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3. Memo re MEADOWBROOK MEMORANDUM Date: January 30, 2020 To: City Administrator Ken Cammilleri From: City Attorney Eric Sherburne RE: Meadowbrook Avenue north of Scandia Trail Washington County survey and GIS records indicate a road right-of-way extending approximately 60’ northerly from end of the pavement on Meadowbrook Avenue, then turning easterly more or less along the quarter-quarter line approximately 625’, then turning slightly northerly approximately 250’, terminating near the former Gilbertson farm building site. Curtis Peterson owns the property at 21617 Meadowbrook, to the south of the easterly extension of the right-of-way. Scandia Meadowbrook Farm LLC owns the property at 21757 Meadowbrook, to the north of the easterly extension of the right-of-way. John Herman is a representative of Scandia Meadowbrook Farm LLC. Mr. Peterson has complained that the “driveway” to the parcel at 21757 (1) cuts off the corner of Mr. Peterson’s the parcel at 21617 and (2) wanders south of the property line for approximately 300’. In investigating property lines in connection with this private dispute, Mr. Peterson learned of the right-of- way. MEMORANDUM January 30, 2020 Page 2 [24947-34019/2660052/1] Mr. Peterson inquired of the Washington County Surveyor’s Office regarding a documentary source for the easterly extension of the right-of-way. The County Surveyor referred Mr. Peterson to the City, as the owner of the right-of-way. Mr. Peterson requested that the City inform the County Surveyor of the “error” regarding the right-of-way, so the County Surveyor could “correct” the survey and GIS records. The City undertook research to identify any recorded document (e.g., plat, easement, etc.) concerning the easterly extension of the right- of-way and found none. But dedication or grant in a recorded document is only one of several ways a right-of-way can be established, so the absence of a recorded document does not mean that the right-of-way is incorrect or invalid. For example, under MINN. STAT. § 160.05, a road used and kept in repair for six years continuously as a public way by a road authority is deemed dedicated to the public. It does not appear that the City has maintained the easterly extension of the right-of-way in recent years. But if the City, or the Town or County before, maintained the easterly extension of the right-of-way continuously for at least six years at any time in the past, the dedication would have arisen, and it would continue, despite non-use, until lawfully vacated. (In 2006, the City of Prior Lake inadvertently acquired a turnaround following more than six years of use and maintenance, when a property owner brought a court action to formalize the City’s responsibility for the property. This shows that the threshold for a city to acquire rights is fairly low. See Rixman v. City of Prior Lake, 723 NW 2d 493 (Minn. Ct. App. 2006).) A termination of right-of way requires formal vacation pursuant to MINN. STAT. § 412.851. A vacation proceeding can be initiated on a petition by a majority of the landowners abutting the right-of-way or by a City Council resolution supported by a four-fifths vote. In this case, Mr. Peterson and Scandia Meadowbrook Farm LLC are the two abutting landowners; unless they cooperate, neither could bring an adequate petition alone. The City holds rights-of-way rights/property in trust for the public. Only when vacation is “in the interest of the public” can City properly initiate a vacation proceeding on City Council motion. LMC guidance states that “mere long-term, non-use of a street by the public does not necessarily equate with a finding that the vacation is in the interest of the public.” In this case, no one has yet stated any public benefit that would result from vacation. For its part, Scandia Meadowbrook Farm LLC, would prefer that the easterly extension of the right-of-way remain in place as it provides the only public access to approximately 130 acres the company owns. Under MINN. STAT. § 160.09, a road that is the only means of access to MEMORANDUM January 30, 2020 Page 3 [24947-34019/2660052/1] any property of an area of five acres or more cannot be vacated without the landowner’s consent unless other means of access are provided. The company has argued that the right- of-way would eventually be opened in connection with future development, perhaps including connection to Meadowbrook Avenue or Oakhill Way south of Oakhill Road. And the company has argued that facilitating future access and development is consistent with the Comprehensive Plan. Faced with county survey and GIS records that indicate a right-of-way, the proper way to terminate right-of way rights, if any, is a formal vacation proceeding. There is no landowner petition for vacation. The question before the City Council is whether to initiate, by four-fifths motion, a vacation proceeding concerning the easterly extension of the right-of-way. (There are notice and public hearing requirements and other formalities for a vacation proceeding; it is premature to consider the merits of vacation too deeply. Likewise, issues of potential eminent domain or public investment to improve Meadowbrook Avenue to facilitate future development are premature, as no such development has actually been proposed. And a property line dispute is a private matter in which the City has not role or responsibility.)