HomeMy WebLinkAboutCity Council Packet 01-08-1997 SpecialSPECIAL COUNCIL MEETING
WEDNESDAY, JANUARY 8, 1997
6:00 P.M.
Medicine Lake Room
I. Develop a Recommendation for City Council Approval for Resolving the
Ameridata Noise Issue.
MEMO
CITY OF PLYMOUTH
3400 PLYMOUTH BOULEVARD, PLYMOUTH, MN 55447
DATE: January 2, 1997
TO: Dwight Johnson, City Manager
FROM: Barbara Senness, Planning Supervisor through Anne Hurlburt,
Community Development Director
SUBJECT: Options for Resolving Ameridata Noise Issue
1. ACTION REQUESTED:
Consider options, including City financial participation, for resolving the Ameridata
noise issue. Develop a recommendation to be considered by the City Council at a
future meeting (January 22 or another date to be determined.)
2. BACKGROUND:
Ameridata's loading dock area has been a continuing source of noise complaints over
the past two and a half years. Noise first became an issue when Ameridata expanded
its facility, including the loading dock operation, during the Summer of 1994. Prior to
that expansion, neighbors had no complaints about the level of truck activity and its
associated noise.
Because of the number of interests involved and the nature of the various options
considered for resolving the problem, finding a solution acceptable to everyone has
been a difficult task.
Correspondence in the Planning files on this issue dates back to May 1994, when one
of the Planning staff forwarded copies of Ameridata's proposed expansion plans to the
Minnesota Pollution Control Agency. Staff sent these materials in response to a
request from Jim Olsen, one of the neighbors who lives adjacent to Ameridata. Two
attached memos summarize the history of this issue through August 1995. Since the
initial inquiry, City staff and the Mayor and Ward Council member have had countless
contacts and meetings with representatives of Ameridata, the owner of the Ameridata
building and the neighbors. All parties have looked at various options to resolve the
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noise problem, including operational and structural changes at Ameridata, additional
landscaping, noise walls or fencing, a noise ordinance and monetary settlements.
Over the past two years, Ameridata has made the following operational changes:
1. Chained off access to the loading dock area from 9:45 pm to 7:30 am to prevent
overnight parking of semi -trucks in the loading dock area.
2. Discontinued use of the public address system after 5 pm.
3. Replaced exterior light bulbs with a soft yellow bulb and added shields.
In addition, a number of other types of options have been looked and discarded during
the last two years. They are outlined below.
Both Ameridata and the City have looked into the costs of moving the loading docks to
the east side of the Ameridata building. This would cost an estimated $1.5 million
dollars. In addition, there is a high quality wetland on the other side of the building
that would make it difficult to relocate the loading docks without impacting the
wetland.
Consequently, following several sets of noise monitoring that indicated some violations
of the state noise standards, staff and a noise consultant looked into what height and
type of noise wall might address the problem. After discussing a possible 20 -foot high,
320 -foot long noise wall with the neighbors, they at one point agreed that a more
modest wall at the same elevation as the existing trail together with additional
landscaping could provide adequate screening with less visual impact. Throughout
these discussions, City representatives indicated that the City could provide some level
of funding for landscaping as well as for the shorter wall. This option was eventually
dropped when Eric Blank indicated that a wall would have to be set back from the trail
at least three feet for safety reasons and when the neighbors found out the potential for
major tree loss with this option.
During the course of addressing this specific noise complaint, City staff looked into the
issue of noise associated with loading docks wherever they are located adjacent to
residential neighborhoods in the City. The result of this work was a draft noise
ordinance. A key element of this ordinance that is not part of the City's current code is
measurable standards. Last fall, the Planning Commission held a public meeting to
gather comments on the draft ordinance and the City Council has had preliminary
discussions about it. The City Council raised a number of questions about the
ordinance and how it would affect existing industrial operations. Until these questions
are answered, staff would not feel comfortable recommending approval of a noise
ordinance. In addition, the owner of the Ameridata building has threatened a lawsuit if
the new ordinance is adopted (see attached letter from Lou Oberhauser).
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3. OPTIONS FOR RESOLVING NOISE ISSUE
In addition to the potential of passing a stricter noise ordinance to address the
Ameridata noise issue, there are two other remaining options; 1) a monetary settlement
and a decorative wall with landscaping, or 2) construction of a noise wall.
The first option is a monetary settlement that would include cash payments of $20,000
each to the three affected homeowners in return for a covenant on their property that
entitles Ameridata to operate within the parameters of state noise standards. A copy of
draft covenant language is attached. The neighbors have reviewed this language and
could find it acceptable with the removal of paragraph 4 which relates to noise level
measurements (refer to attached agreement). Under this option, the City would
construct an eight -foot high, 320 -foot long decorative fence at roughly the same
elevation as the trail and plant additional landscaping. A decorative wall would not
mitigate the noise problem, although it would provide a visual barrier. Another
disadvantage of this option is that some tree loss would likely occur with the
construction of even an eight foot decorative fence. The total cost of this option is
75,000 to $80,000.
The second option is the construction of a 20 -foot high, 320 -foot long noise wall at the
curb line on the Ameridata site. The noise study conducted for the City by David
Braslau indicated that such a wall would satisfactorily address the existing noise
problem for the neighbors. This option, although somewhat more expensive, has the
advantage of being a more permanent, immediate answer to the noise problem, and
would not remove trees. Based on information obtained from the Minnesota
Department of Transportation, a noise wall of this size and length would cost about
85,000.
4. FINANCING A SOLUTION OF THE NOISE ISSUE
Ameridata, Jim McCleary, the owner of the building housing Ameridata and the City
have all indicated some level of financial support to resolve the noise problem.
However, Jim McCleary also suggested the option of the City assessing for
construction of a noise wall. The terms of the lease with Ameridata would allow him
to pass on the assessment or a portion of it to Ameridata. This option has been rejected
because the City Attorney has opined that Ameridata would have standing to protest
such an assessment and could successfully allege no benefit from the assessment (refer
to attached letter from Roger Knutson).
Ameridata's attorney suggested a tax reduction method of financing a solution to the
problem. The City Attorney has also opined that this is not a viable option (refer to
attached letter from Roger Knutson).
On an individual basis, Jim McCleary has indicated that he would put in $30,000 to
solve the problem. If the settlement option became the preferred option, he would also
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require an agreement with the City stating the City would repay the $30,000 if they
ever adopted a noise ordinance more stringent than State standards.
Ameridata has indicated that they would put in $10,000, provided they received a
similar agreement for the settlement option or a report from a sound expert verifying
that the wall would satisfactorily resolve the noise problem.
In the past, City staff have indicated that the City could look at putting in up to
10,000 for landscaping and fencing. Staff felt that some City participation may be
justified in this unique situation, because of the City's role in providing TIF assistance
for the expansion that contributed to the problem, and because there have been some
documented noise standard violations.
Regardless of which option is preferred, this leaves a sizable unfunded balance of at
least $25,000 to $35,000. The Finance Department suggests that any additional City
funding come from the Project Administration Fund or the 1996 year-end General Fund
surplus, in that order of priority.
5. SUMMARY OF ALTERNATIVE ACTIONS:
The parties have identified the following alternative actions:
a. Approve a new noise ordinance, the options including 1) the one drafted by the City
Attorney with input from a noise consultant and 2) a version of the model ordinance
prepared by the League of Minnesota Cities.
b. Purchase noise easements on the three affected residential properties for $20,000
each with the City constructing a decorative fence with landscaping in its trail
easement.
c. Construct a 20 -foot high, 320 -foot long noise wall at the curb line on the Ameridata
site at an estimated cost of $85,000.
6. RECOMMENDATION:
Staff believes that Option 3, construction of a noise wall, is the best long-range
solution. Further, we believe that the City could justify an expenditure of up to
30,000 to match the building owner's offer of $30,000 to construct the wall, with
funding coming from the Project Administration Fund. We recommend that this option
be considered by the City Council at a future meeting (January 22 or another date to be
determined.)
ATTACHMENTS:
1. Location Map
2. August 4, 1995 Memo on Ameridata History
3. September 11, 1996 Letter from Lou Oberhauser
4. Draft Agreement of Easement Waiver and Release
5. December 12, 1996 Letter from Roger Knutson
6. December 27, 1996 Letter from Roger Knutson
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Cl,1w
MEMO
CITY OF PLYMOUTH
3400 PLYMOUTH BOULEVARD, PLYMOUTH, MN 55447
DATE: August 4, 1995
TO: Joy Tierney, John Edson, Dwight Johnson, Anne Hurlburt
FROM: Barbara Senness
SUBJECT: Ameridata "History"
The following memo outlines a number of key dates and actions, related to the
Ameridata noise issue. I have also attached a memo that summarizes phone calls and
activities between May 1994 and November 1994.
Mar. 2, 1987 City Council approved 48,420 square foot first phase of
Ameridata with 3 loading docks.
Sept. 1, 1987 Final inspection of completed Ameridata building.
July 10, 1989 City Council approved Wild Wings 4th Addition immediately
adjacent to existing Ameridata building.
June 1992 Olsen's house completed (see attached map).
Nov. 1992 Held's house completed (see attached map).
Jan. 1993 Frost's house completed (see attached map).
Feb. 7, 1994 City Council approved 75,760 square foot expansion of
Ameridata with 4 additional loading docks (71,560 square feet of
warehouse --54,240 initially and 17,520 later in second level
addition --and 4,200 square feet of office).
May 1994 Jim Olsen contacted John Keho regarding potential noise
problems and asked staff to forward a copy of Ameridata's plans
to the Minnesota Pollution Control Agency (PCA) for review.
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May 19, 1994 Representatives from Ameridata and Ryan Construction, Mayor
Tierney and the neighbors met to discuss noise issues related to
the existing and future loading docks.
May 25, 1994 John Keho forwarded a copy of Ameridata's plans to Charlie
Kennedy at the PCA.
June 3, 1994 Charlie Kennedy, PCA, sent a comment letter to John Keho
regarding the potential for noise problems at Ameridata.
June 9, 1994 Neighbors sent a letter to John Keho outlining the nature of the
noise problems at Ameridata and suggested actions to address
these problems.
Sept. 21, 1994 Final inspection of completed Ameridata expansion.
June -Nov. 1994 Numerous phone conversations and site visits regarding the
noise, glare and landscape issues at Ameridata. Refer to
attached November 26, 1994 memo.
Nov. 7, 1994 Neighbors presented a petition at the Plymouth Forum regarding
noise and glare problems at Ameridata.
Mid Nov. 1994 Barb Senness met with Jared Sour, toured Ameridata facility and
discussed operational options to address noise and light glare
problems.
Dec. 5, 1994 Letter from Lou Oberhauser to Barb Senness briefly summarizing
what Ameridata had done to date to be a "good neighbor."
Dec. 29, 1994 Dwight Johnson, Elliott Knetsch and Barb Senness met with Jim
Olsen, Gary Frost and Bob Dahlman to discuss the various
aspects of the noise problem and viewed a video of actual
conditions on Jim Olsen's deck. Elliott agreed to prepare a
memo summarizing the City's legal position.
Jan. 16, 1995 Initial memo from Elliott Knetsch regarding the Ameridata noise
issue and the City's potential liability.
Feb. 1, 1995 Dwight Johnson, Elliott Knetsch and Barb Senness met with
Ameridata representatives, including Jared Sour, Vice President
of Operations, Lou Oberhauser, attorney and Mike Supinger,
Distribution Center Manager to discuss the noise problem from
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Ameridata's perspective. Lou agreed to write a detailed letter
indicating what Ameridata had done and was willing to do
operationally to reduce the noise and glare problems.
Feb. 15, 1995 At the request of Jim Olsen, Brian Timmerson from the PCA
contacted Barb Senness to ask if the City would voluntarily agree
to build a wall at Ameridata and impose time restrictions on
loading lock usage.
Mar. 6, 1995 Jim Olsen contacted Barb Senness and indicated that his attorney
was still tied up and therefore any further actions such as noise
monitoring should be held up pending that response.
Apr. 19, 1995 City received memo from neighbor's attorney regarding the noise
problem.
June 2, 1995 Elliott Knetsch completed a memo that responded to the issues
raised in the memo from the neighbor's attorney.
June 20, 1995 Dave Braslau monitored noise from the Olsen's property.
June 23, 1995 Elliott Knetsch sent a reminder letter to Lou Oberhauser
regarding furnishing the City with logs of truck usage and trash
compactor pickups, measures taken to reduce noise and glare and
noise abatement potential for the trash compactor.
June 25, 1995 Joy Tierney, John Edson, Dwight Johnson, Barb Senness and
Dave Braslau met with Jim Olsen and Chris Held to discuss the
results of the noise monitoring and the subsequent
recommendations. The City agreed to do additional monitoring
on Friday, June 28 to obtain data on impulse noise levels.
June 27, 1995 Minnesota Pollution Control Agency staff monitored noise from
the Olsen and Frost properties.
Aug. 1, 1995 Elliott Knetsch sent a follow up letter to Lou Oberhauser
regarding the request made in his June 23 letter.
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W1
CITY OF PLYMOUTH
3400 PLYMOUTH BOULEVARD, PLYMOUTH, MN 55447
DATE: November 26, 1994
TO: Dwight Johnson, City Manager
FROM: Barbara Senness, Planning Supervisor
SUBJECT: Ameridata
City staff has been in frequent contact with Jim Olsen since May 1994 regarding a
variety of issues he has with the Ameridata operation. Mr. Olsen initially voiced his
concerns in May 1994 when he contacted John Keho. As a result of that contact, John
in turn contacted Charlie Kennedy at the Minnesota Pollution Control Agency
MPCA), forwarding a copy of Ameridata's expansion plans as the City had recently
approved. Mr. Kennedy responded on June 3, noting that depending on the type and
level of activity in a loading dock area, it is not uncommon to monitor typical noise
sources (truck traffic, engine noise from idling trucks, back-up beepers, etc.) in excess
of state noise standards. As noted in my August 3, 1994 memo, I contacted Mr.
Kennedy and indicated that his letter was very general, but had the effect of giving Mr.
Olsen the notion that a noise problem does in fact exist with the Ameridata operation. I
asked Mr. Kennedy if I gave him hours of operation, number and type of trucks, etc.,
if he could give me a ball park indication whether a violation might be occurring. He
responded that he could not because of potential liability. He did indicate that the
MPCA has an enforcement procedure if a complaint is made and can require mitigation
if a violation is occurring.
About the same time, Mr. Olsen and several of his neighbors sent a letter to John
Keho, detailing their complaints about Ameridata. Their complaints included noise
associated with the construction of Ameridata's addition, truck noise at the loading
docks, the inadequacy of proposed landscaping to mitigate noise levels and the potential
damage to mature trees in the area as a result of Ameridata's expansion.
Subsequent to the receipt of that letter, I had my first conversation with Jim Olsen.
Mr. Olsen indicated that he had monitored the truck noise from a point on his deck and
believed that the Ameridata operation does in fact exceed State noise standards.
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Because Ameridata was at that time in the process of expanding, Mr. Olsen indicated
that he wanted them to erect a noise wall as part of the construction project. Mr. Olsen
also stated that the landscape buffer between his home and Ameridata was inadequate.
I told Mr. Olsen that I would check with Ameridata and get back to him.
Prior to contacting Ameridata, I spoke with Dave Braslau, a "noise" consultant. He
indicated that it would make sense to wait until the current expansion was complete to
undertake any monitoring. I then contacted Ameridata and spoke with Jared Sour,
Vice President of Operations. After some discussion about this issue, Mr. Sour took
down Dave Braslau's number and indicated the he would contact him.
Before I had an opportunity to contact Mr. Sour again, Mr. Olsen contacted me. He
reaffirmed his concerns about both noise and landscaping. I indicated that I would look
into the landscaping question and contact Mr. Sour regarding the noise issue.
I spoke with Mr. Sour on August 1 and he indicated that Ameridata was looking into
saving some additional trees in the area that would further screen Mr. Olsen's property
from Ameridata. He also indicated that Ameridata would conduct noise monitoring
after the exterior construction was completed. He also indicated that he would have
Ameridata's attorney contact me.
I spoke with Louis Oberhauser, the company attorney, and he further noted that
Ameridata felt it would be more useful to conduct noise monitoring after a static
condition was achieved. I agreed that it made more sense to have all the necessary data
before determining an appropriate resolution to the noise question. We also discussed
the current problem of idling trucks in the loading dock area and he indicated that he
would address this problem immediately. He further stated that he would contact Mr.
Olsen and let him know about Ameridata's intentions.
After Mr. Oberhauser left a detailed voice mail message for Mr. Olsen, Mr. Olsen
contacted me about receiving a copy of the City's landscaping standards. He indicated
his continuing concern about this matter. I indicated that it is not possible to plant a
20 -foot tree and expect it to survive. I further noted that the landscape policy did not
require that the building be fully screened from his property. He stated that it would
not even screen the trucks in the loading dock area. I indicated that I would discuss the
landscape plan with our City Forester.
Mr. Olsen also indicated that he wanted the noise monitoring done right now and that
he was in the process of contacting an attorney about this matter. He noted that he had
called the police on several occasions, including the morning of August 3, regarding
noise from garbage delivery and the unloading of a back hoe. Since none of the
violators were still in the area when the squad car arrived, the office explained to Mr.
Olsen that he would need to come in and fill out a complaint before the City could
pursue the matter. I underlined that if he pursued a formal complaint, that the City
would in fact follow up on his concerns. I further stated I felt it made more sense to
I
wait with the monitoring until exterior construction was completed. We discussed this
matter at length and Mr. Olsen indicated that even though exterior construction would
be completed soon, he would be contacting an attorney prior to completion. He stated
that he believes the City has not lived up to State law which requires us to make sure
that we do not allow a use to come in that will exceed State noise standards.
Following up on the landscape issue, on Friday, August 5, 1994, I visited the
Ameridata site with Paul Buck. Paul noted that three of the larger trees would
probably be lost along the trail, but that the largest tree would probably survive. He
also noted that reseeding is occurring and will produce another generation of trees in
the future. In the area where there is a gap in the landscaping, he indicated that the
City could put in two or three trees and some shrubs. He advised against evergreens
because of the light conditions and noted a dead evergreen in the vicinity that illustrated
his point.
I contacted Jim Olsen regarding Paul Buck's offer to plant some trees and shrubs along
the City's trail adjacent to Mr. Olsen's home. He said he would contact Paul, but his
issue remained that the City should not have approved a plan that allowed Ameridata to
build so close to the City's trail that they did not have sufficient room to put in proper
screening from adjacent uses.
Subsequent to this conversation, Mr. Olsen contacted Paul Buck. As a result of this
conversation, Mr. Olsen, Paul and a representative from Ryan Construction met on the
site and all agreed that Ryan would not construct a retaining wall on the western edge
of Ameridata's property and would shift much of the landscaping proposed for the
northern edge of the site to the western area between Ameridata and Mr. Olsen's
property.
On August 8, 1994, I spoke with Charlie Kennedy regarding how cities were supposed
to respond to the state rule preventing the establishment of land use activities in any
location where the state noise standards will be violated immediately upon
establishment of the land use.
Charlie indicated that rule was written in 1974 and its intent was not to allow
residential development along major freeway corridors where noise will surely be a
problem. He also noted that this part of the rule has never been enforced or tested. He
further noted that if a citizen did request that the MPCA monitor a site such as
Ameridata and they were found to be in violation of state standards, Ameridata would
be the liable party, not the City.
He also indicated that he had informed Jim Olsen that the MPCA would come out and
monitor the site if he made a formal request. Mr. Olsen has not followed through on
this option. Charlie also stated that the MPCA has a policy not to monitor during
construction.
tv
I discussed my conversation with Charlie Kennedy with Mr. Olsen. He indicated that
he still wanted to talk to an attorney about what his rights are in this matter. He did
say that in recent conversations with Lou Oberhauser, Ameridata's attorney, they
discussed the possibility of Ameridata making operational changes in the loading dock
area. Specifically, Lou indicated he would look into whether loading dock use could
be limited to daytime use. Mr. Olsen indicated that this would be an acceptable
resolution of the noise problem.
On September 14, Mr. Olsen did make a formal complaint to the City citing Ameridata
as a public nuisance. After receiving the attached complaint, I tried to contact Jared
Sour. After several rounds of phone tag, I spoke with Jared on Sept. 30. He indicated
that Ryan Construction had ordered hoods for the lights on the building, but since it
was taking a long time to obtain them, they painted the lights black.
Jared also stated that Ameridata has just added a trash compactor that will dramatically
alter their garbage pick-up activity. They anticipate that pick-up will occur about twice
a month. He stated that he would speak to the new garbage hauler about picking up
after 7 a.m.
After my conversation with Jared, I called Jim Olsen and communicated the
information outlined above. He was reasonably satisfied with the garbage issue,
assuming that the new hauler does respect the pick-up time frames outlined in our code.
He indicated that he would double check the light problem over the weekend, but he
believed that there is no difference in the glare. He stated that without shields, they
shine straight over to his home.
Jim called me back on October 5, stating that the light intensity has not dropped off
noticeably. He said he was not concerned about waiting a couple of weeks longer for
the shields, but any longer than that and he would expect Ameridata to turn off the
lights until the shields can be installed.
He also noted that the landscaping was not done, but Ameridata was occupying the
expansion area. I indicated that I would look into the matter.
On October 10, I spoke with Bill Krake, Ryan Construction, and he indicated that Ryan
is holding on the landscaping until they get a final OK from the City. Paul Buck
reviewed the revised landscaping plan and OK'd it. I then contacted Bill and gave him
the go ahead.
Jim Olsen also questioned when Ameridata received approval to occupy their expansion
area. When I indicated that they obtained final approval on September 21, he
questioned why the landscaping was not completed by that date. I indicated that such a
situation was frequently the case.
Jim also asked about the light shields. I indicated that I would get back to Ryan
Construction and check on the timing. I contacted Bill Krake and he indicated that he
would check and get back to me. After not hearing from Bill over roughly two weeks,
I again contacted him and learned that the shields were to be installed on November 15.
After Mr. Olsen presented his petition to the Plymouth Forum, I again spoke with him.
He stated his interest in getting background on the City's earlier approvals of
Ameridata's facility. He also said that although he would look at an operational plan,
he felt that the loading docks were a mistake, that somebody blew it and that he and his
neighbors would therefore not compromise their position that Ameridata move their
loading docks. He stated that if the loading dock operated primarily during the day, he
would at some point be limited to selling his home to a family where both adults work
during the day.
After my conversation with Mr. Olsen, I met with Jared Sour on the site. He gave me
a tour of Ameridata's operation. He noted that substantial alterations would need to
occur in order to move loading docks to the east side of the building. This would
include both interior and exterior alteration. Such a move would also place the loading
docks immediately adjacent to the playground for the day care center located within
Ameridata. This center is used by Ameridata employees and residents of the
neighborhood.
While touring Ameridata, I met Jim McCleary, owner of the Ameridata buiding. He
indicated that he was very happy in Plymouth because many of his 200 or so employees
live in the area. However, he did say that at least two other communities have courted
him and if a reasonable solution could not be reached with Mr. Olsen, he would have
to consider his other options.
During our meeting, Jared agreed to monitor the loading dock area and the trash
compactor for a period of one week. He also stated that I could contact the company
attorney and Ryan Construction regarding the operational plan and a construction
estimate for moving the loading docks. These items should be forthcoming within the
next week.
I also checked back in the earlier Ameridata files as Mr. Olsen requested. None of the
City's previous actions contain any comments about the loading docks --either positive
or negative.
Allan Barnard and I have also discussed the question of public nuisance that Mr. Olsen
and his neighbors allege that Ameridata has become. I am expecting a memo from him
on this matter.
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Continuation form attached
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SUBDIVISION G - PERFORMANCE STANDARDS
1• intent
Section 8, Subdivision G
It is the intent of this Subdivision to provide that all non-residential
uses and related activities shall be established and maintained with proper
appearance from streets and adjoining prope-rties and to provide that each
such use shall be a good neighbor to adjoinin.g_properties by the control ofthefollowingstandards.
2. 5tandards_
a• Landscaping. All yard areas shall either be open landscaped and
green areas, or be left in a natural state. Yards to be landscaped
shall be landscaped attractively with lawn, trees, shrubs, etc. in
accordance with the adopted Policy establishing Minimum Landscape
Standards and Criteria for Urban Development. Any areas left in a
natural state shall be kept free of litter, debris, and noxious weeds.
Yards adjoining any of the Classes of Residence Districts shall contain
a buffer or screen approved as a part of the site plan and installed
prior to issuance of a Certificate of Occupancy for any tract in thedistrict.
b. Glare. Glare, whether direct or reflected, such as from floodlights
or high temperature processes, and as differentiated from general
illumination, shall not be visible at any property line.
c. Exterior Lighting. Any lights used for exterior illumination shall not
be visible at any property line.
d. Vibration. Vibration shall not be discernible at any property line to
the human sense of feeling for three minutes or more duration in any onehour. Vibration of any kind shall not produce at any time an
acceleration of more, than 0.1 gravities or shall result in anycombinationofamplitudesandfrequenciesbeyondthe "safe" range of
Table VII United -States Bureau of Mines Bulletin No. 422, "Seismic
Effects of Quarry Blasting", on any structure. The methods and
equations of said Bulletin No. 422 shall be used to compute all values
for the enforcement of this Provision. Said bulletin is. incorporated
herein by reference.
e. Noise, Odors, Smoke, Dust, Fumes, Water and Waste.
I) The design, construction and performance of all non-residential
uses shall be in conformance with City, County, and State of
Minnesota standards and regulations.
2) Plans for new developments requiring site plan approval shall
specify the design and location of facilities for the storage and
disposal of waste as set forth in this Code. Plans for such
facilities at existing developments shall be approved by the Citypriortoconstruction.
3) The storage and facilities for the disposal of trash, garbage,
refuse, rubbish, and the like shall be located either 'in approved
areas inside the principal building, or otherwise shall be located
in an approved accessory building or enclosure outside the
principal building.
8-15
15
COPY
OiERHAUSER & NEVEAUX
A PARTNERSHIP OF PROFESSIONAL CORPORATIONS
ATTORNEYS ANO COUNSELORS AT LAW
1421 EAST WAYZ_ATA BOULEVARD -SUITE 210
WAYZATA, MINNESOTA 55391
LOUIS B. OBERHAUSER`
JACK NEVEAUX` 612) 473-2521
A Professional Association FAX (612) 473-7863
BACKUP FAX (612) 473-0265
September 11, 1996
CITY OF PLYMOUTH
Attention: Joycelyn Tierney, Mayor
3400 Plymouth Boulevard
Plymouth, MN 55447
Re: JAMES K. McCLEARY and
CAROL A.E. McCLEARY
5480 Carrie Lane
Shorewood, MN 55331
Our File No: 4113-26
Dear Mayor Tierney and members of the
Plymouth City Council:
On behalf of James K. and Carol A.E. McCleary, (theMcClearys") who are the owners of the property at 10200 51stAvenueNorth, Plymouth, Minnesota, I would like to go on record
opposing the proposed ordinance as it relates to the operation ofloadingdocks.
As you probably know, Mr. McCleary was originally the majorityownerofAmeriData, Inc. ("AmeriData") and in 1993, sold his
majority interest to AmeriData Technologies, Inc. ("Technologies").
In July of 1996, all of Technologies stock was acquired byGeneralElectricCapitalCorporation ("General Electric").
AmeriData occupies the building as a tenant under the terms ofaleasethatissettoexpireinOctoberof2009.
As the McClearys attorney, I have been advised by the newownersofAmeriData, that the proposed noise ordinance, places the
16.
Joycelyn Tierney, Mayor and
Plymouth City Council
September 11, 1996
Page 2
tenant at a competitive
disadvantage with their competitors
operating in similarly zonedproperty, loading docks
without the restrictions
as it relates to the operation
I have been further advised that the tenant believes that the
adoption of the enforcement of
conduct
this ordinance
business andcould
impact the tenant's ability
ously
t .
estin that
result in a constructive
in an
eviction.
ef fort
The
to terminate the gleasegas it
they will go torelatestothis property if this ordinance is adopted.
The existing lease runs through September 30th, 2009. The net
lease is $44,366.00 per month• This rent is
in the
Consumersubject PriceoIpdexodic
escalations based upon the change
It is plain to see that if the adoption of this ordinance
results in the tenant terminating the lease, that the McClearys
will incur a substantial loss. If this occurs, the McClearys will
City
have no choice but to mathet tenant to
City of t
term tate "the 'lease as)
party
the
to
any action brought byMcClearyswilllookfor enumeration from the City.
As I have mentioned in the past, I believe your attempt to
adopt this ordinance to placate
bad government, at
bestcity
that are
affected by loading docks,
Noise pollution is covered by the Minnesota Pollution Control
Agency ("MPCA")regulations. Noise is noise, and to distinguish
between noise created by loading docks versus noise being created
by some other entity, or from a residential property,
versus an
industrial property, leaves one to question the fairness of the
proposed ordinance.
I do not know what other industrial buildings with loading
docks would be affected by this ordinance, but I am veryfamiliar
with the facts and circumstances surrounding this particular
property.
Joycelyn Tierney, Mayor and
Plymouth City Council
September 11, 1996
Page 3
At the time this property was developed for the McClearys by
Ryan Construction Company, Inc., the property in question and the
adjacent property, which is now occupied by residents that are the
beneficiaries of this proposed ordinance, was zoned or guided as
industrial property.
After AmeriData's initial building and loading docks were
constructed and in place, residential development took place on
this adjacent property.
The people who purchased that property were aware of the
existence of the industrial property and the location of the
loading docks.
It is not a question of them initially constructing their
houses next to vacant residential land and subsequent thereto,
having the land developed for industrial purposes -
I sympathize with the property owners and their being annoyed
by the noise associated with the operation of a loading dock, but
on the other hand, the price they paid for the property was less
because of its location and I do not feel that the proper cure for
the problem is the noise restriction on the industrial property.
There comes a time in the operation of any governmental unit,
when the elected officials need to disassociate themselves from the
voters, and to make decisions based upon what is reasonable and
equitable to all of the parties, including the non-voting
industrial property owners.
The failure of the City Council to face up to their
responsibility will only result in an ordinance being adopted which
could create a substantial economic hardship on the people who
bought a developed industrial property within the City in reliance
on the zoning laws. This also may subsequently result in the City
being required to pay substantial amounts in damages to the various
owners should tenants --be successful in terminating leases based
upon the restrictions contained in the proposed ordinance or the
owners being unable to release the property at competitive rates.
12
Joycelyn Tierney, Mayor and
Plymouth City Council
September 11, 1996
Page 4
It appears that the City would be further ahead by
constructing whatever noise barrier is necessary within the area
and assessing the cost of the same against the benefit properties,
or picking up these costs as the costs of operating the City rather
than trying to shift this burden to the owners of the industrial
zoned property which was developed under the control and
supervision of the City.
Would you please keep me advised as to any hearing dates that
are to be held with reference to this proposed ordinance.
LBO: ej w
cc: James K. McCleary and
Carol A.E. McCleary
Sincerely-Z d ,
B. OBERHAUSER
FROM POPHAM HAIK MPLS MON) 11. 25' 96 15:50/ST. 15:49/NO. 3700000007 P 3
ff
AGREEMENT OF EASEMENT
WAIVER AND RELEASE
THIS AGREEMENT (the "Agreement") is made and entered into this _ day of
1996, by and betwecn a
collectively, "Grantor"), and . a
Grantee").
RECITALS:
A. Grantee is the fee owner of real property situated in Hennepin County,
Minnesota, legally described on Exhibit A attached hereto and made a part hereof (the
Property").
B. Grantor is the fee owner of the property legally described on Exhibit B
attached hereto and made a part hereof (the "Easement Area"), and the Grantor and Grantee
desire to enter into a specific agreement to allow for sound and noise to be emanated from
the property toward, over, across and upon the Easement Area, in consideration for the
payment to Grantee hereafter specified.
NOW. THEREFORE, in consideration of the foregoing, and other good and valuable
consideration, the parties agree as follows:
1. In_g Q=ration of Recitals. The foregoing Recitals are incorporated as part of
this Agreement as if fully set forth herein.
2. Considerations Grant of Easement. In consideration for the payment of Twenty
Thousand and No/100 Dollars ($20,000.00) from Grsntcc to Grantor, the receipt of which is
acknowledged. Grantor hereby grants, sells, and conveys to the Grantee a permanent
easement over, across, and upon the Easement Area described on Exhibit B for the benefit of
Grantee, its Lessee Ameridata, Inc., and successor Lessees and occupants of the Property
hereto for the purpose reflected in Section 3 beluw.
3. Use of Easement Areas by Grantee. Subject to all applicable laws and
ordinances, Grantee, its Lessee Ameridata, Inc., and successor lessees and occupants of the
Property may emit sound and noise toward, over, across, and upon the Easement Area
normally and customarily arising from and generatcd by the operation of a distribution
warehouse on the property of the Grantee, including but not limited to sound and noise
generated by the ingress and egress of truck traffic, and the unloading of trucks between 7:00
a.m. and 10:00 p.m.(the "Permitted Sound Levels").
4. Sound and Noise Level Measurements. For purpose of determining sound level
within the easement area, all sound and noise measurements shall be performed in the
easement area at ground level and 300 feet distant from the boundary line of Grantee's
property closest to the sound or noise source.
OM2126403 11/25/%
FROM POPHAM HAI K MPLS MON) 11. 25' 96 15:50/ST. 15:49/N0. 3700000087 P 4
S. Waiver and Relcase. In consideration for the payment from Grantee to Grantor
herein rcflcctcd, Grantor hereby waives and releases all claims, suits, causes of action,
including but not limited to tort, breach of contract, or arising by statute, ordinance, or
common law, or however else arising, whether now existing or hereafter arising in the future
relating to sound or noise emanated from the Grantee's property described in Exhibit A up to
the Permitted Sound Levels. This waiver and release shall inure to the benefit of Grantee, its
Lessee Ameridata, Inc_, successor lessees or occupants of Grantee's property, the Grantee's
successors and assigns, and the City of Plymouth.
b. Binding Effect. This Agrecment shall run with the land and shall be binding
on and inure to the benefit of the parties hcrcto, their heirs, successors and/or assigns_
7. WbQle Agreement; Modification. This Agreement contains all of the terms and
conditions relating to the Easement granted herein, and the agreement of Waiver and Release,
and replaces any oral agreements or other negotiations between the parties hereto and relating
to the same. No modifications to this document shall be valid until they have been placed in
writing and signed by all parties hereto.
8. Ngo. Notices required hereunder shall be personally delivered or mailed by
U.S. first class certified mail, postage prepaid, to the following addresses:
If to Grantor:
If to Grantee:
9. Recordation. This Agreement and any modifications hereof shall be recorded
by the Grantee and the costs for such recordation shall be at Grantee's sole cost and expense.
10. Counterp5. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which counterparts together shall constitute
one and the same instrument.
11. Ql !mership_ Grantor represents and warrants that they are the lawful owner of
the Property and has full right and authority to enter into this Agreement.
ar 7126403 ti tnsrvb 2
9,
FROM POPHAM HAIK MPLS MON) 11. 25' 96 15:51/ST. 15:49/NO. 8700000087 P 5
IN WITNESS WHEREOF, the parties have executed this Easement and Waiver and
Release as of the date first above written.
INSERT ACKNOWLEDGMENT FOR GRANTOR]
INSERT ACKNOWLEDGMENT FOR GRANTEE]
CONSENT AND JOINDER BY MORTGAGEE
is the Mortgagee of the real property
described as , Hennepin County, Minnesota, by a
Mortgage filed for record in the Office of the , Hennepin County,
Minnesota, as Document No. . In its sole capacity as Mortgagee,
homby conscats to and joins in this Easement Agreement and
hereby declares that said real property hereby is and shall be hold, transferred, sold, conveyed
and occupied, subject to the easement hereinabove set forth, which easement shall run with
the real property and be binding upon all parties having any right, title or interest in the
hereinabove described property, their heirs., successors and assigns, and shall inure to the
benefit of each owner thereof, provided, however, that said consent and joinder is hereby
made solely for the purpose of burdening and subjecting said real property with the easement,
conditions, restrictions hereinabove set forth -
00'7r22126403 11/25/96 3
FROM POPHAM HAIK MPLS (MON) 11. 25' 96 15:51/ST. 15:49/NO. 3700000-"57 P 6
IN WITNESS WHEREOF, has caused this
Consent and Joinder to be executed this — day of 1996.
Its
INSERT ACKNOWLEDGMENT FOR MORTGAGEE)
THIS INSTRUMENT WAS DRAFTED DY:
Popham, Hak Schnobrich & Kaufman, Ltd.
3300 Piper Jaffray Tower
222 South Ninth Street
Minneapolis, MN 55402
612) 333-4800
4-W=09" 11/25/96 4
CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A.
Thomas J. Campbell
Roger N. Knutson
Thonuts M. Scutt
Guy G. Fuchs
James R. Walston
Elliott P. Knetsch
Sucsan Lea Pace
BY FAX AND MAIL
Attorneys at Law
612) 452-5000
Fax(612)452-5550
December 12, 1996
Ms. Barb Senness
City of Plymouth
3400 Plymouth Boulevard
Plymouth, Minnesota 55447-1482
RE: AMERIDATA
Dear Barb:
Andrea Nkl),nkcll Poehler
Ml ittht:w K. Brokl"
I,hn F. Kelly
M ireueritc I. McC irron
T. Stcphensun
AmeriData has suggested a "tax reduction method of financing the solution to the
sound problem" [Steilen letter dated December 11, 19961. You asked for my comments
on the proposed solution.
Mr. Steilen's letter indicates that tax reductions would be achieved by reducing the
valuation of AmeriData's property. He argues that the noise issue would result in a
potential buyer paying less for the property. The method for valuing property for the
purpose of taxation is delineated in Minnesota Statutes Chapter 273. Section 273.11
provides "all property shall be valued at its market value". Market value is defined as:
The usual selling price at the place where the property to
which the term is applied shall be at the time of assessment;
being the price which could be obtained at a private sale or
an auction sale, if it is determined by the assessor that the
price from the auction sale represents an arms length
transaction. The price obtained at a forced sale shall not be
considered. Minn. Stat. § 272.03, Subd. 8.
If the County Assessor agrees the noise problem, or anything else for that matter,
has caused a reduction in the market value of AmeriData's property, then it should be
adjusted accordingly. You indicated to me that the County Assessor does not believe the
market value has been reduced because of the noise issue.
Suite 317 e Eagandale Office Center • 1380 Corporate Center Curve • Eagan, M\ 55121
I {X -iFwiI
2ATI ;
L711-70-1171-7,01;
AmeriData has suggested a "tax reduction method of financing the solution to the
sound problem" [Steilen letter dated December 11, 19961. You asked for my comments
on the proposed solution.
Mr. Steilen's letter indicates that tax reductions would be achieved by reducing the
valuation of AmeriData's property. He argues that the noise issue would result in a
potential buyer paying less for the property. The method for valuing property for the
purpose of taxation is delineated in Minnesota Statutes Chapter 273. Section 273.11
provides "all property shall be valued at its market value". Market value is defined as:
The usual selling price at the place where the property to
which the term is applied shall be at the time of assessment;
being the price which could be obtained at a private sale or
an auction sale, if it is determined by the assessor that the
price from the auction sale represents an arms length
transaction. The price obtained at a forced sale shall not be
considered. Minn. Stat. § 272.03, Subd. 8.
If the County Assessor agrees the noise problem, or anything else for that matter,
has caused a reduction in the market value of AmeriData's property, then it should be
adjusted accordingly. You indicated to me that the County Assessor does not believe the
market value has been reduced because of the noise issue.
Suite 317 e Eagandale Office Center • 1380 Corporate Center Curve • Eagan, M\ 55121
Ms. Barb Senness
RE: AmeriData
December 12, 1996
Page 2
The market value of AmeriData's property cannot be used to finance a solution to
the noise problem. We are required to value the property based upon market value, not
to solve other problems. If we adjust the valuation of AmeriData's property downward
the property tax burden would be unfairly shifted to other property owners in the City.
Very truly yours,
AMPBELL, KON, SCOTT
FgCHS, P.A.
BY:
Ro
RNK: srn
Knutson
12/30/96 MON 09:06 FAX 612 452 5550 C K S & F -44 PLYMOUTH
CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A.
Thurna% J. Unnpbell
ftogcr N. Knutson
Thomas M. Sctxr
Ciary G- FLIC175
James R. W:+Ismn
Elliott B. Kncrsch
vin Lint Pwc
BY FAX AND MAIL
Attorneys at Law
612) 452-5000
Fax (612) 4.52.5550
December 27, 1996
Ms. Barb Senness
City of Plymouth
3400 Plymouth Boulevard
Plymouth, Minnesota 55447-1482
RE: AMERIDATA
Dear Barb:
Z002
Andrea WD7well ('c,chlcr
M, tthCw K. BrukV.
Jahn F. Kelly
Mai-guerite M. McCarron
Gworvc T. Stephenwt)
A6.r in wimow;in
You asked me if the cost of constructing a noise wall could be assessed to the
Ameridata property, and if it is assessed if the tenant could appeal. Minn. Stat. § 429.101
authorizes the City to assess the cost of "removal or elimination of public health or safety
hazards." It is arguable, but probably doubtful that a court would conclude that the noise
problem is a health or safety issue. If that hurdle is overcome we would then have to
prove that the value of the Ameridata property increased in market value by at least the
amount of the assessment.
If the lease between the owner and tenant provides that the tenant must pay special
assessments, the tenant could appeal the assessment. Minn. Stat. § 429.081 provides that
any person aggrieved ... may appeal to the district court."
Ycpuady urs,