Defendant has failed to meet the minimum threshold necessary to establish the equitable doctrine of laches, and summary judgment must be granted in the Plaintiff's favor. 13 CONCLUSION Accordingly, the City of Oak Park Heights respectfully request Summary Judgment be granted, as no issue of material fact exists between the parties. ECKBERG, • MMERS,BRIGGS WOLFF & ' ERLING,P. . Dated: (mG /2„.2 7' By: Mark Vierling, Esq. Attorney I.D. #112823 By: 'W` 7ikt, 6 5/ J fifer A.Nodes,Esq. Attorney I.D. #0352172 Attorneys for Plaintiff 1809 Northwestern Avenue, Suite 110 Stillwater,MN 55082 (651) 439-2878 14 EXHIBIT "A" CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY, MINNESOTA A RESOLUTION ESTABLISHED PURSUANT TO ORDINANCE 1001 AND MINNESOTA STATUTE 444 . 075 CREATING AND ESTABLISHING CONNECTION CHARGES FOR THE CITY OF OAK PARK HEIGHTS Wes, Minnesota Statute 444 .075, Subd. 5 establishes the statutory authority allowing municipalities to establish connection charges for the- privilege of connecting the public facilities owned, operated and maintained by municipal corporations; and, WHEREAS, Ordinance 1000.01 et seq. of the Code of Ordinances of the City of Oak Park Heights establishes the appropriate rules and regulations for use and connection to the City' s public facilities consisting of municipal water, -y sewer and storm sewer systems; and, T WHEREAS,}'.1k existingthe core facilities created, 1 constructed, maintained and established within the City of Oak Park Heights have been in large measure financed and acquired for the public good by use of connection charges to the City's public facility systems within the City and, more specifically, have been particularly financed by developments within the corporate boundaries of the City of Oak Park Heights as those corporate boundaries existed prior to July 29 , 1988 ; and, WHEREAS, the lands existing within the corporate boundaries of the City of Oak Park Heights as those corporate • boundaries existed prior to July 29, 1988 are substantially improved and should not be further burdened by the establishment of a connection charge system that is over and above that which currently exists for those areas of the City; and, WHEREAS, the growth within the City of Oak Park Heights and the demand and need for additional public facilities ( i.e. municipal water, sanitary sewer and storm sewer) has grown to the point where the City is in need of constructing an additional water tankto serve the City of Oak Park Heights and its anticipated growth into areas annexed to the City of Oak Park .�- Heights on or after July 28 , 1989; and, WHEREAS, the City Council for the City of Oak Park Heights finds that it is appropriate and reasonable to use' connection charges as a means of financing further water works improvements and other public facilities improvements to serve • new areas within the City of Oak Park Heights which will need and be connected to such municipal and public facility systems within the future; and, WHEREAS, the office of the City Engineer for the City of Oak Park Heights has completed a study dated October 10, 1989, computing the need for additional connection charges within areas annexed to the City of Oak Park Heights after July 29 , 1989, and anticipated to be annexed to the City of Oak Park Heights in the future; and, • WHEREAS, the office of the City Auditor for the City of Oak Park Heights has further reviewed said study and concurs with the findings and projections of the City Engineer made within the aforesaid report from Bonestroo, Anderlik & Associates dated October 10, 1989 ; and, . WHEREAS, 'the City Council for the City of Oak Park Heights has received requests from property owners to extend municipal services and public facilities into newly annexed areas within the City of Oak Park Heights which create the need for additional public fac' l4+; es and growth within existing .public facility systems with the City of Oak Park Heights; and, WEaREAS, the City Council for the City of Oak Park Heights deems it reasonable and appropriate to establish a connection charge to be collected from areas annexed to the city of Oak Park Heights on or after July 29, 1988 and thereafter to help defray the expense, enlargement and enhancement of existing public facility and municipal water and .sewer systems within the City of Oak Park Heights. • NOW, AFORE, BE IT RESOLVED by the City Council of for the City of Oak Park Heights , Washington County, Minnesota that as and for the direct and proximate need of the City of Oak Park Heights to expand, enlarge and create new public facilities to serve areas annexed and to be annexed to the city of oak Park Heights from and after July 29 , 1988 there shall hereby be established pursuant to statute and pursuant to the Ordinances of the City of Oak Park Heights connection charges to be paid by all areas hereinafter developed within the City of oak Park Heights that were not originally contained within the City's corporate limits effective July 28, 1988 , with said charges being due and payable upon the occurrence of any one of the following events whichever first occurs_ A. The issuance of a building permit; B. The issuance of a permit allowing connection to municipal water, sewer and/or storm sewer systems; • C. Upon plat approval and/or execution of a Development Agreement relating to platting of real property; • • • D. Upon the granting of a Planned Unit Development permit and/or granting . of a Development Agreement relating to a Planned Unit Development; • E. Upon the granting of any Conditional or Special Use Permit for the allowance of use and construction of a facility intended to be connected to the public facilities of the City of Oak Park Heights.. That the following connection charges shall be collected in each such instance based upon the proposed development aforementioned and based upon the following computations or fractional proportions thereof: A. Trunk sewer connection charges shall be collected at the rate of $2 ,110.00 per acre; B. Trunk water works connection charge shall be collected at the rate of $3 , 670. 00 per acre; • BE IT Frrot RESOLVED that all such computation shall be made by the office of the City Clerk and confirmed with the offices of the City Engineer prior to collection thereof and prior to issuance of any permit allowing development upon property within the aforementioned areas of the City of Oak Park Heights. • BE ' IT FU RESOLVED that the aforementioned system of charges and rates shall be adjusted from time to time by the City Council based upon report and recommendation from the office of the City Engineer and the office of the City Auditor. All such adjustments and amendments thereto, if any, shall be effective • immediately upon adoption and shall be applied to all developments thereat pending which have not received approval by the City of Oak Park Heights or which may be applied for after which such amendments have been approved by the City Council. • BE IT FURTHER RESOLVED that the aforementioned connection charges are in addition to and not in lieu of costs to be assessed to particular properties for the providing of sanitary sewer, storm sewer and water improvements to each property as may be petitioned for same or for which improvements have been ordered by the City Council pursuant to Minnesota Statute 429 . 031. BE IT FURR RESOLVED that upon the recommendation of the City Engineer, the City Fiscal Consultant and staff, the City. council may delay or defer payment of any part or all of a connection charge to be collected as it affects any property to be connected to the water and sanitary sewer system upon application of the property owner with such delay or deferral to be upon such terms as may be established by the City Council. Passed by the City Council of the City of Oak Park Heights this 25th day of Febris , 1 Barbara O'Neal, Mayor Attest: --`LaVonne son, Administrator/Treasurer -1 EXHIBIT "B" RESOLUTION NO. 98= 07_46 CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY, MINNESOTA A RESOLUTION ESTABLISHING CONNECTION FEES THROUGHOUT .THE CITY OF OAK PARK HEIGHTS FOR CONNECTIONS TO MUNICIPAL WATER SYSTEMS, SANITARY SEWER SYSTEMS AND STORM SEWER SYSTEMS WHEREAS, Minn. Stat . §444 . 075, Subd. 3 •authorizes municipalities to establish a system of charges for the construction, reconstruction, repair, enlargement, improvement or other obtainment, maintenance operation and use of municipal facilities, including, but not limited to charges for connections to such municipal facilities for municipal water, sanitary sewer, and storm sewer; and, WHEREAS, City ordinances provide for the Council to establish from time to time connection charges to be collected for properties developing in and connecting to the municipal water, sanitary sewer and storm sewer systems ; and, WHEREAS, the City has historically established and collected connection charges ; and, WHEREAS, connection charges established by the City of Oak Park Heights require modification and amendment from time to time; and, WHEREAS, the office of the City Engineer has provided recommendations to the City Council as it affects the establishment of connection charges throughout the City of Oak Park Heights as it relates to connection to trunk sanitary sewer systems, trunk water systems and trunk storm sewer systems; and, WHEREAS, the City Council determines it to be in the best interest of the residents and City of Oak Park Heights that such fees be periodically renewed and adjusted to take into account cost of construction and replacement and systems, cost of maintenance operation and other expenses that the City expects to incur with regard to the maintenance of such systems . NOW, THEREFORE, BE IT RESOLVED, by the City Council for the City of Oak Park Heights that effective August 1, 1998 city connection charges to be applied throughout the City of Oak Park Heights for properties developing or connecting to municipal utilities shall be as follows : • 1 . Sanitary sewer connection charge, $2 , 310 . 00 per acre . 2 . Municipal water connection charge, $4 , 010 . 00 per acre . 3 . Storm sewer connection charge, $5, 080 . 00 per acre . BE IT FURTHER RESOLVED, that as to the computation of acreage as it affects each development or connection related to the collection of these fees, all such computations shall be made through the office of the City Engineer with all such fees being . thereafter collected through the office of the City Administrator. No connection shall be made to any municipal utility system until such time as the connection fees as calculated and determined by the office of the City Engineer have been collected. Passed by the City Council for the City of Oak Park Heights this 29th day of July, 1998 . Davi• c aa , M- 'or • 0 ATT -ST: Thomas Melena City Administrator EXHIBIT "C" SECURE Post-it,Fax Note 7671 Data 1.).4 ,440; PaoJt ?J From i PcJGv L1 Co.Deppttca�t'74v_w'„ pob Co. e� Phone it �' Phone a „r O p j(r) S1ORAGE Fax: Faxk P GC2 Memorandum To: Chris Danielson —Community Development Director, Oak Park Heights From:Tony Vavoulis RE: Fees, Charges and Assessments Date: December 30, 1998 I need some 'help understanding the amountsand timing o; certain fees, charges and assessments that are ex•ecte• to se evr: -st i'tili1ff -cure'v inl torage property at.7, 5710 Memorial Avenue l ortn. Could you please answer the following questions? 1. If vie did no expansion or remodeling of any kind, when would we be required to convert to r.-ty sewer and water? 2. If we did no expansion or remodeling of any kind, when would we be required to start paying dollars to the City, and what is the projected amount? 3. How much of #2 above is required to be paid lump sum and how much is paid in installments over what period of time? 4. If we choose to expand our facility by adding 12,000 SF. of storage onlyrduring the '99 would it d sewer and water summer of ..�, we be iequi�B�., to convert to city 5. How much and when would the various charges and assessments be due if conversion is required at that time? I am currently working on our 1999 budget and building plans In order to make a4 .sb-urrd'-decision I.need to better understand the answer to the above questions as soon as possible. At this point, I have no confidence in my knowledge of these expenses. I understand that there may not be hard firm numbers, but any assistance that you could provide would greatly appreclacould FAX me your estimate, it would be most helpful. Thank you. 7401�nwoud Avcouc Saint Paul,MN 55105 (612) 290.0507 .FAX(612)290.0106 EXHIBIT "D" CLUUALL STORAGE MAI 1 1199 May 7, 1999 Ms Kris Danielson City of Oak Park Heights P.O. Box 2007 Oak Park Heights, MN 55082-2007 RE: Connection Charge Dear M D r,l,on: I am in receipt of Mr. Anderlik's letter of January 11, 1999 responding to my December 30, 1998 memo regarding fees, charges and assessments for Secure Mini Storage's three lots. Since that time we have developed.a proposal for expanding our facility and on April 27, 1999 we gained approval of tie pian as proposed. We are still trying to work through the financial feasibiiit,' of The project. As we evaluate each of the costs involved with the development, one of the items that seems out of line is the Connection Charge of S1 D2,714 noted in Mr. Anderlik's letter. I would like you to help me better understand this item: 1. What is the basis for this charge? 2. Why this amount? 3. What is my benefit? 4. What is the appeal process? 5. Does Secure have to pay it at the time the building permit is issued if the system is not in place and service available? 6. Can this payment be made over time? 7. Secure has three lots, if we use the stub from only one of the three lots could we be charged the area connection charge for only the one lot? This would defer the other two lot charges for some future date. Please.respond by May 20, 1999, if possible, If we proceed, we would like to move forward soon to allow completion prior to this fall. If you have any questions please call. Thank you. Sin er-ly / i1 A l.n avoulis Management Agent - SMS 740 Linwood Avenue Saint Paul,Minnesota 55105-3322 (651)290-0507 FAX(651)290-0106 EXHIBIT "E" . . .... ..` Bonestroo.Rosen.Anderlik and Associates,Inc.is rfirmative Action/Equal Opportunity Employer Bonestroo I. principals:OttoG.Bonestroo,P.E.•Joseph C.Anlc .,P.E.•Marvin L Sorvala.P.E.• Glenn R.Cook,P.E.•Robert G.Schunicht,P.E.• Jerry A.Bourdon,P.E.• Rosene Robert W.Rosene,P.E.,Richard E.Turner,P.E.and Susan M.Eberlin;C.P.A.Senior Consultants ' 1111:311 Associate Principals:Howard A.Sanford,P.E.• Keith A.Gordon.P.E.•Robert R.Pfefferle,P.E.• In Anderiik & Richard W.Foster,RE.•David O.Loskota,P.E.•Robert C.Russek,A.J.A.•Mark A.Hanson.P.E.• Michael T.Rautmann.RE.•Ted K.Field.P.E.• Kenneth P.Anderson,P.E.•Mark R.Rolls.RE.• Associates Sidney P.Williamson,P.E.,L.S.•Robert F.Kotsmith•Agnes•M.Ring•Allan Rick Schmidt.P.E. Offices:St.Paul.Rochester.Willmar and St.Cloud,MN••Milwaukee.WI 1. Engineers&Architects webslre:www.bonestroo.com r@IEINE August 3, 19991.?•ron ;,,..=;.f..:.: •`,, Mr. Anthony Valvoulis Secure Mini Storage 740 Linwood Avenue ,• St. Paul,MN 55105-3322 • Re: Kern Center Connection Charges City of Oak Park Heights Our.File No. 55-98-802 • Dear Mr. Vavoulis: We are in receipt of your letter of July 25, 1999 requesting information relative to the connection charges being assigned to.your Secure Mini Storage site in the Kern Center. The following is in response to..your questions.l through 7 as outlined in your May 7, 1999 correspondence.. , ' , • 1. The following table shows the breakdown of the$•102,714.00 connection charge: • Lot 8,Block 2, Kern Center 2nd Trunk Sanitary Sewer 2.96 ac x $2,310.00/ac • $6,837.60 Trunk Waterworks 2.96 ac x 4,010.00/ac 11,869.60 Trunk Storm Sewer • 2.96 ac x 5,080.00/ac 15,036.80 $33,744 00 Total Lot 8 Lot 9,Block 2,Kern Center 2nd Trunk Sanitary Sewer 3.00 ac x $2,310.00/ac $6,930.00 Trunk Waterworks 3.00 ac x 4,010.00/ac 12,030.00 Trunk Storm Sewer 3.00 ac x 5,080.00/ac 15,240.00 Total Lot 9 $34,200.00 • Lot 10, Block 2, Kern Center 2nd Trunk Sanitary Sewer 3.05 ac x$2,310.00/ac $7,045.50 • • Trunk Waterworks • 3.05 ac x 4,010.00/ac . 12,230.50 • . . Trunk Storm Sewer 3.05 ac x 5,080.00/ac 15,494.00 $34,770.00 . :Total Lot. 10 • TOTAL SECURE MINI STORAGE $102,714.00 • • Mr.Anthony Valvoulis Secure.Mini Storage Page 2 2. The acreage charge rates were computed in previous comprehensive studies- by estimating the cost for the major trunk facilities to serve the entire City of Oak Park Heights divided by the area to be served by these improvements. The facilities include existing and future trunk and interceptor sanitary sewers, trunk water main and water main oversizing, pressure reducing stations, sewage lift stations, force mains, wells, pumps, pumphouses and water storage tanks and related appurtenances. These rates are also increased from time to time to include inflation on future trunk type facilities. 3. The benefit of the trunk facilities in combination with the lateral utilities is to provide water and sewer service for each property in the City of Oak Park Heights. .The lateral utilities must discharge to downstream facilities or be connected to supply facilities to- • function. Therefore,both facilities and both charges must be considered for service. The . trunk and supply facilities are not required, theoretically, until connection is made which is the reason for the two charges and the payment schedule for each. It should be noted that the combination of connection charge and the estimated assessments for the Mini Storage site results in a cost of just under 39 cents per square foot of land area which is . similar to or less than most other suburban costs for utility service to commercial land uses. 4. We are not aware of an appeal process for connection charges if the charges simply recover costs. You are always welcome to be placed on a Council Agenda with pertinent information on most matters. Questions of this nature should probably be referred to legal council rather than to the engineering staff. 5. City policy requires payment of connection charges in cash at the time building permits are issued. At this point in time service is or will be available in the very near future. . 6. .City..policy has no provisions for paying connection charges over time.. You may consider this a pertinent matter for discussion. 7. The Secure Mini Storage site is boated on three legally described lots.so it is ne^essay for the City to show assessments and connection charges for each legal lot. However, the lots function as one site and the entire $102,714.00 must be paid at the time the building permit is issued. The fmal comment which should be noted is that all development occurring in the City of Oak Park Heights pay the same area or connection charge, adjusted for inflation from time to time. This includes Oak Park Ponds, Menards, the school, Autumn Ridge and all other development including the Kern Center. These charges are being applied uniformly to recover costs being incurred so it is believed that the charges are fair and equitable for the services provided. Mr. Anthony Valvoulis Secure Mini Storage Page 3 It is hoped that the information provided herein will assist you in understanding the financing procedures used by the City of Oak Park Heights to provide public utility service. Very truly yours, BONESTROO,ROSENE,ANDERLIK&ASSOCIATES,INC. C2,44.pg. a adiedift 7 Joseph C. Anderlik cc: Thomas Melena Kris Danielson EXHIBIT "F" rct'�y DUI � .w��.�i U'I) Principals:Otto G.Bonestroo,RE.•Joseph C.Ai,. ,iik,P.E.• Marvin L.Sorvala, RE. • 40 `l@ Richard E.Turner,P.E.• Glenn R.Cook,P.E.• Ro err G.Schunicht, P.E.• Jerry A. Bourdon,P.E.• F LLrw � Rosene Robert W.Rosene,P.E.and Susan M.Eberlin:C.RA.,Senior Consultants • v�lv�4 Associare Principals:Howard A.Sanford.P.E.• Keith A.Gordon.RE.• Robert R.Pfefferle,P.E.• x art' X14 Anderlik & Richard W.Foster,RE.•David 0.Loskota,P.E.• Robert C.Russek,A.I.A.• Mark A.Hanson, P.E.• 'A*'i4; �akf Michael T.Rautmann,P.E.• Ted K.Field,P.E.• Kenneth P.Anderson,PE.•Mark R.Rolfs, P.E.• • rblAssociates Sidney P.Williamson,P.E.,L.S.• Robert F.Kotsmith• Agnes M.Ring• Michael P.Rau,P.E. • Allan Rick Schmidt,RE. Engineers & Architects Offices:Sr.Paul,Rochester,Willmar.and St.Cloud.MN•Milwaukee,WI .-- Website:www.bonestroo.com ! 1 I I ii I i llj S1 January 11, 1999 \\\ i3 \999 \ \ • Ms. Kris Danielson u 1\ City of Oak Park Heights P.O. Boa 2007 Oak Park Heights, MN 55082-2007 Re: Kern Center Improvements Secure Mini Storage Our File No. 55-98-802 ' Dear Kris: We are in receipt of the memo from Tony Vavoulis which asked several questions relating to fees, charges and assessment. It is my understanding, that the answers to the questions raised are as follows: 1. If no modifications were made to the structures, connection to the water and sewer systems would not he required Until the existing on-cite sewage system or well failed or was in need of repair. 2. If no modifications were made to the structures, payment of the deferred assessments would start after six (6) years. It is our understanding that the assessment would be spread over 15 years with interest paid on the unpaid balance each year. The assessed amount is estimated to be between $49,020.00 and $41,580.00 depending upon the alternate assessment method selected. The connection charge of $102,714.00 would be paid when a permit is issued to connect to the systems. 3. Questions on payment schedule,s answered iT; 42 above. 4. If the facility is expanded or modified for any purpose, it would be required to connect to the City system. 5. . The connection-charge of$102,714.00 would be due upon receipt of the building permit. The assessments would be collected over a 15 year period with he first,principal amount plus interest on the unpaid balance probably due with the taxes payable in the year 2000. • If you have any questions on this matter, please do not hesitate to call me at 651-604-4833. Very truly yours, B0NESTR00, ROSENE, ANDERLIK &ASSOCIATES,INC. (-)e-rt4,701(-) a Joseph C. Anderlik • 2335 West Highway 36 si St. Paul, MN 55113 m 612-636-4600 H Fax: 612-636-1311 EXHIBIT "G" :C�I :F• . • 4 ' OAK' PARK.:.HEIGHTS "�y ate ' '. -'•.:. ` 2 14168 Oak Park Boulevard No..••.P:O.;Boz 2007 • Oak Park Heights,MN'5.5082.2007.';Phdne:651/489-4489:e.Fax:6511439.-0574 March.10,2'005 ' ^ .Secure Mini Storage Limited Partnership:' - . •' • ,3245Hiawatha Ave.-S. • . - • • 'Suite A • •: ' • - } ..}. • Minneapolis,'MN. 55406. • • '' • ' Dear Sir : . ' ' ' ' •'An•internal audit.of'the Cityof Oak Park•Heights•has recently been'completed. 'The•audit . '. revealed that,no payment of connection charges was made:for'La ts-8, 9,and 10 Block 2 ' . . :Kern Center 2nd:Addition. • •' • - • •'•The.connection charges on these three parcels were due September 29, 1999 when:the;•• :: :-`• • •, -mechaniaa l:permit was issued for 5710 Memorial.Ave.N.."f his:propertyhas been, • : , ::.receiving Citysewer since the year 2000:• • • • ' • •The amount'of connection charge due atthe time:the permit Was issued is $102,714.00.• •: Mr:Valvoulis'of Secure Mini'Storage-was advised of the connection charges:on August, • • : 3,•1999:•See attached correspondence dated-August.3;:1999•from.the.City'Engineer, •• • •:Boriestroo,•Rosen,Anderlik&Asscsciates: 'No fees:are'being added..at this time • ;• ' . : • • :. • increases ordered`by the:City Councilin the interim,years: • • • • • •• .Please�remit payment to.the:City of Oak Park:Heights ,P : 0.:Box:2007,,Oak Park. • ' •• Heights,MN 55082.: :: : • ••Please'let me know:if you have any,questions or need further information..,• Sincerely,• _ • • Judy Hoist . • . • . . • Deputy Clerk/Finance Director • • • • rr,— TT Q D STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT City of Oak Park Heights, a Case Type: Other/Civil Minnesota municipal corporation, Court File No: Plaintiff, v. AFFIDAVIT OF DENNIS M. POSTLER IN SUPPORT OF MOTION FOR SUMMARY Secure Mini Storage Limited Partnership, JUDGMENT and Public Storage,Inc. Defendant. STATE OF MINNESOTA ) )ss. COUNTY OF WASHINGTON ) I, Dennis M. Postler, being first duly sworn upon oath, depose and state as follows: 1. That your affiant is a civil engineer currently licensed as a Professional Engineer in the states of Minnesota, Wisconsin, and California. 2. That your affiant is currently employed by Bonestroo, a full service engineering and architectural firm, located in the City of St. Paul, Minnesota. 3. That your affiant is currently contracted to provide engineering services to the City of . Oak Park Heights as the City Engineer, and has held this position since 2000. 4. That prior to my term as the City Engineer, Mr. Joseph Anderlik, also of Bonestroo, held the position as City Engineer. 5. That Mr. Anderlik, pursuant to the duties proscribed to the City Engineer, and according to the guidelines set forth in Minnesota Statute §444, was the principal party in calculating the connection fee for storm and sanitary sewers, as well as municipal water, for the City of Oak Park Heights in the year of 1991. 6. That Mr. Anderlik is now deceased, and as the current City Engineer, your affiant has reviewed the method Mr. Anderlik used to calculate the connection fees in 1991. 7. That, in addition to a review of the 1991 method, your affiant has been the principal party in updating the current rate for connection fees, pursuant to the duties proscribed to the City Engineer. 8. That although the calculation of a connection fee is a simple mathematical operation, defining the cost and capacity bases that make up that operation are more complex. 9. That in following the basic steps, the City Engineer must first quantify the cost of existing facilities currently in service throughout the City through a review of City financial statements and records. 10. That the City Engineer must then estimate the growth in demands for storm and sanitary sewers, as well as municipal water, using community planning data and historical records. 11. That the City Engineer must then identify the need for any new facilities required to serve projected demands, and estimate the design and construction costs for those facilities. 12. That the City Engineer then takes the data obtained from the above analysis to establish a connection equivalency basis in an effort to determine a means to reasonably differentiate new connections in a manner that proportionately relate to the potential demands they may place on the utility systems. 2 13. That the City Engineer proposes a manner to the City Council for which the costs related to storm and sanitary sewers, as well as municipal water, are distributed among those initiating connection to the service. 14. That in 1991, the City Engineer proposed to the City Council that they adopt a connection fee schedule in which land surface area was the basis for distribution of the costs determined above. 15. That in 1991, the City Council adopted Resolution 91-02-08, in which utility connection charges were established for sanitary and storms sewers, as well as municipal water, based on acreage. See Exhibit A, attached hereto, and incorporated by reference. 16. That in 1996, the City of Oak Park Heights initiated a change in the fee schedule, in which utility connection charges were still based on acreage, but the fees differentiated on the basis of whether the acreage was zoned commercial or residential. 17. That the connection fee schedule was revised on an annual basis, starting in 1998, and has been most recently updated in 2006. 18. That the original connection fee schedule was engineered in a manner that created uniformity amongst those initiating service, without prejudice towards intent or use, and continues to operate in such manner, despite some changes in 2006. 19, That the original connection fee schedule was engineered and constructed with-the focus that the fees were to be collected for the purpose of paying for the design, construction, reconstruction, repair, enlargement, improvement, or other obtainment and the maintenance, operation and use of the municipal utilities. 3 20.That the connection fee schedule has always been calculated using standard engineering procedures, and with due respect to the regulatory provisions set forth in Minn. Stat. §444. FURTHER YOUR AFFIANT SAYETH NAUGHT. Dated: October .5 , 2007 j ;el/ D is M. Po tl , Affiant Subscribed and sworn to before me, this 5441 day of October, 2007. SIGNATURE OF NOTA Y PUBLIC e ,. is r. • ''""' '' PATTROAV'i ENER :ie:,-,,,t-2. J NOTARY PUBLIC-MINNESOTA :' ;t• My CoMmi lett Expkec At St,2010 r • it • 4 EXHIBIT "A" E' U 0 0 0 0 g < d d Q d d yd < d y< < < (NI .00 � S N Z Z Z z Z Z Z z z Z z Z O M N o t]. (y 64 69 69 O ?N 0 o m u m C4 ui Td y >l N _ V i..- O O O O O O o 0 0 0 0 0 0 0 0 0 0 V N CU rA ' O Q o 0 0 0 0 0 0 0 0 0 0 0 0 0 rn b CLC Abp 0 cF d d 000 000 000 CD O OM N CD CD O OHO VD w .t» - AD\O AD A D" O O O MVD [ 00 O N VO VI w o V ZD LL d- d• d' krtri iri vi v) to t/l vD vD ,., .9 u ►+� .� 64 69 64 69 64 b9 69 69 69 64 69 69 69 69 69 69 -fl .. 0 O x uo E" i •.. co o uL1. '.. 4. C , 0 '' y .0 U c.,_, � z .'t:' .'�' - 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 • rzi U a) o C o o C o C o o 0 0 0 0 0 0 0 0 0c0000000000oo660c x s. W C� C� N C� C.- •-+ — ,--4 Cl N N M VI O 00 ,. ci . N VD AD AD AD AD O O O N d' kr) AD C` CN N C-- 1.o W a E4 it M M M M M 4 'Ct d' 4' 'd' d- d' er vl Q, 64 69 64 69 64 69 69 69 69 69 69 69 69 69 64 69 U b 0 V .�- CO 4. .y 0 O_ 5. �¢ ta, C 0 N C o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 o a. O 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 3 0 _o O O CD O o_ _o C o o O CD O VI VI O N W 0,I, ,. ,. "" ,. ,. M M M 'd- in l0 VO C., 00 O 00 bll .N }� 0 N N N N N Cl N N Cl N N N Cl N M -- C E 69 69 69 64 69 64 69 69 69 69 69 64 64 69 69 6S o C o •� O c r, 3:5: .2 C o O P. 0 0 0 CCD 0 0 0 0 y U c N N N N N N N �. o rn STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT City of Oak Park Heights,a Case Type: Other/Civil Minnesota municipal corporation, Court File No: Plaintiff, v. AFFIDAVIT OF JUDY HOLST IN SUPPORT OF MOTION FOR SUMMARY Secure Mini Storage Limited Partnership, JUDGMENT and Public Storage, Inc. Defendant. STATE OF MINNESOTA ) )ss. COUNTY OF WASHINGTON ) - I, Judy Ho1st, being first duly sworn upon oath, depose and state as follows: 1. That your affiant is the Deputy Clerk Finance Director for the City of Oak Park Heights, and has performed the duties related to this position since 1979. 2. That your affiant has not, at any time relevant to these proceedings, received a request for an assessment search or fee search relative to the present dispute from the Defendants. 3. That your affiant has not, at any time, conducted a formal assessment search or fee search relative to the present dispute at the request of the Defendants. FURTHER YOUR AFFIANT SAYETH NAUGHT. Dated: October 11, 2007 z /// Judy Ho1s/Affiant Subscribed and sworn to before me,this I Nay of Oct. .er, 2007. NOTARIAL STAMP OR SEAL _ --Joy other title SII;NATU• OF ;f1'0 ' RY UBLIC t ; JENP<i=ERM.THOEN � NOTARY PUBLIC•MINNESOTA o, :i! 1 %:;,,;: My Commission Expires Jan.31,2012 Kelly & Fawcett, P.A. ATTORNEYS AT LAW OF COUNSEL: ■Trevor S. Oliver McGUIGAN&HOLLY,PLC toliver@kellyandfawcett.com October 15, 2007 FOR YOUR Mark J. Vierling INFORMATION Eckberg, Lammers, Briggs, Wolff& Vierling, PLLP 1809 Northwestern Avenue Stillwater,MN 55082 Re: Cash Connection Charges on Public Storage 5710 Memorial Avenue, Oak Park Heights, Minnesota Washington County Court No. 82-CO=06-7138 Dear Mr. Vierling: Enclosed herewith and served upon you is the Notice of Motion and Motion for Summary Judgment, Order, Memorandum in Support of Defendant's Motion for Summary Judgment, Affidavit of Trevor Oliver, and Exhibits in the above-named matter. Please contact me if you have any questions. Respectfully yours, KELLY& FAWCETT, P.A. f. / - Trevor S. Oliver TSO( dj cc: Secure Mini Storage 444 CEDAR STREET,SUITE 2350 • SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 . FACSIMILE 651-223-8019 www.kellyandfawcett.com STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: 14—Other Civil City of O \Park Heights, a - Court File No. 82-00-06-7138 Minnesota municipal corporation, Plaintiff, NOTICE OF MOTION vs. AND MOTION FOR SUMMARY JUDGMENT Secure Mini Storage Limited Partnership and Public Storage, Inc., Defendant. TO: THE ABOVE-NAMED PLAINTFF: PLEASE TAKE NOTICE that, on the 16th day of November, 2007 at 9:00 a.m., at the Washington County Courthouse, 14949 62nd Street N, Stillwater, MN, before The Honorable Judge Mary E. Hannon, Defendants will move the court for an order granting them summary judgment under Rule 56 of the Rules of Civil Procedure. Defendants Secure Mini Storage Limited Partnership and Public Storage, Inc., move the Court for an order granting summary judgment. This motion is made pursuant to Rule 56, Minn. R. Civ. P, and is based upon the pleadings filed in the case, the attached Memorandum of Law and affidavits to be served on the Plaintiff and filed with the Court. f i Dated: 1 ' sa ./ -" By: Kelly& Fawcett, P.A. Trevor S. Oliver, No.304888 Attorney for Defendants 2350 UBS Plaza 444 Cedar Street St. Paul, MN 55101 Phone: (651) 224-3781 Fax: (651) 223-8091 1 STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: 14—Other Civil City of Oak Park Heights, a Court File No. 82-00-06-7138 Minnesota municipal corporation, Plaintiff, vs. ORDER Secure Mini Storage Limited Partnership and Public Storage, Inc., Defendant: The above-entitled matter came before the Court on October 5, 2007 at 9:00 a.m.,before The Honorable Mary E. Hannon,Judge of District Court, Washington County, Stillwater,Minnesota. Defendants Secure Mini Storage Limited Partnership and Public Storage, Inc., appeared by and through their attorney, Trevor S. Oliver. Plaintiff City of Oak Park Heights appeared by and through its City Attorney, Mark Vierling. The Court, having heard argument from the parties, having read the files and records herein and being fully advised in the premises, does now make the following order: IT IS ORDERED that the motion for summary judgment brought by Defendants is GRANTED for the reasons set forth in the attached memorandum of law. Dated: BY THE COURT: MARY E. HANNON Judge of District Court 1 STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: 14—Other Civil City of Oak Park Heights, a Court File No. 82-00-06-7138 Minnesota municipal corporation, Plaintiff; MEMORANDUM IN SUPPORT vs. OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Secure Mini Storage Limited Partnership and Public Storage, Inc., Defendant. INTRODUCTION Defendants seek summary judgment from the Court on both claims made by Plaintiffs. There is no account stated upon which Plaintiffs can be granted relief. Relief in quasi-contract is not available to Plaintiff in this matter because the applicable laws do not impose liability upon Defendants. The Court should also take into consideration Plaintiff's failure to diligently pursue its claims, which first arose in 1998. Judgment as a matter of law is appropriate in this case and the Court should award that judgment to Defendants, dismissing both of Plaintiff's claims. DOCUMENTS COMPRISING THE RECORD UPON WHICH THIS MOTION IS MADE. • 1. Plaintiffs Amended Complaint. 2. Defendant's Answer. 3. Affidavit of Trevor Oliver, with the following attachments as exhibits: A. City of Oak Park Heights Resolution 98-07-46; B. February 15, 2005 e-mail from Julie Hultman to Judy Hoist; C. 1998-1999 correspondence among landowner and Plaintiff officials; D. October 4, 1999 letter from Kris Danielson to Mark Vierling; E. September 8, 2005 letter from Trevor Oliver to Mark Vierling. l i FACTS Secure Mini Storage purchased the site involved in this dispute and built a self-storage facility while the land was still part of Baytown Township. The site used well water, septic disposal, and natural stormwater drainage to a pond near the facility. In or around 1997 or 1998, Oak Park Heights annexed the land and shortly thereafter approved a water, sewer and road improvement project for the annexed area (hereinafter "Kern Center"). Oak Park Heights decided to finance a portion of the project through connection charges for sanitary sewer, municipal water, and storm sewer, for which it used strictly area-based formulas. Plaintiff's resolution adopting and authorizing the connection charges assigned to landowners in the Kern Center area mandated that the Plaintiff contract with and collect charges from landowners prior to connection. See Exhibit A. Plaintiff did not seek to reach a contract with Secure Mini Storage prior to starting construction in 1998. Secure Mini Storage protested the amount of the connection charges assigned to their property upon learning of them in late 1998. See Exhibit C. At around the same time, Secure Mini Storage applied for a conditional use permit to build two additional storage buildings. Plaintiff and Secure Mini Storage never reached agreement on the method of calculating the connection charges, or the correct amount of the balance. In September, 1999, Plaintiff approved Secure Mini Storage's conditional use permit. See Exhibit D. Plaintiff also levied assessments related to the water and sewer improvements at Kern Center. Secure Mini Storage had no objection to the method of calculation or amount of the assessments, and paid them prior to 2000. Plaintiff made no further effort to collect the connection charges until sometime in 2005. See Exhibit B. Public Storage, Inc., which obtained the property through acquisition of the Secure Mini Storage Limited Partnership, protested the charges. See Exhibit E. The failure to resolve the protest and reach agreement on the correct balance of charges due led to the instant lawsuit by the Plaintiff. STANDARD OF REVIEW Summary judgment is proper when there isno genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. "There is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusion." DLH v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). Rule 56 "is designed to implement the stated purpose of the rules - securing a just, speedy, and inexpensive determination of an action - by allowing a court to dispose of an action on the merits if there is no genuine dispute regarding the material facts, and a party is entitled to judgment under the law applicable to such facts. Id. at 69. The non-moving party "may not rely on the possibility that he [or she] will be able to develop evidence at trial, but must present specific admissible facts showing a material fact issue." O'Neill v. Kelly, 307 Minn. 498, 199, 239 N.W.2d 231, 232 (Minn. 1976). Summary judgment must be granted when the non-moving party fails to provide the trial court with specific evidence that there is a genuine issue of material fact. See Thiele v. Stich, 425 N.W.2d 580, 584 (Minn. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).. The application of a statute to undisputed facts is a legal conclusion and is therefore appropriate for summary judgment. See Lefto v. Hoggsbreath Enters., 581 N.W.2d 855, 856 (Minn. 1998). Constitutional questions are also questions of law, which are appropriately determined at summary judgment. See State v. Wiegand, 645 N.W.2d 125, 129 (Minn. 2002). ARGUMENT A. There Is No Account Stated. The Plaintiff cannot meet its burden of proof to show that there is an account stated between the Plaintiff and Defendants regarding these connection charges. Two things are necessary to state an account: First, a mutual examination of the respective claims of the parties; and second, mutual agreement between them on the correctness of the claims, and the balance of the account. See Meager v. Kavli, 251 Minn. 477, 490, 88 N.W.2d 871, 881 (1958). Clearly, when one of the parties protests that the amount is incorrect or unjustified, there is no account stated. Id. at 880 (quoting Isaacs v. Wishnick, 136 Minn. 317, 318, 162 N.W. 297 (1917)). In this case, it is clear that Defendants have never reached agreement with the Plaintiff on the validity of these charges. Secure Mini Storage protested the charges to the Plaintiff in 1999 when it first learned of them while applying for a building permit. The Plaintiff responded to Secure Mini's representative, but failed to obtain Secure Mini's agreement to the validity of the charge, granting the building permit without collecting the charge. See Exhibit C. The grant of the permit following Secure Mini Storage's protest gives the appearance of waiver on the part of the Plaintiff. See Meagher, 251 Mimi. 477. The Plaintiff's Complaint acknowledges that no account was stated in 1999. See Complaint at ¶ 14. Following from the time that the Plaintiff asserts that the account was stated in 2005, the then-owners of the property, Public Storage, have consistently protested the validity of the charge and balance of the amount. See Exhibit E. There are no 'facts upon which the Plaintiff can show that the parties have mutually assessed the claims surrounding this charge and reached agreement on the correctness of the claims and balance of the account. The Court must grant Defendants summary judgment on the claim for an account stated. B. The Plaintiff Cannot Sustain its Claim of Unjust Enrichment. The Plaintiff's unjust enrichment claim must fail because the enabling statute does not impose liability upon Defendants. In raising unjust enrichment, the Plaintiff seeks to create a quasi-contract between the Plaintiff and Defendants. In the case of a public assessment or charge, a landowner is not liable in quasi-contract when the statute or ordinance authorizing the improvement imposes no liability upon the landowner. Independent School District of White Bear Lake v. Plaintiff of White Bear Lake, 208 Minn. 29, 36, 292 N.W. 777, 781 (1940). By the terms of the connection-charge enabling statute, a municipality is supposed to make express contracts with the owners of land to be connected for the connection charge, or otherwise "provide and covenant for certifying unpaid charges" along with other taxes. Minn. Stat. § 444.075, subd. 3 (2000). The Plaintiff has done neither. The Plaintiff did not reach agreement with each owner on these connections, even though its 1998 resolution authorizing these particular connection charges mandates that connection charges must be collected before any connection to the system is made. See Exhibit A. The 1998 resolution does not make any other provision for the collection of the charge if the Plaintiff somehow fails to collect before the . connection work is complete. Id. Neither the statute authorizing the improvements, § 444.075, or the ordinance under which the connection charges are authorized, at Exhibit A, directly imposes any liability upon the landowner. That liability is clearly meant, by both sources of authority, to be created by an express contract executed prior to the connection of any property. The standing law in our state prevents the court from implying or imposing liability upon a landowner when none is created by statute or ordinance. Id. Additionally, the ordinance requirement for an express contract should preclude the Plaintiff's claim in quasi-contract. See Sharp v. Laubersheimer, 347 N.W.2d 268, 271 (Minn. 1984)(stating that "equitable relief cannot be granted where the rights of the parties are governed by a valid contract"). The Plaintiff's failure to follow its own ordinance by obtaining an express contract should not allow it to seek relief through quasi-contract almost ten years after the fact. C. The Plaintiffs Action is Barred by Laches. The Plaintiff's inaction in this matter also raises the issue of laches. The doctrine of laches is appropriate for summary judgment. State by Citizens against Power Plant Pollution, Inc. v. Minnesota Environmental Quality Bd., 305 N.W.2d 575, 578 (Minn. 1981). Laches is an equitable doctrine applied to "prevent one who has not been diligent in asserting a known right from recovering at the expense of one who has been prejudiced by the delay." Winters v. Kiffineyer, 650 N.W.2d 167, 169 (Minn. 2002) (quoting Aronovitch v. Levy, 56 N.W.2d 570, 574 (Minn. 1953)). Plaintiff first had the right to demand a connection charge from landowners before connecting the properties to utilities. Hand in hand with that right went the obligation, stated in its own ordinance, to collect the charges before starting construction which would allow the connection. The Plaintiff did not seek collection before construction. Then, following construction, the Plaintiff asserted its desire to collect the connection charge before approval of a conditional use permit in 1999. The Plaintiff failed.to follow through on its possible right to collect in this instance. The Plaintiff did nothing for six years, before randomly deciding to assert its claims against a new owner of the property in 2005. The Plaintiff has clearly failed to exercise diligence in asserting its rights to collect these connection charges. CONCLUSION No facts exist which would allow Plaintiff to establish its claims of an account stated, and failing that, the Plaintiff is not entitled to quasi-contractual relief The Plaintiff plainly and simply failed to follow the directives of the enabling legislation, at both the city and State levels, which required it to contract with landowners and collect charges prior to connection. As a result, both of its causes of action against Defendants must fail, and the Court should grant Defendants judgment as a matter of law dismissing all claims against them. Dated: October 15, 2007 KELLY AND FAWCETT, P.A. Trevor S. Oliver(#304888) Attorney for Defendants 2350 UBS Plaza 444 Cedar Street Saint Paul, MN 55101 (651) 224-3781 STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: 14—Other Civil City of Oak Park Heights, a Court File No. 82-00-06-7138 Minnesota municipal corporation, Plaintiff, vs. AFFIDAVIT OF TREVOR OLIVER Secure Mini Storage Limited Partnership and Public Storage, Inc., Defendant. STATE OF MINNESOTA ) ) ss COUNTY OF RAMSEY ) Your Affiant, Trevor Oliver,having been duly sworn, deposes and says: 1) I am an attorney licensed to practice in the State of Minnesota.. I represent the Defendants in the above-captioned lawsuit. 2) Attached as Exhibit A to this affidavit is a true and accurate copy of Resolution 98-07-46, passed by the City of Oak Park Heights on July 28, 1998. 3) Attached as Exhibit B to this affidavit is a true and accurate copy of an e-mail from Julie Hultman to Judy Hoist dated February 15, 2005. • 4) Attached as Exhibit C are true and accurate copies of nine pages of correspondence among Tony Vavoulis, the City of Oak Park Heights, and the City's engineer from 1998 and 1999. 1 5) Attached as Exhibit D is a true and accurate copy of a letter to the City Attorney indicating that a Conditional Use Permit was granted to Secure Mini Storage prior to the October 4, 1999 date of the letter. 5) Attached as Exhibit E is a true and accurate copy of a September 8, 2005 letter from myself to the City Attorney protesting the connection charge on behalf of Public Storage, Inc. FURTHER YOUR AFFIANT SAYETH NAUGHT. Date: 9F v /0 Trevor Oliver Subscribed and sworn o before me On this day of 2007. Notary Public `:'-• ALICE M DUN NOTARY PUBLIC s� ; ` MINNESOTA "T;r»'+. My Commission Expires Jen.31,2012 2 • RESOLUTION NO . 9 8, p7-46 CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY, MINNESOTA A RESOLUTION ESTABLISHING CONNECTION FEES • THROUGHOUT THE CITY OF OAK PARK HEIGHTS FOR CONNECTIONS TO MUNICIPAL WATER SYSTEMS, SANITARY SEWER SYSTEMS AND STORM SEWER SYSTEMS WHEREAS, Minn. Stat . §444 . 075 , Subd. 3 authorizes municipalities to establish a system of charges for the construction, reconstruction, repair, enlargement , improvement or other obtainment, maintenance operation and use of municipal facilities, including, but not limited to charges for connections to such municipal facilities for municipal water, sanitary sewer, and storm sewer; and, • WHEREAS, City ordinances provide for the Council to establish from time to time connection charges to be colt '--.=d for properties developing in and connecting to the municipal water, sanitary sewer and storm sewer systems; and, WHEREAS, the City has historically established ana collected connection chard and WHEREAS, connection charges established by the City of Oak Park Heights -_eaui_e modification and amendm__L from p_me to time ; and, WHEREAS, the office of the City Engineer has provided recommendations to the City Council as it affects the establishment. of connection charges throughout the City of Oak Park Heights as it.- relates trelates to connection to trunk sanitary sewer systems, trunk water systems and trunk storm sewer systems; and, WHEREAS, the City Council determines it to be it _he best interest of the residents and City of Oak Park Heights that such fees be periodically renewed and adjusted to take into account cost of construction and replacement and systems, cost of maintenance operation and other expenses that the City expects to incur with regard to the maintenance of such systems . NOW, THEREFORE, BE IT RESOLVED, by the City Council for the City of Oak Park Heights that effective August 1, 1998 city connection charges to be applied throughout the City of Oak Park Heights for properties developing or connecting to municipal utilities shall be as follows : EXHIBIT /� /LL` 1 . Sanitary sewer connection charge, $2, 310 . 00 per acre . • 2 . Municipal water connection charge, $4, 010 . 00 per acre . 3 . Storm sewer connection charge, $5, 080 . 00 per acre . BE IT FURTHER RESOLVED, that as to the computation of acreage as it affects each development or connection related to the collection of these fees, all such computations shall be made through the office of the City Engineer with all such fees being • • thereafter collected through the office of the City Administrator. No connection shall be made to any municipal utility system until such time as the connection fees as calculated and determined by the office of the City Engineer have been collected. Passed by the City Council for the City of Oak Park Heights this 2gth day of July, 1998 . / V i/2 tcnaaf , MG ori YTTEST : /^ homas Melena Administrator Judy Hoist From: Julie Hultman . Sent: Tuesday, February 15, 2005 2:27 PM To: Judy Hoist Subject: RE:WATE & Secure Mini Storage Permits Hey Judy N Here is what I could find: 5710 Memorial Ave. N. (Secure Mini Storage): The storage complex came to OPH through annexation sometime between 1996 and 1999. In 1996 Baytown Township granted the-site an amended conditional use permit for the number of buildings and storage capacities. From all that I can see, they were well and septic. April 28, 1999 OPH granted the site a cup for the addition of two storage buildings, which were permitted on 6/18/99 at a job value of$480,000. I did find an 8/3/99 letter from Bonestroo responding to Anthony Valvoulis May 99 correspondence as to connection charges being required and why in the amount of$102,714. This same correspondence notes that the monies are to be paid with the building permit.The Building permit notes no such charge. Secure Mini Storage is now Public Storage - within the last year There is a public works note on 2/7/00 that a 5/8" water meter was connected and that it was sewer only. 5620 Memorial Ave. N.: This property also came to the City from Baytown Township annexation. A 2"water meter was connected at the site and noted as a water and sewer account. I find no building permits to the _file with a connection charge fee on it. An amended June 30, 2000 Developer's Agreement states that connection fees shall be paid by the Developer and that the City Engineer will compute the fee amount as prescribed by ordinance/resolution as to the development and advise the City Clerk as to the appropriate fee to be collected. I find no record beyond this that makes mention of the connection fccs or an amount ever being calculated or cornrnunicatati to Mr. Zinti, much less paid. 5630 Memorial Ave. N.: Building permit issued on 04/30/01 for building construction (job value 5337,428) with 2 sac units charged and a 1-1/2" water meter. No charges for connection are upon the permit I am expecting that any connection fees were part of the new platting of formerly lots 5-7, Block 2 of Kern Center 2nd Addition which became Lots 1-6, Block 1 WATE E Addition (and includes address 5620-5670 Memorial Ave. N.). 5630 is the lot immediately in front of 5620 Memorial Ave. N. This file information was the thinnest of them all. Bottom line, I find no record of the payments on any building permits although the Secure Mini site does note that it should have shown up on one. As far as WATE (Memorial) goes, I am unable to find a communication of any kind that cites an amount to be paid. Let me know if I can be of any additional assistance. Julie - • Original Message From: Judy Hoist Sent: Monday,February 14,2005 10:52 AM EXHIBIT • 8 e , To: Julie Hultman Subject: WATE&Secure Mini Storage Permits Good Morning, Could you tell me when the permits were issued for Secure Mini Storage and for 2 of WATE's lots. The addresses and legals are: 5710 Memorial Ave. N. (Secure Mini) Lots 8, 9, 10 Block 1 Kern Center 5620 Memorial Ave. N. (WATE) Lot 6, Block 1 WATE Addition 5630 Memorial Ave. N. (WATE) Lot 5, Block 1 WATE Addition I'm checking connection fees and these are the parcels I have with utilities, but don't see any connection fees paid. Thanks for your help Judy .. .. ._.............. • Post-1r Fax Note 7671 Date i}all�g pages� SECISE • To lr 1 I t)ciiA. From i �l k'NIJV U CoiDept. Co, Phone it Phone IJ STORATr �. GE Fax Fax ��.�iod Daub Memorandum • To: Chris Danielson —Community Development Director, Oak Park Heights From:Tony Vavoulis RE: Fees, Charges and Assessments Date: December 30, 1998 I need some help understanding the amounts and timing of certain fees, charges and assessments that are expected to be levied against the Secure Mini Storage property at 5710 Memorial Avenue North. Could you please answer the following questions? 1. If we did no ex.Tansion or remodeling of any kind, when would we be required to conven to sewer and water? 2. If we did rc expansion or remodeling of any kind, when would we be required to start paying dollars to the City, and what is the projected amount? 3. How much of2 above is required to be paid lump sum and how much is paid in installments over what period of time? 4. If we choose to expand our facility by adding 12;000 SF. of storage only during the summer of'99, would we be required to convert to city sewer and water? 5. How much and when would the various charges and assessments be due if conversion is required at that time? I am currently working on our 1999 budget and building plans. In order to make a sound decision I need to better understand the answer to the above questions as soon as possible. At this point, I have no confidence in my knowledge of these expenses. I understand that there may not be hard firm numbers, but any assistance that you could provide would greatly appreciated. If you could FAX me your estimate, it would be most helpful. Thank you. • 740 Linwood Avcnuc EXHIBIT Saint Paul,MN 55105 (612)290.0507 .EAX(6]2)290.0106 5 C „A: Lily ot ty� :t4 Oak Park Heights x r, 14168 57th Street N•Box 2007.Oak Park Heights,MN 55082 •Phone(651)439-4439•Fax 439-0574 Memo To: Joe Anderlik, Jim Butler, Judy Hoist, Scott Richards From: Kris Danielson Date: 01/11/99 Re: Secure Mini-Storage Request Tony Vavoulis of Secure Mini Storage has faxed me a Lst of questions he has surrounding the pending improvements slated for the Kern Center area as well as his own planned improvements for his facility located at 5710 Memorial Avenue North. I know that many of you have spoken directly with Mr. Vavoulis in the past regarding his concerns. Please let me know if you can be of some assistance in answering these questions. Thanks. TREE CITY U.S.A. DUI ICo Lf(JL) Principals:Otto G.Bonestroo,P.E.•Joseph C.Ai,._iiik,P.E.• Marvin L.Sorvala.RE. • 4Fa 41 Richard E.Turner,P.E.•Glenn R.Cook,P.E.• Robert G.Schunicht,P.E.• Jerry A.Bourdon,P.E.- 4 �;� �oSene Robert W.Rosene,P.E.and Susan M.Eberlin,C.P.A.,Senior Consultants �1'1�eC,�[�E Associate Principals:Howard A.Sanford,P.E.• Keith A.Gordon,RE.• Robert R. Pfefferle,P.E.• ?,Ut t Richard W.Foster,P.E.•David O.Loskota,RE.•Robert C.Russek,A.I.A.• Mark A.Hanson,P.E.• rt �• /� Q Michael T.Rautmann,P.E.• Ted K.Field,P.E.• Kenneth R.Anderson,P.E.•Mark R.Rolfs,P.E.• Associates Sidney P.Williamson,RE.,L.S.• Robert F.Kotsmith•Agnes M.Ring• Michael P.Rau,P.E. • a. J Allan Rick Schmidt,P.E. Offices:St.Paul.Rochester,Willmar and St.Cloud,MN•Milwaukee,WI Engineers &Architects _____—--- -- Website:www.bonestroo.com +"— —'1 I� 1 1' II January 11, 1999 * JAN 19991 \) Ms. Kris Danielson City of Oak Park Heights L. -- P.O. Box 2007 Oak Park Heights, MN 55082-2007 Re: Kern Center Improvements Secure Mini Storage Our File No. 55-98-802 Dear Kris: We are in receipt of the memo from Tony' Vavoulis which asked several questions relating to fees, charges and assessment. It is my understanding, that the answers to the questions raised are as follows: • 1. If no modifications were made to the structures, connection to the water and sewer systems would not be required until the existing on-site sewage system or well failed or was in need of repair. 2. If no modifications were made to the structures, payment of the deferred assessments • would start after six (6) years. It is our understanding that the assessment would be • spread over 15 years with interest paid on the unpaid balance each year. The assessed amount is estimated to be between $49,020.00 and $41,580.00 depending upon the alternate assessment method selected. The connection charge of $102,714.00 would be paid when a permit is issued to connect to the systems. 3. Questions on payment schedule is answered in -42 above. 4. If the facility is expanded or modified for any purpose, it would be required to connect to the City system. 5. The connection charge pf$102,714.00 would be due upon receipt of the building permit. The assessments would be collected over a 15 year period with he first principal amount plus interest on the unpaid balance probably due with the taxes payable in the year 2000. If you have any questions on this matter,please do not hesitate to call me at 651-604-4833. Very truly yours, BONESTROO, ROSENE, ANDERLIK &ASSOCIATES,INC. " C:?,,,t,i0L a Joseph C. Anderlik 2335 West Highway 36 ■ St. Paul, MN 55113 . 612-636-4600 . Fax: 612-636-13.11 CTCV _ : MEV DLL55 STORAGE MAY 1 I 1999 May 7, 1999 Ms Kris Danielson City of Oak Park Heights P.O. Box 2007 Oak Park Heights, MN 55082-2007 RE: Connection Charge Dear Mc. n---r L3on: I am in receipt of Mr. Anderlik's letter of January 11, 1999 responding to my December 30, 1998 memo regarding fees, charges and assessments for Secure Mini Storage's three lots. Since that time we have developed a proposal for expanding our facility and on April 27, 1999 we gained approval of the plan as proposed. We are still trying to work through the financial feasibiihy of the project. As we evaluate each of the costs involved with the development, one of the items that seems out of line is the Connection Charge of$102.714 noted in Mr. Anderiik's letter. I would like you to help me better understand this item: 1. What is the basis for this charge? 2. Why this amount? 3. What is my benefit? 4. What is the appeal process? 5. Does Secure have to pay it at the time the building permit is issued if the system is not in place and service available? 6. Can this payment be made over time? 7. Secure has three lots, if we use the stub from only one of the three lots could we be charged the area connection charae for only the one lot? This would defer the other two lot charges for some future date. Please respond by.May 20, 1999, if possible, If we proceed, we would like to move forward soon to allow completion prior to this fall. If you have any questions please call. Thank you. Sin er-Iy i 1 , Ott A 41.17‘ avoulis Management Agent - SMS 740 Linwood Avenue Saint Paul,Minnesota 55105-3322 (651)290-0507 FAX(651)290-0106 • -14 OAK PARK HEIGHTS A. � y 14168 North 57th Street • P.O. Box 2007 • Oak Park MN 55082-2007 • Phone:one: 651/439-4439 • Fax 6 51/439-0574 May 18, 1999 Secure Mini Storage Limited Partnership 3245 Hiawatha Avenue South Minneapolis, MN 55406 RE: Conditional Use P .mit for Secure Mini Storage at site location 5710 Memorial Ave. North, Oak Pack heights,Minnesota Dear Sir/Madam: Enclosed please and three o- 1 ConditionAl Use Permits for Secure Mini Storage. Please obtain the aptro e sie es.return two copies to me and retain one for your files. I will then forward one copy to 'Washington County to record. If you have any questions,please do not hesitate to contact me. Sincerely, *a_, "(Y1 ._ / L -A_/ Lisa M. Schleusner Administrative Secretary/Deputy Clerk Ams Enclosures Tree City U.S.A. :NECURE innif LE C STORAGE JUL 2 7 July 25, 1999 Mr. Joseph C. Anderlik Bonestroo, Rosene, Anderlik & Assocates, Inc. 2335 West Highway 36 St. Paul, MN 55113 RE: Connection Charge Dear Mr. Anderlik: I am writing you as a follow up to my May 7, 1999 letter (copy enclosed). I understand that my letter was forwarded to you for response. I have to date not recei:'ed any comment. I am simply trying to understand why Secure's property is subject to such a high fee, Connection Charge of $102,714. You indicated when I talked to you some time prior to my May letter that the City authorized the fee allocation and the effect is worse on some other owner's property. I understand that, but I am still searching for a rationale for the seemingly high cost versus benefit for Secure's property. I do feel I deserve some response to this request. If you have any questions please call. Thank you. Sincerely, ) nt ony . avoulis Ma • agement Agent - SMS SM Cc: Kris Danielson ✓ 740 Linwood Avenue Saint Paul, Minnesota 55105-3322 (65 I) 290-0507 FAX (651)290-0106 . honest oo Principals:Otto G.Bonestroo,P.E.•Joseph C.Andc__,,..P.E.• Marvin L.Sorvala,P.E.• • C p•� Glenn R.Cook,P.E.• Robert G.Schunicht.P.E.• Jerry A.Bourdon,P.E.• Roselle Robert W.Rcsene.P.E..Richard E.Turner,P.E.and Susan M.Eberlin,C.P.A..Senior Consultants Associate Principals:Howard A.Sanford.P.E.• Keith A.Gordon,P.E.• Robert R.Pfefferle.P.E.• vfl Al Ideri ik & Richard W.Foster,P.E.• David O.Loskota,P.E.•Robert C.Russek.A.I.A.• Mark A.Hanson. P.E.- Michael T.Rautmann,P.E.• Ted K.Field,P.E.• Kenneth P.Anderson.P.E.• Mark R.Rolfs,P.E.• Associates Sidney P.Williamson,P.E..L.S.• Robert F.Kotsmith•Agnes M.Ring•Allan Rick Schmidt.P.E. Offices:St.Paul,Rochester,Willmar and St.Cloud,MN• Milwaukee.WI • Engineers & Architects Website:www.bonestroo.com ^ n August 3, 1999 Mr. Anthony Valvoulis Secure Mini Storage 740 Linwood Avenue St. Paul, MN 55105-3322 Re: Kern Center Connection Charges City of Oak Park Heights Our File No. 55-98-802 Dear Mr. Vavoulis: We are in receipt.of your letter of July 25, 1999 requesting information relative to the connection charges being assigned to your Secure Mini Storage site in the Kern Center. The following is in response to your questions 1 through 7 as outlined in your May 7, 1999 correspondence. 1. The following table shows the breakdown of the $102,714.00 connection charge: Lot 8, Block 2. Kern Center 2nd Trunk Sanitary Sewer 2.96 ac x $2,310.00/ac $6,837.60 Trunk Waterworks • 2.96 ac x 4,010.00/ac 11,869.60 • Trunk Storm Sewer - • 2.96 ac x 5,080.00/ac 15,036.80 Total Lot 8 $33,744.00 Lot 9. Block 2, Kern Center 2nd Trunk Sanitary Sewer 3.00 ac x $2,310.00/ac $6,930.00 Trunk Waterworks . 3.00 ac x 4,010.00/ac 12,030.00 • Trunk Storm Sewer 3.00 ac x 5,080.00/ac 15,240.00 . Total Lot 9 $34,200.00 Lot 10, Block 2, Kern Center 2nd Trunk Sanitary Sewer 3.05 ac x $2,310.00/ac $7,045.50 Trunk Waterworks 3.05 ac x 4,010.00/ac 12,230.50 •.Trunk Storm Sewer 3.05 ac x 5,080.00/ac 15,494.00 Total Lot 10 $34,770.00 TOTAL SECURE MINI STORAGE $102,714.00 2335 West Highway 36 . St. Paul, MN 55113 ■ 651-636-4600 ■ Pax: 65T-636-1311 Mr. Anthony Valvoulis Secure Mini Storage Page 2 2. The acreage charge rates were computed in previous comprehensive studies by estimating the cost for the major trunk facilities to serve the entire City of Oak Park Heights divided by the area to be served by these improvements. The facilities include existing and future trunk and interceptor sanitary sewers, trunk water main and water main oversizing, pressure reducing stations, sewage lift stations, force mains, wells, pumps, pumphouses and water storage tanks and related appurtenances. These rates are also increased from time to time to include inflation on future trunk type facilities. 3. The benefit of the trunk facilities in combination with the lateral utilities is to provide water and sewer service for each property in the City of Oak Park Heights. The lateral utilities must discharge to downstream facilities or be connected to supply facilities to function. Therefore, both facilities and both charges must be considered for service. The trunk and supply facilities are not required, theoretically, until connection is made which is the reason for the two charges and the payment schedule for each. It should be noted that the combination of connection charge and the estimated assessments for the Mini Storage site results in a cost of just under 39 cents per square foot of land area which is similar to or less than most other suburban costs for utility service to commercial land uses. 4. We are not aware of an appeal process for connection charges if the charges 'simply recover costs. You are always welcome to be placed on a Council Agenda with pertinent information on most matters. Questions of this nature should probably be refe ied to legal council rather than to the engineering staff. 5. City policy requires payment of connection charges in cash at the time building permits are issued. At this point in time service is or will be available in the very near future. 6. City policy has no provisions for paying connection charges over time. You may consider this a pertinent matter for discussion. 7. The Secure Mini Storage site is located on three legally described lots so it is necessary for the City to show assessments and connection charges for each legal lot. However, the lots function as one site and the entire $102,714.00 must be paid at the time the building permit is issued. The final comment which should be noted is that all development occurring in the City of Oak Park Heights pay the same area or connection charge, adjusted for inflation from time to time. This includes Oak Park Ponds, Menards, the school, Autumn Ridge and all other development including the Kern Center. These charges are being applied uniformly to recover costs being incurred so it is believed that the charges are fair and equitable for the services provided. Mr. Anthony Valvoulis Secure Mini Storage Page 3 It is hoped that the information provided herein will assist you in understanding the financing procedures used by the City of Oak Park Heights to provide public utility service. Very truly yours, BONESTROO, ROSENE, ANDERLIK&ASSOCIATES, INC. C:2„,2k Ce4(. ..,1), • Joseph C. Anderlik cc: Thomas Melena Kris Danielson dI ui • �, PARK K HEIGHTS I .„...04. 4. `'.' 14168 North 57th Street • P.Q. Box 2007 • Oak Park Heights, MN 55082-2007 • Phone:651/439-4439 • Fax: 651/439-0574 a V October 4, 1999 Mr. Mark Vierling,Attorney at Law Eckberg,Lammers,Briggs, Wolff&Vierling 1835 Northwestern Ave. Stillwater,MN 55082 Re: Secure Mini Storage Conditional Use Permit Address: 5710 Memorial Ave.N.,Oak Park Heights MN Dear Mark: Enclosed herewith and returned to you for recording,please fmd the signed conditional use permit for Secure Mini Storage. If you have any questions,please call me. Sincerely, kris Danielson Community Development Director KD:jah Enclosure rXBITJ HI Tree City U.S.A. Kelly & Fawcett, P.A. ATTORNEYS AT LAW OF COUNSEL MccUIGAN&HOLLY;PLC Trevor S. Oliver toliver@kellyandfawcett.corn September 8, 2005 Mark J. Vierling Eckberg, Lammers, Briggs, Wolff& Vierling, PLLP 1809 Northwestern Avenue Stillwater, MN 55082 RE: Cash Connection Charges on Public Storage, 5710 Memorial Avenue, Oak Park Heights, Minnesota Dear Mr. Vierling: Our film represents Public Storage, Inc., the current owner and operator of the property at 5710 Memorial Avenue in Oak Park Heights. Public Storage acquired the business entity which formerly owned and operated this Secure Mini Storage, and its physical assets, in October, 2004. As a result, we are in receipt of your letter sent to Secure Mini in March 2005 regarding connection charges. We have been in contact with the City on our client's behalf regarding some cash connection charges the City seeks for sewer and water improvements undertaken in 1999. We have had opportunity to review documents in the City's files regarding the cash collection charges on our client's property. On this review, we cannot recommend that Public Storage pay the cash connection charges sought. Our objections are based on the following: 1. Lack of an ordinance. The City Council must set connection charges, by either resolution or ordinance. Nordgren v. Maplewood, 326 N.W.2d 640, 642 (Minn. 1982). Without an ordinance or resolution, the charges are invalid. We did not locate an ordinance or resolution setting connection charges in the materials presented to us by the City. Unless there is an Oak Park Heights ordinance or resolution setting the charges., it is our position that the charges are invalid and cannot be collected. 2. Improper calculation of charge. Minn. Stat. § 444.075, subd. 3a specifically prohibits the use of square footage, or similar area measurement, to calculate connection charges for sanitary sewers. The City's connection charges for all three services — storm sewer, sanitary sewer, and municipal water — are based upon land area. Public Storage is not obligated to pay charges that are calculated contrary to statute. 444 CEDAR STREET,SUITE 2350 SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 FACSIMILE 651-223-8019 www.kellyandfawcett.com EXHIBIT s August 25, 2005 SUBJECT: Cash Connection Charges on Public Storage, 5710 Memorial Avenue Page 2 of 2 3. Connection charges not due. The record indicates that the 5710 Memorial Avenue has not connected to the municipal water system, and is still using water from a well on the property. Connection charges are not due until the property connects to the system. Public Storage disputes whether any charges are due relating to the municipal water system. 4. Charges are not proportional. Connection charges must be rationally related to the cost of connecting the property and the benefit to the property. The current charges for the sanitary sewer and municipal water far outstrip the benefit to the Public Storage property. As a storage facility, Public Storage has minimal use of sanitary sewer and water, especially in relation to the size of the property. .The use of acreage to determine sanitary sewer and water charges, along with violating the authorizing statute, also vastly overstate the value of the improvement to the Public Storage property. A proper basis for connection charge is the projected or actual use of the systems by the property, which would result in a much smaller charge against Public Storage. I would like to meet with you to discuss the charges against my client's property. My preference _ is to reach a resolution acceptable to all parties before requesting a hearing before the City Council or seeking relief in Court. Please do not hesitate to call to discuss. Respectfully yours, KELLY & FAWCETT, P.A. _—Trevor S. Oliver Patrick J. Kelly • TSO/rjo • Cc: L. Klichan N. Choudhry • • *Also Admitted in Wisconsin y'1'Real Property Law Specialist,Certified by the Real Property Section of the Minnesota State Bar Association ECKBERG LAMMERS fin ATTORNEYS AT LAW 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 (651)439-2878 Fax(651)439-2923 Writer's Direct Dial: (651)351-2118 www.eckberglammers.com Writer's E-mail: mvierling@eckberglammers.com September 12, 2007 Eric Johnson City Administrator City of Oak Park Heights 14168 Oak Park Boulevard North Oak Park Heights, MN 55082 Re: City of Oak Park Heights v. Secure Mini Storage, et al. Court File No. CO-06-7138 Dear Eric: Enclosed please find a copy of the Notice of Court Trial rescheduling this matter from December 19 to February 20, 2008 to allow the judge time to consider the summary judgment motions to be heard on November 16. As such, please note both November 16 and February 20 on your calendar as your attendance may be necessary at those times. And as always,if yo •. e any questions regarding this or anything else, please do not hesitate to contact me directl Your: Mark J. Vierling MJV/sdb Enclosure ECKBERG, LAMMERS, BRIGGS, WOLFF 8 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation • MARK J VIERLING Washington County ECKBERG LAMMERS BRIGGS ET AL Stillwater, Minnesota 1809 NORTHWESTERN AVE STE 110 STILLWATER MN 55082 NOTICE OF: COURT TRIAL Case Number: C0-06-007138 --- Re: CITY OF OAK PARK HEIGHTS MEH --- vs. SECURE MINI STORAGE LIMITED PARTNERSHIP & PUBLIC STORAGE You are hereby notified that the above matter has been set for Court Trial on Feb 20, 2008 at 9:00 a.m. before the \ ,` Honorable Mary E. Hannon at the following location: Washington Cty Government Ctr. 14949 62nd St N-PO Box 3802 Stillwater, MN 55082-3802 You are expected to appear at the above time and place fully prepared. It is your responsibility to have your client and witnesses present. RESCHEDULED FROM 12-19-07 Sept 11, 2007 Christina M. Volkers Court Administrator Phone: (651) 430-6371 By:Judy Kostohryz Kelly & Fawcett, P.A. ATTORNEYS AT LAW OF COUNSEL: Trevor S. Oliver McGUIGAN&HOLLY,PLC toliver@kellyandfawcett.com September 6, 2007 The Hon. Mary Harmon Judge of District Court Washington County Courthouse FOR YOUR 14949 62nd St.N,Box 3802 INFORMATION Stillwater, MN 55082-3802 RE: City of Oak Park Heights v. Secure Mini Storage, et. al. Court File No. 82-00-06-7138 Dear Judge Hannon: I have prepared a motion for summary judgment in this case, and I just spoke with Judy, your scheduling clerk to confirm a date. I was under the impression that we had set a hearing for October 5, or otherwise reserved the date for a hearing. Judy informed me, however, that your calendar does not have any openings for a summary judgment hearing until the date of our pretrial conference on November 16th at 9:00. Because our current scheduling order requires that we have hearings on dispositive motions by October 5, I ask your permission to schedule the hearing on my motion (and any cross-motion that may be filed by the Plaintiff) on November 16th at 9. Thank you for your time in considering this matter. Respectfully yours, KELLY&FAWCETT,P.A. Trevor S. Oliver TSO/tso Cc: Mark Vierling, Plaintiff's attorney 444 CEDAR STREET,SUITE 2350 SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 FACSIMILE 651-223-8019 www.kellyandfawcett.com Kelly & Fawcett, P.A. ATTORNEYS AT LAW OF COUNSEL: Trevor S. Oliver McGUIGAN&HOLLY,PLC toliver@kellyandfawcett.com August 15, 2007 Mark Vierling Eckberg Lammers FOR YOUR 1809 Northwestern Avenue INFORMATIONStillwater, MN 55082 RE: City of Oak Park Heights v.Public Storage Dear Mr. Vierling: Thank you for your letter on August 9 disclosing the identity of an expert witness. Since Mr. Postler or another representative of Bonestroo was likely to be a fact witness anyway, can you state the subject matter for which Mr. Postler is being offered as an expert, and the likely substance of his testimony? We also had a phone conversation a few weeks ago in which we floated a couple of ideas for settlement, in particular, finding a "middle ground" price or dropping the case if Public Storage disconnects from sewer and water and pays the storm sewer connection charge. These possibilities are interesting to my client, but we would prefer that the ideas pass muster with the City Council before we spend time exploring them. If you could run the ideas we discussed past the Council in closed session and respond with an authorized proposal, that would help us possibly reach resolution of this case. Respectfully yours, KELLY & FAWCETT, P.A. Mme„ ✓.:�-µ Trevor S. Oliver - TSO/tso Cc: Ammar Kharouf, Public Storage A!JG 2 0 2007 444 CEDAR STREET,SUITE 2350 SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 FACSIMILE 651-223-8019 www.kellyandfawcett.com ECKBERG a LAERS ATTORNEYS AT LAW Writer's Direct Dial: 1809 Northwestern Avenue, Suite 110 Writ 351-2118 Stillwater, Minnesota 55082 (651)439-2878 (651Fax(651) 439-2923 Writer's Email: mvierling©eckberglammers.com www.eckberglammers.com August 21, 2007 Up r Mr. Trevor S. Oliverir „..--, Kelly&Fawcett, P.A. 444 Cedar Street, Suite 2350 St. Paul, MN 55101 Re: City of Oak Park Heights v. Secure Mini Storage Limited Partne rsh and Public Storage Limited Partnership and Public StorageI Court File No. 82-00-06-7138 g , nc. Dear Mr. Oliver: I am in receipt of your correspondence of August 15. Mr. Postler, on behalf of Bonestroo, will be testifying on behalf of the City of Oak Park Heights in this matter with re calculation of the City's various connection and Ci thereto. charges and the policiesthe methodology of ty pr practiti ces that are attendant With regard to the issue of a potential proposal from your client to disco sewer and yet pay the storm sewer connection charge,I can advise you that I have been City Council and informed them of the matter and although disconnect from the city water and front of it which to act, it is my impression from my in touch with the the City Council certainly has no matter in receptive to a proposal from your client to disconnect from the city water and sewer contacts with my client that they would be understanding that a future reconnection to those services would then again that would be due at that future connection time with regard services with the that that time,at the future connection n fee would be calculatedg triggert the connectiondsanitary scwer to municipal water and sanit therefore that would be in place at the time of the connection, which is the �' sewer with regard to the fee and the policy you have any questions in the matter,please feel free to contact me directlClty's established policy. If Y Yours very truly, Mark J. Vierling MJV/sdb it 1! cc: Eric Johnson t!�\\ AUG 2 3 2007 �' ! J ECKBERG, LAMMERS. BRIGGS, WOLFF & VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning;Probate • Real Estate • Land Use Law • Mediatio!i • Municipal Law • Civil Litigation ECKBERG LAMMERS rA,:t.#1 ATTORNEYS AT LAW 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 (651)439-2878 Writer's Direct Dial: Fax(651)439-2923 (651)351-2118 www.eckberglammers.com Writer's E-mail: mvierling@eckberglammers.com August 15, 2007 AUG 2 0 2007 Eric Johnson City Administrator City of Oak Park Heights 14168 Oak Park Boulevard North Oak Park Heights, MN 55082 Re: City of Oak Park Heights v. Secure Mini Storage, et al. Court File No. CO-06-7138 Dear Eric: Enclosed please find a copy of an Amended Scheduling Order entered by the Court on August 10,2007. Please note that a pre-trial conference has been scheduled for November 16, 2007 at 9:00 a.m. and a court trial has been set for December 19,2007 at 9:00 a.m. Please note both of these dates and times on your calendar as your attendance will be necessary should this_ •- - . • :. to trial. If you have any questions regarding this correspondence,please do not •: "ate to contact • - directly. Yo, s very t , Mark J. Vierling MJV/sdb Enclosure ECKBERG, LAMMERS, BRIGGS, WOLFF &r VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation STATE OF MINNESOTA TENTH JUDICIAL DISTRICT COUNTY OF WASHINGTON STILLWATER, MINNESOTA 55082-3802 In Re: CITY OF OAK PARK HEIGHTS MEH vs. SECURE MINI STORAGE LIMITED PARTNERSHIP & PUBLIC STORAGE Case Number: 82-C0-06-007138 MARK J VIERLING ECKBERG LAMMERS BRIGGS ET AL 1809 NORTHWESTERN AVE STE 110 C PY STILLWATER MN 55082 MAT .YON NOTICE O F FILING O F ORDER You are hereby notified on August 10, 2007 a AMENDED SCHEDULING ORDER "4 was filed in the above entitled matter. A true and correct copy of this notice has been served by mail upon the parties named herein at the last known address of each, pursuant to the Minnesota Rules of Civil Procedure. Christina M. Volkers, Court Administrator By Judy Kostohryz hated: August 14, 2007 Deputy )ate STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Court File No. CO-06-7138 City of Oak Park Heights, a Minnesota municipal corporation, Plaintiff, AMENDED vs. CIVIL SCHEDULING ORDER Secure Mini Storage Limited Partnership and Public Storage, File# Defendant. F WASHINGTON COUNTY F ' DISTRICT COURT EAUG'- - 2007 E Mark Vierling representing Plaintiff. D CHRISTINA M. VOLKERS COURT A INISTRATOR Patrick J. Kelly and Trevor S. Oliver representing Defendant. Deputy IT IS HEREBY ORDERED THAT: 1. All discovery, including depositions for use at trial, shall be completed in full on or before November 9, 2007. The parties may by mutual agreement and leave of the Court extend the discovery deadline to 10 days prior to trial. The deadline date for dispositive motions shall remain as set forth herein. 2. The deadline for Plaintiff's disclosure of identity (including curriculum vitae) of expert witnesses is October 5, 2007. • 3. The deadline for Defendant's disclosure of identity (including curriculum vitae) of expert witnesses is October 19, 2007. 4. All dispositive Motions shall be heard by the Court no later than October 5, 2007. 5. All non-dispositive Motions shall be heard by the Court no later than October 19, 20?7. 6. This matter shall be heard by the Court. 7. A joint statement of the case shall be submitted to the Court by November 9, 2007. 8. The parties shall engage in some form of Alternative Dispute Resolution pursuant to Minn. R. Gen. Pract. 114, or advise the Court as to why ADR is not appropriate in this case, prior to the pre-trial conference date. 9. The pre-trial conference shall be held on Friday, November 16, 2007, at 9:00 a.m., before the Honorable Mary E. Hannon, at the Washington County Courthouse in Stillwater, Minnesota. All parties are expected to personally appear for the pretrial conference or, with leave of the Court, be immediately available by telephone. 10. Witness and exhibit lists shall be exchanged by the parties and filed with the Court by December 12, 2007. 11. All trial briefs and trial motions, if any, shall be served and filed with the Court by December 12, 2007. 12. The trial shall be held on Wednesday, December 19, 2007, at 9:00 a.m., before the Honorable Mary E. Hannon, at the Washington County Courthouse in Stillwater, Minnesota. 13. Requests for trial continuances must be by stipulation of the attorneys and their respective clients or by proper motion to the Court. 14. The Washington County Court Administrator shall serve a true and correct copy of this Order by U.S. Mail upon counsel for the above-named parties and on any pro se parties. BY THE COURT: Signed in Chambers Stillwater, Minn sota Dated this lb ' ay of __/Oar/$17/C441- , 2007 f/ „,4v onora ary E. 'nnon Judge of Minnesota District Court Tenth Judicial District 2 E=BERG ATTORNEYS AT LAW 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 Writer's Direct Dial: (651)439-2878 (651)351-2118 Fax(651)439-2923 Writer's Email: www.eckberglammers.com mvierling@eckberglammers.com August-9, 2007 C r Mr. Trevor S. Oliver Kelly&Fawcett, P.A. 444 Cedar Street, Suite 2350 St: Paul,MN 55101 Re: City of Oak Park Heights v. Secure Mini Storage Limited P artnersh and Public Storage Limited Partnership and Public Storage,Inc. Court File No. 82-00-06-7138 Dear Mr. Oliver: • By this correspondence I am disclosing that Mr. Dennis Postler of Bonestroo expert witness- in the above-referenced matter. Enclosed please find Mr. Potle's appearing as an vitae/statement of qualifications.. curriculum Yours very truly, Mark J. Vierling MJV/sdb Enclosure cc: Eric Johnson ECKBERG, LAMMERS. BRIGGS, WOLFF .VIERLING, PLLP Family Law/Divorce Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation CIVIL GROUP LEADER Dennis M. Postler, PE - Qualifications for Civil Engineering As the leader of Bonestroo's Civil Group, Mr. Postler directs the activities of the firm's largest group of employees. Dennis specializes in project management, engineering design, and city services. Dennis also serves as city engineer for Oak Park Heights, MN. Dennis develops comprehensive capital improvement plans; determines connection/impact fees for truck facilities; prepares feasibility reports; provides private development review; and successfully coordinates with state, county, and local government agencies. Dennis has also designed and managed projects including storm sewers, sanitary sewers, water mains, streets, signing, striping, and traffic control. Relevant Experience EDUCATION • OAK PARK HEIGHTS, MN — MCKEAN SQUARE University of Minnesota Bachelor of Science,Civil Dennis was project manager for a $1 million streets and utilities project, Engineering Geometric consisting of sanitary sewer, watermain, storm sewer, and streets to Highway Design/rransportation serve townhomes and brownstone apartments associated with the University of the Pacific- Boutwell's Landing campus. Dennis coordinated review of development Eberhardt School of Business plat and grading plans, and managed Paratransit/Transit Management comprehensive stormsewer/ ponding design and trunk watermain layout. CURRENT LICENSES Professional Engineer—MN • OAK PARK HEIGHTS, MN — 2006 STREET IMPROVEMENTS Professional Engineer—WI Dennis served as project manager for this $3.1 million street Professional Engineer—CA reconstruction and storm sewer improvement project. PROFESSIONAL ORGANIZATIONS • OAK PARK HEIGHTS, MN KERN CENTER POND EXPANSION American Society of Civil Dennis was theroject manager for an existing Engineers p 9 pond expansion to meet district rate and volume control requirements to enable business/ American Public works industrial development in City's business park. Involved extensive Association p Minnesota Public Works coordination with watershed district and their consulting engineer(who Association provided preliminary design), Mn/DOT, and neighboring cities. City Engineers Association of • OAK PARK HEIGHTS, MN — BOUTWELLS LANDING/VALLEY SENIOR Minnesota SERVICES ALLIANCE Dennis was the project manager and design engineer for a $1.25 million streets and utilities project, consisting of sanitary sewer, water main, storm sewer, streets and pathways to serve a senior center. The project involved deep sanitary sewer, public and private streets, and intricate storm sewer and ponding design. Dennis provided extensive coordination with the developer and his contractors as the private grading and building contracts occurred simultaneously with the City's public utility and street improvements. ' Bonestrao ECKBERG • LAMMERS e® ATT / — ORNEYS AT LAW1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 (651)439-2878 Writer's Direct Dial: Fax (651)439-2923 (651)351-2118 www.eckberglammers.com Writer's E-mail: mvierling@eckberglammers.com June 28, 2007 The Honorable Mary E. Hannon C [-py Judge of District Court Washington County Government Center 14949-62nd Street P.O. Box 6 Stillwater, MN 55082 Re: City of Oak Park Heights v. Secure Mini Storage Limited Partnership and Public Storage Court File No. CO-06-7138 Dear Judge Hannon: We are in receipt of the Court's Scheduling Order in the above-referenced matter and would appreciate the Court reconsidering its Item 5 on dispositive motions. In order for the parties,if either of them wish to make a dispositive motion so as the matter to be heard by August 10, the parties would effectively have to make their motions by Friday, July 6 or in person by July 10. That does not give the parties opportunity to mobilize or prepare properly for that event. I am suggesting that it would be appropriate to have those motions heard no later than mid-September given the established trial date. Additionally, the City of Oak Park Heights does not wish to invoke a jury right at this point in time, however,understands that the Defendant may wish to do so,although I doubt that from what I have seen in their Informational Statement as they do not indicate that request either. Consequently,the Court may wish to reconsider its Item 7. Yours very truly, Mark J. Vierling MJV/sdb cc: Patrick Kelly, Esq. Eric Johnson(w/enc) ECKBERG, LAMMERS, BRIGGS, WOLFF 8 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/ Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation STATE OF MINNESOTA COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT STILLWATER, MINNESOTA 55082-3802 In Re: CITY OF OAK PARK HEIGHTS MEH vs . SECURE MINI STORAGE LIMITED PARTNERSHIP & PUBLIC STORAGE Case Number: 82-C0-06-007138 MARK J VIERLING U ECKBERG LANME RS BRIGGS ET AL 1809 NORTHWESTERN AVE STE 110 STILLWATER MN 55082 NOTICE • OF FILING O F ORDER You are hereby notified on June 25, 2007 a SCHEDULING ORDER was filed in the above entitled matter. A true and correct copy of this notice has been served by mail upon the parties named herein at the last known address of each, pursuant to the Minnesota Rules of Civil Procedure. Christina M. Volkers, Court Administrator By Judy Kostohryz Dated: June 25, 2007 Deputy " STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Court File No. CO-06-7138 City of Oak Park Heats, a Minnesota municipal corporation, Plaintiff, vs. CIVIL SCHEDULING ORDER Secure Mini Storage Limited Partnership and Public Storage, File# F WASHINGTON COUNTY F Defendant. DISTRICT COURT L ►" - ZOO/ ® CHRISTINA M, VOLKERS n Mark Vierling representing Plaintiff. COURT ADM TRATOR Patrick J. Kelly and Trevor S. Oliver representing Defendant. By Deputy IT IS HEREBY ORDERED THAT: 1. The deadline for joining additional parties to this action, whether b amendm or third party practice, shall be July 13, 2007. y ent 2. All discovery, including depositions for use at trial, shall be completed in full on or before October 5, 2007. The parties may by mutual agreement and leave of the Court extend the discovery deadline to 10 days prior to trial. The deadline date for dispositive motions shall remain as set forth herein. 3. The deadline for Plaintiff's disclosure of identity (including curriculum vit expert witnesses is August 10, 2007. ae) of 4. The deadline for Defendant's disclosure of identity (including curriculum vitae) of expert witnesses is September 14, 2007. 5. All dispositive motions shall be heard by the Court no later than August 10, 2007. 6. All non-dispositive Motions shall be heard by the Court no later than September 14, 2007. • 7. This matter shall be heard by a jury and the applicable jury fee shall be paid by August 10, 2007. 8. A joint statement of the case shall be submitted to the Court by October 5, 2007. 9. The parties shall engage in some form of Alternative Dispute Resolution pursuant to Minn. R. Gen. Pract. 114, or advise the Court as to why ADR is not appropriate in this case, prior to the pre-trial conference date. 10. The pre-trial conference shall be held on Friday, October 12, 2007, at 9:00 a.m., before the Honorable Mary E. Hannon, at the Washington County Courthouse in Stillwater, Minnesota. All parties are expected to personally appear for the pretrial conference or, with leave of the Court, be immediately available by telephone. 11. Proposed jury instructions, verdict forms, witness lists, and exhibit lists shall be exchanged by the parties and filed with the Court by November 6, 2007. 12. All trial briefs and trial motions, if any, shall be served and filed with the Court by November 6, 2007. 13. The trial shall be held on Tuesday, November 13, 2007, at 9:00 a.m., before the Honorable Mary E. Hannon, at the Washington County Courthouse in Stillwater, Minnesota. 14. Requests for trial continuances must be by stipulation of the attorneys and their respective clients or by proper motion to the Court. 15. The Washington County Court Administrator shall serve a true and correct copy of this Order by U.S. Mail upon counsel for the above-named parties and on any pro se parties. BY THE COURT: Signed in Chambers Stillwater, Minnesota Dated thiaeday of , 2007 AO; o orabl- ary E. Hannon Judge of Minnesota District Court Tenth Judicial District 2 ECKBERG LAMMERSI�` ATTORNEYS AT LAW i --- 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 (651) 439-2878 Writer's Direct Dial: Fax(651)439-2923 (651)351-2118 www.eckberglammers.com Writer's E-mail: mvierling@eckberglammers.com June 26, 2007 ropy Mr. Trevor S. Oliver Kelly&Fawcett, P.A. 444 Cedar Street, Suite 2350 St. Paul, MN 55101 Re: City of Oak Park Heights v. Secure Mini Storage Limited Partnership and Public Storage Limited Partnership and Public Storage,Inc. Court File No. 82-00-06-7138 Your Settlement Proposal of June 19, 2007 Dear Mr. Oliver: With reference to your correspondence of June 19, you referenced the settlement proposal that you outlined within your letter as being"on the table." That was an offer I presume that was forthcoming • from your client, not one that was generated from the City of course. In reviewing your offer with the City,the City is rejecting your proposal at this time but would suggest that it may consider the proposal if it would be modified to accomplish and incorporate the following provisions: 1. An initial lump sum payment of$60,000.00 as a credit against connection charge for the City of Oak Park Heights water, sanitary sewer and storm sewer connections would be tendered. 2. The balance of the water,sanitary sewer and storm sewer connection charges would be computed for collection upon the implementation of any alternate use upon the property or at the conclusion of a five year period, whichever comes first, with a calculation to be implemented, being as follows: Connection charges to be calculated for the year in which the triggering event (i.e. the addition of an accessory use, change of a primary use or the five year term) ends or occurs, against which the $60,000.00 would be received as an advance credit. The balance would be immediately due and paid to the City of Oak Park Heights. ECKBERG, LAMMERS, BRIGGS, WOLFF Ci VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/ Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation Mr. Trevor S. Oliver June 26, 2007 Page 2 of 2 3. In the interim years,the City would carry the balance due on the outstanding connection charges outlined above as a pending assessment against the property. 4. Document memorializing the transaction would be recorded against the title of the property,after which both parties would dismiss without prejudice their claims in this proceeding. If your client is interested in that proposal,please feel free to co ow offices and advise us of same and we shall then represent it to the City Council under t e circumstances. Yours ry truly, Mark . Vierling MJV/sdb cc: Eric Johnson, City Administrator • _,„ o•Ate- 6 R 4 !,- ( 1• k ,ocm, • • \'' \' ': I , • Jun-19-07 11:14am From-KELLY AND FAWCETT 6512238019 T-255 P 02/02 F-188 "idly & Fawcett . .A. ATTORNEYS AT LAW OF COUNSEL_ Mc CUIGdN Q HOLLY PLC Trevor S. Oliver toliver@kellyandfawcett.com Mark Vierling June 19,2007 Eckberg, Lammers, Briggs, Wolff& Vierling, PLLP 12509 Northwestern Avenue FOR YO U R Suite 110 INFORMATION Stillwater, MN 55082 RE: Mediation of Public Storage connection charges Dear Mr. Vierling: We ended our mediation session with Jack Clinton yesterday with the understanding that the following proposal was on the table: • Public Storage pays $60,000, in a single $ Heights for sari P yment, as a connection charge to Oak Park Lary sewer,water, and storm sewer connections. • Oak Park Heights any, P' y further pursuit of utility connection charges while the property is used as a mini-storage facility(including expansion or renovation of the facility on the three lots it presently occupies). • If the use of the property changes to anything use will be charged utility connection charges at the going rate ignetheeyet r of che new and the$60,000 will be credited toward the amount due. yconversion, This proposal is acceptable to our clients,Public Storage, Inc. I understand that the City Council may consider the matter in its regular meeting this evening. Please advise us of the results of that meeting at your earliest opportunity. Respectfully yours, KELLY& FAWCETT,P.A. Cc: Ammar Kharouf, Public Storage Trevor S. iver 444 CEDAR STREET,SUITE 23S0 SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 FACSIMILE 651-2234019 www.kellyamdfaweett.com / 06/19/2007 11:35 ECKBERG LAW - 94390574 NO.875 P001 • 6512239019 Jun-19- 7 11:14n From-KELLY AND FAWCETT 6512238018 T-255 P.Di/0Z F-188 Kelly & Fawcett, P.A. ATTORNEYSATLAW ----�.��-��'^-�. • • aFCOUNS t: G., - MtGLIGAN d HOLLY.PLC FAX COVER SHEET PRIVILEGED AND CONFIDENTIAL The information contained in this facsimile message is auornei privileged and confidential and intended only for the use of the individual or entity named below lithe reader of this message is not the intended recipient,you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. if you have received this communication in error.please inunediatelr norif us by telephone TO. At. _ 1/7„ fry` ATTN. q ' —24/25 • FROM: / (C'-" " v-e ' • DATE. ' 14 /g 7 NO. of PAGES 2— (iDcludes this page) Comments. ( e of.t l'o., i it M-?%c.1 tort eo )06GI / • COT'( SENT TO If vau have ails gaesrrons coiuenung lha fit.please call 65)-224-3781ri -� 444 CEDAR STET,SUITE 2350 SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 FACSIMILE 651-223.8019 www.keIlyanafewcen.com • • I s.,.....•�.,.,. �.,, 06/19/2007 11:35 ECKBERG LA4 -> 94390574 NO.875 D002 -ryJun-19-07 11:14am From-KELLY AND FAWCETT 6512238019 T-255 P.02/02 F-188 Kelly & Fawcett, P.A. ATTORNEYS AT LAW OF COUNSEL. Trevor S. Oliver MrCu1GAN HOLLY.PLC toliver a kellyandfawcett.corn June 19,2007 Mark Vierling Eckberg, Lammers, Briggs, Wolff& Vierling,PLLP 1 809 Northwestern Avenue Suite 110 Stillwater,MN 55082 RE: Mediation of Public Storage connection charges Dear Mr. Vierling: We ended our mediation session with Jack Clinton yesterday with the understanding that the following proposal was on the table: • Public Storage pays$60,000,in a single payment, as a connection charge to Oak Park Heights for sanitary sewer,water, and storm sewer connections. • Oak Park Heights drops any further pursuit of utility connection charges while the property is used as a mini-storage facility(including expansion or renovation of the facility on the three lots it presently occupies). • If the use of the property changes to anything other than a storage facility,then the new use will be charged utility connection charges at the going rate in the year of conversion, and the 560,000 will be credited toward the amount due. This proposal is acceptable to our clients,Public Storage, Inc. I understand that the City Council may consider the matter in its regular meeting this evening. Please advise us of the results of that meeting at your earliest opportunity. Respectfully yours, KELLY&FAWCETT,P.A. Trevor S. 'ver Cc: Ammar Kharouf, Public Storage 444 CEDAR STREET,SUITE 2350 SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 FACSIMILE 651-223-8019 www_ke11ysadfawceu.cum ECKBERG LAM1VIERS 1809 Northwestern Avenue, Suite 110 ATroRNEYS AT �nw Stillwater, Minnesota 55082 (651) 439-2878 Fax(651) 439-2923 Fax lam 39-2923 Writer's Direct Dial: (651)351-2118 Writer's Email: mvierling@eckberglammers.com June 13,2007 Eric Johnson David Beaudet City Administrator Mayor City of Oak park Heights City of Oak Park Heights 14168 Oak Park Boulevard North 6400 Lookout Trail North p�Park Heights,MN 55082 Oak Park Heights,MN 55082 Re: 5 710 Memorial Avenue-Public Storage Dispute Over Connection Charges Dear Mayor Beaudet and Eric: hasAagreed to attend mediation at the office of Mr. Jack Clinton on ation that,MondayI a the you know,the 9:00City g onforn the past ch has been exchanged between the partiesaced for the m 18th of June at o'clock a.m. on the l Secure Mini Storage issue. pre providing you copies of correspondenceemorandum that we previously prepared issues. I am which I think fairly outlines the issues, as helanalysis of the legal and statutory of the City Administrator's office with regard to enclosing those documents again for your review so that you can read them in advance mediation session. that we leave ether Monday morning and would suggest I would also suggest that we perhaps ride tog upat the City Hall if that would be Stillwater here at approximately 8:30. I can pick both of you convenient and we can travel down to Mr. Clinton's office together. me directly but questions in the matter,please feel free to contact Na the mediationeifeitherof you have any Owers oauthoritye the process is an informal and confidential process. Keep inomind that the mediator is to there to attempt to facilitate an agreement although the mediator hasp roceed to trial as it is re uire an agreement. If mediation fails in the matter,we will, of course,p q scheduled to do so. of by . It is my expectation that the Defendants are looking for some typeOur compromise by the City. erest over a previous offer allowed a staged payment of the full fee without i hut int line of a reduction. The City's however,my sense is that they are looking for something ore ECKBERG. LAMMERS, BRIGGS,W Criminal LawR•I Personal Famly Law/Divorce • Business and Commercial Law Injury/Wrongful Death • Mediation • Municipal Law • Civil Litigation Estate Planning/Probate • Real Estate • Land Use Law • Mayor David Beaudet City Administrator Eric Johnson June 13, 2007 Page 2 of 2 predominantly from the fact that the City neglected to liability in this particular instance emanates p transpired between the time that we collect p discovered the fee at the b audit that it was due and several yearsThat entity has merged into and thereafter made an effort to collect it. There has been a merger of wheree error by _ the facilityopinion,have a situation where there has Mr.V alvoulis previouslyowned not, Minl torag corporation the beenurrent Publicb Storage system and w therefore,they don't purchase by a bona fide purchaser who was not aware ocorpo corporation anThe d,former aa has been merged and taken into an Finance that held the property argument. Additionally,I confirmed with the City's have a bona fide purchaser type ,e o re�uest oft e Cl relative to prior to the mer.er was there an a you will note from the Director that at no time ches by Public Storage. Additionally, as the charges asseesment seae, er or fe previous owner,Mr. Anderlik's letter outlining correspondence,Mr. n ylhad the,t e d ability to make that available and had due to the Public Storage to at the timeo and ertainiy had to be merged Public Storage at the time that he allowed his corporation framework. is ecce table by the proposal that we all drive down to: er on Mono •y morning P Let me know if m y end of the week. Yo . very tru . k . . MJV/sdb Enclosure ECKBE G -. ` LAMMERS EYSAT g� HAG �d j ; =.'; 1809 Northwestern Avenue, Suite 110 ATTORNEYS AT LAW Stillwater, Minnesota 55082 (651) 439-2878 Writer's direct dial number: Fax(651) 439-2923 (651) 351-2118 www.eckberglammers.com 2005 James Lammers September 28, Robert Briggs Mark Vierling Thomas Weidner Susan Olson Mr.Eric A. Johnson ., David Snyder r rinpy City f Oak S arkiLL Sean Stokes City of Oak Park Heights eaiers Heeren 14168 Oak Park Boulevard North Laura Domagala P. O.Box 2007 Joshua Christensen Oak Park Heights,Minnesota 55082 Re: 5710 memorial Ave-Public Storage dispute over connection fees Dear Mr Johnson, Relativethe city to the September 8,2005 correspondence attached as received by e Cit 's connection fees we respond to your request for research on the matter as objecting to th Y follows: GENERAL ISSUES Issue ro erl calculate the connection fee for storm and sanitary sewers and i Did the city imp p Y municipal water for Public Storage because the municipality used a square footage or similar are m p measurement? municipal Issue 2: Is Public Storage exempt from connection fees because it elects not to use any water? void? Issue 3: Does a lack of proportionality of actual charge to actual benefit render the charges GENERAL NOTE All statuto reference Minnesota Statute 444.075 2006 that will become effective in Jan, 06• I have done this because Minnesota Statute 444.075 (2005) is poorly structured ECKBERG. LAMMERS. BRIGGS,WOLFF fh VIERLING, PLLPr r rcn�ira D a(�i ,;rine„and Commer,i Law 6 Criminal Lai E �l C a 1 VC r;:r LLC Law <- Ivi...11at1,).1 . (di UillC1,J 11 Law '� i„iyi, I r1�,�1i1J1'1 siatPi ;;rnr,�,� �louate: � Pea r:>t�,e R Len,. September 28,2005 Page 2 and was amended only in structure in 2006. The 2006 statute contains every substantive and ause including some additional guidelines, of the 2005 statute,but is operative phrase and cl , much more reader friendly. GOVERNING STATUTE Minn. Stat. §444.075 provides: Authority: Subd. 3. The governing body of a municipality may impose just and equitable charges for the use and for the availability for the charges as provided in connections with them and make contracts this section. (Emphasis added). Connection Fee: Generally Subdivision 3d:Facilities' connection charges 75 ) The gofoverning body (Town Board,Minn. Stat. § 4 4.0 5 u d. 1 b)may ion fix a connection fee by reference to the portion of which has been paid by assessment of the premises to be connected, in comparison with other premises, as well as the cost of making or supervising the connection. (Emphasis Connection Fee to Others be charged;unpaid charges Subdivision 3e: Who may make the charges a charge against the owner, The governing body may provide and covenant for lessee, occupant or all of them and mays auditor with taxes against the certifying unpaid charges to the county property served for collection as other taxes are collected. Connection Fee Charged to the Municipality Subdivision 3f:Tax levies for public charges asona Thegoverning body may fix and levy taxes for theor county itself for the 1pa me t of re 1 ty ble of charges to the municipality the faculties for fire protection,for maintaining sanitary conditions, and gstredts, for proper storm water drainage in and for public buildings,parks, and other public places. Reasonableness of Charges: Subdivision 3g: September 28, 2005 Page 3 In determining the reasonableness of the charges to be imposed the governing body may give consideration to all costs of the:1. Establishment of the operation, replacements of the 2. Maintenance,Depreciation,Necessary re P system Enlargements and Extensions necessary to 3. Improvements, serve adequately the territory of the municipality including the principal al and interest of to become due,on obliggations issued or to become issued and the costs of obtaining with permits required by Subdivision 3h: p ro riate Charges are not unreasonable if the net revenues virtueaof the fact that the subject to the purposes in Subdivision 3g by h the project to be financed has not been commenced or completed,ifeet,when proceedings for it are taken with reasonable ice availableatch to the premises P be expected to make completed,may P char ed which will have a value reasonably commensurate with the g charges. Types of Charges: Subdivision 3: effective until Jan. 1,2006) as possible Charges made for service directly rendered ervahe e as nearly proportionate to the cost of furnishing Sewer charges may be fixed on the basis of 1. Water consumed, or es of 2. By reference to a reasonale classification c assi kation of the premises to which servicepollution qualities and difficulty 3. By reference to the quantity, of disposal of sewage and storm water produced,or equitable basis including,but without limitation, 4. On any other Added). any combination of those referred to above. (Emphasis Subd. 3a. Sanitary sewer charges. NOTE*effective Jan• 1,2006Sanitary sewer charges may be fixed: 1. On the basis of water consumed; or 2. By reference to a reasonable classification of the types of premises to which service is furnished. and_difficulty of 3. By reference to the quantity,pollution qualities disposal of sewage produced; oruitable equitable basis including any combination of eq 4. On any other but specifically excludin bases referred to in clauses(1)to (3), September 28,2005 Page 4 referred to in subdivision 3b, clause 1 ; and use of the basis otherwise without limit. Storm sewer charges (effective Jan 1,2006 Subd. 3b. r es may be fixed: ,e of the ro e char ed Storm sewer charges 1• B reference to the s I uare foots_ for reasonable calculation of the storm water ad'ustei of ru__ byreference to a reasonable classification of thetypesult 2• and difficulty premises to which service is pollution qualities, reference to the quantity, 3. by water runoff produced; or of disposal r qurm including any combination o ally other equitable basis, (1)to (3),but specifically f 4, on anyclause equitable bases of the basised to in clausesred to in subdivision 3a, excluding use the (1); and otherwise without limit. Handling of Funds Subsequent to Reception: separate fund and used Subdivision 3i: when collected, shall be placed in a sep erating and All charges, al reasonable and current cots of op first to pay the norm maintaining the facilities Subdivision 3j: body,the venues my used,by resolutions of the governing Excess net re payment for debt. Individual Contracts: company,°T Corporation,located and Subdivision 5: may permit a person, p alit to connect to connect A municipality the paymentn doingmake use of them upon terms and uponthe business inside or outside the municipality, withfees facilities d crges and sabe prescribed or contracted forby of and charges municipality. ANALYSIS sewers ' li used a square footage sewers calculate the connection fee for storm and sanitary Issuen1:Did the city for orOublic c e because the municipality or and municipal waterublic Storage totes especially similar are measurement? revious and 2006 statutes imperative to analyze the issues under both the p statute allocates a much Itis The 2005 here because the issue was raised prior to Jan. 1,2006. 1 September 28,2005 Pages greater scope of authority and permissible methods of fee calculation including, specific to our inquiry,not expressly precluding a municipality from calculating sewer connection fees by 2004 square footage of the property. Minn. Stat. § 444.075 Subd. 3 (2004). reference to the sq Pre-2006 Statute: Sewer Connection Fee: (No distinction between storm and sanitary)applicable statute a municipalityis expressly Pursuant to the an equitable basis. Subd. 3 While the particular permitted to fix sewer by Y q method that Oak Park used was not expressly permitted,it is likely permissible as a sufficient equitable basis. Additionally,municipalities have been held to have maximum flexibility, and a broad latitude and discretion when imposing fees pursuant to Minnesota Statute 444.075. See C rown Cork& Seal Co. v. City of Lakeville, 313 N.W.2d 196 (Minn. 1981)(attached); Golden Rule Estates Owners Association v. City of ake 2005 WL 1514436 (attached). Thus, it would seem likely that Crossl , method of calculation Oak Park Heights used was sufficient to satisfy the meth the 2005 Statute. Municipal Water: Pursuant to the applicable statute a municipality may fix charges r the connection to the facilities in a number of ways including,by for by reference to the portion of the cost of connection which has been p assessment of the premises to be connected, in comparison with other September 28,2005 Page 6 premises, as well as the cost of making or supervising the connection. Minn. Stat. §444.075 Subd. 3. In 2004 the legislature amended the statute making the amendment effective for 2006 by g taking steps to mitigate confusion and to conform the statute to existing case law. The new statute articulates novel guidelines for municipalities distinctly to calculate sewer and sanitary r connection fees,but has retained the guidelines for calculating municipal water sewer connections. Pursuant to the new statute (effective Jan f,20061 the only distinction between upon factors u on which charges may be fixed by a municipality for Sanitary and Storm Sewer connection fee is that: A municipality is precluded from fixing the fee by reference to the square footage of the property charged, for Sanitary Sewer. (Subd. 3a). AND is precluded from fixing the fee on the basis of water consumed for a Amunicipality Storm Sewer. (Subd. 3b). Storm Sewer Connection Fee: (Pre and Post 2006) Pursuant to the applicable statute a municipality is expressly permitted to fix charges for a Storm sewer by reference to the square footage, adjusted for a reasonable calculation of the storm water run-off. Minn. Stat. §444.075 Subd. 3b clause 1. Sanitary Sewer Connection Fee (Effective Jan 1,20061 September 28, 2005 Page 7 Pursuant to the applicable statute a municipality is expressly precluded from fixing charges by reference to the square footage of the property charged, adjusted for a reasonable calculation of the storm water runoff. Minn. Stat. §444.075 Subd. 3a clause 4. Here,there may be an issue because, if Public Storage's contention is true,then the town board has not fixed the charge pursuant to the governing statute. Municipal Water: Same analysis as above for Sanitary Sewer effective January 1, 2006. Thus, it seems that under the Pre-2006 statute Oak Park Height's current method of calculation of all connection fees should meet the statutory requirement, while its calculation of thep Municipal Water and Sanitary Sewer connection fees after January 1,2006 is likely to be problematic. Issue 2: Is Public Storage exempt from connection fees because it elects not to use any domestic municipal water service? The only statutory language that even remotely suggests this contention is,"[c]harges made for service directly rendered shall be as nearly as possible proportionate to the cost of furnishing the service." Minn. Stat. § 444.075 Subd. 3 section B. The scope of this language, however,when read standing alone or in the context of the statute clearly only governs charges made for specific services that were directly rendered and thus, does not extend to govern our inquiry. September 28, 2005 Page 8 Further,pursuant to Minn. Stat. § 444.075 Subd. 3c, a municipality may impose a minimum charge for the availability of water or sewer service for all premises abutting on streets or other places where municipal or county water mains or sewers,whether or not the party is connected to them. While a municipality has express statutory authority to charge a minimum availability and connect fee,it remains unsettled whether the a municipality can charge a fee above and beyond that of a minimum. Finally, factually here the propery has connected to the city's water service for fire protection(sprinkling)systems. I see no basis to distinguish connect based on subjective purpose for the connection. The Minnesota Court of Appeals stated,while merely in dicta, in June of 2005,that statutes"could be read to permit cities to charge land owners for the availability of services even ifan individual premises is not connected to the service." Golden Rule,2005 WL at 6. (The court broached the topic immediately subsequent to holding that sewer connection charges may be levied against property both abutting and not abutting the sewer line.Id.)Thus, it could be inferred from both the express language of the statute and the language of the court,that a municipality,potentially,has the authority to charge the same or similar fees to non-users as to users. Additionally,there are some relatively dated Attorney General opinions that seem to bolster the veracity our contention. In a 1966,the Attorney General opined that a village could properly establish a connection charge to be used for the future connections to the water and sewer system of the village. Op.Atty.Gen., 387g-5, June 27, 1963 (Emphasis Added). Similarly, September 28, 2005 Page 9 the Attorney General held that a village would be authorized to levy taxes for use of water facilities and to impose a minimum charge for the availability of water service to abutting premises, whether they are connected to the municipal water main or not. Op.Atty.Gen., 624d, April 19, 1966. Issue 3: Does a lack of proportionality of actual charge to actual benefit render the charges void? It seems that to find a charge void because of want of proportionality would directly contradict the express language of the governing statute.Minn. Stat. § 444.075 Subd. 3 (a). The statute expressly allocates the authority to the governing body of a municipality to,"impose just d equitable charges for the use and for the availability of the facilities and for connections with anq them." Id. Thus,pursuant to the express language of the statute, a municipality may charge a fee for the availability of, and subsequent connect to,the facilities to a parcel of land if said charge is just and equitable. As referenced above, municipalities have been held to have maximum flexability, and a broad latitude and discretion when imposing fees pursuant to Minnesota Statute 444.075. See Crown Cork, 313 N.W.2d at 196, Golden Rule,2005 WL at 4. Therefore, it would of be necessary for a municipality impose the fee strictly based the proportionality to the benefit n to meet the just and equitable charge standard. Golden Rule, 20005 WL at 4. In short we find and are of the opinion that the City's current connection fees are statutorily compliant and due the city from Public Storage,but as to municipal water and sanitary sewer connections will become non-compliant with the provisions of Minnesota Statute 444.075 effective January 1, 2006 for properties connecting after that date. A ECKBERG,..•�, LAMMERSfikipATTORNEYS AT LAW1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 (651)439-2878 Writer's direct dial number: Fax(651)439-2923 (651) 351-2118 www.eckberglammers.com September 29, 2005 James Lammers Robert Briggs Mark Vierling Thomas Weidner Susan Olson David Snyder Mr. Trevor S. Oliver Sean Stokes Kelly &Fawcett,P.A. Baiers Heeren 444 Cedar Street, Suite 2350 Laura Domagala St. Paul, Minnesota 55101 Joshua Christensen Mr.Patrick J. Kelly Kelly&Fawcett, P.A. 444 Cedar Street, Suite 2350 • St. Paul,Minnesota 55101 FILE Re: Your Client: Public Storage, Inc. 5710 Memorial Avenue, Oak Park Heights Gentlemen: Thank you for your correspondence of September 8 and, prior to having a meeting with the City of Oak Park Heights, I wanted to provide you with this office's response to your review of the status of the law relative to connection charges which you are disputing on behalf your client. First and foremost, it is my understanding that your client has connected to the City's water and sanitary sewer system. That was done relative to the water system,I understand,to secure fire protection services for your client via sprinkling and presumably as a result of an insurance requirement or to take advantage of certain insurance premium reductions. I am also advised by the City Public Works offices that your clients have also connected to the city sanitary sewer. The City of Oak Park Heights acquired the area in which your client had • originally built its facility,which was originally venued in Baytown Township in the early 1990's via order from the Minnesota Municipal Board. The Municipal Board, in its directive, required that all facilities within that area connect to city water and sewer services within ten years of the date of the annexation. Your client benefited from and the City constructed municipal water and sanitary sewer services within Memorial Avenue for which they were assessed. The City has built without assessment but payment through connection charge funds assets consistent of infrastructure for municipal water systems, i.e. towers and trunk lines, lift stations(specifically those serving your client's development),Kern Pond expansion facilities (also specifically serving your client's area) and related storm sewer improvements which have been coordinated ECKBERG, LAMMERS, BRIGGS,WOLFF & VIERLING, PLLP Family Law/ Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation September 29, 2005 Page 2 • through the Brown's Creek Watershed District, which the City has been working with over the past several years. Consequently, your client has had the benefit of City improvements in all categories in which these connection charges are being collected. Relative to your objections as they were enumerated, we provide the following: 1. Lack Of An Ordinance Or Resolution. You correctly cite the Nordgren v. Maplewood matter. You indicate that you were not able to find a resolution. I attach copies of the resolutions recently passed by the City of Oak Park Heights. You will also please note that pursuant to the correspondence directed to your client by the City of Oak Park Heights, the City is not attempting to collect the current rates set forth within these resolutions but rather were attempting to collect the rate that was in effect at the time that your client connected to the service. That was in the form of an offer and accommodation by the City,which offer and accommodation can be withdrawn. 2. Connection Charges Under Chapter 444. You have cited Minn. Stat. §444.075, Subd. 3 as prohibiting the use of square footage or similar area measurement to calculate connection charges for sanitary sewer and for water. I believe you have inadvertently missed the legislative effective date for the statute that you are apparently reading. Minnesota Statute §444.075, Subd. 3 was modified in 2004 (effective for January 1,2006)to implement a prohibition against using square footage as a criteria or sole means of calculation of connection fees for sanitary sewer and municipal water services. Square footage, of course, as you have noted is permissible relative to the storm sewer utility for which your client is being charged. Since your client both connected and the City is seeking collection for the period of time in which your client connected to its facility which predated 2006,the current 2006 effective date and/or statute relative thereto would have no effect relative to the current issue. 3. You claim through your letter that your client has not connected to the municipal water service. Again,relative to the use of the private well on the property, although that may be being utilized by your client for whatever purpose,the fact of the matter is your client has connected to the municipal water service for purposes of fire protection and energizing its sprinkler system located on the premises. I am personally aware that they have a sprinkler system on the premises since our office happens to rent facilities from your client at that location. With regard to the sanitary sewer and municipal water services and the connection charge relative thereto, it has been a common practice in my experience within municipalities within the metropolitan area to use square footage or acreage as a basis for allocation and computation of those connection charges. September 29, 2005 Page 3 4. Charges Not Proportionate. Your claim that the connection charges are not rationally related to the cost of connecting the property to the benefit of the property are not agreed with by this office or by the City. The City has expended considerable funds with Brown's Creek Watershed District in the reconstruction of the Kern Pond, as well as in the storm sewer facilities that service the area in which your client has located. Your client is part of the total storm water sewer system within the City of Oak Park Heights which the City maintains as a regional or citywide storm water facility. There are relatively few stand alone, privately held storm sewer basins within the City of Oak Park Heights. The Kern Pond and related facilities are part of the City's system for which the City has paid and will continue to pay Brown's Creek considerable funds relative to the maintenance and operation of that facility, as well as its construction. The City also maintains, as you may well know, considerable storm sewer facilities also within the Middle St. Croix Valley Water Management District and Valley Creek Water Management District. The construction of these facilities has benefited your client and has been reasonably and rationally calculated and determined by the City's engineering office relative to the contribution of various commercial and residential owners throughout the City. That calculation has been equitably and equally applied and apportioned to all property owners within the City of Oak Park Heights. As you are well aware, municipalities have been held to have maximum flexibility and broad latitude and discretion when imposing fees under this statute. See Crown Cork and Seal Co. v. City of Lakeville, 313 N.W.2d 196 (Minn. 1981); also see Golden Rule Estates Owners Association v. City of Cross Lake, 2005 W.L. 1514436. We are, of course, looking ahead into the upcoming dates in October where we would have the opportunity to have a meeting with you to review these issues and hopefully bring a resolution to these disputes. The City staff usually meets on Wednesdays and I would suggest the second, third or fourth Wednesday of the month of October may be an appropriate time, either early in the morning or right after the noon hour to be available for purposes of conducting such a meeting. Please advise me as to the availability within your calendars and we will attempt to schedule an appropriate time for City staff,as well as you and your clients to attend. Yours very truly, Mark J. Vierling MJV/sdb Enclosure cc: Eric Johnson, City Administrator bcc: Dennis Postler Kelly & Fawcett, P.A. ATTORNEYS AT LAW OF COUNSEL: Trevor S. Oliver McGUIGAN&HOLLY,PLC toliver@kellyandfawcett.com December 28, 2005 Mark J. Vierling Eckberg, Lammers, Briggs, Wolff&Vierling, P.L.L.P. 1809 Northwestern Ave., Suite 110 Stillwater, MN 55082 RE: Connection Charges for 5710 Memorial Avenue, Oak Park Heights Dear Mr. Vierling: We received the letter and materials you sent on September 29. After taking some time to review your arguments and consult with our client, we continue to respectfully disagree on the total amount of the charges. Public Storage wants to resolve this matter, and offers to pay a fair and equitable charge, but we need to have further discussion to arrive at that amount. As it stands, we are not yet convinced that the City can collect these charges from our client. Our central problem remains that the charges based upon square footage for water and sanitary sewer are completely out of whack withany projected use or.economic benefit to the storage., facility We are in agreement that square footage is appropriate for storm sewer servicesomdso. longer dispute these,charges? However, the use of sanitary.sewer is limitedto the one _small; apartment for the caretaker on the facility.a Additionally, while the facility may be connected to the water system for the sprinkler system, it does not appear that it is using any water for the apartment or landscaping;to our knowledge, Public Storage has not received any water bills from Oak Park Heights. If the City has any usage data for this property, that may be very useful in trying to reach a resolution based upon the fair share of the installation for this property. We presume that the City is in the process of determining a new method of calculating sanitary sewer charges that will comply with the amended statute, and we may be interested in arriving at a new number based upon that method of calculation. Accordingly, we maintain our position that the acreage-based charges for sanitary sewer and water are unreasonable as applied to the Public Storage facility. While the new statutory prohibition of square footage as a basis for sanitary sewer charges does not take effect until January 1, we believe the Legislature's conclusion that square footage is impermissible would be persuasive in any challenge of the charges against Public Storage. Additionally, we maintain that any charge that far exceeds the economic benefit to the property is unconstitutional. 444 CEDAR STREET,SUITE 2350 SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 FACSIMILE 651-223-8019 www.kellyandfawcett.com •December 21, 2005 Letter to Mark Vierling Re: Connection charges for 5710 Memorial Avenue, Oak Park Heights Page 2 of 2 As we assess our client's case further, we also have more questions about the City's ability to collect the charge from our client. Public Storage was not the owner of the property when the City held hearings and imposed a charge. Also, presuming that there was a 1998 resolution authorizing charges similar to the 2001-2003 resolutions you provided, it appears that collection should have occurred before connection. The City also had another chance to collect when Secure Mini Storage applied for a permit to expand its operations in 1999, but failed to do so. We note that the resolutions provided do not provide or covenant for certification of these charges to the County Auditor, which would appear to be the statutorily authorized method of collection. It would appear that laches, lack of authorization, and other defenses would be available to our clients in any potential collection action taken by the City. We note your characterization of the City's current demand as an "offer and accommodation." We find no basis in Minnesota law for the City to charge anything other than the rates in effect at the time the connections were performed. We will naturally challenge any attempt to collect more than the amount at which the City valued the work when it was done. In closing, our clients remain willing to pay a fair and equitable charge to resolve the matter. We originally proposed a meeting, and we remain interested in having that meeting at a mutually agreeable time. Please contact us at your convenience to discuss dates and times. Respectfully yours, KELLY& FAWCETT, P.A. - rev . liver Patrick J. Kelly TSO/rjo Cc: Mr. Klichan, Public Storage • Ms. Choudhry, Public Storage p�•{. l Bonestroo,Rosene.Anderlik and Associates,Inc.is 'firmative Action/Equal Opportunity Employer Bones r • Principals:Otto G.Bonestroo.P.E.•Jozep,' MI. ..P.C.•Marvin L.Sorvala,P.E. Glenn R.Cook,P.E.•Robert G.Schunicht,^. Jerry A.Bourdon,EE.• Rosene Robert W.Rosene.P.E.,Richard E.Turner,P.E.and Susan M.Eberlin,C.P.A.•Senior Consultants III Rosene Associate Principals:Howard A.Sanford.P.E.•Keith A.Gordon.P.E.•Robert R.Pfefferle,P.E.• 11 Anderi'k & Richard W.Foster,P.E.•David 0.Loskota,P.E.•Robert C.Russek•A.I.A.•Mark A.Hanson,P.E. • Michael T Rautmann•P.E.•Ted K.Field,P.E.• Kenneth P.Anderson,P.E.•Mark R.Rolls,P.E.• Associates Sidney P.Williamson.P.E.,LS.•Robert F.Kotsmith•Agnes.M.Ring•Allan.Rick Schmidt,P.E. Offices:St.Paul.Rochester,Willmar and St.Cloud,MN•Milwaukee,WI 's• Engineers &Architects Website:www.bonestroo.com IE © EE OWE E lJ . 0 — 4IM D August 3, 1999 "µ ::s;,1: ... • - Mr. Anthony Valvoulis Secure Mini Storage 740 Linwood Avenue St.Paul, MN 55105-3322 Re: Kern Center Connection Charges City of Oak Park Heights Our File No. 55-98-802 Dear Mr. Vavoulis: • We are in receipt of your letter of July 25, 1999 requesting information relative to the connection charges being assigned to.your Secure Mini Storage site in the Kern Center. The following is in response to your questions 1 through 7 as outlined in your May 7, 1999 correspondence. 1. The following table shows the breakdown of the $102,714.00 connection charge: • Lot 8,Block 2,Kern Center 2nd Trunk Sanitary Sewer 2.96 ac x $2,310.00/ac • $6,837.60 Trunk Waterworks 2.96 ac x 4,010.00/ac 11,869.60 • Trunk Storm Sewer • 2.96 ac x 5,080.00/ac 15,036.80 Total Lot 8 $33,744.00 Lot 9,Block 2, Kern Center 2nd Trunk Sanitary Sewer 3.00 ac x $2,310.00/ac $6,930.00 Trunk Waterworks 3.00 ac x 4,010.00/ac 12,030.00 Trunk Storm Sewer 3.00 ac x 5,080.00/ac 15,240.00 Total Lot 9 $34,200.00 Lot 10, Block 2, Kern Center 2nd Trunk Sanitary Sewer 3.05 ac x $2,310.00/ac $7,045.50 • Trunk Waterworks 3.05 ac x 4,010.00/ac • . 12,230.50 • . Trunk Storm Sewer 3.05 ac x 5,080.00/ac 15,494.00 :Total Lot 10 • $34,770.00 TOTAL SECURE MINI STORAGE $102,714.00 2335 West Highway 36 ■ St. Paul, MN 55113 • 651-636-4600 ■ Fax: 651-636-1311 Mr. Anthony Valvoulis Page 3 Secure Mini Storage It is hoped that the information provided herein will assist you in understanding the financing procedures used by the City of Oak Park Heights to provide public utility service. Very truly yours, BONESTROO,ROSENE,ANDERLIK&ASSOCIATES,INC. co.4 a a.odut,‘ Joseph C. Anderlik cc: Thomas Melena Kris Danielson • • LCKBERC'r LAMMLRS FA," ATTORNEYS AT LAW 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 (651)439-2878 Fax(651)439-2923 www.eckberglammers.com Writer's Direct Dial: James Lammers Robert Briggs (651)351-2118 Mark Vierling Thomas Weidner• mvierling@eckberglammers.com Susan Olson • • David Snyder Sean Stokes Laura Domagala •Joshua Christensen January 23, 2006 . FILE copy Mr. Trevor S. Oliver Kelly&Fawcett, P.A. 444 Cedar Street Suite 2350 St. Paul, Minnesota 55101 Re: City of Oak Park Heights v. Secure Mini Storage Dear Mr. Oliver: Thank you for your correspondence of December 28. In addition thereto, based upon our telephone conversations,I understand that your client has his principal business facilities located . outside of the State of Minnesota and that a personal meeting in order to resolve this matter is perhaps not feasible at this time, so we will exchange correspondence to see if we can obtain a resolution on this matter. Your correspondence indicates that your client is no longer in disagreement with the City's charges for connection to the storm sewer facilities. Thank you for that. The storm sewer charges relative to your client's properties which comprise Lots 8, 9 and 10 of Kern Center 2nd Addition total $45,770.80. These charges were previously broken down by our City Engineer and provided to the former owner, Mr. Anthony Valvoulis by correspondence dated August 3, 1999. A copy of that I provide to you. Relative to the municipal water and sanitary sewer charges,they too were established by the City long ago based upon engineering study. Your client owns a significant parcel of commercial property and I appreciate that their utilization of water and sanitary sewer services on a monthly basis is probably not significant; however,they do have a quarterly billing for those services. • ECKBERG, LAMMERS, BRIGGS, WOLFF Ei VIERLING, PUP Family Law/ Divorce o Business and Commercial Law e Criminal Law e Personal Injury/Wrongful Death Estate Planning/ Probate « Real Estate e Land Use Law a Mediation • Municipal Law Civil Litigation Mr. Trevor S. Oliver January 23,2006 Page 2 City records indicate that in 2004 they paid$1,237.55 for those services billed and in 2005 paid approximately $1,337.85 for like or similar services. As you may know,there is a significant difference between the utility billings for monthly charges on those utilities as opposed to connection fees,wwhich are a one time connection the t to the City systems. The fact that your client utilizes sanitary sewer only for one apartment on premises is not relevant to the City's analysis of the potential cost st as the s City looksuse at the potential utilization of the property within the B-3,Highway regulating the terms of its maximum permissible use. Your client's property is zoned to allow a significant commercial utilization of the property over time. As such,the City's analysis and rate schedule is not predicated on individual or subjective use as much as it is predicated on potential use based upon the zoning uses that are allowed in that area. We understand that Public Storage acquired the property from Mr.Valvoulis and the back inentity that August owned it at the time that the initial inquiry was made for informationalpurposes of 1999. However,there was assessment search at the time of its acquisition and no subsequent inquiry either from Mr. Valvoulis or your client ave to heckintime g for an assessment search or other City n of the property. We have reviewed the City's records old relaand the Cityhas no record of any inquiry being made charges at the time the property from either the current owner or the former owner at the time of dated Augustan, 1999,which we , of course,the information provided to Mr. Valvoulis by the engineeringwhialthough assume may have been made by him in anti n a re uest foation of a �inforrnation,tential sale ofnotewith disclosure of the City merely received the inquiry based o q any particular purpose. t HadYeour client made a formal assessment search or inquiry of the City at theime your at they acquired the property,the information may have been disclosed and, ofwould course, have been able to better protect themselves in the transaction relative to their acquisition of the property. • As you know,the City does not have to demonstrate benefit on this scrge. It is not an 44 of the Minnesota assessable feature under Chapter 429,but is authorizedChapter thecontributioniMinnesota Statutes. The City can legislate its charges based upon its overall need,projecting for both residential and commercial properties within the City's infrastructure trfoacure as tocontribtiion vee rhe all systems. The connection charges as provided for by the City provide primary/trunk infrastructure facilities of the City, which are calculated to serve the needs of all commercial and residential properties. The City has adopted a series of charges based on commercial and residential utilization of property,using the existing zoning, land use and anticipated utilization ofproperty r Mr. Trevor S. Oliver January 23, 2006 Page 3 those zoning and land use features. The charges are supported by a rational basis and were clearly authorized by the statute at the time that they were adopted. The City does,however, appreciate that there has been some time since these facilities were connected and, for some reason,the connection charges were not collected at the time that the original meters were issued relative to the individual connection to your client's buildings. Thus, it is the City's position that they are willing to extend the term and time of payment for these connection charges without interest, allowing your client up to three years to make the payment for the connection charges. I understand that you are interested in potentially reviewing the City's new connection charges that will be effective January 1, 2006 based upon the statutory modifications that have been in place with the legislature and that is certainly something you may wish to consider, although the City is not offering that at this time. You may further expect that those charges will probably meet or exceed the 2000 rates anyway given the cost of construction of trunk facilities which have occurred merely by operation of inflation within the construction industry over the last several years. Please review the enclosed with your client and advise as to whether or not the City's offer to collect these connection •. :es at the 2000 rate extended over a period of three years without interest or c. • g charges is -cceptable. Yours ery truly, ark J. Vierling MJV sdb Enclosures pc: Eric Johnson, City of Oak Park Heights Kell & FawcettP. ATTORNEYS AT ' �• LAW W OF COUNSEL: McGUIGAN&HOLLY,PLC Trevor S. Oliver toliver@kellyandfawcett.com February 2, 2006 Mark J. Vierling Eckberg, Lammers,Briggs, Wolff& Vierling, P.L.L.P. 1809 Northwestern Ave., Suite 110 Stillwater, MN 55082 RE: Connection Charges for 5710 Memorial Avenue, Oak Park Heights Dear Mr. Vierling: Thank you for quickly following up on our last phone call with your letter of January23. • It appears that we are getting closer to understanding each other's positions, but we dont et have an agreement. We still have a fundamental disagreement about the calculation of these charges, which we must address either in our discussion or in court. Public Storage appreciates the City's willingness to settle, and shares the desire to get this outstanding matter resolved. However, the offer to pay over three years does not address our client's concerns. The issue is not inability to pay or even a desire to amortize the a belief that, based on their experience with connection charges elsewhere, that the payment, but $57,000 of charges are excessive. g The fundamental disagreement still centers around the use of land area as the basis calculating the charge. We have outlined our position on this in previous letters. Your reference for to the zoning classification of the property as a basis for connection charges is a step in the right direction, however, inasmuch as we begin to discuss how the City has classified property fol connection charges. More discussion in this direction may lead us to a fair settlement. On that point, we disagree with your analysis of the impact of the property's classification on its connection charges. A "speculative use" or "maximum use" analysis should only be used when the use of the property — or more specifically, a building — is not known. The property mini-storage business when the connections were made, and remains a mini-storage business now, with a constant and known use of sewer and water resources. Any new use on the property would require a new set of permits, and likely a new set of connections to support its more intense use of water resources. The mini-storage site on Memorial is not readily convertible into any other type of water-intensive commercial use without City approval, which undercuts the 444 CEDAR STREET,SUITE 2350 SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 FACSIMILE 651-223-8019 www.kellyandfawcett.com February 2, 2006 Letter to Mark Vierling Re: Connection charges for 5710 Memorial Avenue, Oak Park Heights Page 2 of 2 argument that the zoning classification justifies the high argument is also diminished by the fact that Oak Park Heights ehas used ction sland area as the that s criteria for all connection charges, whether residential or commercial. As we have argued before, land area is not rationally related to the installation or use of sanitary sewer, particularl not when only two small buildings are hooked up on the entire 10-acre property. y In contrast, Public Storage proposes a settlement based upon a "residential equivalency" s similar to that used by the Metropolitan Council and many metro-area municipalities, in whih the city charges the Met Council "sewer availability charge" ("SAC"), and impose their own fee based on the "SAC units." I've attached the relevant pages of the MCES SAC guidebook, which counsel that a "mini storage" site should be assessed 1 SAC for the living and 1 for a public restroom, up to 17 fixtures. No SAC is assessed for he storage units thmselves. The Memorial Avenue site should equal 2 SACs under this guidance; one for the livings rs and 1 for the small office bathroom, available to the public. To settle the issue, Public Storage is willing to use the 2006 SAC rate, $1550, as the basis for all calculations. g The additional city charges in our study ranged from $300 to $900, with a few higher amounts applied in the furthest reaches of the metro. Again, to settle the matter, Public Storage is willing to calculate the charge using the highest 2006 residential rates applicable to the City of Woodbury- $1140 for sanitary sewer, and $820 for water. Multiplying these residential rates b the SAC assigned to the mini-storage site produces additional charges of$2280 and $1640. y The total of all of these charges plus the storm sewer charge is $52,790.80. This is a charge that our client feels is reasonable for the services provided, and are willing to stand by in court. If we can accept that as the connection charge, Public Storage may be willing to offer an additional sum toward the construction costs as an incentive to resolve this matter without litigation. The threshold question is whether the City is willing to consider a charge less than their current figure. If this is not possible, please let us know and we will answer the City's civil complaint in a timely manner. Please do not hesitate to contact me if there is anything we can discuss. Respectfully yours, KELLY& FAWCETT, P.A. Trevor S. Oliver TSO/rjo Patrick J. Kelly Cc: Public Storage JACK W. CLINTON, P.A. ATTORNEY AT LAW JACK W. CLINTON* CURRELL CENTRE, SUITE 200 TELEPHONE:651-264-3077 CATHLEEN L. RICHARDS 7616 CURRELL BOULEVARD FAX: 651-264-3078 LEGAL ASSISTANT WOODBURY, MINNESOTA 55125 MAY 3 1 2007 May 23, 2007 I FOR YOUR Mr. Trevor Oliver INFORMATION Attorney at Law Kelly&Fawcett,P. A. 2350 U.S. Bancorp Piper Jeffray Plaza 444 Cedar St. St. Paul, MN 55101 Mr. Mark J. Vierling Attorney at Law Eckberg,Lammers, Briggs, Wolf, &Vierling, P.L.L.P. 1809 Northwestern Avenue Stillwater, MN 55082 Re: City of Oak Park Heights/ Secure Mini Storage Dears Messrs. Oliver and Vierling: I am confirming that the mediation concerning the above-captioned matter, is scheduled for Monday, June 18, 2007 at 9:00 a.m. at my office. If there is any change in the availability of any of the parties,please notify me promptly. Enclosed with this letter you will find the following: 1. My resume for you to provide to your clients; 2. Directions to my office; and 3. Draft Mediation Agreement; 4. Confidential Information Sheet. I will bill my services for$250.00 per hour, which will be paid equally by the parties. If there are any questions in advance of the mediation,please let me know. • *CERTIFIED AS A REAL PROPERTY LAW SPECIALIST BY MINNESOTA STATE BAR ASSOCIATION Mr% Trevor Oliver Mr. Mark J. Vierling Page 2 May 23, 2007 Very truly yours, JACK W. CLINTON, P.A. CA;"AN (.1T Jack W. Clinton JWC/clr Enclosures 1 2007 '` JACK W. CLINTON PA. . ATTORNEY AT LAW JACK W.CLINTON* CURRELL CENTRE, SUITE 200 TELEPHONE: 651-2643-077 CATHLEEN L. RICHARDS 7616 CURRELL BOULEVARD FAX:651-264-3078 LEGAL ASSISTANT WOODBURY,MINNESOTA 55125 FOR USE IN CONFIDENTIAL SETTLEMENT NEGOTIATIONS ONLY CONFIDENTIAL INFORMATION SHEET Case Name: City of Oak Park Heights v. Secure Mini Storage Limited Partnership Washington County Court File No. 82-00-06-7138 1. Briefly summarize the facts which led to this dispute. Subject property owned by Defendants was located in Baytown Township and was utilizing individual well and septic system. Following annexation by the City of Oak Park Heights, the property, presumably for insurance purposes, connected to put in automated fire sprinkling systems, to the City's utility services. The City neglected by internal error to collect the municipal water, sanitary sewer and storm sewer connection charges that were due at the time. Defendant subsequently upon notice of the City's error in failing to collect the connection fees refused to pay them and the City brought suit. 2. Briefly summarize the issues which must be resolved in order to settle this case. The City must maintain consistency in its application and policy with its connection fees. The City has offered the Defendant extended time to pay without interest but Defendant has refused and made an offer for payment of approximately 65 percent of the total fees. 3. Briefly describe your settlement discussions to date, including the most recent demand and offer. See Item#2 above. *BOARD CERTIFIED REAL PROPERTY LAW SPECIALIST BY MINNESOTA STATE BAR ASSOCIATION 4. Briefly summarize any obstacles to settlement. The City has always uniformly applied the connection fees. There was a statutory change immediately after the incident which triggered the payment of the fees, but the statutory change was irrelevant to the Defendant's position. The City did, after the statutory change, recalculate its connection fees which would not have substantively made a difference in the total collections anyway. Defendant seems to want to argue the reasonableness of the fees. All of these expenses are projected based upon engineering estimate for infrastructure costs for the trunk facilities of the various water, sanitary sewer and storm sewer facilities which have been and are being constructed within the City of Oak Park Heights to meet its overall needs. 5. List the name of the persons who will attend the mediation with you. In almost all cases, the party must attend the mediation along with counsel. (If applicable, list the name and general job description of any employee(s) or agent(s) who will represent a corporate party or insurer.) City Attorney Mark J. Vierling and Mayor David Beaudet and possibly City Administrator Eric Johnson. Mark J. Vierling Name of party completing this form 1809 Northwestern Avenue Address Stillwater, MN 55082 (651)439-2878 Phone Number RETURN FORM TO: Jack W. Clinton 7616 Currell Boulevard Suite 200 Woodbury,MN 55125 Telephone: (651) 264-3077 Fax: (651) 264-3078 This form need not be served on the Court or other parties. It is intended to be, and will be treated as a confidential communication between you and the mediator. JACK W. CLINTON Suite 200 Currell Centre , � 20�� 7616 Currell Boulevard P AYWoodbury,Minnesota 55125 (651) 264-3077 Admitted to Minnesota Bar 1976 Admitted to Federal Bar 1976 Admitted to Eighth Circuit Court of Appeals 1976 Certified Real Property Specialist by Minnesota State Bar Association Title Insurance Agent, Attorneys Title Guaranty Fund, Inc. EXPERIENCE: Jack W. Clinton, P.A. Woodbury,Minnesota Shareholder 2000 to present Fluegel,Moynihan & Clinton,P.A. Hastings, Minnesota Shareholder 1997 to 2000 Clinton & Taylor,P.A. Cottage Grove, Minnesota Shareholder September, 1984 -1997 Morse, Clinton & O'Gorman, Ltd. Cottage Grove,Minnesota Shareholder 1978 - 1984 Washington County Attorney's Office Stillwater, Minnesota Assistant Washington County Attorney -Duties consisted of prosecution of felonies and misdemeanors, criminal appeals, litigation in and appeals from the juvenile division(delinquency,dependency and neglect and termination ofparental rights);assisted in civil work of the County,including representation in civil litigation and appellate work, advising the County Board of Commissioners, drafting of legal opinions, contracts, ordi- nances, etc. August, 1976 to August, 1978 Washington County Attorney's Office Stillwater, Minnesota Law Clerk -Duties consisted of assisting assistant county attorneys in preparation of felony and misdemeanor complaints and petitions in juvenile court, and research and drafting of legal memorandums to the court. January 1975 to August 1976 Washington County Court Judicial Law Clerk -Duties consisted of research for the judge assigned to the case and preparation of memorandums of law,specifying the reason for a decision. -June to September 1974 and January to June 1975 EDUCATION: Law School: Hamline University School of Law, St. Paul,Minnesota; J.D. (cum laude), 1976. • College: St. Ambrose College, (now St. Ambrose University)Davenport, Iowa; B.A. 1973. PROFESSIONAL MEMBERSHIPS: Washington County Bar Association/1976-present/President 1979-1980 Minnesota State Bar Association/1976-present Urban, State and Local Government Section(Chair 1988-1989) - Minnesota City Attorneys'Association Board/President 1990-1996/1994-1995 - Ethics Committee of the Nineteenth District Bar/Association 1985-1991 SPEAKING/TEACHING: City Attorneys'Update 1996-Employment Law,Attorney/Client Privilege and Data Practices Act Washington County Chiefs of Police 1992 - Employee Termination and the Police Officer Bill of Rights City Attorneys' Update 1992 Employment Law and Termination/Data Practices Act and Open Meeting Law p City Attorneys'Update- Conflict between the Open Meeting Law and the Minnesota Government Data Practices Act Directions to Jack W. Clinton Law Office Suite 200 7616 Currell Boulevard Woodbury, Minnesota r 3 I 2007 Northbound on 494 : Take Valley Creek Exit and proceed Right (East) on Valley Creek. Go to the fourth stoplight, which is Bielenburg Drive; turn left on Bielenburg To the stoplight, which is Currell Boulevard. Take a right on Currell and the building is the second office building on the left. Southbound on 494 : From the Eastbound on 94 or 694, take 494 South to Tamarack. Turn left on Tamarack to the second light, Bielenberg and right on Bielenburg to the stoplight, which is Currell Boulevard. Take a left on Currell and the building is the second office building on the left. From the East: From either County Road 19 or Radio Drive, go West on Valley Creek. There is a stop light at Tower Drive. Go to the next street, which is Currell Boulevard and take a right. (The Coldwell Banker Burnet Realty building will be on your left side as you are making the turn. ) From there proceed to the first building on the right. JACK W. CLINTON, P.A. ATTORNEY AT LAW JACK W. CLINTON* CURRELL CENTRE, SUITE 200 TELEPHONE: 651-2 - CATHLEEN L. RICHARDS 7616 CURRELL BOULEVARD 64 3077 LEGAL ASSISTANT WOODBURY, MINNESOTA 55125 FAX: 651-264-3078 MAY 3 1 2007 AGREEMENT TO MEDIATE The parties and attorneys named below acknowledge and agree that they are willing to participate in a mediation process in an effort to reach voluntary agreement to resolve the following: City of Oak Park Heights vs. Secure Mini Storage The parties also acknowledge and agree to be bound by the following ground rules: 1. Duty to Meet. The parties will attend scheduled mediation conferences unless advise the mediator of their inability to attend at least 24 hours before the conference unless there is an emergency. 2. Termination of Mediation. The effort to resolve the above-referenced dis through mediation may be terminated without cause as follows: Aute (a)A party may withdraw from mediation; or (b)The mediator may terminate the mediation. 3. Good Faith. The parties agree to negotiate in good faith. Theparties may divulge information, but will notgive false information or mislead refuse to mediator. purposely the • 4. Mediator. The mediator's responsibilities are: • (a) The mediator does not represent any of the parties. (b) The mediator has no duty to provide advice or information to a party or to assure that a party has an understanding of the problem and the consequences of his/her actions. (c) The function of the mediator is to promote and facilitate voluntary resolution of the above-referenced dispute. (d) The mediator has no responsibility Y concerning the fairness or legality of the resolution. (e) Neither party knows of any circumstances which would cause reasonable doubt regarding the impartiality of the mediator. *BOARD CERTIFIED REAL PROPERTY LAW SPECIALIST BY MINNESOTA STATE BAR ASSOCIATION • 5. Confidentiality. The parties and the mediator agree to the following confidentiality y (a) All discussions, representations, and statements made during mediation will be privileged as settlement negotiations. The parties agree that they will not attempt to discover or use as evidence in any legal proceeding anything related to the mediation, including any communications or the thoughts, impressions or notes of the mediator. No document produced in mediation which is not otherwise discoverable will be admissible by any of the parties in any legal proceedings for any purpose, including impeachment. (b) The parties will not subpoena the mediator or any records or documents of the mediator in any legal proceedings of any kind. If so called or subpoenaed, the mediator may refuse to testify or produce the requested documents. Should any party attempt to compel such testimony or production, such party shall be liable for, and shall indemnify the mediator against any liabilities, costs or expenses, including reasonable attorneys' fees which the mediator may incur in resisting such compulsion. (c) The mediator will not discuss or disclose any communications made during the mediation process to any persons without the permission of the appropriate party or parties. 6. Fees. The parties agree to pay to the mediator fees of$250 per hour for the mediation conference(s) and preparation time. There will be no administrative fee charged other than the hourly service fee of the mediator. Unless otherwise agreed by the parties, the mediator's fees will be borne equally by the parties. 7. Minnesota Civil Mediation Act. Pursuant to the requirements of the Minnesota Civil Mediation Act, the mediator hereby advises the parties that: (a) The mediator has no duty to protect the parties' interests or provide them with information about their legal rights; (b) Signing a mediated settlement agreement may adversely affect the parties' legal rights; and (c) The parties should consult an attorney before signing a mediated settlement agreement if they are uncertain of their rights. 2 • 8. Voluntary Acknowledgment, The parties and their attorneys hereby voluntarily sign this Agreement to Mediate in order to affirm that they have read and understand its provisions. Date: Signature Signature Print Name Print Name Representing: Representing: Signature Signature Print Name Print Name Representing: Representing: Mediator 3 ECKBERG • LAMMERStI ATTORNEYS AT LAW 1809Iorthwestern Avenue, Suite 110 Stillwater, Minnesota 55082 (651)439-2878 Writer's Direct Dial: (651)351-2118 Fax(651)439-2923 off www.eckberglammers.com Writer's Email: �A off mvierling@eckberglammers.com ttYtt May 29, 2007 Mr. Jack Clinton CO 7616 Currell Boulevard Suite 200 Woodbury, MN 55125 Re: Mediation City of Oak Park Heights v. Secure Mini Storage Dear Jack: Enclosed herewith please find your Confidential Settlement Negotiation Statement/Information Statement that you forwarded us. We previously forwarded you information which outlines the City's positions and the issues as we see them in this matter, but I have nonetheless completed the confidential information sheet for your purposes and review. We will be attending the mediation sessions with your office with Mayor David Beaudet and/or City Administrator Eric Johnson. Yours very truly, Mark J. Vierling MJV/sdb cc: Eric Johnson, City Administrator, City of Oak Park Heights ECKBERG, LAMMERS, BRIGGS, WOLFF 8 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation ECKBERG L��`�1�VIERS ATTORNEYS AT LAW 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 Writer's Direct Dial: }� (651)439-2878 (651)351-2118 MAY 1 5 200� Fax(651)439-2923 www.eckberglammers.com Writer's Email: mvierling@eckberglammers.com May 11, 2007 Mr. Jack Clinton 7616 Currell Boulevard Suite 200 Woodbury,MN 55125 Re: Mediation City of Oak Park Heights v. Secure Mini Storage Dear Jack: I left you a voicemail asking to secure the June 18 date for the mediation in this particular matter. I am providing you for your background a copy of the Summons and the Complaint, our original letter and proposal to resolve the issue to the folks at Secure Mini Storage and the response we received from Pat Kelly. The matter being unable to be resolved, we brought the matter into suit and, as you know, we are now proceeding into a mediation stage on the matter. Perhaps a little additional background might be helpful for you in this particular matter. Secure Mini Storage was actually built at a time when the property in question was located in Baytown Township. In a subsequent annexation that took place in the 1990's, the property was annexed to the City of Oak Park Heights. The entire area(which included the post office property on which you worked with the City of Oak Park Heights) was not at that time provided by municipal water and sewer. The City did subsequently extend water and sewer facilities to the property and the issue in question is not the cost of that extension in any regard, but is the City's connection charges, both for water, sewer and storm sewer, that are supposed to be collected by city staff at the time that a property actually connects to the system. Secure Mini Storage connected to the system for two purposes. One, it wanted water flow so that it could install automatic fire suppression sprinking devices within its storage buildings,presumably for insurance premium rate reductions and also there is the caretaker's quarters on the property that is served by the water and the sanitary sewer, they having discontinued their connection to a private well and septic system that otherwise serves the property. The connection fees have been historically collected by the City of Oak Park Heights over quite an extended period of time with annual ECKBERG, LAMMERS, BRIGGS, WOLFF tX VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation Mr. Jack Clinton May 11, 2007 Page 2 of 2 adjustments for inflationary purposes authorized by the Council resolutions. The original engineering study that produced the basic rates are old and were subsequently amended and updated from the City's engineers to the Council periodically as requested. There was a shift and change in the status of the law relative to the ability of the City to collect connection charges, but this particular connection and the cause of action around it predated that change, which you will see in the exchange of correspondence between the attorneys. Although I am confident in the City's methodology in establishing its connection charges and the uniformity of the City's collection of them over time, it is, of course, difficult to collect a charge that was missed by the Building Department and then we determine that would be an audit and having to go back to the property owner over a period of years and retroactively collect it is difficult. For that purpose, the City offered an extended payment which they normally do not do under any circumstances to Secure Mini Storage at the time that the error in the City's collection practice was determined and discovered. The offer of settlement at a much reduced rate offered by Mr. Kelly on behalf of his client, I think, acknowledges that they know that there is liability there. The property has changed hands from Secure Mini Storage to another corporation but I understand Secure u i i Storage was merely merged into the larger corporate entity which is based '• '41. ornia as opposed to any type of bona fide sale which has not occurred relative to the . ; .erty. That is a real s o background on the matter and should you require more,please f= free to contact me •' -ctly. Mark J. Vierling MJV/sdb cc: Eric Johnson, City Administrator, City of Oak Park Heights F, Tv STATE OF MINNESOTA 5 DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Court File No: City of Oak Park Heights, a Judge: Minnesota municipal corporation, Plaintiff; SUMMONS v. Secure Mini Storage Limited Partnership, Defendant. THE STATE OF MINNESOTA TO THE ABOVE-NAMED DEFENDANT: YOU ARE HEREBY SUMMONED AND REQUIRED TO SERVE upon Plaintiffs attorney an Answer to the Complaint which is herewith served upon you within twenty (20) days after service of this Summons upon you, exclusive of the date of such service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the Complaint. Civil cases are subject to Alternative Dispute Resolution processes as provided in Rule 114 of the General Rules of Practice for the District Courts. Alternative Dispute Resolution includes mediation, arbitration, and other processes set forth in the rules. You may contact the Court Administrator for information about these processes and about resources available in your area. ECKBERG,Ly*I RS,B''4 GGS, WOLFF& `RLIN , .L.L.P. Dated: . I% By: . -J. Vierling(#112823) Attorney for City of Oak Park Heights 1809 Northwestern Avenue, Suite 110 Stillwater,MN 55082 (651)-439-2878 w' STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT City of Oak Park Heights,a Court File No: Minnesota municipal corporation, Judge: Plaintiff, COMPLAINT v. Secure Mini Storage Limited Partnership, Defendant. NOW COMES,the Plaintiff, City of Oak Park Heights, who for its claim,complaint and cause of action against Defendant, Secure Mini Storage, Limited Partnership, states and alleges as follows: 1. Plaintiff, City of Oak Park Heights, is a Minnesota municipal corporation located in Washington County,Minnesota. 2. Based upon information and belief, SECURE MINI STORAGE LIMITED PARTNERSHIP, is a Minnesota entity, with a primary place of business located at or on 5710 Memorial Ave. N, in the city of Oak Park Heights, County of Washington, State of Minnesota. 3. Based upon information and belief, Defendant, SECURE MINI STORAGE LIMITED PARTNERSHIP, is the record owner in fee simple of certain real property located at 5710 Memorial Ave. N, in the city of Oak Park Heights, County of Washington, State of Minnesota, legally described as follows: Kern Center 2nd Addition Lot-008 Block-002 P.I.D. 0602920210004 Said property will be hereinafter referred to as the "The Property." 4. "The property"was connected to, and has subsequently received the benefit from, municipal water, sanitary sewer and storm sewer services by the City of Oak Park Heights, on or about February 7, 2000. 5. Plaintiff,the City of Oak Park Heights, has the statutory authority to charge, and has adopted, reasonable fees for the connection to municipal water,sanitary sewer and storm sewer utilities pursuant to Minnesota Statute § 444.075. 6. Plaintiff has charged the reasonable fee of$ 102,714.00 to Defendant, SECURE MINI STORAGE LIMITED PARTNERSHIP, for a connection to, and subsequent use of, municipal water, storm sewer and sanitary sewer utilities for the benefit of the Secure Property. 7. Defendant connected its property and structures to the City of Oak Park Heights municipal Water, Sanitary Sewer and Storm Sewer utilities on or about February 7, 2000. 8. The due to clerical oversight no connection charges were collected at that time but were discovered as unpaid in 2005. That the City contacted Defendant and has made reasonable efforts to resolve the matter of the unpaid connection fees. 9. All connection fees and charges referred to and described in preceding paragraphs above, have remained unpaid by the respective Defendant. 10. That Defendant has had the benefit of connection to the city utilities and has not paid the fees prescribed by the City for that utility connection. COUNT I: ACCOUNT STATED AGAINST DEFENDANTS SECURE MINI STORAGE LIMITED PARTNERSHIP 11.Plaintiff adopts, by reference all preceding paragraphs 1 through 10 above as if more fully set forth herein. 12.An account has been stated between Plaintiff and Defendant, SECURE MINI STORAGE LIMITED PARTNERSHIP, whereupon the above-stated balance of$102,714.00,together with interest accruing thereon from March 10, 2005 when the City notifies Defendant of the unpaid connection fees, was found to be due to Plaintiff from Defendant, but no part has been paid. Plaintiff is entitled to damages in the amount of$102,714.00,plus interest as allowed by law, and Plaintiff is entitled to recover its costs and disbursements incurred in this matter. COUNT II: QUANTUM MERUIT/UNJUST ENRICHMENT CLAIM AGAINST SECURE MINI STORAGE LIMITED PARTNERSHIP and W.A.T.E. ENTERPRISES,INC. Plaintiff adopts, by reference all preceding paragraphs 1 through 12 above as if more fully set forth herein. 13. Defendant SECURE MINI STORAGE LIMITED PARTNERSHIP have received a benefit from the utilities of the Plaintiff,and therefore, is liable to Plaintiff in quantum meruit in the amount of$102,714.00, for the reasonable value of Plaintiff's utility connections, plus interest allowed by law, and Plaintiff is entitle to recover its costs and disbursements incurred in this matter. WHEREFORE, Plaintiff prays for judgment as follows: 1. Adjudging that Plaintiff is entitled to recover from Defendant, SECURE MINI STORAGE LIMITED PARTNERSHIP,the amount of$102,714.00,together with interest, costs and disbursements. ECKBERG, L I I BRIGGS, WOLFF ING,P. . Dated: c794,17rtr2,elp_g_ B ark J. Vierling Attorney Registration No: 112823 Attorney for Plaintiff 1809 Northwestern Avenue, Suite 110 Stillwater,MN 55082 (651)439-2878 ACKNOWLEDGMENT Pursuant to Minn. Stat. §549.211, the party or parties represented by the undersigned attorneys acknowledge(s) that costs, disbursements, and reasonable attorney and witness fees may be awarded to the opposing party or parties for actions in bad faith; the assertion of a claim or a defense that is frivolous and that is costly to the other party; the assertion of an unfounded position solely to delay the ordinary course of the proceedings or to harass; or the commission o . at% d upon the Court. ECKBERG, AMMERS, B' _ . • WOLFF&'IERLING, Dated ,, , Zp ' Dated „_,_ By: • J. Vierling -� Attorney Registration No: 112823 Attorney for Plaintiff 1809 Northwestern Avenue, Suite 110 Stillwater,MN 55082 (651)439-2878 TY O F OAK PARK HEIGHTS . } 14168 Oak Park Boulevard No.,•P:O:Box 2007 • Oak Park Heights,MN'"55082-2007• Phtne:651/439-4439 .Fax:651/439-0574 arch 10,2005: Secure Mini Storage Limited Partnership. ' 3245Hiawatha Ave: S. Suite A - . Minneapolis,'MN 55406; : . Dear Sir ; : ' An.internal audit.of • the Ci of 1Oak Park Heights has recently been:completed. 'The audit • revealed that no payment of•connection charges was made for Lois:'8, 9; and 10 Block 2 . Kern Center 2nd Addition. : The.Connection charges on these three parcels'Were due September 29, 1999 when the :• :. mechanical'permit was issued for 5710 Memorial Ave. N. :This property has been receiving City sewer since the year 2000. : ; The amount of connection charge due at the time the permit was issued is $102,714.00. Mr. Valvouhs of Secure Mini Storage-was advised of the connection charges:on August 3, 1999: See attached'correspondence dated August 3, 1999.from.the City Engineer; • -:Bonestroo; Rosene,Anderlik&Associates: No fees:.are being addedat this time for increases ordered by the.City Council in the interim years:. .Please remit payment to the City of Oak Park..Heights, P: 0::Box 2007,,Oak Park ' Heights,MN 55082.:, .. Please let me know:if you have any questions or need further;information.., • Sincerely, Judy Hoist Deputy Clerk/Finance Director • Tree City U.S.A. 1 Bonestroo,Rosene.Anderllk and Associates.Inc.is ffirmative Action/Equal Opportunity Employer . • ' gatiA Bonestroo ' Principals:Otto G.Bonestroo.P.E.•Joseph C.Andc. .P.E.•Marvin L Sorvala.P.E.• Rosene Glenn R.Cook,P.E.•Robert G.Schunicht,RE.•Jerry A.Bourdon,P.E.• Robert W.Rosene,P.E..Richard E.Turner.P.E.and Susan M.Eberlin;C.P.A..Senior Consultants III Anderlik Associate Principals:Howard A.Sanford.RE.•Keith A.Gordon,P.E.•Robert R.Pfefferle,P.E.• 11 /'P e & Richard W.Faster,P.E.•David 0.Loskota,P.E.•Robert C.Russek,AJ.A,•Mark A.Hanson,P.E.• Associates Michel T.Rautmann,P.E.•Ted K.Field,P.E.• Kenneth Anderson,P.E. Mark R.Rolfs,P.E.• SidneyP Williamson,P.E.,L.S.•Robert F.Kotsmith• Agnes'M.Ring•Allan Rick Schmidt.P.E. Offices:St.Paul,Rochester,Willmar and St.Cloud,MN•Milwaukee.WI Engineers&Architects Website:wwwbonestroo.com t GNOME \ 0 —.4 bil) 0D August 3, 1999 Mr. Anthony Valvoulis Secure Mini Storage 740 Linwood Avenue St.Paul, MN 55105-3322 Re: Kern Center Connection Charges City of Oak Park Heights Our File No. 55-98-802 Dear Mr. Vavoulis: • We are in receipt of your letter of July 25, 1999 requesting information relative to the connection charges being assigned to,your Secure Mini Storage site in the Kern Center. The following is in response.to,your questions. 1 through 7 as outlined in your May 7, 1999 correspondence.. , . .. 1. The following table shows the breakdown of the$102,714.00 connection charge: Lot 8, Block 2, Kern Center 2nd Trunk Sanitary Sewer 2.96 ac x $2,310.00/ac • $6,837.60 Trunk Waterworks 2.96 ac x 4,010.00/ac 11,869.60 • Trunk Storm Sewer • 2.96 ac x 5,080.00/ac 15,036.80 Total Lot 8 $33,744.00 Lot 9,Block 2, Kern Center 2nd Trunk Sanitary Sewer 3.00 ac x $2,310.00/ac $6,930.00 Trunk Waterworks 3.00 ac x 4,010.00/ac 12,030.00 Trunk Storm Sewer 3.00 ac x 5,080.00/ac 15,240.00 Total Lot 9 $34,200.00 Lot 10, Block 2, Kern Center 2nd _ Trunk Sanitary Sewer 3.05 ac x$2,310.00/ac $7,045.50 Trunk Waterworks 3.05 ac x 4,010.00/ac . 12,230.50 Trunk Storm Sewer 3.05 ac x 5,080.00/ac 15,494.00 Total Lot 10 ..• $34,770.00 TOTAL SECURE MINI STORAGE $102,714.00 2335 West Highway 36 ■ St. Paul, MN 55113 • 651-636-4600 • Fax: 651-636-1311 Mr.Anthony Valvoulis Secure Mini Storage Page 3 It is hoped that the information provided herein will assist you in understanding the financing procedures used by the City of Oak Park Heights to provide public utility service. Very truly yours, BONESTROO,ROSENE,ANDERLIK&ASSOCIATES,INC. • _ • 7 Joseph C. Anderlik cc: Thomas Melena Kris Danielson Kell & P.A. ATTORNEYS AT LAW OF COUNSEL: McGUIGAN&HOLLY,PLC Trevor S. Oliver toliver@kellyandfawcett.com September 8, 2005 Mark J. Vierling Eckberg, Lammers, Briggs, Wolff&Vierling, PLLP 1809 Northwestern Avenue Stillwater, MN 55082 RE: Cash Connection Charges on Public Storage, 5710 Memorial Avenue, Oak Park Heights,Minnesota Dear Mr. Vierling: Our firm represents Public Storage, Inc., the current owner and operator of the property at 5710 Memorial Avenue in Oak Park Heights. Public Storage acquired the business entity which formerly owned and operated this Secure Mini Storage, and its physical assets, in October, 2004. As a result, we are in receipt of your letter sent to Secure Mini in March 2005 regarding connection charges. • We have been in contact with the City on our client's behalf regarding some cash connection charges the City seeks for sewer and water improvements undertaken in 1999. We have had opportunity to review documents in the City's files regarding the cash collection charges on our client's property. On this review, we cannot recommend that Public Storage pay the cash connection charges sought. Our objections are based on the following: 1. Lack of an ordinance. The City Council must set connection charges, by either resolution or ordinance. Nordgren v. Maplewood, 326 N.W.2d 640, 642 (Minn. 1982). Without an ordinance or resolution, the charges are invalid. We did not locate an ordinance or resolution setting connection charges in the materials presented to us by the City. Unless there is an Oak Park Heights ordinance or resolution setting the charges, it is our position that the charges are invalid and cannot be collected. 2. Improper calculation of char e. Minn. Stat. § 444.075, subd. 3a specifically prohibits the use of square footage, or similar area measurement, to calculate connection charges for sanitary sewers. The City's connection charges for all three services — storm sewer, sanitary sewer, and municipal water — are based upon land area. Public Storage is not obligated to pay charges that are calculated contrary to statute. 444 CEDAR STREET,SUITE 2350 SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 FACSIMILE 651-223-8019 www.kellyandfawcett.corn August 25, 2005 SUBJECT: Cash Connection Charges on Public Storage, 5710 Memorial Avenue Page 2 of 2 3. Connection char es not due. The record indicates that the 5710 Memorial Avenue has not connected to the municipal water system,and is still using water from a well on the property. Connection charges are not due until the property connects to the system. Public Storage disputes whether any charges are due relating to the municipal water system. 4. Charges are not bronortio„al. Connection charges must be rationally related to the cost of connecting the property and the benefit to the property. The current charges for the sanitary sewer and municipal water far outstrip the benefit to the Public Storage property. As a storage facility, Public Storage has minimal use of sanitary sewer and water, especially in relation to the size of the property. The use of acreage to determine sanitary sewer and water charges, along with violating the authorizing statute, also vastly overstate the value of the improvement to the Public Storage property. A proper basis for connection charge is the projected or actual use of the systems by the property, which would result in a much smaller charge against Public Storage. I would like to meet with you to discuss the charges against my client's property. My preference is to reach a resolution acceptable to all parties before requesting a hearing before the Cit Council or seeking relief in Court. Please do not hesitate to call to discuss. y Respectfully yours, KELLY & FAWCETT, P.A. revor S. Oliver TSO/rjo Patrick J. Kelly Cc: L. Klichan N. Choudhry *Also mi in **Real Property Law Specialist,Certified by the Admitted Property nWisconsin Section of the Minnesota State Bar Association JACK W. CLINTON, P.A. ATTORNEY AT LAW JACK W. CLINTON* CURRELL CENTRE, SUITE 200 CATHLEEN L. RICHARDS 7616 CURRELL BOULEVARD TELEPHONE: 651-264-3077 LEGAL ASSISTANT WOODBURY, MINNESOTA 55125 FAX: 651-264-3078 May 8, 2007 Mr. Trevor Oliver Attorney at Law Kelly&Fawcett, P. A. , UR 2350 U.S. Bancorp Piper Jeffray Plaza ��r� � INFORMATION Cedar St. St. Paul, MN 55101 • Mr. Mark J. Vierling Attorney at Law Eckberg, Lammers, Briggs, Wolf, &Vierling, P.L.L.P. 1809 Northwestern Avenue Stillwater, MN 55082Y 2007 Re: Mediation Dates Li) Dears Messrs. Oliver and Vierling: Per Mr. Oliver's telephone call, he requested that I forward dates to you concernin av for a mediation involving your respective clients. g ailability I am enclosing my schedule for May, June and July. Please let me know a date that is convenient for you and your respective clients, and I will place this matter on my calendar. Very truly yours, JACK W. CLINTON, P.A. a 6,C1< l/J. C igtr, / Jack W. Clinton JWC/clr Enclosures *CERTIFIED AS A REAL PROPERTY LAW SPECIALIST BY MINNESOTA STATE BAR ASSOCIATION U1.N0N0., I r tk Ci r Mo^N.- CI a. 6 oo DJ No g N ill M N CIj.d s h 0 1 ti G .�,, N N n N ogm�NN 0 R ,t N R a A. s � F tel £Y� e4 r : .iy s fix, e ~ N M ,,,""i'',..,: f.-',;46 >< eA 0 ti o a -_ O £ t , ,. M ," VI N H O j 0 `` ea t 4,04 i ® !0 �r U o- t. CO 03 CE) Q 4 ns .0 n .' J b N a i 1 i: " . it --13:`-'&1g1 >, o L coN��NN ~ N nl lg \U °e. �",_>R" +dam co tltlY d 5x m 1E11 , a. s, w � S t ,, ,14. 3`',3` CD i: t S,, Vit. 4 z '{ .#A` yam» . ; 4iw ,1 ,-o N C s. o x4d.'iz -o ea IP w .12 CD L a m R II 111111111111 N l" p Vr 3 NW�NN,:i8 ~iIA �NN mgr-�NN M ^ ... 4/NtD,,RN e 6 {o � L . Y H M1 , ''','F',';Y h h � eV eta 05 m g "'T f Ffik -5.,k' ,I 1111 ' aF` K L y { F r. 1111174 - 0 ca_ 0 p Z a : ami w c a ECKBERG . _v LAMMERS ATTORNEYS AT LAW ----_ Writer's Direct Dial: (651)351-2118 1809 Northwestern Avenue, Suite 110 Writer's E-mail: Stillwater, Minnesota 55082 mvierling@eckberglammers.com (651)439-2878 Fax(651)439-2923 www.eckberglammers.com March 27, 2007 Mr. Trevor S. Oliver Kelly&Fawcett, P.A. 444 Cedar Street, Suite 2350 St. Paul, MN 55101 L Re: City of Oak Park Heights v. Secure Mini Storage n/k/a Public Storage,Inc. Court File No. 82-00-06-7138 g Dear Mr. Oliver: I am in receipt of your proposal of March 22 advocating either Roland Fancyor Jack . We would agree to select Attorney Jack Clinton as Clintas candidates to conduct a mediation. a mediator inn this Yours very truly, Mark J. Vierling MJV/sdb cc: Eric Johnson, City Administrator • ECKBERG, LAMMERS, BRIGGS, WOLFF 6 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law •• Real Estate Personal Injury/Wrongful Death Estate Planning/Probate Land Use Law • Mediation • Municipal Law • Civil Litigation Kell & Fawcett P.A. ATTORNEYS AT LAW W OF COUNSEL: McGUIGAN&HOLLY,PLC Trevor S. Oliver toliver@kellyandfawcett.corn March 22, 2007 Mark Vierling Eckberg, Lammers, Briggs FOR YOUR FO Wolff& Vierling, PLLP IN 1809 Northwestern Avenue, Suite 110RaTIoN Stillwater, MN 55082 RE: ADR in City of Oak Park Heights v. Secure Mini Storage Dear Mr. Vierling, Thank you for your letter of February 15. We discussed ADR decided that mediation is our preferred option. We suggest Roland Fancy,of Roseville,client and Clinton, of Woodbury, as good candidates to mediate in this case. or Jack Please call at your convenience to further discuss selecting a mediator or and scheduling the Respectfully yours, KELLY& FETT, P.A. TSO/rjo Trevor S. Oliver Cc: Amar Kharouf, PS 444 CEDAR STREET,SUITE 2350 SAINT 6MINN855101TELEPHONE 651-224-3781 FLE 651-223-8019 www.kellyandfawcett.com ECKBERG • ,[ jçj3 :A_ :1• • • -stern Avenue, Suite 110 ATTORNEYS AT LAW (� (� "' (Water, Minnesota 55082 Writer's Direct Dial: lS t��� � (651) 439-2878 (651)351-2118 Fax(651) 439-2923 Writer's E-mail: FEB 2 0 2nuh7 ww.eckberglammers.com mvierling@eckberglammers.com February 15, 2007 Mr. Patrick Kelly Kelly&Fawcett,P.A. 444 Cedar Street, Suite 2350 St.Paul,MN 55101 Mr. Trevor S. Oliver Kelly&Fawcett,P.A. 444 Cedar Street, Suite 2350 St. Paul,MN 55101 Re: City of Oak Park Heights v. Secure Mini Storage n/k/a Public Storage,Inc. Court File No. 82-00-06-7138 Gentlemen: of c d It appears to me that this case is ready for implementation of some form ADR before e we peoo se to e. court hearings in the matter and I would look forward to receiving fromyou a proposal ly proceed with a mediation in the matter,it appears to me that the case may Although we could obviousto mediation, but I am certainly amenable to be better suited for early neutral evaluation as opposedof her a either ADR format. Please advise me as to your thoughts relative tothe selection o eithese tom oiator or an early neutral on the matter and advise as to your projected availability. ADR p rocess, either by the end of March or the first part of April of this year. I look forward to the p hearing from you. Yours very truly, Mark J.Vierling MJV/sdb cc: Eric Johnson, City Administrator ECKBERG, LAMMERS, BRIGGS, WOLFF VIERLING, PLLP al Family Law/ Divorce • Business Estate Commercial •rnLandlUse Law Crl• Mthat on • MunofpalInjury /Wrongful tion Estate Planning/Probate • R ECKBERG LAMM FRS ATTORNEYS AT LAW Writer's Direct Dial: (651)351-2118 1809 Northwestern Avenue, Suite 110 Writer's E-mail: Stillwater, Minnesota 55082 (651)439-2878 ing@eckberglammers.com Fax (651)439-2923 www.eckberglammers.com December 28, 2006 Mr. Trevor S. Oliver Kelly& Fawcett, P.A. 444 Cedar Street, Suite 2350 St. Paul, MN 55101 Re: City of Oak Park Heights v. Secure Mini Storage n/k/a Public Storage,Inc.Court File No. 82-00-06-7138 g , Dear Mr. Oliver: Enclosed herewith and served upon you by U.S. Maillease f of Documents (Set 1) in regards to P and Plaintiffs Answers to Defendant's Interrogatories and Request for Production matter. g the above-referenced Yours very truly, Mark J. Vierling MJV/sdb Enclosure cc: Eric Johnson, City Administrator ECKBERG, LAMMERS, BRIGGS, WOLFF 8 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT City of Oak Park Heights, a Court File No: Minnesota municipal corporation, Judge: Plaintiff, PLAINTIFF'S ANSWERS TO DEFENDANT'S v INTERROGATORIES AND REQUEST FOR PRODUCTION OF Secure Mini Storage Limited Partnership DOCUMENTS (SET 1) and Public Storage, Defendant. TO: THE DEFENDANTS ABOVE-NAMED, SECURE MINI STORAGE LIMITED PARTNERSHIP AND PUBLIC STORAGE, INC., AND THEIR ATTORNEY, TREVOR OLIVER, KELLY& FAWCETT, P.A., 2350 PIPER JAFFRAY PLAZA, 444 CEDAR STREET, ST. PAUL, MINNESOTA 55101 Plaintiff, City of Oak Park Heights, for its answers to Defendant's Interrogatories and Request for Production of Documents (Set I), states as follows: ANSWERS TO INTERROGATORIES 1. Identify the person answering or supplying information for your responses to these interrogatories. If more than one person supplied information or answered these interrogatories, please state which person answers or supplies information for each portion of the interrogatory. ANSWER: Unless otherwise specified, Mr. Eric Johnson, City Administrator for the City of Oak Park Heights, has provided the entirety of this information. 2. Identify all persons who you know to have knowledge or information relevant to the matters set forth in the Complaint. For each person identified, set forth: a. The substance of that person's knowledge or information; b. The date on which that person gained their knowledge or information; c. The means by which the person gained their knowledge or information; and d. Identify any documents or tangible things relating to that person's knowledge or information. ANSWER: At the time of the actual connection or upon the adoption of such fees the following persons would have had general knowledge of the applicable fees and required connections: Ms. Julie Hultman, City Planning and Code Enforcement Officers; Mr. Dennis Postler, City Engineer—current consultant—Bonestroo and Associates; Mr. Joseph Anderlik, City Engineer(deceased)—consultant—Bonestroo and Associates; Mr. Mark Vierling, City Attorney—Eckberg,Lammers Law Firm; Mr. Jay Johnson, Former Director of Public Works (1998—2004); Ms. Kris Danielson,Former City Administrator(1998—2001); Mr. Tom Melena, Former City Administrator(1998—2001). The following is an attempt at a more detailed accounting of specific personnel per each relevant Count in the Complaint,Numbers 4 through 10: Judy Hoist,Dennis Postler and Jay Johnson; Judy Hoist,Dennis Postler, Jay Johnson and Mark Vierling; Judy Hoist,Dennis Postler and Jay Johnson; Judy Hoist,Dennis Postler and Jay Johnson; Judy Hoist,Eric Johnson, Julie Hultman and Tom Ozzello; Judy Hoist and Eric Johnson; Judy Hoist and Eric Johnson. From the time of establishment of such connection fees,to the point of the Defendant's actual connection to the sanitary sewer and through the discovery of an unpaid connection fee, contacts likely occurred between the above parties to the extent of the capacity of the City to enact such fees and the timeliness of collection. However, at some point, a clerical error in accounting for the collection of all such fees typically due, in absence of a required Development Agreement, at the time of construction of a building permit and/or occupancy permit. The majority of such discussions between the parties were likely via verbal communications and letter. As the timelines approach the current day, additional communication was also likely to occur via email. The City is able and willing to provide a full copy of files and other documentation that may be available. Enclosed herewith is a copy of each known document related to this matter. 3. Identify each and every conversation of which you are aware which involves the subject matter of the Complaint or relates in any manner to those allegations. Set forth the substance of the conversations and identify any relevant documents created or received in connection with these conversations. ANSWER: See answer to Interrogatory No. 2 above. 4. Identify and set forth all admissions against interest or statements which you propose to offer as admissions against interest by Defendants. Identify the date the admission was made and all persons who were present at the time the admission or admissions were made. ANSWER: As of this time,none are known. 5. Has the City been involved in litigation regarding the imposition, calculation, or collection of utility connection charges similar to those the City seeks to collect in this lawsuit? a. If so, set forth the parties involved, the claims made,the case number, if any, of the suit, and the outcome of the matter if it has resolved, b. Identify any and all relevant documents from these actions or threatened actions, including final orders or settlement agreements. ANSWER: As of this time, the.City has not engaged in any other legal proceeding or action regarding the imposition, calculation or collection of utility connection charges similar or otherwise to those sought in the lawsuit except herein. In the early 1980's at the time of construction of the State of Minnesota Correctional Facility in Oak Park Heights, the State contested the City's connection fees and commenced action in district court. The City prevailed in the matter. 6. Identify all connection charges for sanitary sewer, storm sewer, and municipal water imposed by the City of Oak Park Heights in the years 1997 through 2000. For each charge identified, set forth: a. The zoning classification of the property (if PUD, set forth type of development, i.e. residential, commercial, etc.); b. The number of bathrooms, if known; c. The number of kitchens, if known; d. Any other data used to estimate potential usage or SAC charges; e. The amount of charge originally sought by the City; f. The amount of the charge ultimately collected by the City. ANSWER: Items discussed in the requested Interrogatory No. 6 under Subpart b., c., and d. are elements of Sewer Accessibility Charge (SAC)as charged by the Metropolitan Council and are not fees/charges imposed by the City. Instead, the City is tasked to collect such fees and then remit such payments to the Metropolitan Council. Information regarding the amounts charged and remitted to the Metropolitan Council shall be obtained from the official source, i.e. the Metropolitan Council. Please see attached chart discussing the historical rate structures of City connection charges. This chart has been provided by Mr. Dennis Postler, City Engineering Consultant, Bonestroo and Associates. The chart(Attachment#1) should resolve the balance of the questions posed in Item 6. Relevant to these proceedings, connection charges were established in the City of Oak Park Heights in February, 1991 when the City adopted Resolution 91-02-08. I am attaching an additional table which outlines changes to connection fee rates since that date. Connection charges were reviewed but not changed until 1998, therefore, some years have identical rates. RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1. All documents or tangible items identified in response to the above Interrogatories, setting forth the name, business address, and business position of the custodian of each document or thing. RESPONSE: Chart referenced in response to Interrogatory No. 6 prepared by Dennis Postler, City Engineering Consultant, Bonestroo and Associates, 2335 West Highway 36, St. Paul, Minnesota 55113. 2. Any and all documents created by Plaintiff, or its agents, authorizing the imposition of the connection charges at issue in this lawsuit. RESPONSE: See attached Resolutions passed by the City of Oak Park Heights: a. Resolution 01-12-65 passed on December 11,2001; b. Resolution 02-12-65 passed on December 30, 2002; c. Resolution 03-12-58 passed on December 9, 2003; and, d. Resolution No. 04-12-57 passed on December 28, 2004. 3. All "statements"as that term is defined under the Minnesota Rules of Civil Procedure. RESPONSE: Provided. 44f) Eric . son Subscrib,d anti worn to befor e this . d. , of .,, , 200,C No y Public 4,T" MARK J.VIERLING •may: NOTARY PUBLIC-MINNESOTA •. My Commission Expires Jan.31,2010 ANSWER TO INTERROGATORY 6/ RESPONSE TO REQUEST NO. 1 r H z w 2 I 0 m co co co co co Q Q Q Q < Q ami aa)) N aa )) a) 0 U U 0 0 0 a)0 N ..co U) CO U) Co O 3C c c c c M O p O O O O Nr m m m CO CO m 0 Z c c c c c 0'C) Nr. 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U .0 C G tU v 0 CT o * 0 o � 0 Q 0', � o, 0000000 v _o �+ o� � � rnCC0000 z CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY, MINNESOTA RESOLUTION 98-12-70 RESOLUTION ADJUSTING THE UTILITY CONNECTION CHARGES FOR TRUNK UTILITY IMPROVEMENTS IN THE CITY OF OAK PARK HEIGHTS WHEREAS, the City of Oak Park Heights has established a s ste charges to assist in financing trunk utility improvements; and, Y m of connection WHEREAS, these charges need to be adjusted from time to time; NOW, THEREFORE, BE IT RESOLVED THAT the Cityof will charge a sanitary sewer connection charge of$2,430.00/acre a waterazworks coection k Heights charge of$4,220.00/acre, and a storm sewer connection charge of$5,350.00/acre Dated this 15th day of December, 1998. SIGNED: '1/ David D. Schaaf Mayor Thomas M. Melena City Administrator RESOLUTION NO. 99_ 11--42 CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY, MINNESOTA A RESOLUTION ESTABLISHING CO CTION THROUGHOUT THE CITY OF OAK PARK HE GHTSS FOR CONNECTIONS TO MUNICIPAL WATER SYSTEMS, SANITARY SEWER SYSTEMS AND STORM SEWER SYSTEMS • WHEREAS, Minn. Stat . municipalities ER to establish §444 . 075, Subd. construction, reconstruction, repairs, enlargement, 3 authorizes other obtainment tem of charges for theo maintenance operation and uSe improvement municipal al facilities, including, but not limited to charges to such municipal facilities for municipal water, of municipal g for connectionsy and storm sewer; and, sanitary sewer, WHEREAS, City ordinances provide for the Council to establish from time to time connection charges to be colle properties developing in and connecting to the municipal twater, d for P sanitary sewer and storm sewer systems; and, collected oEREAS, the Ci and historically established and WHEREAS, connection charges established by Oak Park Heights require modification and amendment fro time; and the City of m time to WHEREAS, the office of the City recommendationsERto the City Engineer has provided of connection charges Citythroughout ctheaaffects the establishmen relates to connection to trunk sanitary of Oak Park Heights systems and trunk storm sewer systems; Sewer systems, trunk water and, _ WHEREAS, the City Council determines it to be in the best interest of the residents and City of Oak Park Heights fees be periodically renewed and adjusted to take into of construction and replacement and systems, cost of m that such operation and other expenses that the City account cost regard to the maintenance of such systems . expects to incur with maintenance NOW, THEREFORE, BE IT RESOLVED, the City of Oak Park Heights that effective January1 connection charges to be appliedby the City Council for ns for throughout the City2000 city Heights shallproperties as developing or connecting °f Oak Park to municipal 1 . Sanitary sewer connection charge, $2, 540 . 00 per acre. 2 . Municipal water connection charge, $4, 420 . 00 e acre.• per 3 . Storm sewer connection charge, $5, 600 . 00 per acre. BE IT FURTHER RESOLVED, that as to the computation of acreage as it affects each development or connection related to the collection of these fees, all such computations shall be made through the office of the City Engineer with all such fees being thereafter collected through the office of the City Administrator. No connection shall be made to any municipal utility system until such time as the connection fees as calculated and determined the office of the City Engineer have been collected. by Passed by the City Council for the City of Oak Park Heights this 23rd day of November, 1 99 . / /140 /f David Schaaf, 'Mayor �,/� AT ST: / Thomas Melena City Administrator RESOLUTION NO. gg, 6 CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY, MINNESOTA A RESOLUTION ESTABLISHING CONNECTION FEES THROUGHOUT THE CITY OF O • FOR CONNECTIONS TO MUNICIPAL, PARK HEIGHTS SANITARY SEWER SYSTEMS AND STORM SEWER SYSTEMS WHEREAS, Minn. Stat . municipalities ER to establish §444 . 075, Subd. 3 authorizes system of charges for the construction, reconstruction, repair, enlargement, improvement or other obtainment, maintenance operation and use of facilities, including, but not limited to charges for connections to such municipal facilities for municipal water, and storm sewer; connections and, sanitary sewer, WHEREAS, City ordinances provide for the Council to establish from time to time connection charges to be collected properties developing in and connecting to the municipal water, sanitary sewer and storm sewer systems; and, for WHEREAS, the City has historically established and collected connection charges; and WHEREAS, connection charges established by Oak Park Heights require modification and amendment from time; and, the City of time to WHEREAS, the office of the City recommendations to the City Council as it affects the establishment of connection charges throughout the Cityof Engineer has provided relates to connection to trunk sanitary se erOskY trunk water stemPars Hei systems and trunk storm sewer systems; and, ghts as it WHEREAS, the City Council determines it to be in the best interest of the residents and City fees be periodically renewed and adjusted toPark take din oh accountt such of construction and replacement and systems, cost of mainte operation and other expenses that the cost regard to the maintenance of such systmstY expects to incur NOW, THEREFORE, BE IT RESOLVED, by the City of Oak Park Heights that effective Augustthe yl 1998 Council city connection charges to be applied throughout the City of Park Heights for properties developing or connecting to utilities shall be as follows : municipal • 1 . Sanitary sewer connection charge, $2, 310 . 00 per acre. 2 . Municipal water connection charge, $4, 010 . 00 per acre. 3 . Storm sewer connection charge, $5, 080 . 00 per acre. BE IT FURTHER RESOLVED, that as to the computation of acreage as it affects each development or connection related to the collection of these fees, all such computations shall be made • • through the office of the City Engineer with all such fees being thereafter collected through the office of the City Administrator. No connection shall be made to any municipal utility system until such time as the connection fees as calculated and determined by the office of the City Engineer have been collected. Passed by the City Council for the City of Oak Park Heights this 2gth day of July, 1998 . // / Davi. ''c aa Mor ATT:ST: r\---.v-N,------L______/ ,, Thomas Melena City Administrator RESPONSE TO REQUEST NO. 2 SEP-28-2005 14:54 OAK PARK HEIGHTS CITY P.08/09 RESOLUTION NO. 01-12-65 CITY 01?OAK PARK HEIGHTS WASHINGTON COUNTY,MINNESOTA RESOLUTION ESTABLISHING CONNECTION FEES THROUGHOUT THE CITY OF OAK PARK HEIGHTS FOR CONNECTIONS TO MUNICIPAL WATER SYSTEMS,SANITARY SEWER SYSTEMS AND STORM SEWER SYSTEMS WHEREAS, Minn. Stat §444.075, Subd. 3 authorizes municipalities to establish a system of charges for the construction, reconstruction, repair, enlargement, improvement or other obtainment, maintenance operation and use of municipal facilities, including,but not limited to charges for connections to such municipal facilities for municipal water,sanitary sewer,and storm sewer;and, WHEREAS, City ordinances provide for the Council to establish from time to time connection charges to be collected for properties developing in and connecting to the municipal water, sanitary sewer and storm sewer systems; and, WHEREAS, the City has historically established and collected connection charges; and, WHEREAS, connection charges established by the City of Oak Park Heights require modification and amendment from time to time; and, WHEREAS, the office of the City Engineer has provided recommendations to the City Council as it affects the establishment of connection charges throughout the City of Oak Park heights as it relates to connection to trunk sanitary sewer systems, trunk water systems and trunk storm sewer systems;and, WHEREAS, the City Council determines it to be in the best interest of the residents and City of Oak Park Heights that such fees be periodically renewed and adjusted to take into account cost of construction and replacement and systems, cost of maintenance operation and other expenses that the City expects to incur with regard to the maintenance of such systems. NOW,THEREFORE,BE IT RESOLVED,by the City Council for the City of Oak Park Heights that effective January 1, 2002 city connection charges to be applied throughout the City of Oak Park Heights for properties developing or connecting to municipal utilities shall be as follows: SEP-28-2005 14:54 OAK PARK HEIGHTS CITY P.09/09 1. Sanitary sewer connection charge,$2,660.00 per acre. 2. Municipal water connection charge,$4,630.00 per acre. 3. Stone sewer connection charge,$5,860.00 per acre. BE IT FURTHER RESOLVED,that as to the computation of acreage affects each development or connection related to the collection of these fees, all such computations shall be made through g thereafter collected through the office of the City CAdministrator.Engineer "ith all such fees beinshall be made to any municipal No connection utility system until such time as the connection fees as calculated and determined by the office of the City Engineer have been collected. Passed by the City Council for the City of Oak Park December 2001. - y this 11th day . Arif7 vT ' ' !or yor ATTEST; Kimberly ' ; Acting City Administrator 2 TOTAL P.09 oGr-eb-d005 14:53 OAK PARK HEIGHTS CITY P.06/09 SOLUTION NO. 02-12-65 CITY OF OAK PARK HEIGHT WASHINGTON COUNTY,MINNESOTA RESOLUTION ESTABLISHING CONNECTION FEES OF OAK.PARK HEIGB g FOR CONNE TBROUGIETO TE CITY SYSTEMS,S�'I'ARY SEWER SYSTEM ONS TO MUNICIPAL'WATER AND STORM SEWER SYSTEMS establish a WHEREAS, Minn. Stat. §444.075, Subd. 3 authorizes Municipalities system of charges for the construction, reconstruction, enlargement, la gem t, improvement or other obtainment, maintenance o > including,but not limited to chargesPotion and use of municipal facilities, for connections to such municipal facilities for municipal water,sanitary sewer,and storm sewer, and, WHEREAS, City ordinances provide for the Council to to time connection charges to be collected for properties developing establish ng time P municipal water, sanitary sewerand storm sewer systems;ystems; andand connecting to the , RE charges; AS, the City has historically established and collected connection WITEREAs, eonaecti©n charges established require modification and amendment by the City of Oak Park Heights time to time;and, to the City Council itWHEREAS,affthe ts OM= of the City Engin has provided recommendations of Oak Park heights as it relates to connectionhe �to oft connection sanitary charges throughout systems and trunk storm,sewer systems; and, sewer systema, trunk water WHERE residents and Cinterest of AS, the City Council determines it to be in the Park Heights that such fees be periodically renewed and adjusted the Oak take into account cost of construction and r operation and other expenses the City replacement and systems, cost of maintenance systems. expects to incur with regard to the maintenance of of Oak Park OW,THEREFOR BE IT RESOLVED,by the City Council for the Heights that effective January 1, 2003 city connection charges to be City d throughout the City of Oak Park Heights for properties developing utilities shall be as follows: Pm$or connecting to municipal SEP-28-2005 14:53 OAK PARK HEIGHTS CITY P.07/09 1. Sanitary sewer connection charge,$2,730.00 per acre. 2. Municipal water connection charge,$4,750.00 per acre. 3. Storm sewer connection charge,$6,020.00 per acre. BE IT FURTHER RESOLVED, that as to the computation of acreage as it affects each development or connection related to the collection of these fees, all such computations shall be made through the office of the City Engineer with all such fees being thereafter collected through the office of the Ci 'A system � dministrator. No connection shall be made to any municipal utility until such time as the connection fees as calculated and determined by the office of the City Engineer haVe been collected. Passed by the City Council for the City of Oak P, eights this 30th December 2002. ghday of eliiIIIP 4.111 moi► a `-=r udet,Mayor ATTEST: . • • st Acting City Administrator 2 SEP-28-2005 14:53 OAK PARK HEIGHTS CITY P.04/09 RESOLUTION NO. 03-12-58 CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY,MINNESOTA A RESOLUTION ESTABLISHING CONNECTION FEES THROUGHOUT THE CITY OF OAK PARK HEIGHTS FOR CONNECTIONS TO MUNICIPAL WATER SYSTEMS, SANITARY SEWER SYSTEMS AND STORM SEWER SYSTEMS WHEREAS,Minn. Stat. §444.075, Subd. 3 authorizes municipalities to establish a system of charges for the construction, reconstruction, repair, enlargement, improvement or other obtainment, maintenance operation and use of municipal facilities, including, but not limited to charges for connections to such municipal facilities for municipal water, sanitary sewer, and storm sewer;and, WHEREAS, City ordinances provide for the Council to establish from time to time connection charges to be collected for properties developing in and connecting to the municipal water,sanitary sewer and storm sewer systems;and, WHEREAS,the City has historically established and collected connection charges; and, WHEREAS, connection charges established by the City of Oak Park Heights require modification and amendment from time to time;and, WHEREAS, the office of the City Engineer has provided recommendations to the City Council as it affects the establishment of connection charges throughout the City of Oak Park Heights as it relates to connection to trunk sanitary sewer systems, trunk water systems and trunk storm sewer systems; and, WHEREAS,the City Council determines it to be in the best interest of the residents and City of Oak Park Heights that such fees be periodically renewed and adjusted to take into account cost of construction and replacement and systems,cost of maintenance operation and other expenses that the City expects to incur with regard to the maintenance of such systems. NOW, THEREFORE, BE IT RESOLVED, by the City Council for the City of Oak Park Heights that effective January 1, 2004 city connection charges to be applied throughout the City of Oak Park Heights for properties developing or connecting to municipal utilities shall be as follows: SEP-28-2005 14:53 OAK PARK HEIGHTS CITY P.05/09 I. Sanitary sewer connection charge,$2,815.00 per acre. 2. Municipal water connection charge, $4,900.00 per acre. 3. Storm sewer connection charge,$6,205.00 per acre in the sections of the city located within the Valley Branch Watershed District and the Middle St Croix Valley Water Management Organization and $11,360.00 in the areas of the city located in the Browns Creek Watershed District however excepting from Browns Creek the areas located West of Trunk Highway 5,South of Trunk Highway 36 and north of 55th Street. BE IT FURTHER RESOLVED,that as to the computation of acreage as it affects each development or connection related to the collection of these fees, all such computations shall be made through the office of the City Engineer with all such fees being thereafter collected through the office of the City Administrator. No connection shall be made to any municipal utility system until such time as the connection fees as calculated and determined by the office of the City Engineer have been collected Passed by the City Council for the City of Oak Park . this 9th day December,2003. iVr ) i ri / 1/ 'AL Z-1, ,. 4 Davi. :eaudet,Mayor v- T; Eric Johnson /rfCity A. .r SEP-28-2005 14:52 OAK PARK HEIGHTS CITY P.02/09 RESOLUTION NO. 04-12-57 CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY,MINNESOTA A RESOLUTION ESTABLISHING CONNECTION FEE S THROUGHOUT THE CITY OF OAK PARK HEIGHTS FOR CONNECTIO�SST'1`ENIS AND STORM SEWER SYSTMUNICIPAL WATER SYSTEMS, EMS SEWER WHEREAS,Minn. Stat. §444.075, Subd. 3 authorizes municipalities to establish a system of charges for the construction, reconstruction, repair, enlargement, improvement or other obtainment, maintenance operation and use of municipal facilities, including, but not limited to charges for connections to such municipal facilities for municipal water, sanitary sewer, and storm sewer;and, WHEREAS,City ordinances provide for the Council to establish from time to time connection charges to be collected for properties developing in and connecting to the municipal water,sanitary sewer and storm sewer systems; and, WHEREAS,the City has historically established and collected connection charges; and, WHEREAS, connection charges established by the City of Oak Park Heights require modification and amendment from time to time;and, WHEREAS,the office of the City Engineer has provided recommendations to the City Council as it affects the establishment of connection charges throughout the City of Oak Park Heights as it relates to connection to trunk sanitary sewer systems, trunk water systems and trunk storm sewer systems; and, WHEREAS,the City Council determines it to be in the best interest of the residents and City of Oak Park Heights that such fees be periodically renewed and adjusted to take into account cost of construction and replacement and systems,cost of maintenance operation and other expenses that the City expects to incur with regard to the maintenance of such systems. NOW, THEREFORE, BE IT RESOLVED, by the City Council for the City of Oak Park Heights that effective January 1, 2005 city connection charges to be applied throughout the City of Oak Park Heights for properties developing or connecting to municipal utilities shall be as follows: SEP-28-2005 14:52 OAK PARK HEIGHTS CITY P.03/09 • 1. Sanitary sewer connection charge, $3,035.00 per acre. 2. Municipal water connection charge,$5,280.00 per acre. 3. Storm sewer connection charge,$6,685.00 per acre in the sections of the city located within the Valley Branch Watershed District and the Middle St. Croix Valley Water Management Organization and $12,240.00 in the areas of the city located in the Browns Creek Watershed District however excepting from Browns Creek the areas located West of Trunk Highway 5,South of Trunk Highway 36 and north of 55th Street. BE IT FURTRER RESOLVED,that as to the computation of acreage as it affects each development or connection related to the collection of these fees, all such computations shall be made through the office of the City Engineer with all such fees being thereafter collected through the office of the City Administrator. No connection shall be made to any municipal utility system until such time as the connection fees as calculated and determined by the office of the City Engineer have been collected. Passed by the City Council for the City of Oak Park Heights this 28th day of December,2004. etP tfr 11 a avid Beaudet,Mayor 1 c Johnson City A. .r .. CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY, MINNESOTA A RESOLUTION ESTABLISHED PURSUANT TO ORDINANCE 1001 AND MINNESOTA STATUTE 444 .075 CREATING AND ESTABLISHINGECHARGES FOR THE CITY pARKHEIGHTS WHEREAS, Minnesota Statute 444 . 075, Subd. 5 establishes the statutory authority allowing palities to connecting thepblish ublic connection charges for the privilege of facilities owned, operated and maintained by municipal corporations; and, WHEREAS, Ordinance 1000.01 et seq. of the Code of Ordinances of the City of Oak Park Heights establishes the appropriate rules and regulations for use and connection to the City' s public facilities consisting of municipal water, sanitary sewer and storm sewer systems; and, WEERELS, the existing core facilities created, constructed, maintained and established within the City of Oak Park Heights have been in large measure financed and acquired for the public good by use of connection charges to the City's public facility systems within the City and, more specifically, haste been particularly financed by developments within the corp boundaries of the City of Oak Park Heights as those corporate boundaries existed prior to July 29 , 1988 ; and WHEREAS, the lands existing within the corporate boundaries of the City of Oak Park Heights as those corporate boundaries existed prior to July 29 , 1988 are substantially improved and should not be further burdened by the establishment of a connectiocfa�g�hosetareasat of1s thever Cityndandove that which currently exists WHEREAS, the growth within the City of Oak Park Heights and the demand and need for additional public facilities ( i.e. municipal water, sanitary sewer and storm sewer) has grown to the point where the City is in need of constructing an additional water tank to serve the City of Oak Park Heights and its anticipated growth into areas annexed to the city of oak Park Heights on or after July 28 , 1989; and, WHEREAS, the City Council for the City of Oak Park Heights finds that it is appropriate and reasonable to use• connection charges as a means of financing further water works improvements and other public facilities improvements to serve new areas within the City of Oak Park Heights which will need and • be connected to such municipal and public facility systems within the future; and, WHEREAS, the office of the City Engineer for the City of Oak Park Heights has completed a study dated October 10, 1989 , • computing the need for additional connection charges within areas annexed to the City of Oak Park Heights after July 29 , 1989, and anticipated to be annexed to the City of Oak Park Heights in the future; and, WHEREAS, the office of the City Auditor for the City of Oak Park Heights has further reviewed said study and concurs with the findings and projections of the City Engineer made within the aforesaid report from Bonestroo, Anderlik & Associates dated October 10, 1989; and, WHEREAS, the City Council for the City of Oak Park Heights has received requests from property owners to extend municipal services and public facilities into newly annexed areas within the City of Oak Park Heights which create the need for additional public facilities and growth within existing public facility systems with the City of Oak Park Heights; and, WHEREAS, the City Council for the City of Oak Park Heights deems it reasonable and appropriate to establish a connection charge to be collected from areas annexed to the City of Oak Park Heights on or after July 29, 1988 and thereafter to help defray the expense, enlargement and enhancement of existing public facility and municipal water and sewer systems within the City of Oak Park Heights. NOW, THEREFORE, BE IT RESOLVED by the City Council of for the City of Oak Park Heights, Washington County, Minnesota that as and for the direct and proximate need of the City of Oak Park Heights to expand, enlarge and create new public facilities to serve areas annexed and to be annexed to the City of oak Park Heights from and after July 29, 1988 there shall hereby be established pursuant to statute and pursuant to the Ordinances of the City of Oak Park Heights connection charges to be paid by all areas hereinafter developed within the City of Oak Park Heights that were not originally contained within the City's corporate limits effective July 28 , l988 , with said charges being due and payable upon the occurrence of any one of the following events whichever first occurs! A. The issuance of a building permit; S. The issuance of a permit allowing connection to municipal water, sewer and/or storm sewer systems; C. Upon plat approval and/or execution of a Development Agreement relating to platting of real property; • D. Upon the granting of a Planned Unit Development permit and/or granting of a Development Agreement relating to a Planned Unit Development; E. Upon the granting of any Conditional or Special Use • Permit for the allowance of use and construction of a facility intended to be connected to the public facilities of the City of Oak Park Heights. That the following connection charges shall be collected in each such instance based upon the proposed development aforementioned and based upon the following computations or fractional proportions thereof: A. Trunk sewer connection charges shall be collected at the rate of $2 , 110.00 per acre; B. Trunk water works connection charge shall be collected at the rate of $30670. 00 per acre; BE IT FURTHER RESOLVED that all such computation shall be made by the office of the City Clerk and confirmed with the offices of the City Engineer prior to collection thereof and prior to issuance of any permit allowing development upon property within the aforementioned areas of the City of Oak Park Heights. BE IT FURTHER RESOLVED that the aforementioned system of charges and rates shall be adjusted from time to time by the City Council based upon report and recommendation from the office of the City Engineer and the office of the City Auditor. All such adjustments and amendments thereto, if any, shall be effective immediately upon adoption and shall be applied to all developments thereat pending which have not received approval by the City of Oak Park Heights or which may be applied for after which such amendments have been approved by the City Council. BE IT FURTHER RESOLVED that the aforementioned connection charges are in addition to and not in lieu of costs to be assessed to particular properties for the providing of sanitary sewer, storm sewer and water improvements to each property as may be petitioned for same or for which improvements have been ordered by the City Council pursuant to Minnesota Statute 429.031. BE IT FURTHER RESOLVED that upon the recommendation of the City Engineer, the City Fiscal Consultant and staff, the City council may delay or defer payment of any part or all of a connection charge to be collected as it affects any property to be connected to the water and sanitary sewer system upon application of the property owner with such delay or deferral to be upon such terms as may be established by the City Council. Passed by the City Council of the City of Oak Park Heights this 25th day of Febr -,ry , 1-Az. 41,7 Barbara O'Neal, Mayor Attest: �,.-''LsVonne son, Administrator/Treasurer MASTER FEE SCHEDULE ATTACHMENT TO CITY ORDINANCE 102 CITY OF OAK PARK HEIGHTS 14168 Oak Park Blvd.N. P.O.Box 2007 Oak Park Heights,MN 55082 CURRENT FEES, RATES AND CHARGES (Subject to Change)—Republished 7/19/06 Alcoholic Beverages: Fee 3.2 Malt Liquor Off-Sale License $ 50.00 per year 3.2 Malt Liquor On-Sale License $ 150.00 per year 3.2 Malt Liquor License Investigation Fee $ 500.00 per year Liquor Off-Sale License $ 100.00 per year Liquor On-Sale License $ 2,770.00 per year Liquor On-Sale—Sunday License $ 200.00 per year Liquor License Investigation Fee $ 500.00 per year Park Alcohol Use&Consumption Permit In conjunction with park shelter $ 15.00 per permit reservation) Wine On-Sale License $ 600.00 per year Wine License Investigation Fee $ 500.00 per year Amusement & Commercial Recreation: Fee Billiards/Pool Table License $ 15.00 per table Bingo License $ 75.00 per year Mechanical Amusement Devices $ 15.00 per device Building/Construction/Utilities: Fee Building/Construction Permits General Right of Way Permits $150.00+Expenses and Deposit. Commercial/Industrial Permits Based on job value (see valuation table below). State Surcharge will be charged. Plan Review Fee will be charged, if applicable. Excavating&Grading Fee and State Surcharge are based on job value (see valuation table below) and cubic yards earth moved. Plan Review Fee will be charged, if applicable. Residential Permits: > Additions Based on Job Value > Decks/Patios & Similar Based on Job Value * > Fence Installation—4' &Under $50.00 > Fence Installation—Over 4' Based on job value (see valuation table below). State Surcharge will be charged. Plan Review Fee will be charged, if applicable. > New Construction& Remodeling Based on job value (see valuation table below). State Surcharge will be charged. Plan Review Fee will be charged, if applicable. > Re-Roofing $50.00 > Re-Siding $50.00 ➢ Storage Shed (1 story— 120 sq. ft. or less) $25.00 > Window Replacement $50.00 Compliance Escrow: Variable New Commercial Construction Compliance Escrow: New Residential Construction $1,000 per residential unit Contractor Licenses: Blacktopping/Asphalt $30.00 per year Building Moving $30.00 per year ➢ Commercial General Contractor $50.00 per year Concrete&Masonry $30.00 per year Excavation/Grading $30.00 per year ➢ Fire Protection Systems Installation MN State Licensure Required ➢ Heating,Ventilation&AC (Mechanical) -MN Mechanical Bond Required $30.00 per year • Irrigation Sprinkler Installation $30.00 per year ➢ Outside Sewer&Water Installation $30.00 per year ➢ Plumbing MN State Licensure Required ➢ Residential General Contractor MN State Licensure Required ➢ Siding Installation $30.00 per year ➢ Signage&Billboards Installation $30.00 per year ➢ Specialty Other: Not Specified Above $30.00 per year Verification of State Contractors License $5.00 per permit submission Electrical Permit Application(MN State) $2.00 -2- Inspection Services: Miscellaneous Inspections $55.00 per hour or total hours cost to (For which no other fee has been jurisdiction, whichever is greater. Includes established—Min. Charge is 1/2 hr.) employee costs, overhead and equipment. Outside Regular Business Hours $55.00 per hour or total hours cost to (Minimum Charge is 2 hours) jurisdiction, whichever is greater. Includes employee costs,overhead and equipment. ➢ Re-inspection $55.00 per hour or total hours cost to jurisdiction,whichever is greater. Includes employee costs, overhead and equipment. Plan Review Services: Initial Plan Review Variable—65% of the base permit fee based on project value Additional Plan Review(s) $55.00 per hour or total hours cost to (Due to changes,revisions—Min. 1/2 Hr.) jurisdiction,whichever is greater. Includes employee costs,overhead and equipment. Grading/Excavation - Fee Schedules Grading Permit Fees (1): The fee for a grading permit authorizing additional work to that under a valid permit shall be the difference between the fee paid for the original permit and the fee shown for the entire project. 50 cubic yards or less $23.50 51 to 100 cubic yards $37.00 101 to 1,000 cubic yards $37.00 for the first 100 cubic yards + $17.50 for each additional 100 cubic yards or fraction thereof 1,001 to 10,000 cubic yards $194.50 for the first 1,000 cubic yards +$14.50 for each additional 1,000 cubic yards or fraction thereof 10,001 to 100,000 cubic yards $325.00 for the first 10,000 cubic yards + $66.00 for each additional 10,000 cubic yards or fraction thereof 100,001 or more cubic yards $919.00 for the first 100,000 cubic yards +$36.50 for each additional 10,000 cubic yards or fraction thereof -3- Other Grading Inspection & (2): Or the total hourly cost to the jurisdiction,whichever is the greatest. This cost shall include Supervision,overhead, equipment, hourly wages and fringe benefits of the employees involved. ➢ Inspections outside normal business hours $55.00 per hour(2) (Minimum Charge—two hours) $55.00 per hour(2) ➢ Re-inspection Fees • Inspections for which no fee is specifically indicated $55.00 per hour(2) (Minimum Charge—one-half hour) Grading Plan Review Fees (*): (*) Or the total hourly cost to the jurisdiction,whichever is the greatest. This cost shall include Supervision, overhead, equipment, hourly wages and fringe benefits of the employees involved. No Fee 50 cubic yards or less 51 to 100 cubic yards $23.50 101 to 1,000 cubic yards $37.00 1,001 to 10,000 cubic yards $49.25 10,001 to 100,000 cubic yards $49.25 for the first 10,000 cubic yards +$24.50 for each additional 10,000 cubic yards or fraction thereof 100,001 to 200,000 cubic yards $269.75 for the first 100,000 cubic yards +$13.25 for each additional 10,000 cubic yards or fraction thereof 200,001 or more cubic yards $402.25 for the first 200,000 cubic yards +$7.25 for each additional 10,000 cubic yards or fraction thereof Other Grading Plan Review Fees: ➢ Additional plan review required by changes, additions or revisions $55.00 per hour to approved plans. (Minimum Charge—one-half hour) • -4- Heatin_ /Ventilation / Coolin: Permits echanical Commercial/Industrial: 1% of job valuation for first $100,000 plus '%z% of value above $100,000 ($75.00 minimum). MN State Surcharge will be charged. Plan Review Fee will be charged, if applicable Residential Permits: > Air Conditioning Replacement or'Repair $25.50$ .50 ➢ Fireplace Installation $ > Furnace Replacement or Repair $50.50 ➢ New Construction&Remodeling 7 .50 ➢ Residential: Gas Line Installation Only $25.50 > Residential: Minor Improvement* * Eg.pre-wired dishwasher,water softener, and minor repair meeting the following: Does not modify gas or electrical 5%of job valuation(min. $15.00),plus service; .50 cent state surcharge. Does not exceed total labor cost of$500; and Is improved, installed or replaced by the homeowner or a licensed contractor. Plumbing Commercial/Industrial Permits: 1% of job valuation ($75.00 minimum) plus .50 MN State Surcharge. Residential Permits: $75.50 ➢ New Construction&Remodeling ➢ Residential: Minor Improvement* * Eg.pre-wired dishwasher,water softener, and minor repair meeting the following: Does not modify gas or electrical service; 5%of job valuation(min. $15.00),plus Does not exceed total labor cost of$500; .50 cent state surcharge. and Is improved,installed or replaced by the homeowner or a licensed contractor. ➢ Water Heater(when installation is $25.50 separate from other plumbing services) -5- Utilities (Including Water,Sewer,Storm Sewer& Garbage Rates) Commercial Inspections & Testing : ➢ Conductivity Test $70.00 ➢ Disinfection Test $70.00_ > Hydrostatic Pressure Test $70.00 Each > Manhole Inspection $35.00/5 manholes > Sewer Air Pressure Test $35.00 > Sewer Service Inspection $35.00 Per Service > Water service Inspection $35.00 Per Service > Wet Tap Inspection $35.00 Per Wet Tap Connection Charges: > Existing Lines: Local Water Connection $35.00/Unit -Charged with Construction Permit when water meter required. > Existing Lines: Local Sewer Connection $35.00/Unit -Charged with Construction Permit when water meter required. > New Lines: Municipal Water Connection $5,280 Per Acre * > New Lines: Sanitary Sewer Connection $3,035 Per Acre * -6- ➢ New Lines: FOR UNDEVELOPED/UNCONNECTED LAND: Per Acre * Area Charges -Non TSMP AREA (Middle St. Croix Watershed&Valley Branch Watershed Districts) Commercial/ Industrial & Retail/ Low Medium High Business Density Density Density Centers Residential Residential Residential Sanitary $ 1,870 $ 1,784 $ 2,379 $ 4,163 Water $ 9,718 $ 9,271 $ 12,361 $ 21,632 Storm $ 1,516 $ 834 $ 1,209 $ 1,516 TOTAL $ 13,104 $ 11,889 $ 15,949 $ 27,311 Area Charges -TSMP AREA (Brown's Creek Watershed District- Exception: areas located W. of Hwy. 5, S.of Hwy. 36 and N.of 55th St.) Commercial/ Industrial & Retail/ Low Medium Business Density Density High Density Centers Residential Residential Residential Sanitary $ 1,870 $ 1,784 $ 2,379 $ 4,163 Water $ 9,718 $ 9,271 $ 12,361 $ 21,632 Storm $ 7,069 $ 6,387 $ 6,762 $ 7,069 TOTAL $ 18,657 $ 17,442 $ 21,502 $ 32,864 * Computation of acreage, as it affects each development or connection related to the collection of these fees,shall be made through the office of the City Engineer with all such fees being collected through the Office of the City Administrator. Customer Service Call Request $55.00 for first 1/2 hour+ $55.00 for each additional hour or fraction thereof. Garbage Rates-Commercial Individually contracted by Business with City Licensed Sanitation Haulers Containers: Garbage Rates-Residential 35 gal.: $6.05 +9.75%cart tax/mo. 65 gal.: $7.10+9.75%cart tax/mo. 95 gal.: $8.70+9.75% cart tax/mo. -7- S.A.C. $1,550 per unit -Metropolitan Council Service Availability Units determined by Building Official Charge and/or Metropolitan Council Sewer Usage Rates: $16.65 mo. min.—Use up to 5,000 gallons water $3.40 per each 1,000 gallons over 5,000 • Vacant: $1.50 per acre Storm Sewer Usage Rates—Commercial: • Occupied: $10.00 per acre (Based on Acreage) Storm Sewer Usage Rates—Residential: • Single Family Residential: $1.00 per (Based on#of garbage containers) garbage container. • Multiple Family Residential: $1.00 per garbage container—Up to 4 • containers. Over 4 considered commercial. Water Hydrant Connection $15.00 per connection to Hydrant +$15.00 for temporary use of water Construction Meters meter (if applicable) + water usage Water Meters Variable — Based on size and Market Rate Water Meter Calibration Check $35.00 (Refunded if Meter is Overcharging) Water Service Shut Off/Reinstatement $35.00 for first'/2 hour+ $55.00 for each additional hour or fraction thereof. Water Usage Rates: $7.50 mo. min.—Use up to 5,000 gallons water $1.34 per each 1,000 gallons over 5,000 and up to 16,000 gallons $1.76 per each 1,000 gallons over 16,000 gallons and up to 33,000 gallons $2.11 per each 1,000 gallons over 33,000 gallons -8- Valuation Based Permit Fee Schedule: *Base Permit Fee Only—Does Not Constitute full fee charged for permit Total Valuation Fee Calculation $1 to $500 $23.50 $501 to $2,000 $23.50 for the first $500, plus $3.05 for each additional $100 or fraction thereof,up to and including$2,000 $2,001 to $25,000 $69.25 for the first$2,000,plus $14.00 for each additional $1,000 or fraction thereof, up to and including $25,000 $25,001 to 50,000 $391.75 for the first $25,000, plus $10.10 for each additional $1,000 or fraction thereof, up to and including $50,000 $50,001 to 100,000 $643.75 for the first $50,000, plus $7.00 for each additional $1,000 or fraction thereof, up to and including $100,000 $100,001 to $500,000 $993.75 for the first $100,000, plus $5.60 for each additional $1,000 or fraction thereof, up to and including $500,000 $500,001 to $1,000,000 $3,233.75 for the first $500,000, plus $4.75 for each additional $1,000 or fraction thereof, up to and including $1,000,000 $1,000,001 and Above $5,608.75 for the first$100,000,plus $3,65 for each additional $1,000 or fraction thereof -9- Business Related Fee Licenses: > Fireworks Sales Combined with Mixed Retail $ 100.00 per year • Exclusive Firework Sales Retail $ 350.00 per year Mobile Home Park Special Use Permit $50 per Mobile Home 10% of gross project area designation to recreational use (developed and maintained and owners expense) Refuse Hauler $ 150.00 per year Phosphorous Based Fertilizer Sales $ 100.00 per year Peddler/ Solicitor $ 25.00 per year Taxicab License $60.00 per operator per year Tobacco Over-the-Counter Sales $ 100.00 per year Tree Worker's License (Eg. Trimmer, Etc) $ 25.00 per year Temporary Signage/Banner Permit No Charge - Must Contact City Prior To Installing Miscellaneous: Fee Assessment Search $15.00 per parcel City Maps Market Rate Design Guidelines $ 5.00 Domestic Pet License (Cats & Dogs) No Charge —Proof of Rabies Vaccination Required City Ordinance Book .03 per page Comprehensive Plan $ 150.00 Kennel License $ 100.00 per year Mailing, Messenger Service or Transmitting Actual Costs Incurred Mileage—Rate of Charge Per Current IRS Rate NSF—Returned Check Charge $ 20.00 Photocopies .03 per page Special Project/Research Actual Time Expended Costs Subdivision Ordinance—(Ordinance 402) $ 10.00 Videotape Reproduction $ 15.00 Zoning Ordinance—(Ordinance 401 or other $ 55.00 related documents) -10 Park Dedication Requirements: Dedication is based on Fair Market Value "determined at time offiling of plat and may be comprised of land, cash or a combination of both. Refer to Ordinance 402;Subdivision for additional information Commercial/Industrial: When City does not require park or open space within Cash Dedication (1) development, cash amount equal to ten (10) percent of the gross land area within the development, as determined by the City. Land Dedication (1) An amount of up to ten (10) percent of the gross land area within the development, as determined by the City. (1) A credit of up to twenty-five(25)percent of the required dedication may be allowed by the City Council for open space areas within a development provided that such improvements benefit identifiable park and recreation water resources. Residential: Required Land Dedication Based upon Dwelling Units Per Acre Cash Dedication (1) x Fair Market Value of Land Per Acre Required Cash Contribution For Proposed Development Land Dedication (2) Dwelling Units Per Acre Land to Be Dedicated 0-1.9 8% 2.0—3.9 10% 4.0-5.9 12% 6.0—9.9 14% • 10+ 14%+ 5% for each unit over 10 (1) Amount based on fair market value and same density forumlas established for land dedication. (2) Amount based on the gross area of the proposed subdivision and proposed type of dwelling unit and density. -11- Plannin. & Zonin Application Fee Escrow City Financial Assistance: $3,000.00 To be determined b Eg:TIF,Tax Abatement,Special Assessments, Y Annexation, Special District Projects,Etc. City based on proposed project. Also See: City of Oak Park Heights-Financial Assistance— Listing of Fees. Com.rehensive Plan Amendment Conditional Use Permit/Amendment $ 500.00 $1,000- $3,000* 4 Home Occup ation: Minor $ 400.00 NA Home Occupation: Ma'or CUP Process $ 25.00 NA $ Home Occupation: Annual Renewal Fee 1NA Planned Unit Development: Amendment $ 1 15.00 0.00 $1,000- $3,000* $ Planned Unit Develop ment : Conceit Plan700.00 $1,000- $3,000* Planned Unit Development: General Plan $ 500.00 $1,000- $3,000* Site Plan Review $ 700.00 $1,000- $3,000* Street Vacation $ 400.00 $1,000- $3,000* Subdivision: Minor $ 100.00 $500.00* Subdivision: Ma'or $ 200.00 $1,000 - $3,000* Variance: Industrial/Commercial $ 400.00 $1,000 - $3,000* $ 200.00 NA Variance: Sin.le Famil Residential $ 150.00 $1,000 - $3,000* Zoning District Amendment $ 400.00 $1,000 - $3,000* * Escrow is based on number of units: 1-9 $1,000 10-50 $2,000 51+ $3,000 Police De 1 artment: Fee Reports: (Accident,Arrest,Burglary,Incident,Offense,Etc.) $ .03 per page -12- City of Oak Park Heights -Financial Assistance — Listing of Fees 1. Application Fee Any conduit revenue bond,financial note or other financial assistance tool,including TIF assistance, requested to be provided by the City shall require the payment of an Application Fee of$3,000.This fee is payable at the time of the formal submission of any financial assistance request.This fee is not refundable. 2. Escrow Deposit In addition to Application Fee,the applicant shall also provide the City necessary cash to be deposited into an escrow fund and in an amount estimated to adequate to secure all City out-of-pocket expenses including but not limited to; attorney's fees,auditing fees,planning fees,etc., to complete the project.This amount will be determined by the City at the time of the submission of any application.Any unused funds shall be returned to the Applicant. 3. Closing Fee Prior to the City executing any final resolutions authorizing the sale of bonds,notes or other financial assistance tools,a Closing Fee payable to the City shall be determined and incorporated into the project. The Closing Fee shall be a maximum 1.0 percent of gross proceeds.The City Council may determine a lower amount but may not be less than 0.5 percent.Closing Fees shall be due and payable at closing. 4. Annual Servicing Fee The Applicant shall also pay to the City an Annual Servicing Fee and is equal to 0.1%of the average balance of all outstanding funds as calculated on Jan 1 of each year following the issuance of any financial tool or obligation.The first year Servicing Fee shall be pro-rated. -13- Kelly & Fawcett, P.A. ATTORNEYS AT LAW OF COUNSEL: MCGU1GAN&HOLLY,PLC Trevor S. Oliver toliver@kellyandfawcett.com December 7,2006 Mark J. Vierling Eckberg, Lammers, Briggs, •Wolff&Vierling, P.L.L.P. 1809 Northwestern Ave., Suite 110 FOR YOUR Stillwater, MN 55082 INFORMATION RE: Oak Park Heights v. Public Storage Dear Mr. Vierling: We served a set of interrogatories and requests for production of documents upon your firm when we acknowledged service of the complaint and returned our Answer on October 13, 2006. I have not yet heard from you regarding these discovery requests. Naturally, we would prefer to have this early-stage discovery completed without court intervention, so please let me know how the responses are progressing. I've also enclosed is a copy of our informational statement submitted to the court today. We suggested mediation of the dispute; if you are in agreement, please contact me or Pat to discuss selecting a mediator. Respectfully yours, KELLY& FAWCETT,P.A. Trevor S. Oliver TSO/ijo Cc: Jack Baumann,Public Storage 444 CEDAR STREET,SUITE 2350 SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 FACSIMILE 651-223-8019 www.kellyandfawcett.com STATE OF MINNESOTA TENTH JUDICIAL DISTRICT COUNTY OF WASHINGTON DISTRICT COURT Case Type: 14—Other Civil City of Oak Park Heights, a Court File No. 82-00-06-7138 Minnesota municipal corporation, (Hannon) Plaintiff, DEFENDANTS' v. INFORMATIONAL STATEMENT Secure Mini Storage Limited Partnership And Public Storage,Inc., Defendants. 1. All parties have been served with process. 2. All parties have not joined in the filing of this form. 3. Brief description of the case: Defendant, operators of a personal storage facility in Oak Park Heights, challenge the validity and reasonability of connection charges demanded by the City for water and sewer lines installed in 1998. 4. It is estimated that the discovery specified below can be completed within 5 months from the date of this form. (Check all that apply, and supply estimates where indicated.) a. Factual Depositions No Yes X__ estimated number: 2 b. Medical Evaluations No X Yes estimated number: N/A c. Experts Subject to Discovery No _ Yes X estimated number: 2 5. Assignment as an expedited X standard complex case is requested. (If not standard case assignment, include brief statement setting forth the reasons for the request.) 6. The dates and deadlines specified below are suggested. a. 2/1/07 Deadline for joining additional parties, whether by amendment or third party practice b. 7/6/07 Deadline for bringing non-dispositive motions c. 7/27/07 Deadline for bringing dispositive motions d. Deadline for submitting to the court (specify issue) e. N/A Deadline for completing independent physical examination pursuant to Minn. R. Civ. P. 35 f. 3/30/07 Date for formal discovery conference pursuant to Minn. R. Civ. P. 26.06 g. 9/28/07 Date for pretrial conference pursuant to Minn. R. Civ. P. 16 h. 1/12/07 Date for scheduling conference i. 10/5/07 Date for submission of a Joint Statement of the Case pursuant to Minn. Gen. R. Prac. 112 j. 10/29/07 Trial Date k. 10/12/07 Deadline for filing proposed instructions, verdicts, findings of fact, witness list, exhibit list 1. 5/1/07 Deadline for completion of discovery 7. Estimated trial time: 2 days 8. A jury trial is requested by Plaintiff. 9. a. Meeting: Counsel for the parties have not met to discuss case management issues. b. ADR PROCESS (check one): X Counsel agree that ADR is appropriate and choose the following: X Mediation Arbitration(non-binding) Arbitration(binding) Med-Arb Early Neutral Evaluation Moderated Settlement Conference Mini-Trial Summary Jury Trial Consensual Special Magistrate Impartial Fact-Finder Other Counsel agree that ADR is appropriate but request that the Court select the process. Counsel agree that ADR is NOT appropriate because: the case implicates the federal or state constitution. other(describe with particularity) domestic violence has occurred between the parties. Other: c. PROVIDER(check one): The parties have selected the following ADR neutral: The parties cannot agree on an ADR neutral and request the Court to appoint one. X The parties should agree to select an ADR neutral on or before 2/28/07. d. DEADLINE: The parties recommend that the ADR process be completed by 5/15/07. 10. Please list any additional information that might be helpful to the court when scheduling this letter. KELLY& FAWCETT,P.A. "7 Oec 20ol< Patrick J. Kelly(MN ID No. 54823) Trevor S. Oliver(MN ID No. 304888) Attorney for Defendant Kelly&Fawcett, P.A. 2350 UBS Plaza 444 Cedar Street St. Paul, MN 55101 Tel No: (651) 224-3781 Fax No: (651) 223-8019 STATE OF MINNESOTA TENTH JUDICIAL DISTRICT COUNTY OF WASHINGTON Stillwater, MN Case Number: 82-C0-06-007138 NOTICE OF JUDICAL ASSIGNMENT Case Title: CITY OF OAK PARK HEIGHTS vs. SECURE MINI STORAGE LIMITED PARTNERSHIP & PUBLIC ST MARK J VIERLING ECKBERG LAMMERS BRIGGS ET AL 1809 9NTERN0882E STE 110 FORYOVR ATER ES INFORMATION DATE OF FILING: 11/02/06 You are hereby notified that your case has been assigned to the HONORABLE MARY E. HANNON. She will preside over your case from filing through disposition, including trial and post-trial matters. All counsel are expected to comply at all times with the PROFESSIONALISM ASPIRATIONS which appear at pages 1033-1036 of Minnesota Rules of Court-State (West, 2001) . TO SCHEDULE HEARINGS: Contact Judy K. in the Assignment Division at (651) 430-6371 For further case information, please contact the Civil Division at (651) 430-6268. Allfiled documents must include the case file number The attorney's identification number and must conform to format requirements or they will be returned. Please DO NOT send courtesy copies to the Judge when filing documents. CIVIL ACTIONS: Pursuant to Rule 111.02, General Rules of Practice for the District Courts, each party must submit an Informational Statement within 60 days of filing. FAILURE TO COMPLY WILL RESULT IN --- THE COURTS'S ISSUANCE. OF A SCHEDULING ORDER WITHOUT THE INPUT OF THE --- PARTY (IES) . CONTINUANCES WILL ONLY BE GRANTED FOR GOOD CAUSE. SEND CORRESPONDENCE TO: Civil Division Washington County Court Administration. 14949 62nd st N, PO Box 3802 Stillwater MN 55082-3802 CHRISTINA M. VOLKERS COURT ADMINISTRATOR **EFFECTIVE JULY 1, 2003 A $55 FEE MUST BE SUBMITTED BEFORE ANY MOTIONS CAN BE HEARD BY:KT BEFORE THE COURT. SOME CASE TYPES MAY NOT Deputy APPLY, SEE MINN. STAT. 357.021** Dated: 11/06/2006 ECKBERG LAMMERS Iii ATTORNEYS AT LAW 1809 Northwestern Avenue, Suite 110 Writer's Direct Dial: Stillwater, Minnesota 55082 (651)351-2118 (651)439-2878 Fax(651)439-2923 Writer's E-mail: mvierling@eckberglammers.com www.eckberglammers.com October 27, 2006 Court Administrator Civil Division Washington County Government Center C P 14949 - 62nd Street North P.O. Box 3802 Stillwater,MN 55082 Re: City of Oak Park Heights v. Secure Mini Storage • Limited Partnership and Public Storage,Inc. Dear Administrator: Enclosed herewith please find Amended Summons and Amended Complaint,Admission of Service and Certificate of Representation and Parties regarding the above-referenced matter. Please file these documents and provide us with a judicial assignment. Also enclosed is this firm's check in the amount of$250.00 for the filing fee. If you have any questions,please do not hesitate to contact me. Yours very truly, • Mark J. Vierling MJV/sdb Enclosure cc: Eric Johnson(w/o enc) ECKBERG. LAMMERS, BRIGGS.WOLFF t3 VIERLING. PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation ECKBERG LAMMERS I,4k1i Al TORNEYS AT LAW 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 (651) 439-2878 Writer's Direct Dial: Fax(651)439-2923 (651)351-2118 www.eckberglammers.com Writer's E-mail: mvierling@eckberglammers.com October 20, 2006 Mr. Eric Johnson City Administrator City of Oak Park Heights 14168 Oak Park Blvd.N. Oak Park Heights, MN 55082 Re: City of Oak Park Heights v. Secure Mini Storage/Public Storage Dear Eric: Enclosed is a copy of correspondence dated October 13, 2006 received from Kelly&Fawcett enclosing Admission of Service and serving an Answer upon the City. Also enclosed are Interrogatories and Request for Production of Documents to Plaintiff(Set I). Under the Court rules,we must respond to the Interrogatories and Requests for Production within thirty (30) days, or by November 19. Please have City staff begin reviewing these requests and compiling the information and documents sought. I would like to have that information in my offices no later than November 9 to allow us time to put the information in the proper form for service. If you have any questions,please do not hesitate to contact me directly. Yours very truly, Mark J. Vierling MJ /sdb Enclosures ECKBERG, LAMMERS, BRIGGS, WOLFF 6 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: 14—Other Civil City of Oak Park Heights, a Court File No. Minnesota municipal corporation, Plaintiff, vs. ANSWER Secure Mini Storage Limited Partnership • and Public Storage, Inc., Defendant. Defendants Secure Mini Storage Limited Partnership and Public Storage, Inc., as and for their Answer to Plaintiff's Complaint, states and alleges as follows: 1. Defendants generally deny each and every allegation, matter, and thing contained in Plaintiff's Complaint, except where specifically admitted or qualified herein. 2. Defendants admit the matter in Paragraphs 1 through 5 relating to the identification of the parties and ownership of the property in question. Public Storage, Inc. acquired the entity Secure Mini Storage Limited Partnership, to include all assets and liabilities, in 2004, and Secure Mini is a wholly-owned subsidiary of Public Storage, Inc. 3. Regarding paragraph 6, Defendants admit that the property is connected to municipal water, sanitary sewer and storm sewer services, but is without knowledge of benefits from the connections or the date of connection, and puts Plaintiff to strict proof thereof. 4. Defendants deny the matters stated in Paragraph 7. r 5. Defendants partially admit the matters stated in Paragraph 8, but deny that the fee charged is "reasonable," and states that it is without knowledge whether each connection has been used subsequent to the connection. 6. Defendants are without knowledge of when the property was connected to the utility lines, as alleged in Paragraph 9 of the Complaint, and put Plaintiff to strict proof thereof 7. Defendants admit that City has made efforts to resolve the fee matter as alleged in Paragraph 8, but state that they are without knowledge of Plaintiff's internal accounting, and puts Plaintiff to strict proof of any other matter alleged in Paragraph 10. 8. Upon knowledge and belief, Defendants admit that they have not paid any amount to Plaintiff as connection charges or fees for sewer and water connections for this Property. 9. Defendants admit connection to Plaintiff's utility services, but deny the remaining allegations of Paragraph 12. 10. Defendants deny the matters in Paragraphs 13, 14, and 15 of the Complaint. AFFIRMATIVE DEFENSES Defendants, for their affirmative defenses to the allegations in Plaintiff's Complaint, state and allege as follows: 1. To the extent Plaintiff's claims may be limited or barred by any or all of the affirmative defenses contemplated by Rule 8.03 of the Minnesota Rules of Civil Procedure, Defendants reserve their right to assert all such affirmative defenses as appropriate in accordance with the discovery of the claims asserted against them. 2. That Plaintiff's Complaint fails to state a claim against Defendants upon which relief may be granted. 3. That Defendants deny that Plaintiff sustained any injury or damages as a result of their conduct and asserts that if, in fact, Plaintiff sustained any injury or damage it was caused by and the result of conduct on the part of Plaintiff or third parties. 4. That Plaintiff has failed to exhaust its administrative remedies. 5. That Plaintiff has failed to mitigate its damages. 6. Defendants reserve the right to add to this Answer and to rely upon any affirmative defenses disclosed by further investigation and discovery. WHEREFORE, Defendants demands judgment in their favor dismissing the Plaintiff's Complaint with prejudice, awarding Defendants their costs, attorneys' fees and disbursements in this action, and granting Defendants such other relief as the Court deems just and equitable. Dated: a 7`v /�j 7co d KELLY &FAWCETT, P.A. 5- • •atrick Kelly(#54823) Trevor Oliver(#304888) Attorney for Defendant 2350 Piper Jaffray Plaza 444 Cedar Street Saint Paul, MN 55101 (651) 224-3781 (651)223-8019 fax ACKNOWLEDGMENT REQUIRED BY MINNESOTA STATUTE, SECTION 549.211, SUBDIVISION 2. The undersigned hereby acknowledges that pursuant to Minnesota Statutes, section 549.21, subdivision 2, costs, disbursements and reasonable attorney and witness fees may be awarded to the opposing party or parties in this litigation if the Court should find that the undersigned acted in bad faith, asserted a claim or defense that is frivolous and that is costly to the other party, asserted an unfounded position solely to delay the ordinary course of the proceedings or to harass or committed a u . . .- • •= Court. S Dated this 13 rt day of , 2006. revor Oliver STATE OF MINNESOTAR DISTRICT COURT COUNTY OF WASHINGTON TENTH.JUDICIAL DISTRICT Case Type: 14—Other Civil City of Oak Park Heights, a Court File No. Minnesota municipal corporation, Plaintiff, vs. DEFENDANT'S INTERROGATORIES • AND REQUEST FOR PRODUCTION OF • DOCUMENTS TO PLAINTIFF(SET 1) Secure Mini Storage Limited Partnership and Public Storage, Inc., Defendant. TO: Plaintiff City of Oak Park Heights, through their attorney, Mark Vierling, Eckberg, Lammers, Wolff&Vierling, 1801 Northwest Avenue, Stillwater,MN 55082. PLEASE TAKE NOTICE that Defendants, through their attorneys,request that Plaintiff or its Agent(s) answer the following Interrogatories in writing and under oath pursuant to Rules 33 and 34 of the Rules of Civil Procedure, that you provide written answers, sworn under oath, to the attached Interrogatories, and produce such documents as are hereinafter requested, within thirty(30) days from the date of service, or such a date as the Court may order. A. In answering these Interrogatories furnish all information within your possession or reasonably available to you. B. If, after exercising due diligence to secure information requested, you are unable to answer each Interrogatory fully,please state your answer to the extent possible, specifying your inability to answer the remainder, and provide whatever information you have concerning the unanswered portion. C. Each Interrogatory is considered to be continuing pursuant to Minnesota Rules of Civil Procedure, Rule 26.05 and if you obtain information which renders your answer incomplete or inaccurate, you are obligated to provide amended answers in a timely manner. D. If an answer may be adequately made by providing a business record, you may answer that Interrogatory by providing a complete and legible copy of that business record. E. State the name, address and business position of the person answering these Interrogatories for the Defendants. GENERAL DEFINITIONS The word "describe" means to specify in detail and to particularize the content of the answer to the question and not just to answer in summary or outline fashion. The word "document" means any written, recorded, or other graphic matter of any kind or nature, all computer materials,processes, data, compilations thereof from which information can be obtained, and all photographs, files, tapes,mechanical, electrical, magnetic, and electronic recordings, whether an original, copy, or a non-identical copy, however produced or altered, including but not limited to papers, letters, correspondence, telegrams, interoffice communications,memoranda, notes, notations, notebooks, reports, records, accounting books or records, minutes of meetings, contracts, invoices,purchase orders, bills of lading, instructions, specifications, schedules, tables, charts, transcripts, publications, scrapbooks, diaries, and any drafts, revisions, or amendments of the above, in the possession or within the control of Defendants or their attorneys, or known by Defendants or their attorneys to exist, including materials claimed to be subject to any evidentiary privilege. The words "identify" or "identity" when used in reference to a natural person means to state his or her full name, present business and home addresses and telephone numbers, present employer and position with employer, the relationship,business or otherwise, between the person and the Defendants. The word "detail" means to set forth with specificity any and all relevant information related to the question being asked. In many instances, this will require you to itemize particular facts relating to the question. You must be specific. The words "you", "your", "Plaintiff', "Plaintiffs", mean The City of Oak Park Heights, and all other persons acting or purporting to act on the City's behalf relating to the allegations in the Complaint or Answer. The words "person" or"persons" include natural persons and any form of business organization or any other legal entity of The City of Oak Park Heights. The words "document" or"documents" shall include, but not be limited to, writings and things such as correspondence, medical records, administrative records, drawings, photographs, graphs, charts, video tapes,microfilm,microfiche, summaries, reports, data compilations, memoranda and the like that are in your possession, custody or control and all copies made in any manner of such documents, where the original of the document is not in your possession, custody or control. INTERROGATORIES DEFINITIONS 1. "Identify"when used in reference to a natural person shall mean to state: a. His/her full name; b. His/her present or last known residential address; and c. His/her present or last known employer or business,affiliation and title of position held with employer. 2. "Identify" when used to refer to a business entity shall mean to state: a. Full name of entity; and b. The principal business address and state of incorporation entity. 3. "You" and"your"refers to Plaintiff and/or its agent(s). 4. "Identity" or"identity"when used to refer to a conversation shall mean to state: a. The date of the conversation; b. The mode of conversation(face to face, telephone, etc.); c. The place of the conversation; d. All persons present during any part of the conversation; and e. The content of all statements made by any party to the conversation. 5. "Identify"when used to refer to a document shall mean to state: a. The date appearing on such document, and if no date appears thereon, then answer shall so state and give the date or approximate date such document was prepared; b. The identifying or descriptive code number, file number, title or label of such document; c. The general nature or description of each such document, that is, whether it is a letter,memorandum, sound recording, drawing, etc., and the number of pages of which it consists; d. The name of the person who signed such document, and if it is not signed, the answer shall so state and give the name of the person or persons who signed it; e. The name of the person to whom such document was addressed, and the name of each person, other than such addressee, to whom such document, or a copy thereof, was given or sent; f. The general subject matter of such document; and g. The present depository or depositories and the name and address of the person or persons having custody of any items to be identified,unless the item is a public document. 6. If any information, whether or not written, is responsive to any of the following interrogatories, and is withheld based on any claim of privilege, describe generally the substance or subject matter of the information, communication or document withheld, state the date of the communication or document, state the privilege being relied upon or claimed and the basis therefore, identify the persons involved, and identify all persons or entities who have had access to such information, communication or document. 7. The request for identification of information includes any information within the files of attorneys, accountants and other agents. 8. If the answer to any interrogatory is that you lack the knowledge of the requested information, describe all efforts that you have made to obtain the information necessary to answer the interrogatories. CONTINUING NATURE OF INTERROGATORIES Each of the following interrogatories is continuing in nature. If subsequent to serving an answer to an interrogatory you obtain or become aware of further information pertaining to the subject matter of the interrogatory, you are requested to serve amended answers upon Plaintiff setting forth such information. INTERROGATORIES 1. Identify the person answering or supplying information for your responses to these interrogatories. If more than one person supplied information or answered these interrogatories, please state which person answers or supplies information for each portion of the interrogatory. 2. Identify all persons who you know to have knowledge or information relevant to the matters set forth in the Complaint. For each person identified, set forth: a. The substance of that person's knowledge or information; b. The date on which that person gained their knowledge or information; c. The means by which the person gained their knowledge or information; and d. Identify any documents or tangible things relating to that person's knowledge or information. 3. Identify each and every conversation of which you are aware which involves the subject matter of the Complaint or relates in any manner to those allegations. Set forth the substance of the conversations and identify any relevant documents created or received in connection with these conversations. 4. Identify and set forth all admissions against interest or statements which you propose to offer as admissions against interest by Defendants. Identify the date the admission was made and all persons who were present at the time the admission or admissions were made. 4 5. Has the City been involved in litigation regarding the imposition, calculation, or collection of utility connection charges similar to those the City seeks to collect in this lawsuit? a. If so, set forth the parties involved,the claims made, the case number, if any, of the suit, and the outcome of the matter if it has resolved. b. Identify any and all relevant documents from these actions or threatened actions, including final orders or settlement agreements. 6. Identify all connection charges for sanitary sewer, storm sewer, and municipal water imposed by the City of Oak Park Heights in the years 1997 through 2000.. For each charge identified, set forth: a. The zoning classification of the property(if PUD, set forth type of development, i.e. residential, commercial, etc.); b. The number of bathrooms, if known; c. The number of kitchens, if known; d. Any other data used to estimate potential usage or SAC charges; e. The amount of charge originally sought by the City; f. The amount of the charge ultimately collected by the City. REQUESTS FOR PRODUCTION OF DOCUMENTS Pursuant to Rule 34 of the Minnesota Rules of Civil Procedure, Defendants request that the following items be identified and produced at the undersigned counsel's office on or before the day appointed for service of answers to the foregoing Interrogatories: 1. All documents or tangible items identified in response to the above Interrogatories, setting forth the name,business address, and business position of the custodian of each document or thing. 2. Any and all documents created by Plaintiff, or its agents, authorizing the imposition of the connection charges at issue in this lawsuit. 3. All "statements"as that term is defined under the Minnesota Rules of Civil Procedure. 5 In lieu of production, it shall be considered to be compliance if copies of all documents and things are mailed to counsel. PLEASE ALSO TAKE NOTICE, that your responses to these Interrogatories and Requests for Production of Documents must be served upon counsel for Defendant within the time specified herein, or, if different, the time ordered by the Court. Dated: aiogep /. / pi( KELLY&FAWCETT, P.A. eI • Patrick Kelly(#54823) Trevor Oliver(#304888) Attorney for Defendant 2350 Piper Jaffray Plaza 444 Cedar Street Saint Paul, MN 55101 (651) 224-3781 (651) 223-8019 fax • 6 Kelly & Fawcett, P.A. ATTORNEYS AT LAW OF COUNSEL: Trevor S. Oliver McGUIGAN&HOLLY,PLC toliver@kellyandfawcett.com October 13, 2006 Mark J. Vierling Eckberg, Lammers, Briggs, Wolff&Vierling, P.L.L.P. 1809 Northwestern Ave., Suite 110 Stillwater, MN 55082 RE: City of Oak Park Heights v. Secure Mini Storage/Public Storage Dear Mr. Vierling: Please find enclosed an executed Admission of Service, Answer, and Defendants' Interrogatories and Document Requests. Respectfully yours, KELLY& FAWCETT,P.A. revor S. Oliver Patrick J. Kelly TSO/rjo Cc: Jack Baumann, Public Storage 444 CEDAR STREET,SUITE 2350 SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 FACSIMILE 651-223-8019 www.kellyandfawcett.com STATE OF MINNESOTA DISTRICT COURT CIVIL COURT DIVISION COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: Court File No. City of Oak Park Heights, a Minnesota municipal corporation, Pla miff, ADMISSION OF SERVICE v. Secure Mini Storage Limited Partnership and Public Storage, Inc., Defendant. Trevor S. Oliver, attorney for Secure Mini Storage Limited Partnership and Public Storage,Inc., the Defendant above-named,hereby acknowledges receipt of the Amended Complaint in the above-referenced action. Dated this 13 tit day of UG ic..— ,2006. Trevor. S. Oliver Attorney for Defendant ECKBERG • - LAMMERS riv ATTORNEYS AT LAW Writer's Direct Dial: 1809 Northwestern Avenue, Suite 110 (651)351-2118 Stillwater, Minnesota 55082 (651)439-2878 Writer's E-mail: Fax(651)439-2923 mvierling@eckberglammers.com www.eckberglammers.com October 4, 2006 Mr. Trevor S. Oliver ;, � Kelly&Fawcett, P.A. • 444 Cedar Street, Suite 2350 St. Paul,MN 55101 Re: City of Oak Park Heights v. Secure Mini Storage n/k/a Public Storage,Inc. Dear Mr. Oliver: Enclosed herewith and provided to you is an Amended Complaint which we have amended to reflect the acquisition of Secure Mini Storage Limited Partnership by Public Storage,Inc. Inasfar as Secure Mini Storage Limited Partnership still appears to be of record as the fee owner of the property,we have listed them as a continued party defendant, but would be more than willing to dismiss them once the record title of the property is changed over to Public Storage. Enclosed herewith and please find also an Admission of Service on behalf of Public Storage which we are asking you to sign and return. If you are not in the position to do so,please advise. Yours very trul ark J. lermg MJV/sdb Enclosure cc: Eric Johnson, City Administrator ECKBERG, LAMMERS, BRIGGS, WOLFF VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Court File No: City of Oak Park Heights,a Judge: Minnesota municipal corporation, Plaintiff, AMENDED COMPLAINT v. Secure Mini Storage Limited Partnership, and Public Storage,Inc. Defendant. NOW COMES,the Plaintiff, City of Oak Park Heights,who for its claim,complaint and cause of action against Defendant, Secure Mini Storage, Limited Partnership, and Public Storage, Inc., states and alleges as follows: 1. Plaintiff, City of Oak Park Heights, is a Minnesota municipal corporation located in Washington County,Minnesota. 2. Based upon information and belief, SECURE MINI STORAGE LIMITED PARTNERSHIP is or was a Minnesota entity,with a primary place of business located at or on 5701 Memorial Ave.N, in the city of Oak Park Heights, County of Hennepin, State of Minnesota. 3. Based upon information and belief,PUBLIC STORAGE, INC, is a California entity, operating in the state of Minnesota as a foreign corporation with a registered office located at or on 405 2nd Avenue S.,in the city of Minneapolis, STORAGE LIIMITED Pennepin, Atate of RTNERSHIP. 4. and has merged with or acquired SECURE 4. Based upon information and belief, SECURE MINI STORAGE LIMITED PARTNERSHIP, is the record owner in fee simple of certain real property located at 5710 Memorial Ave.N, in the city of Oak Park Heights, County of Washington, State of Minnesota, legally described as follows: Kern Center 2nd Addition Lot-008 Block-002 P.I.D. 0602920210004 Said property will be hereinafter referred to as the "The Property." 5. Based upon information and belief,PUBLIC STORAGE,INC. has acquired the Property from SECURE MINI STORAGE LIMITED PARTNERSHIP,but said conveyance has not yet been recorded. • 6. The Property was connected to, and has subsequently received the benefit from,municipal water, sanitary sewer and storm sewer services by the City of Oak Park Heights, on or about February 7, 2000. 7. Plaintiff,the City of Oak Park Heights,has the statutory authority to charge, and has adopted, reasonable fees for the connection to municipal water, sanitary sewer and storm sewer utilities pursuant to Minnesota Statute § 444.075. 8. Plaintiff has charged the reasonable fee of$ 102,714.00 to Defendants,PUBLIC STORAGE, INC., and SECURE MINI STORAGE LIMITED PARTNERSHIP, for a connection to, and subsequent use of, municipal water, storm sewer and sanitary sewer utilities for the benefit of the Property. 9. Defendant connected its Property and structures to the City of Oak Park Heights municipal Water, Sanitary Sewer and Storm Sewer utilities on or about February 7, 2000. 10. The due to clerical oversight no connection charges were collected at that time but were discovered as unpaid in 2005. That the City contacted Defendant and has made reasonable efforts to resolve the matter of the unpaid connection fees. 11. All connection fees and charges referred to and described in preceding paragraphs above, have remained unpaid by the respective Defendant. 12. That Defendant has had the benefit of connection to the city utilities and has not paid the fees prescribed by the City for that utility connection. COUNT I: ACCOUNT STATED AGAINST DEFENDANTS SECURE MINI STORAGE LIMITED PARTNERSHIP, and PUBLIC STORAGE,INC. 13. Plaintiff adopts,by reference all preceding paragraphs 1 through 10 above as if more fully set forth herein. 14. An account has been stated between Plaintiff and Defendants, SECURE MINI STORAGE LIMITED PARTNERSHIP, and PUBLIC STORAGE, INC.,whereupon the above-stated balance of$102,714.00,together with interest accruing thereon from March 10, 2005 when the City notifies Defendant of the unpaid connection fees,was found to be due to Plaintiff from Defendant,but no part has been paid. Plaintiff is entitled to damages in the amount of $102,714.00, plus interest as allowed by law, and Plaintiff is entitled to recover its costs and disbursements incurred in this matter. COUNT II: QUANTUM MERUIT/UNJUST ENRICHMENT CLAIM AGAINST SECURE MINI STORAGE LIMITED PARTNERSHIP and PUBLIC STORAGE,INC. Plaintiff adopts, by reference all preceding paragraphs 1 through 12 above as if more fully set forth herein. 15. Defendants SECURE MINI STORAGE LIMITED PARTNERSHIP, and PUBLIC STORAGE, INC. have received a benefit from the utilities of the Plaintiff, and therefore, is liable to Plaintiff in quantum meruit in the amount of$102,714.00, for the reasonable value of Plaintiff's utility connections, plus interest allowed by law, and Plaintiff is entitle to recover its costs and disbursements incurred in this matter. WHEREFORE, Plaintiff prays for judgment as follows: 1. Adjudging that Plaintiff is entitled to recover from Defendants, SECURE MINI STORAGE LIMITED PARTNERSHIP,the amount of$102,714.00,together with interest, costs and disbursements. 2. Adjudging that Plaintiff is entitled to recover from Defendants, P 6 TORAGE, INC., the amount of$102,714.00,together with interest, costs and 5 sbursements) EC :ERG, •I MERS, BRIGGS, W O FF& ' RUING,P.L.L.P. Dated: /6 of—o =y: Mar J.Vierling Attorney Registration No: 112823 Attorney for Plaintiff 1809 Northwestern Avenue, Suite 110 Stillwater,MN 55082 (651)439-2878 • STATE OF MINNESOTA BEFORE THE MINNESOTA PUBLIC UTILITIES COMMISSION LeRoy Koppendrayer Chair Marshall Johnson Commissioner Kenneth Nickolai Commissioner Thomas Pugh Commissioner Phyllis Reha Commissioner IN THE'MA 1_ ER OF THE PETITION OF Docket No. E002/M-02-633 NORTHERN STATES POWER COMPANY D/B/A/ XCFL ENERGY REGARDING PETITION 2007 EMISSIONS REDUCTION PROJECT REVENUE REQUIREMENT AND TRACKER BALANCE REPORT SUMMARY Please take notice that on October 2, 2006, Northern States Power Company d/b/a Xcel Energy filed with the Minnesota Public Utilities Commission the proposed 2007 Emissions Improvement Rider rate adjustment. Pursuant to the terms of the Settlement Agreement approved in this proceeding, the Company will begin applying this adjustment to customers' bills beginning January 1, 2007. The proposed rate adjustments are: Non-Demand Billed Customers: $0.00210/kWh Demand Billed Customers: $0.00105/kWh and $0.40/kW For an average Residential customer using 750 kWh/month, the rate adjustment will increase bills by approximately $1.58/month ACKNOWLEDGMENT Pursuant to Minn. Stat. §549.211,the party or parties represented by the undersigned attorneys acknowledge(s) that costs, disbursements, and reasonable attorney and witness fees may be awarded to the opposing party or parties for actions in bad faith; the assertion of a claim or a defense that is frivolous and that is costly to the other party; the assertion of an unfounded position solely to delay the ordinary course of the proceedings or to harass; or the commission of a fraud upon the Court. ECKBERG, L• I. '.:, BRIGGS, WOLFF :A./ : '. G,P.L.L.P. Dated: /0 -/`i—V C By: Mark J. Vierling Attorney Registration No: 112823 Attorney for Plaintiff 1809 Northwestern Avenue, Suite 110 Stillwater,MN 55082 (651)439-2878 r' STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Court File No: City of Oak Park Heights, a Judge: Minnesota municipal corporation, Plaintiff, AMENDED SUMMONS v. Secure Mini Storage Limited Partnership and Public Storage, Defendant. THE STATE OF MINNESOTA TO THE ABOVE-NAMED DEFENDANT: YOU ARE HEREBY SUMMONED AND REQUIRED TO SERVE upon Plaintiffs attorney an Answer to the Amended Complaint which is herewith served upon you within twenty (20) days after service of this Amended Summons upon you, exclusive of the date of such service. If you fail to do so,judgment by default will be taken against you for the relief demanded in the Amended Complaint. Civil cases are subject to Alternative Dispute Resolution processes as provided in Rule 114 of the General Rules of Practice for the District Courts. Alternative Dispute Resolution includes mediation, arbitration, and other processes set forth in the rules. You may contact the Court Administrator for information about these processes and about resources available in your area. ECKBERG, •. I : ' GGS, WOLFF : 1 ' • ,P.L.L.P. Dated: /0 --lc —Q f, By: 11M1111111C_____ M. • . ierling(#112823) Attorney for City of Oak Park Heights 1809 Northwestern Avenue, Suite 110 Stillwater,MN 55082 (651)-439-2878 ECKBERG,sa► LAN' ME,RS i ATTORNEYS AT LAW Writer's Direct Dial: (651)351-2118 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 Writer's E-mail: (651) 439-2878 g@eckberglammers.com Fax (651)439-2923 mvierlin www.eckberglammers.com December 19, 2006 Court Administrator Civil Division Washington County Government Center 14949- 62nd Street North P.O. Box 3802 Stillwater, MN 55082 Re: City of Oak Park Heights v. Secure Mini Storage Limited Partnership and Public Storage,Inc. Court File No. 82-00-O6-7138 Dear Administrator: Enclosed herewith for filing please find Plaintiffs Info i•: conal Stat;ment Form an Service by Mail in regards to the above-referenced ' . er. d Affidavit of Ye i s very y, Mark J. Vierling MJV/sdb Enclosure cc: Eric Johnson ECKBERG, LAMMERS, BRIGGS, WOLFF VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Estate Planning/Probate • Criminal Law • Personal Injury/Wrongful Death Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation ECKBERG LAMMERS IA,1 ATTORNEYS AT LAW Writer's Direct Dial: 1809 Northwestern Avenue, Suite 110 (651)351-2118 Stillwater, Minnesota 55082 Writer's E-mail: (651) 439-2878 mvierling@eckberglammers.com Fax(651)439-2923 www.eckberglammers.com December 19, 2006 Mr. Trevor S. Oliver Kelly&Fawcett, P.A. 444 Cedar Street, Suite 2350 St. Paul,MN 55101 Re: City of Oak Park Heights v. Secure Mini Storage n/k/a Public Storage,Inc. Court File No. 82-00-06-7138 Dear Mr. Oliver: Enclosed herewith and served upon you by U.S. Mail please fi i, " amts f's formational Statement Form in regards to the above-referenced matter. Your ery truly, Mark . ierling MJV/sdb Enclosure cc: Eric Johnson, City Administrator ECKBERG, LAMMERS, BRIGGS, WOLFF 3 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation t STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Court File No: 82-00-06-7138 City of Oak Park Heights,a Judge: Hon. Mary E. Hannon Minnesota municipal corporation, Plaintiff, PLAINTIFF'S INFORMATIONAL v, STATEMENT FORM Secure Mini Storage Limited Partnership and Public Storage, Defendant. 1. All parties have been served with process. 2. All parties have not joined in the filing of this form. 3. Brief description of the case: Defendant was connected to municipal water, sanitary sewer and storm sewer services on or about February 7, 2000. Due to a clerical oversight, Defendant was not charged for the connection until 2005,at which time it refused to make payment. 4. It is estimated that the discovery specified below can be completed within 3 months from the date of this form. (Check all that apply,and supply estimates where indicated.) a)Interrogatories No_ Yes X b)Document Requests No_ Yes X c)Factual Depositions No_ Yes X d)Medical Evaluations No X Yes e)Experts Subject to Discovery No_ Yes X 5. Assignment as a standard case is requested. 6. The dates and deadlines specified below are suggested. a)4/1/07 Deadline for joining additional parties, whether by amendment or third party practices. b)4/1/07 Deadline for bringing non-dispositive motions. c) 5/1/07 Deadline for bringing dispositive motions. d) 6/1/07 Deadline for prehearing statement to the Court. e) N/A Deadline for completing independent physical examination pursuant to Minn. R. Civ. P. 35. f) N/A Date for formal discovery conference pursuant to Minn. R. Civ. P. 26.06 g) 6/15/07 Date for pre-trial conference pursuant to Minn. R. Civ. P. 16. h) N/A Date for scheduling conference. i) N/A Date for submission of a Joint Statement of the Case pursuant to Minn. Gen. R. Prac. 112. j)7/15/07 Trial date. k) N/A Deadline for filing (proposed instructions), (verdicts), (findings of fact), (witness list), (exhibit list). 1) N/A Deadline for [specify] 7. Estimated trial time: 1 day(s) hour(s) (estimates less than a day must be stated in hours). 8. A jury trial is: X waived by consent of Petitioner pursuant to R. Civ. P. 38.02. requested by [specify party] . (Note: Applicable fee must be enclosed.) 9. Alternative dispute resolution is recommended,in the form of mediation (specify e.g.,arbitration,mediation). 10. Please list any additional information which might be helpful to the court when scheduling this matter. Dated this day of December, 2006. ECKBERG,L• ► II RS,BRIGG`, WOLFF ERLING,P ,. .P. Dated: By: _ Niffilaar. Mark J. 'ier Attorney Registration No: 112:23 Attorney for Plaintiff 1809 Northwestern Avenue, Suite 110 Stillwater, MN 55082 (651)439-2878 ECKBERG LAMMERS atm ATTORNEYS AT LAW - 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 (651)439-2878 Fax(651)439-2923 www.eckberglammers.com Writer's Direct Dial: James Lammers Robert Briggs (651) 351-2118 Mark Vierling Thomas Weidner mvierling@eckberglammers.com Susan Olson David Snyder Sean Stokes Laura Domagala Joshua Christensen February 22, 2006 Mr. Trevor S. Oliver Kelly&Fawcett, P.A. 444 Cedar Street Suite 2350 r St. Paul,Minnesota 55101 Re: Connection Charges for 5710 Memorial, Oak Park Heights Dear Mr. Oliver: Thank you for your correspondence of February 2. Since I was out of the office from February 3 to the 15t, I was not able to respond as quickly as I would normally prefer. If your client's position is that the connection charges as determined by the City of Oak Park Heights are excessive,that is a matter that may have to be resolved in court. Those connection charges have been determined by the City of Oak Park Heights over a period of decades and, although they are being redone currently as a result of legislative changes,the former charges are as they are and they are not going to be modified or changed by the City. The former connection charges were well authorized under the ordinance and supported by an engineering study and a periodic review of that study in redetermination of costs from time to time by the City Engineer. The City is not in a position to allow or to permit a collateral review of those charges by an individual property owner. They have been legislatively set by the Council under their function as determined under the statute and, if you wish to bring a declaratory action relative to those former charges, you are certainly free to do so. ECKBERG, LAMMERS, BRIGGS. WOLFF F VIERLING, PLLP Family Law/ Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/ Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation Mr. Trevor S. Oliver February 22, 2006 Page 2 If we can be of any further assistance,please feel free to contact me. Yours very truly, Mark J. Vierling MJV/sdb Enclosures pc: Eric Johnson, City of Oak Park Heights 4 Kelly & Fawcett, P.A. ATTORNEYS AT LAW OF COUNSEL: Trevor S. Oliver McGUIGAN&HOLLY,PLC toliver@kellyandfawcett.com February 2, 2006 Mark J. Vierling Eckberg, Lammers, Briggs, > , , Wolff&Vierling, P.L.L.P. �ff �` 1809 Northwestern Ave., Suite 110 Stillwater, MN 55082 RE: Connection Charges for 5710 Memorial Avenue, Oak Park Heights Dear Mr. Vierling: Thank you for quickly following up on our last phone call with your letter of January 23. It appears that we are getting closer to understanding each other's positions,but we don't yet have an agreement. We still have a fundamental disagreement about the calculation of these charges, which we must address either in our discussion or in court. Public Storage appreciates the City's willingness to settle, and shares the desire to get this outstanding matter resolved. However, the offer to pay over three years does not address our client's concerns. The issue is not inability to pay or even a desire to amortize the payment, but a belief that, based on their experience with connection charges elsewhere, that the remaining $57,000 of charges are excessive. The fundamental disagreement still centers around the use of land area as the basis for calculating the charge. We have outlined our position on this in previous letters. Your reference to the zoning classification of the property as a basis for connection charges is a step in the right direction, however, inasmuch as we begin to discuss how the City has classified property for connection charges. More discussion in this direction may lead us to a fair settlement. On that point, we disagree with your analysis of the impact of the property's classification on its connection charges. A "speculative use" or "maximum use" analysis should only be used when the use of the property — or more specifically, a building — is not known. The property was a mini-storage business when the connections were made, and remains a mini-storage business now, with a constant and known use of sewer and water resources. Any new use on the property would require a new set of permits, and likely a new set of connections to support its more intense use of water resources. The mini-storage site on Memorial is not readily convertible into any other type of water-intensive commercial use without City approval, which undercuts the 444 CEDAR STREET,SUITE 2350 SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 FACSIMILE 651-223-8019 www.kellyandfawcett.com February 2, 2006 Letter to Mark Vierling Re: Connection charges for 5710 Memorial Avenue, Oak Park Heights Page 2 of 2 argument that the zoning classification justifies the high connection fees. The power of that argument is also diminished by the fact that Oak Park Heights has used land area as the sole criteria for all connection charges, whether residential or commercial. As we have argued before, land area is not rationally related to the installation or use of sanitary sewer, particularly not when only two small buildings are hooked up on the entire 10-acre property. In contrast, Public Storage proposes a settlement based upon a "residential equivalency" system similar to that used by the Metropolitan Council and many metro-area municipalities, in which the city charges the Met Council "sewer availability charge" ("SAC"), and impose their own fee based on the "SAC units." I've attached the relevant pages of the MCES SAC guidebook, which counsel that a "mini storage" site should be assessed 1 SAC for the living quarters, and 1 SAC for a public restroom, up to 17 fixtures. No SAC is assessed for the storage units themselves. The Memorial Avenue site should equal 2 SACs under this guidance; one for the living quarters and 1 for the small office bathroom, available to the public. To settle the issue, Public Storage is willing to use the 2006 SAC rate, $1550, as the basis for all calculations. The additional city charges in our study ranged from $300 to $900, with a few higher amounts applied in the furthest reaches of the metro. Again, to settle the matter, Public Storage is willing to calculate the charge using the highest 2006 residential rates applicable to the City of Woodbury- $1140 for sanitary sewer, and $820 for water. Multiplying these residential rates by the SAC assigned to the mini-storage site produces additional charges of$2280 and $1640. The total of all of these charges plus the storm sewer charge is $52,790.80. This is a charge that our client feels is reasonable for the services provided, and are willing to stand by in court. If we can accept that as the connection charge, Public Storage may be willing to offer an additional sum toward the construction costs as an incentive to resolve this matter without litigation. The threshold question is whether the City is willing to consider a charge less than their current figure. If this is not possible, please let us know and we will answer the City's civil complaint in a timely manner. Please do not hesitate to contact me if there is anything we can discuss. Respectfully yours, KELLY& FAWCETT, P.A. Trevor S. Oliver Patrick J. Kelly TSO/rjo Cc: Public Storage ECKBERG LAMMERSI.i ATTORNEYS AT LAW 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 (651)439-2878 Direct Dial: (651)351-2118 Fax(651)439-2923 mvierling@eckberglammers.com www.eckberglammers.com February 6, 2006 James Lammers Robert Briggs Mark Vierling Thomas Weidner Mr. Eric Johnson Susan Olson City Administrator David Stoker City of Oak Park Heights Sean Stokes 14168 Oak Park Boulevard North Oak Park Heights, MN 55082 Laura uotensen Joshua Christensen Re: Connection Charges for 5710 Memorial Avenue Dear Eric: Enclosed herewith for your review please find copy of letter dated February 2, 2006 received from Trevor S. Oliver of Kelly&Fawcett. If you have any questions regarding this correspondence,please do not hesitate to contact me directly. Very truly yours, Mark J. Vierling MJ sdb Enclosure ECKBERG, LAMMERS, BRIGGS, WOLFF 6 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation fi c ECKBERG LXMMIS *I rAy ATTORNEYS AT LAW 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 (651)439-2878 Fax(651)439-2923 www.eckberglammers.com Writer's Direct Dial: James Lammers (651)351-2118 Robert Briggs Mark Vierling mvierling@eckberglammers.com Thomas Weidner • Susan Olson David Snyder Sean Stokes Laura Domagala Joshua Christensen January 23, 2006 ((Th ED Et i & : Mr. Trevor S. Oliver ,. 1E Kelly& Fawcett, P.A. 444 Cedar Street Suite 2350 St. Paul, Minnesota 55101 Re: City of Oak Park Heights v. Secure Mini Storage Dear Mr. Oliver: Thank you for your correspondence of December 28. In addition thereto, based upon our telephone conversations,I understand that your client has his principal business facilities located outside of the State of Minnesota and that a personal meeting in order to resolve this matter is perhaps not feasible at this time, so we will exchange correspondence to see if we can obtain a resolution on this matter. Your correspondence indicates that your client is no longer in disagreement with the City's charges for connection to the storm sewer facilities. Thank you for that. The storm sewer charges relative to your client's properties which comprise Lots 8, 9 and 10 of Kern Center 2"d Addition total $45,770.80. These charges were previously broken down by our City Engineer and provided to the former owner, Mr. Anthony Valvoulis by correspondence dated August 3, 1999. A copy of that I provide to you. Relative to the municipal water and sanitary sewer charges,they too were established by the City long ago based upon engineering study. Your client owns a significant parcel of commercial property and I appreciate that their utilization of water and sanitary sewer services on a monthly basis is probably not significant; however, they do have a quarterly billing for those services. ECKBERG, LAMMERS. BRIGGS, WOLFF Fh VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation • Mr. Trevor S. Oliver January 23, 2006 Page 2 City records indicate that in 2004 they paid $1,237.55 for those services billed and in 2005 paid approximately$1,337.85 for like or similar services. As you may know,there is a significant difference between the utility billings for monthly charges on those utilities as opposed to connection fees, which are a one time connection cost to the City systems. The fact that your client utilizes sanitary sewer only for one apartment on the premises is not relevant to the City's analysis of the potential cost as the City looks at the potential utilization of the property within the B-3, Highway Business Warehouse Zone regulating the terms of its maximum permissible use. Your client's property is zoned to allow a significant commercial utilization of the property over time. As such,the City's analysis and rate schedule is not predicated on individual or subjective use as much as it is predicated on potential use based upon the zoning uses that are allowed in that area. We understand that Public Storage acquired the property from Mr. Valvoulis and the entity that owned it at the time that the initial inquiry was made for informational purposes back in August of 1999. However,there was assessment search at the time of its acquisition and no subsequent inquiry either from Mr. Valvoulis or your client at the time of their acquisition of the property. We have reviewed the City's records relative to checking for an assessment search or other City charges at the time the property was sold and the City has no record of any inquiry being made from either the current owner or the former owner at the time of sale other than, of course,the information provided to Mr. Valvoulis by the engineering letter dated August 3, 1999,which we assume may have been made by him in anticipation of a potential sale of the property, although the City merely received the inquiry based on a request for information, not with disclosure of any particular purpose. Had your client made a formal assessment search or inquiry of the City at the time that they acquired the property,the information may have been disclosed and, of course,your client would have been able to better protect themselves in the transaction relative to their acquisition of the property. As you know,the City does not have to demonstrate benefit on this charge. It is not an assessable feature under Chapter 429,but is authorized under Chapter 444 of the Minnesota Statutes. The City can legislate its charges based upon its overall need,projecting contribution for both residential and commercial properties within the City's infrastructure as to the overall systems. The connection charges as provided for by the City provide for a contribution of the primary/trunk infrastructure facilities of the City,which are calculated to serve the needs of all commercial and residential properties. The City has adopted a series of charges based on commercial and residential utilization of property,using the existing zoning, land use and anticipated utilization of the property under Mr. Trevor S. Oliver January 23, 2006 Page 3 those zoning and land use features. The charges are supported by a rational basis and were clearly authorized by the statute at the time that they were adopted. The City does,however, appreciate that there has been some time since these facilities were connected and, for some reason,the connection charges were not collected at the time that the original meters were issued relative to the individual connection to your client's buildings. Thus, it is the City's position that they are willing to extend the term and time of payment for these connection charges without interest, allowing your client up to three years to make the payment for the connection charges. I understand that you are interested in potentially reviewing the City's new connection charges that will be effective January 1, 2006 based upon the statutory modifications that have been in place with the legislature and that is certainly something you may wish to consider, although the City is not offering that at this time. You may further expect that those charges will probably meet or exceed the 2000 rates anyway given the cost of construction of trunk facilities which have occurred merely by operation of inflation within the construction industry over the last several years. Please review the enclosed with your client and advise as to whether or not the City's offer to collect these connection I. .es at the 2000 rate extended over a period of three years without interest or c• + g charges is ,cceptable. Yours ery truly, ark J. Vierling MJV sdb Enclosures pc: Eric Johnson, City of Oak Park Heights ,...� Bonestroo,Rosene.Anderlik and Associates,Inc.is 7irmative Action/Equal Opportunity Employer Bonestroo 1 Principals:Otto G.Bonestroo.P.E.•Joseph C.And.. ..RE.•Marvin L.Sorvala,RE.• Glenn R.Cook,P.E.•Robert G.Schunicht•P.E.•Jerry A.Bourdon,P.E.• Rosene Robert W.Rosene.P.E..Richard E.Turner,P.E.and Susan M.Eberiin;C.P.A..Senior Consultants Associate Principals:Howard A.Sanford.P.E.•Keith A.Gordon.P.E.•Robert R.Pfefferle.P.E.• Anderlik & Richard W.Foster.P.E.•David O.Loskota,P.E.•Robert C.Russek,A.I.A.•Mark A.Hanson,P.E.• Michael T.Rautmann,P.E.•Ted)(Yield,)(Yield,RE.• Kenneth P.Anderson,P.E.•Mark R.Rolfs•P.E.• Associates .es Sidney P.Williamson.P.E.,LS.•Robert F.Kotsmith•Agnes M.Ring•Allan Rick Schmidt,P.E. •7 Offices.'St.Paul•Rochester,Willmar and St.Cloud.MN•Milwaukee,WI •• Engineers &Architects Website:www.bonestroo.com © S u n.�f7 August 3, 1999 Mr. Anthony Valvoulis Secure Mini Storage 740 Linwood Avenue , St. Paul, MN 55105-3322 Re: Kern Center Connection Charges City of Oak Park Heights Our File No. 55-98-802 Dear Mr. Vavoulis: • We are in receipt of your letter of July 25, 1999 requesting information relative to the connection charges being assigned to,your Secure Mini Storage site in the Kern Center. The following is in response to your questions 1 through 7 as outlined in your May 7, 1999 correspondence.. , 1. The following table shows the breakdown of the $102,714.00 connection charge: • Lot 8,Block 2, Kern Center 2nd Trunk Sanitary Sewer 2.96 ac x $2,310.00/ac $6,837.60 Trunk Waterworks 2.96 ac'x 4,010.00/ac 11,869.60 Trunk Storm Sewer • 2.96 ac x 5,080.00/ac 15,036.80 Total Lot 8 $33,744.00 Lot 9,Block 2, Kern Center 2nd Trunk Sanitary Sewer . 3.00 ac x $2,310.00/ac $6,930.00 Trunk Waterworks 3.00 ac x 4,010.00/ac 12,030.00 Trunk Storm Sewer 3.00 ac x 5,080.00/ac 15,240.00 Total Lot 9 $34,200.00 Lot 10, Block 2, Kern Center 2nd Trunk Sanitary Sewer 3.05 ac x $2,310.00/ac $7,045.50 Trunk Waterworks 3.05 ac x 4,010.00/ac • . 12,230.50 Trunk Storm Sewer 3.05 ac x 5,080.00/ac 15,494.00 Total Lot 10 $34,770.00 TOTAL SECURE MINI STORAGE $102,714.00 2335 West Highway 36 • St. Paul, MN 55113 • 651-636-4600 • Fax: 651-636-1311 Mr. Anthony Valvoulis Secure Mini Storage Page 3 It is hoped that the information provided herein will assist you in understanding the financing procedures used by the City of Oak Park Heights to provide public utility service. Very truly yours, BONESTROO,ROSENE, ANDERLIK&ASSOCIATES,INC. a 0.-tAiii‘ Joseph C. Anderlik cc: Thomas Melena Kris Danielson ECKBERG LAMMERS rA,t;#11 ATTORNEYS AT LAW 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 (651) 439-2878 Fax(651)439-2923 www.eckberglammers.com Writer's Direct Dial: James Lammers Robert Briggs (651)351-2118 Mark Vierling Thomas Weidner mvierling@eckberglammers.cOm Susan Olson David Snyder Sean Stokes Laura Domagala Joshua Christensen January 5, 2006 r., Mr. Trevor S. Oliver Kelly&Fawcett,P.A. A 444 Cedar Street ' Suite 2350 St. Paul,Minnesota 55101 Re: City of Oak Park Heights v. Secure Mini Storage Dear Mr. Oliver: Pursuant to my telephone conversation with you of Wednesday, January 4,I understand you have agreed to accept service on behalf of your client in this matter. I am therefore enclosing and providing to you the Summons and Complaint in this matter,together with an Admission of Service bearing the date of mailing in this matter. As per my conversation with you,I am also herewith granting you an indefinite extension of the time to place an answer in this matter until I would request it and I would assure you that I would provide you at least 14 to 15 days advance time before I would request that any formal answer be prepared and served by your client. I am also not going to be filing the matter immediately,but am going to be reviewing with the City personnel your correspondence of December 28, 2005 and am inclined to certainly discuss ECKBERG, LAMMERS, BRIGGS, WOLFF f3 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation Mr. Trevor S. Oliver January 5,2006 Page 2 possible settlement on this matter before we proceed further,but I did want to follow the directive of the City Council,which was to put this matter out for collection at this time as we had not hears - .m you sr over two months. Yo 1 s very trul ark J.Vierling MJV/sdb Enclosures pc: Eric Johnson, City of Oak Park Heights STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Court File No: City of Oak Park Heights,a Judge: Minnesota municipal corporation, Plaintiff, SUMMONS v. Secure Mini Storage Limited Partnership, Defendant. THE STATE OF MINNESOTA TO THE ABOVE-NAMED DEFENDANT: YOU ARE HEREBY SUMMONED AND REQUIRED TO SERVE upon Plaintiffs attorney an Answer to the Complaint which is herewith served upon you within twenty (20) days after service of this Summons upon you, exclusive of the date of such service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the Complaint. Civil cases are subject to Alternative Dispute Resolution processes as provided in Rule fl of the General Rules of Practice for the District Courts. Alternative Dispute Resolution includes mediation, arbitration, and other processes set forth in the rules. You may contact the Court Administrator for information about these processes and about resources available in your area. ECKBERG,LA ERS,B P. GGS, WOLFF& V RLIN '.L.L.P. Dated: J. Vierling(#112823) Attorney for City of Oak Park Heights 1809 Northwestern Avenue, Suite 110 Stillwater,MN 55082 (651)-439-2878 ti • STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Court File No: City of Oak Park Heights,a Judge: Minnesota municipal corporation, Plaintiff, COMPLAINT v. Secure Mini Storage Limited Partnership, Defendant. NOW COMES,the Plaintiff, City of Oak Park Heights, who for its claim,complaint and cause of action against Defendant, Secure Mini Storage, Limited Partnership, states and alleges as follows: 1. Plaintiff, City of Oak Park Heights, is a Minnesota municipal corporation located in Washington County, Minnesota. 2. Based upon information and belief, SECURE MINI STORAGE LIMITED PARTNERSHIP, is a Minnesota entity, with a primary place of business located at or on 5710 Memorial Ave. N, in the city of Oak Park Heights, County of Washington, State of Minnesota. 3. Based upon information and belief, Defendant, SECURE MINI STORAGE LIMITED PARTNERSHIP, is the record owner in fee simple of certain real property located at 5710 Memorial Ave. N, in the city of Oak Park Heights, County of Washington, State of Minnesota, legally described as follows: Kern Center 2nd Addition Lot-008 Block-002 P.I.D. 0602920210004 Said property will be hereinafter referred to as the "The Property." 4. "The property"was connected to, and has subsequently received the benefit from,municipal water, sanitary sewer and storm sewer services by the City of Oak Park Heights, on or about February 7,2000. 5. Plaintiff, the City of Oak Park Heights, has the statutory authority to charge, and has adopted, reasonable fees for the connection to municipal water, sanitary sewer and storm sewer utilities pursuant to Minnesota Statute § 444.075. 6. Plaintiff has charged the reasonable fee of$ 102,714.00 to Defendant, SECURE MINI STORAGE LIMITED PARTNERSHIP, for a connection to, and subsequent use of, municipal water, storm sewer and sanitary sewer utilities for the benefit of the Secure Property. j 7. Defendant connected its property and structures to the City of Oak Park Heights municipal Water, Sanitary Sewer and Storm Sewer utilities on or about February 7, 2000. 8. The due to clerical oversight no connection charges were collected at that time but were discovered as unpaid in 2005. That the City contacted Defendant and has made reasonable efforts to resolve the matter of the unpaid connection fees. 9. All connection fees and charges referred to and described in preceding paragraphs above, have remained unpaid by the respective Defendant. 10. That Defendant has had the benefit of connection to the city utilities and has not paid the fees prescribed by the City for that utility connection. COUNT I: ACCOUNT STATED AGAINST DEFENDANTS SECURE MINI STORAGE LIMITED PARTNERSHIP 11. Plaintiff adopts, by reference all preceding paragraphs 1 through 10 above as if more fully set forth herein. 12. An account has been stated between Plaintiff and Defendant, SECURE MINI STORAGE LIMITED PARTNERSHIP, whereupon the above-stated balance of$102,714.00, together with interest accruing thereon from March 10, 2005 when the City notifies Defendant of the unpaid connection fees, was found to be due to Plaintiff from Defendant, but no part has been paid. Plaintiff is entitled to damages in the amount of$102,714.00,plus interest as allowed by law, and Plaintiff is entitled to recover its costs and disbursements incurred in this matter. COUNT II: QUANTUM MERUIT/UNJUST ENRICHMENT CLAIM AGAINST SECURE MINI STORAGE LIMITED PARTNERSHIP and W.A.T.E. ENTERPRISES, INC. Plaintiff adopts,by reference all preceding paragraphs 1 through 12 above as if more fully set forth herein. 13. Defendant SECURE MINI STORAGE LIMITED PARTNERSHIP have received a benefit from the utilities of the Plaintiff, and therefore, is liable to Plaintiff in quantum meruit in the amount of$102,714.00, for the reasonable value of Plaintiffs utility connections, plus interest allowed by law, and Plaintiff is entitle to recover its costs and disbursements incurred in this matter. WHEREFORE,Plaintiff prays for judgment as follows: • 1. Adjudging that Plaintiff is entitled to recover from Defendant, SECURE MINI STORAGE LIMITED PARTNERSHIP, the amount of$102,714.00, together with interest, costs and disbursements. ECKBERG, LAM I BRIGGS, WOLFF • : '1 ING,P. . Dated: B- � Mark J. Vierling Attorney Registration No: 112823 Attorney for Plaintiff 1809 Northwestern Avenue, Suite 110 Stillwater,MN 55082 (651)439-2878 ACKNOWLEDGMENT Pursuant to Minn. Stat. §549.211,the party or parties represented by the undersigned attorneys acknowledge(s) that costs, disbursements, and reasonable attorney and witness fees may be awarded to the opposing party or parties for actions in bad faith; the assertion of a claim or a defense that is frivolous and that is costly to the other solely to delay the ordinary course of the proceedings to harass;or; the othe commission o n of an unfoundedposi• • dd upon the Court. ECKBERG, AMMERS, B ' WOLFF& RLING,P.L Dated: ton By: • J. Vierling Attorney Registration No: 112823 Attorney for Plaintiff 1809 Northwestern Avenue, Suite 110 Stillwater,MN 55082 (651)439-2878 STATE OF MINNESOTA DISTRICT COURT CIVIL COURT DIVISION COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: Court File No. City of Oak Park Heights,a Minnesota municipal corporation, Plaintiff, ADMISSION OF SERVICE v. Secure Mini Storage Limited Partnership, Defendant. ?f � Trevor S. Oliver, attorney for Secure Mini Storage Limited Partnership,the Defendant above-named,hereby acknowledges receipt of the Summons and Complaint in the above-referenced action. Dated this day of ,2006. Trevor S. Oliver Attorney for Defendant - * ECKBERG LAMMERS I4i ATTORNEYS AT LAW 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 Writer's direct dial number: (651) 439-2878 (651)351-2118 Fax(651)439-2923 www.eckberglammers.com September 28, 2005 James Lammers Robert Briggs Mark Vierling Mr. Eric A. Johnson Thomas Weidner City Administrator Susan Olson City of Oak Park Heights David Snyder 14168 Oak Park Boulevard North Sean Stokes P. O. Box 2007 Baiers Heeren Laura Domagala Oak Park Heights, Minnesota 55082 Joshua Christensen Re: 5710 memorial Ave-Public Storage dispute over connection fees Dear Mr Johnson, Relative to the September 8, 2005 correspondence attached as received by the city objecting to the City's connection fees we respond to your request for research on the matter as follows: GENERAL ISSUES Issue 1: Did the city improperly calculate the connection fee for storm and sanitary sewers and municipal water for Public Storage because the municipality used a square footage or similar are measurement? Issue 2: Is Public Storage exempt from connection fees because it elects not to use any municipal water? Issue 3: Does a lack of proportionality of actual charge to actual benefit render the charges void? GENERAL NOTE All statutory reference Minnesota Statute 444.075 (2006) that will become effective in Jan. 1,2006. I have done this because Minnesota Statute 444.075 (2005)is poorly structured ECKBERG, LAMMERS, BRIGGS, WOLFF 6 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation September 28, 2005 Page 2 and was amended only in structure in 2006. The 2006 statute contains every substantive and operative phrase and clause, including some additional guidelines, of the 2005 statute, but is much more reader friendly. GOVERNING STATUTE Minn. Stat. §444.075 provides: Authority: Subd. 3. The governing body of a municipality may impose just and equitable charges for the use and for the availability of the facilities and for connections with them and make contracts for the charges as provided in this section. (Emphasis added). Connection Fee: Generally Subdivision 3d: Facilities' connection charges The governing body(Town Board, Minn. Stat. § 444.075 Subd. 1 b)may fix a connection fee by reference to the portion of the cost of connection which has been paid by assessment of the premises to be connected, in comparison with other premises, as well as the cost of making or supervising the connection. (Emphasis Added). Connection Fee to Others Subdivision 3e: Who may be charged; unpaid charges The governing body may make the charges a charge against the owner, lessee, occupant or all of them and may provide and covenant for certifying unpaid charges to the county auditor with taxes against the property served for collection as other taxes are collected. Connection Fee Charged to the Municipality Subdivision 3f: Tax levies for public charges The governing body may fix and levy taxes for the payment of reasonable charges to the municipality or county itself for the use and availability of the faculties for fire protection, for maintaining sanitary conditions, and for proper storm water drainage in and for public buildings,parks, streets, and other public places. Reasonableness of Charges: Subdivision 3g: September 28, 2005 Page 3 In determining the reasonableness of the charges to be imposed the governing body may give consideration to all costs of the: 1. Establishment of the operation, 2. Maintenance, Depreciation, Necessary replacements of the system 3. Improvements, Enlargements and Extensions necessary to serve adequately the territory of the municipality including the principal and interest of to become due on obligations issued or to become issued and the costs of obtaining and complying with permits required by law. Subdivision 3h: Charges are not unreasonable if the net revenues have been appropriate subject to the purposes in Subdivision 3g by virtue of the fact that the project to be financed has not been commenced or completed, if the proceedings for it are taken with reasonable dispatch and the project, when completed, may be expected to make service available to the premises charged which will have a value reasonably commensurate with the charges. Types of Charges: Subdivision 3: (effective until Jan. 1, 2006) Charges made for service directly rendered shall be as nearly as possible proportionate to the cost of furnishing the service. Sewer charges may be fixed on the basis of 1. Water consumed, or 2. By reference to a reasonable classification of the types of premises to which service is furnished, or 3. By reference to the quantity,pollution qualities and difficulty of disposal of sewage and storm water produced, or 4. On any other equitable basis including, but without limitation, any combination of those referred to above. (Emphasis Added). Subd. 3a. Sanitary sewer charges. (NOTE*effective Jan. 1,2006) Sanitary sewer charges may be fixed: 1. On the basis of water consumed; or 2. By reference to a reasonable classification of the types of premises to which service is furnished. 3. By reference to the quantity,pollution qualities and difficulty of disposal of sewage produced; or 4. On any other equitable basis including any combination of equitable bases referred to in clauses (1)to (3), but specifically excluding September 28, 2005 Page 4 use of the basis referred to in subdivision 3b, clause (1); and otherwise without limit. Subd. 3b. Storm sewer charges. (effective Jan. 1,2006) Storm sewer charges may be fixed: 1. By reference to the square footage of the property charged adjusted for a reasonable calculation of the storm water runoff. 2. by reference to a reasonable classification of the types of premises to which service is furnished; or 3. by reference to the quantity,pollution qualities, and difficulty of disposal of storm water runoff produced; or 4. on any other equitable basis, including any combination of equitable bases referred to in clauses (1)to (3), but specifically excluding use of the basis referred to in subdivision 3a, clause (1); and otherwise without limit. Handling of Funds Subsequent to Reception: Subdivision 3i: All charges, when collected, shall be placed in a separate fund and used first to pay the normal reasonable and current cots of operating and maintaining the facilities Subdivision 3j: Excess net revenues my used, by resolutions of the governing body,the payment for debt. Individual Contracts: Subdivision 5: A municipality may permit a person, company, or corporation, located and doing business inside or outside the municipality, to connect to connect with the facilities and make use of them upon terms and upon the payment of fees and charges as may be prescribed or contracted for by the municipality. ANALYSIS Issue 1: Did the city improperly calculate the connection fee for storm and sanitary sewers and municipal water for Public Storage because the municipality used a square footage or similar are measurement? It is imperative to analyze the issues under both the previous and 2006 statutes especially here because the issue was raised prior to Jan. 1, 2006. The 2005 statute allocates a much September 28, 2005 Page 5 greater scope of authority and permissible methods of fee calculation including, specific to our inquiry, not expressly precluding a municipality from calculating sewer connection fees by reference to the square footage of the property. Minn. Stat. §444.075 Subd. 3 (2004). Pre-2006 Statute: Sewer Connection Fee: (No distinction between storm and sanitary) Pursuant to the applicable statute a municipality is expressly permitted to fix sewer by any equitable basis. Subd. 3 While the particular method that Oak Park used was not expressly permitted, it is likely permissible as a sufficient equitable basis. Additionally,municipalities have been held to have maximum flexibility, and a broad latitude and discretion when imposing fees pursuant to Minnesota Statute 444.075. See Crown Cork&Seal Co. v. City of Lakeville, 313 N.W.2d 196 (Minn. 1981)(attached); Golden Rule Estates Owners Association v. City of Crosslake, 2005 WL 1514436 (attached). Thus, it would seem likely that the method of calculation Oak Park Heights used was sufficient to satisfy the 2005 Statute. Municipal Water: Pursuant to the applicable statute a municipality may fix charges for the connection to the facilities in a number of ways including, by reference to the portion of the cost of connection which has been paid by assessment of the premises to be connected, in comparison with other September 28, 2005 Page 6 premises, as well as the cost of making or supervising the connection. Minn. Stat. §444.075 Subd. 3. In 2004 the legislature amended the statute making the amendment effective for 2006 by taking steps to mitigate confusion and to conform the statute to existing case law. The new statute articulates novel guidelines for municipalities distinctly to calculate sewer and sanitary sewer connection fees, but has retained the guidelines for calculating municipal water connections. Pursuant to the new statute (effective Jan 1,2006)the only distinction between the factors upon which charges may be fixed by a municipality for Sanitary and Storm Sewer connection fee is that: A municipality is precluded from fixing the fee by reference to the square footage of the property charged, for Sanitary Sewer. (Subd. 3a). AND A municipality is precluded from fixing the fee on the basis of water consumed for a Storm Sewer. (Subd. 3b). Storm Sewer Connection Fee: (Pre and Post 2006) Pursuant to the applicable statute a municipality is expressly permitted to fix charges for a Storm sewer by reference to the square footage, adjusted for a reasonable calculation of the storm water run-off Minn. Stat. §444.075 Subd. 3b clause 1. Sanitary Sewer Connection Fee (Effective Jan 1,2006) September 28, 2005 Page 7 Pursuant to the applicable statute a municipality is expressly precluded from fixing charges by reference to the square footage of the property charged, adjusted for a reasonable calculation of the storm water runoff. Minn. Stat. §444.075 Subd. 3a clause 4. Here, there may be an issue because, if Public Storage's contention is true, then the town board has not fixed the charge pursuant to the governing statute. Municipal Water: Same analysis as above for Sanitary Sewer effective January 1, 2006. Thus, it seems that under the Pre-2006 statute Oak Park Height's current method of calculation of all connection fees should meet the statutory requirement, while its calculation of the Municipal Water and Sanitary Sewer connection fees after January 1, 2006 is likely to be problematic. Issue 2: Is Public Storage exempt from connection fees because it elects not to use any domestic municipal water service? The only statutory language that even remotely suggests this contention is, "[c]harges made for service directly rendered shall be as nearly as possible proportionate to the cost of furnishing the service."Minn. Stat. §444.075 Subd. 3 section B. The scope of this language, however, when read standing alone or in the context of the statute clearly only governs charges made for specific services that were directly rendered and thus, does not extend to govern our inquiry. September 28, 2005 Page 8 Further,pursuant to Minn. Stat. § 444.075 Subd. 3c, a municipality may impose a minimum charge for the availability of water or sewer service for all premises abutting on streets or other places where municipal or county water mains or sewers, whether or not the party is connected to them. While a municipality has express statutory authority to charge a minimum availability and connect fee, it remains unsettled whether the a municipality can charge a fee above and beyond that of a minimum. Finally, factually here the propery has connected to the city's water service for fire protection(sprinkling)systems. I see no basis to distinguish connect based on subjective purpose for the connection. The Minnesota Court of Appeals stated, while merely in dicta, in June of 2005,that statutes "could be read to permit cities to charge land owners for the availability of services even if an individual premises is not connected to the service." Golden Rule,2005 WL at 6. (The court broached the topic immediately subsequent to holding that sewer connection charges may be levied against property both abutting and not abutting the sewer line. Id.) Thus, it could be inferred from both the express language of the statute and the language of the court,that a municipality,potentially, has the authority to charge the same or similar fees to non-users as to users. Additionally,there are some relatively dated Attorney General opinions that seem to bolster the veracity our contention. In a 1966, the Attorney General opined that a village could properly establish a connection charge to be used for the future connections to the water and sewer system of the village. Op.Atty.Gen., 387g-5, June 27, 1963 (Emphasis Added). Similarly, September 28, 2005 Page 9 the Attorney General held that a village would be authorized to levy taxes for use of water facilities and to impose a minimum charge for the availability of water service to abutting premises, whether they are connected to the municipal water main or not. Op.Atty.Gen., 624d, April 19, 1966. Issue 3: Does a lack of proportionality of actual charge to actual benefit render the charges void? It seems that to find a charge void because of want of proportionality would directly contradict the express language of the governing statute. Minn. Stat. § 444.075 Subd. 3 (a). The statute expressly allocates the authority to the governing body of a municipality to, "impose just and equitable charges for the use and for the availability of the facilities and for connections with them." Id Thus,pursuant to the express language of the statute, a municipality may charge a fee for the availability of, and subsequent connect to, the facilities to a parcel of land if said charge is just and equitable. As referenced above,municipalities have been held to have maximum flexability, and a broad latitude and discretion when imposing fees pursuant to Minnesota Statute 444.075. See Crown Cork, 313 N.W.2d at 196, Golden Rule, 2005 WL at 4. Therefore, it would not be necessary for a municipality impose the fee strictly based the proportionality to the benefit to meet the just and equitable charge standard. Golden Rule, 20005 WL at 4. In short we find and are of the opinion that the City's current connection fees are statutorily compliant and due the city from Public Storage, but as to municipal water and sanitary sewer connections will become non-compliant with the provisions of Minnesota Statute 444.075 effective January 1, 2006 for properties connecting after that date. September 28, 2005 Page 10 Sin• Mark . Vierling ECKBERG ApA LAMMERS r4t? ATTORNEYS AT LAW 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 Writer's direct dial number: (651)439-2878 (651) 351-2118 Fax (651) 439-2923 www.eckberglammers.com September 21, 2005 James Lammers Robert Briggs Mark Vierling Thomas Weidner Susan Olson Mr. Eric A. Johnson David Snyder City Administrator Sean Stokes City of Oak Park Heights Balers Heeren 14168 Oak Park Boulevard North Laura Domagala Joshua Christensen P. O. Box 2007 Oak Park Heights, Minnesota 55082 Re: Connection Charges for 5710 Memorial Avenue Dear Eric: Enclosed herewith for your review please find copy of letter dated September 16, 2005 received from Kelly& Fawcett, P.A. If you have any questions regarding this correspondence,please do not hesitate to contact me directly. Yours very truly, Mark J. Vierling MJV/4 Enclosure ECKBERG, LAMMERS. BRIGGS, WOLFF 3 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation Kelly & Fawcett, P.A. ATTORNEYS AT LAW OF COUNSEL; McGUIGAN&HOLLY,PLC ■ Trevor S. Oliver toliver@kellyandfawcett.com September 16, 2005 Mark J. Vierling Eckberg, Lammers, Briggs, Wolff& Vierling, P.L.L.P. C py 1809 Northwestern Ave., Suite 110 Stillwater, MN 55082 RE: Meeting on Connection Charges for 5710 Memorial Avenue, Oak Park Heights Dear Mark: Thank you for your prompt response to our letter. I appreciate your willingness to fully investigate this issue. I look forward to meeting with you to reach an appropriate payment amount for my client to make to Oak Park Heights. Please call me to schedule the meeting at your earliest convenience, and do not hesitate to call me if questions arise during your investigation. Respectfully yours, KELLY& FAWCETT, P.A. Trevor S. Oli er Patrick J. Kelly TSO/rjo Cc: L. Klichan N. Choudhry 444 CEDAR STREET,SUITE 2350• SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 • FACSIMILE 651-223-8019 www.kellyandfawcett.com ECKBERG LAMMLRS RI" ATTORNEYS AT L A W 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 Writer's direct dial number: (651)439-2878 (651) 351-2118 Fax(651)439-2923 www.eckberglammers.com September 14, 2005 James Lammers Robert Briggs Mark Vierling Thomas Weidner Susan Olson David Snyder Mr. Trevor S. Oliver Sean Snyder Kelly &Fawcett,P.A. Baiers Heeren 444 Cedar Street, Suite 2350 Laura Domagala St. Paul, Minnesota 55101 Joshua Christensen Mr. Patrick J. Kelly Kelly & Fawcett, P.A. 444 Cedar Street, Suite 2350 St. Paul, Minnesota 55101 n C7 Re: Cash Connection Charges on Public Storage Co 5710 Memorial Avenue, Oak Park Heights Gentlemen: I have received your letter of September 8. We will be reviewing its contents internally, as well as with City staff, and expect to be back to you within the next two weeks. At that time,we will be happy to have a meeting with you to discuss the issues raised in your correspondence. Yours very truly, Mark J.Vierling MJV/sdb cc: Eric Johnson, City Administrator ECKBERG, LAMMERS, BRIGGS, WOLFF 6 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation ECKBERG� LAMMERS ►�i 3 ATTORNEYS AT LAW 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 Writer's direct dial number: (651)439-2878 (651)351-2118 Fax(651)439-2923 www.eckberglammers.com September 29, 2005 James Lammers Robert Briggs Mark Vierling Thomas Weidner Susan Olson Mr. Trevor S. Oliver David Snyder Kelly&Fawcett, P.A. Sean Stokes 444 Cedar Street, Suite 2350 BaiersHeeren Laura Domagala St. Paul,Minnesota 55101 Christensen Joshua Christensen Mr. Patrick J. Kelly Kelly&Fawcett, P.A. 444 Cedar Street, Suite 2350 St. Paul, Minnesota 55101 Re: Your Client: Public Storage, Inc. 5710 Memorial Avenue, Oak Park Heights Gentlemen: Thank you for your correspondence of September 8 and,prior to having a meeting with the City of Oak Park Heights, I wanted to provide you with this office's response to your review of the status of the law relative to connection charges which you are disputing on behalf your client. First and foremost, it is my understanding that your client has connected to the City's water and sanitary sewer system. That was done relative to the water system, I understand,to secure fire protection services for your client via sprinkling and presumably as a result of an insurance requirement or to take advantage of certain insurance premium reductions. I am also advised by the City Public Works offices that your clients have also connected to the city sanitary sewer. The City of Oak Park Heights acquired the area in which your client had originally built its facility,which was originally venued in Baytown Township in the early 1990's via order from the Minnesota Municipal Board. The Municipal Board, in its directive, required that all facilities within that area connect to city water and sewer services within ten years of the date of the annexation. Your client benefited from and the City constructed municipal water and sanitary sewer services within Memorial Avenue for which they were assessed. The City has built without assessment but payment through connection charge funds assets consistent of infrastructure for municipal water systems, i.e. towers and trunk lines, lift stations(specifically those serving your client's development), Kern Pond expansion facilities (also specifically serving your client's area) and related storm sewer improvements which have been coordinated ECKBERG. LAMMERS, BRIGGS, WOLFF 8 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation September 29, 2005 Page 2 through the Brown's Creek Watershed District,which the City has been working with over the past several years. Consequently, your client has had the benefit of City improvements in all categories in which these connection charges are being collected. Relative to your objections as they were enumerated, we provide the following: 1. Lack Of An Ordinance Or Resolution. You correctly cite the Nordgren v. Maplewood matter. You indicate that you were not able to find a resolution. I attach copies of the resolutions recently passed by the City of Oak Park Heights. You will also please note that pursuant to the correspondence directed to your client by the City of Oak Park Heights,the City is not attempting to collect the current rates set forth within these resolutions but rather were attempting to collect the rate that was in effect at the time that your client connected to the service. That was in the form of an offer and accommodation by the City, which offer and accommodation can be withdrawn. 2. Connection Charges Under Chapter 444. You have cited Minn. Stat. §444.075, Subd. 3 as prohibiting the use of square footage or similar area measurement to calculate connection charges for sanitary sewer and for water. I believe you have inadvertently missed the legislative effective date for the statute that you are apparently reading. Minnesota Statute §444.075, Subd. 3 was modified in 2004 (effective for January 1,2006)to implement a prohibition against using square footage as a criteria or sole means of calculation of connection fees for sanitary sewer and municipal water services. Square footage, of course, as you have noted is permissible relative to the storm sewer utility for which your client is being charged. Since your client both connected and the City is seeking collection for the period of time in which your client connected to its facility which predated 2006, the current 2006 effective date and/or statute relative thereto would have no effect relative to the current issue. 3. You claim through your letter that your client has not connected to the municipal water service. Again,relative to the use of the private well on the property, although that may be being utilized by your client for whatever purpose,the fact of the matter is your client has connected to the municipal water service for purposes of fire protection and energizing its sprinkler system located on the premises. I am personally aware that they have a sprinkler system on the premises since our office happens to rent facilities from your client at that location. With regard to the sanitary sewer and municipal water services and the connection charge relative thereto, it has been a common practice in my experience within municipalities within the metropolitan area to use square footage or acreage as a basis for allocation and computation of those connection charges. September 29,2005 Page 3 4. Charges Not Proportionate. Your claim that the connection charges are not rationally related to the cost of connecting the property to the benefit of the property are not agreed with by this office or by the City. The City has expended considerable funds with Brown's Creek Watershed District in the reconstruction of the Kern Pond, as well as in the storm sewer facilities that service the area in which your client has located. Your client is part of the total storm water sewer system within the City of Oak Park Heights which the City maintains as a regional or citywide storm water facility. There are relatively few stand alone,privately held storm sewer basins within the City of Oak Park Heights. The Kern Pond and related facilities are part of the City's system for which the City has paid and will continue to pay Brown's Creek considerable funds relative to the maintenance and operation of that facility, as well as its construction. The City also maintains, as you may well know, considerable storm sewer facilities also within the Middle St. Croix Valley Water Management District and Valley Creek Water Management District. The construction of these facilities has benefited your client and has been reasonably and rationally calculated and determined by the City's engineering office relative to the contribution of various commercial and residential owners throughout the City. That calculation has been equitably and equally applied and apportioned to all property owners within the City of Oak Park Heights. As you are well aware, municipalities have been held to have maximum flexibility and broad latitude and discretion when imposing fees under this statute. See Crown Cork and Seal Co. v. City of Lakeville, 313 N.W.2d 196 (Minn. 1981); also see Golden Rule Estates Owners Association v. City of Cross Lake, 2005 W.L. 1514436. We are, of course, looking ahead into the upcoming dates in October where we would have the opportunity to have a meeting with you to review these issues and hopefully bring a resolution to these disputes. The City staff usually meets on Wednesdays and I would suggest the second, third or fourth Wednesday of the month of October may be an appropriate time, either early in the morning or right after the noon hour to be available for purposes of conducting such a meeting. Please advise me as to the availability within your calendars and we will attempt to schedule an appropriate time for City staff, as well as you and your clients to attend. Yours very truly, Mark J. Vierling MJV/sdb Enclosure cc: Eric Johnson, City Administrator SEP-28-2005 14:53 OAK PARK HEIGHTS CITY P.04/09 rt-5) \*//U Lf--/ RESOLUTION NO. 03-12-58 CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY,MINNESOTA A RESOLUTION ESTABLISHING CONNECTION FEES THROUGHOUT THE CITY OF OAK PARK HEIGHTS FOR CONNECTIONS TO MUNICIPAL WATER SYSTEMS, SANITARY SEWER SYSTEMS AND STORM SEWER SYSTEMS WHEREAS,Minn. Stat. §444.075, Subd. 3 authorizes municipalities to establish a system of charges for the construction, reconstruction, repair, enlargement, improvement or other obtainment, maintenance operation and use of municipal facilities, including, but not limited to charges for connections to such municipal facilities for municipal water, sanitary sewer, and storm sewer;and, connection charges WHEREAS,City ordinances provide for the Council to establish from time to time to be collected for properties developing in and connecting to the municipal water,sanitary sewer and storm sewer systems;and, AREAS,the City has historically established and collected connection charges; and, WHEREAS, connection charges established by the City of Oak Park Heights require modification and amendment from time to time;and, WHEREAS, the office of the City Engineer has provided recommendations to the City Council as it affects the establishment of connection charges throughout the City of Oak Park Heights as it relates to connection to trunk sanitary sewer systems, trunk water systems and trunk storm sewer systems;and, WHEREAS,the City Council determines it to be in the best interest of the residents and City of Oak Park Heights that such fees be periodically renewed and adjusted to take into account cost of construction and replacement and systems,cost of maintenance operation and other expenses that the City expects to incur with regard to the maintenance of such systems. NOW, THEREFORE, BE IT RESOLVED, by the City Council for the City of Oak Park Heights that effective January 1, 2004 city connection charges to be applied throughout the City of Oak Park Heights for properties developing or connecting to municipal utilities shall be as follows: et 4 SEP-28-2005 14:53 OAK PARK HEIGHTS CITY P.05/09 I. Sanitary sewer connection charge,$2,815.00 per acre. 2. Municipal water connection charge,$4,900.00 per acre. 3. Storm sewer connection charge,$6,205.00 per acre in the sections of the city located within the Valley Branch Watershed District and the Middle St. Croix Valley Water Management Organization and $11,360.00 in the areas of the city located in the Browns Creek Watershed District however excepting from Browns Creek the areas located West of Trunk Highway 5,South of Trunk Highway 36 and north of 55th Street. BE IT FURTHER RESOLVED,that as to the computation of acreage as it affects each development or connection related to the collection of these fees, all such computations shall be made through the office of the City Engineer with all such fees being thereafter collected through the office of the City Administrator. No connection shall be made to any municipal utility system until such time as the connection fees as calculated and determined by the office of the City Engineer have been collected. Passed by the City Council for the City of Oak Park •• this 9th day • - December,2003. i 46. Davi. :eaudet,Mayor �. T. Eric Johnson City A. SEP-28-2005 14:53 OAK PARK HEIGHTS CITY P.06/09 RESOLUTION NO, 02.12-65 CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY,MINNESOTA RESOLUTION ESTABLISHING CONNECTION FEES THROUGHOUT THE CITY OF OAK PARK HEIGHTS FOR CONNECTIONS TO MUNICIPAL WATER SYSTEMS,SANITARY SEWER SYSTEMS AND STORM SEWER SYSTEMS WHEREAS, Minn. Stat. §444.075, Subd. 3 authorizes municipalities to establish a system of charges for the construction, reconstruction, repair, enlargement, improvement or other obtainment, maintenance operation and use of municipal facilities, including,but not limited to charges for connections to such municipal facilities for municipal water,sanitary sewer,and storm sewer;and, WHEREAS, City ordinances provide for the Council to establish from time to time connection charges to be collected for properties developing in and connecting to the municipal water,sanitary sewer and stone sewer systems; and, WHEREAS, the City has historically established and collected connection charges;and, WHEREAS, connection charges established by the City of Oak Park Heights require modification and amendment from time to time;and, WHEREAS, the office of the City Engineer has provided recommendations to the City Council as it affects the establishment of connection charges throughout the City of Oak Park heights as it relates to connection to trunk sanitary sewer systems, trunk water systems and trunk storm sewer systems; and, WHEREAS, the City Council determines it to be in the best interest of the residents and City of Oak Park Heights that such fees be periodically renewed and adjusted to take into account cost of construction and replacement and systems, cost of maintenance operation and other expenses that the City expects to incur with regard to the maintenance of such systems. NOW,THEREFORE,BE IT RESOLVED,by the City Council for the City of Oak Park Heights that effective January 1, 2003 city connection charges to be applied throughout the City of Oak Park Heights for properties developing or connecting to municipal utilities shall be as follows: SEP-28-2005 14:53 OAK PARK HEIGHTS CITY P.07i09 1. Sanitary sewer connection charge,$2,730.00 per acre. 2. Municipal water connection charge,$4,750.00 per acre. 3. Storm sewer connection charge,$6,020.00 per acre. BE IT ETHER RESOLVED, that as to the computation of acreage as it affects each development or connection related to the collection of these fees, all such computations shall be made through the office of the City Engineer with all such fees being thereafter collected through the office of the CityA shall be made to any municipal utilitysystem Administrator. No connection fees calculated and determined by the office of the City Engineer havch time as the been collecconnectioted. as Passed by the City Council for the City of Oak P- eights this 30th day of December 2002. ir �a ,• uditMayor ATTEST: Acting City Administrator 2 SEP-28-2005 14:54 OAK PARK HEIGHTS CITY P.08/09 RESOLUTION NO. 01-12-65 CITY OP OAK PARK HEIGHTS WASHINGTON COUNTY,MINNESOTA RESOLUTION ESTABLISHING CONNECTION PEES THROUGHOUT THE CITY OF OAK PARK HEIGHTS FOR CONNECTIONS TO MUNICIPAL WATER SYSTEMS,SANITARY SEWER SYSTEMS AND STORM SEWER SYSTEMS establish a WHEREAS,, Minn. Stat. §444.075, Subd. 3 authorizes municipalities system of charges for the construction, reconstruction, enlargement, a to improvement or other obtainment, repair, maintenance o anduse including,but not limited to On and of municipal facilities, sanitarywater, charges for connections to such municipal facilities for municipal sewer,and storm sewer,and, WHEREAS, City ordinances provide for the Council to establish from time to time connection charges to be collected for municipal water,sanitary sewer and properties developing in and connecting to the storm sewer systems;and, WHEREAS, the City has historically established and collected connection charges;and, WHEREAS, connection charges established by the City of Oak Park Heights require modification and amendment from time to time;and, to the Ci Cote 1 RES, the office of the City Engineer has provided recommendations affects the establishment of connection of Oak Park heights as it relates to connection to trunk sanitary chargeswthroughout the Ater systems and trunk storm sewer systems;and, sewer systems, war WHEREAS, the City Council determines it to be in the best interest of the residents and City of Oak Park Heights that such fees be periodically renewed and adjusted to take into account cost of construction and City e replacement and systems, cost of maintenance operation and other expenses that the such systems, xpects to incur with regard to the maintenance of NOW,THEREFORE,BE IT RESOLVED,by the City Council for the City of Oak Park Heights that effective January 1, 2002 city connection charges to be throughout the City of Oak Park Heights for applied properties develg utilities shall be as follows: p oping or connecting to municipal SEP-28-2005 14:54 OAK PARK HEIGHTS CITY P.09/09 1. Sanitary sewer Connection charge,$2,660.00 per acre. 2. Municipal water connection charge, $4,630.00 per acre. 3. Storm sewer connection charge,$5,860.00 per acre. BE IT FURTHER RESOLVED,that as to the computation of acreage as it affects each development or connection related to the collection of these fees, computations shall suchall all be made Hiro ugh the office of the City Engineer with all such fees B eafter collected through the office of the City Administrator. No connection shall be made to any municipal utility system until such time as the connection fees as calculated and determined by the office of the City Engineer have been collected. Passed by the City Council for the City of Oak Park December 2001. �;`� � this 11 m day (fry =yor ATTEST: Kimberly : „per Acting City Administrator 2 TflTAI P MP ECKBERG LAMMERS ►Ai ATTORNEYS AT LAW 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 (651) 439-2878 Fax(651)439-2923 Direct Dial: (651)351-2118 www.eckberglammers.com mvierling@eckberglammers.com James Lammers Robert Briggs January 4, 2006 Mark Vierling Thomas Weidner Susan Olson David Snyder Mr. Eric Johnson Sean Stokes City Administrator City of Oak Park Heights Laura Domagala 14168 Oak Park Boulevard North Joshua Christensen Oak Park Heights, MN 55082 Re: Connection Charges for 5710 Memorial Avenue Dear Eric: Enclosed herewith for your review please find copy of letter dated December 28,2005 received from Trevor S. Oliver of Kelly&Fawcett. If you have any questions regarding this correspondence, please do not hesitate to contact me directly. Very truly yours, Mark J. Vierling MJVsdb Enclosure ECKBERG, LAMMERS, BRIGGS, WOLFF 8 VIERLING, PLLP Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation Kelly & Fawcett, P.A. ATTORNEYS AT LAW OF COUNSEL: Trevor S. Oliver McGUIGAN&HOLLY,PLC toliver@kellyandfawcett.com December 28, 2005 Mark J. Vierling Eckberg, Lammers, Briggs, Wolff&Vierling, P.L.L.P. C 0 PY 1809 Northwestern Ave., Suite 110 Stillwater, MN 55082 RE: Connection Charges for 5710 Memorial Avenue, Oak Park Heights Dear Mr. Vierling: We received the letter and materials you sent on September 29. After taking some time to review your arguments and consult with our client, we continue to respectfully disagree on the total amount of the charges. Public Storage wants to resolve this matter, and offers to pay a fair and equitable charge, but we need to have further discussion to arrive at that amount. As it stands, we are not yet convinced that the City can collect these charges from our client. Our central problem remains that the charges based upon square footage for water and sanitary sewer are completely out of whack with any projected use or economic benefit to the storage facility. We are in agreement that square footage is appropriate for storm sewer services, and no longer dispute these charges. However, the use of sanitary sewer is limited to the one small apartment for the caretaker on the facility. Additionally, while the facility may be connected to the water system for the sprinkler system, it does not appear that it is using any water for the apartment or landscaping; to our knowledge, Public Storage has not received any water bills from Oak Park Heights. If the City has any usage data for this property, that may be very useful in trying to reach a resolution based upon the fair share of the installation for this property. We presume that the City is in the process of determining a new method of calculating sanitary sewer chargesthat will comply with the amended statute, and we may be interested in arriving at a new number based upon that method of calculation. Accordingly, we maintain our position that the acreage-based charges for sanitary sewer and water are unreasonable as applied to the Public Storage facility. While the new statutory prohibition of square footage as a basis for sanitary sewer charges does not take effect until January 1, we believe the Legislature's conclusion that square footage is impermissible would be persuasive in any challenge of the charges against Public Storage. Additionally, we maintain that any charge that far exceeds the economic benefit to the property is unconstitutional. 444 CEDAR STREET,SUITE 2350 SAINT PAUL,MINNESOTA 55101 TELEPHONE 651-224-3781 FACSIMILE 651-223-8019 www.kellyandfawcett.com y December 21, 2005 Letter to Mark Vierling Re: Connection charges for 5710 Memorial Avenue, Oak Park Heights Page 2 of 2 As we assess our client's case further, we also have more questions about the City's ability to collect the charge from our client. Public Storage was not the owner of the property when the City held hearings and imposed a charge. Also, presuming that there was a 1998 resolution authorizing charges similar to the 2001-2003 resolutions you provided, it appears that collection should have occurred before connection. The City also had another chance to collect when Secure Mini Storage applied for a permit to expand its operations in 1999, but failed to do so. We note that the resolutions provided do not provide or covenant for certification of these charges to the County Auditor, which would appear to be the statutorily authorized method of collection. It would appear that laches, lack of authorization, and other defenses would be available to our clients in any potential collection action taken by the City. We note your characterization of the City's current demand as an "offer and accommodation." We find no basis in Minnesota law for the City to charge anything other than the rates in effect at the time the connections were performed. We will naturally challenge any attempt to collect more than the amount at which the City valued the work when it was done. In closing, our clients remain willing to pay a fair and equitable charge to resolve the matter. We originally proposed a meeting, and we remain interested in having that meeting at a mutually agreeable time. Please contact us at your convenience to discuss dates and times. Respectfully yours, KELLY& FAWCETT,P.A. rev : •liver Patrick J. Kelly TSO/rjo Cc: Mr. Klichan, Public Storage Ms. Choudhry, Public Storage ECKBERCI LAMMERS.11a AT TORN EY S AT LAW r„�,,.- 1809 Northwestern Avenue, Suite 110 Writer's Direct Dial: Stillwater, Minnesota 55082 (651)351-2118 (651)439-2878 Fax(651) 439-2923 Writer's E-mail: www.eckberglammers.com mvierling@eckberglammers.com James Lammers • May 30, 2006 Robert Briggs Mark Vierling Thomas Weidner Susan Olson Mr. Trevor S. Oliver David Snyder Kelly&Fawcett,P.A. QStokes es 444 Cedar Street, Suite 2350 Laura Sean tok s St. Paul, MN 55101 Joshua Christensen Timothy Brausen Re: Connection Charges for 5710 Memorial, Oak Park Heights Dear Mr. Oliver: Since my correspondence to you of February 22, I have not heard back from you as to your client's position. As you will recall, we had previously granted you an extension of time in which to place an answer to the City's complaint brought in this matter and I was assuming that I would have some type of response to you following the February 22 correspondence, none of which has been received. In the meantime, you should be informed and perhaps communicate to your client that the City has adopted a new rate schedule as required by the statute effective for 2006. Your client's property calculation on these charges,of course,is justified and will remain under the old criteria set forth by the Council from its previous date,but if your client would like to have application to the new rates,you are certainly free to do so provided, of course,that new rates for all three categories would be collected at the.same time. Having recomputed the charges relative to your client's property under the new City rates,sanitary sewer would generate a charge of$17,017.00,municipal water a charge of$88,433.18 and storm sewer a charge of$13,795.60, or a total of$119,246.40. I will calendar this matter ahead 10 days from the date of this letter,by which time I will expect to have received from you either a communication acknowledging the charges and indicating an agreement to make payment to the City of Oak Park Heights or your client's • - o the S ons and Complaint that have already been served. You : very trul Ma Vierling MJV/sdb cc: Eric Johnson, City Administrator ECKBERG, LAMMERS, BRIGGS, WOLFF &I VIERLING, ELLE Family Law/ Divorce • Business and Commercial Law n Criminal Law • Personal Injury/Wrongful Death Estate Planning/Probate • Real Estate • Land Use Law • Mediation g, Municipal Law • Civil Litigation