ORDINANCE NO. __________



        The city of Duluth does ordain:

                Section 1.     Under the authority of Section 100 of the 1912 Home Rule Charter of the city of Duluth, as amended, and subject to the conditions, limitations and restrictions hereinafter set forth, permission is hereby granted to Duane McCauley, their successors and interests, referred to herein as the permittees, to occupy, erect and maintain a detached garage in that part of the 80 foot wide right-of-way for force main easement as the same was dedicated to the use of the public in the plat of Brighton Gardens First Division, on file and of record in the office of the registrar of deeds in and for the St. Louis County, Minnesota, described as follows: that portion of the force main easement across Lot 18, Block 2, Brighton Gardens First Division.

                Section 2.     That before this ordinance shall be effective for any purpose whatsoever, the aforesaid permittees shall file with the city clerk a duly executed and acknowledged written acceptance of the terms of this ordinance, and shall agree to pay the cost of publishing this ordinance and a recording of a certified copy thereof at the registrar of titles of St. Louis County, Minnesota.

                Section 3.     That said permit granted under this ordinance may be terminated at any time when and if the city of Duluth determines to use the area occupied by said permittees for any purpose in accordance with the duly dedicated public easement or other lawful use. Giving the permittees six months' written notice by resolution of the council of the city of Duluth to the last known address of the permittees shall be sufficient notice of termination.

                Section 4.     That upon the giving of the notice of termination as aforesaid, the permittees shall remove said detached garage and all fixtures and appurtenances of every kind whatsoever attached thereto from the tract of land described above within said six months, all at the expense and cost of the permittees, and without right on the part of the permittees to claim from the city of Duluth, or any of its officers, agents or servants, any compensation, reimbursement for damages of any kind whatsoever.

                Section 5.     That by the acceptance of the terms of this ordinance as aforesaid, the permittees hereby agree to save harmless and defend and indemnify the city of Duluth against any claims or demand for payment which may arise against the city of Duluth by reason of any act or omission of the permittees or the use or existence of any structure existing as a result of the use granted by this ordinance, and agree that such detached garage shall be so constructed and at all times maintained so as in no way to interfere with or damage any sewer, water mains, gas mains, pipes, conduits or other public utilities now or to be hereinafter located in any part of said right-of-way for force main and agree that the city of Duluth shall not be liable for damage caused to such detached garage while the city is engaged in making repairs to public utilities or because of a failure of any pipe or structure it has placed in the right-of-way provided that the city exercises reasonable care to avoid such damage, and agree to pay to the city of Duluth all extra costs of installation of any such sewers, gas mains, water mains, pipes, conduits or other public utilities made necessary by the presence of such detached garage in said right-of-way for force main.

                Section 6.     That this ordinance shall take effect and be in force 30 days from and after its passage and publication.

STATEMENT OF PURPOSE:  This ordinance provides for the concurrent use of a portion of the 80 foot wide utility easement right-of-way for force main easement in the plat of Brighton Gardens First Division, for a 24' x 32' detached garage on property located at 7417 East Superior Street.

The planning commission heard this request at their regular meeting on May 23, 2001 and recommended denial of the request.  In making their recommendation the commission considered the following findings:

1. The existing garage slab was poured without a building permit.
2. The existing water lines are located 25 feet and 34 feet north of the south line of the easement. The utility must maintain a 25 to 35 foot "cushion" from the centerline of the water mains to any new structure.
3. To permit a 24' x 32' structure within the easement could affect the ability to install an additional utility, ie. another watermain or a sanitary sewer.
4. The property is of sufficient size and zoning to allow for a 24' x 32' detached garage structure to be located outside of the subject easement.
5. The existence of a structure within the subject easement may present a cloud on the title to the property.
Date Filed: April 18, 2001
Action Deadline: August 16, 2001