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13. Discussion on undeveloped road rights-of-way Staff Report Date of Meeting: September 5, 2018 To: City Council From: Neil Soltis, Administrator Re: Undeveloped Road rights-of-way Background: At a previous meeting there was discussion as to the City’s responsibility / role in maintaining undeveloped road rights-of-way. There are a series of such platted but undeveloped road throughout the City, many of which were originally intended to provide access to lakes or the St. Croix River. The League of Minnesota Cities has provided guidance regarding maintaining these roads. The series of aerials that follow provide the locations of the platted but undeveloped road rights-of-way in Scandia. A number of these are currently used as shared driveways. The City has also been called with regard to mowing or otherwise maintaining these areas. The Council should discuss what should be included in a policy or ordinance with regard to the maintenance and use of these area in order to facilitate the creation of a draft for future review. 1 Neil Soltis From:Hartnett, Kyle <KHartnett@lmc.org> Sent:Friday, August 3, 2018 2:42 PM To:n.soltis@ci.scandia.mn.us Subject:RE: Research Question Submission Attachments:RegulatingCityRightsOfWay.pdf Neil: The law on platted but unopened roads (“paper-roads”) in Minnesota is not entirely clear. While the courts have clearly determined that, a city determines when a platted road is to be opened. The law is not as clear in defining what actions a city may take on a road that has not been formally opened, nor the rights of the public to use the paper-road. Based on the analysis we have from the courts, it appears that a city and the public may use an unopened road for the purpose for which it was established and yet, adjacent property owners may use the paper-road in a manner that does not interfere with the public’s use. Pursuant to Minnesota Statutes, section 505.01, subd. 1, a dedicated platted street conveys an easement to the municipality held in trust for the purposes described in the plat. In Minnesota, municipalities are authorized to choose whether and when to improve and open dedicated land for public use. Municipalities, not neighboring landowners, decide whether a property dedicated for a street will be improved to accommodate that use. An owner of land abutting a dedicated but unopened street has the right to use the portion of the street that lies on the owner’s property. The abutting owner, however, may only use the land in a manner that is not inconsistent with the public’s interest in the easement; i.e. the owner should not be allowed to make permanent improvements within the paper-road. A city’s responsibilities related to paper-roads is limited. When a city does extensive work on a paper-road, the road may be deemed to be opened by the city. If the street is opened, the city would then have the responsibility to maintain the area. A city may also use a paper-road for purposes consistent for which it was dedicated. For example, a city could extend sewer and water services through a paper-road but not open the road for travel. In addition, a city may maintain a paper-road in a manner that would allow pedestrians but not vehicles to use it. A city could maintain a path or other amenity over an easement area without opening the area as a full city street. A city should protect its platted right-of-way even if it is not formally opened. Because a city holds the easement in trust for the public, it should ensure that the right-of-way remains free of obstructions that would prevent it from being used for the purpose for which it was dedicated. A city, therefore, should try to prevent permanent structures from being erected in platted right-of-way in case it is needed in the future. To help with enforcement of maintain such right-of-way, a city should adopt a right-of-way ordinance regulating obstructions. More information regarding maintain a city’s right-of-way can be found in the attached memo. Ultimately, when doing any work in unopened right-of-way, it is a best practice to inform neighboring residents of the work being done. This is especially true if private property is being removed or altered by the city. 2 Likewise, if a resident places an obstruction in the right-of-way, the city should inform the resident as soon as possible that the obstruction may need to be removed if the right-of-way is ever opened. Putting the resident on notice will prevent a future claim that the city, through non-action, is allowing a particular obstruction. As far as a tree falling into a paper-road, I would argue the landowner who owned the tree is likely responsible for removing it from the paper-road. If the paper-road is currently used by others within the plat, or by the City, the City may want to remove it on its own as it would for any other City street. For example, if a city knows the paper-road is used by pedestrians on a regular basis, it would be best to remove the tree obstructing the route to limit the city’s liability. If the City does remove the tree it should receive consent and a waiver from the property owner, especially if the City would need to go outside of the platted right-of-way to remove the tree. More information regarding the removal of trees can be found at https://www.lmc.org/media/document/1/maintenanceofcitytrees.pdf?inline=true We cannot give legal advice but only general legal information so I cannot give you a clear answer to your question. LMC does not maintain any sample policies for dealing with such issues. I recommend contacting your city attorney for more specific guidance to your situation. Regards, Kyle Hartnett | Staff Attorney Office: 651.215.4084 Cell: 651.247.8138 khartnett@lmc.org | www.lmc.org League of Minnesota Cities 145 University Avenue West | St. Paul, MN 55103 This response is intended to convey general information and should not be taken as legal advice or as a substitute for competent legal guidance. Consult your city attorney for advice regarding specific situations. From: Research@lmc.org <Research@lmc.org> Sent: Thursday, August 2, 2018 9:23 AM To: Shared-Research <Research@lmc.org>; n.soltis@ci.scandia.mn.us Subject: Research Question Submission Research Question Submission Thank you for submitting a research question to the League of Minnesota Cities. The League's Research Staff will begin working on it as soon as possible. You submitted the following information: First Name: Neil Last Name: Soltis Position: City Administrator City: City of Scandia Phone: 6514332274 Email: n.soltis@ci.scandia.mn.us Date Submitted: Thursday, August 2, 2018 Question submitted: We have a number of locations where streets platted many years ago have remained undeveloped. Some of these are used as shared driveways but have not been maintained by the City. We have been asked by a resident to remove a 3 tree that has fallen in one of these platted, but undeveloped streets. The Council is looking for direction as to the City's responsibility, potential liability, or policies from other cities that address platted streets.