WRIGHT COUNTY BOARD MINUTES
OCTOBER 17, 2017
The Wright County Board met in regular session at 9:00 A.M. with Husom, Vetsch, Daleiden, Potter and Borrell present.
10-10-17 COUNTY BOARD MINUTES
Husom moved to approve the Minutes, seconded by Daleiden. The motion carried 5-0.
Vetsch moved to approve the Agenda. Daleiden seconded the motion and it carried 5-0.
Potter moved to approve the Consent Agenda, seconded by Husom. The motion carried 5-0:
1. Schedule Negotiation Committee On 10-23-17, 9:30-1:00 P.M., Insurance Reopeners With Unions
1. Acknowledge Warrants Issued Between 10-04-17 And 10-10-17
2. Approve Renewal Of 2018 Tobacco Licenses For:
A. City of Albertville: Don’s Auto Service & Repair, Inc.
B. City of Cokato: Jack’s of Cokato, Inc.; Lake Region Coop Oil Association
C. City of Maple Lake: Lake Region Coop Oil Association
D. City of St. Michael: W&S, Inc. DBA Corner Bar
E. Township of French Lake: Lantto’s Store
C. HEALTH & HUMAN SERVICES
1. Refer To Personnel Committee On Call Memorandum Of Agreement
D. INFORMATION TECHNOLOGY
1. Refer to the 10-25-17 Technology Committee:
A. Office 365 Status
B. OpenGov Module and Integration
C. Auditor/Treasurer Check Processing System
D. Technology Committee Frequency
E. Project Portfolio
TIMED AGENDA ITEMS
MARC MATTICE, PARKS AND RECREATION
Accept A 16 1/2 Acre Property Donation To Be Included Into The Park System, Authorize The Director of Parks And Recreation To Work With The County Surveyor And County Attorney’s Office To Prepare Documents Necessary For Transfer, & Approve Any Transfer Funds To Be Paid From Park Dedication Accounts
Mattice stated the land donation was reviewed by the Parks Commission. The suggestion is to accept and fund any associated transfer costs from Park Dedication Funds. The parcel is located next to Albert Yager Park in Victor Township. Future use could entail veteran hunts and the extension of the walking trail from Albert Yager Park. There are no ditches located on this property. The 2017 tax for the parcel was $682.00. Potter moved to accept the 16.5 acre parcel donation into the Parks System with funding from Park Dedication Accounts. The motion was seconded by Vetsch and carried 5-0.
BOB HIIVALA, AUDITOR/TREASURER
Approve September Revenue/Expenditure Budget Report
Revenues and expenditures are on track. Overtime is exceeding budget and may be associated with Corrections and Highway. Daleiden referenced Page 6, Credit Card Surcharges, which is at 98% of budget. Hiivala explained that credit card surcharges are based on revenues received but will investigate this further. Daleiden moved to approve the September Revenue/Expenditure Budget Report, seconded by Husom. The motion carried 5-0.
ITEMS FOR CONSIDERATION
10-11-17 PERSONNEL/EMPLOYEE RELATIONS MINUTES
At today’s County Board Meeting, Daleiden moved to approve the minutes. The motion was seconded by Husom and carried 5-0. The minutes follow:
I. Facilities Staffing
Facilities Director Alan Wilczek provided an update on his plans to restructure the custodial team. He is looking at outside janitorial services for early 2018. The existing custodial staff would move to day hours. Wilczek said this will improve the ability of maintenance staff to more quickly respond to the needs of County facilities. Currently, most custodial staff work in the evenings, which makes it difficult to address issues at County facilities in a timely manner. Wilczek said he believes an outside cleaning service will be better able to dedicate their time to cleaning tasks.
Wilczek said two Maintenance staff will be retiring soon: the Facilities Manager, and a Custodian. In light of the retirement of one Custodian, Wilczek would like to restructure that position to one of a higher technical nature, and title it “Facilities Operations Engineer.” This would be a person educated and skilled in HVAC maintenance and diagnostics. A job description has been drafted. This position would report directly to the Facilities Manager. The primary focus of the Facilities Operations Engineer would be the mechanical functions of County buildings. While they would work somewhat independently of other Maintenance staff, they would still be part of the team, and would help with general maintenance tasks like snow removal or other jobs as needed. He hopes to support them with a vehicle (as discussed previously during 2018 Budget meetings) since they will travel between County facilities to do maintenance. This position would be proficient at preventive maintenance, compressor change outs, motors, and tasks that staff should be able to do in-house. The goal is to reduce the County’s need to call outside vendors. Wilczek said this position would not totally replace vendors, but would be able to perform more advanced tasks and responsibilities than is possible with the current Maintenance staff.
Wilczek said a Facilities Operations Engineer would also be able to respond to emergency repairs more quickly. The response time for vendors is usually next day. Same-day responses for emergencies cost more. He said Carver County has a similar position to the proposed Facilities Operations Engineer. They are able to do first-level diagnoses and many prevention and maintenance functions in-house. Wilczek also said Green View will complete their cleaning contract for the Highway and Public Works buildings through the end of this year. He is working on a Request for Proposal for 2018.
Human Resources Director Schawn Johnson said the County’s human resources consultant firm recommended Grade 11 for the Facilities Operations Engineer position, with an hourly rate starting at $21.96 per hour, to a maximum of $30.74. This is the same grade as the Facilities Supervisor position. Wilczek said he is hoping to hire someone shortly after the custodian retires at the end of November.
Wilczek said there are three positions in the budget that are unfilled. Two were eliminated from next year’s budget to pay for contract janitorial services. That leaves one position that might be needed at the new Courts facility. Commissioner Mark Daleiden suggested posting the Facilities Operations Engineer position immediately since there is room in the budget.
Recommendation: Authorize advertising for new Facilities Operations Engineer.
(End of 10-11-17 Personnel/Employee Relations Committee Minutes)
ADVISORY COMMITTEE / ADVISORY BOARD UPDATES
1. Owners Committee. Potter and Vetsch attended. The meeting included a virtual tour of the proposed Courts Facility. A Committee Of The Whole Meeting is scheduled for today to update the entire Board.
2. AMC Board Meeting, St. Paul. Potter attended the meeting on 10-13-17. Topics included opioid legislation, the 2018 AMC Legislative Conference and District Meetings, and updates to the bylaws and affiliated policies. The 2018 AMC Legislative Conference will be held in Bloomington because of the lack of accommodations in St. Cloud. A business report was provided on how to better work with communities. Legislative Day at the Capital will be on 2-28-17 and 3-01-17. Parking at the AMC headquarters was discussed. The surrounding properties will not be pursued for this purpose because of the St. Paul Capital Rehabilitation Committee’s desire to save the buildings. There are 14 spaces across the street that may be purchased or leased.
TIMED AGENDA ITEMS
Public Hearing For Reestablishment Of Records For County Ditch 18, County Ditch 36 and County Ditch 38
Opening of Hearing
At 9:30 A.M., the Public Hearing was held for reestablishment and correction of drainage system records for County Ditches 18, 36 and 38. Borrell said the purpose was to review the engineer’s investigation and report of findings, and to receive public comment. He outlined the agenda for the hearing and the criteria for comment. He indicated the Hearing is not to discuss possible future actions such as repair. Separate proceedings would be held for those issues.
Purpose of the Hearing and Procedural Background John Kolb, Rinke Noonan
John Kolb, Rinke Noonan Drainage Attorney representing Wright County, provided an overview of the process for reestablishment and correction of drainage systems records. The information was provided for Ditches 18, 36 and 38. He said the records are lacking written documentation describing elevations and grades. For each of the ditches, the engineer has identified alignment, cross-section, profile, hydraulic structure locations, materials, dimensions, elevations, and right-of-way of the drainage system in its as constructed and subsequently improved state. The intent of the proceeding is to reconcile historical record of the drainage systems. Future work will utilize the as-constructed and subsequently improved condition as established in these proceedings as a baseline for determining repair or improvement of the systems.
Kolb stated the drainage authority may make one or more of the following decisions:
1. Adopt an order affecting reestablishment and correction of the drainage system records as described in the engineer’s Historical Review Memoranda and Addendum.
2. Direct the engineer to further review the area or portions of the drainage systems and determine if adjustments should be made to the proposed drainage system records.
3. Adopt an order rejecting the engineer’s report and directing a new report be conducted.
4. Direct the engineer to make adjustments and submit a revised report.
Joe Lewis, Houston Engineering, provided information applicable to all three ditch systems. Wright County serves as drainage authority and enforces State Drainage Law (MN Statutes Chapter 103E). The drainage system is owned by landowners who are assessed and those lands have a right to drain water to the ditch (within reason). The assessed landowners can request action by the drainage authority. Per M.S. 103E.101 subd. 3, the auditor or secretary is required to keep an accurate index of these proceedings and related documents. Per M.S.103E.101 Subd. 4a, if after investigation of drainage system records, the drainage authority finds records are lost, destroyed or otherwise incomplete, it may by order, reestablish records defining the alignment; cross section; profile; hydraulic structure locations, materials, dimensions, and elevations; or right-of-way of the drainage system as originally constructed or subsequently improved. The major objective of the record reestablishment is to legally define the public drainage system and establish as-constructed and subsequently improved condition (ACSIC). The reestablishment will define where the drainage authority can work and will define the maximum level of repair (as-built) and drainage quality. The record reestablishment process investigates the historical development of the system and includes a field survey. The as-constructed and subsequently improved condition is established and the right-of-way of the system is described.
COUNTY DITCH 18
Kolb said County Ditch 18 is located in Section 36, French Lake Township (T120N, R28W) with flow from Skifstrom (Mud) Lake to an open channel. Total drainage area to the public drainage system of approximately 850 acres in Sections 35 and 36 of French Lake Township and Sections 1 and 2 of Cokato Township (T119N, R28W). The drainage area is predominantly developed for agricultural land use and the drainage area includes Mud Lake County Park. The Board initiated the records correction process by resolution adopting findings and an order dated 2-14-17. The resolution directed the engineer to investigate and report findings defining the alignment; cross-section; profile; hydraulic structure locations; materials; dimensions; elevations; and right-of-way of the drainage system.
Kolb provided information on why ditches are reestablished. The County Board is taking a more proactive role on repairs to drainage systems in the County. Drainage system records are used to establish the baseline of the ditch. With several of the ditches, records are missing. This may have occurred due to changes in responsibility of who managed the records at that time. Legislature has provided a process for records to be reestablished. Borrell asked what happens if old records are located after the reestablishment process has been completed. Kolb said the process does not have to be redone but corrections can be made through abbreviated procedures.
Presentation of Engineer’s Report Joe Lewis, Houston Engineering
A PowerPoint presentation was made on the County Ditch 18 Record Reestablishment. Ditch 18 has 4,400 feet of open channel and begins at Mud Lake and eventually enters the North Fork of the Crow River. The Ditch was petitioned for and established in 1912 to include the filing of an engineer’s report. A redetermination occurred in 2014. Lewis said there are no detectable changes from what was seen in the field to what was originally proposed. It is part of the viewers’ process to determine what lands derive benefit from the ditch. There is land on the east side of the watershed area that is not currently benefiting but is in the watershed.
Included in the presentation was the engineering plan and profile. This provides information on the alignment and grade of the as-constructed or subsequently improved condition that is being recommended to the Board. Also included is the existing channel profile. In some cases, there is the accumulation of sediment resulting in the need for potential maintenance. To establish the grade, they prefer to have the as-built of the original system after construction. It is uncommon to have that on systems over 100 years old. In this case, they did not have information on the profile or grade of the system. Therefore, a soil boring method was used to analyze sediment and the change in material type. Accumulated sediment above the constructed depth is often more organic and darker than material below that is native soil. There are other characteristics involved in the process as well. Where the material changes, that indicates the constructed bottom of the ditch. Five borings were placed, spaced approximately 1000’ apart, and were considered when drawing the as-constructed or subsequently improved condition profile and grade.
The right-of-way of the system is a provision in drainage law in the reestablishment process. When the system was constructed, damages were awarded to landowners for both the area physically occupied by the ditch and the area required to construct and maintain the drainage system. Through the reestablishment process, they are documenting there is a right to access the property through the drainage authorities duties. The total width needed for inspection and maintenance activities and the parcels that intersect that area are included in the technical report. For Ditch 18, the total width identified is 75’ (37.5’ on either side of the ditch).
Borrell asked about the 16.5’ required buffer width on drainage systems. Chris Otterness, PE, Houston Engineering, said it is often confused that the 16.5’ is the right-of-way in the ditch. That is a provision in law for required buffers for redeterminations, improvements, etc. It does not set the established width. The width of the right-of-way that the ditch authority has to work within is from what was established originally and paid damages to landowners for. Daleiden asked whether that was done through soil borings. Lewis stated that it was not. It was done based on their assessment of the area necessary for maintenance. Right-of-way also applies to closed ditch systems.
Lewis said the recommendation for County Ditch 18 is to adopt the as-constructed and subsequently improved condition as proposed within the report, and to continue with routine inspection and maintenance activities.
Public Comment and Questions
The public comment period was opened at 10:05 A.M. No public comment was received at the Public Hearing.
Kolb referenced written comment received dated 10-13-17 from Andrew Grean, Wetland Specialist-SWCD, which was read into the record. It relates to wetlands which may be subject to mitigation requirements under the MN WCA (Wetland Conservation Act) and possible permitting through the MN DNR (Department of Natural Resources). The letter encourages meeting with SWCD prior to conducting any work on these systems. This would apply to all three ditches being discussed today. Kolb said this process does not eliminate the requirement to meet the WACA public law or other regulatory requirements. The SWCD comments may be included in appropriate findings depending on what action the Board takes today.
Daleiden requested an explanation of the different types of wetlands. Kolb stated that Types 1 and 2 are wet meadow and pasture ground that do not have a strong hydrologic regime. The ground does have saturation within 12” of the ground surface for at least 14 consecutive days of the growing season but it likely does not pond for extended periods or have standing water. Types 3, 4, and 5 typically have standing water and are more characterized as cattail sloughs. Types 3, 4, and 5 wetlands public ditches reestablished for more than 25 years for lack of a repair are subject to mitigation requirements. Types 1, 2, 6, and 7 wetlands are exempt from the mitigation requirement if they are impacted by a repair of a drainage system. Kolb felt that was the basis for the SWCD’s comments. In addition, the DNR has an interest in public waters and requires a level of coordination with that agency.
The public comment portion of the Public Hearing for County Ditch 18 was closed at 10:09 A.M.
Board Deliberation and Discussion
Daleiden moved to direct staff to prepare findings and an order consistent with the proceedings, including responses to all comments received through the public comment process; that the draft findings and order be written to affect the reestablishment and correction of the public drainage system records consistent with the engineer’s findings and recommendation; direct recording of the order to reflect the reestablishment and correction of the public drainage system record; and that we recess this hearing to the Board’s regular meeting on 11-07-17, or by adjournment to an appropriate time on the Board’s agenda, at which meeting we will consider findings and an order for the proposed reestablishment and correction of the public drainage system records. The motion was seconded by Husom and carried 5-0.
Kolb clarified that the public hearing on County Ditch 18 is recessed until the 11-07-17 Board Meeting at 9:00 A.M. This item will be given a set time on that Agenda at which time the Board will consider a draft of findings consistent with the motion.
(End of County Ditch 18 Public Hearing portion)
COUNTY DITCH 36
Kolb said the drainage system is located in Section 7, 17, 18 and 20 of Silver Creek Township and generally flows northwest from a wetland north of 140th Street NW, and eventually through Rice Lake (PW 86-164P). The total drainage area to the public drainage system is approximately 2,018 acres and is located in Sections 7, 8, 16, 17, 18, 19, 20 and 21 of Silver Creek Township.
Kolb stated that on 6-20-17 the Board initiated the records correction process by resolution adopting findings and an order. The resolution directed the engineer to investigate and report findings defining the alignment; cross section; profile; hydraulic structure locations; materials; dimensions; elevations; and right-of-way of the drainage system.
Presentation of Engineer’s Report Joe Lewis, Houston Engineering
A PowerPoint presentation was made on the County Ditch 36 Record Reestablishment. Ditch 36 has 13,600 feet of open channel on the Main Trunk and 2,300 feet of open channel on three branches. It crosses I94 southeast of Clearwater and eventually enters Fish Creek and the Mississippi River. The Ditch was petitioned in 1917 and established in 1918. Construction was completed in 1919. There are five Branches in the original documents but Lewis acknowledged they did not find evidence of Branches 2 and 3 in current or historic aerials or in the field. This is part of the viewers’ process to determine what lands derive benefit from the system.
At 10:20 A.M., the meeting recessed and reconvened at 10:28 A.M.
Lewis provided a drone video of County Ditch 36. The purpose was to look for obstructions in the ditch. High water levels are seen near CR 75. Water has taken its own course in the area because of the lack of maintained ditch. There is not a well-defined channel. Borrell asked whether the water flows to Rice Lake. Lewis said it does but not efficiently because of the amount of vegetation in the area.
Lewis said they used the same methods to determine the profile and as-constructed grades. As with County Ditch 18, there are not historical documents to display the original profile or constructed grades of the system so soil borings were used. Soil borings were collected near roadway crossings to establish an approximation of the as-constructed grade. There was difficulty in accessing the entire system during the field survey because of the amount of vegetation and wetlands.
Lewis referenced the channel at the outlet of Rice Lake, near 160th Avenue. They collected the current channel elevation and soil boring elevations. There is a noticeable rise in the profile of the existing channel causing the water to remain in the culvert at the 160th Avenue crossing. That channel acts as the runout of the Lake. The soil borings taken at this location did not reflect the transition from organic material to native mineral soil, which would have been the constructed bottom of the channel. They only found mineral soil at the surface.
Lewis said they considered a few things to determine the as-constructed profile in this location. This would include analyzing the culvert more closely and review of County records. A 1995 survey from the MN DNR reflected the ordinary high water was established for the Lake. There was also a record from 2001 reflecting a permit issued by the DNR for culvert replacement at the same elevation as was documented in 1995. They concluded that the culvert was not set below the channel runout elevation 50-100’ downstream. They reasoned that the sediment accumulated in the bottom of the ditch was not from upstream sources but potentially from bank sloughing or failures. The current culvert elevation was used to set the as-constructed and subsequently improved condition profile at this location and gave it a positive grade to slope away from the culvert invert in the downstream direction. Lewis said this is a 24” culvert.
Lewis then provided an overview of engineer drawings of Ditch 36. Branch 1 is a stub off from the main trunk just off CSAH 75. Evidence of this channel is found in historical information. Branches 4 and 5 are off the main trunk south and east of I-94, and evidence of the channels was found in historic aerials. Right-of-way was determined similarly as with Ditch 18 and was based on channel depths, visible spoil areas, and topography.
Lewis said the recommendation is to proceed with the findings and order to reestablish the drainage system as they have described in the as-constructed and subsequently improved condition details of the alignment, cross-section, and grades; for continued maintenance and inspection; and to consider the development of a repair report to review alternatives for repair and to restore the drainage function of the system as it was originally intended.
Husom referenced the ditch flowing through Rice Lake and said it wasn’t a Lake in 1918. Lewis said historical aerials show a smaller outline of the Lake. Vetsch referenced the as-built drawings and questioned whether the current level of the culvert is at the right grade under CSAH 75. Lewis said the elevation downstream at 160th Avenue is above CSAH 75 by several feet. Lewis said they were able to collect enough soil borings to establish the as-constructed profile elevations.
Otterness said that the area to the south and east of Rice Lake extending for a half mile to CSAH 75 is a flat grade. Soil borings were done and a couple were inconclusive and included deeper pockets of organic material. The soil borings that they took that were more conclusive match the profile that it was constructed with that flat profile coming back from the elevation at 160th Avenue at that culvert. They believe the CSAH 75 culvert is lower than the as-constructed grade. It could be a result of over excavating in the past when the culvert was installed. This is based on the evidence they have as their best interpretation of the as-constructed condition. Ideally they would have preferred to have a historic document reflecting elevations along the drainage system.
In response to questions by the Board, Otterness said there is an incline of 2-3’ from CSAH 75 to the 160th Avenue culvert. They believe the channel bottom is closer to the as-constructed elevation. Borrell asked whether the culvert on 160th Avenue was set high. Otterness said based on the information they have, they don’t believe that is the case. Otterness said the culverts were not constructed as or are a part of the drainage system. They are privately owned by the Township and the County and came after the drainage system was constructed. One issue that can occur is that the culverts may have been placed at the level for the condition of the ditch at the time. Daleiden said that it appears that the original design of Ditch 36 may have been to accommodate farmers. He wondered if it needs to be improved or eliminated but that is a subject for another time.
Public Comment and Questions
The public comment period was opened at 10:48 A.M. No public comment was received at the Public Hearing.
Kolb referenced written comment received dated 10-13-17 from Andrew Grean, Wetland Specialist-SWCD, which was read into the record under discussions under the Ditch 18 proceedings. The letter applies to County Ditch 36 as well.
The public comment period on County Ditch 36 was closed at 10:49 A.M.
Board Deliberation and Discussion
Daleiden moved to direct staff to prepare findings and an order consistent with the proceedings, including responses to all comments received through the public comment process; that the draft findings and order be written to affect the reestablishment and correction of the public drainage system records consistent with the engineer’s findings and recommendation; direct recording of the order to reflect the reestablishment and correction of the public drainage system record; and that we recess this hearing to the Board’s regular meeting on 11-07-17, or by adjournment to an appropriate time on the Board’s agenda, at which meeting we will consider findings and an order for the proposed reestablishment and correction of the public drainage system records. The motion was seconded by Vetsch and carried 5-0.
(End of County Ditch 36 Public Hearing portion)
COUNTY DITCH 38
Kolb said the drainage system is located in Sections 34 and 35 of Marysville Township (T119N, R26W) and 3 of Woodland Township (T118N, R26W) and generally flows northeast from a segmented wetland south of US Highway 12 between Montrose and Waverly. The system eventually outlets to a wetland complex east of Clementa Ave SW and north of 55th St SW. The total drainage area to the public drainage system is approximately 884 acres and is located in Sections 33, 34 and 35 of Marysville Township and Sections 3 and 4 of Woodland Township, Wright County, Minnesota. The drainage area is predominantly developed for agricultural and residential land uses with a small amount of open forested area.
In 2013, the Board conducted a redetermination on this ditch system. This is the second redetermination of benefits on this system conducted since its establishment. The first occurred in the 1960’s and included lands that were not included in the establishment of benefits. One of the questions that came up from the viewers in the 2013 redetermination was the actual extent of the drainage system. This was a prelude and highlighted the purposes for the proceedings as ordered. The engineer’s report is dated 8-10-17. The Board’s order initiating the records reestablishment was entered by resolution on 2-14-17. That action directed the engineer to prepare the report of findings defining the alignment; cross-section; profile; hydraulic structure locations; materials; dimensions; elevations; and right-of-way of the drainage system.
Presentation of Engineer’s Report Joe Lewis, Houston Engineering
A PowerPoint presentation was made on the County Ditch 38 Record Reestablishment. Ditch 38 has 4,100 feet of open channel and 3,900 feet of tile. It begins at Highway 12 between Montrose and Waverly. The ditch was petitioned and established in 1918, with construction completed in 1919. A downstream extension was petitioned for in 1926 but there is no record of approval. In 1969, a redetermination of benefits identified additional parcels beyond the initial benefitting lands. In 1979, there was a minor realignment through a portion of 12-Hi Mobile Estates. It is part of the viewers’ process to determine what lands derive benefit from the ditch, and that was a driving factor in determining this record reestablishment proceedings.
Lewis said this system had an original plan and profile drawing as was proposed with the original establishment. He showed the original proposal to begin on the upstream end of Hwy. 12, parallel the highway, turn northeast and cross the railroad tracks, and then end on the west side of Clementa Avenue. From the records, he said that is not what was built. There is an engineer’s report that documents a revision to the alignment between the Mobile Home Park and the railroad crossing on Highway 12. It was straightened as a cost savings measure while still providing the same intended benefited drainage. On the downstream end, the records reflect an extension occurred based on the 1969 redetermination. Properties were added to the north and east of the original benefiting land. It was changed from the west side of Clementa Avenue to the current proposed end point which is on the eastern property boundary of the property to the east of Clementa Avenue. Historic aerials show ditch excavation on this property.
Soil borings, spaced approximately 1000’, were used on the open channel portion of the system to determine the as-constructed profile and grade. They did see changeover from the accumulated sediment, organic in nature, down to the mineral or native soil at the constructed bottom of the channel. Lewis referenced the engineers drawings reflecting the system alignment, which crosses Clementa multiple times. Just west of the first Clementa crossing it transitions to open ditch to tile. They did locate the tile in the field to shoot the top and bottom of the tile type. Lewis said there was some belief that the alignment turned south and ended at the culvert crossing under Highway 12. Historic records show it extended further to the southwest. After additional field work, they located tile on the north and south sides of Highway 12. Daleiden asked for details of the tile. Lewis responded it is a 14” tile believed to be clay. Sections repaired would be plastic. There are records that indicated MnDOT planned to replace with concrete pipe when Highway 12 was reconstructed around 1999-2000.
With regard to right-of-way, they went through the process to determine what area would be reasonably necessary for access for inspection and maintenance. As there is tile involved, they accounted for maintenance similar to open channel but also taking into consideration how deep the tile was buried. The parcels are reflected that intersect that boundary. The alignment crosses the Mobile Home Park. In the future, the drainage authority could consider a realignment to make access and maintenance less problematic. As far as regulatory, they identified waters on the south side of Highway 12 on the DNR public waters inventory. In other locations, there are Types 3, 4, and 5 wetlands that could require mitigation under certain conditions with a repair.
Lewis said the recommendation is to proceed with the findings and order to reestablish the drainage system record following drainage law and also for continued maintenance on the system. Also, to consider the development of a repair report to restore drainage of the system.
Daleiden asked whether there was a private lateral connected that was not part of the drainage system. Borrell thought that was correct.
Public Comment and Questions
At 11:06 A.M., the public comment period was opened on County Ditch 38.
Susan Wiens, Attorney with Environmental Law Group, represents Graham and Ellen Sones in this proceeding. She referenced written comment submitted dated 10-16-17. She asked that the engineers report not be relied upon and be redone or reassessed. The argument is that Ditch 38, as constructed, ended far south and west of the Sones’ property. Historic viewers’ records did not assess benefits to Section 35. Public records reflect the County Board approved a ditch but there was an amendment that was adopted for the final ditch construction which shortened the ditch and removed it from Section 35. Wiens said there is no evidence in record that this section of ditch was incorporated into the ditch system through a regulatory process.
Wiens stated that in 2013, the County reviewed maps of Ditch 38 related to 12 High Mobile Home Park. Exhibit B of that material shows the ditch ending south of the Sones’ property. At that time, the neighbor of Sones was concerned with water coming from the south and affecting their property. Wiens said the location of the end of this drainage ditch has been questioned for years. Public record supports the argument that the northern section was never properly incorporated into the ditch. A reestablishment of records can’t correct that problem. Wiens said the premise of the engineer’s report is based upon his proposed fact that the drainage ditch was corrected to the north through the Sones’ property. She said that is incorrect, and to rely on a report that has material inaccuracies is an appealable issue for the Sones.
Wiens referenced the technical aspects of the engineers report. As it concerns the Sones property, there were only two soil borings taken (one at the very edge of each side of the property). She said it does not demonstrate that a ditch was dug through that area, that soil was excavated, or include any banks. It is inaccurate to demonstrate that is where the ditch went and she has experts that will state that. She stated there is no solid evidence in the record to support the position by the engineers. Wiens said the request is that there either be more work done to reach a compromise on the ditch, and that the ditch authority reject the report and not rely upon it in the determination.
Borrell asked if it is Wiens’ position that the ditch would end before the Salonek’s property. Wiens referenced the yellow line on maps of the original construction of 1919 and clarified that their position is that it is far south of Sones’ property. Borrell asked how she would explain that the Saloneks and Sones are benefited property owners on the ditch rolls, which the record supports. Wiens said there is no public record on creating a ditch easement on the Sones’ property. She said a property can benefit from a ditch when it is not located on the property. A determination of benefits does not necessarily mean the ditch was on the property. Daleiden said that would make sense on the Sones property as it is all downhill.
Wiens referenced a map of benefited properties listed in public record that included properties that didn’t have the ditch line on the property. A person on higher ground may still be benefited by a ditch. Wiens responded that there are private and public ditches. A property can include a private ditch that benefits that property, but that does not mean it is part of the public ditch system. Borrell said the water comes to the Salonek’s property and the Sones’ property. He asked how they would be benefited if the water flows into their property but there is not a way to get the water off from their property. Wiens said that is a question for now and the future on how to remedy the situation. The problem still exists that this property was not ever made part of the public ditch system.
Keith Duske, 5700 Cushing Ave. SW. Duske’s property is at the beginning of the ditch. Duske said his father, neighbors, and one commissioner served on a ditch committee in the past. Salonek and Duske reviewed records at the Auditor’s Office but the County Board Meeting minutes for this action are missing, and that is one of the reasons why the redetermination is being requested. Duske believes the ditch flows all the way through the Sones’ property. Duske referenced a comment made by Kolb regarding the involvement of the DNR with water issues. He asked if they would still have to go through the DNR to drain water if they have been working on this since the 1970’s. Borrell said that will have to be looked into.
Graham Sones, 5324 Clementa Avenue SW, said the beginning and end of the ditch need to be located, with careful consideration on where the ditch ends. There is a 1969 roll that reflects benefited landowners. Looking at a historic document, the line clearly shows in the 1940’s (21 years after the original establishment) that there was no ditching activity on the far end of their property. He said the property was purchased in 1956 and was used for a cattle operation. Sones said he is a landscape architect and frequently reviews aerials. It appears the property owner may have dug a waterway for cattle. In the 1960’s, it looks like the waterway was dammed to provide water in the winter. Beyond that, there is no indication of activity in the basin Type 3 Wetland. Sones said this past spring, he found an excavator on his property working for the County without a permit. Sones worked through the situation and ended up hiring the excavator to complete work based on discussions with Mike Young, County Ditch Inspector. Sones said the work cost $500 but he is still not on the rolls. His property abstract goes back to when Minnesota became a State, and there is no record in the 1960’s of a sale, loan, improvement to the property, or drainage easement.
Ellen Sones, 5324 Clement Avenue SW, said in her career experience includes review of thousands of aerial photos and administration of the Wetland Conservation Act for Hennepin County for 15 years. The Sones looked at over 40 aerial photos of the property and none of them show the ditch extending to the easterly part of the property. She said aerial photos do not lie. Soil boring data seems incomplete in her opinion. Sones has served on technical evaluation panels and delineated numerous wetlands. She thought the engineers only looked for the clay layer, assuming there was a ditch there. Nothing in the supporting documentation shows documentation on the soil type. They define where they found the clay layer in two locations on their property. Sones said this is not a clear indication of what was historically there. Sones said they had a water resource specialist look at this data who said the soil boring information is incomplete and there is not a hydrological study. Sones said the report is incomplete and there is not enough data to support the line drawn.
Keith Duske, 5700 Cushing Ave. SW. Duske said he has lived at this location his entire life. In 1969 when the ditch was dug, he personally watched them dig through.
Marilyn Gates, 2252 US Highway 12 SW. Gates’ property is adjacent to the 12 High Mobile Home Park. Gates has resided there for 50 years. There is a private tile that is 200’ from her easement that drains into Ditch 38. There is another tile that was put in by the County which runs under Highway 12 from Woodland Township bringing water to the low spot. Gates thinks there was a change in land shape or contour that is bringing more water to the area. The tile was part of the Secora property that was used for crop farming. The water is now being dammed and there are cattails.
Gates said the 12 High Mobile Home Park is having trouble with their storm shelter and draining water to the culvert she put in which flows to the low spot as well. She said the tile is not large enough to handle the influx of water since the land has been changed. About 500’ behind her is the railroad. The railroad raised the land so water can’t drain properly. Gates said there is a small tile that is working.
Borrell responded that the County hired a contractor to scope the tile from the Mobile Home Park to the northeast because of concerns of possible obstructions. The person indicated that the tile was in good shape. Borrell is unsure of the condition of the tile upstream and may be something that will be looked at. Gates said it sometimes takes 4-5 days to see a change in the water level with the tile running. Borrell said the water would probably not flow into that area until the 24” tile gets down a little bit.
Graham Sones, 5324 Clementa Avenue SW. Sones referenced Duske’s comment about watching as the tile was dug. He doesn’t doubt the activity but questioned the arrangement for that work, the age of Duske at the time, the location of the public record, and how many people told him what was being done and why. A possibility could have been a private landowner paying a contractor to have a ditch dug on their property.
Keith Duske, 5700 Cushing Ave. SW. In response, Duske said he was 17 years old at the time. He lived on the farm his entire life so understood how ditches worked. Duske said his father told him what the ditch committee had decided, and the work was funded by the ditch and assessed to the landowners. The same person dug the entire ditch.
Susan Wiens, Attorney with Environmental Law Group. Wiens referenced the comment whether there was some ditching that occurred on the property. In 1969, drainage code still required a formal process to extend a ditch. Borrell explained that the purpose is to reestablish the record, and some record was found. Wiens said there is evidence of something happening in 1969 but there is no evidence of an improvement project. There was not an improvement project ever since the original ditch construction.
Kolb referenced written comment received dated 10-13-17 from Andrew Grean, Wetland Specialist-SWCD, which was read into the record under discussions under the Ditch 18 proceedings. The letter applies to County Ditch 38 as well.
Borrell called for additional verbal or written comment but none was received.
Board Deliberation and Discussion
Kolb stated that much of the hearing alludes to the fact that the records are missing or incomplete. That is why there is an evidentiary hearing to look at all of those things. The Board will need to determine, based on all of the evidence, what is the most likely extension, amendment, and grade of this public drainage system. He said there is question relating to the portion of the ditch involving the Sones property. The original records show it ending at a point with more construction after that time. The Board can take action to recess this to a date specific for further consideration; direct the engineer and staff to answer specific questions; or decide on the actual alignment today based on the evidence and testimony. Findings would then be prepared to support that decision. Ultimately, the Board will need to make a decision based on the evidence presented as to what the extent of the ditch is.
Borrell referenced the Sones property and said they want to keep their wetland (based on conversation he had outside of the hearing). Borrell said as long as the drainage authority has the culvert on Clementa, he does not see a problem except if there was further sedimentation downstream. At some point they may need to do a cleanout or put a control structure in on the other side of the marsh that is located on the Sones property.
Kolb referenced the actions of Sones when the contractor showed up on their property. Sones understood the necessity of getting the water flowing because of upstream property owners. He worked with the Ditch Inspector to match the grade and make it work. He was neighborly and accommodating, and he funded it. It was a benefit to the rest of the drainage system. Kolb said this speaks to the character of the Sones. Kolb referenced points on the map relating to the ditch system and the location of the Sones’ property. He said potentially the engineer and staff could work with the Sones and their attorney to find a location less concerning for them while still addressing protecting the function for all benefited property owners. That would mean protecting some level of outlet. Kolb said it may not be figured out today.
Husom questioned whether future action would include vacating part of the ditch. Kolb said that could be an outcome for the Board to partially abandon a portion. Borrell did not feel it could be vacated or abandoned as in the future sedimentation could build and restrict the flow. Kolb referenced the fall from Clementa to the Sones property on the map. The sediment is basically level with the culvert at Clementa so the water does flow. The engineer could make a recommendation based on protecting the outlet.
Borrell asked for the elevation at the natural waterway. Otterness said that there is a 5’ drop from the culvert on Clementa to the east property line. He thought it unlikely that an obstruction on the east end of the property line would have an effect on anything upstream of the Sones property or upstream from Clementa. Otterness agreed with Kolb’s comments that if the ditch were to be established at some point to the east of Clementa but not necessarily all the way to the property line, the benefited property owners would still maintain the same benefit of the system without having to have an ensured outlet past that point. Borrell referenced the water level at Clementa Avenue to the water level at the marsh. He said there is about a 1’ fall, because of the water further to the east that is holding the water Sones’ property.
Vetsch suggested the engineers review the last leg of the ditch and work with landowners to see if they can find a natural ending taking into consideration the fall on the back side of the Sones property. Kolb said procedurally if this is the direction the Board wants to take, the motion would be to refer the matter to the engineers for further investigation of an ending point of the drainage system, and to recess the Public Hearing for Ditch 38 to the 11-07-17 County Board Meeting at 9:00 A.M. or an acceptable time on that Board Agenda.
Vetsch moved to refer the Ditch 38 matter back to engineering to review possible options for shortening, structuring, and other options for Ditch 38 and to continue the Ditch 38 Public Hearing to the 11-07-17 Board Meeting at 9:00 A.M. or an appropriate time on the Agenda. Daleiden seconded the motion and offered an amendment to look at the lateral on the south side. The amendment was withdrawn as Borrell said that is a private tile. The motion carried 5-0.
Potter referenced a comment made that aerial photography doesn’t lie. He stated that some photography is taken in the spring prior to foliage. There are instances where repairs performed are discovered later. Aerial photography may not necessarily tell the whole story. He said that handshake agreements happen all over the country between farmers and they generally take a common sense approach. It may have involved a situation where action was taking without knowing the law.
Discussion and public comment on Ditch 38 ended at 11:58 A.M. and the County Board Meeting adjourned at 11:59 A.M.
Published in the Herald Journal Nov. 3, 2017.