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Home My WebLink About1999-02-23 Attorney Gehan Ltr to CA & Attorney FlynnE12/23/19S9 13:34 612 22? 0758 02/23/99 13:30 612 227 0758 4 ECKBERG LAW LAW OFFICES Collins, Buckley, Sauntry & Haugh, PUP West 1103 First National Bank Building 332 Minnesota Street Saint Paul, Minnesota 55101-1379 Talephone: (6511 227-0611 Fax: (51) 227.1)755 February 23, 1999 Mr. Mark J. Vierling VIA FAX #455 1 - 43 9 2.3 & MAIL Eckberg„ Lammers, Briggs, Wolff & Vieding 1835 Northwestern Avenue Stillwater, MN 55082 Mr. Patrick 1 Flynn — VIA FAX #651-225-0600 Knutson, Flynn, Deans & Olsen 1155 Centre Point Drive, Suite 10 Mendota Heights MN 55120 Re: Petition for Peremptory Writ of Mandamus re Stillwater High School Ropes Course Our File No 11018-1 Gentlemen: useiamE.Heugh.Jr. * Michael J. SeurAry Mark W. Genet ti Pta* Tlerrway T*ThOrMid j, GefTTIVCheid * ionn R. Schulz *Thomas R. O'Cnnell 6 Dan Otonniell etvzstrta L SZrOtfnef $rahJ. Batzh TbCrria5 E. WICENStrern Matthew A. Sawn Michael O. Wore) Of COurciai Tr* Theodore J. Coclins Retired Eugene D. Buckley Enclosed herewith by fax and mail please find Petition for Peremptory Writ of Mandamus, Memorandum of Law in Support of Petition for Peremptory Writ of Istiandamus, Affidavit of Thomas E. IvicEllistrem and Peremptory Writ in the above-captioned matter . MAR( w &a-IAN MWG:mj Enclosures cc: Greg and Cathy Kunz Tom and Lisa Edison AVville0 .11 Wt/;O' m& CtlAleit;et. COrtfied b trva CV1 Looauor $04c1lori of ine Minna 51ate i Cdo,ered b it,. Nat■orub Goard 61 Mal AdvtiC6Cv 2: a cytimal Scocast. c", Ccritoc 1 re M Ctet9 50,ci 31 Acecconlincy . kAgn. rinanco, NO.220 P01 02/23/99 12:22 612 227 0758 4 ECKEER i LflL J STATE OF MINNESOTA COUNTY OF WASHINGTON TENTH JUDTCYAI, I3IS'i'R.ICT Greg and Cathy Kunz, and Torn and Lisa Edison, Petitioners. TO: HONORABLE DISTRICT COURT FOR WASHINGTON CO Your petition s , Gre g and Cathy Kunz, and Tom and Lisa Edison, respectfully represent: 1. That we are residents of the Blackwood Development neighborhood, immediately south of Stillwater NO School. 2. That in the tatter part of this past summer, 1995, we became aware that construction of an enormous structure known the "Ropes Course" had begun in the "buffer zone" between the . athletic fields on the south side of Stillwater High School, and our neighborhood- The ropes course consists of several structures, the tallest of which extends to a height of 45 feet in the air. (A e tower is attached to this petition as Exhibit X) The closest attic photograph of the tallest structur P various structures which constitute the rop es course is approximately 40 to 60 feet from our property. . The tallest structure tower part of the rop es course is approximately 1.50 feet from our proper lines. The ropes course is both monstrous and unsightly. 3. No notice was given to us or any other neighborhood areas adjacent to this structure. r o u s representatives of the school district, including That we immediately objected to van Superintendent Kathleen provided Macy, and we rovided objections to the construction of this structure at a school board meeting thereafter. NO.217 P02 C DISTRICT COURT PETITION FOR PEREMPTORY WRIT OF AMU 02/23/99 12:22 512 227 0758 4 ECKBERG LAW N .217 P03 4. That attached as Exhibit 13 is a true and correct copy of a letter dated September 21, 1998 to Melva Radtke, Chair of the Stillwater Area School Board, setting forth the concerns of the property owners adjacent to the ropes course. This letter sets forth the agreement previously reached in 1991 between the school and neighbors with respect to the maintenance ofthe "buffer zone," and the commitment ofthe school to refrain from any construction or other significant activity in this area. This letter accurately sets forth our safety concerns associated with the ropes course; it pointed out that there were superior alternative sites available on the school property for the course; and, may, sets forth the neighborhood group's offer to pay some or all of the relocation expenses for the ropes course. 5. That we were ultimately advised by the school board that despite our objections and core, the structure would remain standing. Attached hereto as Exhibit C is a true and correct cop y of a letter dated September 24, 1998 from attorney Patrick Flynn, representing Independent School District No. 834, to our attorneys. We were led to believe, through Superintendent Macy, that the school board had received assurances from the City of Oak Park Heights that the ropes course was a conforming structure under the zoning laws. 6_ . Upon further investigation, we deterniined that the ropes course was constructed 7 without any conditional use permit as required under the oak Park Heights zoning laws, and was accordingly an illegal and non - conforming structure as defined by the Oak Park Heights zoning ordinances_ Through our attorneys, we advised counsel for the City of Oak Park Heights that the ropes course was an illegal and non conforming structure. 7. Attached hereto as Exhibit D is a true and correct copy of a letter dated November 19, 1 998 from our attorney to Thomas rvielena, City Administrator, for the city of Oak Park 2 02/23/99 12:22 612 227 0758 -` ECKBERG LAW Heights, and a letter dated December 14, 1998 from our attorney to the Oak Park Heights City P ropes course; and advising the council of the es� action be taken with respect to the rop } mandatory . , 4 ropes course pursuant to the applicable requiring the dismantling of the p p order. 8. . and correct copy from counsel Attached hereto as Exhibit � is a true � p� �f the response � that the existing ropes course was a non-conforming f� r the city of � Park Heights, acknowledging structure, and that the school district would need to go through the application process for a conditional use permit, However, this otherw 3e take down the illegal structure . is a p exuding application for the structure, letter refuses to order the school district to remove or The city s position osition as stated is concluding that since there therefore, the removal order will not be issued by the city .ministr'ator. ' and correct f`rel+`ant porti� of the City � . Attached hereto as Exhibit F is a true a copy o ` forth the mandatory duty o�' the zoning a�dr�istrator to of yak dark Heights Zoning Ordinance setting fo 8 order removal of the illegal, non - conforming structure • dear and non-discretionary pursuant to �o�: 10. The duty of the zoning administrator is 7 ' is refuses to order the illegal, mova1 of the illeg al, . Nonetheless, the City of �a� Park Heights . ,� made no other application therefor, pray that a WHEREFORE, your Petitioners, who have p 't of mandamus issue under Minn, Stat 586 .44 commanding the said Oak Park peremptory '� 3 NO.217 PO4 02/23/99 12:22 612 22? 0758 ECKBERG LAW NO.217 PO5 Heights Zoning Administrator, to immediately order the discontinuance/removal of Ow ropes course_ Dated: STATE OF MINNESOTA ) ) ss. COUNTY OF WASHINGTO1 Tr01 J. 11 Obtr NOTAFtv PUALic.miNNESOT A WA .SH tiqC,TON C.CoJNYV coviveS.sto7,; XP'RES JAN 31. Subscribed and sworn to before me this day of 6 1999. COLLINS, BUCXLEY, SAUNTRY & HAUGH, P.L.L.P. 4 MARK W. G , #33984 THOMAS E. c'ELLISTREM, Jr23042X Attorneys for Petitioners w1100 First National Bank nig. St. Paul Minnesota 55101 Telephone: 651/227.0611 YEanQN Greg and Cathy Kunz, being first duly morn on oath, deposes and says: That we are two of the Petitioners in the above captioned petition for peremptory writ of mandamus; that we have read the hereto attached Petition and the same is true and correct of my own knowledge except those things therein stated on information and b f anto those thin s, 1 be eve the same to be true. 02/23/99 12.22 612 22? 0758 4 ECKL ERG LAW NO a 21? P06 STATE OF MINNESOTA ) ) ss. COUNTY OF WASI-IINGTO4 Tom and Lisa Edison, being first duly sworn on oath, deposes and says: That we are two ofthe Petitioners in the above captioned petition for peremptory writ of mandamus; that we have read the hereto attached Petition and the same is true and correct of my own knowledge except those things therein stated on information and belief and as to those things, I believe the same to be tie. V, ck t J. ja a NOTARY PUGLIC- ltNNESOTA WA51-fNCT[ N COUNTY Subscribed and sworn to before me this - day of t L A . ,, 1999. YERIFJCATION 5 02/23/99 12:22 612 22? n758 -> ECKBERG LAW EXHIBIT NO ti 21'7 i;J? 1 I 1 1 02/23/99 (, rW 3F1-10ES �allins, Buckley, Sauntry & Haugh, PULP West 1100 Est National Bank Building 332 Minnesota Street Saint Pad, Minnesota 55101 -1379 Te;ephcre: 1) 2Z7 Fax (SSi) 227-0758 September 21, 1998 Ms. Melva Radtke, Chair Stillwater Area School Board Stillwater Area Public Schools 1875 South Greeley Street St liwater, MN 55082 Re: Stillwater High School Ropes Course Our File No. 11018 -1 Dear Ms. Radtke: Please be advised that I represent a group of property owners adjacent to Stillwater High School in connection with their concerns with the location of the Ropes Course. Various property owners have r eip eatedl objected to the construction of the Ropes Course in its present location Y o � � (constructed in the "buffer zone between the school and the property owners) as a violation of an agreement reached between the school and adjacent property owners in 1991 The agreement reached in 1991 between Ken Peterson, Deputy Superintendent of the school, Paul Bishoff, Diane McGann, David Reeves, Gregory Dietrich, and others, was clear and unambiguous. The neighbors were at this time contemplating raking ] egal action against the school to create a reasonable 'buffer zone" between the school and their neighborhood. During this meeting, Ken Peter asserted that the school would agree to the "buffer zone" (1) which would be maintained thereafter by Paul Bishoff without any interference or disturbance from the school, and (2) that the school would prohibit any students or other children from accessing the "buffer zone" such that students would be prevented from physically entering in the 'buffer zone. 1 12:22 612 227 0758 -? ECKBERG LAW N0.217 P0B T Gist T:;as Scrcia;i�, C; '3tic D _..; lore etc Assoc3EOn. c &ni' ed LY the N , . - -� OeVOSh, CPA C4;141)0 by •ha in Pinsnto. Valium E, Haugh. * Michse4 J Saurtiri Ma* WGi n Peck TTlemcy T*ThrynasJ. Gerretscnad * John R. Schulz *Thcwnas R. Qr,..oroefi o Dan O'Connetg Crytstm L &roamer Swan J Batzti Thomas E. McElhavern Of Cis * Theixtte J. CJiina Recited E er D. Puck3oy In reliance upon these promises, Paul Bishoff and others made si�,nificant investments in the area. Paul Bishoff purchased and planted, at his own expense, several hundred small trees in the "buffer zone: and has spent countless hours maintaining the area. Mr. Bishoff also made covenants with purchasers of homes in his development that the "buffer zone' would be maintained in a pristine condition and that the ro erty owners would experience quiet enjoyment of this wildlife area. In P P 02/23/99 2.22 612 227 0758 4 EC BERG LAW NO.217 P09 Collins, Buckley, Sauntry & Haugh, PUP Ms. Melva Radtke, Chair Page 2 September 21, 1998 the year that have passed since this agreement reached in 1991, the 1. buffer zone" had becor .e increasingly attractive to wild animals and birds. Sever weeks ago, the school, without notification to Paul Bishoff or any adjacent property owners, began construcion of the Ropes Course. The committee which decided upon the Ropes Course location concedes it failed to provide proper notification to the community. The Ropes Course, which was bat with federal grant monies, has been constructed in the "buffer zone," in clear violation of the school's 1991 agreement. Not only has the Ropes Course been constructed in violation of the 1991 agreement, the course is fraught with, safety problems. The construction of the Ropes Course in the 'buffer zone" makes no sense. The structure is built upon a downward grade which culminates in a large pond. The Ropes Course is also not readily visible from the school because of its placement in this bowl - shaped area and because of the numerous trees planted in this area. The Ropes Course is a classic 'attractive nuisance" likely to be accessed by neighborhood children and students during evening hours and weekends. We are all aware of the propensity of some high school students (Ind children in all neighborhoods) to find a place to "hang out" in convenient places unobserved by adults. The Oak Park Heights Police Deparrment has previously indicated that the Ropes Course, location is problematic because there is no clear visibility of the Ropes Course from the police squad car patrol area. I attended a meeting on August 26, 1998, between School Superintendent Kathleen Macy, Paul Bishoff and some of the affected property owners. Dr. Macy was asked why alternative sites were not selected for the Ropes Course: the most obvious site for the Ropes Course is the section of property east of the school, on flat ground, and clear visibility from the school and street. Dr. Macy informed those in attendance that there were three reasons why this first site was not selected: increased time for students walking from the school to this site, damage to the environmental learning center area, and safety concerns associated with this site. The discussion from the property owners, both ar this meeting and at others, was that the articulated reasons have no foundation; and in fact, this site is a far superior site to that in the "buffer zone." Dr. Macy stated during this meeting that she was nor interested in discussing the decision of the site se]ection committee. Those individuals meeting with Dr. Macy, including myself, informed her that this entire situation can still have a win -wit ending. The adjacent property owners have indicated a willingness to pay some or all of the relocation expense for the Ropes Course (current estimate for moving the Ropes Course is approximately $5,000.00). This offer by the neighborhood group reflects a continued willingness to be "good neighbors" with Srillwater High School+ 02/23/99 12:22 612 227 0758 58 - ECKBERG LAW NO.217 P10 Collins, Buckley, Sauntry & Haugh, P..-P Ms. Melva Radtke, Chair Page 3 September 21, 1998 As you know, vdjacent property owners and Mr. Bishoff met with the School Board on September 10, 1998, to further discuss this issue, and to find an alternative proposal for the Ropes Course. The School Board refused to take any action with respect to this matter. l understand that the position of the School Board and Dr. Macy is that the adjacent property owners and Mr. Bishoff have no right to enforce the agreement reached with the school in 1991 because there is no written document which memorializes the agreement. As you may know, Minnesota law does not require a writing to enforce a promise such as that made in this case. Minnesota law recognizes the doctrines of promissory estoppel and equitable estoppel in the contexts of verbal promises and representations, My clients have made an enormous effort trying to convince you that neighboring property owners, taxpayers and voters in the area, stronger oppose the current location of the Ropes Course. This opposition is based upon the school's violation of its promise and upon fundanien.tai safety concerns. You have, l believe, a copy of the petition executed by many neighbors of Stillwater High School. Because the School Board and School Superintendent have refused to take any action in this matter, my clients have no choice but to take this matter further. Please contact me to discuss whether the panes can resolve this matter outside of the litigation arena. Failing that, my clients will proceed with litigation. Very try yocis, THOIVIAS E. McELLISTREM `I EM anj cc: +L atxick T. Tierney, Esq, John E3anniga.n, Es q_ iii Greg Kurt 02/23/99 12:22 612 227 0758 4 ECKBERG LAW 1 c11 JAN S E KNQTSON JOSENi 1 FLYNN PA O), w' F1EILANi) (193i-1992) THOMAS S. DEANS PATRICK J. FLYNN GLORIA BLAINE OLDEN STEPHEN M x:14UTSON MIC HAELJ. FLVNN MAfttt O. SKINNED Mr. Thom E. McEllistrem Collins, Buckley, Sauntry & Haugh West 1100 First National Bank Building 332 Mlnnesota Street St Paul, MN 55101 RE: Stillwater High School Ropes Course Your File - No. 110184 Dear Imo McEllistrem Ki. JTSON, FLYNN, DEANS & OLiN PROFESSIONAL ASSOCIATION MIN N E-SOTA WORLD TRADE CENTER 30 SEVENTH STREET EAST, SUITE 1900 5T- PAUL, MINNESOTA 55101-400 TILEPI -IONS. (612) 222 -2811 FAX: (612) 225 -0600 September 4, 1998 We represent Independent School District No, 834, Stillwater, Minnesota, with respect to issues raised by your office in regard to the Stillwater High School Ropes Course, We assume that you have reeved a copy of a letter dated September 18, 1 998 from the Board Chair Melva Radtke to Mr. Gregory Kurz. In the event that you do not have a copy of said letter, a copy is being attached for your review. We have discussed this matter at length with School District officials, We note that the School District has had a number of meetings with your clients both at the school board and administrative levels. The School District has listened to and has addressed a number of your clients' concerns, including the erection of a fence for safety reasons, as well as additional trees which will provide a further buffer between the ropes course and the residences of your clients. Aside from the fencin the ropes course is substantially complete, The School District has considered the concerns of your clients, The School District's final position is clearly set forth in Ms. Radtke's lever dated September 18, 1998. Please address any Further correspondence regarding this issue to the undersigned. l'r 'Wmcb cc: Dr. Kathleen Macy Very truly yours, I 0, MAI:1GfE R. WALLNER SUSAN E TORGLINON JOHN J. O i\)r N1.LI. GREGORY S. MADDEN e1 lArti-ES Ir. LUNG MICHELLE D. gENNFY TI MOT] lV R. l'R LMATIER piiNIELI. S. BECK:ER )LNNr1't; K. ANDERSON t-IA 1, 02/23/99 LAW bFFtCEs 12 :22 512 227 0758 4 ECK EREI LPUJ N .217 212 Collins, Buckley, Sauntry & Haugh..o Wei 1100 First National Bank HuiIding 332 Minnesota Street Sant Pauli Minnesota 550-1379 TehaOhCr ' (651) 227-O611 Fax. (651) 227 -C7S8 November 19, 1998 Mr. Tom Me lena City ,. . tI`ator Oak Park Heights P. o. Box 2008 14168 North 57th Street Oak Park Heights, MN 55082 Re: Stillwata High School Ropes Course Our File No 110184 Wiliam E. E -laugh, Jf. * Mites# J. Saute lark W Gwen �aRr;ek T Tierney MOW J. Germscheid * JohnR.Sch iz °Thomas PI. cycnn II o Dan O rnall CM the L SirtW SarEh J. Batzli pThrinaz LAC Of Countel It* bird J. C irx Resired Eugene D !Buckley Dear Mr, elena: Please be advised that I a represent group of property owners adjacent to Stillwater High Schoof. P �' P 1 understand that you recently spoke with Greg Kunz, one of the adjacent property owners, regarding the Ropes Course constructed in the "bier zone" between the high school and the n ' hborhood. I understand that you advised Mr. Kunz that the high school was "within its its" when it installed and constructed the Ropes Course this fall. The Purp ose of this letter is to request that the Oak Park Heights City Zoning Administrator inspect the Ropes Course structure on the high school property to determine its compl ante with the ordnance, According to oak Park Heights City Or dinance Sec. 401.07.B, the City Zoning Administrator s all take appropriate action against a violator. The City Zoning A rrator, upon request, �� shall ' ect buildings, structures and uses of property within the city to detenuine their compliance with the ordinance. The City Zoning ` t - ator is required to notify in writing any person responsible for violating P any provision of the ordinance, including the nature of the violation and ordering the action necessary to correct it The City Zoning Administrator shad further order the discontinuance of the :illegal use of land, building or structures, and order the removal of illegal buildings, strutrares, additions or alreration.s. As P are ou probably aware, the high school was issued a conditional use permit in December 1.991, This Y permit it ante permission ermission for the construction and use of a high school facility in an "o" zonin g district. The permit provides that the "property shall be used for the construction of a senior high school with related facilities as are _currently described and shown in site plans and drawings attached to and incorporated with the developers agreement to be executed between the developer and city prior to the issuance of the conditional use permit." 02/23/99 12:22 612 227 0758 - ECKBEF.3 LAW NO.217 P13 Collins, Buckley, Sauntry & Haugh, pup City Administrator Page 2 November 19, 1998 The conditional use permit further provides that "construction of any facilities, buildings, or structures not spedfically shown within the existing site plan drawings shall of be allowed except upon application to mend the conditional use permits then obviously, the school has not applied to amend the conditional use permit for the Ropes Course. The Ropes Course is a "structure" under the Oak Park Heights zoning ordinance. A "structure" ('public structure's is defined as an edifice or building of any kind, or any piece of work artticially built upon or composed of parts joined together in some definite manner which is owned or rented and operated by a federal, state or local government agency." Under a plain interpretation of the word "structure,' a series of wooden poles anchored into the ground, and more than 40 feet tall in some cases, joined together by ropes, netting and ladders, clearly satisfies the definition of "structure." The structure is obviously "artificially" built Minnesota case law establishes that where tall poles and connecting wires are constructed on property, such object falls within the definition of the term "st .tcture +" I ani in possession of a letter dated October 21, 1998, from you to Kathleen Macy, Superintendent of Schools, advising her that no permit to amend the conditional use permit was required because 'the Ropes Course is clearly within the definition of educational activities, it is not a building, and it is located in the same area as other physical education related activities" My review of the conditional use pest and the Oak Park Heights City Ordinance does not support your opinion. To the contrary, the Ropes Course is clearly a structure which requires application for amendment to the conditional use permit, In the event that you refuse to take any action in response to the requests set forth in this letter, my clients are requesting that you forward this letter to the Oak Park Heights City Council for action on this matter. Please advise me whether the Oak Park Heights City Council requires a direct request for reef from the property owners. If so, 1 will forward a letter directly to the City Council. 1 look forward to hearing from you soon. Very truly yours, THOMAS E. McELLISTREM cc; Greg and Cathy Kunz 02/23/9 12 :22 612 227 0758 4 ECKBERG LAW NL.217 D14 LAN OKFiCES Collins, Buckley, Sauntry & HaughLP West 1100 First National Bank Building 332 Minnesota Street Saint Paul, Minnesota 55101-1379 Telephoie 1) a Fax OM -1758 December 14, 1998 Oak Park Heights City Council pa O. Sox 2008 14168 North 57th Street Oak Park Heights, MN 55082 Re: Stillwater High School Ropes Course Our File No. 110184 Dear City Council: Please be advised that 1 represent a group of property owners adjacent to Stillwater High School. Enclosed with this letter please find my November 19, 1998 letter to Oak Park Heights City Administrator, Tom Melena, requesting that he take action as set forth in that letter regarding the ropes course constructed in the "buffer zone" between the high school and the neighborhood. 1 have not received any response from Mr, Melena. Accordingly, my clients request that the Oak Park Heights City Council act in accordance with our previous request to Mr, Melenae We believe the law is clear that the school district must apply to amend the conditional use permit issued to Independent School District #834 for the ropes course. The city zoning administrator is required to inspect the ropes course structure, notify the school disrrict of the violation, and order the dismantling or removal of the illegal struaure. In the event that the school district wishes to amend its conditional use permit, the Oak Park Heights Ordinance clearly provides for the school to apply for an amended conditional use permit. Following application for The amended conditional use permit, proof of ownership or authorization, notice, a public hearing, and a technical report, the city council and the planning commission shall then consider the possible adverse effects of the proposed amendment. City of Oak Park Heights Ordinance, Sec, 401.03__ Please advise me what action the Ciry of Oak Park Heights will take in response to my clients' request. In the event the city council refuses to take any action with respect to my clients' request, we will appeal this matter to the City of Oak Park Heights' Board of Adjustments and Appeals pursuant to Oak Park Heights Ordinance, Sec. 401.04A, If I do not receive a response from you within 30 days, I will assume you have rejected this request, and we will proceed with an appeal to the Board of Adjustments and Appeals. Gmi Trial SecLDI st, Cefitl c ay Cen►hed by the rya'. EXHIBIT 23! A1; lakt. W4I4at% E Haugh. Jr. * NitClual J. Saurnry+ Mark W Gehan 17 Patrick T. rrray t*Thcmas J. Gerretsehaid * .fin P. Sctulit d Thcrre5 R. O'Connell 0 Oran o'Gcxveg On1rye L SSlrcerner Sarah.) Bali i."Thor E McEniztiern Of mensal x� * TroaodOet Gibs Fore Eugene D. Buckley 02/23/99 12:22 612 227 0758 - ECKBERG LAW NO.217 E15 Collins, Buckley Sauntry & Haugh, PUP Oak Park Heights City Council Page 2 December 14, 1 Thank you in advance for your consideration of this request. Very truly yours, THOMAS E. WicELLISTREM TEM:mj Enclosure Greg and Cathy Kunz 02/23/99 12:22 JaDOa F Loram R0Lori G. 13,1 14,1, J. Vierling. Gt88Ory G CAllcr+ � ornAS J. * r- e ;Jaen swidD 11 018ono DAvIcl 1 :. S iy,,ler Urota PiIet1 h Mr. Thomas E. McEl l istrem Collins, Buckley, Sauntry le Haugh, P• L a L r P . W-1100 First National Bank Bldg. 332 Minnesota Streit Stn Paul, Minnesota 55101 Dear Mr. McEllistrem'► 1 am in receipt of your correspondence of January 19, 1999. The City of . Oak Park Heights, through its office of zoning and through the office of the City Administrator, has directed 8chcol District #834 to apply for an amended Conditional Use Permit. As you are aware, the structure would be permitted under the conditional use provisions of the Code. The City Administrator will not at thi nor shall 1 instruct him to order a removal of the as long as a public hearing process is pending on thi cc: Thomas Melena, City Md.mIni trator 612 227 0758 4 ECKBERG LAS LAW OPilicE , o Eo 1 �' 0 1 ` & V 1. e ' . . IL . Lammers, brigs. F.L.L.P. 183'5 Nr c r t b w e s l e r ), A v c n u c Stillwater, Minnesota 55082 (6 51) 439 -2878 rAX (651) 430-2923 Direct Dial Na.: (651) 351 -2118 Re: Stillwater High School January 22, 1999 Mark J. Vierl .rig *QuolAricK1 NeuitAl 14.0Jtator iteQualifiaJ Noafral r \rbalraior RIS4I E Spc0 11. .4I o4 Nar tral Mar]i.#ior JAt 2 5 iS3 NO.217 P1E Lyle J Eo Cbcrg P40[ A. Wolf (1944- -1006) „„, r .r Cone i t iona l Use Permit 02/23/99 12:22 512 227 0758 4 Ef. k BEP6 LAW Na .217 P17 401.07. ADMINISTRATION AND ENFORCEMENT Administrating Officer. This Ordinance shalt be administered by the City's designated representative, who shall be appointed by the City Council and referred to as the Zoning Administrator. .07 Duties_ of the. Administrative o_ffic r....The Zoning Administrator shall enforce this QrdinarC$ through the proper legal channels and in addition therefore and in g p furtherance of said authority shall: �. Examine all building permit applications to determine their compliance with this Ordinance, and pp rove the same when such compliance is established. 2. Issue certificates of occupancy for any use, structure, or building after determinations of above. a Maintain permanent and current records of this Ordinance, including but not limited � to all ma p s, amendments, conditional uses, variances, P U D permits, non conforming uses, notices of violations and enforcement orders appeals and applications therefor. 4. Institute u in the name of the Gity off Oak Park Heights any approprate actions or . p � _ 3ceedin s against a violator as provided by law. Periodically or upon request, inspect buildings, structures and uses of property City within the cif determine their compliance with this Ordinance- With regard to • performance standards, the Zoning Administrator may employ the services of p experts a erts to determine such compliance. The cost of such services shall b e paid by property the owner if a violation of this Ordinance is established; otherwise such costs shall be paid by the City. 6. Notify y in writing any responsible for violating any provision of this y res p C ordinance indicating the nature of the violation and ordering the action necessary A'°1 1 to correct it. �. discontinunce of the ills al use of land, buildings or structures; order the �. Qrder g removal of g illegal l s g a l bu i ld i n s r structures, additions or alterations; order disccntinuances of illegal construction in progress; and take any other action necessary to insure compliance with or to prevent violation of this Ordinance. tA/- 0)-Sr j")1 02/23/99 12:22 612 227 0758 4 ECKBERG LAW ,asusaiNigh 6. Upon request, provide information relative to a property to any person having a proprietary or tenancy interest in that property. 072 NO.217 P18 02/23/99 12:22 612 227 0759 ECKBERG LAW NO.217 P19 STATE OF MINNESOTA DISTRICT COURT Cowry OF WASHINGTON TENTH JUDICIAL DISTRICT Greg and Cathy Kunz, and Tom and AFFIDAVIT OF THOMAS E. McELLISTREM Lisa Edison, STATE OF MINNESOTA ) ) ss COUNTY OF RAMSEY ) THOMAS E. McELLISTREM, being first duly sworn on oath, deposes and states as follows: 1, That attached hereto as Exhibit A is a true and correct copy oflOnn. Op, Atty. Gen. 477b-34. FURTHER THAN THIS YOUR AFFIANT SAITH NOT. Subscribed and sww to before me this 2 3 ay of T\--kko.A.1 , 1999. 4- Notary Public 1 : . )N 7 4%! ANOKA COUNTY evwsv...YY Cornrri f n nick a. Petitioners. THOMAS E. McELLISTREM 02/23/99 12:22 612 227 0758 4 ECKEERG LAW NO.217 P20 !Zinn. Op, Air, Gzn- 477B-34 477h-3.4 (Cr_ rer. to 59a - grp. # 4) July 29, 1991 CITY ORD NANCES: RETROACTIVE ENFORCEMENT: Whether city may validly amend zoning ordinance retroactively to render illegal land uses legal can only be determined in light of particular facts and dire es. City may not fail or refuse to enforce requirements of zoning ordinance by ignoring known illegal land =zip r ■ ( ■ ethe city could agree to settlement of litigation that would allow illegal land toe tO cont irate proses hypothetical question not answered here. Cries A. Johnson Hugo City Attorney P.O. Box 15 Hugo, MN 55038 Dear Mr. Johnson: *1130 Office of the Attorney General She of Minnesota " ZONING: AMENDMENT: In your letter to Attorney General Iuberi Fi . Humphrey, III, you submit substantially the following: FACTS The City of Hugo has enacted a zoning ordinance which establishes zoning districts and defines land uses that are xathorized in each of the zoning districts. including land use that are authorized only after iaauance of specie -use permits. The ordinance prohibits land uses which are not in cornpti.:..:.e with these provisions and sates that a violation thereof is a misdemeanor. Several issues have arisen as to the legality of certain actions the city might take in dealing with legal land uses under the ordinance. You ask substantaly the following questions: QUESTION ONE If illegal land uses, within the framework and requirements of the zones ordinance, are found to eat, may the city amend the ordinance retroactively to render such uses legal? Copyright (c) West Group 1998 OPINION Page 1 Your question cannot be answered categorical,ly. Generally speaking, an caherwise valid excise of municipal legislative power to aid a zoning ordina.nce will not be rendered invalid solely by virtue of the fact that it may operate retroactively. However, the validity of any such enactment, as an exercise of legislative power, can only be determined in light of the particular its and circumstances. The general rule with respect to retroactive ordinances is set forth in 6 McQuiilin Municipal Corporations § 20.70 (3rd ed_ 198) whit States in part: The enactment of retrospective municipal legislation may be constitutionally miniited, but in the absence of such prohibition, there is to rule against retroactive municipal legislation unless it interferes with coact or vested rights. [Footnotes omitted] . Absent any apparent constitutional prohibition against retroactive municipal legislation, as sruch, and excluding any special situations involving claimed con actual rights, the enly question presented by the retroactivity of an ordinance amendment of the kind proposed here is whether it would interfere with so.- called vested rights . " (Fill) O epeading upon the scope and application of its specific terms and provisions , such an amendment could, of course, amount to a rezoning or reclassific3ticu of particular property under the zoning ordinance- (FN2) In any event, there is no vested right in a zoning classification. See Property Res. and Dear. Co. v. City of Eagan, 289 N. W . 2d 157 (Minn.1980); see gene ly 2 Ziegler, Rthkopf s The Law of Zoning and Planning § 27A .03 ] [a] (4th ed. 1 990) where the general rale is summarized as follows: As a general proposition, propel owners and residents have no legal right to the continued existence of current zoning, either wilt respect to tile zoning of nxby prey or with refit to zoning of ones own property. [Footnotes omitted] To the same general effect, see abo 1 Anderson, American Law of Zoning § 4 L2,8 (rd ed. 1986), On the other hand. the original zoning classification of property is presumed to be well No claim to original 1'. S. Govt. works 02/23/99 12:22 612 227 0758 - ECKBERG LPLJ H0.217 Q2i Minn. Op. Atty. Gen. 477B -34 expected to be somewhat permanent. See Fre dsftuh v. City of Blaine, 385 N.W.2d 6 (Mi n. Cr App.198 , See also Olsen v. City of Minneapolis, 263 Minm, 1, 12, 115 N.W.2d 734, 741 (1962) where the court observed that n [o]ne who has act propeny zones for particular purposes under a comprehensive zoning ordinance should be entitled to rely thereion as against the arbitrary enactment of amendniects lheretc which result in the diminution in value or the restriction of his rights and interests in such property . " In the final analysis, the validity of a zoning amendment, retroactive or otherwise, which modifies land - use provisions will be determined in light of the criteria alluded to in Parra= Bros. v. City of New Brighton. , 425 N.w.2 585 (Miun- Ct.App.1988) which involved a challenge to the city's rezoning of When a goverrantrit body adopts or ids a zoning ordinance it acts within its Legislative capacity. SLID Oil Ca. v. Village of New Hope, 300 Minn. 326, 333, 220 N.W.2d 256, 261 (1974). Such a decision must be upheld unless it can be shown the ciassif cation is not supported by any rational basis relating to promoting the public health, safety, or welfare, or that it amounts to a taking without just compensation. St.atc, by Rochester Association of Neighborhoods v. City of meter, 268 N.W.2d 885, 888 (Minn 1978) . kJ. at 58S; see also Fre ndsbub, supra. The • application of these criteria to a particular zoning amendment involves factual detemainations which are outside the scope of our opinions. See generally Op.Atty. Gen. 629a, May 9, 1975. 1� Q [ W u May the city fail or refuse to enforce the requirements of the zoning ordinance by ignoring known illegal Land uses? OPINION Your question is answered in the negative. In our opinion, the city, acting through the city council, has a general duty wo enforce the zoning ordinance, although it has reasonable discretion in making enforcement decisions in specific cases. The authority of the city, acting through its governing body, to eugage in land use planning is Copyright (c) West Group 1998 Page 2 found in Minn. Stat. §§ 462.351 to 462.365 (1990) . Zoning is speciiically dealt with in sects 462.357 which provides, in subdivision 1, that a municipality may "by ordinance regulated the uses of buildings and land for trade, industly, residence, recreation, etc. ' (f]or the purpose of promoting the public health, safety, morals, and general welfare...." Implicit in this grant of power is the notion that an o rdinanc e adopted pursuant thereto will be enforced. See generally 4 Ziegler, thloapf s The Law of Zoning and Plannin g § 45.41 [3J[a] (4th ed. 1990) citing cases to the effect that it is implicit that the zoning ordinance will designate an administrative officer to adrnini gter the ordinance and to enforce it. Indeed, ample authority to provide for such enforcement is conferred upon the city by section 462.362. (FN3) It follows, therefore, that, having adopted a zoning ordinance, the city council has a duty to make reasonable provision for its enforcement. To hold otherwise would be to deprive the ordinance of any real meaning and. render it a nullity for ail mitts and purposes. (FN4) Moreover, the city has a statutorily recognized duty to provide for the prosecution of ordin ni e violations generally. Minn.Stat. § 47 _ 25,. subd. 10 (1 990) relates to prosecutorial responsibilities in, among others . Washington county where the city of Hugo is located. Th.e statute provides, in part: All violations of a municipal order, char provision, rule, or regulation rut be prod by the attorney for the governmental unit that promulgated the municipal ordinance, charter provision, rule, or regulation or by the county attorney with whom it has contracted to prosecute these matters. Comparable language in the predecessors to this section has been viewed as irowa1ng a duty to prosecute on municipal attorney and, in addition, imposing, by implication, a duty upon municipalities to provide an attorney to conduct sum prosecutions. See Cp.Atty.Gen. 469 -b-1, Nove:mber 7, 1969. In carrying out its obligation to provide for the eaforcernent of the waling ordinance, the city council is vested with considerable discretionary authority, See, c. g.. Arcadia Development Corp. v. Civy of Bloomington, 267 Minn. 221, 125 N.W.2d. 846 (1964) where the city, acting through its city council, was accorded "wide discretion" in the enforcement of mining ordinaarc pruvisioua rc ricting and reguiating business signs anal setbacks. On the other hand, the No claim to orig in.41 U.S. Govt. works 02/23/99 12:22 512 227 0?58 ECKBERG LPLJ NO.217 P22 Minn. Op. Atty. Gen. 477B-34 court, w Para h one of its syllabus, cautioned that this was mat the power to act arbitrarily, capriciously, or without regard to property rights and the ciry is not free fratn the necessity to exercise its powers reasonably, having regard for the purposes to be attained compared with the restrictions thereby placed on each property." See generally 13A Dunne11 Minn.laigest 2d Municipal Corporations § 1.C�3 (3rd ed_ 1981). In a star vein is the decision in Scuaocca v. St. Louis Cty. Bd. of Corers, 281 N,W.2d 659 (1 which involved a mandamus proceeding to compel the county board and the county attorney to enforce the zoning ordinances of a town located in the county. The conn held that " [m] andaamus may be used to review a refusal to exercise any discretion whatsoever or to review the arbitrary and capricious exercise of discretion." Id. at p. 661. ('N5) After further noting that [m] andannu.s is appropriate only when there is a clear, mandatory duty to perform, the court concluded that, since neither the county board nor the county attorney had such a duty, the lower court erred in ordering them to enforce the town zoning ordinances. Id. at p. 663. 1f these officials had been found to have such a duty, it seems clear that they could have been ordered to discharge it. In this respect, our court appears to be in general accord with courts in other jurisdictions. See, e.g., 4 A n.dersnn, American Law of Zoning § 28,07 (3rd ed. 1 086) where the following observation is made: If the officers of a municipality whose clear duty it is to enforce the zoning regulations, fad to discharge such duty, a citizen having no other remedy may rrxaintain an action for a writ of mandamus codling such officers to enforce the regulations. [footnote omitted] . See also 4 Ziegler Rathkopf' s The Law of Zoning and Planning § 45.0212) (4th ed. 1990); Annotation, Zoning- Compelling 'Enforcement, 35 AL.R;d 1135 (1954) . 91 2 It is, of course, well established that mandamus is not available to control the exercise of discretion of municipal and other govern -mental bodies ar boards. See, e.g., Curry v. Young, 285 Minn - 387 , 173 N . W . 2d 410 (1969) involving the issuance of a variance under a zoning ordinance. Nor is it available to control the discretion of prosuting attorneys, as the court i.n Sc:nocca recognized by its observation that, although mandamus was appropriate to review tha county attorney's refugai to prosecute any town zoning ordinance violations, it ''would not be appropriate to compel the county attorney to initiate a specific prosecution.' 281 N.W.2d at p. 661. The conclusion to be drawn here is that city officials may not altogether fail or refuse to discharge their general duty to en the zoning ordinance by simply ignoring known, illegal land uses; they are, however, vested with reasonable discretion in ?raking the individual enforcement decisions necessarily involved in the discharge of that duty. If necessary, city officials' can, at the very minimum, be celled by the courts to fulfill their responsibilities by formally addressing apparent violations and exercising reasonable discretion in dealing with tliem. Depe upon the particular situation this could include the institution of appropriate civil and/or criminal. enforcement proceedings by the city. QUESTION TF.EE If the city commenced legal action to force compliance with requirements of the zoning ordinance, could it enter into a sett"lernemt agreement that would allow an illegal land use to continue? OPINION We find it necessary to decline to respond to this question since we are not in a position to attest to hypothesize about the legal property of a theoretical settlement agreement entered into in an unspecified "legal action . " See Op. Atty. Gen. 629-a, May 9, 1975. indicating that our office does not issue opiniooas purporting to decide hypothetical questions. The answer to a question of this kind would, of course, depend upon the nature of the particular legal proceedings and the factual context in which they were caramenced. There can for example, be circurnastauces if which a municipality may be estopped from enforcing specific zoning ordinance provisions again a given property owner. See, e.g., Stan, City of Eden Prairie v. Liepke, 403 N.W.2d 252 (Minn. Ct, App. 1987) . A reasonable settlement agreement entered into in good faith by a city in a situation of this kind to avoid protracted litigation, whose ultimate outcome may be subject to considerable doubt, could be deed appropriate, notwithstanding the inclusion of terms allowing continuance of an otherwise illegal land use. See generally 7 Duna Mon i Digest Compromise and Copyright (c) West Group 1998 No claim to original - U_ S . Govt. works Page 3 02/23/99 12:22 612 227 X758 4 ECKBERG LAW NO.217 P23 3 Minn, Op. Atty. Gen., 4773 -34 Settlement § 1.05 (4th ed. 1990) indicating that the settlement of lawsuits is ordinarily favored. Ou the other band, a settlement agreement, in another factual context, could be found to be inappropriate_ See, e.g., Andgar Associates, Inc. v_ Board of Zoning AppeaLs of Incorporated Village of Port Washington North, 291 N. Y. S. 2d 991, 30 A.D.2d 672 (N.Y.App.Div.1968) where the municipality could not under guise of compromise, abrogate or otherwise impair its public duty to Main control of zoning in a specified area. Accordingly, no single definitive answer applicable to all possible situations can be provided here_ Very try yours, Hubert H. Humphrey, III Attorney General Michael R. Gallagher Special Assistant Attorney General EN I A zoning ordinance which summarily terminates an existing use is sometimes characterized as retroactive zoning. See generally 1 Anderson American Law of Zoning § 6.06 (3rd edd. 1986); see also Op.Atty.Gen. 477b -34, September 16, 1949, where we said that [a) zoning ordinance cannot operate retroactively to deprive an owner of the laws use which he is Ong of the property at the time of the adoption of the ordinance." Since the zoning amendment apparently contemplated by your question would legalize certain previously illegal land uses, it would not operate retroactively in this sense FN2 We assume, for purposes of this opinion, that Copyright (c) West Group 1998 No claim to original U.S. Govt. works Page 4 your question does not contemplate an across the board legalization of all illegal land uses so as to constitute a virtual repeal of the zoning ordinance itself. FN3 Minn.Stat. § 462.362 (1990) provides: A municipality may by ordinance provide for the enforcement of ordinances or regulations adopted under sections 462.351 to 462.364 and provide penalties for violation thereof. A oiunicipality may also enforce any provision of sections 462.351 to 462164 or of any ordinance adopted thereunder by mandamus, injunction, or any other appropriate remedy ins any court of competent jurisdiction. 933 FN4 A failure or real of a city council to properly enforce various provisions of its wooing ordinance tmgk)t also be seen as a de facto amendment of the ordinance without observing applicable procedural requirements, See Minn.Stat, § 462.357, subds. 2 and 3 (1 990) requiring a two - thirds vote of the council and a public hearing in order to amend a zoning ordinance. FN5 `lie court held that, under Minn.Stat. § 394.37, subd. 4, the plaintiff= as a county taxpayer, had standing to institute a mandamus proceeding againt the county board if that board were required to enforce the town zoning ordinances. Moreover, the plaintiff also had standing, tinder Minn.Stat. 586 02, to institute such a proceeding against the county attorney sins e the plaintiff, as a resident and taxpayer, had an interest in egg that town zoning ordinances were enforced. With respect to judicial review of city zoning decisions see Minn.Stat. § 462.361 (1990). The refusal of a request for enforcement of zoning ordinance provisions is arguably a "decision" within the contemplation of this section. Cf, Brady v. Bd. of Appeals of Westport, 348 Mass. 515, 204 N. a. 2d 513 (1965) construing comparable statutory language. 02/23/99 12:22 612 227 0758 =4 ECKBERG LAW NO.217 P24 STATE of MENNEso'rA DISTRICT COURT COUNTY OF WASHINGTON TENTH .TUDYCIAL DISTRICT Greg and Cathy Kunz, and Tom and Lisa Edison, Petitioners. ARGUMENT The writ of mandamus is an extraordinary writ commanding the performance of an act oflaw specifically enjoined ` ned as a duty resulting from an office, trust or station. Pursuant to Minn. Stat. 586.0 a writ of mandamus may be issued: to any inferior tribunal, corporation, board., or p-esson to compel the pe rfomance of an act which the law specially enjoins as duty resulting from an office, trust or station_ The writ of manda-nius will fie where there is no other plain, speedy and adequate remedy in q the ordinary course of law. :: non of r eratin ... rs v, Cit MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR PEREMPTORY WRIT OF MANDAMUS 233 N.W 2d 14s inn. 1975). . `he remed y reasonably must be reasonabl efficient and adequate to reach the end intended, and the performance of the duty refused. State Ex Rel Minnea s .1 actually compel � Lclar,_Dilts 79 N.W 2d 960 (Minn. 1 999). A writ of mandamus only damus will enforce onI those legal rights that are clear and complete. The burden is ° pa 1 ced on the petitioner to show full performance of all conditions precedent on her part. International Ham' ster o_ of : i sber , 268 N.W. 421 (Minn. 1936). The writ of m an only t o one mandamus s will lie o ni compel the performance of a duty the law clearly and � rm positively requires the officer, board, or tribunal to perform. Electronics nli it d Inc. v_ Villa e �� 02/23/99 12:22 612 227 0758 -' EfkBERG LAW ND .21'7 P25 Diaramilk, N.W.2d 679 (Minn. 1971). Pursuant to Minn. Stat. § 586. 04, a peremptory writ of mandamus shall issue: "When the right to require the performance of the act is clear, and it is apparent that no valid excuse for nonperformance can be given, a peremptory writ may be allowed in the first instance. In all other cases, the alterative writ shall first issue." �. Stal. § 586.04 (1998). In the instant case, the Oak Park Heights city administrator's duty is mandatory, rewiring the administrator to order the removal of illegal buildings and structures. Section 401.07_B(7) ofthe Oak Park Heights City Ordinance states as follows: "[Zoning administrator §41,13 order discontinuance of the illegal use ofland, buildings or structures; order the removal f ilIe uildin tructures additions or altogjatv order discontinuances of illegal construction in progress, and take any other action necessary to ensure compliance with or to prevent violation of this ordinance." (Emphasis added) In order to obtain a writ of mandamus, the petitioners must meet the statutory standing requirements of Minn. Stat. §586.O15S6.O2. Fri n. s of ' . I ' *.-' it Envir. V ... Ni h s l 350 N.W.2d 489 (Minn. et. App- 1984), These requirements include (t) the existence of a law specifically requiring the perforce of an act which is a duty imposed on a person resulting from the once that person occupies (Minn. Stat. § 5 86, ►I 1) and (2) a showing • ing ofa public wrong es ci4ly injurious to the petitioner and that petitioner will benefit from an order compelling performance of the duty. (Minn. Stat. § 586.02). In the in t nt case, the petitioners satisfy the standing requirements ofMinn_ Stat. § 586.01 586.02. The Oak Park Heights Ordinance imposes a mandate duty upon the city to order the removal ofthe ropes course structure. Section 401.07.B, Subd. 7, holds that the zoning administrator lug order the removal of illegal structures. 2 02/23/99 12:22 612 227 171758 - ECkLERG LAW Na .217 P2E The ropes course constructed b y Stillwater High School is in illegal structure. Counsel for the city of Oak Park Heights has advised Stillwater High School that they have a noncomplying structure upon the property, � and are required to apply for a conditional use permit. The duty of the city administrator city ' ' r is clear. The ci administrator does not have discretion to ignore this violation sirnply because the high school is now applying for a conditional use permit. �b The applicants for the writ of mandamus are homeowners who have suffered substantial, harm construction of the ropes it result of the unlawful cony pes course. The ropes course is a monstrous and the attached photographs demonstrate. Structure towers over their homes, unsightly structure as th creates a visual nuisance, Y p ' has detr mentalt impacted the value of their homes, and destroys the pristine 4 ne condi 'on of t his "buffer zone" between the school property and their homes. The t� construction of this unlawful structure resulted in repeated trespasses over the petitioners' yards, and in the community regarding safety—both for those children using the has created great concerns in � � structure ding school hours and those children who might sneak into this area during evenings and weekends. The petitioners accordingly 1 have met the standing requirements for issuance of a writ of friends of Aims.ls Thir Envir. v Nichols, 350 N.W.2d 489 Minn. Ct. App. ' Stat. 58 .O2 requires a showing �� (ho1dng Minn. Sinn. gtat § eq g of public wrong especially injurious to it and that it will benefit from an compelling order com ellin p erformance of the statutorily unposed duty). Accordingly, mandamus proper is the ro r remedy to compel performance of an act the law enjoins as a duty resulting from an office. The Minnesota Attorney General addressed the issue of whether a writ of mandamus should issue where a city ' refuses to enforce the requirements of a zoning ordinance by ignoring a known illegal land use in Minn. Op. Atty. Att A . Gen. 477b -34 (attached hereto as Exhibit to Mcllistrem � 3 02/23/99 12:22 612 227 0758 - EC k BERG LAW NO.217 P1? Affidavit). The question posed to the Minnesota Attorney General was as follows: "May the city fail or refuse se to enforce the requirements of a zoning ordinance by ignoring known legal land uses?" The Minnesota Attorney General answered the question in the negative. The Minnesota Attorney General, citing 4 Anderson, ,American Law 4f Zoning, § 28.07 (3d ed. 1986) observed: "If the officers of a municipality whose clear duty it is to enforce the zoning regulations, fail to dischafge such duty, a citiz t n havin e no of er reined m Y'n ; `n fs r = writ ofmandamu i m . elfin emphasis added.) Id. atp. The Attorney general recognized that mandamus is not available to control the exercise of i r tion ofmunicipal and other governmental bodies or boards. Id.. at p. 3, citing Q g, 173 N. W. d 410 (Minn. 1 969) . However, the Attorney General concluded that city officials may not altogether fail or refuse to discharge their general duty to enforce the zoning ordinance by simply ignoring l-.ow illegal land uses. The Minnesota Attorney General further concluded that "if necessary, city officials can, at the very minimum, be compelled by the courts to fulfill their responsibilities by formalty addressing apparent violations and exercising reasonable discretion in dealing with them." IA, Minnesota law is well established that where the language of statutes or ordinances is ("shall "), as opposed to permissive ('may"), mandamus is the appropriate remedy. EthncILf Aim , & The t n vir. v. h is 350 N.W 2d 489 (Minn. Ct. App. 1984): `Mandamus will only issue to compel the performance of an act which the law spevifically requires to be performed as a duty. uch officers to enforce the Mations.` 02/23/99 12:22 612 227 0758 %' ECKBERG LAW NO.217 P28 When the term "may" is used in a statute it means permissible, not mandatory, unless tether intention clearly appears on the face of the statute. Minn. Stat. § 645.44, Subd. 15 (1982) [further citations omitted] . Therefore, because FATE cannot show that the commissioner has a mandatory duty to promulgate rules it must fail for lack offing." Id. at 491. In the instant case, the Oak Park Heights zoning administrator has the clear, mandatory duty to order the ropes course taken down. The petitioners have suffered, and will continue to suffer cA3nsiderable harm each day this Mega] structure is Left standing. Petitioners respectffilly request that this Court issue a peremptory writ of mandamus ordering the Oak Park city administrator to do his p �' duty unde r the city ordinance . This dut y requires the city administrator to order the removal of the unlawful ropes course which was constructed without a conditional use permit. reasons r ns set forth above, this Court should order a peremptory writ of mandamus underMinn. Stat. § 586.04 compelling the city administrator to order the removal of the ropes course currently located on the south boundary of Stillwater High School C OLLINS Dated: )' , BU KLE , SAUNTRY H UGH P.L.I..P. 13y IVLARK W. t " r , ##33984 THOMAS E. McEL LISTREM, #23042X Attorneys for Petitioners W-1100 First National Bank Bldg. St. Paul Minnesota 55101 Telephone: 6512/227-0611 5 02/23/99 12:22 512 22? 0758 ECKBERG LAW NO.217 129 STATE OF 11 SOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Greg and Cathy Kunz, and Tom and PEREMPTORY WRIT Lisa Edison, Petitioners. THE STATE OF MINNESOTA TO ZONING ADMINISTRATOR, CITY OF OAK PARK HEIGHTS, GREETING: WHEREAS, it manifestly appears by the petition of Greg and Cathy Kunz and Tom and Lisa Edison (Petitioners): 1. That Petitioners are residents of the Blackwood Development neighborhood, immediately south of Stillwater Nigh School, 2. That in the latter part of this past SW 1998. Petitioners became aware that construction of a structure known as the "Ropes Course" had begun in the "buffer zone" between the athletic fields on the south side of Stillwater High School, and our neighborhood. The ropes course consists of several stnictures, the tallest of which extends to a height of 45 feet in the air. The closest ofthe various structures which constitute the ropes course is approximately 40 to 60 feet from Petitioners' property. The Wiest structure tower part of the ropes course is approximately 150 feet from their property lines. The ropes course is very large and unsightly. 3. No notice was given to Petitioners or any other neighborhood areas adjacent to this structure. Petitioners immediately objected to various representatives of the school district, including Superintendent 'Kathleen Macy, and Petitioners provided objections to the construction of this structure at a school board meeting thereafter. 02/23/99 12:22 612 227 0758 58 ECKBERG LPUJ NO.217 P30 4. By letter dated September 21, 1998 to Melva Radtke, Chair of the Stillwater Area School Board, the concerns of the property erty owners adjacent to the ropes course were set forth. This later sets forth the ag reement p reached rhed in 1991 between the schoot and neighbors with respect to the maintenance of the "buffer zone," and the commitment of the schoot to refrain from any oa � rrstruction or other significant activity in this area. This letter also sets forth the safety concerns associated course; it pointed out that there were superior. alternative sites available on �ated with the ropes the schoot property for � for the course; and, finally, , sets forth the neighborhood group's offer to pay some or all of the relocation expenses for the ropes course. 5. That Petitioners were ultimately advised by the school board that despite their objections and concerns, the structure would remain standing. Petitioners were led to believe, � through Superintendent nt Mae that the school board had received assurances from the City of Oak Park Heights that the ropes course was a conforming structure under the zoning laws. 6.. Upon further investigation, Petitioners determined that the ropes course was constructed without any c conditional use permit as required under the Oak Park Heights zoning laws, and non - conformity structure as defined by the Oak Park. Heights and was accord�y an illegal � zoning ordinances. . Through their attorneys, Petitioners advised counsel for the City of Oak Park Heights that the ropes course was an illegal and non-confonning structure. 7. By letter date d November 19, 1998 from Petitioners' attorney to Thomas Melt City ' Adr�strator, for th e city Heights, and a letter dated December 14. 1998 from y of Oak Park Hey � Petitioners' attorney to the Oak Par k Heights City Council, Petitioners Cequested action be taken with . � � respect to the ropes tour, and d the council of the mandatory language requiring the dismantlin g ropes the es course pursuant to the applicable ordinance_ p 2 02/23/99 12:22 512 22? 0 ?58 - ECKBERG LAW 8. The response from counsel for the city of oak Park Heights acknowledged that the existing ropes course was a non - conforming structure, and that the school district would rid to go through the application process for a conditional use permit. However, this letter refuses to order the school district to remove or otherwise take down the illegal structure. The city's position as stated is that since there is a � application lication for the structure, therefore, the removal order will � not be issued by the city administrator. 9. The City of Oak Park Heights Zoning Ordinance sots forth the mandatory duty of the zoning administrator to order removal of the illegal, non - conforming structure. 10. The duty of the zoning administrator is clear and non-discretionary pursuant to Section 401.07. . Nonetheless, the City of Oak Park Heights refuses to order the removal of the illegal, non -- conforming structure, THEREFORE, you are commanded, within forty-eight (48) hours after the receipt of this welt s to order the immediate removal of the ropes course from the south end of the Stillwater High School pursuant to Oak Park. Heights Zoning Ordinance, Section, 401.07.B. Subd. 7, under the writ of mandamus powers set forth in Minn, Stat. § 586.04. The Honorable Judge ofd Court, and seal thereof, this day of February, 1 999. Court Administrator ORDER ALLOWING WRIT The within rem to writ of mandamus is hereby allowed pursuant to Minn. tat. 586.04; p � service thereof f is hereb y by directed to be made b delivery to and leaving with Thomas Melena, Zoning 3 NO.217 P31 02/23/99 12:22 612 227 0758 58 - ECKBER6 LAW. Administrator, for city r the of Oak Park Heights, or the City Clerk of the city of Oak Park Heights, a copy together �d Writ, t et er with a copy of this Order and the Petition for said Writ. Dated JUDGE OF DISTRICT COURT 4 NO.217 P32