MINUTES-PROFITT, et.al. CARTWAY HEARING-OCTOBER 4, 2008

Meeting called to order at 10 a.m. by Chair Dave Fornengo. Also present were supervisors Don Mishler and Dave Baker, and clerk Fran Levings. Present for the hearing were Donald Proffit, Jason Proffit, Todd Pottsmith, Tom Olson, David Erickson, Kent Alden, Al Thorp, Tim Henderson, Larry Leach, Daniel Leach, Dick Olson, David Kemp, Bob Schueller, Burt Schueller, Robin Kemp, Tim Kemp, Bruce Schueller, Corey Carlson, Cevin Chapman, Jerry Hanson, Steve Whitaker, Tim Gohla, Roger Larson, and Brent Erickson.

Motion by Dave Baker, second by Don Mishler, to approve the minutes of the Proffit, et.al, cartway hearing on September 13, 2008, as printed. Carried.

Supervisor Dave Baker reported on findings of fact that he has done since the September 13, 2008, hearing. He had meetings with, correspondence from, or conversations with the following persons: Jay Squires, township attorney, Ben Cox, Army Corps of Engineers, Robin Poppe, Pine County Soil & Water District, Rick Dunkley, DNR, Greg Bennett, Pine County Land Commissioner, Pine County Surveyor Robin Matthews and Kristin McCullough, Minnesota Association of Townships.

He read into the record the letter from Attorney Jay Squires (Copy of letter is on file with the township) answering 4 questions the township had asked him. These answers related to cartway construction standards, taking of public land, liability issues, and selection of an alternate route. In response to the taking of public land, Mr. Squires advised us that “typically, other public entities take the position that their lands cannot be involuntarily gained through the cartway process. DNR representative Rick Dunkley had said at the 09-13-08 hearing that the state does not give land to individuals.

Supervisor Baker then presented general information on the need for both a wetlands assessment and a survey for OPTIONS 1 and 2- # 1 is the route sought by petitioners and # 2 is the Adolph’s Drive route. Because both of these routes have large stores of wetlands, petitioners would need to meet with a wetlands consultant . Both the Soil & Water District and the Army Corps of Engineers would work with petitioners to allow mitigation of wetlands and determine the cost.

Supervisor Baker mentioned a tentative agreement of the New Dosey Land Association regarding use of the Kirchberg Road. He then discussed some points of this agreement regarding Option # 3- the Kirchberg Road. The provisions of this agreement could set limitations on road access and use that are not applicable to a cartway. Also, regarding Option # 3, County Surveryor Matthews said there are no visible monuments (markers) on the Kirchberg Road and a survey would be difficult.

Therefore, the Board is acting under the assumption that the 1917 road order which places Option # 3 on public land is correct and this takes Option # 3 off the table for consideration as a cartway.

Supervisor Baker corrected a statement he had made at the 09-13-08 hearing. Once a cartway is established, the adjacent landowners are NOT the road authority, the petitioners are.

Supervisor Baker then reported what he had learned about Options # 1 and 2. Option # 1 is the petitioners requested route. Both Soil & Water and the Army Corps of Engineers strongly oppose this route. There are too many wetlands to be mitigated. Mr. Baker pointed out on the map all of the wetlands involved here. Clerk Levings pointed out that petitioners would be responsible for all costs of wetlands mitigation and these costs could be exorbitant.

Dick Olson asked whether or not Mr. Proffit could take out the dam which had made some of these wetlands, thus making part of this route “not a wetland”. Mr. Baker replied that this area would still be a wetland, just another kind of one.

As for Option # 2, the Adolph’s Drive path, Supervisor Baker said a bridge would have to be built and again, an exorbitant cost would be involved. Also, significant wetlands would have to be mitigated.

Supervisor Baker then said that the existing route- the route that Judge Rueter had ruled was not a town road should now be considered as Option # 4 for a cartway. This road follows a ridgeline on high ground. This route would cross both Reis and Henderson property and would have to be surveyed. County Surveyor Matthews had told Mr. Baker that a map (GPS) survey could be done at much less expense than a formal survey.

Supervisor Baker said that in the event a lawsuit results from a Board decision to adopt Option # 4 as the cartway route, Board legal expenses would be paid by the township’s “errors and omissions” insurance policy carried with the Minnesota Association of Townships.

Supervisor Baker said that regarding any damages to be paid for land taken under eminent domain, Attorney Squires had told him that damages are paid not only for property taken, but also for loss of use of the property.

Supervisor Baker suggested that it would be better all around if the parties could work together on an easement.

Motion by Dave Baker, second by Dave Fornengo, that the Board draw up a “draft cartway order” based on Option # 4- the ridgeland trail, to be sent to our attorney for review, then acted upon at the next Cartway Hearing. Carried.

Tim Henderson asked what the procedure was for petitioning the Board to open the Kirchberg Road as a town road. Mr. Baker said that 6 residents within a 3-mile radius of the road would have to present such a petition to the Board, then a special town meeting of the electors would be scheduled to discuss and decide the issue.

Mr. Henderson then asked to make the point that Option # 4 would also require many wetlands delineations. He said he will go back to court if Option # 4 is made into a cartway.

Tom Olson asked Don Proffit specifically as to whether or not he wishes to continue with his petition or withdraw it and join the New Dosey Land Association, which would give him access via the Kirchberg Road.

Discussion ensued then about past problems with the construction of the Kirchberg Road.

Jason Proffit asked if the Board could find a route with no wetlands.

Tom Olson asked Don Proffit and Jerry Hanson if they were willing to spend the money to do the necessary wetlands mitigation.

Don Proffit replied by saying that Greg Beck, Pine County Forester, had said at the 09-13-08 hearing that county money may be available to help with this.

Tim Henderson responded by saying that county money would only be available for certain sections of the road.

Chair Fornengo said county money could be put on a public cartway, but not on private property.

Jerry Hanson said he felt it would be premature for him as a petitioner, at this time, to withdraw the cartway petition. He prefers to go through more of the steps.

Dick Olson, representing Sno-Camp, said he wanted it in the record that Sno-Camp is NOT willing to put in any further expenses beyond the $1700 it has given for its share of the bond and only expenses incurred as of this date- October 4, 2008, should be taken from this initial $1700. Any further expenses are to be borne by Mr. Proffit and Mr. Hanson

Clerk Levings then outlined the next steps to be taken in this cartway procedure:

1. Draft cartway order officially accepted, rejected or amended at the next hearing.

2. Wetlands consultant called in (Township has a list of consultants), then delineation must be approved by the Soil & Water District.

3. Surveyor

4. Appraisal & Damages awarded- The damages can be awarded at a regular board meeting.

5. Petitioners can build the cartway, then it must be approved by the Board.

6. Cartway order will be recorded by the Clerk in the Pine County Recorder’s office.

7. Cartway is open to use.

Jerry Hanson suggested that perhaps he and Mr. Proffit could give their own lands for wetlands mitigation.

Roger Larson said there will still be an expense because buying from the “wetlands bank” is expensive.

Dick Olson asked that a letter from Dale Kirchberg be read by Supervisor Baker. (Letter is from Mr. Kirchberg to Tom and Dick Olson, representing the New Dosey Land Association and is on file with the township).

Daniel Leach said that Mr. Kirchberg cannot stop anyone from using the Kirchberg Road because it is a public road and that he himself has never stopped anyone from using it.

Larry Leach said that anyone who does not join the Association will not get a key to the gate by his land.

Leif Erickson said the Kirchberg Road is only open to 4-wheelers.

Chair Fornengo said that the clerk will draft a cartway order using Option # 4- the ridgeland route.

Tim Henderson suggested the township ask Mr. Squires about the legality of a map (GPS) survey. He doesn’t think they are valid surveys.

Tom Olson also made the point that Sno-Camp will NOT pay any more expenses incurred after this date- October 4, 2008.

Next hearing date was scheduled for November 1, 2008, at 10 a.m. in the town hall.

Meeting adjourned at 11:40 a.m.

Respectfully submitted,

Fran Levings,

Also signed by the Chair ___________________________________

Date Signed _____________________________________

MINUTES- NEW DOSEY TOWNSHIP- PROFFIT, et.al CARTWAY HEARING
SEPTEMBER 13, 2008

Meeting called to order at 10 a.m. by chair Dave Fornengo. Also present were supervisors Don Mishler and Dave Baker, clerk Fran Levings, Greg Beck, Pine County Forester, Todd Pottsmith, Lance Wells, Jason Proffit, Tom Henderson, Jack Henderson, Jonathan Pottsmith, Donald Proffit, Cevin Chapman, Scott Olson, Tim Henderson, Al Thorp, Bob Schueller, Bruce Schueller, Dick Olson, and Burt Schueller.

Motion by Dave Fornengo, second by Don Mishler, to accept the posted bond in the amount of $5100.00. Carried.

Supervisor Dave Baker- 3 pieces of correspondence regarding the proposed cartway.

1. Letter from Robin Poppe, Pine County Soil & Water Conservation District, stated that a proposed cartway on the SW ¼ of Section 2, would impact type 2,3,4 and 6 wetlands and permits would be necessary. (Full copy of letter is in township files.)

2. Letter from Greg Bennett, Pine County Land Department, recommended that the township reaffirm the existing road orders and open this route, declaring it a “Minimum Maintenance Road”. (Full copy of letter is in township files.)

3. Letter from Army Corps of Engineers stated that based on information from Ben Cox , who had walked the proposed route, this route would be require multiple analyses in evaluating the proposal’s impacts and they suggest that perhaps less damaging alternatives exist. (Full copy of letter is in township files).

Supervisor Baker then affirmed the validity of the cartway petition itself. He said that state law mandates that a cartway be provided by the township for landlocked property owners. At this time, the Kirchberg Road is neither a road nor a cartway nor an easement. The Kirchberg Road does not reach Proffit land, thus Mr. Proffit does NOT have access via the Kirchberg Road. Aggrieved parties will be paid damages for property taken. Petitioners will be responsible for building the cartway and all adjacent landowners will be the road authority and are responsible for maintenance of the cartway. The cartway would be open to the public.

Regarding the recommendation from the Pine County Land Commissioner to re-open the road that Judge Rueter ruled was not a town road, Supervisor Baker stated that because of the Marketable Title Act with it’s 40-year rule of non-maintenance by the township, this would require a lengthy hearing process, wetland mitigation concerns, and a huge expense.

Chair Fornengo then opened the hearing to concerns, questions and suggestions.

Greg Beck, Pine County Forester, said the county also had landlocked property in this area and would like to access it. He said funds are available to help provide a PUBLIC cartway, but not for a PRIVATE cartway. He asked the question as to whether or not Roger Larson has fixed a road to this area or not.

Supervisor Baker said that Judge Rueter’s ruling also stated that the “diagonal” across Mr. Henderson’s property was not an access. He said that board was aware that wetlands would have to be considered wherever the cartway is placed in Kingsdale, that mitigation would have to take place, bridges may be necessary, and the board would make this decision in as reasonable and sensible way as it feels possible.

In answer to a question from Dick Olson as to what other routes may be considered, Supervisor Baker said the Kirchberg Road could be extended and Adolph’s Drive could be extended about ½ mile across Hay Creek to reach Proffit land.

Lance Wells asked if there was an existing bridge or foundation. A chorus of “No” replied.

Greg Beck said that the Adolph’s Drive route would be expensive.

Jack Henderson stated that because there is no bottom on the bog on the other side of Hay Creek, wetlands would be impacted by the proposed route.

Dick Olson told the group that his father, back in the 1960s, has chosen this trail because it was NOT full of wetlands.

Don Proffit asked if the Kirchberg Road could legally be closed 6 months out of the year.

Scott Olson said the Kirchberg is not a public road.

Tim Henderson quoted the minutes of the August 4th minutes of the special town board meeting to discuss the status of the Kirchberg Road as saying that ½ to ¾ of the Kirchberg Road is on state or county land.

Scott Olson said that 4-wheelers can use the public part of the Kirchberg Road.

Greg Beck stated that Dale Kirchberg and Roger Larson gave public easements on part of the Kirchberg Road.

Tim Henderson said that he had an Army Corps of Engineers person, Ben Cox, walked the area of the proposed cartway and Mr. Cox pointed out several areas of wetlands. Mr. Cox will send a letter on his findings to the town clerk.

Clerk Levings asked Mr. Henderson where he would like the cartway to be located and he replied that they should use the road on the west side that has always been there. This is the Kirchberg Road.

Al Thorp supported this route saying it would only take ½ of new road and the proposed route would require 1 mile of road to be built.

Scott Olson referred to the former “gentleman’s agreement” that Sno-Camp persons and others had with Mr. Henderson and said he was disappointed with the end result. He also said that if the 3 petitioners- himself, Jerry Hanson, and Don Proffit, are willing to do the work and expense of the proposed route, they should be allowed to do so.

Discussion began to get rather tense. Supervisor Baker made a motion to recess the meeting so that the parties could walk the proposed and Adolph’s Drive routes. Second by Don Mishler, Carried. Consensus was to meet back at the hall to reconvene the meeting at 2 p.m. Recessed at 10:50 a.m.

(Recess)

Meeting reconvened at 2 p.m. by chair Fornengo.

Chair Fornengo outlined 3 options for the board to consider as a cartway for petitioners.

Clerk Levings suggested writing them each up with advantages and disadvantages provided by both the board and those persons present.

OPTION # 1 The route proposed by petitioners.

Advantages: 1. Closer to townsite of Kingsdale. All 3 petitioners own property in the Kingsdale townsite which they have, for years, used as a starting base for activities in property that is landlocked.

2. The footprint of the old and “presumed abandoned” road is visible.

Disadvantages: 1. Inconvenience to Tim Henderson. His land would be bisected.

2. Would require a lot of road work to be done by petitioners. Question asked here as to who has the liability of the cartway once it is opened? Clerk said she would ask Jay Squires, township attorney.

3. 6 wetlands to be considered. Army Corps of Engineers authorization would be required to commence any work that would result in discharge of dredge or fill materials in this area.

Neutral comment: Nine landowners would be affected .

OPTION # 2 Adolph’s Drive extended.

Advantages: 1. Shorter route via Kingsdale

2. Does not bisect Mr. Henderson’s land.

Disadvantages: 1. Inconvenience to landowner Burt Schueller. Mr. Schueller’s wife has emphysema and the gas emissions and dust of heavy travel would exacerbate her condition.

2. Very expensive- floodplain, 4 wetland areas, one or more bridges needed.

Neutral comment: Nine landowners affected.

OPTION # 3 The Kirchberg Road

Advantages: 1. Less expensive.

2. Less impact on wetlands.

3. ½ of this road is public already.

4. A New Dosey Land Association is being formed to make decisions regarding access to this road. The petitioners could withdraw the petition and join this Association.

Disadvantages: 1. Does not have year-round access.

2 12.5 miles from townsite of Kingsdale.

2. Making this road a cartway would be detrimental to the New Dosey Land Association in that they do not want it to be a PUBLIC cartway. They want to control and limit access.

3. Can the township make a road and/or cartway out of public land or even part of public land? Clerk Levings said she would ask Jay Squires about this.

4. If made public, the cartway will not hold up to public traffic.

5. Parking area is quite small.

Consensus of the board was to now research such issues as wetlands and expenses, then

bring all information and opinions to a continuance of this hearing. Clerk Levings will do the necessary research.

Motion by Dave Fornengo, second by Don Mishler, to continue this hearing on October 4, 2008, at 10 a.m. in the town hall.

This meeting on the hearing was adjourned at 3:10 p.m.

Respectfully submitted,

Fran Levings, Clerk

Also signed by the chair______________________________

Date signed______________________________