HomeMy WebLinkAboutResolution No. 013-24 - Resolution - Findings and the Final Cartway Order Establishing the Cartway for Petitioners Gwen Neeser and Robert Higgins
RESOLUTION
Approving the Findings and the Final Cartway Order Establishing the Cartway for
Petitioners Gwen Neeser and Robert Higgins and Awarding Damages to the
Affected Property Owners Bill B. Buck and Emily Buck.
WHEREAS, the Common Council of the City of Rochester, Minnesota (“Council”), received
a Petition from Gwen Neeser and Robert Higgins (“Petitioners”) requesting the
establishment of a cartway, pursuant to Minnesota Statutes §435.37, to access property
which contains approximately five (5) acres of land legally described as follows (“Petitioner
Property”):
Beginning at a point 507 feet west and 299 feet south of the northeast
corner of the Southeast Quarter (SE ¼) of Section Thirty-five (35),
Township One Hundred Six (106), Range Fourteen (14), thence South
316 feet, thence west 1373 feet to the center of Highway 63, thence
north 8°30’ west 322 feet, thence east 1421 feet to the place of
beginning, Olmsted County, Minnesota, containing 10.03 acres more
of less. Excepting a part of the Southeast Quarter (SE ¼) of Section
Thirty-five (35), Township One Hundred Six (106) North, Range
Fourteen (14) West, described as follows: Commencing at the
northeast corner of said Southeast Quarter (SE ¼), thence west along
the north line of said Southeast Quarter (SE ¼) a distance of 507.0
feet, thence south parallel with the east line of said Southeast Quarter
(SE ¼) a distance of 299.0 feet, thence west parallel with the north line
of said Southeast Quarter (SE ¼) a distance of 1101.41 feet for a point
of beginning, thence south at right angles a distance of 208.0 feet,
thence west at right angles a distance of 127.0 feet, thence south at
right angles a distance of 108.0 feet, thence west at right angles a
distance of 46.0 feet to a point in the easterly right of way line of trunk
highway No. 63 and said point being on a curve whose radius is
3039.79 feet, and whose chord is at a deflection angle of 79°39’ to the
right from the previous described course, thence northwesterly,
deflecting to the left, along said curve a distance of 321.21 feet, thence
east parallel with the north line of said Southeast Quarter (SE ¼) a
distance of 230.71 feet to the point of beginning. And the most
southerly 108.0 feet thereof being subject to an easement for egress
and ingress by pedestrian and vehicular travel by others.
Parcel ID: 643542045404;
AND
WHEREAS, the land has no established access to it except over a navigable waterway,
over the lands of others; and
WHEREAS, the route for the cartway requested by the Petitioners, which is described in the
Petition, would be established over the following property (“Affected Property”):
SECT-35 TWP-106 RANGE-014
CITY LANDS 106-14-35
COM AT A PT 507 FT W & 615 FT S
OF NECOR SE ¼ FOR PT OF BEG
TH S 320 FT TH W1360 FT TO CEN
T.H. NO 63 THN NWLY 320.5 FT TH
E1373 FT TO PT OF BEG ALSO COM
AT A PT 935 FT S & 1668.52 FT W
OF NECOR SE ¼ TH S 74.02 FT TH
NWLY TO E R-O-W T.H. NO 63 TH
NLY AL SD R-O-W TO A PT 935 FT
S OF N LINE SE ¼ TH E TO BEG
LESS COM AT A PT 935 FT S &
1203 FT W OF NECOR SE ¼ TH
N 127 FT TH W 465.52 FT TH
S 125.09 FT TH E TO BEG ALSO
LESS TH PT LYING IN NE ¼
SE ¼ ALSO LESS TH N123 FT
LYING W OF THE ELY 1061.4 FT OF
FOL DES PARCEL BEG AT A PT
507 FT W & 615 FT S OF NECOR
SE ¼ TH S320 FT TH W 1360 FT TO
CEN LINE HWY 63 TH N 320.5 FT TH
E 1373 FT TO PT OF BEG
Parcel ID: 613542053338;
AND
WHEREAS, the requested route crosses property owned by Bill B. Buck and Emily Buck
(“Affected Owners”), and
WHEREAS, the Petitioners sought to establish legal access that is at least 33 feet wide to
a tract of property that is landlocked; and
WHEREAS, petitioners are requesting the establishment of a cartway connecting said
property to the public road known as Quarve Road SE; and
WHEREAS, pursuant to Minnesota Statutes § 435.37, the petitioners are responsible for
damages related to the cartway; and
WHEREAS, calculation of damages “means the compensation, if any, awarded to the owner
of the land upon which the cartway is established together with the cost of professional and
other services, hearing costs, administrative costs, recording costs, and other costs and
expenses that the City may incur in connection with the proceedings for the establishment
of the cartway”; and
WHEREAS, on July 17, 2023, the Council did view the proposed location of the subject
cartway as requested by Petitioner and the alternative route proposed by the Affected
Owners; and
WHEREAS, on October 2, 2023, the Council held a public hearing regarding the Petitioners’
request for the establishment of the cartway to hear all interested parties, to determine the
location where the cartway shall be established, and what damages, if any, are due to the
Affected Owners.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Rochester,
Minnesota, that the Council approves the following findings:
FINDINGS
1. The tract of land through which the proposed cartway passes is identified above as
Affected Property.
2. The owners of the affected property are identified above as Affected Owners.
3. The Petitioner’s request meets the conditions for the establishment of a mandatory
cartway pursuant to Minnesota Statutes § 435.37 because the subject tracts of land
owned by Petitioners contain as least five acres of land and have no access of at
least 2 rods in width to a public road.
4. All of the legal requirements for giving notice have been satisfied for the cartway
proceedings.
5. Petitioners as identified above have posted security with the City and acceptable to
the City Council in the amount of $30,000, which is the estimated costs and damages
associated with establishing the proposed cartway.
6. On October 2, 2023, the Council held a public hearing regarding the Petitioners’
request for the establishment of the cartway to hear all interested parties, to
determine the location where the cartway shall be established, and what damages,
if any, are due to the Affected Owners.
7. At the public hearing, various documents and testimony were submitted for the
Council’s consideration, including an appraisal of the property over which the
proposed cartway would be established, a survey showing the location of the
proposed cartway, and an existing easement and aerial photographs showing
alternative cartway locations.
8. The Council has received, reviewed, and considered the following documents, all of
which are incorporated herein by reference, in issuing this Cartway Petition Final
Order:
a. Petition for Cartway (including Survey of cartway);
b. Resolution requiring a bond or other security on the cartway proceedings,
setting the site inspection, and setting the public hearing;
c. Affidavit of Posting and Publication of various notices;
d. Affidavit of Personal Service on Affected Owners;
e. Aerial photographs of the proposed cartway location and surrounding area;
f. Appraisal of property upon which the proposed cartway would be established
prepared by Warfield Appraisal Group, LLC; and
g. City staff and consultant’s presentation to the City Council.
9. The alternative location of the cartway as determined by the City passes over and
affects a parcel of land owned by Bill B. Buck and Emily Buck (the “Affected
Owners”).
10. Due to the existence of a 50-foot ingress/egress easement, the City finds an
alternative route is appropriate for the cartway. This alternative route is less disruptive
and damaging to the Affected Owners because it does not take away land which may
be used for future development and keeps the proposed cartway away from the
existing structure. Moreover, the City determines the alternative cartway route is in
the public’s best interest because it removes a gap in access to neighboring
properties.
11. The Petitioners have prepared a survey and legal description of the area proposed
for the alternative cartway.
12. The City finds the alternative cartway route, as graphically depicted on attached
Exhibit A and legally described on the second page of Exhibit A is the most practical
and appropriate route for the cartway and there is not a route which is less damaging
or less disruptive to the property ownership of others.
13. That the cartway shall follow the path as legally described and graphically depicted
in attached Exhibit A.
14. That the City, after considering the arguments of Petitioners, the Affected Owners.
and members of the public; the documents submitted by all parties and City staff and
consultants; the City Council’s knowledge of the cartway route, the appraisal and the
knowledge of the land price in the area, hereby determines the establishment of the
cartway shall cause damage to the Affected Owners, Bill B. Buck and Emily Buck,
and therefore awards $ 1,400 as damages to Bill B. Buck and Emily Buck, which is
comprised of the appraised per acre value of the property used for the cartway.
15. The City determines no other properties are damaged by the establishment of the
cartway.
BE IT FURTHER RESOLVED, that the Common Council of the City of Rochester,
Minnesota, based on the aforementioned Findings, does hereby issue the following Final
Cartway Order:
ORDER
1. The Cartway Petition submitted by Petitioners is hereby granted, consistent with the
above Findings which are incorporated herein by reference. The location of the
cartway shall be as graphically depicted and legally described in attached Exhibit A.
2. Damages are hereby awarded as shown in the above Findings, incorporated herein
by reference. Said damages must be paid pursuant to law prior to the opening of the
cartway.
3. City staff is hereby directed within seven days to notify, in writing, each known owner
and occupant of each tract of land listed in the above Findings of the adoption of this
Resolution and the filing of the Award of Damages. The notification shall set forth the
date of the award, the amount of the award of damages and any terms or conditions
of the award. These damages shall be paid by the City from the amounts which have
been deposited with the City by Petitioners as previously noted above.
4. Petitioners have deposited funds with the City to cover all City costs paid or incurred
in connection with this cartway. Any deposited funds not used to pay the City’s
cartway-related costs and damages shall be returned to Petitioners without interest.
5. City road and bridge funds shall not be expended for this cartway.
6. Travel on and use of this cartway is done at the user’s risk. The City assumes no
responsibility of any kind or nature for anyone’s use of this cartway. To the full extent
allowed by law, the City shall not be responsible for the conditions, construction, use
or maintenance of this cartway. It is the City’s intention that no City funds will be
expended on this cartway.
7. The City is not requiring the Petitioners to construct the cartway to any defined
standards.
PLEASE TAKE NOTICE THAT the landowners affected by said cartway are entitled to a
judicial review of damages, need, and purpose following a determination by the City to
establish said cartway.
PLEASE FURTHER NOTE THAT within 40 days after the filing of the award of damages,
any owner or occupant may appeal the award by filing a notice of appeal with the court
administrator of the district court of the county where the lands lie. However, any such Notice
of Appeal by an owner or occupant must be filed within ten (10) days in order to delay the
opening, construction, alteration, change or other improvement in or to said cartway. Said
cartway will not open and no construction, alternation, change to, or other improvement
proposed for the cartway will take place until after this 10-day waiting period.
PASSED AND ADOPTED BY THE COMMON COUNCIL OF THE CITY OF
ROCHESTER, MINNESOTA, THIS __________ DAY OF _______________, 2024.
___________________________________
PRESIDENT OF SAID COMMON COUNCIL
ATTEST: __________________________
CITY CLERK
APPROVED THIS _____ DAY OF ______________________, 2024.
___________________________________
MAYOR OF SAID CITY
(Seal of the City of
Rochester, Minnesota)
CONTROLLED ACCESS Exhibit A 25 Ft.QUARVE RD. S.E.N'RLY R.O.W. LINESEC. 35, T.106 N. R.14 W.E. LINE SE 1/4P.O.B.T.H. 63E'RLY R.O.W. LINE 80°0'0"'44.20 108'T.H. No. 63OF HISTORIC C/LAPPROX.
LOCATIONN 89°58'39" W 1703.00SE 1/4, SEC. 35S.E. COR. OFN 89°58'39" WS 00°01'30" E 935.00SE 1/4, SEC. 35N.E. COR. OFSEC. 35, T.106 N. R.14 W.N. LINE SE 1/4 33'MISC. BOOK N-3,
PAGE 78MISC. BOOK K-3, PAGE 205, AND INRECORDED ININGRESS-EGRESS EASEMENTDEED BOOK 347, PAGE 794PER DEED RECORDED ININGRESS-EGRESS EASEMENT CONTAINS APPROX. 1465 SQ. FEET.OF ROCHESTER
VIA RESOLUTIONCARTWAY GRANTED BY CITY EASEMENT (PRIVATE)50' WIDE INGRESS/EGRESS175'205'T.H. 63E'RLY R.O.W. LINE ASSUMED TO BEAR S 00°01'30" E.LINE OF THE SE 1/4 OF SEC. 35 T. 106 N,
R.14 W. ISFOR THE PURPOSES OF THIS SURVEY, THE EAST X:\\AE\\C\\CURRH\\163923\\9-survey\\92-CAD\\15-dwg\\CU 163923 Cartway Exhibit_Assumed Brg.dwg 12/5/2023 10:02 AM Plot: mhaselius
12/5/2023 10:01 AMSave: SCALE IN FEET200100500 GWEN NEESER & ROBERT HIGGINS CARTWAY EXHIBIT MINNESOTAROCHESTER,MJHMJHSEH www.sehinc.com 1 of 1SEH ProjectChecked ByDrawn BySurveyed
By BOOK 336 DEEDS, PAGE 891PER FINAL CERTIFICATEC/L S.B. LANE T.H. No. 63
Cartway Easement Exhibit A parallel with the north line of said Southeast Quarter.being of beginning, said line ssing through the point said northerly right of way line of Quarve RoadThe
sidelines of said 33 foot wide strip shall be prolonged or shortened to terminate on Olmsted County, Minnesota.County Recorder, , on file in the office of the Subdivision ’srecorded
plat of Conwaythe S.E., as dedicated on to the northerly right of way line of Quarve Road less,, more or feet 20.4for 4 00 minutes 00 seconds degrees 80thence deflecting left feet
to the point of beginning of said centerline; 03.00Quarter, for a distance of 17, parallel with the north line of said Southeast westerlyfeet; thence .00935along the east line of
said Southeast Quarter for a distance of erlythence south; Southeast Quarter of said Section 35at the northeast corner of the Commencing of said strip described as follows: centerlinethe
Olmsted County, Minnesota, Range 14 West,Southeast Quarter of Section 35, Township 106 North, the foot wide strip of land, lying in .0033A