Adopt Resolution #21-291 Designating Cartway Route and Ordering Public Hearing for Petitioned Cartway Access to Thorn Lake Property (PID #04-32-25-31-0001); Case of Thomas and Pattiann Kurak

Purpose:
The purpose of this case is to designate an official cartway route to provide access to the Subject Property, and to order a Public Hearing to receive input on the cartway petition request.
 
Background:

Under Minnesota statute, if a property owner has no legal access to a public road leading to their property, cartway statute states the municipality’s governing body must grant access from a public road. That access — which is called a cartway — must be at least 33 feet (i.e., two rods) wide.
 
On August 18, 2021 the City received an official petition from Thomas and Pattiann Kurak seeking cartway access to a landlocked, forty (40) acre parcel they own north of 175th Avenue, east of Chameleon Street, and south of 178th Lane (the "Subject Property").   

On September 14^th Staff presented the official petition for cartway access to the Subject Property to the City Council, outlined the petitioner’s requested cartway route plus two alternate routes developed by City Staff, and attempted to address any questions the City Council had at the time. Within 30 days of that meeting, the City Council is required to issue an order describing the designated location of said cartway and ordering a public hearing.
 

Notice of the Public Hearing will be published in the Anoka Union Herald as required in advance of the Public Hearing. The Petitioner will be required to serve notice to potentially impacted property owners, as well as the Department of Natural Resources (the Subject Property contains a public water), as outlined within this case.  

Observations:
Minnesota State Statutes 435.37 (Easement for Cartway) and 164.07 (Establishment, Alteration, or Vacation of Town Road) outline the process and procedures for processing a petition for a cartway. Should the City grant the cartway, it shall be not less than thirty-three (33) feet in width.
 
It is important to note that the petitioner, not the City, is responsible for providing the notice to affected landowners and said notice must be personally served by the petitioner. And since the Subject Property contains a public water, the petitioner shall also serve said notice, by certified mail, to the Minnesota Department of Natural Resources at least 60 days in advance of the public hearing.
 
The petitioner is also responsible for all damages, which includes compensation to the owner of the lands upon which the cartway is established, together with the cost of professional services such as delineating wetlands, surveying, appraisals, hearing costs, recording costs, administrative costs, etc., before the cartway can be 'opened'. For this reason, Staff recommends requiring the petitioner to post a cash surety with the City before holding the Public Hearing, as is required per the attached resolution.

Potential Cartway Routes
In general, there are challenges to accessing the Subject Property, regardless of which route is ultimately chosen. The entirety of the Subject Property appears to be wetland and there is wetland on all abutting lands as well. Furthermore, the entirety of the Subject Property is within the General Floodplain District, which also extends beyond the boundaries into abutting lands. Construction of any sort of cartway improvements, which would be the petitioner's responsibility, may be restricted and, if allowed, would likely be very expensive due to construction within wetlands and 2:1 wetland mitigation requirements.

The petitioner has requested a route from the proposed new public street in the plat known as Williams Woods (the "Plat") to access the northeast quadrant of the Subject Property. Since approval of the Williams Woods Preliminary Plat was not contingent upon inclusion of an access to the Subject Property, this cannot be made a condition of approval of that Final Plat. Thus, the petitioner's requested route, which would be through upland and wetland area, would appear to have greater negative impacts than two other alternative routes.

Staff investigated two alternate cartway routes through two nearby public parks to provide cartway access the Subject Property.
 
The first alternate route is through Caroline Acres Park, which is an undeveloped park that accesses 178th Lane near the northeast corner of the Subject Property. This route appears to result in the longest route and the greatest impact to wetlands. Also, there is only forty (40) feet of frontage along 178th Lane so if a thirty-three (33) foot wide cartway were to be established, future access to this park would be severely restricted.
 
The second alternate route is through Shawn Acres Park, which is an undeveloped park that accesses Chameleon Street near the southwest corner of the Subject Property. Of the three routes considered, this route would result in the least impact to private properties, and would have less impacts to wetlands than the Caroline Acres Park route. Designating this as the official cartway route therefore appears to be in the public’s best interest.

Staff has had several conversations with the petitioners during which it was confirmed that they fully understand Minnesota’s cartway statutes 435.37 and 164.07, including their financial obligations and other responsibilities associated with their petition. The petitioner initially informed Staff that they wanted access to the northeast corner of their property because this area has the greatest elevation differential between the ground and groundwater making it the most likely location for future improvements. But more recently the petitioner informed Staff that they do not have a strong preference for a cartway route and acknowledged that a cartway through Shawn Acres Park to the southwest corner of their property would work just fine to provide access to their landlocked parcel.

The petitioner is not able to attend the Council meeting.


Wetland Impact Considerations
If the property owner applied to add fill within these Wetland Conservation Act (WCA) jurisdiction wetlands, they would first need to go through the sequencing process. This process requires a purpose and need and if there is no buildable area for a home then a permit likely would not be granted. If purpose and need could be shown, and if WCA impacts were unavoidable, wetland impacts would need to be minimized and then replaced. Mitigation would be required at a 2:1 ratio so for every square foot impacted, 2 square feet would need to be purchased.
 
Cartway rules do not negate DNR rules which prohibit filling into public waters, such as for a road. Access improvements for a cartway would not likely be deemed to provide any public purpose and would therefore likely be considered ineligible for a permit. Further, this area is within a General Floodplain District which raises additional complications for structures like a boardwalk where there must be floodway and flood fringe determinations to further evaluate the implications.
 
Any wetland impact considerations would need to be further vetted with the regulating agencies.  


Alternatives:
Alternative 1: Motion to adopt Resolution No. 21-291 designating a Cartway Route and Ordering a Public Hearing for the Petitioned Cartway Access to Thorn Lake Property PID #04-32-25-31-0001, using the alternative route through Shawn Acres Park.
 
Alternative 2: Motion of other.    

Staff estimates $20,000 will be needed to secure a cartway per the petition request. Again, the petitioner is responsible for paying for all damages, which includes compensation to the owner of the lands upon which the cartway is established, together with the cost of professional services such as delineating wetlands, surveying, appraisals, hearing costs, recording costs, administrative costs, etc.
 

Staff recommends adopting Resolution #21-291 designating a Cartway Route and Ordering a Public Hearing for the Petitioned Cartway Access to Thorn Lake Property PID #04-32-25-31-0001, using the alternative route through Shawn Acres Park.  

Motion to adopt Resolution No. 21-291 designating a Cartway Route and Ordering a Public Hearing for the Petitioned Cartway Access to Thorn Lake Property PID #04-32-25-31-0001, using the alternative route through Shawn Acres Park.