HomeMy WebLinkAbout1999-03-02 CA Forwarding of FOF, COL & Order03/02/1999 16:25 ECKBERG LAW -> 4390574
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STATE OF MINNESOTA j 1
L MMO21999 L
COUNTY OF WASHINGTN TENTH JUDICIAL DISTRICT
"File BuN�rne p
0 .:t,i.y istAaroa
o,wn
In Re Petition of:
Grey and Cathy Kurtz, and
Tim and visa Edison,
Petitionerso
DISTRICT COURT
FllpJNGS QF
ONCJi1SLot($QF LAYY
ALIT
QRIDER
Fite No c7- 99-1008
NO 022 QO2
The above-entitled matter came before the Court for hearing on March
2, 1999, at the Washington COUnty Govemrnent center, StiILWater1 Minnesota,
on a Pet1ton for a Peremptory Writ.
Mark W Gehan, Esq., and Thomas E. McEllistren, Esq., appeared on
behalf of Petitioners. Mark J.1tierling, Esq appeared on behalf of the City of
Oak Park Heights. Patrick J. Flynn, Esq., appeared on behalf of Independent
school District No. 834.
Based upon the submissions of the parties, the Court makes the
foliowing:
Eitgatti
1. In 199'l, Independent SchI District No 834 applied for and
obtained a Conditional Use perrnit from the City of Oak Dark Heights to build
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a high school with related athletic facilities on property located at the
intersectiofl of Stillwater Boulevard and 58th Street North in Oak Park Heights.
2. On May 28, 1998, the School Board approved construction of a
Ropes Course at a site on the school grounds recommended to it at a public
meeting held by the oard.
3. The site chosen for the Ropes Course is on the southern boundary
of the school properly.
a. Petitioners Kunz and Edison overt homes located on property facing
the southern boundary of the school property in what is called the E3IackwoOd
development. The school property is enclosed by a high chain link fence and
pine trees have been planters on both sides of the fence. The Ropes Course
is highly visible from Petitioners' properties.
5. On or about August 18, 1996, the school Board began construction
of the Ropey Course. 'Within three days, it learned that the Blackwood
property owners had objected to the course being constructed without prior
city approval, and It therefore stopped construction.
6. The School Board asserts that it consulted with City officials and was
told that the Ropes Course project could proceed without formal approval.
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The Board therefore recommenced construction of the course on October 6,
1898. The project was completed at a cost of approximately $50,n00.00.
7. The neighbors continued to complain to the City, and City staff, after
consulting with the Citys attorney, determined that the Ropes Course was a
"structure" that was not covered by the 1991 Condltlonal Use hermit. The City
therefore required the School Board to apply for an Amended CditiOfl3I Use
Permit.
8. On February 11, 1999, the School Board, without conceding that it
needed a permit for the Ropes Course, filed its application for an Amended
� Conditional Use Permit.
9. the City has Issued a notice of public hearing on the SC1iOOI Board's
application for emended Conditional Use Pe►mit. The public hearing before
the Planning Commission is set for Thursday, March 4, 1999. CouflSel for
Petitioners asserted that the notice of public hearing is defectve Counsel for
the City responded that of has given proper notice.
10. Petitioners filed their Petition for a PereniptOty Writ of Mandamus
on February 25, 1099, seeking an Order that directs the City to order the
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I filled memorandum in opposition.
Bayed upon the foregoing, the Court makes the following:
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school district to remove the Ropey Cour The City and school district have
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1. A Writ of Mandamus is an extraordinary legal remedy. Petitioners
have the burden of showing thatthe City has failed to perform an official duty
clearly imposed on it by law, that they have been harmed as a result of the
City's failure to pct, and that they have no other adequate legal remedy. if no
other plain, speedy, and adequate remedy is available, then mandamus is
appropriate to compel a governmental body to perform a duty which the law
clearly and positively requires.
2. pity Ordinance 4Q1.078 states That the zoning administrator shall
enforce the pity zoning ordinances. Among the enumerated duties are the
fl1owing:
ao examine building permit applications to determine compliance and
approve the applications if they conform;
bo issue certificates of occupancy for any use structure, or building
that conforms with the zoning otdinanceso
c, institute appropriate actions or proceedings against anyone who
violates the zoning ordinances;
NO .022 POE,
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de conduct periodic inspections;
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e. notify a person responsible for a violation and direct that person
to take action necessary to correct it; and
f. order discontinuance of an illegal use and/or removal of illegal
structures.
3. A Writ of Mandamus cannot be used to control a governmental
body's exercise of judgment and discretion,
4. The City decided to require the School Board to apply for an
Amended Candltianal Use Permit and the Shoo) hoard his complied. The
public hearing is scheduled to take place on March 4, 19990 Petitioners will
be allowed to appear at that public hearing and to voice their objections to the
issuance of an Amended ConditoflaI Use Permit. lfthe permit is denied, the
City can then take further action with respect to the Ropes Course including
requiring the School Board to remove it. The City could determine that tinder
the current ordinance, the Ropes CourSe is a perrnitted structure or use The
City could also approve the permit and allow the structure to remain as is, or
direct the School Board to make changes to the structure or the area in which
the structure is located.
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5. Issuance of a Writ of Mandamus would constitute an improper
interference of the Gig's discretionarg function The CIty his the right to
proceed by requiring an application for an Amended Conditional Use Permit
and to hold public hearings on that application. Petitioners have no clear and
present right to have the City require the School Board to remove the structure
during the pendency of the application.
Based upon the foregoing, the Court makes the following:
1. The Petition for Issuance of a Peremptory Writ of Mandamus is
REFUSEP and this action fs DISMISSED.
2. _The Washington County Court AdmInstrator shall serve a true and
correct copy of this Order by facslrnile and by U.S. Mali upon counsel for the
above-named parties, Such mailing shall constitute due and proper service
of this Order for all purposes.
Mary E. Carts
Judge of Dlstrii- ourt
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