ITEM 4.1_attachment 2GREGORY WERSAL':'
Attorney at Law
12/6/2016
To; Ross Demant
Parks and Recreation
8899 Nashua Avenue NE
Otsego, MN 55330
Ross Demant
Parks and Recreation
13400 90th St NE
Otsego, MN 55330
RE: Norm Landing
Dear Mr. Demant
P.O. Box 461
ELK RIVER, MN 55330
612-701-9623
gregwersal0bh otmail. coin
I understand the city is planning to do extensive improvements in creating a park on
Outlot A, Norin Landing. My lays office represents some of the owners of the lots In
Norin landing. l am attaching a copy of the Plat of Norin Landing,
fn the lower right corner of page 2 of the Plat it states: "Outlot A, Oudot B, Outlot D,
Oudot E, Outlot la, and Lot 5 Bloch 2 are entirely covered by drainage and utility
casements,"
There is only one reason lawyers create drainage and utility easements ACROSS
THE ENTfRETLY OF A LOT that is to prevent any improvements from being made
on the property and so the property is maintained in its natural condition.
The City of Otsego approved this plat on February 14, 2005. if the City did not want
those casements across Outlot A, it should not have approved the plat with these
easements. Further, if the City always intended this land to be a park, it could have
required the plat to show this land as dedicated for Haat purpose. After platting, the
land was owned by Paumen Properties LLC until June 28, 2007, when it was
transferred to the City by a Quit Claire Deed. Paumen Properties LLC could only
transfer to the City what it owned, which was Outlot A that was burdened by the
utility and drainage easements as set out in the plat. The City now owns Outlot A;
but that ownership is subject to the easements meant to benefit the other property
owners in Morin banding.
Basic easement law is that the land affected or "burdened" by an easement is called
a "servient estate," while the land or person benefited by the easement is known as
the "dominant estate." Outlot A is "burdened" by these easements. The person or
property that were benefitted were the other lots contained in Norin Landing as set:
out in the plat, I have informed my clients that as owners of land in Morin Landing,
they would have the legal right to enforce the easements.
The current plans by the City to create a park would violate the easements. The
plans include impervious surfaces such as asphalt parking lots, roofs and decks that
would violate the easements. In addition, the plans include berms, holding ponds
and other items which would dramatically affect the drainage of the land and violate
the easements.
I do not want to be involved in needless litigation. There is not even a legal issue
here. A judge would need to male two decisions. first, is Outlot A covered by utility
and drainage easements? The Plat, which is recorded for all the public to see and
rely on, says "YES." Second, will the planned improvements violate the easements?
Again the answer is clearly "YES."
Please make the other members of the Parks and Recreation Commission aware of
this letter. I know that this issue was brought up at the recent rneeting on
Novermbei• 7.5, 207.6. The issue is not going to go away. ifthe Commission has not
consulted an attorney, I suggest that they do so. It makes little sense that: lots and
lots ofmoney will be wasted on needless litigation, instead -of providing the
community with parks. Also, I believe the City was hoping to fund these
improvements in part with grants, and I do not know if the City can repurpose this
money while there is litigation.
Yours truly,
Gregory WersaI
CC: Norin Landing HOA
Sally O'Sullivan Bair
To.-
Ross Demant, Parks and Recreation
From:
Andrew MacArthur, Otsego City Attorney
cc.
City of Otsego
Date:
December 13, 2016
P.O.-
Norin Landing Park
have received a copy of correspondence to yourself from Attorney Gregory Wersal who
indicates that he represents some property owners within Norin Landing who apparently
oppose the City's park plans within the Plat of Norin Landing.
In his letter Mr. Wersal indicates that the City cannot put any improvements on the outlets
within the Plat since they are covered by utility and drainage easements. It is his theory that
the public dedication on the Plat benefits only the lots within Norin landing and thus any
change or improvements to the outlets would violate the easements and could not be
undertaken by the City.
In this case, the outlets have been turned over to the City which thus has full ownership of the
parcels. The easement allows use of the property by the City or utility companies to install, at
its discretion, drainage and utility improvements. You will note that there are utility and
drainage easements on the perimeter of every lot within the Plat,
Drainage and utility easements are not placed on outiots to prohibit any improvement of the
property, they are placed on the property in order to allow the responsible public entity (the
City) to place needed utility and drainage improvements on the property if they are needed. In
this case, the surrounding properties are higher than the outiots so any drainage problems
would in most cases come from the adjoining lots rather than from the outiots. The proposed
park provides additional holding ponds which help to mitigate any drainage.
I would respectfully disagree with Mr. Wersal's interpretation of the applicable law.
Dedication of an easement on a plat is a dedication to the public In general, not just those
within the Plat. Easements that are dedicated to the public fall within the authority of the local
elected unit of government. The City of Otsego is that unit, and is also the local drainage
authority. The City determines what can be placed upon on an outlot, icor instance, holding
ponds and drainage pipes are regularly constructed on outiots. In this particular instance the
proposed improvements on the outlets include an additional holding pond to facilitate drainage
on the property, a parking lot which one would expect at a boat landing and which will probably
serve to stop erosion of the current dirt landing, trails and a very small gazebo.
Public easements are under the control of the City. The City has the authority to vacate or
partially vacate the easements. Further, the City has authority to construct improvements upon
the outlots so long as they do not adversely affect drainage on surrounding properties.
Mr. Wersal's interpretation of the applicable law is based upon the relationship of burdened
and benefited parcels in the context ofrip. vate easements. This interpretation is not applicable
to a public easement which is held for the benefit of the public in general and which can be
altered by the responsible local unit of government.
In short, the City has full authority to make the proposed improvements on the property which it
owns.
If you have any additional questions, please feel free to contact me.
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