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Home My WebLink About[08d] Easement Encroachment Judy Weyrens From: Judy Weyrens Sent: Thursday, June 02, 2011 4:26 PM To: Bob Loso (bobloso @q.com); Frank, Stephen; Renee Symanietz; Rick Schultz; Wick, Dale Cc: 'Thomas G. Jovanovich'; Brenda A. Wolbeck; Terry Thene Subject: FW: Torborg garage encroachment Attachments: Easement forwarded by Torborg.pdf; 2011 [05] May 24 Letter to torborg requesting clarification.pdf Good Afternoon - As you are aware I have been working with Steve Torborg regarding an easement encroachment issue. A portion of his garage is located over the water main that services the hollow park area. The water main is located within a recorded easement and was in place at the time of the garage construction. While a building permit was issued, the fact remains that the garage is encroaching. Torborg has recently listed his home and has indicated that bank financing will not be available to a prospective property owner if the City does not remedy the encroachment. In an effort to assist the property owner I contacted Stearns County Abstract and talked to a closing attorney. He indicated that the City could execute an acknowledgement that states that an easement exists and a portion of the garage is built over easement. Further, the City will allow the garage to continue and can be repaired unless more than 50% of the structure is damaged. I relayed this information to Torborg. (See attached letter). Today Torborg came in and requested the City authorize a Permanent Drainage and Utility Easement Agreement (see attached). I informed Torborg that I would have the City Attorney review for comment. (See below) As you can see, the City will be assuming all liability for any damage to the garage and Tom is recommending not signing the agreement. In talking to Tom, the City is not liable because a building permit was issued. In fact, there is specific case law that supports that a City is not liable for erroneous building permits. If the City were sued, the matter would be tendered to the League and the City would win (based on case law). Everyone wants to resolve this issue, but this is not the last time we will have a easement encroachment issue and it comes down to how much liability should the City be exposed to. Please let me know if you have any questions. Judy Original Message From: Thomas G. Jovanovich [mailto:TJovanovich@rajhan.com] Sent: Thursday, June 02, 2011 3:43 PM To: Judy Weyrens Cc: Brenda A. Wolbeck Subject: FW: Torborg garage encroachment Judy, Per your request I have been asked to review the above easement proposed by Steven Torberg. It is my understanding that the City currently has a utility easement running over this property. I also understand that sometime after the easement was recorded the prior homeowner built a garage over the utility easement. There was a building permit issued, but the City is not responsible to the homeowner for such damages in issuing a building permit. 1 It is my opinion that the City should not enter into the above easement since the City would incur liability for any damage or reconstruction to the garage if the garage is damaged in the event the City access the easement area where the garage is located. These matters normally surface when the property is subject to a sale and the title examiner notes that there is an encroachment. It is my understanding that the practice is to obtain a recordable document from the City stating that the City would not require the garage to be removed unless the garage is damaged by more than 50 %. If you have any further questions, please advise. Tom Jovanovich Rajkowski Hansmeier Ltd. 320 - 251 -1055 tjovanovich @rajhan.com * * * * * * * * * * * * * * * * * * ** *Internet E -Mail Confidentiality Statement * * * * * * * * * * * * * * * * * * ** Information contained in this e-mail transmission is intended only for the use of the addressee(s) named above and is privileged and confidential. If you are not the addressee, or the person responsible for delivering it to the addressee, you are hereby notified that any reading or dissemination, distribution or copying of this communication or any of its contents is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the message and immediately delete the original message and any copy of it. Thank you. IF THIS E -MAIL MESSAGE CONTAINS ATTACHED FILES AND DOCUMENTS, PLEASE NOTE THE FOLLOWING INFORMATION: These files and documents are legal documents that have been prepared by Rajkowski Hansmeier Ltd. as drafts or final executable versions of the documents. These files and documents should only be printed for further review or execution as instructed. Any alteration, modification, addition, deletion or other changes to these documents may result in changes to the legal effect of these documents and the rights and remedies of parties involved. ACCORDINGLY, YOU ARE ADVISED NOT TO CHANGE THE TEXT OR FORMAT OF ANY OF THE ATTACHED FILES AND DOCUMENTS UNLESS SUCH CHANGES ARE REVIEWED AND APPROVED BY YOUR LAWYER. RAJKOWSKI HANSMEIER LTD. HAS NO RESPONSIBILITY UNDER ANY CIRCUMSTANCES FOR ANY CHANGES OR MODIFICATIONS MADE BY YOU TO THE ATTACHED FILES AND DOCUMENTS. Original Message From: Judy Weyrens [ mailto :jweyrens @cityofstjoseph.com] Sent: Thursday, June 02, 2011 9 :53 AM To: Thomas G. Jovanovich Cc: Brenda A. Wolbeck Subject: Torborg garage encroachment Good Morning tom - After you have a chance to review this can you give me a call. Thanks 2 PERMANENT DRAINAGE AND UTILITY EASEMENT AGREEMENT This Agreement is made tbtis between Steven H. Tbrborg, single, of 142 s" Avveru s NW, St. Joseph, MN $5374, hsnhniber "Grantor", and the City of 8t. Joseph, a mtMk tpal corporation organized under the laws of the Stab of Minnesota, 25 College Aversive, St. Joseph, MN 54374, hereinafter "Grantee ". AGREEMENT That for and in consideration of the sum of One ($1.00) Dollar and other good and valuable consideration, paid this dab by Grantee to Grantor, the receipt rind sufficiency of which is hereby acknowledged, the Grantor and Grantee do hereby agree as foltbws: 1. The Undersigned Grantor hereby grants and con4eys to the Grantee a Permanent Eassmeht, for drainage and utNlty purposes over, under and across Lot 7, Block 3, Clinton Village Addition, Stearns County, Minnesota, described as follows: [insert easennnt debcriptlon bent] 2. The Grantor states and hereby covenants that the Grantor is the lawful owner of the above real estate, Is lawftfy seized and possessed of said real estate, and that the Grantor has good and lawful right to grant the Permanent Easement described hehukt. 3. The Grantee shall have the right to Mate excavations and to grade as it May find reasonably Necessary for drainage and for the construction Nebgatlon, operation, repair, Maintenance and reconstruction uctbh of WNW* in the Permanent Easement area. 4. The Grantee shall have the tight to him and rsmdve all trees and bushes which may interfere with the exercise of the Grantee's tights pursilant to this Agreement. 5. The Grantee agrees to promptly repair any damages within the Permanent Easement area, With the Intent being to restore the surface and constructed improvement of said area tb as close to origin id Condition as is reasonably practicable given the rights granted hereunder. the cost of any repair will be the sole responsibility of grantee. 6. The provisions hereof Shall inure to the benefit of and bind the successors and assigiis of the respective parties hereto, and au covenants `shalt apply to and run with the land. 7. This Agreement shall be recorded at the time of Its execution with the understanding that the Grantee has complete and absolute sole ownership, use and control of the utilities and drainage structures construLted in the permanent Easement area in accordance with the grant of rights conveyed herein. Dated: STEVEN H. TORBORG By Steven H. Torborg Stab of Minnesota County of Stearns The foregoing instrument was acknowledged before me this day of 2011, by Steven H. Torborg, single. notary public Dated: CITY OF St. JOSEPH By: Its: Stab of Minnesota County of Steams The fbrsgoing instrument Was acknowledged before me this day 2011, by the of �y of St. of the notary public Drafted by: ileweine Tide LLC is South 1e` Avenu. St. Claud, MN 116301 • „,, \ CITY OF ST. J OSEPH WV W_ cityof stgoseph. com May 24, 2011 Steve Torbotig 142 — 6 Av nue NW St. Joseph N 56374 Administrator Judy Weyrcns RE: Eas ment Dear Steve: Mayor Rid Schultz This letter i intended as a follow up to our conversations of last Friday. During a phone conversati n 1 indicated that I would call Stearns County Abstract to see how they typically Councilors handle buil ing encroachments over easement. On Monday, May 23, I talked to Frank Barger Steve Frank (Attorney/ loser) for Stearns County Abstract and explained the situation. He indicated that Bob loso Stearns ha dealt with these issues and indicated that if the City recorded a letter stating that Renee Symanietz the City w uld not require the building to be removed and that if less than 50% was destroyed Dale Wick it could be re- built. In his experience this has resolved such issues. 1 sent a follow up email to him askin for a sample of such a letter. The cours of action identified by Mr. Barger would take a simple resolution of the Council which wo Id not require a public hearing or subsequent fee. Since 1 am unable to act on your behalf, I r commend you contact the closing agency of your choosing to verify what course of action th y would require (see attached). If it is your intent to pursue recording a letter of acknowle gement of easement or some other remedy please let me know so I can schedule any requi ed action. In our ph ne conversation and our conversation in the office you indicated a change of strategy nd thereby requested information on securing an Interim Use Permit to allow for an owner o cupied rental license. If it is your intention to pursue this course, I ask that you submit t e necessary paperwork and applicable fees at your earliest convenience so that we may sch dule a public hearing without delay. If there r any further questions, or additional information is necessary, please feel free to contact a at 320.363.7201 or by email at jwevrenst citvofstioseoh.com. Sincere , CITY OF ST. JO PH vvi y d o , yrens • min trator 25 Colie 'e Avenue North • PO Box 668 • Saint Joseph, Minnesota 56374 Phone 32,o.363.7zoa Fax 32.0.363.0342 Judy Weyrens From: Judy Weyrens Sent: Monday, May 23, 2011 12:46 PM To: ' frankb @stearnscountyabstract.com' Subject: easement Good Afternoon Frank - I talked to you earlier today ab ut a small portion of a garage located over an easement and you referred to a letter that could be recorded acknowledging that it will not be required to be removed. Would you happen to have an example of one that we could use. Thanks for your consideration. . Judy Weyrens Administrator City of St. Joseph PO Box 688 St Joseph MN 56374 (320) 363 -7201 (320) 363 -0342 (Fax) jweyrensecityofstioseoh.com • 1