Meeting called to order by Chair Dave Fornengo at 10:03 a.m. Also present were Supervisors Don Mishler and Dave Baker, Clerk Fran Levings, Dean Reis, Tim Henderson, Todd Pottsmith, Jon Pottsmith, Don Proffit, Jack Henderson, Jerry Hanson, Cevin Chapman, Terry, Bob Schueller, Bruce Schueller, David Erickson, Dick Olson, and Roger Larson. ________________
Motion by Dave Baker, second by Don Mishler, to approve the minutes of the November 1, 2008, cartway hearing as printed. Carried.
Suypervisor Dave Baker then reported on a walk-through and discussion he had with Wetlands Consultant with EPI Drilling, Jim Warren, Duluth, on November 6, 2008. The Board can draw up a plan then submit it to the Pine County Soil & Water District. Mr. Baker reminded the group that Option # 5 (the West Forest route) was left on the table at the conclusion of the November 1, 2008, hearing. Mr. Baker then described a new recommendation made by Mr. Warren and said that he, Dave Baker, is an advocate of this plan. This route would skirt the wetlands and not take as much of Tim Henderson’s property as the original request. This route (to be called the Jim Warren route) would begin at the end of Oman’s Drive, proceed south along the existing trail which follows the eastern margin of the wetlands (all in Section 1) until the route intersects with the section line going south in Sections 1 & 2 (old township road and existing trail) ,then the cartway goes west on the section line between Sections 2 & 11 and continues to the section line between Sections 3 & 10, heading west past the property of Tim and Connie Gohla terminating at the southern end of an existing easement. Mr. Warren advised that it is better to stick to an old roadway and use a footprint already in existence. Access would be the width of a wheeler and the cartway would be built to only hold wheelers. The cartway may or may not need one culvert. Mr. Warren said that no wetland mitigation could be done until spring of 2009 and he will write up the plan with the township. Dave Baker said this would be the least intrusive way to Don Proffit’s property and little or no mitigation would be needed. The one problem with this proposal is providing access to the property of Jerry Hanson (co-petitioner). This strip of land is entirely wetlands and would be a costly mitigation. Mr. Baker noted also that Mr. Warren came upon some wetlands violations-i.e., corduroy across eagle land, destroyed driveways, etc. and he, Mr. Warren, is obligated to report these violations. Mr. Baker said that this report he is giving to the petitioners, the audience, AND the Board. The Board has not, as yet, discussed any of the options at all. He repeated that the above described route is his route of choice.
Dean Reis spoke in favor of Option # 5 (the West Forest route). Dave Baker responded by saying that Jim Warren saw wetlands obstacles on this route and that this route is 100 ft. from Don Proffit’s house. He stressed again that only small vehicles would use the new route. Mr. Reis said he is looking at the situation long-term-property values would shrink with the new route.
Dave Baker said that damages include: (1) value of property and (2) diminished use of property.
Tim Henderson also lobbied for Option # 5 (the West Forest route).
Mr. Baker said he wants something in the public record, not anything private. He mentioned another road concern the voters dealt with- School House Road is private, yet the Township is doing work on it. He said the petitioners can limit the size of the cartway and that the township has the authority to block Trail & Water from using the cartway as a conduit to the Gandy Dancer Trail.
Tim Henderson spoke regarding damages- outlined some plans he has for fixing his land and asked about break-ins, etc.
Mr. Baker said that gates could be put up.
Tim Henderson asked who would handle violations. He also asked if Mr. Warren’s ideas differed from those of the Ben Cox, the Army Corps of Engineers specialist.
Mr. Baker said we have to expect some difference of opinion. He said again that the process would be that Mr. Warren would draw up a delineation, then the Soil & Water District would respond to it. He then discussed the “public interest” factor. If access is not given from the townsite of Kingsdale into the forest, the townsite of Kingsdale could die and the township would lose its tax base there. Ii is in the public interest to not let this happen. He said that township attorney Jay Squires said that damages for previous court costs cannot be recouped via this cartway. This has already been decided in court when Mr. Henderson was not awarded damages from Jerry Hanson. Mr. Baker also said that the township could contribute gravel as part of the “public interest” component. This would be a donation. He also reminded the group that Greg Bennett, former Pine County Land Commissioner, had said that county money may be available for construction.
The next part of the hearing was a discussion by the Board.
Chair Dave Fornengo said he was impressed with the comment of Jim Warren that the new proposed route follows a footprint that is already there.
Supervisor Baker said that Mr. Warren had recommended that the township reclaim part of the proposed cartway, but attorney Jay Squires advised against doing so.
Dave Fornengo said that there is no easy way to make this decision because someone is bound to be dissatisfied.
Don Proffit asked why Mr. Squires recommended that the township not put money into the project when Mr. Warren has suggested that they do so.
Dave Baker said that Mr. Squires felt the township had said in court that this road was “presumed abandoned” and therefore should not take a different stance now. He also said that the laws of MN are in contradiction on this issue- no formally vacated roads VS the idea that after 40 years of no road work , roads are presumed abandoned. He told the group that the township, the Pine County Township Association and the MN Township Association are working on a piece of legislation that, if passed, would settle the matter once and for all. He said that under Jim Warren’s proposal, ½ mile would be taken from Dean Reis and 2 acres from Tim Henderson.
The Clerk asked for the steps to be taken.
Dave Fornengo said the Board would make a decision at this meeting, the clerk would write it up and next spring, we would have a wetlands delineation and an appraisal.
Tim Henderson asked if the petitioners could pull the petition at any time in this process and Mr. Baker said absolutely.
Dave Fornengo said he has always been concerned about not knowing the total cost to be incurred the the petitioners.
Tim Henderson said he thinks the cost will be exorbitant and a easement may be more feasible. The section of Option # 6 going to Jerry Hanson’s property would be almost impossible.
Dave Baker said that attorney Squires recommended that Jerry Hanson withdraw from the peitition and work via an easement or a plan being developed by the Land Association regarding use of the so-called Kirchberg Road.
Jerry Hanson said he cannot withdraw because he, too, needs access from the townsite of Kingsdale to his property.
Dave Fornengo said that what will be done in building the cartway from the townsite of Kingsdale must be done at the other end also.
Motion by Dave Fornengo, second by Supervisor Don Mishler, to adopt Option # 6 (The Jim Warren recommendation), which would have the cartway beginning at Oman’s Drive, proceeding south along the existing trail which follows the eastern margin of the wetlands (all in Section 1) until the route intersects with the section line going south between Sections 1 & 2 (old township road and existing trail), the cartway goes west on the section line between Sections 2 & 11 and continues to the section line between Sections 3 & 10, heading west past the property of Tim and Connie Gohla, terminating at the southern end of an existing easement. Carried unanimously.
Supervisor said he seconded the motion, but still has a concern about how Jerry Hanson will get to his property.
Chair Fornengo said he dislikes the process because the Board does not yet know all of the costs involved. He said he went on the Internet and explored all options. He said he wants the wetlands consultant and the Soil & Water District to offer another route next spring if they don’t think Option # 6 (The Jim Warren route) is viable.
Tim Henderson said he is concerned with the conflicting professional opinions of the Army Corps of Engineers specialist and the wetlands specialist. He then told both Don Proffit and Jerry Hanson that he is still open to a discussion on an easement. The easement would be private and the stipulations would be worked out by the parties involved with legal assistance. It would be recorded and binding even on future property owners if someone sells his/her land. He asked Mr. Proffit to make a proposition.
Don Proffit read again what he had read at the November 1, 2008, from MN Statute 160.09 regarding township roads that have never been vacated.
Dave Fornengo reiterated that even if some township roads have not been formally vacated, after 40 years of no work on them, they are presumed abandoned under the law.
Tim Henderson said that Judge Rueter in his decision declared that the road in dispute by Mr. Proffit is NOT a town road.
Chair Fornengo said the Clerk should draft the first section of the provisional cartway order, schedule the wetlands consultant for the spring of 2009 and arrange for an appraisal either this winter or next spring.
Jack Henderson said he wants a list of rules on how the cartway would be used- e.g. For Purposes of the Order….. He then asked if another cartway hearing would be needed if the Board wishes to revise the language.
Clerk said no hearing would be needed because this would be administrative work, but a hearing would have to be called to assess damages.
Don Proffit said that if Option # 6 (the Jim Warren route) is too expensive, then he wants the Board to reconsider Option # 1(the route proposed by petitioners)
Chair Fornengo announced that another hearing will be called and all persons notified after the wetlands mitigation and appraisal have been done in the spring of 2009.
Meeting adjourned at 11.30 a.m.
Respectfully submitted,
Fran Levings, Clerk Also signed by the Chair___________________
Date signed