Memo - Stobbe Property Flooding
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Memorandum!
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To: Honorable Mayor and Members of the City Council
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Copy: Steven C. Mielke, cnr Manager . ..~
From: Steven J. Stadler, Puplic Works Direct()r
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Date: April 2; 2004 't.
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Subject: Stobbe property flooding issue
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Staff will present results of the d rai':lage' study and the City Attorney will discuss next
steps the city should consider andl:low we should respond to the recent Freedom of .
Information Act request for the study report made by Mr. Stobbe's attorney.
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The intent of this City Council item~sto keep Council appraised ofthispotential
litigation. I
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See attached correspondence.
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MILLER, Sl1EINER&CURTISS, P.A.
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. A TifORNEYS AT LAW
400 WELLS FARGO BANK BUILDING
1011 ~IRST STREET SOUTH
H0PKINS, MN 55343
JEREMY S. STEINER * I JERRE A, MI~LER(RETIRED)
WYNN CURTISS " (952) 9:38-7635
KIRSTEN A. HOLSETH . I FAX (952) 938-7670
*Real Property Law Specialist, certified ' "
by the Minnesota'state Bar ASsoCiation , i
Writer=s Diiect Dial No. 952~253-0071
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TO: Steve Stadler, Hopkins Publfc Works Director
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FROM: Wynn Curtiss, City Attorney
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DATE: March 26, 2004 ,
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RE: Stobbe ~, Plantation Apartm~nts Flooding
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The purpose of this memorandum is to discuss Hopkin's authority to withhold information obtained
by Hopkins regarding flooding in the summer of2003 at the Plantation Apartments ("Plantation") and to
.discuss, whether the Hopkins City Council can discuss the matter in closed session without violating the
Minnesota Open Meeting Law. ;
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Erwin Stobbe owns Plantation. Begitming in approximately 1998, Stobbe provided information to
Hopkins and to the Minnehaha Creek Watershed District (the District") regarding his intent to build
Plantation, including information regardingidrainage at the site. Stobbe retained an engineer to design his
drainage plan. In 2000, Stobbe's grading arid drainage plans were approved by HopkinsandtheDistrict '
and the Plantation was constructed, ' . , '
, In the SUlTImer of 2003, flooding\ occurred in the Plantation parking garage. An attorney
representing Plantation tenants claimed the I:flooding damaged their vehicle and requested compensation
from Stobbe. An attorney representing Sto~be sent a letter to Hopkins indicating Stobbe's intent to seek
indemnification from Hopkins for any'ainqimts Stobbe might be required to pay due to the flooding.
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Hopkins, in response to the letter from Stobbe's attorney, conducted itsown review of the situation
and hired an engineering firm to review the circumstances to determine what had caused the flooding, The
results of those investigations indicated Stobbe's engineer had failed to adequately provide for drainage
from the Plantation site and the flooding w~s due to inadequate on-site drainage.
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Minnesota Government Date Practices ~ct - M.S. 13.01 et Seq.
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M.S. 13.39 Subd.2 states that "datafcollected by ... political subdivisions... as part of an active
investigation undertaken for the purpose ofthe commencement or defense of a pending civil legal action,
or which are retained in anticipation of a pending civil legal action, are classified as protected nonpublic
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Hopkins\Stobbe\DataPracticesmemo ' i
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data..." M.S. 13.39 Subd. 1 states that whether a "civil legal action is pending shall be determined by the
chief attorney acting for the .. .political subdivision..."
Based on the threat of litigation against Stobbe and the threafof litigation from Stobbe against .
Hopkins, it is the City Attorney'spositibn thatthi~matter involves a "pending civil legal action" against
Hopkins, and thus, the information collected by Hopkins regarding this matter is non-public, including
specifically but not limited to, the engineer's report obtained by Hopkins after receipfofthe letter from
Stobbe's attorney. The report, therefore, is not subject to disclosure to Stobbe or anyone else pursuant to
the Data Practices Act without an order from the court. In addition, it is the City Attorriey' s opinion that the
report 'also is protected from disclosure on the grounds it is attorney work product and is the work product
of an expert witness, which is not-discoverable.
Minnesota Open Meetin2 Law
M.S .13D. 01 is the Minnesota Open Meetings Law, which requires all meetings of public bodies to
be open to the public, except under certain circumstances. M,S.13D.05 Subd. 3 (b) states that a meeting
may be closed "if the closure is expressly authorized by statute or permitted by the attorney-client
privilege."
The mere threat of possible litigation is not sufficient grounds, alone, for a governing body to meet
in closed session. Actual litigation, however, is not required to close a meeting, There must be a need for
the content ofthe meeting to be confidential to justify invoking the attorney c1ientprivilege and closing a
meeting, It is the City Attorney's position that if the Hopkins City Council desired to discuss this matter in
closed session, it could do so without violating the Open Meeting law. First, theCjty Council would need
to consider the expert's report, which was prepared in anticipation of possible litigation. It would,
therefore, be necessary to close the meeting to preserve the work product and attorney client privileges as
applied to the report. Second, based on information regarding the amount of damages claimed by Stobbe's .
tenant, the costs to remedy the flooding problem and the cost to Hopkins of litigation, it would be
necessary to discuss aU options, including settlement of any litigation. These discussions must be madein
private so as to preserve Hopkin's litigation strategy. Third, there is no independent decision facing the
City Council that must be decided in open session before the legal m.atters can be considered. (For
example, the threatoflitigation is not based on the City Council maIqng a zoning. or other similar decision,
which might need to be decided without considering litigation issues.) For all these reasons, the City
Council would be authorized to meet in closed session to discuss Stobbe's threatened legal action without
violating the Open Meeting law.
If you have any questions, or need any additional information, please let me know.
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Hopkins\Stobbe\DataPracticesmemo ..
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City ojCJ-fopkins Pu6Cic Won
11100'E?(felSior :B[va. -1iop{ins, ~ 55343-3435 . Phone: 952-939-1382. :Ftl1L; 952-939-1381
'WeE cuiiress: wwwJwpf(jnsmn.com
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March 17, 2004
Mr. Erwin Stobbe
500 Cambridge Street
Hopkins, MN 55343
Dear Mr. Stobbe:
The City of Hopkins has completed its hydrologic/hydraulic study of the Van Buren area
drainage system, The City hired an experienced, reputable consulting engineer, Short
Elliott Hendrickson Ine, to complete a very comprehensive analysis of the drainage.
system. The scope included analyzing and modeling the drainage from the intersection
of Monroe Avenue and 2nd Street NE to the channel leading to Minnehaha Creek east of
the Van Buren Avenue culvert crossings. The study results show that drainage
characteristics outside your site; downstream channel condition, upstream aluminum
box culvert, upstream redevelopment, have not significantly changed historic drainage
flows or channel water elevations. However, it appears that your consulting engineer
did not take the affect of local, historic drainage into account when designing your
. system. On the advice of the city's legal counsel, I cannot provide the drainage study
report.
I understand the seriousness of the flooding problem at your apartment building. Given
the above study results, however, the City is not liable for flood damage on your
property. Please contact me if you have questions or comments,
Steven J. Stadler
Public Works Director/City Engineer
Cc: Hopkins City Council
City Manager
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Part:tte:riJl.g wit/i tlieCommzmity to 'Enfumce tfie Qpo1ity of .Life
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Executive Summary .
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This report addresses two primary tasks. The first is a review of the 'stpnnwaterplans for the Plantation
development and the second is the overall evaiuation of the Van Buren area drainage system.
Channel improvements downstream of the Vim Buren crossing, between Van Buren and Minnehaha Creek,
will not significantly affect the water surface elevations along the chaIlnel through the study reach for high
flow events. Hydraulic modeling indicates that the installation of the alurnIDum box culvert at Madison
Avenue causes minimal impacts tO,the 100-year high water levels in the ditch, causing ,an estimated 0.1 feet
. increase in water surface elevation. '
The major flooding concern to the Plantation garage appears to be,dueprlmarily to interior drainage from the
site (See Review of PlaI!tation storm water Plans letter in Appendix A). Solutions to qeal with the flooding on
the Plantation site will need to be achieved through some type of modification to the internal drainage system,
due in part to the fact that the 100-year high water level in the ditch is approximately 2.5 feet above the
garage floor elevation. Due to the site constraints, it appears that it may not be feasible to increase the storage
volume in the existing pOnd; therefore the incorporation ofa much larger storm water pump (approximately 5-
horsepower, 1,000 gpm.) may be necessary to prevent overflow into the garage for aU events up to the 100.
year, 24.holir.
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Hydrologic/Hydraulic Study Report A-HOPKN0402.00
City of Hopkins, Minnesota
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LAW OFFICE OF Boulevard Plaza Office Suites Area Code 763
LAWRENCE P. MAROFSKY 7022 Brooklyn Boulevard Telephone 566-4570
. , , Minneapolis, Minnesota 55429 Fax 566.9909
. E.mall: larry@mUltiCOrp.nete
March 31, 2004
Mr. Steven J. Sadler
Public Works Director/City Engineer
. City of Hopkins
11100 Excelsior Boulevard
Hopkins; MN 55343-3435
Re: Ervvin Stobbe - 400 Cambridge Street
My File No. 7586-08
Dear Mr. Stadler:
Please be advised that this office represents Mr. Stobbe., You have had some conversations with
Mr. Stobbe with respect to the drainage of water onto and off of his property. I would like to
clarify one item, that is Mr. Stobbe has never indicated, to the bes"t of my 1m, . owledge, that he was .
making any claim against the city for the damage which occurred by reason offue flooding last
June.
Mr. Stobbe's concerns were that the drainage be evaluated to make certain that water would
properly flow not only off of his property into the creek, but also that the amount of water
flowing onto his property had not exceeded the planned capacity of his pond and if it has, we ask
that the city create additional ponding and/or channeling to prevent further occurrence of this
flooding. Your letter of March 17th does not seem to address this question. As a result, we are
hereby ,requesting a copy of the study under the Freedom ofInformation Act. There is no ..
litigation pending or threatened so I am not certain on what basis the city can withhold this
report.
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lLawrence P. M~fsky
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cc: Mr. Erwin Stobbe
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