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  Thursday January 29th, 2015    

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Judge dismisses Elba boundary work (02/13/2013)
By Sarah Squires

In 2007, the Winona County Board created the Boundary Commission with the hope that the group would be able to find a solution to a dispute over property lines in Elba Township that has divided neighbors for nearly 15 years. Despite years of work, the Boundary Commission's recommendation that would have saved one man's dream home was rejected by a District Court judge. Although the efforts failed, the costs incurred by the Boundary Commission are more than $42,000.

On Tuesday, Winona County Commissioners decided that the county will pay the bill rather than assessing the Boundary Commission cost to the 11 property owners in Lot 80 in Elba Township. Commissioners agreed it would be unfair to bill the cost back to the land owners given the fact that the property disputes were not solved by the commission and judge, though county board member Greg Olson expressed regret that all property tax payers in the county will now have to pay for the work.

"We [have] no resolution," said county board member Marcia Ward. "We got nothing. It's been a real hell for [property owners]."

Property line problems

Back before satellites and GPS, surveyors would hike out into the woods with a 66-foot chain and a compass, marking property boundaries the old-fashioned way. For some of Minnesota's flatlands, the old system provided boundaries that do not conflict much with the precise lot lines measured today with new technology. For the bluffs and valleys in Winona County, however, the old and new lines often do not align.

The issue in Lot 80 began with a skewed survey in 1975, when proper survey markers were not used to draw parcel boundaries. Since that incorrect survey was conducted, residents have built homes and cut driveways along the mistaken property lines. Gary Thelen, who passed away late last year, constructed a 5,000-square-foot fieldstone and pegged timber house. When his neighbor Jose Rico had another survey done in 1998, it showed the boundary between his lot and Thelen's actually cut right through Thelen's living room. Thelen bought property to the south of the Rico lot, hoping he could trade it to Rico and the property line could remain in the 1975 spot—away from his home—but that effort did not solve the intense dispute between the two neighbors.

The new survey also presented a host of other confused boundaries between parcels in Lot 80, although none were as contested as the line between the Thelen and Rico parcels, and none disturbed other homes or structures.

The dispute between Thelen and Rico continued for years, until 2007, when the Winona County Board installed the Boundary Commission in hopes of helping the landowners solve the problems. The group worked for four years on a recommendation, focusing on the Thelen and Rico boundary that would spare Thelen's home and Rico's driveway. But when that recommendation was presented to Judge Mary Leahy, she ruled the commission must use a parcel boundary from a survey done in 1998—the line that cut through Thelen's living room.

Members of the boundary commission expressed frustration with the decision. Winona County Attorney Karin Sonneman said she felt Leahy did not want to stray from a former ruling issued by Judge Lawrence Collins in 2004 that put the property line through Thelen's home. Jeff Broberg, a member of the Boundary Commission, said Collins did not have all of the relevant information when he made his ruling in 2004. He said the commission had been given county legal advice that it should examine all of the data available on the boundary issue, including information not considered in the Collins' ruling, because the Collins' ruling created a series of other boundary problems in Lot 80.

Broberg suggested that the Boundary Commission send the issue back to Leahy, citing statute language that compelled Judge Leahy to produce plats for the disputed properties and issue a final ruling for all the parcels. Broberg said it would take years to start the commission's work over and find a solution that would adhere to the boundary through Thelen's home, and instead suggested the commission not back down on its recommendation.

Last month, Leahy issued an order dismissing the Boundary Commission's charge to fix the property problems in Lot 80. On Tuesday, Winona County Board members expressed frustration that the matter had not been resolved, despite all of the time and money exhausted in the Boundary Commission's effort.

"How can [the judge] just dismiss it?" asked Ward. "Where do we hold the court accountable?"

Winona County Surveyor Pat Veraguth said that Minnesota statute states the judge should issue final plats for the disputed properties, "but I think [Judge Leahy] just threw the ball away," he said.

"I'm sorry, but [Leahy] didn't do [her] job," replied Ward. "[It is] my personal feeling—it was part of her job to do that, to facilitate [a resolution]."

"I don't think we were really heard," offered Veraguth. "The commission wasn't really heard."

On the question of whether the $42,000 cost of the Boundary Commission work should be assessed to property owners in Lot 80, county board member Jim Pomeroy said he was unsure if state law would allow for that arrangement. He said assessment law usually only allowed a property owner to be assessed for the real and actual benefit received. In this case, said Pomeroy, properties did not seem to have any added value because of the Boundary Commission's work. "I don't think assessing this would pass [legal] muster," he said.

"Then we're all paying for it," said Olson. "Do I get a benefit?"

"We had the best intentions," offered Ward. "Unfortunately, it failed. Other parties that were involved with it let us down."

The situation in Lot 80 is replicated from one end of the county to the other, said Winona County Recorder Bob Bambenek, adding that many had hoped the boundary commission's work in Elba Township would be an example for how similar property disputes could be solved.

"Figure it out yourself—is that what we are saying [to other property owners]?" asked Ward. Veraguth said it might not be the best idea for the county to be involved with private property disputes. If Winona County does attempt to solve a similar land dispute using a Boundary Commission, said Veraguth, it ought to have landowners sign an agreement indicating they would pay for the cost of the commission in the end.

St. Charles recycling

Winona County will be offering a rebate to the city of St. Charles.

The county entered into a contract for curbside recycling in late 2011, and the service is given to nearly every county resident. However, the city of St. Charles already had a recycling program, and residents there have been paying county fees for recycling services that they don't receive.

Winona County Planning and Environmental Services Director Jason Gilman told the county that a $28,388 annual rebate to the city was a "fair deal," which would include the refund of the $16 per parcel solid waste fee imposed on property owners, as well as a portion of a "hauler fee" also paid by residents.

Several county board members said they did not want the refund to go to the city government, but rather, somehow be routed more directly back into the pockets of residents. County staff members said they would look into the legality of how the rebate could be relayed. St. Charles city leaders are expected to consider the $28,388 offer soon. 


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