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.
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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.
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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
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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.