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Bent Creek Golf Course owners' attorney threatens litigation over EP rezoning plan

BY LYN JERDE - SUN NEWSPAPERS
(Created: Wednesday, January 17, 2007 10:10 PM CST)

Despite a threat of a lawsuit, the Eden Prairie City Council Tuesday unanimously approved a guide plan change for Bent Creek Golf Course, with the intent of zoning it under a newly created "golf course" designation.

That council's action is "illegal," and will be fought in court to protect the interests of the property's owners, said Bruce Malkerson, an attorney representing the owners of the 105-acre course that straddles Valley View Road. The owners have proposed selling the land for development.

"If you adopt the rezoning," Malkerson said, "we will have no choice but to sue you."

The council did not rezone Bent Creek, or any of the city's other three golf courses, because the new ordinance creating the "golf course" zone - passed unanimously on two readings Tuesday - must be officially published before it can be applied.

However, the council approved guide plan changes that clear the way for designating the Bent Creek, Olympic Hills, Bearpath and Glen Lake with the new "golf course" zone, which limits use of the land to "passive recreational activities with non-motorized use" (except golf carts). In addition to golf, the zoning classification also permits uses such as tennis, croquet, lawn bowling, cross-country skiing and ice skating.

It would not, however, allow construction of residential buildings.

Owners of homes neighboring Bent Creek spoke in favor of the zoning change, saying it would ensure that the property remain as an open space.

"If you choose to allow development of Bent Creek Golf Course," said Victoria Rolf, "you will significantly alter the character of the community, not only for people, but for wildlife."

Steve Chelesnik, a longtime advocate of keeping the course as open space, said there are "hundreds of pages of documents" indicating that the 1970s creation of the Edenvale planned-unit development (PUD) included a provision that Bent Creek would be precluded from future development, to satisfy the city's requirement that the developer either pay a fee or set aside a certain percentage of land as open space.

Malkerson contended that the Edenvale PUD agreement is neither binding nor relevant to the current discussion of the land's use.

The course, although not open to the public, serves as a "buffer" between developed areas, in a city that is now more than 90 percent developed, Chelesnik said.

Marilyn Michales - who in November appeared before the Eden Prairie Planning Commission as an attorney representing the Bent Creek owners, but who said she was speaking Tuesday as an Eden Prairie citizen - said there have been proposals that would call for development of part of Bent Creek, while retaining open space in a portion that is a flood plain.

That open space, she said, would be accessible to the public. And, because it would no longer be part of a golf course, the use of pesticides would be curtailed, improving the environment for wildlife.

City Manager Scott Neal noted that no formal proposal for such a development has been presented to either the Planning Commission or the City Council, although city staff and some council members have seen concept drawings.

To proceed with the guide plan change in the face of a threat of a lawsuit, Michales said, is irresponsible.

"I really don't understand what the rush is," she said. "There is nothing to be lost by waiting and having a discussion."

City Planner Michael Franzen said the staff recommendation to create the "golf course" zone was in response to a request the council made 10 months ago, when it instituted a moratorium on development of all land now used as golf courses.

Franzen said the purpose of the moratorium was to clear up inconsistencies between the city's comprehensive guide plan and its zoning ordinance.

The city's guide plan designated all golf courses as "quasi-public open space," but there is no zoning classification with that name. Bent Creek, Olympic Hills and Bearpath are all zoned "rural," and the portion of Glen Lake that lies in Eden Prairie (the rest is in Minnetonka) is zoned "public."

In response to a question from Councilmember Kathy Nelson - raised during the public hearing for the guide plan change at each course - Franzen said changing the courses' guiding from "quasi-public" to "golf course" would not, in any way, affect the current use of the land.

But Malkerson contended that requiring Bent Creek to remain a golf course "encumbers" the property with a forced designation of open space, and condemns the owners to a money-losing enterprise.

Chelesnik said the owners have had offers from potential buyers who intended to continue using the land as a golf course, but Michales said none of those proposed buyers actually had the money for the purchase.

Rick Dorsey, who lives adjacent to Bent Creek, acknowledged that potential buyers proposing to keep operating the golf course might not have offered as much money as the owners wanted.

However, he said, landowners paid a premium to acquire property near the course, and relied on a promise that it would always remain open space.

"The planning was there, and in place," he said.

A final decision on rezoning the golf courses is expected to take place at the City Council's Feb. 6 meeting.

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