07-09-2012 Council Meeting Minutes

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COUNCIL MINUTES July 9, 2012 APPROVED 224 navigable waterway. Council Member Roeser added that he does have concern about intended uses. �25 Ms. Schwartz argued that Mr. Johnson's parcel did not exist at the time of the settlement. 226 227 Council Member O'Donnell noted the hunting use that has been mentioned; that is covered by city 228 ordinance so it isn't pertinent to the cartway question. Attorney Snyder pointed out that the question 229 isn't personal hunting but rather professional guide hunting, a service that Mr. Johnson offers. 230 Regarding the settlement agreement, Council Member O'Donnell asked if there is an easement in 231 place? Attorney Langel responded that the settlement agreement hasn't been verified but it appears 232 there is an agreement in place; it has been suggested that the easement provided for in the settlement 233 has never been recorded however. 234 235 Council Member Rafferty asked for a review of claimed damages versus the amount of use claimed 236 by Mr. Johnson. Mr. Snyder responded that statute directs consideration of damages and his clients 237 have followed an accepted process for appraisal by a professional appraiser. 238 239 The mayor asked that the council discuss the threshold element—has the statutory threshold been 240 met? The council indicated that they have determined that the waterway is or could be navigable. 241 On location, it was verified that 293.7 feet is the length of the cartway requested to the nearest point 242 that access is possible (that is a straight line map measurement however and so the exact distance 243 hasn't actually been established—a point of entry has beerr established). It was pointed out that there 244 are metal stakes in the ground that would have to be removed. Attorney Langel noted that there is 245 also the question of dimension. Mr. Johnson said that statutes indicate a width of no less than 33 feet 46 and he'd prefer the area off the road to be 30 feet. Council Member Stoesz suggested that there may 47 be some indication of size in the easement agreement and that in turn could be compared to the 248 request and perhaps used to assist with determining damages. Attorney Barnett asked about the 249 ability for Mr. Johnson to access the property for his work and measurement. 250 251 The mayor suggested a discussion of damages and maintenance; what should be considered in that 252 discussion? Council Member O'Donnell remarked that the appraisal data submitted is for the full 253 length of Otter Lake Road. Attorney Snyder responded that the appraisal includes damages in gross 254 and net(including sub parts). Council Member Roeser suggested that if Mr. Johnson is granted use of 255 a private road,he should participate in the maintenance of the road. Mr. Johnson said he agreed in the 256 past to pay current and future maintenance. Council Member Roeser suggested sometimes it's the 257 fear of the unknown that cause issues or concerns; would Mr. Johnson be opposed to covenants or the 258 like attached to the situation that would calm fears. Mr. Johnson suggested that use isn't a 259 consideration in the cartway statute so he'd prefer not to add any conditions. The mayor indicated 260 that he would intend to somehow address uses and conditions as part of an action on the matter;the 261 city attorney clarified that the statute doesn't provide for such. Council Member Roeser suggested 262 that a property owner could certainly voluntarily accept conditions. 263 264 Attorney Snyder reviewed his clients' position. He believes that this evening's review and discussion 265 clearly identifies this as an eminent domain related action and he doesn't believe that the city would 266 want to overstep current statute. There are other solutions besides this action to deal with the 267 disagreements between neighbors. Conditions or not the issue is imposition on the property owners' :68 rights. He recommends that the city call for a posting of a bond in the matter as would be called for 6