Minutes November 30, 2010 Special Meeting
Wabasha County Board of Commissioners
Special Board Meeting of November 30, 2010
The Board of County Commissioners of Wabasha County, Minnesota, convened in Special Session at the Wabasha County Courthouse, in the City of Wabasha, Minnesota on Tuesday, November 30, 2010 at 9:00 a.m. The meeting was called to order by Board Chairman Dwelle. The following Commissioners were present: Windhorst, Dwelle, Riester, Norman and Hall.
RIESTER - WINDHORST
Resolution No.: 2010-233
WHEREAS, a group of property owners within the proposed lake improvement district on Lake Zumbro have submitted a petition to the Wabasha County Board which conforms to the requirements set forth in Minnesota Statutes Section 103B.521, Subd. 1 and Minnesota Rule 6115.0970, Subp. 1; and
WHEREAS, the citizen’s group which submitted the petition has provided a certified copy of the petition to the Commissioner of the Minnesota Department of Natural Resources and to the Minnesota Pollution Control Agency as required by Minnesota Rule 6115.0970, Subp. 2A; and
WHEREAS, on December 15, 2009, the Wabasha County Auditor originally verified the authenticity of the signatures on the petition; using the same original criteria, certified that 83 property owners on behalf of a possible 177 property owners in the Wabasha County portion of the proposed LID or 46% had signed the initial LID creation petition and notified the Wabasha County Board as required by Minnesota Statutes Section 103B.521, Subd. 2; and
WHEREAS, on December 15, 2009 the Director of Olmsted County Property Records and Licensing originally verified the authenticity of the signatures on the petition, certified that 123 property owners on behalf of a possible 185 property owners or 67% in the Olmsted County portion of the proposed LID had signed the initial LID creation petition based on the original criteria that “property owner” was defined as one signature per parcel and notified the Olmsted County Board as required by Minnesota Statutes Section 103B.521, Subd. 2; and WHEREAS, this initially meant that considering all of the parcels within the proposed LID in both counties, 206 property owners on behalf of a possible 362 property owners had signed the petition or 57% which was a majority of all property owners as required by Minnesota Statutes Section 103B.521, Subd. 1(b); and
WHEREAS, Olmsted County has, at least 21 days prior, provided notice of a public hearing on the petition to the DNR and the MPCA, all owners and residents within the proposed District, local and regional units of government, special purpose districts, development commissions, and corporations and utilities owning property within the proposed District and published notice of the public hearing in two successive issues of the Wabasha County Herald which is widely circulated in the proposed District and posted notice of the public hearing in public buildings and leading commercial establishments in or near the proposed District as required by Minnesota Rule 6115.0970, Subp. 3; and
WHEREAS, the Wabasha County Board made the petition available for public viewing by concerned citizens at the Wabasha County Auditor/Treasurer’s Office as required by Minnesota Rule 6115.0970, Subp. 4; and
WHEREAS, the Wabasha County Board approved the petition requesting the creation of the Lake Zumbro Improvement District (LID) on February 16, 2010. However, the two counties subsequently determined that their initial conclusion that “property owner” should be interpreted to mean one signature per parcel on the petition was incorrect and this term should instead be interpreted to give each real person holding an interest in the parcel an opportunity to sign the LID petition. Once the two counties applied this new definition to the initial petition, it was determined that less than a majority (42%) had signed the petition. In light of this, on April 27, 2010 the Wabasha and Olmsted County Boards issued an order staying establishment of the LID until a majority of property owners had signed the initial petition; and
WHEREAS, on August 6, 2010 a first amended LID creation petition was submitted to the Wabasha County Auditor and Olmsted County Property Records and Licensing for consideration. Olmsted County Property Records and Licensing and the Wabasha County Auditor verified signatures on the petition. At that time, the combined signatures from Olmsted County and Wabasha County on the amended initial petition to establish a LID showed that 304 property owners out of a 581 possible property owners or 52.3% of the property owners had signed the first amended LID creation petition. It was determined at that time that the threshold for creation of a LID using the revised property owner definition had been met; and
WHEREAS, however, on September 14, 2010 an inquiry was made by a private citizen requesting that Olmsted County consider why the individually owned lots in Zumbro Haven Subdivision had not been included by the petitioners who sought creation of the LID. The Olmsted County Attorney’s Office researched the issue. It was determined that the individually owned lots in Zumbro Haven had revocable licenses which permitted them to cross Outlot A owned by the Homeowners Association for various purposes, including for access to Lake Zumbro. Outlot A is already included in the property covered by the proposed LID. Because the original LID petition indicated that the LID was intended to include properties that had “access by way of…license” to Lake Zumbro, there was no proper justification not to include these parcels in the LID; and
WHEREAS, when these additional parcels were added to the list of property owners in the proposed LID, this increased the number needed to reach a majority of property owners who petition for creation of the LID. With the added parcels, there were 301 property owners out of a total of 616 parcels in the LID that had petitioned for creation of the LID which was 49%, just short of a majority. A majority of the property owners would be 309 signatures so at least 8 more signatures were expected to be needed on the first amended LID creation petition to reach a majority. Therefore the Olmsted County Board decided on September 28, 2010 it was appropriate to halt the LID creation process to permit the petitioners to seek additional signatures from the individual property owners in Zumbro Haven and any other owners in the proposed LID who had not signed the first amended LID creation petition yet; and
WHEREAS, to that end, all of the steps noted above for the first public hearing held on January 19, 2010 were repeated in preparation of a second public hearing before the Olmsted County Board set to occur on October 26, 2010 including notification again to Oronoco Township, all owners and residents within the proposed District, local and regional units of government, special purpose districts, development commissions, and corporations and utilities owning property within the proposed District, published notice of the public hearing in two successive issues of the Rochester Post-Bulletin and posted notice of the public hearing in public buildings and leading commercial establishments in or near the proposed District; and
WHEREAS, on September 23-24, 2010, heavy rains and flooding occurred on Lake Zumbro and in surrounding areas. This event reinforced the need for added depth to the lake to add water storage capacity in peak flow periods to curtail flooding risks including damage to or possible failure of the Lake Zumbro Dam; and
WHEREAS, on October 6, 2010 the Olmsted County Attorney’s Office was notified that Jay Hodge, the Chief Manager of the Zumbro Haven Homeowner’s Association, which was the grantor of the revocable licenses at issue in the Zumbro Haven Subdivision, had revoked these revocable licenses. This act deprived the individually owned lots in Zumbro Haven Subdivision of the access they had previously held to Lake Zumbro. Therefore the Olmsted County Attorney’s Office no longer recommended to the Olmsted County Board that these parcels be included within the boundaries of the proposed LID which effectively meant that the proposed LID included only the original properties contained in the first amended LID creation petition.
WHEREAS, on October 22, 2010 the Director of Olmsted County Property Records and Licensing determined that an additional 5 verified signatures of property owners had been submitted for inclusion to the first amended LID creation petition. This meant that 193 property owners out of a possible 294 property owners in Olmsted County or 66% had signed the first amended LID creation petition.
WHEREAS, the Wabasha County Auditor then determined that 2 additional verified signatures of property owners in Wabasha County had been submitted for inclusion to the first amended LID creation petition. The Auditor determined that 5 property owners in Wabasha County had submitted legally sufficient withdrawals, i.e., statements by property owners who had originally signed the LID creation petition that they had changed their minds and wished to remove their names from the petition supporting creation of the LID. Finally, the Auditor determined that since the filing of the original LID creation petition, one property owner had passed away which reduced by 1 the number of eligible property owners. Once these adjustments were made to the county total, the Wabasha County Auditor certified that 110 property owners out of a possible 288 property owners or 38% had signed the first amended LID creation petition there.
WHEREAS, on November 16, 2010 the Wabasha County Auditor verified that 20 additional persons had properly withdrawn their names from the LID creation petition and 16 additional signatures had been provided by property owners who had not previously signed the LID creation petition which meant that a total of 106 property owners of the LID parcels in Wabasha County had signed the LID creation petition. The Auditor also verified that 3 new property owners in Wabasha County had been added which brought the total pool of property owners in Wabasha County to 291. When added to the existing totals from Olmsted County, this meant that a total of 299 property owners out of a possible 585 property owners in both counties had signed the first amended LID creation petition or 51% which is a majority of the property owners in the proposed LID.
WHEREAS, on October 26, 2010, the Olmsted County Board convened its second public hearing, and received additional public comment on the first amended petition; and
WHEREAS, the Olmsted County Board met again on November 9, 2010 which was more than 10 days but within 30 days following the public hearing on the petition as required by Minnesota Rule 6115.0970, Subp. 9 and voted to recommend creation of the LID, effective February 1, 2011, contingent on approval of the LID by the Wabasha County Board. However, the Board also recognized that certain property owners within the proposed LID remained opposed to its creation who had earlier in this process attempted to submit a LID referendum petition which was initially rejected for technical reasons. The Board decided to give these persons until January 31, 2011 at 5:00 p.m. to try to collect additional signatures on an amended referendum election petition to reach the 26% threshold needed for a referendum election.
WHEREAS, on November 16, 2010, the Wabasha County Board convened its second public hearing, and received additional public comment on the first amended LID creation petition; and
WHEREAS, the Wabasha County Board will meet again on November 30, 2010 which will be more than 10 days but within 30 days following the public hearing on the petition as required by Minnesota Rule 6115.0970, Subp. 9 and vote to recommend creation of the LID. However, the Board will also recognize that certain property owners within the proposed LID remained opposed to its creation who had earlier in this process attempted to submit a LID referendum petition which was initially rejected for technical reasons. The Board will decide to give these persons until January 31, 2011 at 5:00 p.m. to try to collect additional signatures on an amended referendum election petition to reach the 26% threshold needed for a referendum election.
NOW, THEREFORE BE IT RESOLVED THAT THE WABASHA COUNTY BOARD ISSUES THE FOLLOWING FINDINGS OF FACT IN SUPPORT OF ITS ORDER CREATING THE LAKE ZUMBRO IMPROVEMENT DISTRICT: 1. Lake Zumbro has become filled with a large amount of silt since its creation in 1919. 2. This infiltration of silt has impaired the water quality of the lake, adversely affected the plant and animal species that live in the lake, made the depth of the lake much shallower in many places which has adversely affected its utility for many recreational uses. 3. It is necessary to dredge the lake in order to restore the lake close to the condition it was in at the time of its creation. The State of Minnesota is expected to require that property owners who live on the Lake provide a share of the funding which will be needed to dredge the lake. Creation of this Lake Improvement District is needed to provide a mechanism to collect funds through assessments on the adjoining property owners which can be contributed toward the cost of the dredging project. 4. In Olmsted County, 193 property owners out of a possible 294 property owners signed the first amended LID creation petition. This represents 66% of the property owners in Olmsted County. In Wabasha County, 106 property owners out of a possible 291 property owners signed the LID creation petition. This represents 36% of the property owners in Wabasha County. The combined totals from both counties indicate that 299 property owners out of a possible 585 property owners signed indicating that 51% of all of the possible property owners in the LID have signed the first amended LID creation petition. THE WABASHA COUNTY BOARD ISSUES THE FOLLOWING CONCLUSIONS OF LAW IN SUPPORT OF ITS ORDER CREATING THE LAKE ZUMBRO IMPROVEMENT DISTRICT:
1. Wabasha County finds it is necessary to create this District to promote public health and public welfare as set forth in Minnesota Statutes Section 103B.521, Subd. 1(a)(2) as the dredging of the Lake will benefit the owners of the properties in the District, the users of the lake, and the plants and animals within the Lake. Formation of the District will not cause or contribute to long-range environmental pollution.
2. Wabasha County finds that the District should be established in both Wabasha and Olmsted County because the lake spans both counties and a joint powers authority with Olmsted County is necessary in order to facilitate management of the District once it is created pursuant to Minnesota Statutes Section 103B.525. This joint powers authority will be exercised through the Wabasha-Olmsted County Lake Zumbro Joint Powers Board which was created in 2008 in order to coordinate payment arrangements and contracting for the dredging of the lake.
3. The number of property owners in the LID who have signed the LID creation petition are a majority of the property owners in the LID as required by Minn. Stat. Section 103B.521, Subd. 1(b). THE WABASHA COUNTY BOARD ISSUES THE FOLLOWING ORDER PURSUANT TO MINNESOTA STATUTES SECTION 103B.535:
1. The name of the District shall be “The Lake Zumbro Improvement District”.
2. The boundaries of the District shall be as set forth on the map of the District which is attached hereto as Exhibit A and the district boundary follows natural hydrologic boundaries to the extent practical.
3. The water and land resources management programs and services to be undertaken by the District include dredging of the lake bottom, disposal of the dredged materials and any programs which may be ancillary to these primary purposes.
4. The general powers of the District shall include those authorized in Minnesota Statutes Section 103B.551, Subd. 3. The financing powers of the District shall include those authorized in Minnesota Statutes Section 103B.555 which may be pursued only after seeking other sources of funding. The District shall be eligible to receive funding from any federal, state or local government sources to accomplish these programs. However, the District may not enter into contracts exceeding $10,000 in expenditures without prior approval of the Wabasha County and Olmsted County Boards. The District may not enter into contracts unless full funding has already been secured by the District. No contract by the District shall obligate Olmsted or Wabasha County to pay any vendor in the event District funding is determined to be insufficient to cover project costs, unless approved by the Olmsted and Wabasha County Boards. Finally, the Wabasha County Board retains all financing authority over the Lake Improvement District with respect to the properties located in Wabasha County; and requires prior approval of any assessment upon properties located within the District, in Wabasha County, and any financing thereafter, as recommended by the Olmsted-Wabasha Lake Zumbro Joint Powers Board.
5. If the LID is in fact created, the initial number, qualifications, terms of office and method of election, removal and filling of vacancies of the board of directors including a method for property owners not present at the annual meeting to participate in the election of the district board were recommended at a special meeting of the Wabasha-Olmsted County Lake Zumbro Joint Powers Board acting as the joint county authority under Minnesota Statutes Section 103B.525 which was held April 15, 2010. A copy of these rules is attached hereto as Exhibit B. The stay of these rules put in place by the Wabasha County Board on April 27, 2010 is hereby lifted and these rules are hereby adopted to govern these operations of the LID Board effective February 1, 2011 if the LID is created.
6. The Wabasha County Administrator is hereby authorized to execute such agreements as are necessary to implement the work of the District. The staff of Wabasha County is authorized to furnish any assistance requested by the District in the execution of its duties including any joint assistance with staff from Olmsted County. However, the County shall be reimbursed for any staff support to be provided to the District upon terms to be determined by the County. The provision of any staff support for the District shall also be subject to the County’s determination that it has sufficient staff resources available to support the District.
7. This order shall be published once in the Wabasha County Herald and a copy of the order shall be filed with the Minnesota Secretary of State, the Minnesota Pollution Control Agency and the Minnesota Department of Natural Resources as required by Minnesota Statutes Section 103B.541. The Lake Zumbro Improvement District shall be formally established as of February 1, 2011. However, in the event a verified referendum election petition meeting the required 26% threshold is submitted by January 31, 2011 at 5:00 p.m., creation of the LID shall be stayed pending the outcome of the referendum election to be held in July or August 2011 upon subsequent resolution of the Wabasha and Olmsted County Boards after consultation with the Wabasha County Auditor to clarify the details for holding this election. I CERTIFY THAT the above resolution and order was adopted by the Wabasha County Board of Commissioners on November 30, 2010.
Nay: Norman
Adopted
HALL - WINDHORST
Motion to close.
Adopted Unanimously
 

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