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COUNCIL MINUTES July 9, 2012 DRAFT 080 the quiet enjoyment of the area. She asks that the private nature of this property be considered and if 81 it is taken the damage appraisal submitted by the association should be considered. 182 183 Attorney Langel asked if the homeowners' association position is that the channel is not navigable. 184 Attorney Snyder responded that he understands that the position is that parts of the channel are and 185 parts are not and that the burden to the applicant would not be great. Mr. Snyder added that if the 186 request of the applicant for access by use of ATV is accurate, then it is clear that he already has that 187 access because he is doing it now even under high water conditions. He believes that the 188 establishment of a public cartway is discretionary by the council in this case. The mayor noted that he 189 is indifferent about the establishment but has been advised by legal counsel that if the threshold of the 190 statute is met, the establishment isn't discretionary. Attorney Langel clarified the statutory language 191 and the presence of a navigable waterway. Ms. Schwartz noted that the definition of navigable water 192 is defined by the DNR and in the case of this channel it is not navigable because it has not been 193 dredged. She added that there is a purposefully construction hump at the head of the channel meant to 194 provide separation from the lake that also makes the pond not part of the lake. 195 196 In rebuttal, Mr. Johnson noted that the ATV on his property was driven across the bridge by Mr. 197 Melton so that he (Mr. Johnson) could access his property without police involvement. Regarding the 198 channel, most years the channel has been navigable even by large boats. He added that Rice Creek 199 Watershed District does have authority to dredge the channel also. Attorney Barnett noted the 200 settlement agreement and a clause that requires that the channel be kept navigable. He added that the 201 public taking of property assumption is not correct and therefore the appraisal submitted that is based .02 on a public taking has no basis; it is his client's position that there are no damages in this situation. 203 Speculation of how the land will be used is irrelevant. Attorney Langel pointed out that there are two 204 elements to a question of damages — value and maintenance. Attorney Barnett responded that there is 205 an obligation for an equitable share of maintenance costs but pointed out that Mr. Johnson's use 206 would be minimal on a percentage basis. 207 208 In rebuttal, Mr. Snyder noted that the appraisal comprehensively addresses both elements — public and 209 private. Statutory predicate for this is not met and the risk of changing statute shouldn't fall to the 210 city. Attorney Langel clarified that the appraisal data seems to be based on a public taking but asked 211 if it could be refined to a private cartway. 212 213 Council Member Roeser noted the settlement agreement for dock access and asked for clarification 214 that the agreement grants access rights to Mr. Johnson. Attorney Langel indicated that he will be 215 further reviewing the document. Mr. Johnson noted that the agreement runs with the deed to his 216 home as well as all the homeowners of Otter Lake Estates. 217 218 Ms. Schwartz indicated her familiarity with the settlement agreement and explained the history. It 219 was intended for owners who already had property developed in Otter Lake Estates. Mr. Johnson's 220 parcel was not created at the time that the agreement was put together and that land in fact belonged 221 to the person granting the settlement so he couldn't have granted an easement to himself. Also the 222 settlement indicates rights to 18 plaintiffs, not parcels. Council Member Roeser pointed out that the •223 agreement says that it runs with the property; he also believes that the easement indicates a right to a 5