04-22-2015 Council Workshop Minutes

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MINUTES CITY COUNCIL APRIL 22, 2015 McGraw asked if the City made an error when it allowed the Buche driveway on the right-of-way. The City Attorney reported that the Variance was granted in 1976 and indicated that the City had the authority to grant this variance. The City Attorney also indicated that the question had been raised as to whether the existence of this driveway resulted in a prescriptive use, and prescriptive use is not applicable to public rights-of- way. Roberto asked if Anderson had the exclusive use of the entire right-of- way, or the exclusive use of just his driveway. The City Attorney again referred to the Duluth case which indicates that the public right-of-way is held in the interests of the public. Stenger stated that she did not believe the Council did anything wrong in granting the Variance for the Buche driveway. Stenger pointed out that the Council also granted a Variance for the Roberto property as it was not large enough to meet required setbacks. Roberto took issue with the fact that he has been told that he cannot walk on the public right-of-way. Keis stated that he did not think Roberto was told he could not walk on the right-of-way, the issue was whether he could drive a truck on it which Keis felt was significantly different. Roberto stated that he wanted to move forward to find some middle ground. Fischer stated that he was struggling to see the hardship with the current situation. He pointed out that Roberto built on the property with a Variance. He pointed out that Roberto has indicated he wants to landscape the right-of-way area and drive on it. Fischer noted that there are many people without rear access to their homes. Fischer stated that it was one thing to landscape the public right-of-way, but pointed out that the potential of someone driving over the landscaping and ruining it. The City Administrator asked Roberto if his goal was to cut down some trees, seed the area, and make a larger backyard similar to a boulevard area. He pointed out that Mr. Anderson has concern about the loss of trees from a screening perspective. The Administrator asked the City Attorney if the Council had the authority to prohibit tree removal on the right-of- way. The City Attorney indicated that unimproved Rose Lane is public right-of-way and adjacent property owners can seed grass on the boulevard area at their own risk. The trees are considered the City's trees, however. Roberto indicated that the League of MN Cities (LMC) information says that the adjacent property owner has ownership to the middle of the right-of-way; therefore, he would have ownership of the trees. The City Attorney indicated that while Roberto has fee ownership, the City's public right-of-way takes a superior position to the fee 4