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HomeMy WebLinkAbout2004 10-13 CCM Regular Session MINUTES OF THE PROCEEDINGS OF THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER IN THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA REGULAR SESSION OCTOBER 13, 2004 CITY HALL - COUNCIL CHAMBERS 1. INFORMAL OPEN FORUM WITH CITY COUNCIL CALL TO ORDER INFORMAL OPEN FORUM The Brooklyn Center City Council met in Informal Open Forum at 6:50 p.m. ROLL CALL Mayor Myrna Kragness, Councilmembers Kathleen Carmody, Kay Lasman, Diane Niesen, and Bob Peppe. Also present were City Manager Michael McCauley, Assistant City Manager/Director of Operations Curt Boganey, Deputy Director of Public Works Dave Peterson, Police Chief Scott Bechthold, City Attorney Charlie LeFevere, and Deputy City Clerk Maria Rosenbaum. No one wished to address the Council. 2. INVOCATION A moment of silence was offered for the Invocation. 3. CALL TO ORDER REGULAR BUSINESS MEETING The Brooklyn Center City Council met in Regular Session and was called to order by Mayor Myrna Kragness at 7:01 p.m. 4. ROLL CALL Mayor Myrna Kragness, Councilmembers Kathleen Carmody, Kay Lasman, Diane Niesen, and Bob Peppe. Also present were City Manager Michael McCauley, Assistant City Manager/Director of Operations Curt Boganey, Deputy Director of Public Works Dave Peterson, Police Chief Scott Bechthold, City Attorney Charlie LeFevere, and Deputy City Clerk Maria Rosenbaum. Councilmember Bob Peppe left the meeting at 8:15 p.m. 5. PLEDGE OF ALLEGIANCE The Pledge of Allegiance was recited. 10/13/04 -1- 6. COUNCIL REPORT Councilmember Carmody reported that the Council had a joint Work Session with the Financial Commission on October 4, 2004; and that she attended the League of Minnesota Cities Conference in Duluth. She reported on the sessions she attended and informed that there were many positive words about City Manager Michael McCauley, Fiscal and Support Services Director Dan Jordet, and Police Chief Scott Bechthold. Councilmember Lasman discussed that at the joint Work Session with the Financial Commission the budget was discussed and that there is still a considerable amount of work to be done; and reported that she attended the new Earle Brown School Dedication on October 9, 2004. Mayor Kragness reported on the sessions she attended at the League of Minnesota Cities Conference in Duluth; and that she attended a Recognizing the Vital Force in Seniors event and Candidate Forum. She informed that the Candidate Forum would be broadcast on October 17,2004,4:00 p.m., Channel 17 and on October 19, 2004, 1:00 p.m., Channel 12. All four candidates were present and this would be an opportunity for people to get informed about candidates before voting. Mayor Kragness discussed that the Caribou Headquarters Grand Opening Event was held today, and that there was a great turnout for the event. 7. APPROVAL OF AGENDA AND CONSENT AGENDA There was a motion by Councilmember Carmody, seconded by Councilmember Lasman to approve the agenda and consent agenda with the removal of Consent item 7d, Resolution Authorizing a Contract with Xcel Energy for Installation of Street Lights Within the Northport Area Neighborhood Street and Utility Improvement Project, to Council Consideration items as 10d. Motion passed unanimously. 7a. APPROVAL OF MINUTES A motion by Councilmember Carmody, seconded by Councilmember Lasman to approve the September 27, 2004, study, regular, and work session meeting minutes. Motion passed unanimously. 7b. LICENSES A motion by Councilmember Carmody, seconded by Councilmember Lasman to approve the following list of licenses. Motion passed unanimously. MECHANICAL Walter Mechanical 1169 East Cliff Road, Burnsville Albers Mechanical Contractors 200 West Plato Boulevard, St. Paul Sharp Heating & A/C 7221 University Avenue NE, Fridley 10/13/04 -2- i RENTAL Renewal: Marvin Garden Townhomes (52 Units) - Redevco Marvin Garden LTD Twin Lake North Apartments (276 Unites) - TLN LA NEL 5501 Brooklyn Boulevard - Mainsl Properties 5825 Colfax Avenue North - Beulah Hill 5740 Dupont Avenue North - Dion Properties, Inc. 5806 Emerson Avenue North - Robert Lindahl 6406 Indiana Avenue North - William Coleman Initial: 5333 Brooklyn Boulevard - Malyum Ali 5548 Dupont Avenue North - John Lindahl 5303 Fremont Avenue North - Leonardo Deluna 5440 Humboldt Avenue North - Sharon Kotula 6907 Quail Avenue North - Tony and Carmen Holder 7169 Unity Avenue North - Angelique Brown 5300 -5304 Vincent Avenue North - Steven Elhardt SIGNHANGER Arrow Designs & Fence Co. 13735 Aberdeen Street NE, Ham Lake G & J Awning & Canvas Inc 1260 1 O Street North, Sauk Rapids Pascual Signs 10856 Highway 81, Maple Grove 7c. RESOLUTION DECLARING A PUBLIC NUISANCE AND ORDERING THE REMOVAL OF DISEASED TREES RESOLUTION NO. 2004-133 Councilmember Carmody introduced the following resolution and moved its adoption: RESOLUTION DECLARING A PUBLIC NUISANCE AND ORDERING THE REMOVAL OF DISEASED TREES The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Lasman. Motion passed unanimously. 7d. RESOLUTION AUTHORIZING A CONTRACT WITH XCEL ENERGY FOR INSTALLATION OF STREET LIGHTS WITHIN THE NORTHPORT AREA NEIGHBORHOOD STREET AND UTILITY IMPROVEMENT PROJECT This item was removed and placed as item l Od on Council Consideration items. 10/13/04 -3- 7e. RESOLUTION AMENDING THE 2004 CENTRAL GARAGE BUDGET TO PROVIDE FOR THE EARLY ORDER/PURCHASE OF FIVE 2005 FORD CROWN VICTORIA POLICE PATROL VEHICLES APPROVED IN THE 2005 CAPITAL OUTLAY BUDGET RESOLUTION NO. 2004-134 Councilmember Carmody introduced the following resolution and moved its adoption: RESOLUTION AMENDING THE 2004 CENTRAL GARAGE BUDGET TO PROVIDE FOR THE EARLY ORDER/PURCHASE OF FIVE 2005 FORD CROWN VICTORIA POLICE PATROL VEHICLES APPROVED IN THE 2005 CAPITAL OUTLAY BUDGET The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Lasman. Motion passed unanimously. 8. PUBLIC HEARING ITEM 8a. AN ORDINANCE AMENDING SECTIONS 11-509,11-610, AND 11 -710 OF THE CITY CODE RELATING TO THE LICENSING OF ESTABLISHMENTS FOR THE SALE OF ALCOHOLIC BEVERAGES City Manager Michael McCauley discussed that this ordinance amendment would clarify the requirement of taxes be paid to an entire tax parcel, not only the premises. A motion by Councilmember Lasman, seconded by Councilmember Carmody to open the Public Hearing. Motion passed unanimously. Jay Quam, on behalf of and representing Applebee's, addressed the Council to discuss Applebee's request not to adopt this proposed ordinance. Applebee's feels that losing its liquor license for events that are beyond its control would unfairly punish them. Applebee's is trying to change their parcel however they cannot get separately assessed until the taxes are paid by Talisman. Mr. Quam discussed that if this ordinance is adopted he believes it would be an unfair result for Applebee's and not a good result for the City. Applebee's did not create this situation and beyond that they have tried to do everything that they can to get the situation right. Last year Applebee's paid what they believed was the allocated portion of the real estate taxes to the County. Mr. Quam informed that by adopting this proposed ordinance it would leave Applebee's in a situation where they would not have a liquor license and given the nature of the business would not have any choice but to close Applebee's. He suggested that the Council revise the proposed ordinance slightly to give the Council discretion so that it may withhold liquor licenses under certain circumstances. 10/13/04 -4- Mr. Quam outlined the lawsuit that had been brought against Talisman and informed that they do have a hearing scheduled for November asking the Court to put Talisman in a receivership so that the receiver can collect the taxes from the tenants and pay the taxes that are due. Mayor Kragness asked what the percentage was of food and liquor receipts for Applebee's in Brooklyn Center. Mr. Quam discussed that he was not aware of that percentage and expressed that if the Applebee's were to lose its liquor license that they would not be able to sustain a viable enterprise. A motion by Councilmember Carmody, seconded by Councilmember Lasman to close the Public Hearing. Motion passed unanimously. Councilmember Niesen expressed that she believes Mr. Quam had made a reasonable point and that the Council should have some discretion. She understands that the Council wanted to move in the direction they are with the proposed ordinance amendment; however, some discretion would be worthwhile in a situation like Applebee's. Mr. McCauley discussed that the proposed ordinance deals with eliminating any potential challenges, which serves a useful purpose. The lack of discretion is useful in sustaining the validity of the ordinance from this standpoint, unless the City was to articulate a basis upon which the Council would be exercising that discretion. If the Council would like to tighten up the ordinance under the current situation regarding Applebee's that would be responding to Applebee's. As a long -term policy issue he believes it makes sense for the Council to craft an ordinance that has a minimum of discretion and would simply provide standards. City Attorney Charlie LeFevere discussed that giving the Council a choice puts the City in a less tenable position than now. If the Council were to decide in the Applebee's case not to renew their liquor license, the City would be facing an additional argument that the Council had abused its discretion. If the Council decides that in this circumstance they want to provide some relief the proposed ordinance should be amended to do that rather than let Applebee's current lawsuit continue. However, if the Council is prepared to make a decision that they want to have taxes be paid, the proposed ordinance should be adopted as written currently. Mayor Kragness questioned the lawsuit on the receivership and how that would affect the City. Mr. LeFevere discussed that if a receiver is appointed and the rents are collected in time for the taxes to be paid, the City would not be faced with this issue in December. This would only take care of Applebee's and does not answer the question as to what the Council would like this ordinance to do on a citywide basis. Councilmember Peppe questioned if the Council chose to amend the proposed ordinance with changes that would not make Applebee's pay their taxes in a similar situation, it creates a problem that he believes by doing that the City is taking away the legal remedies that Applebee's would have against Talisman to get them to pay their taxes. Mr. LeFevere discussed that he is not aware if it was the lawsuit that motivated Talisman to pay their taxes or not. 10/13/04 -5- Councilmember Peppe questioned if the City has the same ability to take Talisman to court for the situations that Applebee's faced. Mr. LeFevere responded that the City does not have the ability and typically the way taxes are paid is dictated by Statute. Mayor Kragness questioned the latest conversations have been with Talisman. Mr. McCauley discussed that there have not been any recent discussions with Talisman. Staff has had conversations with Madison/Marquette. Councilmember Niesen questioned the procedure that Applebee's is going through with trying to split the property from Brookdale property. Mr. Quam discussed that he is not able to discuss specifics since he is a real estate attorney; however it is basically subdividing Applebee's part of the property for tax purposes. Mr. McCauley and Mr. LeFevere discussed that in order to complete this process the taxes have to be current per the County because the County cannot allocate the delinquent taxes. Councilmember Carmody questioned if the City would be facing the same situation if the proposed ordinance was not adopted and in the future another business moved into the Applebee's location. Mr. LeFevere expressed that if the Council were not to adopt this proposed ordinance, Applebee's will most likely argue to the Court; and expressed that if the Council wants the taxes to be paid on any property at all times for liquor licenses he would recommend that the Council adopt the proposed ordinance. If the Council believes it would not be appropriate to adopt the proposed ordinance under Applebee's circumstances, then something else should be done to the proposed ordinance so Applebee's is not subject to lawsuit and the City is not paying for it. Councilmember Peppe expressed that he understands the argument that is being made for Applebee's; however he does not believe that adopting this proposed ordinance would be doing anybody a favor because there are some remedies that are taken away that the City would not otherwise have with Brookdale. If the City were to allow this to continue, the question would be where does it go from here if the Brookdale continues slipping into default for taxes. Mr. Quam discussed that he believes if this proposed ordinance is adopted Applebee's will not have the help of getting Talisman to pay its taxes and it takes away one of the ambiguities that Applebee's used to convince the Court to get a temporary restraining order. Councilmember Lasman questioned what would happen with the litigation for the current lawsuit that Applebee's has and if it would impact in a negative way. She also questioned if it would be in the City's best interest to postpone this proposed ordinance in the event that things will rectify between now and December. Mr. LeFevere discussed that is something that is not entirely in the City's control and the window of time if fairly short because unless taxes are paid quickly the City is going to have a December decision to make. Mr. LeFevere discussed that this issue is not going to be decided by the Judge on the merits anytime soon. If the Council would like to postpone the proposed ordinance that is an option to the Council if they think that will be helpful to Applebee's. Mayor Kragness expressed that she does not want to punish Applebee's. 10/13/04 -6- i A motion was made by Councilmember Lasman, seconded by Councilmember Niesen to table this proposed ordinance to the November 8, 2004, meeting. Mr. LeFevere discussed that the hearing to reappoint the receiver is scheduled for November 16, 2004, and the Judge most likely will not decide on that day. The City will need to decide whether to issue a liquor license in December without the benefit of the Judge's decision and very likely without the benefit of taxes being paid. Councilmember Carmody expressed that she would not vote to table this proposed ordinance. She believes this ordinance needs to be tightened and by adopting this proposed ordinance it puts pressure on the taxes paid sooner. Councilmember Peppe expressed that he agrees with Councilmember Carmody and that the better solution would be to pass this proposed ordinance and then look at some of the suggestions to see if the ordinance could be amended at a later date. Mayor Kragness expressed that she agrees with Councilmembers Carmody and Peppe. Councilmember Niesen questioned what comes out of tabling this proposed ordinance. Mr. McCauley discussed that the postponement of this proposed ordinance would allow time for suggestions on language amendments and leaves the issue unclear as to how the Council will deal with unpaid taxes. Councilmember Lasman asked for clarification on whether or not a four -week postponement would affect the litigation and if it is remotely possible that the problem could be solved on its own in four weeks makes a difference on the decision this evening. Mr. LeFevere discussed that it is possible that there would be another temporary solution that occurs within the next four weeks with the taxes being paid and may get Applebee's through one more liquor licensing year. However, the question is still whether or not the Council wants the taxes to be paid. If the Council still wants more discussion it would make sense to table the proposed ordinance until it is ready to decide. However, if more information is not going to change the Council's decision on this ordinance amendment then the Council should adopt the proposed ordinance this evening. Mr. McCauley discussed the appointment of a receiver and the default that is already under the loan documents that Talisman has not paid the real estate taxes. The lender would be facing two defaults and the primary leverage of the receivership is not that it will cause money to be aggregated; it is that it is an event of default and in a prospective fashion, it begins the process of aggregating a sum of money but it would achieve money to pay delinquent taxes. Mr. LeFevere discussed that when talking about Brookdale being in receivership it typically means that someone is coming in and taking over the management and business since they cannot meet their obligations. It is a very limited receivership for purposes of collecting rent that should be collected by the owner for the payment of taxes. 10/13/04 -7- The other point is that adopting the proposed ordinance is not going to have an impact on the litigation for the foreseeable future because no one is urging that this go forward for a decision on the merits. The original lawsuit was started to deal with 2003 taxes that were due at the beginning of 2004. The temporary restraining order that was in effect has become mute because taxes were paid for 2004. The one thing that happens by adopting the proposed ordinance now could effect that Applebee's has two arguments; one is that the ordinance means that all they would have to do is pay taxes on their piece of the property; and two the other argument is that the ordinance is arbitrary and they would still have that ordinance. Mr. LeFevere discussed that it does not make sense to have a weaker case if this is what the Council wants the ordinance to say. If the Council wants this proposed ordinance to say this it should be adopted this evening. One thing that it could impact is if the taxes are not paid by the end of the year and Applebee's comes in for another temporary restraining order it is possible that a Judge might view their case as weaker and weaker enough so that they don't want to issue a temporary restraining order. Councilmember Lasman made a motion to withdraw her motion after hearing these conditions. Councilmember Niesen expressed she agrees and withdrew her second. ORDINANCE NO. 2004-20 Councilmember Carmody introduced the following ordinance and moved its adoption: AN ORDINANCE AMENDING SECTIONS 11- 509,11 -610, AND 11 -710 OF THE CITY CODE RELATING TO THE LICENSING OF ESTABLISHMENTS FOR THE SALE OF ALCOHOLIC BEVERAGES The motion for the adoption of the foregoing ordinance was duly seconded by Councilmember Peppe. Motion passed unanimously. Councilmember Peppe left the meeting at 8:15 p.m. 9. COUNCIL CONSIDERATION ITEMS 9a. RESOLUTION TRANSFERRING GENERAL FUND BALANCE FOR CAPITAL PURPOSES Mr. McCauley discussed that the City had planned to use unspent funds accumulated in the General Fund for purposes of funding capital needs and that this resolution would transfer the following sums of money from the General Fund as follows: Street Reconstruction Fund $620,464 Capital Project Fund $100,000 Technology Fund $220,000 10/13/04 -8- Councilmember Niesen questioned if the City did not have a Technology Fund, would more money be allocated to the Street Reconstruction Fund. Mr. McCauley discussed more money would most likely be recommended in the Capital Project Fund. Councilmember Niesen questioned if this type of transfer is done every year. Mr. McCauley said that this type of transfer occurs every year and that one year the transfer had been done in the first quarter of a year when traditionally the money has been transferred in the third quarter of each year. RESOLUTION NO. 2004 -135 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION TRANSFERRING GENERAL FUND BALANCE FOR CAPITAL PURPOSES The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Carmody. Motion passed unanimously. 9b. FINANCIAL ADVISORY SERVICES REVIEW Mr. McCauley discussed pursuant to City Council Policy, a review committee will need to review proposals for financial advisor. The review committee is composed of City Council Members and Financial Commission Members appointed by the Mayor in consultation with the Financial Commission Chair and approval of the City Council. This review committee will also include the City Manager and Director of Fiscal and Support Services. Mr. McCauley informed that the Financial Commission had recommended appointment of Susan Shogren Smith and Timothy Elftmann. The Council had discussed this item at its Study Session and recommended Councilmembers Carmody and Niesen. Mayor Kragness made a motion, seconded by Councilmember Lasman, to appoint Financial Commissioners Shogren Smith and Elftmann and Councilmembers Carmody and Niesen to the review committee for financial advisor. Motion passed unanimously. 9c. RESOLUTION AUTHORIZING THE USE OF TECHNOLOGY FUND MONIES TO MATCH FUNDS REQUIRED FOR DEPARTMENT OF PUBLIC SAFETY, DIVISION OF HOMELAND SECURITY AND EMERGENCY MANAGEMENT GRANT Mr. McCauley discussed that the City had received grants for several aspects of the City's conversion to 800 MHz for police and fire operations. The City is required to match portions of the grants for mobile and portable radios. This resolution would authorize the sum of $156,623.87 to be expended from the Technology Fund in connection with the acquisition of 800 MHz mobiles and portables as the City's match to the $159,000 grant from the Minnesota Department of Public Safety, Division of Homeland Security and Emergency Management. 10/13/04 -9- Councilmember Lasman asked if the two consolettes purchased would be used permanently if the City were to discontinue dispatching services. Mr. McCauley discussed that the two new consolettes would have permanent use in the Police and Fire Departments. RESOLUTION NO. 2004-136 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION AUTHORIZING THE USE OF TECHNOLOGY FUND MONIES TO MATCH FUNDS REQUIRED FOR DEPARTMENT OF PUBLIC SAFETY, DIVISION OF HOMELAND SECURITY AND EMERGENCY MANAGEMENT GRANT The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Carmody. Motion passed unanimously. 9d. RESOLUTION AUTHORIZING A CONTRACT WITH XCEL ENERGY FOR INSTALLATION OF STREET LIGHTS WITHIN THE NORTHPORT AREA NEIGHBORHOOD STREET AND UTILITY IMPROVEMENT PROJECT Mr. McCauley discussed that this resolution would authorize a contract with Xcel Energy for installation of street lights within the Northport area neighborhood street and utility improvement project. Xcel is looking at revamping the street lights program in the future. This point this would be the direction they are requesting. Councilmember Carmody discussed that she had asked that this item be discussed to let residents know that Xcel has had some problems and that it should be noted that this does not contractual hold for future projects. Councilmember Carmody expressed that she hopes staff will be looking at alternatives for future projects. Mr. McCauley informed that staff would be reviewing the long -term management of the street light system prior to proceeding with street light replacement for the 2005 neighborhood proj ect. RESOLUTION NO. 2004 -137 Councilmember Carmody introduced the following resolution and moved its adoption: RESOLUTION AUTHORIZING A CONTRACT WITH XCEL ENERGY FOR INSTALLATION OF STREET LIGHTS WITHIN THE NORTHPORT AREA NEIGHBORHOOD STREET AND UTILITY IMPROVEMENT PROJECT The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Lasman. Motion passed unanimously. 10/13/04 -10- 10. ADJOURNMENT There was a motion by Councilmember Carmody, seconded by Councilmember Lasman to adjourn the City Council meeting at 8:30 p.m. Motion passed unanimously. City Clerk Mayor 0 10/13/04 -11-