272634 M/H17E - CITY CLERK `/r�;F�y"/�•�R��v.,4,
PINK ; - FINANCE COUnCII h+�' R � 'B�
CANARV - DEPARTMENT GITY OF SAINT PAUL File NO.
BLUE - MAVOR —
.
Council Resolution
Presented By
Referred To Committee: Date
Out of Committee By Date
WHEREAS, The Commissioner of Transportation for the State of Minnesota
has prepared: plans, special provisions, and specifications for the improvement
of Trunk Highway No. 125, renurnbered as T�unk Highway No. 51 , within the
corporate limits of the City of St. Paul , on Snelling Avenue from T.H. 94 to
Hewitt Avenue in St. Paul , identified as S.P. 6215-�+9 (51=125) Federal Project
M-PMS 5421 (3) ; and seeks the approval thereof:
NOW, THEN, BE IT RESOLVED, that said plans and special provlsions for the
improvement of said Trunk Highway within said corporate limits of the City, be
and hereby are approved including the elevations and grades as shown and
consent is hereby given to any and all changes in grade occasioned by said
construction.
BE IT FURTHER RESOLVED, that the City does hereby agree to require the
parking of all vehicles, if such parking is pe�mitted within the corporate limits
of said City, on said Trunk Highway, to be parallel with the curb adjacent to
the highway, and at least 20 feet from any crosswalks on all public streets
intersecting said trunk highway.
COUNCILMEN Requested by Department of:
Yeas Nays
Butler � [n Favor P b i ks -
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rHe�wt (� B '�/ �����lx�U: � • " -�' ��.���I�'`,°�/
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Levine _ _ Against Y � �
Maddox
Showalter
TedesCO Form Approve by Ci Att rney
Adopted by Cou Date �.�_��
Certifi asse Council Se retar� BY
61p d by �llavor: D t � � � 4 �9� Approv y yor for Submis ion to Council
By ,`' 'L/,1i .�--�__ _ BY _
� �uetisH�o MAR 17 1979
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''��' t'��:, STATE O F M I N N ESOTA
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DISTRtCT COURT
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- � SECOND DISTRICT
JOSEPH P. SUMMERS
ru�cE
October 30, 1979
Mr. R. Scott Davies
Attorney at Law
2452 IDS Center
Minneapolis, MN. 55402
Mr. Jerome J. Segal
Assistant City Attorney
647 City Hall
St. Paul, MN. 55102
RE: Midwest Plastics, Inc. , a Minnesota corporation,
vs. City of Saint Paul, a municipal corporation.
File No. 438768
Gentlemen:
The original of the enclosed Order Denying Notion
for Temporary Injunction was filed today with the Clerk
of District Court.
Sincerely,
�
JOSEPH P. SUMt�lERS
JPS:hk
Enclosure: One
Court House, Saint Paul, Minnesota 55102 612 298-4759
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STATE OF P�INNESOTA DISTRICT COURT
COUNTY OF RAMSEY 5ECOND JUDICIAL DISTRICT
Midwest Plastics, Inc, , a
Idinnesota corporation,
Plaintiff, ORDER DENYING MOTION FOR
TEMPORARY INJUNCTION.
�-vs�-
File No. 438768
City of Saint Paul, a
municipal corporation,
Defendant.
��_r���_ ,__�..�___�_��.�.-�.r__
This matter was heard October 23 and 24, 1979, upQn plainti.ff `s
motion for an order temporarily enjoining defendant from enforcing
its �resolution of August 30, 1979, prohibiting use of 1422 Ames
as access to plaintiff�s plant.
Plaintiff appeared by its attorney, R. Scott Davies, Esq. ;
and defendant appeared by Jerome Segal, Esq. , assistant city
attorney.
Oral testimony was taken and exhibits introduced. The court
personalZy conducted a vieeaing of the involved premises in company
with counsel.
Upon the evidence adduced at hearing, and upon all the files,
records, and proceedings herein, the court makes the following
FINDINGS OF FACT:
Plaintiff Midwest Plastics, Znc. , operates a successful manu-
facturing plant at 956 Prosperity Avenue, St. Paul.
Its plant consists of an original building built in 1963,
2
and two additions, built in 1969 and 1977 . For clarity, these
will be called the "1963 building" , the "1969 addition" and the
"1977 addition".
The site upon which the plant sits is bounded on the north
by single-far.iily dwellings, on the south by railroad tracks, on
the west by Prosperity Avenue, and on the east by vacant land. _
The plant fronts on Prosperity Avenue. Fr�m 1963 to 1969
Prosperity was used as the exclusive access to the plant, through
a truck loading dock at the northwest front and vari.ous pedestrian
doors.
When the 1969 addition was built, it extended 30 feet farther
to the south--in fact, to about one foot from the south property
line. Principal access continued to be from Prosperity, through
a truck loading dock at the southwest front of the 1969 addition,
plus the existing dock at the northwest front and the pedestrian
noors .l
In 1967 Mr. Myron Roth, Sr. , who then owned Midwest Plastics,
Inc. , bought a house and lot at the eastern edge of the plant site.
This house and lot, legally described at Lot 3, Block 4 , Ames
Outlots, will be called by its street address, I422 Ames. �
This acquisition provided a connection between the plant site
and Ames Avenue. Before Roth bought 1422 Ames, the plant was cut
off from Ames by houses. -
1. The 1969 addition did have a loading dock at the back,
but it appears to have been used exclusively for disposal of
rubbish.
3
When Roth bought it, 1422 Ames was zoned for single-tamily
dwellings and duplexes. Industrial use was prohibited.2
Roth later conveyed 1422 Ames to his son, Niyron Roth, Jr. ,
but reserved an easement along the westerly 20 feet for "roadway
and access purposes" to the plant property.
There is no evidence that 1422 Ames was ever used for access
from Ames to the rear of the plant between Z967 and 1969.
The testimony as to the extent 1422 Ames was used for access
to the rear of the 1969 addition is in dispute. The court is
persuaded, on the basis of the usual standards applied to judging
the credibility of witnesses, that from 1969 to 1977 , use of
1422 Ames for access to the rear of the plant was limited to
rubbish trucks, which would periodically come in to empty a large
trash container which was kept outside the rear dock. 1422 Ames
was not used as access for other pickup and delivery to the rear
of the 1969 addition.
In 1975 St. Paul adopted a new zoning ordinance. This
ordinance zoned 1422 Aries R-l. R-1 zoning does not permit commer-
cial or industrial uses, and permits "accessory uses" only if �hey
are incident to permitted uses. The city's position that a private
access roadway is an accessory use which takes on the character
of the principal use with which it is associated seems to be tenable
position, at least at this stage of the proceedings .
2. Plaintiff' s claim that part of 1422 Ames was zoned
industrial at the time of the 1967 purchase was �ot proved at
hearing.
4
In August, 1976, Midwest received a building permit to erect
an addition to the plant. This addition, like its predecessor_, ,
runs across the property to within a foot of the south property line.
Midwest took no affirmative steps to insure that access to
the back of this building across 1422 Ames was permitted under the
zoning ordinance, and received no affirmative assurances from any
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city official that it would be.
A plot plan submitted by Midwest in support of its building
permit shows only the building location and does not set out any
detail as to access. The only conclusion which can be drawn from
the evidence is that neither Midwest nor the city raised the questian
of access in connection with the 1976 permit application. Midwest
did not build the 1977 addition in reliance upon any assurances
by the city that access over 1422 Ames would be permitted.
After completing the 1977 addition Midwest shifted alI its
pickup and delivery to the back of the plant, and also permitted
employees to park in the back. Access off Prosperity to the back
of the plant was blocked by the plant, so all this traffic began
to flaw over the two blocks of Ames from Prosperity to 1422 Ames.
In 1978 Midwest submitted an application to rezone 1422 Ames
to industrial. The principal reason tor this petition •was so
that Midwest could get a building permit to pave a driveway across
1422 Ames. The application for rezoning was denied 5epter�ber 21,
1978 .
� [At this point there was no improved "driveway"
across 1422 Ames . There v��as only an unimproved track,
5
running to the east of the house, through property
which was adrnittedly zoned for single-family residence
under both the new and the old zoning ordinances. . The
"driveway" which had existed over the westerly 20 teet
had gone to grass by 1969 , if not earlier.]
On Septemher 5, 1978 , the City, through its zoning administra-
tor, ordered Midwest to stop using the track along the east side
of the house as access to its plant. Midwest appealed this order
to the Board of Zoning Appeals, which set a hearing for October 17,
1978. On October 13 , 1978 , Midwest graded the old driveway along
the west side of the house.
At the October 17 hearing, the Board of Zoning Appeal.s adopted
a motion to "uphold fihe Zoning Administrator `s letter" , which was
formalized by a resolution dated Plovember 7, 1978 . _
The letter the Board "upheld" related exclusively to the
so-call.ed "east" driveway, but the Zoning Administrator sent a
second letter October 20, 1978 , directing P�iidwest not to use the
"west" driveway either.
This led to much heated discussion between Midwest and the
City. In an effort at compromise, Midwest purchased a 14-foot
easement along the south side of the plant from the Chicago North-
western Railway. This easement now provides access from Prosperity
to the back of the p1ant. Its acquisition is strong evidence af
good faith on Midwest's part,
Settlenent discussions came to naught. On August 3Q, �979,
the City Council adopted a resolution which orders ��idwest to
6
• discontinue using "the westerly driveway as an access to its
industrial property at 956 Prosperity Avenue. "
Midwest complied with the resolution and sought judicial
relief. On September 26 , 1979, the undersigned temporarily
restrained the City from enforcing its resolution pending the
hearing on Midwest' s motion for temporary injunction. �he present
motion requests that enforcement of the August 30, 1979 resolution
be enjoined pending trial.
bZidwest claims it has invested over $150,000 in reliance on
its continued right of access over 1422 Ames to the rear of its
property and that it cannot do business at its present location
without rear access.
The loading docks facing Prosperity have, in reliance on
continued rear access, been blocked o� the inside by heavy machines
necessary to Midwest's business. The 15-foot strip along the south
side of the plant can be used for access to the rear only with
great difficulty, and at a cost of seven to ten employee parking
spaces. �
CONCLUSIONS OF LAW:
1. The resolution of the City Council will not, if enforced,
do irreparable harm to plaintiff.
2. Plaintiff has failed to establish that its use of 1422
Ames for access to its plant is a legal nonconforming use.
3. Plaintiff has failed to establish that it is likely to
succeed on the merits at trial.
4. Plaintiff is not entitled to the temporary injunction
prayed for in its motion.
�
5. The temporary restraining order entered September 26 ,
1979 should be dissolved.
ORDER �
1. The temporary restraining order entered herein September
26 , 1979, is dissolved.
2. Plaintiff ' s motion for temporary injunction is denied.
�
3. The attached memorandum is part of this order. _
.
SEPF P. SUNII�'IERS
udge of Distri.ct Court
DATED: This�day of October, 1979
MEMORANDUM
l. Plaintiff will not suffer irreparable harm if the City' s
resolution is enforced because 1422 Ames is not its only access.
Access to its two front -doc�s is available off Prosperity and,
while the 15-foot roadway south of the building is an inconvenient
rear access, it is certainly usable. Access difficulties are a
fact of life in crowded urban conditions, and in this respect
plaintiff is no worse off than other St. Paul. businesses whose
docks open onto narrow alleys.
2. Plaintiff did not establish that its use of 1422 Ames
was ever a legal use. Thus it can hardly be called a legal non-
conforming use as the term is defined in St. Paul's zoning ordinance.
3. For the same reason--that the evidence does not establish
that 1422 Ames was ever properly zoned for industrial access, the
court cannot say that plaintiff is likely to succeed on the merits �
at trial.
8
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4. Plaintiff appears to have actea in good faith when it
built its two additions on the assumption it could use 1422 Ames
for access. Mere good faith, however, does not establish a legal
right. Besides, 1422 Ames and the rest of Ames between 1422 and �
Prosperity are so clearly residential by nature that plaintiff
must be charged with knowledge that diligent inquir�r into the
zoning situation should have been conducted before introducing an
industrial use.
- J.P.S.
4M O1: 12/19?5
•
' Rev. : . 9/8/?6
� � EXPLAI�tATION OF ADMINISTRATIVE ORDERS,
=' ' RESOLUTIONS, AND ORDZNAi.VCES
. . . . . . . � .. . . T' t f �� r
Date: February 28, 1979
" R�ECEIVED
Tp: MAYOR GEORGE LATIMER �IIAR � �9� .
FR: Donald E. Nygaard, Di rector, Publ ic Works Departrntnt ���5 ��
gE; Snelling Avenue - 1-94 to Hewitt Avenue
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ACTION REQUESTED:
Approval of tY�e at�ached Council �Resolution.
PURPOSE AND RATAONALE FOR. THiS ACT10N: � �
- Th�s project is proposed to be done by the Minnesota Qepartment of Transportation
unde r the Fede ra l A i d U rban P rog raim. I t was i n i t i ated beceuse of the h i gh
accident rate and has been a showcase of public involvement. The Fina1 0rder
(C.f. 269b65) was passed by the City Council on August 3�, 1977.
Bid .opening date is Mar.cfi 30, 1979 and MNIDOT has requested Cou�►cit concurrence
__ __ , . .
be' comple�ed by, March 23, 197'�'•� =
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Construction.begins May 1, 1979 and contract allows 60 working days (spproxtmately _.
3 months) to completion. No rush hour const�uction interference wf) 1 be ailcwed
and sewer work will be performed at night. Work is expected to be completed
before State Fai r time. '
- This plan includes pavement widening, median constructio�, street lightiag and
traffic signal construction. �
ATTACHMENTS:
Council Resolution
RH R:DDT:ced