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7.b Letter to City Council T (612) 337-6100 F (612) 339-6591 100 Washington Ave S. | Suite 1300 Minneapolis, MN 55401 siegelbrill.com November 12, 2021 Via Email (k.cammilleri@ci.scandia.mn.us ) Mayor Christine Maefsky City Council City of Scandia 14727 209th St. N. Scandia, MN 55073 Re: Petition to Vacate Easement for Pedestrian Way Purposes Dear Mayor Maefsky and Members of the City Council: I represent Bruce and Janet Swenson and Jim and Peggy Simpson, who have petitioned the Council to vacate a portion of an overgrown and unused pedestrian easement that is located along their common boundary. I write to you today to provide additional background and support for the vacation petition. Background The Swenson family has owned and farmed land on Goose Lake since the early 1900s, and over the past century they have consistently shown themselves to be good stewards of the land and the lake. Their efforts in this regard began over 100 years ago, when Bruce Swenson’s grandfather dedicated land to Scandia Township for the public access to Goose Lake on Oldfield Road. To this day, that access allows for public use and enjoyment of the lake. In the 1970s, the Swensons agreed to put 18 acres of their land under a conservation easement, to protect the lake from harmful run-off. Under this easement, that land will remain in a natural, undeveloped state, permanently. In 2000, when the Swenson decided to sell some of their land for the Ogilvie Drive residential lots, they agreed to a suggestion by Scandia Township that they use the opportunity of the development process to grant to the public a walking easement to Goose Lake. It was not clear to the Swensons at the time that any such easement would ever be used given the existing public lake access, and they did not realize that the easement would run in part through a wetland and not actually reach the lake shore, but they were willing to support the goals of the Township. Last year, Bruce and Janet Swenson decided to sell 57 of their remaining 69 acres to help finance their retirement. They plan to remain in their home, however, and it is critically important to them that the land and lake continue to be protected from development that could prove harmful. They were therefore very excited about the possibility of selling the acreage to the Simpsons, who would use it as part of their established, successful nursery business, Max Tree Farm. Expansion of the tree farm presents a unique opportunity, as few if any other potential uses of the land would be as protective of the environment. For example, the trees are fertilized by hand based on a tree-by-tree analysis of what each specific tree needs. Deep- rooted, native prairie grasses from Prairie Restoration would be planted in between the trees, and there would be no annual tilling, harvesting, or general broadcast of chemicals as are typically used with row crops. Because Max Tree Farm sells large-caliper shade trees, a “crop” takes 12-15 years to reach the necessary size to market. This would be an exceptionally low- impact use of this important land. In order to realize the Simpsons’ plans, they need the entire acreage to be available for planting, including the easement area, and it will also be necessary for them to extend the DNR-approved 8’ deer fence around the additional acreage. The fence is required to protect the trees from scrapes and other damage caused by deer. The continued existence of the easement would therefore prevent the expansion of the tree farm. The merits of the vacation petition As you are no doubt aware, the decision whether to grant my clients’ vacation petition lies within your discretion, and the sole question before you is whether “it appears in the interest of the public” to vacate the easement. Minn. Stat. § 412.851. In this context, “the public” refers to the public at large, and not just persons in the immediate vicinity of the vacation. See In re Hull, 163 Minn. 439, 204 N.W. 534 (Minn. 1925). Granting the petition would be in the public interest. First, it would allow for the productive use of the Swenson land in a manner protective of the environment. Other potential uses of this land, including residential development, would have a larger impact on the surrounding environment, including Goose Lake. Second, it would increase the financial stability of Max Tree Farm, a long-standing Scandia business which currently employs four persons. Third, the vacation would benefit City taxpayers by eliminating a potential source of liability. Opponents of the vacation have recently attempted to clear portions of the easement and begin using it, but it remains unimproved and hazardous. Fourth, vacating this portion of the easement would eliminate pressure on two wetlands. Both the northern and southern ends of the portion of the easement that is the subject of the petition are located in wetlands, and unknown persons have attempted to make these areas passable on foot by placing pallets in the wetland and damaging wetland vegetation. In contrast to the public interests served by granting the petition, nothing of benefit to the public would be lost by vacating this portion of the easement. As City staff informed you through the draft resolution prepared for the October 19 Council meeting, this pedestrian easement has never been opened or improved, and the City has no plans to open or improve the easement. And even if a trail were constructed in the easement, it would not reach open water, as the shoreline in this area is itself a wetland consisting of emergent vegetation. The easement is thus not a practical means for the public to gain waterway access without possible detriment to the shoreline and its vegetation. As staff has pointed out, “future utilization of this easement would be impossible without the City acquiring additional land to make a practical connection to the lake shore or create a through trail route that would be more conducive for recreation.” Moreover, vacating this portion of the easement would not hinder public access to Goose Lake since public access remains available from Oldfield Avenue. Because of the proximity of the easement to Goose Lake, the statute requires the City to give the DNR notice of the petition and requires the DNR to evaluate the proposed vacation provide its opinion to the City. As part of its consideration, the DNR “must evaluate: (1) the proposed vacation and the public benefits to do so; (2) the present and potential use of the land for access to public waters; and (3) how the vacation would impact conservation of natural resources.” Minn. Stat. § 412.851. It is critically important to understand that the DNR in no way has any authority over this or any other street vacation. The statute gives it an opportunity to share its views with the City, but the power to grant or deny the petition rests entirely with the City. Again, the sole legal question before you is whether or not “it appears in the interest of the public” to vacate the easement. Earlier this year, the DNR provided you with a letter stating its position on the vacation petition. Substantively, the letter included nothing other than a quote of the relevant statutory language and the statement that the Department opposes the vacation. The letter included no facts, no analysis, no discussion and no argument. While the statute does not in any way condition the approval of the vacation petition on the three criteria that the DNR is supposed to evaluate, even if it did, those criteria are established here. First, the proposed vacation would produce the numerous public benefits described above. Second, there is no present or potential future use of the subject portion of the easement for access to public waters because (1) there is no plan to improve the easement and (2) improving it would not be legally possible without approval of a wetland replacement plan. Third, the vacation would actually benefit the conservation of natural resources because establishment of an improved access trail in the easement area would require filling wetlands and eliminating shoreland vegetation. For all of the foregoing reasons, we respectfully submit that the statutory basis for granting the vacation petition is satisfied in this case and that the petition should in fact be granted. Thank you for your consideration. Very truly yours, Mark Thieroff (612) 337-6402 | Direct markthieroff@siegelbrill.com cc. Clients (via email)