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• In re Cartway Petition September 13, 2012 Page 2 of 3 Thresholds That Would Require the Creation of a Cartway Have Not Been Met. At the Workshop, the City Council seemed to assume that no dispute existed as to whether the threshold issues are met in this case obligating the Council to create the Cartway. To be dear, the Association does not believe the threshold issues are met or that the Council must grant the Cartway. First, the Petitioner has access to the land to which he seeks a cartway; specifically, with a bridge over the creek. The Council seems to be operating under the belief that such a bridge would fall within the navigable waterway exception, but that is not the case. The cartway statute was relatively recently amended to provide that when access is available, but only by navigable waterway, then a cartway should still be required. The predicate to the creation and application of the navigable waterway exception was that the use of the navigable waterway is actually the sole means of access. In Mr. Johnson's case, he can access the land without utilizing the creek. As the Association has demonstrated, he could build a bridge over the creek. As such, the answer to the threshold question of whether he has access to the land should be "yes" and the Council is not therefore obligated to create the Cartway. Additionally, as stated in our July 9, 2012 letter to the Council, as of 2006, all takings of private property by Cities in Minnesota must be for public use or purpose. Minn. Stat. §117.012, subd. 2. In the Council's March 26, 2012 Resolution the Council found that "[ilt is the Council's intention to retain private ownership of that driveway. It is not in the public's interest to expend public funds on the cartway or to make the cartway into a public road." Based on that finding, we believe the Council is precluded by State Law from taking the private property rights from the Association. The Petitioned -For Cartway is an Enormous Reaction to a Small Problem It is useful to recall that the objectives of the Petitioner that have lead to the Petitioner's request that the City of Lino Lakes convert the existing private roadway to a public roadway were the stated need to walk to his land 2 -3 times per week, to drive an ATV to his land 1 -2 times per week in the Spring, Summer and Fall seasons, and to drive a small tractor to his land 2 -3 times per year. First, these objectives can easily be accomplished with a small bridge over the creek for those seasons. Further, the Petitioner already has access during periods of low water and winter. Second and importantly, the alternative being suggested, to create a cartway and in so doing, taking private property interests for public use, exposes the City of Lino Lakes to significant exposure for damages from the taking, with only the Petitioner to turn to for indemnification. This is another reason the bond required should be for the damages that could be awarded. At the hearing, the valuation of the taking was established. The only credible information in the record as to amount of the damages that will result from the taking is the appraisal that was provided by the Association. Pursuant to that appraisal, when factoring in the value of the underlying land that is being taken, the depreciated value of the private improvements that are being taken for public use and the severance damages (the reduction in value of the Association homeowners' retained land due to the conversion from a private to public road), the damages are at least $747,987.25. Though the Council may believe that this figure seems