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Memorandum to Don Mehsikomer, City Clerk -- Lake Elmo Page 3 April 2, 1976 Brian Crombie asked about the cost of the proposed pumping, how last year's cost was assessed and was proposed to assess this year's cost. Mayor Eder reported that out of $48, 000 of cost incurred last year, $28, 000 was expended during the assessable period follow- ing the assessment .hearing, that the committee appointed to recommend an assessment basis had concluded that of the $28, 000 assessable, $12, 000 should be taxed to the Gen- eral Fund, since it covered "permanent" improvement, and that the remaining $16, 000 should be assessed directly against the properties benefited. He stated that this year's method of assessment had not yet been determined. Councilman Shervheim inquired whether the cost of pumping would be reasonable in rela- tion to the cost of flood -proofing the properties which would be damaged at various levels. Engineer Noyes responded that we can pump Lake Jane for $23, 000, that as an earlier report had showed temporary flood -proofing of the properties imperiled would cost about $7, 000, and that permanent flood -proofing of the buildings would cost at least $33, 000. He stated that recent predictions indicated that without pumping, Lake Jane could be ex- pected to rise to 925. 5 during the summer of 1976, and would probably fall to an elevation of 924 by next fall and winter. The $33, 000 estimated cost of permanent flood -proofing must therefore be weighed against not only any temporaz- y solution achieved this year by pumping, but also against the potential cost of pumping in future years. At Mayor Eder's request, Councilman Shervheim inquired of Attorney Don Raleigh whether a distinction had become evident between "this year's emergency situation" and last year's and whether he felt that the facts presented at this meeting would justify the Council's taking emergency action by pumping this year. Attorney Raleigh reported on the law affecting bodies, courses, or currents of water, especially Minnesota Statutes 105.42 and 105. 43, stating that last year he .had advised the Council that a distinction might be drawn based on the so-called common enemy doctrine between the types of waters contemplated by those sections of the laws and excess and runoff surface waters. He had advised that the city, in his opinion, had a right under the common enemy doctrine to remove excess surface water so long as in doing so it didn't cause severe damage to someone else. He stated that on the facts now before the Council, the same argument could be made but that a distinction exists be- cause we have .had no comparable amount of precipitation this year, because this year's emergency was predictable, and because no action has been taken since last year to protect the properties imperiled by this year's water. He stated that the city had acted promptly on developing an interim plan for handling the water problem, and that neither the DNR nor the Watershed District .had granted approval of that plan or had issued a permit. He ad- vised the city to consider carefully the possibility that pumping now without a permit may jeopardize the city's opportunity to obtain approval from the appropriate regulatory bodies to implement the interim plan which would provide a method of handling the water problem for the next four or five years until a permanent solution is found by the Watershed District. A question was raised by a citizen concerning what action should have been taken by the property owners, and Attorney Raleigh responded that since this emergency was predict- able, a proper question could be raised whether the property owners could or should have done something to protect themselves. Councilman Shervheim asked Dr. Franta whether, if the city doesn't act to alleviate the cures ~ent crisis, the Watershed District would be likely to do so. He received a negative response.