HomeMy WebLinkAbout04-30-07 Item 4J, Landscaping Agreement at 3433 Lake Johanna Blvd
~
~HILLS
Request for Council Action
Prepared By: James Lehnhoff ~
Dept.: C<?'!lm,ul1ity Deve1_ _ me,nt
Council Mtg. Date: """ ..----:4=3"6-:~~qji
Final Action Needed By:
Agenda Item:
4.J
Budgeted Amount:
Actual Amount: ,..
Funding Source: ......... .... ""___ _______...._..........""____________m._
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Consider a Motion to Approve the Modified Site Development/Landscaping Agreement Dated April 30, 2007, for the Landscaping Plan that!
iwas Approved in Planning Case 06-028 for 3433 Lake Johanna Boulevard. '
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[Approve the Modified Site Development/Landscaping Agreement Dated April "-30~--2007~----fo.r....fhe.Tan'dsca.pTng.."pTan---ihat"...w'as-"Approved""hl'1
i Planning Case 06-028 for 3433 Lake Johanna Boulevard.
, X i Memo/Letter:
,...."_"m__m_____________________.__..
i Resolution No.:
iOrdinance No.:
April 30, 2007, City Council Memo
Engineering Recommendation:
'Attorney Recommendation:
.___'______"__...........___________mmm...........".""___.__
4J-1: Modified Site Development7Landscaping Agreement
4J.2: Original Site Development/Landscaping Agreement
r X ! Other:
None.
None.
~
~HILLS
MEMORANDUM
DATE:
April 30, 2007
CC Agenda Item 4.J
TO:
Mayor & City Council I
James Lehnhoff, City Planner
FROM:
SUBJECT:
Modified Site and Landscaping Development Agreement
Planning Case #: 06-028
Hien Ngo & Nguyet Ky
3433 Lake Johanna Boulevard
Requested Action
Consider a Motion to Approve the Modified Site Development/Landscaping Agreement Dated
April 30, 2007, for the Landscaping Plan that was Approved in Planning Case 06-028 for 3433
Lake Johanna Boulevard.
Backl!rouud
On November 27, 2006, the City Council approved a re-Iandscaping plan for Hien Ngo and
Nguyet Kyat 3433 Lake Johanna Boulevard. This is the property that was clear-cut in late July
2006. The Site Development/Landscaping Agreement for the landscaping plan was approved at
the December 11, 2006, City Council meeting. That agreement incorporated the pertinent
conditions of approval into a formal document to ensure the landscaping plan is fully
implemented as approved by the City.
Condition three of that agreement required the applicants to submit a financial surety for 125
percent ofthe cost ofthe landscaping plan, which is a standard requirement for new commercial
and industrial projects. Since the City does not have a specific procedure for evaluating or
setting requirements for residential landscaping plans, Staff used the standard
commercial/industrial financial surety landscaping requirement for this planning case. The
estimated cost of the landscaping plan was $47,272, which would have required the applicants to
secure a financial surety of$59,093.
When the financial surety condition was drafted, it was Staffs intention that the applicants
submit a letter of credit or other similar [mancial surety as opposed to submitting an actual cash
escrow to the City. The City Attorney has been working with the applicants and their bank;
IlMetro-inet.uslardenhills\PlanninglPlanning Cases\2006\06-028 Ngo Site Plan Review (APPROVED)1043007 - CC Report - Modified
Development Agreement.doc
Page 1 00
however, the applicants' bank will not issue a line of credit to an individual residential property
owner for this type of proj ect. While the applicants could submit a cash escrow to the City, the
initial outlay for the landscaping plan would then be as high as $106,334 ($59,093 for the cash
escrow to the City and $47,272 for the actual landscaping). Assuming the landscaping plan is
fully implemented and viable, the cash escrow would be returned to the applicants over a two
year period; however, the up front costs would substantial and unworkable for the applicants and
most other property owners. In order to resolve this issue and to keep the re-Iandscaping plan on
track, Staff, with support from the City Attorney, proposes to modifY the Landscaping Plan/Site
Development Agreement.
The modified agreement would require the applicants to submit a $3,000 cash escrow to the City,
and agree to a condition that would allow the City to assess the property for any additional costs
associated with enforcing, completing, or replacing any portion of the landscaping plan that is
not implemented or does not survive. Provided the landscaping is implemented and maintained
as approved, the $3000 cash surety would be refunded two years after the plan is fully
implemented and successfully inspected by the City. The City's ability to assess the property for
the costs associated with the landscaping plan would also expire two years after the plan is fully
implemented. The overall timeframe is the same as the original agreement. All other conditions
would remain unchanged.
The intent of a financial surety is to encourage compliance with an approved plan and conditions.
In this planning case, the City's goal is to have the property stabilized and re-landscaped at the
cost of the applicants. While the tool to enforce the agreement would change, the intent of the
original financial surety condition would still be met. The City will still have a financial
instrument that could be used to complete or replace the landscaping should the property owner
not fully comply with the approved landscaping plan.
If the Council approves the modified Landscaping Plan/Site Development Agreement, the
applicants have agreed to sign the modified agreement. It is important to note that the applicants
volunteered to go through this somewhat improvised site plan review process that was used to
develop the re-Iandscaping plan. As was noted last year, the Zoning Code does not prescribe a
specific remedy for this type of violation, and there are no other similar violations on file on
which to model a remedy. While the City could have issued a citation for the violation, the
landscaping plan that was developed through the site plan review process is almost certainly
more comprehensive than any fine or landscaping plan that may have been required in a
successful lawsuit.
While the significance ofthe violation should not be downplayed, the primary goal is to develop
a solution that results in the best possible outcome for the surrounding neighborhood and City.
Adopting an administrative citation process may help the City impose more stringent financial
penalties for future code violations; however, additional research is needed before adopting such
a process,
As may be noticed in the original Site Development/Landscaping Agreement, term number five
required the applicants to submit the financial surety before the City issued any building permits.
\lMetro-inet.us\ardenhillsIPlanninglPlanning Cases\2006\06-028 Ngo Site Plan Review (APPROVED)\043007 - CC Report - Modified
Development Agreement.doc
Page 2 of3
The City Attorney informed Staff that such a requirement could not be enforced because the
shoreland ordinance violation was not related to construction or the building permits. Therefore,
Staff did issue the building permits for the property. The City's building inspectors have been
monitoring the construction of the dwelling, and the dwelling is meeting all City requirements.
Had the building permits been delayed, implementation of the landscaping plan would also have
been delayed since landscaping cannot begin until most exterior work is completed.
The applicants are hoping to start landscaping work in the next few weeks. They did receive full
approval from the Rice Creek Watershed District for their development plans on the property
before construction started.
Recommendation
Staff Recommends Approving the Modified Site Development/Landscaping Agreement Dated
April 30, 2007, for the Landscaping Plan that was Approved in Planning Case 06-028 for 3433
Lake Johanna Boulevard.
Attachments
4J -I Modified Site Development/Landscaping Agreement
4J-2 Original Site DevelopmentlLandscaping Agreement
IlMetro-inet.us\ardenhil/s\Planning\Planning Cases\2006\06-028 Ngo Site Plan Review (APPROVED) \043007 - CC Report - Modified
Development Agreement.doc
Page 3 of3
Attachment 4J -1
Modified Site Development/
Landscaping Agreement
April 30, 2007, City Council Meeting
FIRST AMENDMENT TO THE
SITE DEVELOPMENT/lANDSCAPING AGREEMENT
1.0 PARTIES. This Agreement is dated the _ day of , 2007, and is
entered into by and between the CITY OF ARDEN HilLS, a Minnesota statutory
city (the "City") and HEIN NGO and NGUYET KY, husband and wife
("NGO/KY").
2.0 RECITALS.
A. The City and NGO/KY are parties to the certain Site Development!
Landscaping Agreement dated December 11, 2006 ("Agreement").
B. The Parties wish to Amend Section 5 of the Site Development
/Landscaping Agreement as hereinafter specified.
3.0 TERMS AND CONDITIONS. In consideration of the undertakings herein expressed,
the City and NGO/KY agree as follows:
A. Section 3 (A)(5) of the Agreement is hereby Amended in its
entirety to read as follows:
5. Securitv for Landscape Improvements, The Landscape
Improvement plan shall be completed by September 1,
2007. Upon execution of this First Amendment to the
Agreement, NGO/KY shall escrow $3,000 with the City
("Landscape Escrow"). The Landscape Escrow and any
interest accruing thereon shall be retained by the City
until September 1, 2009.
If the landscaping plan is not completed by September 1,
2007, the City shall estimate the cost of completing the
Landscape Improvements and NGO/KY shall escrow such
estimated cost with the City or, in the City's sole
discretion, it may assess the estimated cost of
completing the Landscape Improvements against the
NGO/KY property without the necessity of a public
hearing. The amount of the assessment shall include the
cost of completing the Landscape Improvements and all
costs incurred or estimated to be incurred by the City
including, but not limited to, the costs of a landscape
contractor, administrative time and legal expenses in
order to complete the Landscape Improvements,
Thereafter the City may let a contract for the
completion of the Landscape Improvements.
On September 1, 2009, provided that the Landscaping
Improvements have been completed, the amount
remaining in the Landscape Escrow shall be refunded to
NGO/KY.
IN WITNESS WHEREOF, the parties have hereunto set their hands,
Hein Ngo
Nguyet Ky
CITY OF ARDEN HILLS
STATE OF MINNESOTA
CITY OF ARDEN HILLS
On this _ day of , 2007 before me, a notary public within and for
said county, personally appeared and , husband and wife,
who executed the same of their own free hand and will.
Notary Public
By:
Stan Harpstead
Its: Mayor
By:
Michelle Wolfe
Its: City Administrator
STATE OF MINNESOTA
COUNTY OF RAMSEY
On this _ day of , 2007 before me, a notary public within and for
said county, personally appeared and , to me known
to be the Mayor and City Administrator, respectively, of the City of Arden Hills, and
they executed the foregoing instrument and acknowledged that they executed the
same by authority of and on behalf of the City of Arden Hills.
Notary Public
F:\users\Jessica\Jerry\Arden Hills\Site Development-Landscaping Agreement. Amend. 1.doc
Attachment 4J -2
Original Site Development!
Landscaping Agreement
April 30, 2007, City Council Meeting
SITE DEVELOPMENT/LANDSCAPING AGREEMENT
1.0 PARTIES. This Agreement is dated the 11 th day of December, 2006, and is
entered into by and between the CITY OF ARDEN HILLS, a Minnesota statutory
city (the "City") and HEIN NGO and NGUYET KY, husband and wife ("NGO/KY").
2.0 RECITALS.
A. NGO/KY are the record fee owners of property located at 3433 Lake
Johanna Boulevard, City of Arden Hills (the "Property").
B. NGO/KY intend to construct a single family dwelling on the Property.
C. During July, 2006, in preparation for the construction of the single
family dwelling, NGO/KY caused the Property to be clear cut of its trees,
in violation of City's Development Regulations,
D. The City has agreed to suspend further action in regard to the violation
of the City's regulations and NGO/KY have agreed to landscape the
Property pursuant to the terms of this Agreement.
3.0 TERMS AND CONDITIONS. In consideration of the undertakings herein
expressed, the City and NGO/KY agree as follows:
A. Landscaping Improvements. Except as provided herein, NGO/KY will
construct the landscaping improvements illustrated on Exhibit A
attached and incorporated (the "Landscaping Plan").
1. Modifications. The Landscaping Plan shall be modified as follows:
a. The Black Hills Spruce trees shall be at least ten (10) feet
tall upon planting.
b. The Sienna Glen maple trees shall be at least three (3)
caliper inches upon planting.
c. The Velvet Pillar Crabapple trees shall be at least two
and one-half (2.5) caliper inches upon planting.
d. Any mulch or other similar materials used to cover the
ground shall be neutral in color.
e. The Autumn Brilliance Clumbberries shall be at least
seven (7) feet tall upon planting.
f. The compact Amur maples shall be at least four (4) feet
tall upon planting.
g, The Isanti Dogwoods in the shoreline area shall be
replaced with Rice Creek Watershed District approved
vegetation that does not encroach on the right-of-way or
the walking path at full growth.
h. Three (3) or four (4) of the larger trees currently located
on the periphery of the Property shall be more centrally
located, as approved by the City Planner.
i. The six (6) proposed trees near the north Property line
shall be at least ten (10) feet from the drainage pipe.
2. R;qht-of-Wav. No additional trees shall be removed from the
public rights-of-way without permission from the City Forrester
and City Planner.
3. Reolacement of Veqetat;on. Any vegetation within the
Landscaping Plan that are deemed dead or dying by the City
Planner or City Forrester shall be replaced within three (3)
months or, if not possible due to the end of the growing season,
by the beginning of the next planting season, Any trees, shrubs or
bushes that need to be replaced shall be done so with the same
species, Using a different species shall require approval from the
City Planner.
4. Veqetat;on Relocation. Ngo/Ky may relocate the new trees in the
landscaping plan to provide additional screening for the dwelling
or to ensure the long-term health of the trees subject to City
Planner approval. Ngo/Ky shall not reduce the total number of
trees in the Landscaping Plan.
5. Secur;tv. NGO/KY shall submit a financial surety in the amount of
125% of the estimated cost of the landscaping prior to the
beginning of the Landscaping Plan and prior to receiving any
building permits, The estimated cost of the landscaping plan is
$47,274. The surety shall include the landscaping for the entire
Property, including the shoreline landscaping, The financial
surety shall be subject to approval by the City's attorney on the
following release schedule:
a. 50% of the total security shall be released upon full
implementation of the Landscaping Plan that is approved
2
by the City and after successful inspection by the City's
staff.
b. 30% of the total financial security shall be released after
the first full year after implementation of a successful
inspection by the City's staff.
c. 20% of the total financial security shall be released after
the second full year in a successful inspection by the
City's staff.
B. Erosion Control. Best management practices shall be used to maintain
erosion control until construction and landscaping are completed.
Changes to the erosion control measures shall be subject to approval by
the City Engineer.
C. Rice Creek Permit. NGO/KY shall obtain and submit a copy of the City of
all necessary permits from the Rice Creek Watershed District before a
building permit is issued,
IN WITNESS WHEREOF, the parties have hereunto set their hands,
Hein Ngo
Nguyet Ky
CITY OF ARDEN HILLS
STATE OF MINNESOTA )
)
COUNTY OF )
On this _ day of , 200_ before me, a notary public within
and for said county, personally appeared Hein Ngo and Nguyet Ky, husband and wife,
who executed the same of their own free hand and will.
Notary Public
3
By:
Beverly Aplikowski
Its: Mayor
By:
Michelle Wolfe
Its: City Administrator
STATE OF MINNESOTA )
)
COUNTY OF )
On this _ day of , 200_, before me, a notary public within
and for said county, personally appeared Beverly Aplikowski and Michelle Wolfe, to
me known to be the Mayor and City Administrator, respectively, of the City of Arden
Hills, and they executed the foregoing instrument and acknowledged that they
executed the same by authority of and on behalf of City of Arden Hills.
Notary Public
4