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HomeMy WebLinkAbout04A - Draft March 2 Meeting Minutes ~ co~ 4646 Dakota Street S.E. U 7\ Prior Lake, MN 55372-1714 ~ REGULAR COUNCIL MEETING MINUTES CALL TO ORDER Present were Mayor Haugen, Councilors Erickson, Hedberg, LeMair and Millar, City Manager Boyles, City Attorney Girouard, Public Works Director/City Engineer Albrecht, Community Development and Natural Resources Director Parr, Finance Director Erickson, Assistant City Manager Meyer, Communications Co- ordinator Peterson and Administrative Assistant Green. City Council Meeting Minutes March 2, 2009 DRAFT PUBLIC FORUM The Public Forum is intended to afford the public an opportunity to address concerns to the City Council on any subject that is of community interest, provides information required by the Council to complete its du- ties or is provided by agencies representing citizens of Prior Lake. The Public Forum will be no longer than 30 minutes in length and each speaker will have no more than ten minutes to speak. The City Council will not take formal action on Public Forum presentations. City Manager Boyles explained the concept of the public forum. Comments: No person stepped forward to speak. APPROVAL OF AGENDA City Manager Boyles requested that a presentation be added to the agenda regarding the opening of the water treatment facility. MOTION BY LEMAIR, SECONDED BY HEDBERG TO APPROVE THE AGENDA AS MODIFIED. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried. APPROVAL OF MEETING MINUTES MOTION BY MILLAR, SECONDED BY LEMAIR TO APPROVE THE FEBRUARY 17, 2009, MEETING MINUTES AS PRESENTED. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried. CONSENT AGENDA City Manager Boyles reviewed the items on the consent agenda. A. Consider Approval of Invoices to be Paid. B. Consider Approval of Resolution 09-033 Authorizing the Mayor and City Manager to Enter into a Subgrant Agreement with Metropolitan Emergency Services Board for Receipt of a Public Safety In- teroperable Communication System (PSIC) Grant. C. Consider Approval of Resolution 09-034 Adopting the City of Prior Lake Sanitary Sewer Maintenance Policy. D. Consider Approval of Resolution 09-035 Declaring Costs to be Assessed and Ordering Preparation of an Assessment Roll for the Maple Glen 2nd Project and Establishing the Date of the Assessment Hearing. www.cityofpriorlake.com 1 Phone 952.447.9800 / Fax 952.447.4245 City Council Meeting Minutes March 2, 2009 DRAFT MOTION BY ERICKSON, SECONDED BY HEDBERG TO APPROVE THE CONSENT AGENDA AS MODIFIED. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried. PRESENTATION Connie Carlson City Manager Boyles explained that Planning Secretary Connie Carlson has accepted another position after more than 16 years of service with the City, commented on her history of service and presented her with a plaque of appreciation. Communication Report - Website I Web streaming Communications Coordinator Peterson spoke of the features on the Website and what kinds of informa- tion can be found there. Stated there are currently six electronic newsletters dedicated to information about transit, construction, Club Prior, the water treatment facility, etc. Described new Web streaming service stating that Council and committee meetings are examples of the kind of information that will be offered in that format. Explained the process used to develop the Web streaming amenity, savings achieved and costs involved. Demonstrated linking options that allow viewers to jump to a part of a streamed meeting that is of interest to them. Comments: Hedberg: Commented that the Council has been eager to have Web streaming available as only about 50% of Prior Lake citizens have cable and, therefore, the ability to watch the meeting live. Web streaming allows everyone with Internet access ability to access it. Millar: Stated that the Technology/Communications Advisory Committee worked hard to find different con- cepts that would be viable. Complimented Peterson for finding one that works for the City. Erickson: Added that first alternative they considered cost $22,000 just for the first year and could not be viewed using a Macintosh. This alternative has only a tenth of the cost. LeMair: Expressed appreciation for the proactive approach adding that the City works hard to communi- cate with constituents and he appreciates opportunities that will improve communications. Haugen: Noted that the 2030 Vision and Strategic Plan defines communications as one of the priorities for the City. Commented that the 2030 Vision and Strategic Plan is updated every 18-24 months and will next be reviewed at a March 11 meeting. Concept Plan for Crossroads Church Community Development and Natural Resources Director Parr described the Crossroads Church pro- perty site and introduced Michael Whalen of EFH Realty Advisors. Described the process to be fol- lowed. Whalen described the parcel and stated the developer is proposing retail stores and a convenience store / gas station. Proposes a concrete modular fence between the site and residential properties. Indi- cated that a meeting had been held with the neighborhood and they now seek Council feedback. Comments: Haugen: Commented that the public hearing process through the Planning Commission should be held before the Council gives any specific feedback, but invited EFH to provide any information about the pro- ject. Mike: Stated that the project would include approximately 22,000 sq. ft. of retail space. Varied elevation on the front is planned to allow retail entities of different size. Varied exteriors are planned. A drive- 2 City Council Meeting Minutes March 2, 2009 DRAFT through site is proposed on the north side. Added that the project is trying to screen neighboring residential sites as much as possible. Haugen: Expressed appreciation of this interest in commercial development in the City and for the infor- mation presented to the Council. Noted that the development process allows the developer to come before the Planning Commission and City Council several times. Opening of Water Treatment Facility Public Works Director Albrecht stated the water treatment facility began filtering water today. Explained that over time, the filtering should remove the components that cause brown water. A grand opening is planned for early June. Comments: LeMair: Expressed pleasure that the facility is up and running. Erickson: Looks forward to the grand opening. Millar: Added that residents will be happy for the improved water quality. Hedberg: Stated it is his understanding that it may take two years before the entire water system is purged of iron and manganese. Albrecht: Affirmed, adding that those who are closer to the plant will notice changes first; and some areas that have always had a lot of water flow may not notice much difference. PUBLIC HEARING Public Hearing Regarding Private Use of Public Properties City Manager Boyles explained that three separate public hearings will be conducted in order to hear comments with respect to each of the parcels: Spring Brook Park Lot A, Inguadona Beach Lot 3, and Grainwood Park Lot 1. Stated that the purpose of the hearings is to receive input and that the Council will not determine action at this meeting. City Attorney Girouard provided background on Spring Brook Park Lot A stating that the neighborhood was platted in 1949 by William Simpkins and over the next few years Simpkins granted easements to prop- erty owners in the neighborhood allowing them to cross Lot A, access the lake and place docks on the lake. At some time before or in 1993, the parcel was forfeited to Scott County for failure to pay taxes. The City acquired the property from the County through a conveyance in accordance with MN Statute 282.01 for the purpose of drainage and flood control. In the past couple of years, the City has received complaints that residents of the neighborhood had been excluding some other residents who had been trying to get to the lake by way of this property and that "no trespassing" signs had been posted. A public meeting was held with residents of the neighborhood in spring 2008 where information was received including documents that showed the easements that property owners in the neighborhood had over the property to access the lake. The City Attorney's office researched the effect of the tax forfeiture of Lot A upon the easements and con- cluded that by operation of statute and court decisions, and despite the fact that the owner allowed the property to go into tax forfeiture, the easement holders were not extinguished. Considerations going for- ward are what to do with the property. At the public meeting in spring 2008, the property owners from the neighborhood suggested they had an interest in purchasing or leasing the lot. Consideration would have to be given on how to balance that interest against the nature of the conveyance from that County which pro- vides that if the City does not continue to use the lot for the designated public purpose, it would revert to the State. Court cases hold that if the City attempted to sell the property, the sale would be void and property would revert back to the State. 3 City Council Meeting Minutes March 2, 2009 DRAFT MOTION BY MILLAR, SECONDED BY ERICKSON TO OPEN THE PUBLIC HEARING REGARDING PRIVATE USE OF PUBLIC PROPERTY AT SPRING BROOK PARK. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried and the public hearing opened at 6:54 p.m. Comments: Larry Anderson, 16575 Dutch Avenue, displayed the deed used to convey the parcel to the City pointing out the third paragraph which outlines the use of the property. Stated the document lists 12 parcels and the specific intent for how each parcel should be allowed to use the property. Outlot A, the parcel under dis- cussion, is shown as intended to be used for drainage and flood control. Believes that if the lot does not continue for the use described, it would go back to the State. MOTION BY HEDBERG, SECONDED BY MILLAR TO CLOSE THE PUBLIC HEARING REGARDING PRIVATAE USE OF PUBLIC PROPERTY, LOT A, AT SPRING BROOK PARK. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried and the public hearing closed at 6:59 p.m. Comments: LeMair: Asked if the City is no longer using it for drainage. Girouard: Understands that the lot is still used for drainage. LeMair: Asked if the area where a creek flows through is part of the lot. Albrecht: Believes that is below the elevation of the property and is considered part of the lake. LeMair: Asked what is pushing the City to make a decision about what to do with the property, if it is still being used for drainage. Girouard: Replied that in late 2007 complaints were received that citizens were trying to access the lake across the lot and neighborhood residents told him to get off the lot as it was private property. At the Spring 2008 public meeting it was learned that residents of the neighborhood had a desire to come to a common understanding of what the proper use of the lot was so there would be no disputes in the future. LeMair: Asked about the discussion of the lot going back to the State. Girouard: Replied there had been an expression of interest by the attendees at the Spring 2008 public meeting of purchasing or leasing the lot, although the general consensus of the neighbors was that they believed they already had right of access. LeMair: Asked if there was dispute about whether it is a City-owned lot. Girouard: Replied that is not in dispute. LeMair: Asked if the neighborhood wanted ownership of the lot. Girouard: Replied that it was raised as a possibility at the Spring 2008 public meet as was the issue of whether the neighbors holding easements could exclude the public at large from accessing the lot. LeMair: Asked if the neighborhood could purchase the lot if it went up for auction. Girouard: Replied that the property was conveyed from the State so the City could convey it back to the State, through the County, and the County would have the option of selling the property, but the City does not have the option of selling. LeMair: Asked if the options are either for the property to go back to the State or to have the City set it up as a public use. Girouard: Options would be to maintain the status quo of a public lot with private easements across it or convey it back to the State to let the State dispose of it as they see fit. Millar: Asked if the City would require an easement for the drainage area if the property converts back to the State. 4 City Council Meeting Minutes March 2, 2009 DRAFT Girouard: Believes the City could reserve an easement if the property were conveyed back to the state. Albrecht: Added that the City would likely only need a portion of the property for drainage. Millar: Asked why the City might want to convey the property to the State. Girouard: Replied that if it were returned to the State and then sold, it would be brought back onto the tax rolls. Hedberg: Clarified that the tax forfeiture did not extinguish the easements; and that if the City tried to sell the property the State would void the sale and retake ownership of the lot. Girouard: Correct, although the State would take the lot subject to the neighbor's easements. Hedberg: Asked if the easements would continue to exist. Girouard: Correct, the easements are recorded against this property as well as 15 of the 17 deeds in the neighborhood. Hedberg: Asked if there is continued benefit in the City having drainage and flood control along this en- trance to the lake. Albrecht: Affirmed stating the outlet drains a large portion of the City and has to be cleaned periodically so the City needs to retain access to the area. Hedberg: Commented that the issue to resolve seems to be what access the general public has to cross the lot. LeMair: Asked if the easement rights supersede the rights of the general public. Girouard: Replied that the easements do not appear to grant an exclusive right of access. They allow crossing the property to access the lake, but do not appear to be exclusive crossing rights. Hedberg: Clarified that this lot no longer has tax being collected because the City owns it; if the City tried to sell it, the State would take it back and if the State sold it, any buyer would have to buy it with the ease- ments attached to the property. Believes there is not a practical way to get it back on the tax roll. Girouard: Added that the City gained the property through tax forfeiture and it was conveyed so the City could use it for drainage. Haugen: Asked if the deed could be amended for additional or less public purpose. Girouard: Referred to MN statute 282.01 that provides a situation for conveying a lot from the State to the municipality with one or more of a set number of statutorily defined public purposes. Moving away from the public purpose of drainage and flood control would violate the terms of the conveyance; however, the stat- ute does not appear to make that particular public use the exclusive public use - it does not say for drain- age and flood control only. Haugen: Asked if it could it be amended to include park usage. Girouard: Replied it would not require an amendment of the grant to the City if the lot was used for park purposes in a manner not consistent with drainage and flood control and if it does not impinge upon the neighbors' existing easements. Erickson: Believes the lot now provides a benefit to people with easements as they have access and benefits of lake access and do pay not taxes on the property that gives them the benefits. Stated that if it went back to the State and the State sold it, the purchaser would have to pay taxes on it. Suggested there are two areas of easement - for docking a boat and for travel across the property. Girouard: Confirmed the easements include both access and docking abilities. Commented that proper- ties that have the easements to access the lake do have higher tax valuation. Millar: Asked what the lot size is. Anderson: Replied it has 130 feet of lakeshore, but much of the lot is below the 904' high water elevation. Millar: Queried what the residents are asking for. Girouard: Replied that at the Spring 2008 public meeting with property owners there was a proposal that they purchase or lease the lot from the City and be able to post signs stating it is private. The public pur- pose for this property, as stated in the conveyance, is to maintain it for drainage and flood control. 5 City Council Meeting Minutes March 2, 2009 DRAFT Millar: Asked if it would be legal for the City to lease property to residents that have easements. Girouard: Replied it would be lawful to lease it, but it would not be lawful to convey the property because then the City could not control the property for drainage and flood control. Millar: Stated that if it were leased, the City could recover some of the costs for lost taxes. Haugen: Clarified that properties with the lake access easements already pay a higher tax base. If the City gains it as a taxable parcel, the lake access lots valuations would be reduced and it is likely there would be no tax revenue gain. Believes it is not a revenue issue, but rather a resolution of the conflict be- tween those with easements and the general public wanting to cross the property to access the lake. Erickson: Asked if a lease opportunity would have to be offered to the general public. Girouard: Replied that an attempt to sell the property would require it to be placed for bid, but the bid law does not apply in a lease situation. Erickson: Referred to an agreement for private use of public property reached with the VFW for the space used for their garbage containers. Girouard: Stated that it is not unlawful for the City to enter into a fixed-term lease to allow use of a prop- erty and believed that the concern expressed here is for the conveyance of the property. Erickson: Stated his understanding that long-term leases were open to the public. Girouard: Replied that he believed a different situation is involved in a lease vs. a conveyance of property, and stated that the City Attorney would research this issue to confirm. Hedberg: Commented that Public Works Director Albrecht indicated that most of the property is below the 904' high water level. Albrecht: Responded that the City just maintains the outlet to the channel. Hedberg: Commented that this creek drains a significant part of the watershed and does not think the City would want to have a park that is below the ordinary high water level. Seems the lot is not suitable for a park as it could not be maintained to the standards the City has for a park and the lot may have no value to anyone but the people who have the easement. Stated he would not be opposed to a lease that would allow the City to establish some standards of maintenance. LeMair: Disagreed that this property has no value stating it has much value from the standpoint of a boat slip. Hedberg: Replied that the land over which a person accesses the nearby Captain Jack's boat slips is above high water level. Millar: Believes the property cannot be viewed as commercial and that no one would be able to place commercial docks there due to zoning issues. Stated it is not a buildable lot and asked if it is zoned R-1. Parr: Replied that the lots directly to the west are R-1 and that Captain Jack's is east of the lot and is zoned R-2. Millar: Commented that if people were to use the lot to rent out boat slips, that would be unlawful in a resi- dentially zoned area. Erickson: Stated that even for private use the lot would have value as renting a boat slip elsewhere on the lake is approximately $2,500 per season. Hedberg: Stated he is not aware of an approved marina that does not have permanent structure on the land for access to the marina. Millar: Commented he would want to consider what is good for the people of the community noting that these residents have a long history of use of the property and if the conflict can be resolved, it will be for the good of the community. Believes this lot is not good land for a park. Since it is a good lot for the City to use for drainage and flood control, it would be good for the City to enter into a lease that allows mainte- nance of the property. 6 City Council Meeting Minutes March 2, 2009 DRAFT MOTION BY HAUGEN, SECONDED BY HEDBERG TO DIRECT STAFF TO CONTINUE RESEARCH, WORK WITH THE SPRING BROOK PARK PROPERTY OWNERS AND DEVELOP A SOLUTION TO BRING TO THE COUNCIL THAT CAN BE ACTED UPON. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried. City Attorney Girouard provided a history of Lot 3, Inguadona Beach, informing the Council that it was platted in 1925 by Christine Hannen. In 1948 a warranty deed was granted to the public of Scott County and the State of Minnesota. At the time, the property was part of a township and it has now been annexed by the City. Noted that the streets in this development are private streets. Stated there was litigation in 1967 between certain property owners of back lots and other property owners who had lake shore property and who had obstructed back lot owners from getting to the beach. At that time, Christine Hannen, as the property owner of all the beach, was attempting to sell the beach to owners of lake front lots, which would therefore make the beach the property of just the front lot owners. The lawsuit was brought by a property association composed of property owners of back lots in Inguadona Beach and of lots on Twin Isles. The result of that law suit was that beach front was required to be dedicated to the joint and common use of the members of the association. The property owners who had been obstructing access to two platted drive- ways that extended to the beach were ordered to cease obstructing those driveways. Residents of Twin Isles also were to have the ability to use the driveways to cross the beach in order to get out to the island. In the summer of 2007, a shared dock was placed on Lot 3 and in 2008 a complaint was received that some back lot owners had been excluded from the dock. In Winter 2007, a public meeting was held and residents were represented by Attorney Huemoeller. Residents expressed interest in acquiring the prop- erty at a discount to recognize their historical use of the property. As a second option, they also expressed interest in leasing the property. At that meeting, the City asked Attorney Huemoeller, in his role as the Scott County Examiner of Titles, to present an opinion regarding the status of the property. Attorney Huemoeller did not respond to the City's request for written input until last Friday, February 27. From the Winter 2008 public meetings and Attorney Huemoeller's communications, property owners believe that Hannen's intent was to grant an easement to back lot property owners within the neighborhood, not the public at large. The City Attorney's opinion is that the intent was to create a charitable trust so the Town- ship (and now the City) could hold the property for the benefit of the public; if not used for that purpose, it would be a breach of the trust. If the trust is breached there is possibility that the property could revert to Christine Hannen's heirs and assigns; or that the State Attorney General would have the right to bring a cause of action against the City. The State Attorney General's office was contacted for a written opinion letter, and they declined to issue an opinion as their office would be the entity suing the City in the event of a breach of a public trust. The goal in bringing the issue before the Council is to get historical information before the Council and to try to move forward to some sort of resolution for the future. Comments: LeMair: Sought clarification on where the lot is located in the neighborhood and how it is being used. Girouard: The platted driveway abutting the property is used by neighbors to access the lake. The lot is empty and maintained by the neighborhood. The Court decision required dedication of the driveways to access the lake. But that is just the right to get to the lake, not to build a dock (as the DNR has determined that a dock cannot be built off the driveway). Terms of the 1967 decision also prohibits vehicular traffic to access the lake and allows only foot traffic. leMair: Asked how the beach area in front of the houses is considered. Girouard: That area is, as per Court decision, for the shared use of all the residents of the neighborhood. The waterfront lot owners have the right to have a dock to access the water as long as they do not put the dock in a way that obstructs the rights of the other residents to walk across the beach. 7 City Council Meeting Minutes March 2, 2009 DRAFT Erickson: Asked if the roadway is a City street or can only the residents of Inguadona Beach use it to ac- cess the lake. Girouard: Replied that the driveway and all the roads in the neighborhood are private streets. But if Lot 3 is a public lot, then public would have the right to access the lot just as the owner of any other lot would have the right to go to his or her property, despite the private nature of the streets. Erickson: Asked if the City owns the lot. Girouard: Replied that it is the City Attorney's position that the City holds the lot in trust for the public, and if the lot is not used for the benefit of the public, it would then revert to Hannen and her heirs. Stated that Attorney Huemoeller and the Inguadona Beach residents believe the lot was conveyed by Hannen to the residents of the neighborhood, not the public at large. Erickson: Asked if there are any other easements on the lot. Girouard: Replied no as to the lot itself, but that the property owners of Twin Isles have the right to cross the driveway abutting the lot to access the lake. Erickson: Asked about a situation where a person attempted to put in a dock believing they had an ease- ment to do so. Girouard: Replied that until recently Mark Justin had been allowed by an abutting property owner to put a dock in. Justin did not have an easement. When the owner sold the property, Justin moved the dock to Lot 3, at which point some of the neighbors removed it. Erickson: Asked if there were encroachments on property to the north of Lot 3. Albrecht: Explained that the display was an aerial photo rather than a legal survey and the angle of the shot could skew appearances as much as 20 feet. Girouard: Added that there have been no complaints of encroachment. MOTION BY MILLAR, SECONDED BY HEDBERG TO OPEN THE PUBLIC HEARING REGARDING PRIVATE USE OF PUBLIC PROPERTY, LOT 3, AT INGUADONA BEACH. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried and the public hearing opened at 8:02 p.m. Comments: Bryce Huemoeller, 16670 Franklin Trail, stated he was present on behalf of the homeowners association Inguadona Inc. Their position is that Lot 3 is not a public lot, but rather the conveyance was to be held by the public for the limited purpose of providing a common property for these property owners. Stated that the plat created in the 1920s was unusual because it has access via private streets. Lot 3 is only 20 feet wide and not suitable for the general public. Believes the critical issue is to determine what the intent of the conveyance, for which it is necessary to rely on old letters and communications. Explained that at the time of conveyance, there was no recognized legal entity like an association to handle neighborhood prop- erty. Believes Hannen wanted to relieve her taxes and take care of the neighbors, but did not intend to convey the lot to the general public; and actual use and maintenance of Lot 3 supports that theory. Stated that the terms of the deed were and are ambiguous so what was done after the deed was delivered and how it was managed is what should be considered. Suggested that if the Council cannot decide on the dis- position tonight, that a committee should be created to meet with representatives of Inguadona Beach to reach an expeditious solution consistent with what Hannen wanted so the issue will not continue to be raised every few years. Added that he is the Scott County Examiner of Titles, but in this case because he is representing the association, the examiner work with respect to the lot will be addressed by the Deputy Examiner. 8 City Council Meeting Minutes March 2, 2009 DRAFT Chris Kampen, 16595 Inguadona Beach Circle, stated he is a back lot owner and has invested in the ex- pansion of his home due to the amenities of using Lot 3. Stated it is a close knit neighborhood and they maintain Lot 3 and use it for get-togethers, bonfires, etc. Jan Rahbain, 16615 Inguadona Beach Circle, stated she and her husband are back lot owners and family members have been residents since 1958. They have maintained and cleaned the beach, grass area and the road. Believes that allowing the general public into the area would devalue home properties and de- crease the ability to manage Lot 3; and that the traffic would access the lot by using a private road. Stated they are retired and handicapped and all that is important is home and family. Lot 3 has memories of en- joying the beach, fishing on the lake and raising family. They are requesting that ownership be transferred to the Inguadona Beach homeowners association. Angie Halliday, 16604 Inguadona Beach Circle, stated that the association holds annual meetings to dis- cuss any issues homeowners may have and that 90% of the meetings include discussion of Lot 3. The association devotes much time, energy and money to Lot 3 and she would like it to stay intact for neighbors to enjoy. Jerry Halliday, 16604 Inguadona Beach, attested how much everyone in the association uses Lot 3 and works to keep it nice. Believes the lot was always intended just for Inguadona Beach. Gene Tremaine, 16500 Inguadona Beach Circle, stated he has lived there for 14 years. Stated it used to be an area of many small cabins and that he bought a cabin and built a house there. He is a shoreline lot owner and has protected the lake by improving the shoreline. It was a substandard lot, but he has im- proved it. Supports the back lot owners because that is what Lot 3 is for. Believes the lot is important to Inguadona Beach. Jeff Kraul, 16454 Inguadona Beach Circle, stated it is a privilege to maintain the lot, and asked if the City owns the lot, why do homeowners have to maintain it. Kim Kraus, 3709 Pershing Street, stated he has done maintenance of the lot for over 20 years. Added that they have held birthday parties there and it is an important part of their lives. Maureen O'Hehir, 3749 Pershing Street, stated she has lived there for 12 years. When looking into pur- chasing the property, she was given a packet which included a picture of Lot 3, and her property was de- scribed as having deeded access. The photo and description made her believe that lake access was part of the purchase. Stated she is president of the association and confirmed that discussion about Lot 3 is on every agenda. Stated that the 2030 Vision is to support and encourage neighborhood and a feeling of community; and that the Community Safety Task Force identified inactive neighborhoods as a target to work on. Stated that this is an active neighborhood of people that take care of each other. Lot 3 plays a crucial role in keeping them connected. John Grayson, 16558 Inguadona Beach Circle, purchased his property four years ago. Stated that when he purchased the property, the realtor pointed out that Lot 3 was part of the package. Tim Collins, 16614 Inguadona Beach Circle, has lived there 29 years and at that time he was told that Lot 3 was part of the association for back lot owners to have lake access. Added that a wall of stone and tim- ber has been built to prevent erosion and the grass cutting is maintained by the association. Ryan Svendby, 16455 Inguadona Beach Circle, stated he purchased a back lot in 2007 and the realtor spoke of Lot 3 being shared by back lot owners for lake access. Stated that is the main reason he selected that house. Believes that Lot 3 is the heart and soul of the neighborhood and it is used daily in the sum- mertime. Believes it is important to the association and brings them together as a neighborhood. Dennis Perrier, 16502 Inguadona Beach Circle, has been resident for 35 years and has served as the president for the association. Commented that a primary duty in the past was keeping the peace between back lot and lake lot owners and that use of Lot 3 was the topic that fueled controversy along with costs for road, sewer, lighting, etc. Added that with more full-time residents moving in, Lot 3 became more important when determining how it could be used for the association as a whole and that it brought the association 9 City Council Meeting Minutes March 2, 2009 DRAFT together. People enjoy meeting there for meetings, bonfires, clean-up. Stated that when Willows 3rd addi- tion was constructed, some Inguadona Beach residents gave up personal property to facilitate the addition and placement of curbs into the entry of Inguadona. Commented that some of the information on the agenda report is not consistent with the history. Expressed hope that the Council would establish a com- mittee to look at those inconsistencies. Marilyn DeMarais, 16576 Inguadona Beach, stated she is the treasurer of the association. Stated that financial records date back to the 1940s which demonstrates the existence of the association for over 60 years. Stated that the association works together, new members are given a homeowners packet so they know how association works which includes bylaws, general information, beach rules, and the fact that the road is private. Reiterated that the association holds formal meetings and Lot 3 is discussed at every meeting. Believes that Lot 3 is an essential part of association. Deb Olson, 16494 Inguadona Beach Circle, stated they have lived there for 13 years and Lot 3 is the core of the neighborhood. It is a gathering spot to enjoy the outdoors, water and sunsets. Since it is a private association, people have the opportunity to become close and caring neighbors who help one another. Bryce Huemoeller, stated that the association, as an unincorporated entity which cannot hold title to prop- erty, has functioned since the 1940s. Stated the association became incorporated in the 1960s, but at the time of the conveyance, it was not able to hold title to property. The association fills the function of a com- mon interest community. Believes Hannen's intent in conveying to the public was because the association entity did not exist at that time. The 1967 lawsuit was to determine rights and responsibilities within the plat of Inguadona Beach and in relationship to Twin Isles. Relevant people would be party to the lawsuit in or- der to get full and complete resolution of the issue. The plaintiff was the association and Twin Isles and defendants were Hannen and three or four other owners. Proposed that the public, the City or the township would have been named as parties to the action if the plaintiff thought they had an interest in or claim to Lot 3. MOTION BY ERICKSON, SECONDED BY MILLAR TO CLOSE THE PUBLIC HEARING REGARDING PRIVATE USE OF PUBLIC PROPERTY AT INGUADONA BEACH. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried and the public hearing closed at 8:45 p.m. Comments: Hedberg: Stated that this is a real estate law or land use issue and believes it is an issue for the lawyers to work out and does not feel competent to handle it. Millar: Asked for the City Attorney's opinion. Girouard: Believes the conveyance of the property to the City creates a charitable trust to the public. Added that some of today's information is new, but assuming there is a charitable trust here, he does not recommend handling the property in any way that violates the trust. Suggested that the interest of the staff, City Attorney and the residents of Inguadona Beach is to have some final answer about who holds the trust and for whom they hold the trust so as to not have to address the issue again in the future. One option al- luded to in the February 27 submission from Attorney Huemoeller is that this may be a matter for the courts to sort out. Consideration should be given about how it gets to the court and what resolution is being sought, whether a declaration of the nature of trust or some kind of recognition of a certificate of registra- tion, so there is a better understanding of the ownership of the property, Believes the property should be handled in a way that does not violate the trust which may cause the City to be subject to lawsuit by the State Attorney General; is consistent with the purpose of the trust and public use; recognizes historical use and creates certainty going forward.w 10 City Council Meeting Minutes March 2, 2009 DRAFT Millar: Commented that it seemed Hannen couldn't have foreseen this small parcel of land being a park for the public. Noted that as a council member he must not make a decision based on emotion, but he un- derstands that this parcel has been a part of the neighborhood and the feelings associated with that. LeMair: Asked how the association could have it both ways - to limit access and not pay taxes on the par- cel. If it belonged to the public, the City would have a portion of the costs to maintain the lot and it has not done so. With a private road, no one can get there unless they own property there. Makes sense that it is private beach area, but the process and whether or not it can be taxed would have to be figured out. Erickson: Commented that there have been 60 years of the City not doing any maintenance, but there have also been 60 years of not paying taxes on it. It was considered to be in public trust to not have taxes. Agreed with Hedberg's comments that the ownership and how it should be resolved is beyond the Council. Asked for details on the 2008 complaint referred to in the agenda report. Girouard: Recalled that notices were sent to all in the neighborhood that there would be a public meeting in early 2008 and a letter was received from a back lot owner stating that the association had been control- ling who could or could not have a dock off the lot and they felt they were being unfairly excluded from ac- cess to the dock. Erickson: Clarified that Twin Isle residents have a right to passage over the lot, but are not allowed to have a dock on this lot. Girouard: Agreed; added that the ruling allows the owners of lake front properties to have a dock off their properties so the owner of Lot 3 would have the right to have a dock off that lot. Erickson: Commented that members of the Council have suggested the issue go to court and the asso- ciation has asked for a committee to work it out and queried how we should proceed. Girouard: Replied that the intent of the public hearing is not to direct or take specific action, but rather to gather information. Believes it would be appropriate for counsel and staff to work with the association to try to reach resolution either by court action or some other type of action and before commencing such a pro- ceeding, staff and the City Attorney would have to come to the Council for direction on how to proceed and then it likely could be handled between the City Attorney's office and the neighborhood association and its counsel. Erickson: If the City assumes it is the property of the association, the City could be sued for giving away property that belongs to the City; or if we assume it is City property the association could sue the City to try to gain title to the property. Girouard: Stated he perceives a non-adversarial court action which could resolve the status of the prop- erty and insulate both the City and the association from subsequent liability if, for example, one of the heirs or assigns of Christine Hannen stated the trust was violated and wanted to reassume ownership. Erickson: Queried whether the City would have to mount an argument. Girouard: Replied that he would want to reach a position where the stance of the City, the association, the Attorney General and the heirs of Christine Hannen would all be the same. Haugen: Thanked residents for presenting input. Pointed out that there is not an adversarial position, but would like to have the questions resolved so it does not have to be considered again. Asked if association incorporation includes Lot 3. Huemoeller: Replied that the certificate of title shows the owner as being the public, but the action and conduct of the association, indicates it is as though the public is meant to be the association. Haugen: Asked if the association pays liability insurance. O'Hehir: Replied the association cannot get insurance until the steps are upgraded and the association does not want to pay for upgrading until they know they have ownership clarified and can get insurance. Haugen: Clarified that there has been no taxation. Huemoeller: Replied that from an assessment standpoint, it is likely that these lots are assessed as hav- ing some form of lake access in which case there would be additional valuation to the lots. When home- 11 City Council Meeting Minutes March 2, 2009 DRAFT owners associations own lake shore, the value might be prorated among the owners rather than independ- ently taxing the lake shore lot. Valuation is done differently in different associations. Girouard: Noted that a number of people were informed by real estate agents that they had deeded ac- cess to the lake/dock. Believes that is a fair statement that they have platted access, which is done through the two shared driveways to the lake. The deeded access/dock issue is as much in dispute as is ownership of the Lot 3 property. Haugen: Appears the collective thoughts of the Council are to get this resolved for the future and this is deeper than a determination that the Council can make. MOTION BY HEDBERG, SECONDED BY MILLAR TO DIRECT THE CITY ATTORNEY AND STAFF TO WORK WITH THE INGUADONA BEACH HOMEOWNERS ASSOCIATION AND ITS REPRESENTATIVES TO DEVELOP A NON-ADVERSARIAL COURSE OF ACTION FOR RESOLUTION OF THE OWNERSHIP OR USE OF LOT 3, INGUADONA BEACH. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried. City Attorney Girouard provided a history of Lot 1, Grainwood Park, indicating that it was platted in 1944 by Chrstine Hannen. The plat dedicated driveways, walkways and waterfront in the neighborhood for the joint use of the respective owners of the lots in the plat. Lot 1 is bordered by a driveway with direct access to Prior Lake. In 1948 a warranty deed was granted by Hannen for Lot 1 to "the public" of Scott County and the State of Minnesota. A subsequent replatting dedicated streets to the public and they are now City streets. In 1987 complaints were received that Jeffrey Kennedy, the owner of Lot 2, had constructed a deck, a retaining wall and landscaping that encroached on Lot 1. No resolution was reached from negotia- tions with Kennedy at that time. In 2002 an association formed and approached the City about purchasing Lot 1. It was concluded by the City Attorney that the lot could not be vacated because, unlike a platted street which can be vacated following a statutory process, this is a lot that was conveyed to the City by war- ranty deed. There was concern by the neighbors that if the City sold the lot as surplus property it would have to take sealed bids. In late 2007, the City received reports that real estate agents had been listing back lots as having deeded access to the lake and that residents had been maintaining a dock on Lot 1. Last spring a public meeting was held and there was discussion of past dissent between Kennedy and some of the residents about the residents building a walkway to the beach; it was also reported that people bought properties believing they had deeded access to the lake and the value of the property had been determined because of that understanding. Some are in the position of trying to sell properties now and felt it would be difficult to sell given the uncertainty of the status of Lot 1. Comments: Hedberg: Asked if this lot has the same characteristics as Inguadona Beach Lot 3, in that it is held in a charitable trust. Girouard: Replied that the granting language and statutes in effect were identical to that of the lot in In- guadona Beach. Believes the question is again what the intent that Christine Hannen meant by the "pub- lic." MOTION BY HEDBERG, SECONDED BY MILLAR TO OPEN THE PUBLIC HEARING REGARDING PRIVATE USE OF PUBLIC PROPERTY AT GRAINWOOD PARK. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried and the public hearing open at 9:17 p.m. 12 City Council Meeting Minutes March 2, 2009 DRAFT Comments: Ryan Brenner, 4280 Grainwood Circle, was told that property had lake access along with a picture of the access. Stated the realtor gave him jet skis and a lift at the dock with the purchase. Paid market price for a house with lake access. Stated if it is taken away, will have to tangle with the real estate company. Jeremy Krisko, 4310 Grainwood Circle, stated he has lived there six years and the issues never get re- solved. Not sure what the population was when the trust was made, but it seems Hannen wanted to be charitable to the people in the neighborhood. Recognizes that you can't please every one, but it seems that no one wants to take the responsibility of making a decision. Believes consideration should be given to what would happen to the property and how it would be maintained if it were used by the general public. Stated that as an end result, he wants to be able to get on the lake and if the property is considered for the entire public, then it is taking something away from him. Chad Rittenour, stated there are only seven houses in the association but they keep the lot clean and maintain and enjoy it. MOTION BY LEMAIR, SECONDED BY MILLAR TO CLOSE THE PUBLIC HEARING REGARDING PRIVATE USE OF PUBLIC PROPERTY AT GRAINWOOD PARK. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried and the public hearing closed at 9:25 p.m. Comments: Millar: Asked if any of the properties have a formal easement. Girouard: Replied that the City condemned an easement from the public. Millar: Asked if the property is buildable. LeMair: Asked if it is a lot of record. Albrecht: Affirmed it was a lot of record. Parr: Stated there may be need of variance, but is likely buildable. LeMair: Asked if the Spring Brook Park and Inguadona Beach lots were lots of record. Parr: Replied that the Spring Brook Park lot is not. Albrecht: Added that the Inguadona Beach lot is a lot of record. Erickson: Asked if there is a drainage easement on this property. Albrecht: Replied there is not one shown on the plat, but there is a storm sewer outlet. Commented that he would have to research whether there is a formally recorded easement on the lot. Erickson: Asked if a storm sewer outlet would make the lot not buildable. Albrecht: Replied that staff has not done analysis to see if it can be built upon. Erickson: Asked if it would it make a difference about the ownership whether or not the lot is buildable. Girouard: Replied that it would not. Erickson: Asked if the ownership is affected by whether or not it can be accessed by a public or private road. Girouard: Replied that Inguadona had an issue because the public could not access it on private roads, but this lot would have public access because it is on a City street. Noted that there have been past dis- cussions in which the question was raised by a property owner as to why the City had placed an easement across the lot if it is owned by the City and explained that records indicate the City was documenting the fact that it was placing the storm sewer in, but not recognizing an adverse interest in the property by any- one else. Erickson: Asked what makes the ownership of this lot different from the lot at Inguadona Beach. 13 City Council Meeting Minutes March 2, 2009 DRAFT Girouard: Replied there is a concern about encroachment into the lot by Kennedy. Explained that Ken- nedy stated he had adversely possessed the lot, but state law does not allow adverse possession of public property. Erickson: Asked he would be allowed to take adverse possession if it were association property. Girouard: Believes it is unlikely that Kennedy could establish adverse possession against the association because prerequisites such as exclusive use have not been met. Erickson: Asked if the City would have to take action against Kennedy to vacate the encroachment. Girouard: Replied there are several ways it could be addressed, but that is a separate question from the one of ownership of Lot 1. Erickson: Suggested mimicking the resolution from Inguadona. LeMair: Commented that this one is different due to the public roads. Girouard: Explained the map showing a ten-foot driveway that allows access to the lake. LeMair: Asked if any member of the public could use the access. Girouard: This neighborhood has roadways and driveways platted to the public rather than a private drive- way as on Inguadona, so the public has lake access down the abutting driveway, even if it does not have access to the lot. LeMair: Noted that the frontage here was not set aside like the frontage on Inguadona Beach. Asked who paid the assessment on the roadway in front of this lot. Girouard: Replied that can be researched. Albrecht: Added that if it is City property, the City tax roll would have picked up the tab. LeMair: Clarified that no one is paying taxes on this lot now. Girouard: Correct. LeMair: Stated it is clear that Kennedy does not own the lot. Noted there is a question about the lot not being big enough for the public but recalled that the City was much smaller when the parcel was platted. Believes that whoever is taking care of it probably has the right to it. Hedberg: Clarified that the City Attorney opinion is that the lot is held by the City in charitable trust for the public. Girouard: Correct. Hedberg: Asked if the property could be sold since it is encumbered by a charitable trust. Girouard: Replied there would have to be court action in which one option would be for the court to de- clare a trust no longer necessary for the purpose for which is was declared or clarify status of ownership. Hedberg: Commented that factors differing this lot from the Inguadona Beach lot are the public roads and the short term association stating that this has not been an active neighborhood association that has man- aged the lot for a long period of time. Believes the circumstances might dictate a different course of action. Girouard: Replied that tonight's meeting has a smaller representation of the neighborhood than what was at a public meeting, but there are indications of past activity to maintain the lot. Hedberg: Believes the City should get real estate experts to work it out and have court action to clear up what the intent of the term "public" was meant to be. Does not believe that can be done by the Council. Millar: Stated he hopes that the owners that have been using this property will be able to retain some rights to the use of the property. Haugen: Reiterated that the Council cannot make a decision based on emotion and regardless of personal feelings, the right thing to do is find out what is legal, what will protect the property owners and the citizens of Prior Lake and what is consistent over the passage of time MOTION BY HEDBERG, SECONDED BY ERICKSON TO DIRECT THE CITY ATTORNEY AND STAFF TO WORK WITH THE GRAINWOOD PARK HOMEOWNERS ASSOCIATION AND ITS 14 City Council Meeting Minutes March 2, 2009 DRAFT REPRESENTATIVES TO DEVELOP A NON-ADVERSARIAL COURSE OF ACTION FOR RESOLUTION OF THE OWNERSHIP OR USE OF LOT 1, GRAINWOOD PARK. VOTE: Ayes by Haugen, Erickson, Hedberg, LeMair and Millar. The motion carried. OLD BUSINESS No Old Business was scheduled. NEW BUSINESS No New Business was scheduled. OTHER Community Events leMair: Congratulated seven varsity wrestlers who will move forward to the State competition and wres- tlers that placed at the Liberty National Youth Wrestlers and at the AAU Tournament of Champions in Ne- braska. Congratulated Premiere Dance for their success at a competition last weekend. ADJOURNMENT With no further comments from Council members, a motion to adjourn was made by LeMair and seconded by Millar. With all in favor, the meeting adjourned at 9:50 p.m. Frank Boyles, City Manager Charlotte Green, Administrative Asst. 15