The Excelsior City Council voted to move forward with building a fifth dock at The Commons.
The city now will approach the Lake Minnetonka Conservation District (LMCD) to seek permission to build the dock.
The decision came after City Attorney Kevin Staunton appeared to assuage council concerns about questions raised by another attorney at a previous meeting.
Mark Kelly, an Excelsior attorney, questioned the city for limiting dock access to only a few residents and challenged the city's practice of spending money collected from the docks for general city expenses.
After Staunton's presentation, the council discussed the merits of the dock.
"I haven't been real excited about expanding the docks. I had some real reservations," said Mayor Nick Ruehl.
His primary concerns were how obstructive the dock would be and if it would encroach too far into The Commons.
But he said a canopy of trees near the location and the nearby hill helped alleviate his concern about the dock being obstructive.
In addition, the nearby property owners haven't complained about noise or commotion at the current docks.
"People have been respectful," said Ruehl.
With 110 residents on a waiting list to rent a slip, the city will ask to keep all 14 of the new dock slips for residents to lease.
"I see the docks as definitely a benefit to the residents," said Council Member Jennifer Caron, who added that it is a way for the average citizen to have access to the lake. "I'm not in favor of limiting that access when we can do it without impacting the quality of life of others that live here."
Nonetheless, some residents don't think the city should expand the docks.
"The revenue would be nice, but I think that fifth dock would encroach too far into The Commons area," said Leon Boyd.
While the council disagreed with Boyd, they agreed the city should stop after the fifth dock is constructed.
"This to me would be the end," said Ruehl.
The dock is expected to cost about $80,000 to build. Using last year's rates, the dock would generate nearly $13,000 in additional revenue annually.
City staff is planning on discussing the proposal with LMCD staff at the end of March and it likely will be discussed by the LMCD board in the spring.
The city hopes to construct the dock in January or February of 2011.
'Sails'
Another issue for the council to resolve is whether the sculpture that currently acts as an entrance to the more passive part of The Commons should be moved.
"If the fifth dock were to be constructed, the sculpture would be buried," said Ruehl, who said the sculpture, named "Sails," should be moved 90-100 feet to the north.
Other council members said they thought the sculpture should stay put.
Council Member Wendy Berghorst said that she's concerned that if the city moves the sculpture, it would give future councils permission to build another dock.
Legal questions
Before discussing the merits of a fifth dock, City Attorney Staunton presented the council with an analysis of Kelly's opinion.
"The residential dock arrangements that have been in place for at least the past 35 years are consistent with the common law dedication of The Commons and, therefore, permissible," he wrote in a memo to the council.
Three of the current docks were built in 2004 and the fourth was built in 2006. But the city has had docks along the shore for at least 35 years.
At a previous council meeting, Kelly told the council he took issue with the fact that the docks constructed on The Commons require a key to enter. He also said that because the slip leases are renewed annually for residents wanting to keep a dock, they are life estates.
His other concern was that the money collected from the docks go to other uses besides the park.
"My opinion is different from Mr. Kelly," said Staunton.
With a common law dedication, the courts generally look at the previous uses of the land to determine if an expanded or new use is permissable.
Staunton pointed to the varied uses on The Commons since it was first platted in 1854.
"During that time, I'm not aware of any objection to the docks," said Staunton.
Staunton also told the council he didn't see any reason why the council couldn't continue to funnel some of the money collected from the docks to general city purposes.
After hearing Staunton's presentation, Kelly still thinks his concerns have merit.
"My objection stands," said Kelly. But he said that without being a descendent of those who donated the land and without being a neighboring property owner, he said he doesn't have standing to bring a legal objection.
"I may have taken it as far as I can," said Kelly. "It's up to the citizens of Excelsior to decide if they have a matter of concern."
