04-13-2020 Council Packet - Laserfiche WebLink

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April 7, 2020 City of Orono Mayor Walsh & Councilmembers 2750 Kelley Parkway Orono, MN 55323 SENT VIA E-MAIL Re: Scott and Melissa Musgjerd Request for Encroachment Agreement Dear Mayor Walsh and Councilmembers: We represent Scott and Melissa Musgjerd (the “Musgjerds”) who reside at 4156 Highwood Road, Orono, Minnesota. This letter is written in support of their request for an encroachment agreement to continue to use the right of way adjacent to their property for landscaping improvements. Discussion The attached letter from the Musgjerd explains in their own words the need for the landscaping improvements. Erosion from the right of way was damaging private property and creating the potential for pollution of Lake Minnetonka. They hired a licensed contractor with the assumption the contractor would obtain all permits for the project. The improvements now control and slow the runoff to the lake and mitigate the damage to property that occurred previously. As noted, access to the lake remains if the City decides to activate the easement for public use. It is important to note that until a City decides to activate right of way for public use, adjoining property owners continue to have rights of use in such right of way. Under Minnesota law, the courts have recognized “that any abutting landowner owns to the middle of the platted street or alley and that the soil and its appurtenances, within the limits of such street or alley, belong to the owner in fee, subject only to the right of the public to use or remove the same for the purpose of improvement.” Kochevar v. City of Gilbert, 273 Minn. 274, 276, 141 N.W.2d 24, 26 (1966); see also Kooreny v. Dampier–Baird Mortuary, Inc., 207 Minn. 367, 370, 291 N.W. 611, 612 (1940) (stating that the abutting “landowner's fee extends to the center of the street or highway, subject only to the public easement”). We have also explained that “when a street is dedicated by plat, a city may choose its own time to occupy, open, and use the street.” Vill. of Medford v. Wilson, 304 Minn. 250, 252, 230 N.W.2d 458, 459 (1975). Under this principle of law, both the City and the abutting property owners have rights in the right of way. This is the basis for the City’s authority to grant encroachment agreements for use