HomeMy WebLinkAboutResolution No. 067-24 - Resolution - Amended Final Cartway Order for Neeser-Higgins Petition
RESOLUTION
Repealing and Replacing Council Resolution No. 013-24 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 (“Council”) adopted Resolution No. 013-24 at the regular
meeting of January 22, 2024; and
WHEREAS, the County Recorder requested amended language to clear up discrepancies in
the legal description offered in that Resolution; and
WHEREAS, this Resolution is put forth to repeal and replace Resolution No. 013-24 as the final
findings and cartway order in accordance with the following narrative and legal description; and
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 property set forth in Exhibit A (“Affected Property”):
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 repeals and replaces Resolution No. 013-24 and 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 B.
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)
Cartway Easement Exhibit B 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
CONTROLLED ACCESS Exhibit B 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 HIGGINSFOR PETITIONERS: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