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Cartway saga comes to an end — for county, at least

First filed nearly four years ago, the cartway petition asked the board to intervene in an access dispute involving a 63-acre property on Nelson Lake in northeastern Crow Wing County.

County Attorney Don Ryan gestures as he talks seated at the county board table
Crow Wing County Attorney Don Ryan, center, discusses the legal implications of a cartway petition Tuesday, Sept. 13, 2022, during a County Board meeting.
Chelsey Perkins / Brainerd Dispatch
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BRAINERD — It took about five months longer than anticipated for a final decision, but the Crow Wing County Board took the necessary votes Tuesday, Sept. 13, to grant a request for access to hunting land through a neighboring property.

First filed nearly four years ago, the cartway petition asked the board to intervene in an access dispute involving a 63-acre property on Nelson Lake in northeastern Crow Wing County.

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The County Board — acting as the township board for the Second Assessment District on this issue — is required by law to take action on a cartway petition, provided it meets the qualifications. The nearest public road does not allow access to the property and the neighborly dispute meant using the private road crossing others’ properties was no longer an option.

It appeared the matter was headed toward a compromise between the involved parties outside of the boardroom, based on regular updates over the summer from County Attorney Don Ryan. But ultimately those negotiations fell apart and the matter returned to commissioners. They were tasked with selecting a cartway route and determining how much petitioners John Middleton and his ownership partners must pay to Keith Unger, whose property the cartway will cross.

Although the board previously selected a route, comments by Commissioner Paul Koering in May left open the possibility of reconsideration of that decision. The route previously earning board approval utilizes the private Marsh Pit Road — which meets County Road 105 and serves a residential development — along with a portion of the driveway belonging to Unger. It allowed Middleton access to the southern two-thirds on the lakeshore side of the property known as Nelson Preserve, which is divided east to west by a small pond.

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Commissioner Paul Koering gestures while speaking
Crow Wing County Commissioner Paul Koering speaks on the cartway petition issue before the board Tuesday, Sept. 13, 2022.
Chelsey Perkins / Brainerd Dispatch

David Meyers, the attorney representing Unger, sought Tuesday to again make the case for his client’s preferred route, which would be farther away from Unger’s cabin and not use part of his driveway. Meyers said a report obtained by an environmental consultant found Route 1, Unger’s preference, would result in less environmental harm to trees than Route 2, the board’s selection. He noted Route 2 falls within the shoreland protection zone.

“You tell your property owners (in the county’s comprehensive plan), if you can avoid substantial tree cutting and vegetation disturbance and construction in that shoreland protection zone, you should do it,” Meyers said. “ … I’m asking you to set an example. If you’re asking others to do it, you should do it yourself.”

Meyers said in any case, the board must set the dollar amount Middleton and his associates must pay to account for the loss in property value and other damages caused by the cartway. He said appraisals he obtained showed the damages caused by Route 2 amounted to $125,000, while Route 1 rang up at $63,000.

“Yeah, that’s a lot of money, but they’re asking you for a lot,” Meyers said. “ … You can’t, in this case I believe, treat this petitioner better than you can your own taxpayers. Your taxpayers have to pay appraised value. If he wants the cartway, that’s his choice, but he’s got to pay the appraised value.”

Attorney speaks at the microphone in the Crow Wing County Boardroom
Attorney David Meyers speaks on behalf of his client during a Crow Wing County Board discussion on a cartway petition Tuesday, Sept. 13, 2022.
Chelsey Perkins / Brainerd Dispatch

Crow Wing County Land Services previously prepared its own estimate of damages, pegging that figure at about $50,000.

On the flip side, Attorney Patrick Krueger — representing the Middleton group — said the damages for the selected Route 2 shouldn’t exceed $5,670.06. Krueger arrived at the figure by using land values in a survey obtained by Middleton and determining how much real estate the cartway would occupy.

Pat Middleton, one of the property owners, also spoke during Tuesday’s meeting. He reiterated the group’s desire for Route 2, stating it provided meaningful access to the majority of the Nelson Preserve property. The other route, he said, would require a bridge to be built across the wetland/pond area and create more disturbance.

Pat Middleton also provided photos to commissioners of trash and other debris — including a burned camper — he said was left on the Nelson Preserve property by Unger. He noted while he and other property owners haven’t had access for more than seven years because of Unger’s refusal to allow them to cross his property, Unger appeared to access Nelson Preserve regularly.

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“I think it’s a real problem for all of us because this needs to be cleaned up,” Middleton said. “ … He’s using the property for his own benefit. And the worst thing he can do is try to get some type of settlement for him, because I think he benefits from not having anybody having access to our property.”

After County Administrator Tim Houle questioned the relevance of the debris to the cartway route and damages discussion, Krueger said it applies to the credibility of Unger’s damages claims.

“How can you claim on having all these damages when you treat your property like this?” Krueger said. “And that’s basically — in my mind, that was meant to illustrate that for you to take into account when you determine the damages.”

Man points toward an image while he speaks
Pat Middleton points to photos he provided Crow Wing County commissioners as part of a discussion on a cartway petition Tuesday, Sept. 13, 2022.
Chelsey Perkins / Brainerd Dispatch

County Attorney Ryan explained in an indirect way, the debris apparently left by Unger on the Nelson Preserve property could impact the board’s damages calculation. He said if Crow Wing County determined the mess is a public health nuisance and the Middleton group is required to clean it up, Unger would benefit by not having to pay for cleanup costs himself. The board could factor that benefit into the amount awarded to Unger, Ryan said.

After commissioners indicated they had no further questions, Koering made a motion to reaffirm the board’s route selection, seconded by Commissioner Steve Barrows. The board unanimously agreed.

Koering made a second motion to set the cartway damages at $15,000, which he described as an attempt for middle ground between the desires of both parties and the internal staff estimate.

“I guess what my findings would be is I’ve heard a lot of information from both sides on this. I’ve heard some numbers that I thought were kind of crazy. … In my mind, I don’t feel those numbers are correct,” Koering said. “ … I tried to err somewhere in the middle.”

This motion, seconded by Commissioner Bill Brekken, also earned 5-0 support.

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Attorney speaks at a microphone in the Crow Wing County Boardroom
Attorney Patrick Krueger speaks on behalf of his clients, petitioners seeking a cartway, during the Tuesday, Sept. 13, 2022, Crow Wing County Board meeting.
Chelsey Perkins / Brainerd Dispatch

A third motion brought by Koering increased the figure to $17,500, accounting for county costs associated with work on the issue. Statute prohibits the expenditure of public dollars on a cartway petition. Again, commissioners agreed unanimously.

The Middleton group already deposited $20,000 with the county in anticipation of damages, so it’s likely a refund will be issued. Once the cartway order is signed, the window for the appeals process begins and such an action appears likely, based on comments from Meyers. The matter would transfer to district court for further consideration.

CHELSEY PERKINS, community editor, may be reached at 218-855-5874 or chelsey.perkins@brainerddispatch.com . Follow on Twitter at twitter.com/DispatchChelsey .

Chelsey Perkins is the community editor of the Brainerd Dispatch. A lakes area native, Perkins joined the Dispatch staff in 2014. She is the Crow Wing County government beat reporter and the producer and primary host of the "Brainerd Dispatch Minute" podcast.
Reach her at chelsey.perkins@brainerddispatch.com or at 218-855-5874 and find @DispatchChelsey on Facebook, Twitter and Instagram.
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