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Kelly & Lemmons, P.A. ATTORNEYS AT L A W o Trevor S. Oliver toliver@kellyandlemmons.com July 6, 2010 Memo for Gem Lake City Council Re: Tangwall/Larkin Beach Installations 1. Facts Underlying the Opinion At some point in the summer or fall of 2009, the owners of 9 and 11 Hillary Farms Lane installed beach sand blankets on land adjacent to Gem Lake. It does not appear from photos or descriptions of the work that either sand area extends to the waterline of the lake. The photos, along with the statements of Mr. Tangwall's landscaper, lead me to conclude that neither project involved spreading 400 cubic yards or more of sand. I believe the representations of the landowners that they ordered clean beach -type sand that would be compliant with DNR regulations allowing beach sand blankets. It does not appear that either installation required any excavation prior to putting the sand down. There is disagreement between the owners of 9 and 11 Hillary Farms Lane and some neighboring property owners about the existence and type of vegetation on the property in the area that the sand was installed. The landowners and the landscaper maintain that no emergent wetland vegetation was removed or displaced in order to install the beach sand layer. Aerial photographs of the properties from 2003, 2006 and 2008 do not appear to show any significant vegetation in the area where the beach appears in the 2009 aerial photo; however, the County's aerial photos tend to be taken in the autumn after leaves have fallen. Neighbors recall the shoreline areas in question as having wetland -type vegetation, at least along the waterline. If these recollections are correct, it remains unclear whether this vegetation might have been removed by the builder during construction of the homes at 9 and 11 Hillary Farms Lane, or by the owners after construction. Neither the landowners nor the landscaper contacted City officials prior to installing the beach sand. No official of City of Gem Lake received notice of a pending installation or gave any authorization for the installation. While the landscaper clearly reviewed DNR regulations regarding beach sand blankets, I do not know whether any party contacted the DNR or VLAWMO regarding the work. The Mayor learned of the beach installation after its completion via citizen complaint. 2. Is the Beach an Illegal Use of Property? My opinion is that the beach itself is not illegal. Since the sand blankets do not reach the waterline, much less extend into the lake, the DNR's rules on beach sand blankets are not that 200 CROSSROADS, 7300 HUDSON BOULEVARD o SAINT PAUL, MINNESOTA 55128 TELEPHONE 651-224-3781 FACSIMILE 651-223-8019 www.kellyandlemmons.com