8.2. SR 01-19-2016
Request for Action
To Item Number
Mayor and City Council 8.2
Agenda Section Meeting Date Prepared by
Public HearingsJanuary 19, 2016Chris Leeseberg, Senior Planner
Item Description Reviewed by
Request by Ronald Dargis and James Burgoyne to Zack Carlton, Planning Manager
Vacate the Portion of York Street located North of Peter Beck, City Attorney
Main Street NW
Reviewed by
Cal Portner, City Administrator
Action Requested
Deny, by motion, the proposed street vacation for the reasons set forth in the attached Resolution of
Denial, including:
1.The street vacation is not in the interest of the public, as required by state statute.
2.The Department of Natural Resources opposes the York Street vacation.
3.The Parks and Recreation Master Plan identifies connections to the rivers/water as an important
community interest.
Staff recommends the following:
1.A license agreement be entered into with the property owner of 1946 Main Street (75-413-0240)
allowing the fire pit and boat dock within the right-of-way and providing for future maintenance
of the driveway.
2.Signage stating no public parking or driving on the driveway be allowed.
3.Upon approval of the Department of Natural Resources, the concrete boat landing be removed.
Background/Discussion
Case No. EV 15-09
The City Council reviewed the easement vacation application at their January 4, 2016, meeting and after
receiving comments from the public and discussing the request, the Council postponed action until
January 19, 2016. The primary question left unanswered from the meeting was whether vacation of the
right-of-way would increase the tax base, providing a public benefit. The Council directed staff to
research the tax impacts and potential impacts to the city’s insurance premiums.
During the meeting, there was discussion on several topics with some information that may have been a
source of confusion. Clarification on these topics and information is outlined below.
Ownership
During the meeting Council asked for clarification as to whether the property is city owned. The
property is dedicated public right-of-way. The city does not hold fee title, so the property cannot be sold.
The statutory process for vacating public right-of-way is to divide the property down the middle with half
going to each adjoining property. In this case, the driveway constructed by the Dargises is located in the
middle of the right-of-way. The driveway will need to be relocated, or the property line adjusted by the
neighboring property owners, to ensure compliance with city ordinance which requires all driveways to be
located at least five feet from a property line.
Changes to Property Values and Taxes
The Sherburne County Assessor’s office estimates that by adding half of the existing right-of-way to each
of the neighboring parcels, the property values of the two parcels would increase by $18,000 (Dargis) and
$7,800 (Burgoyne) for a total of $25,800. This would increase the total tax base by $452 per year. The
city’s portion of that would be approximately $150 per year. Staff does not believe that this is sufficient
to offset potential property acquisition costs along the south side of the lake if a need for access were
identified in the future.
If the right-of-way were vacated and the property lines were subsequently adjusted to add the entire
vacated right-of-way to the property at 1946 Main Street, the property value of 1946 Main Street would
increase from $277,100 to $302,600. The property is currently on the market for $449,900.
Boat Landing
There were a number of comments made during the public hearing opposing the use of the York Street
right-of-way property as a boat landing. The request before the City Council is a street vacation and
elimination of a public right-of-way. Re-establishment of a boat landing has not been recommended by
staff, nor was it a request by the applicant. The property had been used as a boat landing until Council
action closed it in 1976. The Council stated they are opposed to a boat landing at this location.
Previous Discussions and Staff Review Time
Comments made during the public hearing, a letter to the editor from the applicant’s real estate agent,
and submitted correspondence from the applicant’s attorney discuss wasted tax dollars and the
tremendous time expended by city staff, the city attorney, and the City Council for hearings on this
vacation matter. Specifically, correspondence from the applicant’s attorney states, “15 City Council
hearings since July 15, 1974.”
Per documentation submitted by the applicant's attorney, the subject property has been reviewed for a
street vacation in the past, most recently as 2006. Most of the discussion from the 1970’s was in regard to
closing the boat landing on the property. The boat landing issue was resolved in 1976, and without
Council direction, will not be recommended in the future. The following spreadsheet outlines the
Council minutes submitted with the application.
Date of City Council
Topic of Discussion
Meeting
May 21, 1973 Walnut Street (now Xenia Avenue) - not subject property
July 15, 1974 Boat launch area discussed
September 3, 1974 Boat landing discussed
November 4, 1974 Beautification on city property - not subject property
Request made to vacate York Avenue - location of boat
June 2, 1975
launch. Public hearing set for July 7, 1975.
York Avenue vacation discussed - hearing continued to
July 7, 1975
August 18, 1975
York Avenue vacation discussed - decision to close boat
August 18, 1975
landing only, but only after a new landing is constructed
June 7, 1976 Boat launching prohibited on York Street
July 6, 1976 Request to reopen boat landing
Motion to hold a public hearing to reopen the discussion of
July 19, 1976
old boat landing
August 16, 1976 Boat landing discussion - no decision made
September 7, 1976 Boat landing discussion - no decision made
Update that action was to prohibit boat launching, not to
September 17, 1979
vacate street
October 1, 1979 Update that the boat landing had never been reopened
November 21, 2005 Vacation request - Vernon Street - denied
January 17, 2006 Vacation request - Yale Street - denied
On January 17, 2006, the City Council denied a request by Ron Dargis to vacate the same section of York
Street. During that meeting two residents spoke, one opposing the vacation and requesting to use the
parcel as a boat landing, and the second concerned about future construction on the lot.
The rights-of-way for Xenia (Walnut) Street and Watson (Vine) Street were vacated in 1973 and 1874.
The purpose given for vacating Xenia Street was “said portion of Walnut Street is not serving any public
purpose, and that it would be in the best interest of the public to vacate said portion of Walnut Street.”
The purpose given for vacating Watson Street was “after hearing the evidence presented to it in favor of
said petition that the said street had never been used or open to use by the public and that it would be to
the best interests of the public to vacate the same.”
Finally, applicants requesting an easement vacation must pay an application fee and submit an escrow.
The fee pays for administrative costs - public hearing notices, administrative time, preparing packets, etc.
The escrow pays for professional staff review time preparing staff reports, researching the request, and
preparing for and presenting to the City Council. The intent of the two “fees” is to ensure that the tax
payers are not paying for requests benefiting an individual applicant. Easement vacation applications do
not waste taxpayer dollars and it is staff’s job to process applications, resulting in no negative impacts to
the public.
Public Interest Examples
The City Council questioned what other public interests (other than taxes) may exist for vacating the
right-of-way, and staff stated they did not know of any. The applicant’s attorney submitted the following
public interest examples.
Submitted examples Staffs response
The beach at Lake Orono has no supervision and
Eliminate possible lawsuits due to hazardous
the city’s insurance covers liability on all city
structures at the shoreline, and injuries and
1 property such as streets, sidewalks, downtown
drownings due to lack of proper city
splash pad, mountain bike obstacles, buildings, and
supervision.
parks. Although the concrete pad is likely in public
water, the Council has discussed removing it. The
city’s insurance premiums will not be impacted by
retaining the right-of-way.
This is the only public access on the east lobe of
Lake Orono. In summary, Sec. 74-154 states: For
local access, snowmobiles may travel on the paved
surface within the curb line from the operator's
place of residence to the travel route via the most
Eliminate snowmobiles entering and exiting direct route. Lake Orono may be accessed via local
2
Lake Orono. access as defined above. Keeping this access
provides a shorter access route for the public that
live on the south and east sides of the lake who
may want to access the lake. This may reduce the
amount of snowmobile traffic on city streets to
other access points, a benefit in keeping the access.
It was stated at the meeting the property no longer
has these issues. There is no evidence that this
Eliminate the shoreline being used in an
3 would change in any way. The police respond to
improper, lewd and unlawful manner.
these types of behavior on private and public
property.
Right-of-ways are intended for use by the public.
4 Eliminate parking on the city easement. The parcel can be posted "no parking" if that is the
Council’s desire.
Maintaining city ownership of the right-of-way will
Prevent increased traffic and parking on
5 not increase traffic, and Main Street is designed to
Main Street.
accommodate on-street parking.
Most of the city streets are narrower than the right-
Eliminate city maintenance and clean up on of-way and adjacent property owners are required
6
the easement. to maintain the portion between their parcel and
the curb line, including the sidewalks.
The approximate tax increase for the city would be
$150/year. The estimated property value of the
Increase the real estate taxes on the property
two adjacent properties would increase almost
due to the fact a city road easement is not
7 $26,000. The additional tax is not a public benefit
taxed, but a vacated street is taxed to the
that outweighs the benefits of maintaining the only
adjoining property owners.
access to Lake Orono along the east lobe of the
lake.
Finalize city and property owner's rights so
City staff and the City Council are here to process
that there will not continue the tremendous
land use applications. Review times associated with
8
time expended by the staff and the City Council
each request are covered by application fees and
for the hearings on this vacation matter (15 City
escrows, not impacting public tax dollars.
Council hearings since July 15, 1974).
State Statute and Vacations of Public Way
Minnesota statute 412.851 outlines the process for vacating streets and public ways. The section states
“No vacation shall be made unless it appears in the interest of the public to do so…” The section further
notes that when the public way terminates at a public water the commissioner of natural resources must
be notified of the request and evaluate the following:
The public benefits of the proposed vacation.
The present and potential use of the land for access to public waters.
How the vacation would impact conservation of natural resources
The city received comments from the DNR on December 14, 2015, with the following comments:
Access to the lake from the south or southeast does not appear to exist.
The site does not lend itself well for vehicular parking by users (as it functions now).
Consideration could be given to providing a narrow access to the lake, thereby retaining access to
the lake for recreational or aesthetic uses.
There is a recreational resource value in keeping the road or retaining access to lake in public
ownership to accommodate public access for canoe/kayak carry-in, winter access (for
snowmobiles or other means), shore fishing opportunities, or just allowing the public a chance to
view and enjoy the lake.
Based on the information provided and risking the loss of public access to Lake Orono on the
south side of lake, the DNR opposes the York Street Vacation being considered.
One council member stated they have a hard time ignoring how strongly the Minnesota Department of
Natural Resources (DNR) spoke against vacating the property.
Parks and Recreation Master Plan
The 2015 Parks and Recreation Master Plan conducted a survey and connections to the rivers/water were
identified as an important community interest for the future of the Elk River Parks and Recreation
system.
River/Water Access
There are relatively few public access points to the rivers, although the city is at the confluence of the Elk
and Mississippi Rivers. Access to the river includes visual connection, or views, as well as places where
residents can be near, or ‘touch’, the river. Creating or maintaining connections to the rivers is an
important task for the city.
License Agreement
During the meeting, Council questioned if there is a way to vacate the street but have an agreement in
place for access if necessary. In the correspondence dated January 6, 2016, from James Neilson to Peter
Beck, Mr. Neilson states, “the adjoining property owners would be willing to provide to the city an
easement to be used for city emergency purposes”.
An agreement of some form will be required regardless of the decision. If the public street is vacated, an
agreement could be drafted in favor of the city. If the petition is denied, an agreement in favor of the
private property owner could be entered into. If the Council cannot identify a public benefit to vacating
the street, the decision should be to not vacate it as the city has few rights after the street has been
vacated.
The least difficult or complicated solution is to keep the street and require the private property owner to
remove the fire pit and dock from the right-of-way.
Recommendation
City staff and the city attorney have not identified a public interest in vacating the right-of-way, which
provides the only public lake access on the east side of Lake Orono. The Parks and Recreation Master
Plan identifies connections to the rivers/water as an important community interest and the DNR opposes
the York Street vacation. For these reasons, staff recommends denial of the request.
Staff’s recommendation is to deny the request, maintain public ownership of the only lake access on the
east side of Lake Orono, and to solve a unique private property issue with the following:
1.Prepare a license agreement for the property west of the subject right-of-way (75-413-0240)
permitting the use of a fire pit and boat dock within the right-of-way and establishing rights for
future maintenance of the driveway.
2.Post signage stating no public parking or driving on the driveway is allowed.
3.Upon approval of the DNR, remove the concrete boat landing.
Financial Impact
None
Attachments
Location Map
Taxes/Property Value Spreadsheet
James Neilson correspondence dated January 6, 2016 and attachments
Resolution denying the request to vacate the York Street right-of-way
Resolution granting the request to vacate the York Street right-of-way
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JAMES M. NEILSON
Attorney at Law
118 East Main Street
Anoka, MN 55303
Tel: (763) 489-4000
Fax: (763) 489-4001
Email: jim@neilson-law.com
January 6, 2016
Real Property Law Specialist certified
by the Minnesota State Bar Association
VIA EMAIL AND U.S. MAIL
peter@peterbecklaw.com
Peter J. Beck
Attorney at Law
2600 U.S. Bancorp Center
800 Nicollet Mall
Minneapolis, MN 55402
Re: Ronald L. Dargis and Paula J. Dargis
James Burgoyne
City of Elk River
Vacation of York Avenue, formerly known as Oak Street, between Blocks 2 and 3, Map
of Orono (Sherburne County, Minnesota)
On January 5, 2016 I discussed tax values with Greg Olson, the Sherburne County Assessor. He
advised me that the tax value for Lots 5 and 6, Block 2, Orono, is based upon the platted lots of 66
feet x 330 feet = 21,780 square feet. The tax value does not include any portion of York Avenue,
formerly known as Oak Street, or Main Street. He further stated that if York Avenue is vacated
the tax value for the Dargis property would be increased due to the fact that the lot would be
increased by the west half of the vacated street, which would make the total lot of 99 feet x 330
feet = 32,670 square feet. Then the total value of the property would be increased, which would
also normally increase the real estate taxes on the property.
Minn. Stat. § 412.851 provides:
"No vacation shall be made unless it appears in the interest of the public to do so..."
The resolution of the Elk River Village Council, in vacating Vine Street on August 1, 1938,
provided: "after hearing the evidence presented to it in favor of said petition that the said street
had never been used or open to use by the public and that it would be to the best interests of the
public to vacate the same".
The resolution of the Elk River Village Council, in vacating Walnut Street on May 21, 1973,
provided: "that said portion of Walnut Street is not serving any public purpose, and that it would
be in the best interest of the public to vacate said portion of Walnut Street".
Peter J. Beck
January 6, 2015
Page 2
Some examples of the interest of the public to vacate York Avenue are as follows:
1. Eliminate possible lawsuits due to hazardous structures at the shoreline, and injuries
and drownings due to lack of proper city supervision.
2. Eliminate snowmobiles entering and exiting Lake Orono.
3. Eliminate the shoreline being used in an improper, lewd and unlawful manner.
4. Eliminate parking on the city easement.
5. Prevent increased traffic and parking on Main Street.
6. Eliminate city maintenance and clean up on the easement.
7. Increase the real estate taxes on the property due to the fact a city road easement is
not taxed, but a vacated street is taxed to the adjoining property owners.
8. Finalize city and property owner's rights so that there will not continue the
tremendous time expended by the staff and the City Council for the hearings on this
vacation matter (15 City Council hearings since July 15, 1974).
Enclosed find the following regarding the above:
Copy of aerial photo for the Ron Dargis Street Vacation in Case No.: EV 15-09.
The Dargis dock is attached to a tip of York Avenue that would be impossible to
use as a city street.
I believe that the state law provides that the government can cross private property for any
emergency purpose. If you believe that this is not correct, then in the event the City Council
vacates York Avenue, the adjoining property owners would be willing to provide to the City an
easement to be used for city emergency purposes.
Very truly yours,
James M. Neilson
JMN/lba
Enclosure
cc: Ronald L. Dargis and Paula J. Dargis via email
James Burgoyne
Chris Leeseberg via email and U.S. mail
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City Council
City of Elk River
Resolution 16-____
A Resolution of the City Council of the City of Elk River Denying a Petition to
Vacate a Public Street
Case No. EV 15-09
WHEREAS,
a petition has been made by the adjacent property owners to vacate the public street
described in Exhibit A attached hereto; and,
WHEREAS,
a public hearing on said petition was held on January 4, 2016, before the City
Council of the City of Elk River after published and posted notice had been given,
and all persons interested were given an opportunity to be heard at the public
hearing.
NOW, THEREFORE, BE IT RESOLVED
by the City Council of the City of Elk River,
:
Minnesota, as follows
1.The petition to vacate the public street described in Exhibit A is hereby denied based upon
the following Findings of Fact:
A.Minnesota Statutes, Section 412.851, allows for the vacation of a public street if it
appears in the interest of the public to do so.
B.The Minnesota Supreme Court has held that a public street should not be vacated unless
the public will benefit, in some manner, from the vacation.
C.The public street proposed to be vacated provides access from Main Street to the shore
of Lake Orono.
D.The Minnesota Supreme Court has held that where a public street provides access to a
lakeshore for any proper activity, before it can be vacated it must appear that the street is
useless for that purpose. The Supreme Court went on to hold that the public includes
persons other than those in the immediate vicinity, and that it is not sufficient to show
that the public street is not now used. It must be shown that the street may not be used
in the future for access to the recreational benefits offered by the lake.
E.Minnesota Statutes, Section 412.851, also requires that a petition to vacate a street
adjacent to any public water be served on the Commissioner of the Department of
Natural Resources who shall 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 will impact conservation of natural resources.
The Commissioner is required to advise the City Council accordingly upon the
Commissioner’s evaluation.
F.The petition to vacate a portion of York Street has been submitted to the Commissioner
of the Department of Natural Resources for evaluation and the Commissioner has
advised the City that:
(1)Access to Lake Orono from the south or southeast does not appear to exist.
(2)The site does not lend itself well for vehicular parking by users (as it functions now).
(3)Consideration could be given to providing a narrow access to the lake, thereby
retaining access to the lake for recreational or aesthetic uses.
(4)There is a recreational resource value in keeping the road or retaining access to the
lake in public ownership to accommodate public access for canoe/kayak carry-in,
winter access (for snowmobiles or other means), shore fishing opportunities, or just
allowing the public a chance to view and enjoy the lake.
(5)Based on the information provided and risking the loss of public access to Lake
Orono on the south side of the lake, the DNR opposes the York Street vacation
being considered.
G.The public street proposed to be vacated is the only public access to the east lobe of
Lake Orono and could be used for a number of potential activities, for example,
lake/river maintenance, emergency access, snowmobile access, or general public access.
H.The City’s Parks and Recreation Master Plan identifies connections to the rivers/water
as an important community interest.
I.Although the City granted prior requests in 1874 and 1973 to vacate public streets which
terminate at Lake Orono, more recently the City has denied such requests. A request to
vacate this portion of York Street was denied in 2006 and a request to vacate a portion
of Western Avenue and Park Lane which terminate at Lake Orono was denied in 2013.
J.There is no evidence that the portion of York Street proposed to be vacated has been
used in recent years in an improper, lewd or unlawful manner, not that it has been used
for public parking or snowmobile access to Lake Orono. Any improper or illegal use of
this portion of a public street can be controlled by appropriate regulation and
enforcement, similar to all public streets in the City.
K.There is no evidence that the portion of York Street proposed to be vacated has caused
any unusual maintenance or clean up obligations on the City. Any such maintenance
responsibilities are similar to all other public streets in the City.
L.There is no evidence that denial of the petition to vacate this portion of York Street will
increase traffic and parking on Main Street.
M.After consultation with the City’s liability insurance carrier, City staff has determined that
denial of the petition to vacate this portion of York Street will not have any impact on
the City’s liability insurance premiums, nor would it create any liability of the City to
lawsuits beyond that similar to all public streets in the City.
N.After consulting the Sherburne County Assessor, City staff has determined that vacating
this portion of York Street will have a minimal impact on the City’s real estate tax
collections, approximately $150 per year, which the City Council finds is not sufficient to
outweigh the public benefits of keeping the public street and the public access to Lake
Orono.
O.The City Council finds, based upon the entire record in this matter before the Council,
that the portion of York Street proposed to be vacated is not useless for access to Lake
Orono, that the public will not benefit from vacation of this portion of York Street and
that, therefore, by state law, this portion of York Street should not be vacated.
2
th
Passed and adopted this 19 day of January, 2016.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk
3
Exhibit A
That portion of York Street, formerly known as Oak Street, between Blocks 2 and 3. Map of Orono
(Sherburne County)
A-1
City Council
City of Elk River
Resolution 16-____
A Resolution of the City Council of the City of Elk River Granting a Petition to
Vacate a Public Street
Case No. EV 15-09
WHEREAS,
a petition has been made by the adjacent property owners to vacate the public street
described in Exhibit A attached hereto; and,
WHEREAS,
a public hearing on said petition was held on January 4, 2016, before the City
Council of the City of Elk River after published and posted notice had been given,
and all persons interested were given an opportunity to be heard at the public
hearing.
NOW, THEREFORE, BE IT RESOLVED
by the City Council of the City of Elk River,
:
Minnesota, as follows
1.The petition to vacate the public street described in Exhibit A is hereby granted based upon
the following Findings of Fact:
A.Minnesota Statutes, Section 412.851, allows for the vacation of a public street if it
appears in the interest of the public to do so.
B.The Council finds that it is in the interest of the public to vacate the portion of York
Street described in Exhibit A because vacation of this public street will:
(1)Eliminate possible lawsuits due to hazardous structures at the shoreline, and injuries
and drownings due to lack of proper city supervision.
(2)Eliminate snowmobiles entering and exiting Lake Orono.
(3)Eliminate the shoreline being used in an improper, lewd and unlawful manner.
(4)Eliminate parking on the city easement.
(5)Prevent increased traffic and parking on Main Street.
(6)Eliminate city maintenance and clean up on the easement.
(7)Increase the real estate taxes on the property due to the fact a city road easement is
not taxed, but a vacated street is taxed to the adjoining property owners.
(8)Finalize city and property owner’s rights so that there will not continue the
tremendous time expended by the staff and the City Council for the hearings on this
vacation matter.
2.Vacation of the public street described in Exhibit A shall be effective at the time of
recording of the document.
th
Passed and adopted this 19 day of January, 2016.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk
2
Exhibit A
That portion of York Street, formerly known as Oak Street, between Blocks 2 and 3. Map of Orono
(Sherburne County)
A-1
Tel. (763) 489-4000
Fax (763) 489-4001
Email: jim@neilson-law.com
January 18, 2016
Peter J. Beck
Attorney at Law
2600 U.S. Bancorp Center
800 Nicollet Mall
Minneapolis, MN 55402
andw�- 9"� .
JAMES M. NEILSON
Attorney at Law
118 East Main Street
Anoka, MN 55303
Real Property Law Specialist certified
by the Minnesota State Bar Association
VLA EMAIL ONLY
peter@peterbecklaw.com
Re: Ronald L. Dargis and Paula J. Dargis
James Burgoyne
City of Elk River
Vacation of York Avenue, formerly known as Oak Street, between Blocks 2 and 3, Map
of Orono (Sherburne County, Minnesota)
This letter is in response to the staff report provided by Chris Leeseberg, the Elk River Senior
Planner, pertaining to the public hearing for the meeting on January 19, 2016, regarding the request
to vacate a portion of York Avenue located north of Main Street NW.
Some of the factual information is incorrect:
1. In the Map of Orono south of Lake Orono there were originally five streets leading
to Lake Orono:
a. Vine Street between Blocks 1 and 2 north of Main Street was vacated by
the Elk River Village Council on August 1, 1938.
b. Oak Street, now York Avenue, between Blocks 2 and 3 north of Main
Street, the subject of this vacation hearing.
C. Walnut Street, now Xenia Avenue, between Blocks 3 and 4 north of Main
Street was vacated by the Elk River Village Council on May 21, 1973.
d. Pine Street, now Watson Avenue, between Blocks 4 and 5 north of Main
Street was vacated by the Sherburne County District Court on June 23,
1874.
Peter J. Beck
January 18, 2016
Page 2
e. Cedar Street, now Vernon Avenue, adjacent to Lake Orono has never been
vacated. The petition to vacate Vernon Avenue in 2005 was that portion
Louth of Main Street and not north of Main Street.
See a copy of the Map of Orono attached
Chris Leeseberg's staff report, in seven separate paragraphs, refers to the fact that York Avenue
provides the only public lake access on the east side of Lake Orono. This is not correct. Vernon
Avenue also abuts Lake Orono and has not been vacated.
Ownership and License Agreement.
The law in the State of Minnesota is clear that the adjacent owners own the fee title to the centerline
of an abutting street.
A property owner is presumed to own to the centerline of an abutting street. See In Re
Robbins, 34 Minn. 99, 24 N.W. 356 (1885).
The title of the owner of land extends to the center of a street or highway abutting thereon,
and includes all trees, sand, gravel and other appurtenances situated or being upon or within
the same, subject to the general public's right to take and use any thereof as may be
necessary in the improvement of the highway for public use. Town of Rost vs. O'Connor,
145 Minn. 81, 176 N.W. 166 (1920).
A municipality can choose its own time to occupy, open and use a street dedicated by plat,
and until it does so, possession by abutting landowners would not be regarded as hostile
for the purpose of acquiring title by adverse possession and the statute of limitation would
not commence to run. Village of Newport vs. Taylor, 225 Minn. 299, 30 N.W.2d 588
(1948).
When a street is dedicated by plat, a city may choose its own time to occupy, open, and use
the street; until the city does so, such property may be used by the abutting owners; such
use is not regarded as hostile and will not operate as abandonment of a public street by the
city. Village of Medford v. Wilson, 304 Minn, 250, 230 N.W.2d 428 (1975).
Fee owners of a street are not required to enter into a license agreement with the government in
order to use their property which is not being used for street purposes.
City Ordinances
I have never seen a city ordinance requiring that a driveway be at least 5 feet from a property line.
Peter J. Beek
January 18, 2016
Page 3
The City of Elk River issued a building permit for the home at 1946 Main Street, Elk River, MN
in 1974, permitting the garages to be on the east side of the house facing York Avenue. At that
time their driveway would have had to have been within 5 feet from a property line.
It is difficult for me to believe that the City of Elk River does not permit a common driveway on
the property line between two owners.
Please provide to me a copy of the city ordinance which requires all driveways to be located at
least 5 feet from a property line.
Finally, it must be remembered that the City of Elk River has approximately 2700 feet (snore than
half a mile) of public access on the north shore of Lake Orono, and the public has not been using
the 66 feet on York Avenue for the last 40 years.
Very truly yours,
games M. Neilson
JMNllba
Enclosure
cc: Ronald L. Dargis via email
Paula J. Dargis via email
James Burgoyne
Chris Leeseberg via email