INFORMATION #2 04-01-1996April 1, 1996
To Elk River City Council,
RE: Dwight Kirkeide, the status of 173rd Ave. and refuse service.
Provided are the following regarding the above:
1. Copy of map from Abstract covering part of the NW
Quarter of the NW Quarter of Section 11, Township 32, Range 26.
2. Copy of Final Town Road Order recorded as Document No.
167593.
3. Copy of letter dated Dec. 22, 1981 from James M.
Neilson Attorney at Law to the City of Elk River requesting that
the City acknowledge ownership of this public cartway.
4. Copy of letter dated Feb. 16, 1982 from the City of Elk
River to James M. Neilson acknowledging the public cartway.
5. Copy of letter dated Aug. 19, 1991 from Dwight Kirkeide
to City of Elk River Recycling Coordinator Gary Schmitz.
6. Copy of letter dated Nov. 30, 1994 from City of Elk
River-Gary Schmitz to Dwight Kirkeide denying that the public
cartway is a "city street".
7. Copy of letter dated Dec. 19, 1994 from Dwight Kirkeide
to City of Elk River-Gary Schmitz outlining refuse and safety
concerns.
Minnesota Statutes Chapter 429.011, Subd. 7. Definitions
says "Street" means any street, alley, or other public way, or
any part thereof.
Black's Law Dictionary defines "Street" this way: "Any
street, avenue, boulevard, road, parkway, drive or other way (1)
which is an existing state, county or municipal roadway, or (2)
which is shown upon a plat heretofore approved pursuant to law,
or (3) which is approved by official action or (4) which is shown
on a plat duly filed and recorded in the office of the county
recording officer prior to the appointment of a planning board
and the grant to such board of the power to review plats; and
includes the land between the street lines, whether improved or
unimproved, and may comprise pavement, shoulders, gutters, curbs,
sidewalks, parking areas and other areas within the street
lines."
As I pointed out in the last two paragraphs of my Dec. 19,
1994 letter, the failure of the City to acknowledge this street
has created a hazardous situation for my family because of the
unnecessary delay and confusion that emergency dispatch, police,
fire and medical services will likely experience in locating our
home on a City Map. This is unacceptable.
Regarding the mandatory refuse and recycling ordinance:
Minnesota Statutes Chapter 443.015 states that "The council
of any statutory city or city of the fourth class which shall
provide by contract or otherwise for regular collection and
disposal of garbage or refuse from dwellings and places of
business in the statutory city or city of the fourth class may by
ordinance obligate the owners of all property served to pay the
proportionate cost of such service to their respective
properties, and in default of payment such city council may
annually levy an assessment equal to such unpaid cost as of
September first of each year, against each lot or parcel of land
so served for which the service charge is unpaid."
Keep in mind that I did not create any of the problems
associated with this street. The City has levied a special
assessment against my property. This violates Minnesota Statutes
for the following reasons: (1) The Council did not provide for
regular collection and disposal of garbage or refuse from my
dwelling. (2) I was not served and did not benefit. (3) The
City incurred no cost in respect to my property. (4) These
rates have been improperly billed and falsely certified to the
County Auditor.
Chapter 443.27 states: "The words "rubbish disposal" means
the removal, collection, and disposal of "rubbish" from public or
private property within any such city."
Chapter 443.29 states: "The rates for rubbish disposal shall
be a charge against the premises from which rubbish is
collected,...".
Black's Law Dictionary defines special assessment: "An
assessment in the nature of a tax levied upon property according
to the benefits conferred on the property. A tax, intended to
offset cost of local improvements...".
Dwight Kirkeide
11230 173rd. Ave. NW.
Elk River, MN. 55330
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8th.~Tkat ...... ~ ..............................
.'ho w., b~ thi~ ~ employed ~ make a
hu~ made ~,ch ~,~n~ t~nd ~ltd his r~t~'~ tht~
IT IS FIIEREFOJIE ORI)ERED, ~]laJ la~ ~ ~, a~ aareoF la, .
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F. DMUNI? P. BAIiCOCK
LANDOL .l.
.JAMES M NEll. SON
FELIX A. MANNELLA
JOIIN R. SPEAK.MAN
ROBERT F. MANNELLA
BABCOCK, LOCHER, NF, ILSON & blANNELLA
ATTORNF, Y% AT I.AW
118 EAST blAIN STREET
ANOKA, blINNESOTA 55303
WILl. lAM D. S('IlUT'I'ER
GARY T. LAFLEUR
BARBARA ,l. (;[SLASON
STEVEN C, TIIORS()N
TII()bI%$ I). MOTTAZ
December ~ 1981
City of Elk River
505 UPA Drive
Elk 'River, Minnesota
55330
tEL .(61P
Attention: Robert Middaugh
RE: Dwight L. Kirkeide
Enclosed find the following regarding the above:
Copy of Certificate of Survey of part of Government Lot 2,
Section 10, Township 32, Range 26.
Copy of map from Abstract covering part of the Northwest
Quarter of the Northwest Quarter of Section 11, Township 32,
Range 26.
3. Copy of Final Town Road Order recorded as Document No. 167593.
The Town Road Order covers the North 33 feet of the Northwest Quarter
of the Northwest Quarter of Section 11, Township 32, Range 26,
Sherburne County, Minnesota, lying West of U. S. Highway No. 10.
Would you please acknowledge that the City of Elk River is the owner
of a public cartway over the aforementioned North 33 feet.
Very truly yours,
,
,James lq. Neilson
Enclosures
cc: Dwight Kirkeide
Gloria Helland
JMN:dmb
February 16, 198'2
James M. Neilson
Babcock, Locher, Neilson
Attorneys at l~aw
118 East Main Street
Anoka, Minnesota 55303
Dear Mr. Neilson:
I have received from our ~tt~,~'~c.y:; ,'~ ~'c':;],~,~se to your question
regarding a cartway, locat~,d in Sccti. or~ 1i~, Township 32, Range
26 within the City of Elk l<ivvr.
With the facts that have but~n t,vc..sc~tc~d co the City we believe
that the cartw~y is still legally J~ ~'ffect and as such, this
cartway can be used for access t~, [h~. t~iece of property in
question. I{owc. ver, it is our ~I~injc~ that we, the City, will
not have to expend City funds Lo m.'~Jr~tain such a cartway or
build such a cartway unless t:}~c City Council, by resolution,
determines chat such an cxp~.~diture i:; ~ .thc. public interest.
If you have any quc. stions l'c}',.IF~.lJ, ll;', l l~i.~ rcsl~,;n.~se, i)lease feel
free to COIltaCt mc, .
Sincerely,
/
/'/" ~.
Rick. Breezec.
Building and
RB:dkk
August 19, 1991
Re: DELINQUENT NOTICE
Dear Gary Schmitz,
The reasons that the City of Elk River has not received
payment for curbside refuse service are:
(1) No curbside refuse service has been provided. I believe
that the refuse hauler has never attempted curbside pick-up of
the refuse container that was delivered to the public cartway at
the edge of my property.
(2) No curbside recycling service has been provided. A curbside
recycling container has not been delivered to the property where
my household is located. I believe that the refuse hauler has
never attempted pick-up of a curbside recycling container at the
curbside location that is nearest my household property.
I believe that my wife, Jane, spoke to you about several of
our concerns when the City of Elk River Recycling Program began.
We have been recycling aluminum cans and newspapers in our
household for over fifteen years because it made sense to us and
we were able to locate drop-off stations for recyclables. We
intend to continue this practice.
Sincerely,
Dwight Kirkeide
11230 173rd Ave. N.W.
Elk River, Mn. 55330
441-3350 Or 434-7700
City of
River
November 30, 1994
Dwight Kirkeide
11230 173rd Avenue NW
Elk River, MN 55330
Dear Mr. Kirkeide:
This letter is a follow-up to the phone conversation we had concerning your
refuse and recycling pickup and delinquent refuse bill balance for your
residence located at 11230 173rd Avenue, Elk River, Minnesota.
Your complaint stresses that no curb-side refuse and recycling service has
been provided at the front property line of your residence. Therefore, you
will not pay for the service, as you claim that it was not provided. You also
mentioned that 173rd Avenue extends to your property line and is a city
street, therefore, refuse and recycling service should be provided at the edge
of your property.
The City of Elk River does not agree that the road easement to the edge of
your property is a city street. There is an easement for road purposes from
Highway 10 to your property, however, it is not classified as a city street nor
built or maintained to the city's minimum specifications. The access
basically acts as a private driveway to your property and cannot
accommodate large refuse and recycling vehicles, due to the narrow width of
the roadway. Refuse service is provided at the closest publicly-maintained
street which is Highway 10.
As you are aware, the City of Elk River has passed a mandatory refuse and
recycling ordinance requiring everyone in the City to use the refuse service
provided by the City. Due to the confusion of the situation and because you
never used the service provided, the City of Elk River will remove the past
due charge as of December 31, 1994. However, starting January 1, 1995, you
will be billed and required to pay for the refuse and recycling service in
accordance with the City ordinance. The service will be provided along
Highway 10 and you will be billed whether you use this service or not.
P.O. Box 490 · 13065 Orono Parkway · Elk River, MN 55330 · (612) 441-7420 · Fax: (612) 441-7425
12-12-94
Dear Mr. Schmitz,
In response to your letter dated November 12, 1994 and the
City'of Elk River's claim that the road leading to my property
is not a city street, I would like to clarify my position and
concerns.
I do not disagree that this road does not meet the current
specifications of a city street, nonetheless, I do not own this
property and it is not my private driveway. This is a road that
the Town Board of the Town of Elk River did order to be
established as a public highway {see Final Town Road Order,
Sherburne Co. Recorder, document # 167593.).
If the City has determined that it is necessary for the
benefit of the public health, safety or welfare that the City
alone provide refuse and recycling service, then the City is free
to seek to build,.maintain and pay for the city street that is
necessary to provide this benefit to the public.
In 1982, I spoke with Mr. Forest Moen, the Mn/DOT Roadway
Regulation Supervisor. He felt that the northern edge of this
public road, which is the section line, would form the centerline
of the westerly extension of 173rd. Avenue. He determined that
if it became necessary to expand this road that the access to
Highway 10 would be relocated and redesigned. Also that the
inplace median crossover may be removed and properly relocated on
the section line.
The distance from my door to the edge of my property is
approximately 350 ft. and from there to Highway 10 is 355 ft.,
bringing the total to over 700 ft.. That is well over a quarter
of a mile walk for just one trip to drag the refuse container to
Highway 10. On a recycling day I would need to make two trips in
the morning and two trips in the evening.
I have not asked the City to build or maintain this road, I
have done so voluntarily, to my own satisfaction, so that it
would not burden the City or my neighbors. I feel that it is
unreasonable for the City to require one citizen to maintain,
i.e. snow removal, such a long section of public road under the
time schedule necessary to meet the 7:00a.m. curbside deadline.
This would create an undue hardship for me as well safety hazard
while clearing snow in the early morning darkness along a very
busy highway. It is not uncommon to a vehicle pass by who has
exited Highway 101 onto the shoulder of Highway 10 and is content
to remain there while accelerating and looking for an opening to
blend into traffic. The Highway 10 access is shared with one
other residence and a three unit apartment. It is difficult
enough to find areas for the cleared snow now, without providing
for refuse and recycling containers.
Leaving refuse and recycling containers in such a busy
location all day would create a nuisance and a ~afety hazard when
they are inevitably struck by traffic, snowmobiles or the
snowplow. My dented mailbox will testify to that.
This Highway 10 location is completely out of sight from my
home, thus I would be helpless to prevent nuisance spills caused
by vandals, cats, dogs or raccoons.
~Again, I do recycle and my refuse is being properly disposed
of in the dumpster at my business.
In your letter you stated "you will be billed whether you
use this service or not." This implies that only financial
participation is actually mandatory. I cause no additional
expense to be incurred by the hauler for labor, vehicle costs or
tipping fees when I cannot participate. Without questioning the
City's revenue raising options, I find it troubling that the City
would continue to mandate that a private business be paid for
nothing.
I appeal to your common sense to exempt me from this
mandatory hardship, safety hazard and nuisance.
This is an opportune time to address this problem also:
My main reason in asking the City to recognize this public road
is to get it on the map and to get a street sign. It is the duty
of the City to maintain accurate maps and to furnish this
information to the 911 dispatch officials so that all citizens
may have the chance to receive equal protection by police, fire
and emergency medical personnel. Three times I have called for
non-emergency police assistance and every time the officers who
were dispatched had difficulty finding my home. The first time,
the officer never arrived. I called back 45 minutes later to
tell them that I no longer needed help. The second time, the
officer called us back several times to get directions before he
could find us. The last time was this Spring, when my wife
walked out to Highway 10 and stood waving her arms over her head
to get the attention of the officer who was searching for our
address.
We obviously do not live on Highway 10. I am convinced that
the key to ending this hazardous situation is to recognize this
"public highway" in some form and to include it on the map, along
with a suitable sign.
I would appreciate it if you could direct this last problem
to the appropriate city staff. Thanks.
Sincerely,
Dwight Kirkeide
11230 173rd. Ave. N.W.
Elk River, Mn. 55330
#
441-3350 or 434-7700w