BY SUSAN VAN CLEAF
SUN PRESS NEWSPAPERS
The city of Medina is preparing its response to a lawsuit being filed by two long time Medina residents, Ellis and Nancy Olkon, who are seeking the ability to subdivide their 21-acre property at 2362 Willow Drive into two lots.
The Olkons have been struggling with Medina’s zoning ordinance, which requires lots in Rural Residential zoning to have five acres of contiguous soils suitable for septic tanks. The city uses this requirement for determining minimum lot size. If the lot split were allowed, one lot would have 1.5 acres of contiguous suitable soils and the other would have 1.3 acres of contiguous suitable soils. The Olkon property has hills and wetlands that make most of the site unsuitable for septic tanks.
The issue came to a head on Nov. 1, when Ellis Olkon asked the city council for a variance from the five-acre requirement. The council directed city staff to prepare a resolution denying the request. The city council used this action as the reason for denying the Olkons’ request for approval of the preliminary plat on Jan. 17. This denial became official on Feb. 7.
The Olkons are filing a lawsuit against Medina in the State of Minnesota District Court, within Hennepin County. The plaintiffs are asking the court to declare the five acres requirement to be unconstitutional, to enjoin the city from applying the five-acre requirement to the preliminary plat and to grant the subdivision request. The Olkons are also asking the court to award damages. The lawsuit also alleges that Medina has breached a contract between the Olkons and a previous city council in which a variance was promised.
Attorney Justin Templin is representing Medina in the lawsuit.
“As to the substance of the Complaint, the city sees no merit in the allegations and expects to prevail on all claims. Beyond that, the city will have no comment on matters in pending litigation,” Templin said.
Attorney Thomas Wexler represents the Olkons. “There is no legitimate governmental objective for the five acres requirement. There was no scientific or reasonable support for the five acres requirement when adopted nor at present. The five acres requirement has no reasonable relationship to public health, safety, morals or general welfare,” He said in the complaint.
He added that the five acres requirement has “no reasonable relationship” to Minnesota Rules Chapter 7080, which is referenced in the city zoning ordinance. He was referring to Minnesota state statutes, which include Minnesota Pollution Control Agency rules pertaining to septic tanks.
“The five acres requirement is arbitrary and capricious,” Wexler said. “The city has no reasonable basis to believe that septic systems that operate on less than the five acres endanger the public health, safety, morals or general welfare. The five acres requirement denies plaintiffs due process of law under Article 1, Section 2 of the Constitution of the State of Minnesota and under other state law.”
Olkon explained his preliminary plat request at the Nov. 1 city council meeting. He said he has been dealing with the issue with the city for a little over four years.
His wife was stricken with West Nile encephalitis four years ago. As a result, she is a paraplegic confined to a wheel chair. He wanted the lot split so that the sale price of his home would be reduced and his wife could move to assisted living.
He said granting the variance and preliminary plat would not change the rural nature of Medina. His request pertained to one additional house on 21 acres.
Medina City Attorney Ron Batty disagreed, “This is a very substantial variance; five acres down to 1.5 and 1.3.”
If one house on 21 acres were involved, the city would be required to grant a variance so that the property owner would have reasonable use of his property. Olkon already has one house, so he already has reasonable use of his property. Consequently, the city is not required to grant a variance for the second house.
City Planner Dusty Finke was contacted after the Olkons filed the lawsuit. He said a suitable soils requirement has been part of city zoning ordinances since the 1980s. The requirement has been as low as two acres of contiguous soils suitable for septic tanks. He would not comment on the lawsuit.
According to the complaint, the five acres requirement went into effect in 1999. The city amended the ordinance again in 2006 to add suitable soils classifications based upon the most current Hennepin County soil survey.
The Crow River News asked Dan Wheeler, soil scientist for the University of Minnesota Extension Service, about the science behind an ordinance specifying contiguous soils suitable for septic tanks. He said he had been an expert witness on the topic for a potential development site.
“The body of science surrounds the needed area for proper soil treatment of septic tank effluent. That knowledge is incorporated into the Minnesota Pollution Control Agency’s State Rule Chs. 7080-7083. The requirement is that any lot divided (newly platted) after April 1, 1996, is required to have enough area for 2 Type I (used to be called standard) septic system soil treatment areas. For a large residential home on very difficult soils, the total size required for two soil treatment areas (septic drainfields) using MN State Rule Ch. 7080 design values would be around 0.25 acres,” Wheeler said.
“Additional area as required in a local ordinances is largely a decision based on desired density of lots. So it is a zoning decision,” he said. “The other issue with this ordinance is just how to determine septic suitable sites. The soil survey has changed how septic sites are reported several times since 1996. A soil survey also does not address site-specific soil conditions. So for the best accuracy, a site-specific septic suitability survey and map should be part of the zoning decision requirements.”
A report from Metro West Inspections, of Loretto, was mentioned in the lawsuit summons. According to an Aug. 10 letter to Medina from Metro West, “The septic design meets all the requirements of MPCA Rules 7080, 7081, 7082.” The letter recommended a new design for a mound style system matching the requirement for the proposed new home.
Loren Kohnen, of Metro West, is Medina’s building inspector. He did not recall speaking to the Olkons.
Commenting in general, Kohnen said he had served on a planning and zoning commission. Medina did not want a series of rural residential homes next to each other on small lots with failing septic tanks. The ordinance was set at five acres of contiguous suitable soils to preserve the rural nature of Medina.
He added that the Hennepin County soil survey is “very accurate.” Medina has heavy clay soils that affect the functioning of septic tanks.
Asked whether he thought the five acre requirement is arbitrary, he said, “All figures are arbitrary, including side yard setbacks.”