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County Rail Authority mulls rules on right-of-way encroachment

County Rail Authority mulls rules on right-of-way encroachment
By Lyn Jerde, Eden Prairie Sun Current
October 6, 2005

Some wanted to know if Hennepin County planned to punish them for mowing grass, planting trees or pulling poison ivy.

One wanted to know why a fence sometimes blocks his way when he rides a bike.

And, at least one person wanted to know if county officials honestly believe that the 57 miles of abandoned railroad corridor, now owned by the Hennepin County Regional Rail Authority, would actually have trains running through it again someday.

About 40 people gathered Sept. 29 at the Eden Prairie City Center for a Rail Authority meeting to address issues of encroachment along the corridor's right-of-way. Similar meetings have been, or will be, held in other cities where right-of-way exists alongside private property.

Marcia Wilda, of the Rail Authority staff, said rapidly increasing development near the corridor has made it necessary to adopt consistent, county-wide rules for what can and cannot be done on the rail corridor.

The corridor - consisting of former railroad right-of-way that the authority acquired for possible future transportation use - is usually about 100 yards wide, with a 16-foot-wide trail near the center.

Owners of property abutting the rail corridor, she said, have sometimes used railroad property around the trails as though it were their own.

Wilda said some forms of encroachment are flagrant and dangerous - parked cars, fire pits, dumped garbage.

But others, she said, are open for discussion as to whether they should be allowed if the neighboring landowner gets a permit from the county.

For example, many people have set up children's play areas, cut down trees, weeded, planted flowers, built a fence or mowed right-of-way property.

Wilda said the authority has, on occasion, granted permits (at a cost to the neighboring landowner) for some types of encroachment.

The questions now, she said, are which uses should be allowed with permits, and whether all corridor property should be available for private use.

Homeowners - some of them visibly angry - asked why the authority is stepping in now, when some of the uses had gone unchallenged for years.

Norman Hagen of Eden Prairie said a fence on the neighboring rail corridor was already in place when he bought his house.

"If someone told me I had to move my fence 10 feet, that would be horribly offensive," he said. "I'm not sure what good it would do, other than shave 10 feet from what I thought was my property."

The issue of fences, Wilda said, is a particularly challenging one.

For example, a fence on land elevated from the trail might pose no problem to trail users, while a fence that's at grade might give trail users the impression they're trespassing on private property.

Mowing and weeding also are tricky issues.

Several residents said they believe a mowed right-of-way is safer and more aesthetically appealing than allowing vegetation to grow unabated - even in the name of keeping the trail ambience "natural."

Others said they wondered why eradicating buckthorn, poison ivy, box elders and other noxious vegetation from corridor land could be considered undesirable.

Linda Koblick, a Hennepin County commissioner whose district includes the northern one-third of Eden Prairie, said people who own property adjacent to the rail corridor sometimes mistakenly believe they have the right to alter the property - or that they can attain the land through adverse possession if they take care of it.

In fact, she said, rail corridor is county-owned land, and the county has both the rights and the responsibility related to it.

Koblick acknowledged that enforcement of anti-encroachment rules has happened mainly when the county gets a complaint. Even then, she said, uses that are dangerous or flagrantly offensive have gotten enforcement priority.

The Hennepin County Commission is also the governing body of the Rail Authority - and therefore, the body that will eventually adopt guidelines on encroachment.

The county plans to consider comments from meetings such as this one, she said, before holding a full-county hearing on the issue.

Gary Diamond of Eden Prairie said he believes appointing a committee in each community where there is rail corridor would have been a better way to address the issue than holding community meetings.

"We're all concerned about our own situations," he said, "but ultimately, we all live in Eden Prairie."

The city's perspective on encroachment

Stu Fox, parks manager for the city of Eden Prairie, said the city's rules regarding encroachment on city-owned land are pretty straightforward: Don't do it. Ever.

Although Hennepin County is considering allowing some forms of encroachment on railway corridor with a permit, Fox said the city is not going to allow neighboring property owners to encroach on city property under any circumstances.

Fox said city officials have had some "very, very painful meetings" with property owners who have been asked to remove fences, retaining walls and other landscaping from city-owned land.

The stance is necessary, he said, because encroachment can escalate.

"One property owner mows the land. The next owner plants a tree. The next one builds a swimming pool," he said.

Fox said it is a property owner's responsibility to know exactly where his or her property line is - and, if they're not sure, to ask someone in authority, such as city officials.

"People don't have to ask what's permitted on city land," he said. "No fences, no fire pits, no landscaping, no storage, no firewood, no gardens - nothing."

Will the railroad return to the county?

The Hennepin County Regional Rail Authority session in Eden Prairie wasn't about light rail transit, and the issue didn't come up until a participant asked how likely it is that trains will someday return to authority-owned rail right-of-way.

Eden Prairie City Councilmember Brad Aho said several light-rail routes are being considered, and some of them would run along rail right-of-way in and near Eden Prairie.

Light rail, he said, is one of several long-term transit options being considered. Another option under consideration is dedicated busways.

Marcia Wilda of the Rail Authority staff said the county acquired land where train tracks used to run for "future transportation use" - which would not necessarily be restricted to trains. Acquiring the right-of-way now, she said, is more practical than trying to buy it after a decision is made to add transportation.

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