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HomeMy WebLinkAbout7B - Shady Beach Trail Public Access STAFF AGENDA REPORT DATE: 7B LANOL LEICHTY, WATER RESOURCES COORDINATOR CONSIDER APPROVAL OF RECOMMENDATION FROM LAKE ADVISORY COMMITTEE REGARDING THE PROPOSED STATUS OF THE SHADY BEACH TRAIL (BEACH LANE) LAKE ACCESS AND CONDUCT A PUBLIC INFORMATION MEETING TO SOLICIT PUBLIC INPUT. DECEMBER 15, 1997 AGENDA #: PREPARED BY: SUBJECT: INTRODUCTION: In 1994 the Lake Advisory Committee prepared a report for City Council consideration which recommended the status of some 19 lake accesses to Prior Lake. The council then conducted Public Informational meetings on each to solicit public input and made a final determination with respect to each. When the council considered the Beach Lane access they were advised that the actual access (or at least half of it) had previously been deeded to the Sportsman's Club. Relying on this fact the council decided that the access would remain in use "as is" under the regulation of the Sportsman's Club who apparently had rights to the access. Subsequently the neighbors living adjacent to the access hired an attorney to research the validity of the Sportsman's Club deed. The attorney concluded that the deed to the Sportsman's Club has no standing and that the land was in public ownership. The city's present attorney firm concurred with the legal analysis. Since the ownership of the property changed, the City Manager asked that the Lake Advisory Committee reevaluate and recommend to the council the status of this access. The Lake Advisory Committee has met on two occasions to discuss this access. This report provides detailed information about the access and a recommendation for use of the site for City Council consideration. BACKGROUND: In 1953 "Beach Lane" was dedicated for public use in the plat of Shady Beach by Carl Muhlenhardt, the fee owner of the property at the time of platting. In 1989 the Sportsman's Club were conveyed an easement from William Marshall over Beach Lane in the form of a quit claim deed. Prior to this the City had posts and cable installed which delineated the access. The City also, before 1989, had a gate installed which was originally operated by the City's police force. Part of the reason William Marshall gave the Sportsman's Club the easement over Beach Lane was so that this access would remain open to the public and not closed. As a 16200'fl!I~~<Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER result of the easement transaction the City removed the gate and the access remained as it is today. Since that time, Beach Lane has been maintained by the Sportsman's Club and the City of Prior Lake. There was a public informational meeting held on November 21, 1994 to consider the Lake Advisory Committee's (LAC) recommendation to classify Beach Lane as a winter access. At that meeting, upon unanimous vote, council adopted the recommendation of the LAC to retain Beach Lane as a winter access. The definition for a "Winter Access" in the Lake Access Study, dated September 30, 1994, is as follows: WINTER ACCESS: Intended to be used by the public to provide motor vehicle access to the lake during the winter. Access would be open during the period from November 1 through March 1 and would be closed from 11 P.M. to 6 A.M. daily. "Motor vehicle" means any self-propelled vehicle licensed for highway operation, including snowmobiles, which is being used for off-road recreational purposes. In 1996 the two adjacent residents to Beach Lane, Mr. David Smith and Mr. Scott Donaldson, hired an attorney to review the validity of the quit claim deeds in favor of the Sportsman's Club. After inquiry into the deeds it was the opinion of the residents attorney and the City's attorney, from a letter dated April 14, 1997, (copy enclosed) that these deeds are of no legal affect. The result is the Sportsman's Club has no legal interest in the Beach Lane property, but have the same rights as anyone else to use Beach Lane. Paul Hokeness, the Parks Director, received a letter from the Sportsman's Club dated November 12, 1996 listing three priorities they had in mind to improve the Beach Lane access (see attached letter). This letter was written before the legal status of the Sportsman's Clubs quit claim deeds was discovered to be void. The proposed improvements included: 1) widening by removing the posts and cable, 2) establishing lot lines with corner posts, and 3) removing a large over-hanging branch off of a tree. At the time there was also talk of possibly paving the access. This obviously caught the attention of city staff and the adjacent neighbors. The LAC was asked their opinion on what, if any, improvements should be made to this access. On May 21, 1997 the LAC visited the Beach Lane access. After reviewing the property a motion was made and passed by the committee as follows: "To widen the entrance to the Shady Beach Sportsman's BEACHLN.DOC access by removing a large tree and moving the northeast post to the northeast property corner." Again at the August 20, 1997, LAC meeting the committee reviewed its' previous recommendation regarding classification and use of this access with the knowledge that the Sportsman's Club easement was void. There was discussion as to whether or not a private use of public property agreement should be entered into between the City and the Sportsman's Club. The committee agreed that since it is dedicated to the public, that it should remain open for public use. A motion was made and approved that amended the May 21, 1997, motion which added the following statement "That the Shady Beach access remain in public use." At the September 17, 1997, LAC meeting, the Sportsman's Club and neighbors adjacent to the access, Mr. Donaldson and Mr. Smith, were invited to attend to offer their views regarding this issue. The neighbors main concerns were: 1) volume of traffic using the access, 2) location of the access in a residential neighborhood, and 3) lack of enforcement as designated on the posted sign. Mr. Smith showed the committee a traffic count that he took on Beach Lane from January 10, 1997 to February 28, 1997. His count showed that the access averaged 265 vehicles per day, or 11 vehicles per hour. The Sportsman's Club main concern was the potential of closing another lake access. The possibility of installing an electronic gate was discussed along with the issues that would arise from this action. The committee decided that it needed to gather further information and would meet again with both parties before making a final recommendation to council. The LAC held a special meeting on December 4, 1997, in which both parties were present again to discuss Beach Lane. The neighbors do not object to a gate being placed at this access, but are concerned that this would only be a short term solution. They think that in the future, with increasing traffic, an alternative access needs to be sited that could handle increased traffic volumes. The Sportsman's Club is not in favor of a gate being placed at Beach Lane, would like to see it widened and open to the public 24 hours a day. At that meeting the LAC made a list of nine alternatives for this access: 1) Close the access (vacate). 2) Leave the access as it is, open year around. 3) Install a gate at the access, with no additional improvements. Police would be the gate keepers. BEACHLN.DOC 4) Install a gate at the access and widen it. Sportsman's Club to pay for widening and gravel. Police would be the gate keepers. 5) Install an electronic gate, possible cost share by neighbors. No additional improvements. 6) Screen the access with plantings. No additional improvements. Sportsman's Club willing to cost share. 7) Screen the access by fencing. No additional improvements. Sportsman's Club willing to cost share. 8) Improve or relocate the Sand Point Park winter access. Leave Beach Lane as is or classify as a "Scenic Overlook". 9) Past motion by the LAC: "Widen the entrance to the Shady Beach Sportsman's access by removing a large tree and moving the northeast post to the northeast property corner. And, the Shady Beach access remain in public use." DISCUSSION: After discussing the issues the LAC made the following motion and recommendation: "Short term solution - Place a pole gate (minimal expense) with the gate closed by the police department from 11 :00 p.m. to 6:00 a.m. The Sportsman's Club will assume no responsibility for operation or maintenance. Long term solution - Have the parks department explore Sand Point Park for an improved winter access, eventually turning Beach Lane into a scenic overlook." ISSUES: Several of the major issues that are of concern regarding this access were discussed are: 1) High volume of traffic on an access located close to a residential area. Mr. Smith's traffic count for Beach Lane in January of 1997 averaged 11 vehicles per hour. The number of violaters using the access after the posted hours averaged 5.1 % of the total users. In the summer time this access is self-regulating since there is no parking available close by. Residents who live near this access in the summer use it to launch their boats, etc. With the south metro area in a rapid growth stage this access will acquire more traffic use in the future. Due to the width of the access it has the capacity for one way only traffic. Given the location, width and required turning radius, the LAC thinks that an alternative location on the north end of the lake should be looked at for a winter access. 2) Lack of an access on the north end of the lake, other than Beach Lane, with accessible slope for ingress I egress of ice houses. The winter access at Sand Point Park, which is BEACHLN.DOC gated off in the summer, has a slope of 8% for first 200 feet with the last 150 feet having a slope of 10%. The maximum slope of Beach Lane is approximately 7% for the last 100 feet toward the lake, the beginning of the access has a slope of 1 % for the first 100 feet. The maximum recommended street grade for City streets in the public works design manual is 8%, unless authorized by the City Engineer. Given the more desirable slope of Beach Lane it is not suprising that a majority of winter lake users would choose this access over Sand Point Park. 3) Enforcement and maintenance responsibilities associated with a gated access. Enforcement of this access is a hard issue. The existing signs posting the hours of use for this access are not enforceable by ordinance. If the police did catch someone using the access after hours, all they could do is give them a verbal warning. An ordinance would need to be passed specifically regarding the hours of use for this access to give the police enforcement authority. The Sportsman's Club has said that they do not want to assume any responsibility for operating a gate if one is installed. The LAC is also aware that the police department will likely not be a willing participant in assuming the operational duties of a gate. And, the neighbors have mentioned that they will not let this issue die until the enforcement of this access is to their satisfaction. The LAC opinion that if the police department could assume operational duties of a gate for the remaining four winter months, this would allow time to investigate an alternative winter access in Sand Point Park. 4) DNR is opposed to closing of any public lake access. Some of the DNR's arguments against vacating lake accesses are: 1) Prior Lake is a public water. 2) The DNR supports the opportunity for the public to access public waters as much as possible. 3) The heavy winter demand demonstrates the need for this access. 4) Ice thickness on the lake varies from month to month and limits areas that can be used on a lake, having more access points is better for the public. The City Staff has reviewed the LAC recommendation and believes the installation of a "pole gate" represents considerable liability and maintenance exposure to the City. Relying upon the police department to open and close the gate daily at 11 :00 p.m. and 6:00 a.m. in perpetuity is unrealistic. The gate itself will become a high maintenance cost as it will be regularly damaged by persons wishing to get on or off the lake. The staff recommends that the council either: BEACHLN.DOC ALTERNATIVES: RECOMMENDATION: ACTION REQUIRED: BEACHLN.DOC 1) Continue to allow the use of Beach Lane as a winter access which presently is the case or, 2) Vacate this access at the end of this winter season and allow people to use Sand Point for winter access as the only access to the north part of the lake in the future. No improvements to Sand Point are recommended as the entire park was improved with bituminous drives and parking lots only two years ago and the topography cannot be corrected without considerable grading and expense. The alternatives for the City Council to consider are as follows: 1. Approve the LAC recommendation which includes a short term and long term solution. 2. Direct that the access continued to be used "as is". 3. Vacate the access leaving Sand Point Park as the only northerly winter lake access. 4. Continue the meeting for a specific reason. Alternative No. 2 or 3. A motion and second to approve the recommended alternative. ~wi:(j (h. fJU~~ REVIE D 1 November 12. 1996 Paul Hok;2ness Director, Parks and Recreation City of Prior Lake 16200 Eagle Creek Ave. S.E. Prior Lake, Mn 55372 Dear- P,;:,~u.l" After meeting together last week, the members of the Sportsmens Club made some plans and reached some concerning the Shady Beach Access on to Prior Lake. Pr i or- L=-d-::e cl!=?cisions The following 15 a plan of action that was reached to establish priorities that we intend to follow up with yet this fall on getting started improving the access. These plans, concerning CJur" pr-cipE.:,o.t\/ (the access \-'11 Shc~d;/ E:each -'iai 1) ale based on the determination that we, The Prior Lake Sportsmens Club, have exclusive rights to this property. Prioity 1. Have the posts and cables which run center of the property, and are believed to have been by the City of Prior Lake, pulled out and removed. down the install('2d Prioity~. Establish the lot line or border by marking the boundaries with four corner posts, one at each marked corner with some kind of non-destructable posts. These would be offset a short distance inside the borders to avoid encroaching on the neighboring property and would meet with your approval as to the tv'pe of posts. Priority ~. - Remove the large branch off of the tree on access which hangs over it and has become a nuisance vehIcles hitting it, and will improve the looks of the tree. the b'., 1 As time 15 of the essence, we would appreciate an answer quickly as the ground will be frozen verv soon. It should also be mentioned that this is just the start of improving the access a~ more will be planned for next year and the following years ( planting more eye appealing shrubs or trees along the boundaries, improving ttle roadway, e"tc.'" The C\ub would also like to make work with the city, on improving is prepared to go ahead if no running out quickly. it clear that it would like to the access, if possible, but it answer is received as time is The Prior Lake Sportsmens Club. .", -. ----------- ?H4Dy ______ 8~4CH--- /V 'I -'_ 'Y It" --~F S58<" --~ - 10!)<1.3' '05 J:' . <15 <..: ~- '1r41L --::::::-- -........ '- ... .~.- ~.%5 " , 24 3 X' -;>- ~ f I , 4 ' I' (lFl:VE:, . : G4R4G€'. ~q ~; . _ n L ~Doq . 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L..4ke f;F.ACH, Scott __ _~..,v""rl +.h1!'l County, MinneDota ~ Also showing the looe:tion of Pith de.Y' of July ~ 1992. .--"'1""__..,_..___ .-_._.____--..._ en ....I ~ I- W ;.J - m o :E ~ o z en en z o - ~ <( o o ..J en en w o o en en w u u or::( a::: w I- Z , . CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. Attorneys at Law Thomas J. Campbell Roger N. Knutson Thomas M. Scott Gary G. Fuchs James R. Walston Elliott B. Knetsch Suesan Lea Pace (612) 452~5000 Fax (612) 452~5550 Andrea McDowell Poehler Matthew K. Brokl* John F. Kelly Marguerite M. McCarron George T. Stephenson . Also licc:nsed in Wisconsin * * * Writer's Extension: 217 Writer's Fax: 452-5550 April 14, 1997 Mr. Gene Grommesch President Prior Lake Sportsman's Club 19323 V ergas Avenue Jordon, MN 55352 Re: Shady Beach Access ("Beach Lane") City of Prior Lake Sportsman's Club Easement Matter Our File No. 3698/080 Dear Mr. Grommesch: This law firm is legal counsel to the City of Prior Lake. This letter is being sent to you at the request of Park and Recreation Director Paul Hokeness. Please be advised that I have reviewed the October 28, 1996 from correspondence Attorney Clinton McLagan regarding this matter, a copy of which is enclosed herein. Based upon Mr. McLagan's letter and applicable law, it is my opinion that the Quit Claim Deeds to the Prior Lake Sportsman's Club are of no legal affect. As a result, the Sportsman's Club has no legal interest in the Beach Lane property. Minn. Stat. 9 541.023 bars the Sportsman's Club from claiming an interest in the Beach Lane property. In addition, the easement (originally created in 1910) was terminated when it was separated by conveyance from the benefitting property to the east. The property was dedicated for public use as a "Beach Lane" in 1953. As a result of the dedication, the City of Prior Lake was entrusted with control and 50035 Suite 317 . Eagandale Office Center · 1380 Corporate Center Curve · Eagan. MN 55121 Mr. Gene Grommesch April 14, 1997 Page 2 maintenance of the Beach Lane for the public benefit. The party who dedicated the property for public use (Carl Muhlenhardt) was the fee owner of the property at the time of platting. ~f you wish to discuss this matter, please call me. Very truly yours, CAMPBELL, KNUTSON, SCOTT & FUCHS, P .A. By: JRW:rlt cc: Mr. Frank Boyles Mr. Paul Hokeness Ms. Sues an Lea Pace 50035 ... McLagan & Lerman, P.A. Attorneys at Law 2025 Centre Pointe Boulevard. Suite 260 Mendota Heights. Minnesota 55120 Telephone (612) 686-8688 Fa.x (612) 686-8730 Clinton McLagan Esther M. Lerman St. Paul Office 386 North Wabasha St.. Suite 1500 St. Paul. Minnesota 55102 Telephone (612) 222-5000 October 28, 1996 David L. and Teresa M. smith 14253 Shady Beach Trail Prior Lake, Minnesota 55372 Scott L. Donaldson 14247 Shady Beach Trail Prior Lake, Minnesota 55372 Re: Prior Lake Sportsman's Club "Easement" Our File: 10257 INTRODUCTION You have inquired as to my opinion regarding the validity of 2 deeds running in favor of the Prior Lake sportsman's Club, a Minnesota non-profit corporation. The deeds purport to convey the land located in Scott County, Minnesota described as follows: The East 2 rods of Government Lot 6, section 25, Township 115, Range 22. The first deed was dated March 28, 1989 and filed April 23, 1989 as Document No. 257784. The second deed was dated April 10, 1989 and filed April 23,1989 as Document No. 257785. In my opinion these two quit claim deeds to the Prior Lake sportsman's Club are of no legal affect. At the time these deeds were executed the interest they purported to convey had long since been extinguished by operation of law. My opinion is based on the law in Minnesota as applied to the facts in this matter. APPLICABLE LAW 1. Thirty Year Statute. Minn. Stat. S500.20 subd.2a states in relevant part: ... all private covenants, conditions, or restrictions - created by which the title or use of real property is affected, cease to be valid and operative 30 years after the date 'of the deed, or other instrument... creating them, and may be disregarded. This subdivision does not apply to covenants, conditions, or restrictions: ... (2) that were created before August l, 1959, under which a person who owns or has an interest in real property against which the covenants, conditions, or restrictions have been filed claims a benefit of the covenant, condition, or restriction if the person records in the office of the county in which the real estate affected is located, on or before March 30,l989, a notice sworn to by the claimant or the claimant's agent or attorney: setting forth the name of the claimant; describing the real estate affected; describing the deed, instrument, or will creating the covenant, condition, or restriction; and stating that the covenant, condition, or restriction is not nominal and may not be disregarded under subdivision.l; . i"'---'" The subject easement is an appurtenant easement. Black's Law Dictionary, sixth Edition defines appurtenant easement as follows: Appurtenant 'easement. An incorporeal right which is attached to a superior right and inheres in land to which it is attached and is in the nature of a covenant running with the land. (Emphasis added.) The thirty year statute applies to covenants and as such to appurtenant easements. 2. Forty Year Statute. The Marketable Title Act, Minn. stat. ~54l.023 provides in relevant part: Subdivision l. As against a claim of title based upon a source of title, which source has then been of record at least 40 years, no action affecting the possession or title of any real estate shall be commenced by a person, partnership, corporation, state, or any political division thereof, after January l, 1948, to enforce any right, claim, interest, incumbrance or lien founded upon any instrument, event or transaction which was executed or occurred more than 40 years prior to the commencement of such action, unless within 40 years after such execution or occurrence there has been recorded in the office of the register of deeds or filed in the office of the registrar of titles in the county in which the real estate affected is situated, a notice sworn to by the claimant or his agent or attorney setting forth the name of claimant, a description of the real estate affected and of the instrument, event or transaction on which such claim is 2 founded, and stating whether the right, claim, interest, incumbrance or lien is mature or immature. ... Subd. 2. This section shall apply to every right, claim, interest, incumbrance or lien founded upon any instrument, event or transaction 40 years old at the date hereof, or which will be 40 years old prior to January I, 1948, except those under which the claimant thereunder shall file a notice as herein provided prior to January 1,1948. ... Subd. 5. Any claimant under any instrument, event or transaction barred by the provisions of this section shall be conclusivelv presumed to have abandoned all right, claim, inter.est, incumbrance or lien based upon such instrument, event or transaction; and the title in the name of any adverse claimant to the real estate which would otherwise be affected thereby shall not be deemed unmarketable by reason of the existence of such instrument, event or transaction; it being hereby declared as the policy of the state of Minnesota that, except as herein provided, ancient records shall not fetter the marketability of real estate. (Emphasis added.) ... Subd. 6. This section shall not bar the rights of any person, partnership or corporation in possession of real estate. The Minnesota Supreme Court discussed the kind of possession necessary to avoid the conclusive presumption of abandonment in B.W. & Leo Harris Co. v. city of Hastinqs, 240 Minn. 44, 59 N.W.2d 813 (1953) 4. ... If a claimant subject to the provisions of the statute had not filed the required notice, the only way he can avoid the statute's conclusive presumption is by being in possession at the time it would otherwise take effect. If at any later time he abandons his possession, the bar falls and he cannot revive his right by again going into possession. Thus, to avoid the conclusive presumption of abandonment imposed by the statute, the claimant's possession mus~ be continuous. If the claim is based upon an instrument, event, or transaction which was 40 years old on January 1, 1948, the claimant's possession must have begun at least by that date and must .continue until action is commenced; if it is based upon an instrument, event, or transaction which becomes or became 40 years old after'- January 1, 1948, the claimant's possession must begin or have begun at the end of the 40-year period and must continue until action is commenced. 3 5. A further question arises as to the nature of the possession required by section 541.023, subd. 6. In our opinion it must be present, actual, open, and exclusive and must be inconsistent with the title of the person who is protected by this section. It cannot be equivocal or ambiguous but must be of a character which would put a prudent person on inquiry. (Emphasis added.) 59 N.W.2d at 816, 817 3. Appurtenant Easement Must have Dominant Estate to Exist. An appurtenant easement, like the one created in 1893, is an incorporeal right, that is a right to intangibles, such as legal actions, rather than a property right. As an incorporeal right it is incapable of existence separate and apart from the particular land to which it is annexed, See Black's Law Dictionarv, sixth Edition pages 509 (appurtenant easement) and 767 (incorporeal rights). A conveyance of the dominant estate also passes the easement even if it is not mentioned in the conveyance because the easement is appurtenant to the dominant estate. stapf v. Wolbrock, 171 Minn. 358, 214 N.W. 49,50 (1927); however, an appurtenant easement does not exist without the dominant estate. CHRONOLOGY OF TITLE TO EASEMENT, DOMINANT ESTATE AND SERVIENT ESTATE 1. 1893 2. Dec. 19, 191.0 3. 1894-1953 4. Nov. 9, 1948 5. Dec. 30 , 1.948 Easement created over East 2 rods of Lot 6, section 25, by Deed of Right-of-way to August Uihlein, the fee owner of the East half of the Southeast quarter of section 24 (dominant estate) . Deed of both the dominant estate and easement to William Marshall was filed. It is this deed the Prior Lake Sportsman's Club claim as its source of title. Servient estate was subdivided and the various relevant parts conveyed "subject ton the easement. Joseph R. Milem conveyed the servient estate to carl Muhlenhart. This deed was filed Dec. 1, 1948. Wiliiam Marshall (owner of dominant estate) died intestate leaving wife, Kathryn, and five children. 4 6. Dee. 1.9, 1950 7. 1.953 8. 1953 9. 1953 1.0. 1.972 11. 1981 Minn. stat. S 541.023 became effective as to the Marshall easement. The servient estate was owned by Carl Muhlenhardt and the dominant estate was owned by the heirs of william Marshall. The notice required by Minn. Stat.S 541.023 subd.1 was not filed by this date. The William Marshall estate was probated in 1953. The probate decree was filed in 1977 and included the dominant estate and the easement. Carl Muhlenhardt, who acquired the servient estate in the fall of 1948, obtained a judgement which states he is the owner of the servient estate "including the 2 acres of land in said Government Lot 6 reserved by the defendants, Charles G. Peterson and his wife, Anna G. Peterson in that certain warranty deed given by the said Charles G. Peterson and his wife Anna G. Peterson, to James Milem, dated Feb. 14, 1894 and filed for record Feb. 16,1894 and recorded in Book 39 of Deeds, Page 624...." The judgement also states that if the Petersons are dead "...their heirs, and anyone claiming through or under them or through or under their heirs have no estate to Government Lot 6 of section 25, Township 115, Range 22, or any part thereof and have no interest therein or lien thereon." Plat of Shady Beach was filed with a 33 foot road over part of the easement land. Only the fee owner of the servient estate signed the plat. The present underlying fee owners of the 33 foot road in question are David and Teresa smith. The owner of the dominant estate granted highway easement to Scott County for the North 42 feet of the South 72 feet of the east half of the Southeast quarter of Section 24 "in addition to existing right-of Way." A 1913 platbook shows this highway (now Hwy. 42) has existed for many years as a township road. Kathryn Marshall acquired the dominant estate and the easement. She also received a quit 5 claim deed for the easement. ~2. ~984 Kathryn Marshall conveyed various parts of the dominant estate but retained the East 331. ~1 feet. ~3. April ~6, . Kathryn Marshall conveyed the easement to ~986 william M. Marshall (filed April 2~, ~986). ~4. July ~2, ~986 Kathryn Marshall conveyed the East 331.~~ feet of the dominant estate to Bradford. 15. March 30, ~989 Deadline for filing notice pursuant to Minn. st~t. S 500.20 subd.2a (2) passed without notice being filed. ~6. ~989 William M. Marshall's personal representatives conveyed easement to the Prior Lake Sportsman's Club. Summary From the law and facts stated above, it is obvious that by the time the Prior Lake sportsman's Club received the deeds in question, the easement no longer existed. 1. The ~sement was abolished. by the 30 year statute. The easement was . created before August ~, 1959 so it can be disregarded unless the statutory notice was filed by March 30, 1989. No notice was filed so the easement is abolished by the operation of the 30 year marketable title law. 2. The easement was abolished. by the 40 year statute. The easement was created more than 40 years prior to January I, 1948. There is a conclusive presumption that the easement was abandoned unless on January ~, ~948 the statutory notice was filed or the claimant was in adverse possession of the easement. It is interesting that Carl Muhlenhardt, the person who owned the servient estate right after January of 1948, brought an action to attempt to have this abandoned easement removed from his title. He did not sue the Marshall family. If the Marshall family was using the easement. in a manner which put Mr. Muhlenhardt on notice they were claiming the easement by adverse possession, one would think Mr. Muhlenhardt would have joined them in the lawsuit. . No notice was filed so there was a conclusive presumption that the easement was abandoned by the 40 year statute. . 3. The e3smlent was abolished when it was separated from the domin~nt estate. If this easement escaped the affect of the two marketable title laws, it was abolished by the April 16, 1986 conveyance of the 6 easement from Kathryn Marshall to william ~.. Marshall. The . dominant estate and the easement were separated at that time. An appurtenant easement does not exist without-the dominant estate. The law does not favor preserving ancient claims against real estate. Unlike the 40 year statute, the 30 year statute does not provide for an exception for persons in possession. possession under the 40 year statute is very difficult to prove because it is the same type of possession required to claim land by adverse possession. The legislature has shown a strong interest in eliminating ancient claims such as the present claim by the Prior Lake Sportsman's Club. There are many other reasons the easement does not exist. I have stated the three mqst obvious, any of which is sufficient. Thank you for the inquiry. If I can be of further assistance, please feel free to contact me. Yours truly, Clinton McLagan CM/jm 7 STAFF AGENDA REPORT DATE: 7A LANI LEICHTY, WATER RESOURCES COORDINATOR CONDUCT PUBLIC INFORMATIONAL MEETING TO CONSIDER CONTINUATION OF PROPOSED WINTER ACCESSES: LORDS STREET AND BEACH STREET NOVEMBER 21, 1994 AGENDA: PREPARED BY: SUBJECT: INTRODUCTION: The purpose for this public informational hearing is to determine if the City of Prior Lake and the public in general want to continue to classify .the Lords Street and the Shady Beach Trail areas as winter accesses as recommended in the Lake Access Study. We have notified neighbors within 1000 feet of each area and posted a notice in the November 12 and 19th issues of the Prior Lake American. BACKGROUND: When the Lake Access Study was accepted by the Council at its regular meeting on October 17, 1994, it recommended continued classification of Lords Street and Shady Beach Trail areas as Winter Accesses (see attached location maps). Of the nineteen access sites identified in the Lake Access Study these two have been the most controversial in the past. Mr. and Mrs. David Hunt, who recently acquired the Lords Street site, knowing that it has been historically used as a winter access have stated that they are in the process of torrensing the property to acquire clear title to this land. The attorney's office indicates that the torrensing office at Scott County has no record of such a request. Neither has the City been contacted as. an interested party to submit its position on such a proposal. This access has been historically used to gain access to the lake in the winter. The Shady Beach Trail Access is operated by the Sportsman's " Club and the City of Prior Lake. The neighbors living adjacent to this site have periodically expressed concern about the hours of operation. The Sportsman's Club has an access easement and the City has a roadway easement on this property. The definition for a "Winter Access" in the Lake Access Study is as follows: WINTER ACCESS: IntendeJ to be used by the public to provide motor vehicle" access to the lake during the winter. Access would be open during the period from November 1 through March 1 and would be closed 4629 Dakota St. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER from 11 pm to 6 am daily. "Motor vehicle" means any self-propelled vehicle licensed for highway operation, including snowmobiles, which is being used for off-road recreational purposes. At the October 17, 1994 council meeting the Council asked the Lake Advisory Committee (LAC) to further investigate the snowmobile regulations at the winter accesses. The LAC, at its October 19, 1994 meeting, recommended to prohibit snowmobile access at the Shady Beach Trail Access and the Terrace Circle _ South Access due to their close proximity to neighboring homes. DISCUSSION: LORDS STREET ACCESS - Many issues have been raised about this access as to whether or not the City should retain this as a public winter access. A list of advantages and disadvantages are shown below: ADVANTAGES: 1) Allows easy access to the deepest part of Prior Lake. This area is actively used by ice fisherman. 2) Located between the other winter accesses geographically. Closure of this access will coerce people to cross long areas of ice which increases the risk of people breaking through the ice, which poses a safety problem. 3) Would provide a safer travel route to desired fishing spots by the fishermen. 4) Two areas are notorious for having open water late in winter. One is adjacent to Beach Street and the other is between Frost Point and Reeds Island. The area adjacent to Beach Street has been open in February. One person has drowned and several have fallen through the ice at Frost Point. 5) Ice fishing is the best from ice freeze over to January 1 when the ice condition is the most unsafe. Many people walk out to this area and/or push houses out prior to the time they can safely drive on the ice. Closure of this access will tempt individuals to drive across the ice prior to it being safe from other winter accesses. 6) This' is the only opportunity the City will have to continue classification of Lords Street as a winter access. DISADVANTAGES: 1) Permits winter traffic in a residential neighborhood. Closure would reduce the traffic volumes and traffic complaints in the area. At the same time it would increase traffic volumes at the other winter access points. 2) Enforcement of access closure from 11 pm to 6 am would be difficult. Control would need to be by self-enforcement as with Beach Trail. The Sportsman's Club would be responsible for distributing fliers on restrictions of the access and encouraging people to adhere to the posted hours which limit access. Not all winter ice users belong to the Sportsman's Club. OTHER ISSUES: 1) If the City decides to protect its vested rights concerning this access, it will cost in the range of $5,000 to $10,000 in legal fees. 2) The ownership of this property will likely change hands sometime in the future. If this owner is ever to relocate this may not be such a controversial issue. 3) If the access is recommended to be kept open, the Sportsman's Club should be encouraged to continue to assist the City in picking up trash and monitoring this access. 4) Fewer ice houses would probably be located around Martinson Island. 5) Closure would enhance safety for pedestrians and neighborhood noise. 6) Last year at one of the final meetings between neighbors and Sportsman we outlined safeguards which would be used if the area were to continue to be an access. A letter reflecting the conclusions of the meeting is attached. SHADY BEACH TRAIL ACCESS - The Sportsman's Club already has an easement over this access. If Council decides to vacate this access, it would in effect be vacating the City's interest in the roadway easement, but it would not effect the Sportsman's Club or neighboring property owners who may have legal access rights. The only proposed change to this access recommended by the LAC was that snowmobiles be prohibited due to the close proximity of the access to the neighboring homes. ISSUES: The Lake Access Study recommendations were intended to provide the City with a "strategic plan" through which reasonable access would be provided around the lake. The study philosophy is that the City needs to provide reasonable access for non-lake shore dwellers while respecting the rights of lake shore owners. The LAC believes that the report does that and that winter access through these two sites is part of the overall strategy to accomplish this objective. The City Council may eJect vacate its interest in one or both sites. In the case of Beach Trail access a public hearing would be required to vacate the street easement. There may be utility easements which the City wishes to retain. Considering the Sportsman's Club private easement over the Beach Trail site, such a vacation would accomplish little except that the City would no longer provide any sort of maintenance. Neither would we show this as a "public" access on our future lake maps. If the council does not wish to continue the use of the Lords Street area as a winter access, it should direct the staff to discontinue any maintenance efforts and to remove existing signage and replace with signage that clarifies it is not an access. Discontinuance of the long standing use and maintenance of this access would eventually eliminate any City claims to a prescriptive easement over the property. If the council elects to continue Lords Street as an access the staff would continue its maintenance of the area and would work with the property owner and users to implement safe guards similar to those outlined in the attached letter. If the home owner persists in blocking use of the access, court action would eventually be necessary to establish whether a prescriptive easement exists. The attorney believes that this process would cost somewhere between $5,000 and $10,000. While the facts appear to support the City's position, there is no guarantee that the courts will find for the City. ALTERNATIVES: RECOMMENDATION: ACTION REQUIRED: REVIEWED BY: AGLAS1.ENG The alternatives are as follows: 1. Accept the recommendations by the LAC to continue to classify the Lords Street Access and Shady Beach Trail Access as "Winter Accesses". 2. Accept the recommendations for one access and vacate the other. 3. Vacate the City's interest in both accesses. 4. Continue the hearing for a specific reason. Staff recommends alternative number 1. Motion and second to adopt the recommendations by the Lake Advisory Committee nd to direct the City Attorney and staff to initiate acti for th rocess of obtaining a legal easement on the La ds Stre Acce ~~w~:w:,~~@~~ NEWSLETTER FROM THE CITY OF PRIOR LAKE, MINNESOTA VOL. Xl, NO.1 ~INTER, 1998") Winter Lake Access Locations When the lake freezes over on Prior and Spring Lakes. there are six winter locations to gain access to the lake. The following locations within the city limits are: Prior Lake Accesses 1. Sand Point Beach 2. Shady Beach Trail 3. West Avenue 4. Dewitte A venue Spring Lake Accesses 5. Terrace Circle 6. Lake View Drive (Spring Lake Township) The Shady Beach Trail access has posted hours of usage. it is closed daily from 11 :00 p.m. to 6:00 a.m. For those using the lake during the winter months. please show respect to others by using the trash receptacles. bathrooms provided at the accesses, observing usage hours and keeping associated noise to a minimum. See the drawing for location of the winter accesses. Carrier Route Presort Bulk Rate U.S.POSTAGE PAID Prior Lake. MN Permit No. 33 RESIDENT PRIOR LAKE, MN 55372 '" '" "" o .. :! ;; 'Q '-' ~~I ,. d~! o \ _, J ~\ I <y-V~ ~1 ~v ~ WINTER ACCESS LOCATIONS POLICE. FIRE - 911 Non Emergency 440-3555 8:00 a.m. to 4:30 p.m. Mayor Lydia Andren 445-7441 City Council Members Tom Kedrowski 447-8344 Wes Mader 440-1069 Jeannie Robbins 445-6052 Pete Schenck 440-4118 City Manager Frank Boyles 447-9801 ON JANUARY 1,1998 THE MAYOR & COUNCIL WILL BE: Mayor Wes Mader 440-1069 City Council Members Tom Kedrowski 447-8344 Pete Schenck 440-4118 Jim Petersen 440-7093 VACANT CITY OFFICES: 16200 Eagle Creek Ave., Prior Lake, MN 55372-1714 447- 9800 or 447-4230' 8:00 a.m. to 4:30 p.m. Monday thru Friday _ Overnight Parking ::Ban in Effect ({';'The City of Prior Lake's snow removal parking :'ordinance went into effect on November 15th and ends . :;;:on March 15th, as it does each year. The ordinance' f:~~:xnakes it illegal to park on a public street from 2:00 a.m. ~>.~6:00 a.m. from November 15th through Marcld5th .t.~'~very year. Police will be enforcing this ordinance by" -j;'J'iSsuing tags to violators. The ordinance. was created for i!.7.j.tfiesafety of the community and to keep the streets clear: ~,.:'of vehicles every night to allow for fast and safe plowing :,...~operations. Thank you. for your: cooperation. CITY MEETINGS AT FIRE STATION ONE City Council - 7:30 p.m. - 1 st, 3rd, Mondays City Council Open Forum'- 7:00 p.m. - 3rd Monday Economic Development Authority - 3rd Monday, 5:30 p.m. Planning Comm. - 7:00 p.m. - 2nd, 4th, Mondays Lake Advisory Comm. - 6:30 p.m. - 3rd Wednesday Parks Advisory Comm. - 6:30 p.m. - 2nd Monday (Prior Lake Maintenance Center) ~-------------'-~----,-----rr- "'"l ;iJ'